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August 1, 1950

BERRY et al.

The opinion of the court was delivered by: KIRKPATRICK

This is an action based upon patent infringement and unfair competition.


 Patent Infringement.

 Three patents are involved, Berry, 1,906,361 (claims 4 and 5), Kroenlein, 2,458,863 (claims 1 and 3) and Hardrick, 2, 458,850 (claim 1). The patents are all for toy cash registers which are much the same thing as commercial cash registers, but reduced in size, greatly simplified and inexpensively constructed.

 In the case of each patent validity and infringement are in issue.

 A. Berry Patent.

 This, like all cash register patents, is for a combination of a large number of elements, all of which, in one form or another, are to be found in the prior art. Roughly, the patent involves three sub-assemblies of elements, being, respectively, a key assembly, by which the keys can be depressed and automatically returned to position; a target assembly by which, when the key is depressed a target bearing a figure is elevated so as to show above the case, any previously elevated target being dropped at the same time; and a drawer assembly, by which the drawer flies open when a sale is registered. Claim 4 covers the target assembly and claim 5 the key assembly. The drawer assembly is disclosed but no specifically claimed. This patent expired May 2, 1950.

 The defendant began to manufacture a toy cash register in the early part of 1948. In 1949 it adopted a new and entirely different kind of target assembly and it is only this modified construction (first marketed about May 1, 1949) that is charged with infringing claim 4. Both the 1948 model and the modified, 1949, model are charged with infringing claim 5.

 I am of the opinion that the defendant's modified construction infringes claim 4 and that neither its original nor modified constructions infringe claim 5.

 The target mechanism described in claim 4 accomplishes its result by providing each target with a notched flange having an outwardly inclined face so that the part below the notch extends farther forward than the part above. There is a keeper or latch of sheet metal bearing against the flanges of the whole row of targets and urged into engagement with them by a leaf spring behind it which, when the target is elevated, falls into the notch and holds the target up. When a second target is elevated it goes up high enough for the lower part of the flange, operating as a cam, to push the keeper out of the notch in the first (elevated) target and allows it to drop, the second target than falling back into engagement with the keeper and being held up by it. It will be seen that the essential part of the operation is the pushing of a keeper out of engagement with an elevated target by means of a cam on a new target being elevated.

 I think that the defendant's target assembly is the equivalent of that of the Berry patent.

 'The accepted rubric is that to be an 'equivalent' the infringement must attain 'substantially the same result in substantially the same way". Royal Typewriter Co. v. Remington Rand, Inc., 2 Cir., 168 F.2d 691, 692. The defendant's assembly unquestionably accomplishes the same result as the Berry patent and, having in mind the basic idea of the Berry operation, it accomplishes it in the same way, although the details of the parts involved are not the same. The keeper in the defendant's modified structure is a horizontal comb held down by a spring, the teeth of the comb projecting into slots in the targets. Each target has two such slots, one below the other. Below the slots is a cup-shaped protrusion on the target. This protrusion is in every sense of the word a cam. In practical operation it pushes the keeper up and away from the target so that the tooth goes out of engagement with the slot. I say in practical operation because of some remarks of mine in the course of the trial to which both sides have referred in their argument. It is true that it is sometimes possible by being very careful to release an elevated target by pushing the second target just high enough for its comb tooth to fall into the second slot in which case the cam will play no part in the operation. Obviously, however, this is not what occurs when the keys are pressed down by anyone using the machine as it would ordinarily be used ringing up a sale. What will happen every time in ordinary operation is that the second target will go up high enough for the cam to push the keeper out of engagement. It is definitely not correct, therefore, to say that the device would work just as well without the protruding parts or cams. The defendant's original construction had no cam but had a separate mechanism to rock the keeper out of position.

 Claim 5, as written, is clearly not infringed by the defendant's structures. It has to do with the key assembly and requires that the supporting fulcrum, through an opening in which the keys extend, shall have spaced vertical slots above to hold the keys in position. The defendant never put out a device with the guiding slots in the upper edge of the opening through which the keys extend. The defendant contends that such construction would be inoperative- a point upon which I am not convinced. However, it is not important because the plaintiffs' whole effort in connection with this claim is directed to having the Court interpret the claim so broadly that it will cover a fulcrum with the key-retaining slots below, or on the lower side of the opening. This cannot be done. It is not a question of an infinitesimal difference between above and below in the location of a point, as in the Kroenlein patent to be discussed later. To read the claim as the plaintiffs contend it should be read would turn the whole key fulcrum upside down. The plaintiffs' contention is that the adoption of the word 'above' in the claim was merely an error or oversight on the part of the attorney who prosecuted the patent application. If this be true, it is also true that the plaintiffs discovered the error at the time the complaint in this case was filed which was June 30, 1948. Whether a reissue could have been obtained upon prompt application at that time is, of course, a matter of speculation but there is no doubt about the fact that no application was made then or has been made at any time since.

 On the issue of validity I think that the Berry construction shows an inventive advance over the prior art- not in any striking degree perhaps but sufficient to sustain it as patentable. The many patents relating to commercial cash registers are all relevant as prior art, but it must be borne in mind that what Berry was working on was a toy. The object was to design something not too complicated that would be interesting to children, would appeal to parents and which would sell. It had to work reasonably well but primarily it had to be simple, durable and inexpensive. He was not particularly interested in the precision and efficiency which are absolutely necessary in the commercial type and not at all in expensive adjuncts which are often desired. The over-all problem was so different that the fact that the various elements ...

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