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CHENEY CO. v. CUNNINGHAM

January 14, 1941

CHENEY CO.
v.
CUNNINGHAM et al.



The opinion of the court was delivered by: SCHOONMAKER

This is a patent suit against Cunningham and Friedberg, then partners doing business as Roof Specialties Company. Since the suit started, a corporation by the same name has succeeded to the business of the partnership, and has been joined as a defendant. The suit involves a charge of infringement by defendants of four patents owned by plaintiff, i.e., Nos. 1,715,000; 1,728,955; 1,939,619; and 1,871,585, relating to metal roof flashings.

Defendants have filed a counterclaim, charging plaintiff with unfair competition in trade through the misuse of patent threats and other trade practices intended to discourage customers from the purchase of defendants' roof flashings.

 The patents in suit all relate to interlocking through-wall flashings for use in masonry buildings, designed to provide a metallic flashing extending through the masonry wall, to intercept and cut off the downward flow or seepage of water infiltration in the wall, and at the same time to provide a mechanically-keyed bond between the flashing and the masonry above and below it so as to prevent the movement of the masonry in any direction.

 It is old in the art to use metal flashings which do not employ any means to key the masonry to the flashings; and such flashings are still in use. Architects and builders are not in uniform agreement as to the necessity or desirability of this keying.

 The prior art also discloses through-wall sheet metal flashings with corrugations to prevent shifting of overlying masonry. See White Patent No. 423,888, granted March 18, 1890. Likewise, it was known in the prior art to interlock these flashings to mortar by Z-shaped pieces haphazardly soldered on the top and bottom of the sheet (Test. McSteen, Rec. pg. 95). Brown Patent No. 689,281, granted December 17, 1901, shows sheet metal with dovetailshaped corrugations to interlock with the masonry. A similar structure is shown in the Schlafly Patent No. 840,016, granted January 1, 1907. Structures having dovetail ridges and grooves to interlock with masonry were described for commercial use in Sweet's Architectural Catalog, 1916 (Defts Ex. 8, prior art).

 With this brief statement, we proceed now to consider each of plaintiff's patents.

 Patent No. 1,715,000.

 The patent was granted May 28, 1929. Plaintiff relies on claims 1 and 2, which read as follows:

 "1. A flashing comprising a continuous strip of sheet material, embodying therein a plurality of dove-tail shaped grooves and ridges, the opposite sides of a groove on one face of the material tapering longitudinally of the groove in the opposite direction to that in which the opposite sides of another groove on the same face of the material tapers.

 "2. A building construction comprising superposed courses of masonry, a layer of binding material for said courses, and a section of sheet metal flashing embedded within said binding material, said section embodying therein a plurality of grooves and ridges each having sides inclined to the face of the material and also tapering longitudinally thereof in opposite directions on both sides thereof respectively whereby the masonry is bonded together in all directions."

 In the file-wrapper history of this patent, it appears that Cheney made fourteen claims, all of which were rejected on prior-cited patents. After amendments to claims 7 and 9, they were allowed as claims 1 and 2 above quoted. In this situation, Cheney must be held to have narrowed his form of construction to that described in his amended claims. that was the conclusion of the Circuit Court of Appeals of the First Circuit in E. Van Noorden Co. v. Cheney Co., 75 F.2d 298, in construing the very patent here in suit. That court said, 75 F.2d page 302: "Cheney has chosen the form in which his patented flashing must be constructed by his amendment to claim 9, and has abandoned all broader claims." That view is amply supported by Supreme Court decisions, among which we may note: I.T.S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 443, 47 S. Ct. 136; 71 L. Ed. 335; Shepard v. Carrigan, 116 U.S. 593, 597, 598, 6 S. Ct. 493, 29 L. Ed. 723; Hubbell v. United States, 179 U.S. 77, 83, 85, 21 S. Ct. 24, 45 L. Ed. 95; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 429, 14 S. Ct. 627, 38 L. Ed. 500; Weber Electric Co. v. E.H. Freeman Electric Co., 256 U.S. 668, 667, 41 S. Ct. 600, 65 L. Ed. 1162.

 The dovetail formation, however, is not new with Cheney.Such formation is shown in the Brown Patent No. 689,281; and the Cheney claim is limited to a dovetail formation of particular type, i.e., dovetail ridges and grooves tapering horizontally in opposite directions. We do not find this formation, or its equivalent, in defendants' accused structure. In defendants' structure, all teeth intermediate the two end teeth, and are inclined in the same direction and to the same degree. There is not present the splaying or reverse widening of alternate panels, as shown by ...


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