Gleitsman v. Monarch Sanitary Products, Inc. (26 F. Supp. 152, 1939)

CAMPBELL, District Judge.

On stipulation the two cases were tried together, the testimony offered in each case, in so far as it is applicable to be received in the other.

These are suits for the alleged infringement of two United States Letters Patent.

1. Patent No. 2,120,661 issued to Harold Gleitsman for clothes hamper granted June 14th, 1938 on an application filed December 8th, 1936.

This invention relates to new and improved clothes hampers and the like.

2. Design Patent No. 110,355 issued to Harold Gleitsman for design for a hamper granted July 5th, 1938 on an application filed February 4th, 1938.

This patent is for an ornamental design for a hamper, as shown and described.

Both patents are owned by the plaintiff, Harold Gleitsman, and are exclusively licensed to the plaintiff, Gleitsman’s, Inc.

The inventions of the patents have been conjointly used by the plaintiff corporation since the Summer of 1937.

The notice required was given to the defendants, and these actions were started shortly after the issuance of the Design Letters Patent.

The defendants have interposed answers alleging the defenses of invalidity and non-infringement.

The plaintiff, Gleitsman’s Inc., has been engaged in the business of manufacturing clothes hampers for the past eight years.

Samples of the plaintiff’s commercial product were offered in evidence as Exhibits 9, 10 and 11 and plaintiffs contend that these hampers embody the invention of the patent in suit.

Plaintiff’s sales largely increased when the aforesaid hampers were placed on the market, and plaintiffs enjoyed considerable commercial success.

The new hampers were first disclosed to the trade by plaintiffs, in the Summer or early Fall of 1937. Some time thereafter, the defendant, Monarch Sanitary Products, Inc., introduced its alleged infringing structure, which is Exhibit 12, and the defendant, New York Standard Manufacturing Co., Inc., introduced its alleged infringing structure, which is Exhibit 13.

The alleged infringing structures of the two defendants are substantially identical, but there are some differences, which will be pointed out in the analysis of the question of infringement.

For all practical purposes the issues raised in each case are identical. Reliance upon the same prior art is had in both cases, and the same alleged differences between the alleged infringing structures and the patents are present, and the arguments made as to non-infringement are the same.

There is, however, a difference which may be said to be important, in that the defendant New York Standard Manufacturing Co., Inc., admits that it was familiar with the products of the plaintiffs, when it first marketed its own structure, while the defendant, Monarch Sanitary Products, Inc., makes no such admission.

The objects of the invention of the structural patent No. 2,120,661 are stated by the patentee in the specification of that patent to be as follows:

“An object of the invention is to provide a clothes hamper which may be readily and cheaply manufactured, which is durable, and which comprises novel structural features of pleasing appearance.

“A further object of the invention is to provide a clothes hamper and more specifically a clothes hamper the side walls of which are made of woven or mesh fiber or the like wherein the front panel of the hamper may comprise a body structure of different appearance set off from the body material used throughout the remainder of the hamper by a pair of ornamental structural supporting elements.

“A still further object of the invention is to provide a clothes hamper of the character described wherein a plurality, as for example the two front upright elements which support the top frame and cover of the hamper, function also as ornamental covering members for joints or seams in the outer body covering the hamper.

“A still further object of the invention is to provide a hamper of the character described wherein all joints or seams in the material forming the side walls of the hamper are covered by ornamental structural elements.

“Other objects of the invention will in part be obvious and will in part appear hereinafter.”

There is described in the specification, the usual prior art hamper, in which the side walls comprise mesh fiber which was tacked at its exposed edges to a rear, upright supporting element, the exposed seam being then covered by carrying down a strip of braid from the upper edge of the hamper. It is stated that such a structure provides a rough and uneven rear surface, and a uniform body appearance, except for the single rear seam. In the specification it is pointed out that the rear wall of the hamper should preferably be smooth and that any ornamental features should appear on the front panel. In the specification, it is also pointed out, that with the structure of the patent in suit a highly decorative panel of more expensive material may be used in the front of the hamper, and that this may be set off from the remaining wall closure element by decorative molding.

The embodiment of the invention specifically described, comprises a hamper having a top frame 11, provided with handles 12 and a cover 13. The main object of the hamper is said to comprise a front panel element and a wall closure element IS, which extends completely around the body of the hamper from one edge of the front panel, element 14, to the other edge thereof. The front of the hamper is described as comprising adjacent its rear wall, the usual upright supporting element 16. The supporting elements adjacent the front wall are described as comprising grooved strips 20, which are provided with outwardly extending ornamental sections 22 which act as covers for the edges of the wall closure elements. The wall closure elements are nailed to the back portions 24 of the elements 20. The back portions 24 are described as comprising the structural supporting elements for the upper frame 11 and for the wall closure elements 14 and 15. The ornamental covering panels 22 are affixed to the back supporting elements 24 in such a way as to provide grooves in which the edges of the wall closure elements are seated.

The Design Patent in suit No. D 110,-355 discloses a preferred form of the panel type hamper covered in the structural patent. In the Design Patent there are present in the front wall a panel element defined by relatively wide strips of molding, the curved corners of the hamper body and the somewhat squat and rounded handles. The legs and handles of the hamper are shaped to conform to the generally rounded edges, and are designed to provide a flowing line, so that the entire structure gives an appearance of rounded corners with a complete absence of sharp and protruding edges.

A discussion in detail of the elements of the Design Patent would be of little value as it is the appearance of the design as a whole, which furnishes the test of validity and infringement.

Plaintiff bases its complaint on Claims 1 and 2 of the structural patent No. 2,120,661 which read as follows:

“Claim 1. A clothes hamper comprising, in combination, a bottom element, a plurality of vertical supporting elements affixed thereto, a top element supported by said vertical elements, a plurality of wall closure elements, one of said wall closure elements forming the rear wall and the side walls of said hamper, the other of said wall closure elements forming a portion at least of the front wall of said hamper, a plurality at least of said vertical supporting elements comprising grooved elements, said plurality being positioned in the front wall of said hamper and spaced from the ends of said wall whereby said wall is divided into a plurality of vertical panel portions, each of said wall closure elements being seated in one of said grooves and affixed to one of said grooved elements, said grooved elements comprising exterior portions overlying and hiding from view the edges of said wall closure elements seated in said grooves.”

“Claim 2. In a hamper of the character described, in combination with bottom and top elements, a plurality of vertical, supporting, frame elements, at least two of said frame elements comprising grooved members, wall closure elements seated in the grooves of said grooved members and affixed thereto, one of said wall closure elements forming a panel for the front of said hamper, the other of said wall closure elements forming the rear and side walls and portions of the front wall of said hamper, portions of said grooved members extending outwardly beyond said wall closure elements and acting to frame said first mentioned wall closure element, the ungrooved vertical frame elements being positioned completely within said wall closure elements.”

Neither of the defendants offered in evidence any prior art patents, publication or use as an anticipation of the structural patent. The prior art which was offered in evidence, was so offered to show the prior state of the art, the same art being relied upon by each defendant.

The following are the five patents offered in evidence, which I will discuss in order as well as the one prior publication which was also offered, and plaintiff’s own prior hamper which was alleged as a prior use.

Patent 447,830 issued to David John Johnson for basket hamper, granted March 10th, 1891, discloses an ordinary basket hamper having an exposed upright at each corner with a hinged cover and with four wall closure elements, one closing each side of the hamper.

Patent 1,388,556 issued to Henry R. Garritson for basket granted August 23rd, 1921 discloses a wicker clothes basket in which the side walls 8, where they meet at the ends of the basket, are held in place by a plurality of strips, which are designated respectively, an inner strip 12, a reenforcing strip 11, additional strips 13, and exterior re-enforcing strip 14, and, a final exterior metallic strip 15.

Patent 1,799,621 issued to Harold F. Shaw, assignor to F. A. Whitney Carriage Company for clothes hamper granted April 7, 1931, discloses a wicker hamper having no legs, which rests on a hinged bottom element 17, which is held in position by a hook or latch 21, which may be manually released by pulling on the handle 31. Except for the base and latch mechanism briefly described, the structure of the_ clothes hamper shown is vague and indefinite. There is no showing as to how the walls are made. Four vertical uprights 11, one at each corner, with wicker wall closure means 12 are indicated in Fig. 3, but there is no showing in the patent as to whether there are four wall closure elements, one for each wall or a single one which surrounds the main body of the hamper, or some other structural arrangement.

The patent does not disclose a paneled hamper or a hamper having grooved supporting elements or the equivalent thereof, nor any way of covering the exposed seam where adjacent wall closure elements meet.

Patent 2,051,006 issued to Lewis A. Marcus for receptacle granted August 11th, 1936, discloses a hamper having four wall closure elements 11 each positioned in a corner member 17, in a sort of dovetailed interlock. (Fig. 5). None of the patented features are disclosed in that structure.

German Patent 441,049 issued to Robert Plohener and Walter Holderegger for basket comprising a frame and wicker or woven walls, patented May 20th, 1925, discloses a wicker basket having vertical uprights at each corner, which are grooved; the grooves receiving the ends of the wicker wall closure elements (Fig. 5). The disclosure in that patent of a grooved element used in a hamper as a vertical upright to receive the edges of wall closure elements is substantially identical with the disclosure of pages 31 to 35 of Wireless and Gramophone Cabinet Making, also offered by defendants as Exhibit B.

All of the prior patents offered in evidence by the defendants were cited as references in the Patent Office and the patent in suit issued over them which adds to the weight of the presumption of validity of an issued patent. MacClemmy v. Gilbert Corset Co., 2 Cir., 211 F. 73; Imperial Bottle Cap & Machine Co. et. al. v. Crown Cork & Seal Co. of Baltimore City, 4 Cir., 139 F. 312.

Publication Wireless and Gramophone Cabinet Making, pages 31 to 35, inclusive, discloses a radio cabinet which has a rear panel that fits into grooves in vertical uprights so that it may be removed.

In Fig. 10 on page 33 the uprights are shown and in Fig. 9 page 32 the rear panel is shown partially removed. This publication appears to be substantially identical for the purposes for which it was submitted with the Hohener German Patent 441,-049 in both of which the uprights are grooved and wall closure elements are fitted into the grooves and slidable therein, therefore, it seems to me that nothing is added to the art by this Exhibit over that cited by the Examiner.

This brings us finally to the hamper offered in evidence as Exhibit F, and the deposition with the accompanying Ex-' hibits, which is introduced in evidence as Exhibit E. The deposition relates to a hamper which was previously made by thé plaintiff and is illustrated in the September 1934 issue of House Furnishing Review at page 40. One of these hampers was offered in evidence as Exhibit F, and it is stipulated that it may be considered prior art to the Patents in suit. That hamper has a wicker panel element in the front, and the remainder of the hamper walls consist of a solid fiber board sheet which extends across the back, both side walls, and a portion of each side of the front of the hamper, which fiber board rests upon the base of the hamper, and supports the top of the hamper and the cover of the hamper. There are no vertical uprights in the hamper structure, except the two panel defining elements in the front wall. If the fiber board, forming the wall of Exhibit F, were removed, it appears from the testimony that the top frame of the hamper would collapse.

Hampers, like Exhibit F, were made by the plaintiffs for a period of eight months during 1933 and 1934 and were discontinued because they were no longer useful to the trade, for several reasons, among which were, that it did not supply enough ventilation to the clothes, that they had a musty odor when stored in it, that it had an appearance of a cardboard box, as which it became known in the trade, and that they could no longer sell the article.

From the evidence, it appears that hampers, such as Exhibit F, could not be sold in competition with the patented hamper, except at a cheaper price. ?

From the evidence it would appear that the defendant, New York Standard Manufacturing Co., Inc., is still making" and selling a hamper in which fiber board elements support the top frame.

The price of such a hamper is from 10 to 25