The opinion of the court was delivered by: MCVICAR
(1) The patent involved, 1,005,135, is for an improvement in windshields in relation to hinging the upper and lower sections together, and for the holding of the upper section in a folded position.
(2) Arthur L. Banker, the plaintiff, made application for the patent on December 19, 1907, which was granted October 10, 1911, and which expired October 10, 1928. This action was brought October 7, 1931.
(3) The defendant, a corporation of the state of Delaware, was incorporated in 1919. It purchased the assets of the Ford Motor Company, a Michigan corporation, in 1920. The stockholders of the Ford Motor Company of Michigan differed substantially from those of the Ford Motor Company of Delaware.
(4) Prior to 1915, the Ford Motor Company purchased its windshields from others; since that time, it has manufactured most of the windshields used on its cars.
(5) The windshields purchased by the Ford Motor Company and manufactured by it prior to 1925, were of the type that plaintiff alleges infringes the patent in suit. Such windshields were in common and general use throughout the United States prior to 1925.
(6) The Ford Motor Company constructed its first windshield department in the early part of 1915. The building occupied 10,000 square feet.The machinery and equipment cost approximately $20,000, and the space occupied by the building had an approximate value of $20,000. It employed about seventy-five persons therein. The Ford Motor Company constructed its second windshield department in the latter part of the year 1915. It occupied 20,000 square feet. The machinery and equipment cost approximately $40,000; the space occupied had an approximate value of $70,000; the number of persons employed was three hundred and fifty. The Ford Motor Company constructed its third windshield department in the year 1928. It occupies a space of 20,000 square feet; the machinery and equipment cost $135,000; the space occupied has ann approximate value of $100,000; and three hundred persons are engaged as employees therein.
(7) The plaintiff knew of the defendant's use of the alleged infringing device prior to April 10, 1915, and knew of the continued use thereof by defendant from that date until this action was brought. He also knew, during the same time, that the same device was in general public use on many various types of automobiles made by different manufacturers.
(8) On April 10, 1915, plaintiff mailed at Pittsburgh to the defendant at Detroit a letter of which the following is a copy:
"The Ford Motor Co., Detroit, Michigan.
"You will note that 1,005,135 covers the means of supporting the upper and lower glass by means of metal shelf extending in towards the center from the frame. By means of this construction a shield can be made without a binding strip between the two lights of glass which would be an obstruction to clear vision.
"No. 1,005,136 covers a windshield construction in which the upper glass overlaps the lower glass. The advantage in this construction being in the fact that it prevents rain or wind blowing into the car between the two lights of glass, prevents the whistling of wind at this point, and at the same time permits a clear view ...