has been extensively manufactured and sold by the plaintiff.
(21) The defendant has infringed all the patents in suit.
Conclusions of Law.
1. That the patents in suit are valid.
2. That the plaintiff is entitled to relief prayed for as to all of the patents in suit, except the Shipman Patent No. 1,734,405, as to which patent the defendant ceased infringement before suit brought, and has never sold any commercial product of that type.
The patents in suit relate to hookless fasteners, now commonly known as "zippers," which are applied to bags, garments, and a variety of other articles for the purpose of closing openings therein.
The first hookless fastener was invented by Kuhn-Moos, No. 14,358, British Patent of 1912. This patent was cited in the Patent Office against the plaintiff's claims, and this discussion was acquiesced in by Sundback, who sought by amendment of his claims to distinguish his structure from that of Kuhn-Moos. We, therefore, conclude that the plaintiff's patent is valid, only so far as it is distinguishable from Kuhn-Moos: Weber Electric Co. v. E.H. Freeman Electric Co., 256 U.S. 668, 41 S. Ct. 600, 65 L. Ed. 1162.
In the Sundback structure, we find dominant features which, in our opinion, clearly distinguish it from Kuhn-Moos, i.e., (1) the use of thin metallic, interlocking members, which can be readily fabricated by a stamping process, as distinguished from the thick interlocking members of the Kuhn-Moos structure, which can only be fabricated by a coining process; (2) the use of elongated and transversely rounded projections and recesses on the interlocking members on the Sundback structure, as distinguished from the rounded pin-projection and semicircular recess of the Kuhn-Moss structure; and (3) the use of stops at the top and bottom stops to check the operation of the slider, as aperture equipped with the interlocking members is opened or closed, as distinguished from the Kuhn-Moss, which discloses no stops at all.
These dominating features of the Sundback structure co-operate to overcome a deficiency in the Kuhn-Moos structure, i.e., the preventing of the disengaging of the interlocking members when fastener is transversely bent.
These distinguishing features of the Sundback structure evidently brought about the commercial success of that structure, as distinguished from the Kuhn-Moos, which does not appear to have any commercial success at all. The Kuhn-Moos patent was cited in the German courts against a German Sundback patent covering the same features as the Sundback patents here in suit; the Sundback was upheld, because of the dominating features herein referred to, which clearly distinguish it from Kuhn-Moos. (See German decision offered in evidence in this case.)
The defendant contends that the first Sundback patent (claims 1, 2, and 3) does not disclose these distinguishable features, and they are therefore invalid. We cannot agree with this contention. We find in this Sundback patent ample disclosures of these distinguishing features. (See Sundback Patent No. 1,219,881, p. 2, line 32; p. 2, line 53; p. 1, line 38; p. 1, lines 52-62; p. 2, lines 32, 43.)
Defendant further contends that these claims are invalid, because of indefiniteness brought about by the disclaimer filed by the plaintiff, after this suit was brought. This contention we cannot agree to, because, in our opinion, it merely limits the operation of the claims, and does not undertake to add anything thereto, which is not claimed in the original claims.
We, therefore, hold that these three claims of this patent are valid.
Turning now to the stop-claims (4, 6 to 11) of the first Sundback patent, the defendant contends that these are invalid, because there is no support for the inventive subject-matter in the original application. We cannot concur in this position because, as found in our fourteenth finding of fact, the dominating features do appear in the drawings and were carried into the application by amendment October 14, 1915. These claims were in interference with the Krich application and awarded to Sundback by the Patent Office.We hold these claims to be fully supported by the drawings and specifications and hold them valid.
Next, as to the contention that claims 1, 2, 3, and 15 of the second Sundback patent are void for double patenting. True, the fastener, as a whole, disclosed in the second patent, is the same fastener described in the first patent; but the claims of this second patent more specifically state the features that distinguish it from Kuhn-Moos, i.e., the braided or twisted cords of the tape (p. 1, line 77); the elongated slot of the jaws of the interlocking members in which the stringer is clamped (p. 2, line 29); and the extension on the recesses and projection of the interlocking members from edge to edge (claims 1, 2, 3). We, therefore, decline to hold this patent void for double patenting.
Having held these patents valid, we now discuss the question of infringement. We find that the defendant has, in its triangular projections and recesses on the interlocking members, applied the principle discovered and disclosed by Sundback in his patent, i.e., that the projection and recesses must be so fashioned as to prevent the disengaging of the interlocking members when transversely bent. That was the fault with the Kuhn-Moos structure which Sundback discovered and corrected. The defendant applies the same principle in its fastener to prevent opening of the interlocking members, even though the exact form of the projections and recesses are not the same.
We, therefore, hold claims 1, 2, and 3 of the first patent, and claims 1, 2, and 3 of the second patent infringed.
Considering now the stop-claims of the first patent (4, 6 to 11), we find that the defendant employs the two cords, the elongated slot between the clamping jaws, and the stops constructed to enter the slider, and therefore infringes these claims. As to claim 7 of the second patent, the defendant employs a stringer having a bead formed by two cords, one on each side of the edge of the tape, and therefore infringes this claim.
The third Sundback Patent, No. 1,566,996, deals with the structural features of the sliders per se (claims 6, 12, and 13). The dominant feature of this slider is the provision of wing members made by doubling upon itself a single metal stamping having intermediate integral spacing means, fastening the two wings together with a rivet, and attaching a pull-device to the rivet. The Judson Patent No. 504,038 was cited against this patent. We do not find the rivet in the Judson structure. We do find a bail-pin soldered to top-plate of the slider; but there is no indication that it extends through both wings of the slider to hold them together.
Judge Hincks, in the District Court of Connecticut, in Hookless Fastener Co. v. G. E. Prentice Mfg. Co., 6 F. Supp. 176, held claims 6 and 12 of this patent valid. Claim 13 was not involved in that suit. We concur in Judge Hincks' opinion, in spite of a Canadian court decision to the contrary. We can find no anticipation of the features of the claims in suit in the prior art, and hold these claims valid. The defendant employs the clamping rivet of this patent. We therefore hold these claims infringed.
As to the Shipman patent covering the automatic lock-sliders, the defense is noninfringement. Defendant admits making a few automatic lock-sliders, but denies selling them, and has ceased to make them, even before suit was brought. We are, therefore, of the opinion that it is unnecessary to pass any opinion as to the validity or infringement of this patent, because the infringement, if any, is inconsequential, and would not support a decree for an injunction.
Let a decree be submitted in accordance with this opinion.
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