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January 7, 1937


The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

This is a suit for infringement of patent No. 1,805,403, issued May 12, 1931, application filed April 26, 1929; patent No. 1,841,187, issued January 12, 1932, application filed December 4, 1928; and patent No. 1,841,247, issued January 12, 1932, application filed June 30, 1928, renewed September 19, 1931. Each of these patents was issued to one Theodore Johnson and by him assigned to the plaintiff Johnson Metal Products Company. The plaintiff Detroit Steel Products Company is a licensee of Johnson Metal Products Company under a license agreement dated October 26, 1928. The defenses are anticipation and lack of invention as to certain claims, noninfringement as to others, and a plea of nonjoinder of joint inventors.

The main issue involves fourteen claims of patent No. 1,805,403. The other patents relate to details of a part of such patent. The typical claims of the fourteen are 29, 18, 26, 28, 21, and 9. Five claims of patent No. 1,841,187 are in issue. Typical claims of these are 10 and 13. Two claims of patent No. 1,841,427 are involved. Of these the typical claim is 1. The claims in suit in patent No. 1,805,403 may be included in two groups. One of such groups relates to alleged improvement in casement window structures without reference to screen (claim 28 includes all of this group), and the other of such groups relates to improvement in such windows combined with the screen at the room side (claim 29 shows the complete combination). In combination, the claims in suit include a metal casement window with outswinging sash, screen mounted on the face of the metal frame closely adjacent to the sash, together with an actuator attached to the metal frame on its lower side and extending through the sight opening also attached to the lower side of the sash, and a lock mounted on the metal frame engaging the free edge of the sash with a handle operable from inside the screen. The handle of the lock and the operator unit of the window are laterally and transversely within the opening in the completed structure and operable without removing the screen, the screen being removable without interfering with the sash or the hardware.

 Defendant's structure is a metal casement window with outswinging sash, lock, and actuator mounted on the casement frame with a screen mounted directly on the frame, and a lock and actuator so operable as to open, close, and lock the sash without removing the screen. Defendant's structure concededly is a standardized unitary metal window structure and can be factory fabricated in its entirety.

 Patent No. 1,841,187 relates to window fastening means, including an operator secured on the sash, support for the operator on the window frame, screen adapted for covering the frame opening and the operator extending through the sash frame and a support attached to the frame to support the accuator, the support being adapted to serve as a mounting for the screen and a screen mounted thereon. Patent No. 1,841,247 is substantially similar to patent No. 1,841,187, except it includes means on the support for locking the operating element in various positions.

 The defendant company does not manufacture screens. It manufactures socalled casement windows equipped for the application of screens, and it has sold its product with screens attached.

 The claims of Johnson's patents are directed to "casement windows" and are limited to structures having outswinging sash. This excerpt from the specifications of patent No. 1,805,403 describes its objects:

 "The invention also contemplates the provision of a casement window structure embodying a window frame and an associated outswinging sash together with a locking means and an actuator for the sash operable from within a wall opening and without disturbing a screen disposed over the inner face of the frame and closely adjacent to the sash when closed."

 Some diversity of view is expressed as to the meaning of "casement." Webster defines it as "a window sash opening on hinges affixed to the upright side of the frame." Whether this indicates an inswinging and outswinging sash is not material here as plaintiffs' patents are limited to casements with outswinging sash. "Casement" includes wooden as well as steel construction. None of the three patents in its entirety is limited to a metal part or assembly. Patent No. 1,841,247, titled Casement Operator, contains no reference to a metal structure. Patent No. 1,841,187, titled Closure Fastener, describes certain claims, including "a closure operating structure comprising an open metallic frame, * * *" and others containing no limitation of material. Patent No. 1,805,403 describes certain claims, including "a casement assembly unit comprising a metal frame," and others containing no limitation of material. The defendant's brief (page 2) states that the claims of patent No. 1,805,403 involved in this suit relate to "an alleged improvement in metal casement window structures," and "an alleged improvement in metal casement windows." Casement windows have become generally referred to in the trade as including metal casements only. In the view taken here, the claims in issue, however, will be considered from the broader meaning above given.

 "Casement" windows have been in use for nearly two centuries. Their first introduction into this country was in factory construction. Since then, they have come to be quite generally used in various types of domestic architecture. There have been introduced in the record many catalogues and photographs describing and picturing casement windows as they have been made by manufacturers in the United States from 1912. These catalogues and photographs show outswinging, outswinging and inswinging, horizontally and vertically in and outswinging, and inswinging and outswinging top hung, and projected and counter-balanced sash. The difficulties in completely screening each of these types, save the inswinging sash, are apparent. Outswinging sash are ordinarily the type found in dwellings, while the other types are generally used in manufacturing buildings. Until recent years, as shown by the catalogues, screening of casements in dwellings was an incidental consideration so far as the casement manufacturer was concerned. The method of screening of dwelling casements was left to the individual builder. In later years, the attempt has been made to fabricate the casement for the convenient application of acreens. Necessarily in domestic use, casements required screening. The application of a screen through some method naturally followed the introduction of the casement window in dwelling construction.

 The advantages of a structure in accord with the plaintiffs' patents are obvious. It permits standardization, so that the screen may be factory fabricated. This measurably decreases cost of screen construction and installation. The structure provides more efficient screen protection. It facilitates the opening and closing of the sash when the window is screened. It obviates interference with interior decorations. These results are undenied.

 As anticipating the patents in suit, defendant has made proof of several alleged prior art uses, many publications and catalogues, and numerous prior patents.

 Prior Uses.

 Prior uses upon which the defendant mainly places reliance, to which reference need be made herein, are the so-called Wheeler installation (1913); Fenestra Horizontally Pivoted Steel Sash Unit (1917); Pevely Dairy installation (1919); Truscon Flexo Stay (1924); Siegel, Ford, and Pullman installation, prior to 1915. Wheeler (Defendant's Exhibit TT1) shows an outswinging casement window with a push bar seated on the frame and connected with the sash, with a thumb screw to hold the sash in position when opened; a handle on the sash, and a sash lock mounted on the frame. The screen was not mounted on the frame, but was mounted on the trim far enough from the frame to clear the hardware. Fenestra shows a horizontally center pivoted inswinging and outswinging sash. It shows its adaptation to a screen covering one-half of the sash only. It would be impossible in this type of construction to put a fly proof inside screen closely adjacent to the frame over the entire frame opening and operate the sash. There seems to be more or less confusion as regards what the Pevely installation shows. The photograph in evidence shows screened sections of casement windows. It seems to be admitted that they are hinged at the top. Whether they are outswinging only or outswinging and inswinging cannot be determined. A push-bar is shown. It is carried by a support mounted on the frame. There is no lock. The screen was placed closely adjacent to the sash. Truscon Flexo Stay shows an outswinging sash with a so-called "Flexo Stay" or operator and handle attached. The screen is mounted on the frame. The Truscon catalogue describes the stay as operable "without the necessity of removing the screen." It is not described as serving the purpose of a lock as well as operator. The sash is locked by means of a lock on the sash. In this type of construction the window cannot be locked without opening the screen. Siegel shows a vertical outswinging and inswinging sash, pivoted top and bottom, some distance from the side of the frame. Ford shows outswinging and inswinging sash vertically pivoted. Pullman like Siegel shows a window pivoted vertically some distance from the side of the frame. None of the above-mentioned assemblies solve the problem answered by Johnson. None of them show the type of construction to which a screen could be applied closely adjacent to the frame and such that the window could be opened without opening the screen.

 The types of screens generally available prior to 1928 were so-called side hinged, sliding and roller screens, and they were generally mounted on the trim and set out a distance from the frame in order to clear the hardware. There is not a single catalogue or publication in evidence covering the period down to 1928 showing a window frame with a screen closely adjacent thereto, so seated upon the frame as to permit the opening of a side hinged sash without opening some part or portion of the screen. Truscon Steel Company has for many years been a large manufacturer of casement windows. Numerous of its catalogues and publications are in evidence. As late as 1928, its catalogue entitled "Standard Casement and Basement Windows" describes the screens to be used in connection therewith as of "roll" type, "horizonal sliding," and "swing" type, and it recites "casements are screened on the inside (several practical methods) offering advantages in point of cleanliness and protection from the elements." In 1929 Truscon circularized so-called "casement roll up screens" and "casement side hinged screens." In 1931 ...

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