Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before MAJOR and TREANOR, Circuit Judges, and LINDLEY, District Judge.
These are appeals by plaintiff in No. 6593 and by defendants in No. 6594. The former was a suit for declaratory judgment seeking to have Patent No. 2,083,742, issued June 15, 1937 to L. S. Poncher and J. B. Newman, afterwards assigned to Erie Manufacturing Company, declared invalid; while the latter was a suit for infringement of said letters patent. By stipulation, the cases were tried together and were conducted as though Erie Manufacturing Company was plaintiff and Monckmeier and Harrison, defendants. For the sake of convenience, and in conformity with the proceedings in the District Court, we shall likewise treat the cases and the parties thereto.
The District Court decreed the patent valid and infringed as to Claims 2, 3, 4, 5, 6, 7, 8 and 13. Defendants, in their printed brief do not dispute infringement and during oral argument before this court, it was admitted, so there is presented only the issue of validity.
The patent in suit is entitled "bumper guard," the function of which is described as follows:
"This invention relates to guards for automobile bumpers, with particular reference to guards adapted to be mounted on the front and rear bumpers in a position to protect the radiator and the trunk door, respectively.
"In modern cars the radiator extends forwardly and terminates closely adjacent the front bumper where it is in a position to be easily damaged by the higher bumpers of other cars. Also, many modern cars are equipped with a rear trunk having a door hinged at the top and extending downwardly to a point closely adjacent the rear bumper. Heretofore it has been impossible to put the usual guards on the front bumper in a position to protect the radiator and still enable the use of a crank when necessary, and it has also been impossible to place guards on the rear bumper which would extend sufficiently high to protect the trunk door and still enable the door to be opened.
"The present invention is directed to a moveable guard which may be placed in the position specified whereby it will afford ample protection and, when mounted on the front bumper, may easily be moved to enable the use of a crank and may also easily be moved out of the path of the trunk door, when placed on the rear bumper."
Claim 13, we think, is typical of the claims in suit and is:
"A guard for an automobile having a rear door arranged to open in a path closely adjacent the bumper, said guard comprising a member extending upwardly from said bumper and into the path of said door, said guard being hingedly mounted on said bumper for swinging movement out of the path of said door, and means for normally retaining said guard in said path."
The novelty of the alleged invention consists primarily in hinging a bumper guard at the bottom so that it may be swung out of the way and providing means for holding the guard in an upright position. The fastening means for so holding the guard, as is shown by the drawings of the patent, is a bolt and a nut. Figure 3 of the drawings is illustrative.
Here the bumper is indicated by the Figure 7, 4 is the hinge, 13 the bolt on which screws the nut 15. By unscrewing the nut 15 and removing the bolt 13, the top of the bumper guard is released so that it may be swung on hinge 4. Plaintiff's commercial device dispenses with the bolt and nut as a fastening ...