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March 14, 1938


The opinion of the court was delivered by: KIRKPATRICK

This is a suit in equity for the infringement of U.S. Patent No. 1,941,432 to Doering, for a casement window structure, and the issue is chiefly concerned with the operating mechanism at the bottom of the frame, for opening and shutting the window.

Inasmuch as there is a question of the priority of another device involved, it may be noted that the earliest date which can be allowed the patentee for reduction to practice is December, 1930, that the application date of the patent is October 6, 1931, and that it issued December 26, 1933.

 Infringement, if the patent is valid, is not seriously disputed and may be found without discussion.

 The defense is invalidity -- for two reasons. They are:

 First, want of invention over the prior art. This defense includes the fact assertion by the defendant that the feature of the patented combination in which, if anywhere, invention is to be found, was first conceived and reduced to practice by a person other than the patentee.

 Second, that the patent is an attempt to re-patent an old combination by means of claims in which the only novel feature lies in the improvement of one of its elements.

 I have reached the conclusion that the patent is invalid for both reasons.

 The patent has 20 claims, of which 2, 3, 4, 6, 8, 10, 16, 17, and 18 (ten in all) are in suit. All these claims are for the combination described as a "casement window structure." They all contain three major elements, which are: The frame, a window sash mounted on the frame, and operating means by which the sash can be swung outwardly, closed, or held in an intermediate position. There are a number of other minor elements which appear in some of the claims but not in all. These are, an insect screen fitting into the frame, means for detachably securing the screen to the frame, L-shaped members forming the frame and sash, and others, not important.

 All but one of the claims in suit describe the principal feature of the sash operating means as primarily consisting of either a crank and handle, or worm gearing, or both. Claims 8, 9 and 10 describe the axis of rotation of the crank as oblique to both vertical and horizontal planes. Claim 18 describes it as oblique to three planes.

 The objects which the patent specification assigns to the alleged invention relate to a field already well covered, and the arguments of counsel credit it with meeting many difficulties of construction which had been met long before its date. The problems of how to open and shut a casement window without removing the insect screen, of doing it by an operating device which goes through the frame below the screen and does not have to intrude into the glass or screen, and of doing it by a rotatable crank mechanism which is self locking and holds the sash in any position, rather than by a push-bar which has to be hooked into notches, had all been sactorily worked out in the prior art. Making a unitary construction which could be assembled in the factory, and the reduction of the cost of the whole, were mere matters of manufacture which under no theory required invention.

 Even on the plaintiff's own showing, when the patent in suit came into the field there was only one further improvement to be made. In the old structures the crank extended out from the bottom frame of the window parallel and quite close to the window sill. Consequently the handle had to be long enough to extend beyond the sill in order to be turned. So extended, it took up space and made an awkard looking window.

 The Doering patent (claim 18) met this difficulty by the very simple expedient of making the crank oblique to the plane of the sill, the plane of the window, and a plane perpendicular to both -- that is oblique in three directions. Incidentally, the operator was moved over to the corner of the window. The result was that the sill did not interfere and you could use a very short crank and have a more compact and better looking operator. Every major element of the combination was to be found in the prior art, in combination, and co-operating exactly as in the patent. See admission of counsel as to Exhibit F; also the Watson and the Johnson Patents and the Win-Dor structure. Doering's entire contribution consisted in tilting up the crank and slewing it around a little.

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