Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Appellants charged appellee with infringement of three United States patents to Ralph A. Gross. We shall refer to these patents by the letters A, B and G respectively. A, No. 1,690,109, was issued November 6, 1928, on an application filed November 4, 1926; B, No. 1,758,510, was issued May 13, 1930, on an application filed October 28, 1927; and G, No. 1,940,213, was issued December 19, 1933, on an application filed November 11, 1930. The defenses were invalidity and non-infringement. The court made a special finding of facts, and upon such findings concluded that all of the claims in issue as to each patent were invalid. Upon these conclusions it decreed that the bill of complaint be dismissed for want of equity, and from that decree this appeal is prosecuted.
It is said that these patents represent progressive improvements in folding cardboard or paper boxes, all of which may be incorporated in a single box, which is capable of being shipped and stored in flat condition, and of being instantly erected and positively locked, so that it is incapable of being folded or knocked down by any ordinary use to which the box is subjected. It is claimed by appellants that each of the patents represents a new combination of elements found for the first time in the art, and cooperates to produce new and useful results never before obtained.
Claims 1 to 11 inclusive, of patent A, except claims 5 and 8, are relied upon. Claim 6 is typical.*fn1
For brevity, figure 1 of patent A is reporduced:
This figure represents a blank cut by dies out of a single sheet of cardboard and simultaneously creased or scored, to define a central bottom 1, double side walls, 2 and 3, double end walls, 4 and 5, and corner portions, 7 and 8, integral with both the adjacent side and end flaps, and creased diagonally to form two triangular sections. The locking flaps 5 are provided at their ends with locking projuections 9, here shown as metal plates. The specification, however, states that these projections may be formed integrally with the locking flaps, and the commercial product is so shown.
These blanks are assembled by the manufacturer by folding and gluing the inner side walls 3 to the outer side walls 2, after which the double side walls are folded over upon the bottom, 1, bringing the integral corner sections upon the end sections 4, and the triangular portions 8 integral with the end walls are secured to the end wall by pasting, stitching, stapling or otherwise as preferred.
Both ends of the box are erected and locked simultaneously by first raising the end walls 4 into vertical position, which brings up the side walls also and effects the infolding of the triangular corner sections 7 and 8, against the end walls 4, after which the locking flap 5 is folded over the infolded corner sections and the locking projections 9 are made to engage the ends of the inner side walls 3, which are cut away as indicated at 3b, sufficiently to accmmodate the locking projections 9, which are thus engaged with the rigid side walls 3 directly in each corner of the box. Thus it is claimed that the infolded corner sections on opposite sides of the box form an actual truss which positively precludes the outward movement of the sides of the box at the corners, thus cooperating with the locking projections and the end edges of the inner side walls 3 to form a positive lock.
Patent A is a combination of old elements, and we think that substantially the same combination was disclosed by the French patent to Thiolat, No. 501, 056, issued in 1920; also by British patent No. 9,693 to Blake, in 1894; and by United States patent No. 998,497 to Goodyear, in 1911. The differences are that in Gross the inner faces of the box sides are not quite so long as the bottom of the box; and the metal clips 9, as shown in Gross, are not present in the others. However, the commercial product of Gross has discarded these metal clips, and he makes portions of the ends of the locking flap 5 a bit longer than the width of the box bottom. The result is that when the box is set up, the extended ends of flap 5 come to rest back of the ends of the inner side walls at 3b. In Thiolat the inner side walls which correspond to Gross 3 are gluded at their centers to the outer wall 2, and are practically the same length as the bottom of the box. This locking flap is of the same construction as Gross' locking flap 5, except that Thiolat has neither the metal clips nor extended ends.
Thiolat has a small embossment at each lower corner of each inner side of the box, so that when the box is set up, his endlocking flaps come to rest behind these embossments, which tend to hold the locking flaps in place. Furthermore, his locking flaps, as in Gross, are wider than the inside bottom of the box by the thickness of the inner side walls. This thickness of the walls in both Gross and Thiolat causes a rather close frictional engagement between the ends of the locking flap and the side walls.
However, in Gross' commercial product under patent A, he does not follow the specifications with respect to flap 5 and its projections. The ends of this flap are not extended at all. It is of the same length as outer end wall 4, just as in Thiolat. Instead of lengthening the ends, he cuts out a small portion about the thickness of the width of the cardboard adjoining the point where 5 hinges upon 4. Likewise, he cuts from each end of 3 by the thickness of the board, except for a small space on each end of 3 where it hinges upon 2. These small spaces near the hinge correspond in size to the cutouts in flap 5 so that when the box is set up, the untrimmed portion of the ends of 3 fit in the court out places in the ends of 5, and the uncut ends of 5 fit in behind the shortened end portions of 3. In effect, Gross in this combination has merely differed from Thiolat by shortening a portion of each end of 3.This feature was not new, for it was disclosed by the Craw patent, No. 502,952, in 1893, and also by Walker, No. 770,946, in 1904. ...