The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This action is brought by the plaintiff for the alleged infringement of patent No. 1,914,115, issued to Harry L. Fink, the plaintiff, for terrazzo strip, granted June 13, 1933, on an application filed April 12, 1928, and of patent No. 1,791,267, issued to Harry L. Fink, the plaintiff, for terrazzo strips, granted February 3, 1931, on an application filed June 24, 1929.
Plaintiff is the owner of the aforesaid patents.
The defendants Toolan and Jaklitsch, doing business under the name and style of Pioneer Metal Goods Manufacturing Company, made a terrazzo strip at the instigation of the defendant V. Foscato, Inc., the user.
The strip in issue here is of the type known as a "heavy top" terrazzo strip.
The heavy top construction disclosed in both patents in suit is the same except for the means used to secure the top bar to the body section of the strip.
Patent No. 1,914,115 shows the top bar secured by welding.
Patent No. 1,791,267 shows the top bar secured by hollow or tubular rivets.
A "terrazzo floor" is a floor formed of a concrete mixture in which marble chips are mixed, and "terrazzo strips" are strips which are imbedded in this mixture and serve, among other functions, to sectionalize the floor and prevent cracks formed in one section from extending into adjacent sections.
Terrazzo floors, laid with divider strips, are not new; they are shown in British patent to Mainzer, No. 3,947, of 1901, and Swiss patent to Cassini, No. 50,786, of 1910; but terrazzo divider strips of any type did not come into use in this country until 1921 or 1922.
In 1924 the plaintiff, after twenty years' experience as a machinist, tool maker, and tool designer, entered the terrazzo strip field as president and general manager of the Manhattan Terrazzo Brass Strip Company, Inc. He did not at once discover the solution of the problem presented by the demand for the heavy top terrazzo strip, but only after various efforts he solved one half of the problem by the side rabbeting of the top bar, and the other half of the problem by riveting the parts together with tubular rivets.
The advantages of the invention of the patents in suit are reduction in cost, ease, speed, and accuracy of manufacture and flexibility of manufacture, and, in addition, the advantages of the heavy top strip over plain strip, when it comes to setting it in the floor.
While under proper objection of defendants' counsel plaintiff was prevented from offering a summary of the sales of the patented strip only, the fact remains that it had success with the defendant V. Foscato, Inc., which had purchased such strips from plaintiff for several years, and that plaintiff had sold it to other customers all over the country.
The connection of the defendant V. Foscato, Inc., with the defendants Joseph P. Toolan and Joseph Jaklitsch, doing business under the name and style of Pioneer Metal Goods Manufacturing Company, in so far as the infringements alleged in the suit are concerned, is clearly shown by the fact that the defendant V. Foscato, Inc., purchases the brass from Chase Brass Company, and at the direction of said defendant V. Foscato, Inc., the brass is shipped by Chase Brass Company to the said defendants Toolan and Jaklitsch, Pioneer Metal Goods Manufacturing Company, from which brass owned by the defendant V. Foscato, Inc., the said Pioneer Metal Goods Manufacturing Company fabricate the strip used by defendant V. Foscato, Inc.
The first above patent in suit, No. 1,914,115, contains twelve claims, all for a terrazzo strip, and this suit is based on all of them with the exception of claim 3. Those claims may be analyzed as follows:
Claim I includes (a) a base strip of sheet metal of moderate thickness; (b) an operatively integral metal head of relatively thick cross section, having a top surface of substantial width, greater than that of the base strip; (c) a rabbet in the head running along one lower edge thereof, and into which the upper part of the base strip fits with an upper side portion against the side of the rabbet, and its top edge engaging the top of the rabbet.
Claim 2 is similar to claim 1, the terms thereof including the head members as being originally separate, and having substantial thickness as well as a wide top surface. This head member is further defined as being permanently secured to an upper portion of the base strip.
Claim 4 follows the terms of claim 1, and further defines the top bar as having a polygonal cross section, and having a portion overlying the upper edge of the base strip.
Claim 5 includes more broadly the elements (a) and (b) of claim 1, and then element (c) thereof, adding a further element as follows: (d) Means for permanently securing the abutting portions of said bar and base strip to each other.
Claim 6 includes broadly the originally separate upper and lower sections (elements (a) and (b), and then defines the rabbet formation (element (c) as follows:
One of said sections being formed to present substantially flat surfaces, positioned in two planes which form a re-entrant angle, into which the other angle may be assembled by sidewise motion, and the other section having an edge contacting with one of said surfaces, and a side contacting with the other of said surfaces.
Claim 6 then includes a last element, which consists of means permanently securing the two sections together.
Claim 7 follows the terminology of claim 6, save in defining the terrazzo strip as having an uninterrupted straight upper edge, and said claim additionally calls for anchoring means extending outwardly from one side of the lower section.
Claim 8 includes originally separate upper and lower metal sections, these elements corresponding to elements (a) and (b) of claim 1, and further defines the formation of these elements as follows:
One of said sections being formed to present substantially flat surfaces positioned in two planes which form a re-entrant angle that is substantially a right angle, and the other of said sections having a side surface and an edge surface forming an exterior angle that is also substantially a right angle, the two sections being assembled with the exterior angle of one section nesting with the re-entrant angle of the other section, and said claim then sets forth element (d) of certain of the previous claims by calling for means for permanently securing the two sections together.
Claim 9 is similar to claim 8, except in defining the upper and lower sections in the following terms: The lower section being formed from sheet metal of moderate thickness, and the upper section being of metal of greater thickness.
Claim 10, in addition to the terminology of claim 9, defines the two planes formed on one of the sections as being vertical and horizontal planes, and additionally defines the securing means as means for securing ...