The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action for relief by injunction and damages for the alleged infringement of patent No. 1,807,352, issued to Samuel Tanger, for radiator inclosure, granted May 26, 1931, on an application filed March 25, 1930.
Defendant interposed an answer denying that it has committed any act of infringement of said patent, and denying that said Tanger was the first, original, and sole inventor or discoverer, or any inventor or discoverer of defendant's radiator inclosure as made subsequent to the grant of said patent, and avers that, in so far as the said patent purports to cover the defendant's radiator inclosures made since the grant of said patent, said patent was obtained by fraud and is invalid.
The defendant also by said answer interposed a counterclaim for damages caused by unfair competition on the part of the plaintiff.
This suit is based on claims 2 to 6, both inclusive, of the patent in suit.
The patent is for a radiator inclosure and embraces, so far as the claims sued upon are concerned, three novel features. First, the radiator inclosure includes, in combination with the frame structure, a cover of relatively thin sheet metal, and having an underbody portion of thick cork insulating material, which insulates the cover from heat and at the same time stiffens the same so that the cover may serve as a support for flower pots and the like ornamental articles. This feature is embraced in the combinations called for by claims 2, 4, and 6.
The second feature is that the cover constructed as above described is so hinged at the rear of the frame, that a depending skirt or flange is provided, extending below the cover along the rear thereof and over the back sheet of the frame, which flange serves to direct the hot air from the radiator inclosure toward the front thereof.
This feature is claimed in combination in claim 3 in the following language: "A sheet metal flange along the back edge of the cover extending down below the under surface of the cover and movably attached to the casing and adapted to direct not air from a radiator in the inclosure toward the front of the inclosure."
The third feature is that at the front, the cover instead of overlapping the frame is spaced above the latter, leaving an air space wherethrough the heated air and the moisture evaporated from the water-pan suspended at the top of the frame is allowed to escape. In operation the rear depending flange deflects the heated air across the top of the waterpan, and the air sweeping across the pan carries the moisture out with it, in this way preventing the so-called "pocketing" or "trapping" of the hot air and moisture in the cover, a difficulty had with radiator inclosures as constructed prior to the advent of the patented structure. This feature is claimed in combination in claim 5, which includes: "A relatively thick cover for said frame spaced above the front of the frame."
No further discussion of the features of novelty seems to be necessary, because no attack is made on the validity of the claims as to the subject-matter thereof.
The so-called defense of fraud, in the main answer, seems to me to be misnamed. If it was pleaded in the sense that Tanger is alleged to have perpetrated a fraud upon the Patent Office, the defense would fail as a matter of law, because such attack must be made by the government. Western Glass Co. v. Schmertz Wire Glass Co. (C.C.A.) 185 F. 788, 791; United States v. American Bell Telephone Co., 128 U.S. 373, 9 S. Ct. 90, 32 L. Ed. 450.
The full allegation as to fraud contained in the main answer reads as follows: "In answer to the Fifth, Sixth, Seventh, Eighth, and Ninth Sections of the Bill of Complaint, defendant denies that Samuel Tanger was the first, original and sole inventor or discoverer, or any inventor or discoverer of defendant's radiator inclosures, as made subsequent to the grant of the aforesaid patent No. 1,807,352, granted May 26, 1931, and avers that in so far as the said patent purports to cover this defendant's radiator inclosures made since the grant of the said patent, the said patent was obtained by fraud, and is invalid."
In so far as that allegation attempts to tender an issue of fraud, it merely pleads a conclusion and not the ultimate facts from which such conclusion could be drawn.
The defense developed on the trial was that the patent was invalid, and this was based upon the alleged fact that Tanger, the ...