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August 8, 1935

McCURDY & CO., Inc.

The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

This is a suit brought by the Six-Way Corporation against McCurdy & Company, Inc., for infringement of United States patent No. 1,890,358, issued to plaintiff December 6, 1932, for improvements in a pillow or cushion and the infringement of United States design patent No. 90,747, issued to plaintiff September 26, 1933, for an ornamental design for a pillow.

The parties have stipulated that the plaintiff is the owner of the entire title to both of said patents and that on December 27, 1933, prior to the filing of the bill herein, defendant sold the certain pillow manufactured by Charles Bloom, Inc., which pillow, as charged, embodies the invention of and infringes said patents in suit.

 The defendant denies infringement, alleges invalidity of the two patents on the ground of want of novelty and invention, ambiguity in the claims, and anticipation by prior patents and prior publications. Defendant also asserts that the design patent is invalid because it does not show an ornamental structure, and also because it is included within the disclosures of mechanical or utility patent No. 1,890,358.

 Patent No. 1,890,358.

 Consideration will first be given to the issues raised as to patent No. 1,890,358. The claims of the patent No. 2 and No. 3 are the only ones involved.Claim 1 includes an adjustable stay extending through the pillow to variably limit the bulging of the end walls and soften or compress the pillow.

 The invention relates to pillows or cushions adapted for use to provide a comfortable support or rest for the "back, head, or other portion of a person while reading or reposing." The objects of the invention, so far as pertinent here, are stated to be: "to provide a pillow or cushion of the sort mentioned * * * of novel form and construction adapted, by using it in different positions, to provide a comfortable support for the head, * * * of the user in different, desired recumbent * * * positions."

 Claim 2 reads: "A pillow comprising a case formed of freely flexible sheet material, and filled with relatively soft, pliable, elastic material, said pillow as filled being relatively soft, pliable and elastic, substantially triangular in transverse cross section, of substantially pillow length, and having rectangular side faces connecting the triangular ends, the two shorter edges of each triangular end being nearly but not equal in length and at least approximately one foot in length, and including between them an angle of about a right angle, whereby each of the three side faces will provide a supporting face of substantial proportions and width, and the pillow will provide a supporting surface at any of a plurality of different inclinations to the horizontal, depending upon which of its side faces the pillow is resting upon."

 Claim 3 is in effect the same as claim 2, except that it recites that the two shorter edges of each triangular end include between them "an obtuse angle of slightly more than 90 degrees, * * * the obtuse dihedral angle of the pillow insuring an approximately right dihedral angle after the pillow yields by forces acting thereon in a direction tending to close the obtuse dihedral angle."

 There can be no question that defendant infringes. The plaintiff's pillow, plaintiff's Exhibit No. 4, meets the specifications in claims 2 and 3 of this patent. Plaintiff's Exhibit No. 1, a pillow which it is stipulated was manufactured by Charles Bloom, Inc., and sold by the defendant after the issuance of plaintiff's patent, is a practical duplicate of plaintiff's pillow in size, form, the inclination of the angles of the triangular end, and Kapok filler, save as to the inclusion of the stay set forth in claim 1 of the patent. These two exhibits are as near alike in every respect, save covering (to use an old and familiar expression), as "two peas in a pod." They are, as the term is often used, "Chinese" copies, one of the other. If one were to alternate the coverings on the two pillows, they would be indistinguishable. These diagrams of these two pillows, Plaintiff's Exhibits 1 and 4, clearly sustain the conclusion defendant infringes:

 [See Illustration in Original]

 Does this patent show novelty and invention?

 Pillows and cushions in various forms and applied to various uses have been known for centuries at least. "Invention" means something new, novel, and of utility. The simplicity of the product does not deny patentability. Many things simple in construction have proved of great value to industry and science. The records of the Patent Office doubtless will disclose hundreds of thousands of patents issued which involve structures or articles or compositions of even greater simplicity than this patent. Looking backward it is easy to see what might have been foreseen. Every prior art patent set up in the answer shows the truth of this statement. Further than this, each of these relates to pillow or cushion construction of some sort. The mere fact that an invention relates to a device which has simplicity as its characteristic should not militate against the validity. "But the law has other tests of the invention than subtle conjectures of what might have been seen and yet was not. It regards a change as evidence of novelty, the acceptance and utility of change as a further evidence, even as demonstration." Diamond Rubber Co. v. Consolidated Rubber Co. (Grant Tire Cases), 220 U.S. 428, 31 S. Ct. 444, 447, 55 L. Ed. 527; Silver-Brown Co. v. Sheridan et al. (C.C.A.) 71 F.2d 935; Kurtz v. Belle Hat Lining Co., Inc. (C.C.A.) 280 F. 277; Douglas-Pectin Corp. v. Armour & Co. (C.C.A.) 27 F.2d 814; H.D. Smith & Co. v. Peck, Stow & Wilcox Co. (C.C.A.) 262 ...

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