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January 22, 1938

KENNEDY et al.

The opinion of the court was delivered by: BURKE

BURKE, District Judge.

This is a suit in equity to establish patent infringement. Three patents are involved, all of which relate to infants' bathing apparatus. Plaintiffs ask for an injunction and an accounting. The defendant denies both infringement and validity of the patents. Ann M. Kennedy acquired a one-third interest in the patents in suit prior to the commencement of the action. The defendant was formerly known by the corporate name of E. M. Trimble Manufacturing Company, Inc. The name was changed to Trimble Nurseryland Furniture, Inc., December 17, 1929, and the defendant assumed all of the liabilities of its predecessor.

Application for patent No. 1,510,596 was filed March 6, 1920. This application described a bath cabinet, and the patent when granted on October 7, 1924, was designated as a "Bath Cabinet." This covered a heavy and expensive apparatus which may be called a large door model.

 Application for patent No. 1,767,800 was filed July 25, 1921, and letters patent issued thereon June 24, 1930. This application and patent also covered a bath cabinet, but of lighter construction than the large door model. It may be referred to as the small door model.

 The third patent in suit is No. 1,693,389. This application was filed July 23, 1923, and letters patent issued thereon November 27, 1928. This model was essentially different from the door models. It was designated in the patent as an infant's bathtub. It was a collapsible tub supported on folding cross-legs with a table which overlaid the tub when in an operative position and had a screen guard detachably connected to the support. It was not enclosed in doors when folded as were the two door models. It may be referred to as the cross-leg model.

 These three patents above referred to are the only patents which plaintiffs claim were infringed by defendants. The original bill of complaint charged the defendant with infringement of a fourth patent No. 1,693,391, a cross-leg model. At the opening of the case the plaintiffs moved to amend the complaint to withdraw this patent from the suit and to withdraw one of the claims originally relied on of one of the remaining patents in suit. As to that claim of formal disclaimer had been filed in the Patent Office. Plaintiffs asked a dismissal as to patent No. 1,693,391 without prejudice. This was opposed by the defendant, and decision was reserved.

 The plaintiffs have a right to dismiss their bill of complaint unless some definite prejudice will result to the defendant other than the possibility of future litigation connected with the subject matter. Elliott Addressing Machine Company v. New England Tel. & Tel. Co., D.C., 20 F.Supp. 279. The motion to dismiss as to patent No. 1,693,391 is granted without prejudice.

 Up to the year 1923 the bathing apparatus constructed under these applications was manufactured by Kiddie Town Products, Inc. This company was organized in 1920 by Dewey M. Kennedy and Benjamin H. Kennedy. In 1923 the defendant took over the assets of Kiddie Town Products, Inc., exempting inventions and patent applications. An exclusive license agreement was entered into between the Kennedys and the defendant's predecessor, E. M. Trimble Manufacturing Company, Inc., which expressly recited the application for the two door model patents in suit and one other application not in suit entitled "Child's Bath Tub" filed April 25, 1921. General language no doubt included application for patent No. 1,693,389, the third patent in suit. The license agreement is dated August 23, 1923. By its terms the Trimble Company agreed to pay a royalty of 25 cents for each article manufactured under the license. The license agreement also gave the Trimble Company the right to use the trade-mark "Baby Bathinette." Manufacture of door models had been discontinued before this arrangement. The Trimble Company manufactured only models with cross-legs under the license agreement with the screen guard affixed to the dressing table and designated their articles as "Baby Bathinette."

 This arrangement continued from 1923 until 1931, the defendant paying royalties under the license agreement. In January, 1931, the defendant effectively terminated the license according to the provisions of the agreement, notice of which cancellation had been served six months previously. Thereafter defendant continued the manufacture of bath stands under the trade-name "Kiddie Bath." Plaintiffs claim defendant's construction infringes the patents sued on.

 The defense of laches is interposed. Plaintiffs knew of the alleged infringement almost immediately after the license agreement was terminated. All that they did at that time in the way of notifying defendant that they claimed their patents were being infringed by defendant's article was to insert in a folder describing plaintiff's product a general notice to the trade that the manufacturer who formerly had manufactured and sold the article under the license from plaintiffs under the name "Bathinette" was no longer a licensee and had no right to manufacture or sell any article embodying any of the Kennedy patents, and that any person who manufactured the article embodying the Kennedy patents would be regarded as an infringer. (Exhibit 28.) The only direct notice of the claim of infringement was a letter to defendant from plaintiff's attorney dated November 29th, 1934. (Exhibit 29.) Suit was started January 23, 1935, about four years after the termination of the license agreement.

 It does not appear from the evidence that the defendant sustained any damage because of the delay. It continued to make children's articles, including children's bath tubs, after the termination of the license agreement. This was the same business it was engaged in while the license agreement was in effect. If defendant was infringing the Kennedy patents, it needed no notification from the plaintiffs. It had not only constructive notice of the patent claims but actual notice, having manufactured under those patents as licensee. Furthermore, plaintiffs were handicapped in that they lacked the funds necessary to finance an infringement suit. Under the circumstances the plaintiffs are not estopped from maintaining this suit.

 The article manufactured by defendant after the cancellation of the license agreement was a model with a collapsible rubber tub supported by cross-legs and having a dressing table which overlies the tub when in an operative position and with a screen guard permanently attached to the support. It was not enclosed within doors when folded. It was in no sense of the term a bath cabinet. It was a folding stand. This construction bears little, if any, resemblance to either of the door model patents in suit. Those patents, both the large door model and the small door model, embrace the essential and fundamental features of a bath cabinet. To ascertain the true meaning of a claim resort may be had to drawings and specifications. Chicago Forging & Mfg. Co. v. Bade-Cummins Mfg. Co., 6 Cir., 63 F.2d 928. Note the language of the specifications of the large door model (Exhibit 1, page 1): "My present invention relates to furniture and more particularly to folding bath cabinets of a kind providing an enclosed tub," etc. The patent drawings disclose a model enclosed within swinging doors when folded. Claims 11 and 12 of this patent are alleged by plaintiffs to be infringed by defendant's cross leg construction. These claims were added long after the original application was filed. It is true that neither of these claims specifically refer to a bath cabinet but describe only the support, the tub, and the overlying dressing table. Nevertheless, when the patent was granted the drawings and specifications covered a bath cabinet and the claims must be construed in that light. No finding that the concept of a bath cabinet had been abandoned during the progress of the application is warranted.

 So also is the small door model essentially a bath cabinet. Note the language on page 1 of the patent (Exhibit 2): "To first give a general idea of the principal elements entering into the structure of the embodiment illustrated, we provide a shallow upright body portion or container having two meeting hinged doors at the front. When these doors are extended they form supports for the front edge of the frame of a collapsible tub," etc. This invention was directed mainly to providing a plurality of positions or levels for the dressing table suited to the height of the operator. It embraced the collapsible rubber tub, overlying dressing table and screen guard all enclosed in the cabinet. Claims 7 and 8 of this patent are alleged to be infringed by defendant's cross-leg construction. Neither of these claims specifically refer to a bath cabinet, but describe the support, collapsible tub, overlying table and screen guard. Nevertheless, when the application emerged from the Patent Office, it covered the fundamental idea of a bath cabinet and the claims relied on must be construed in their setting. Here again no inference that the idea of a bath cabinet was abandoned is warranted. So construed defendant's cross-leg construction does not infringe any of the claims of either of the door model patents in suit.

 We come now to a consideration of the third patent in suit, the cross-leg model. Defendant's construction bears a resemblance to the invention described in this patent. It is supported by folding cross-legs, it has a collapsible rubber tub, it has an overlying dressing table, and it has a screen guard, all of which are present in the arrangement protected by the patent. Defendant's construction, however, after the cancellation of the license agreement and under the trade-name "Kiddie Bath," had the screen guard permanently affixed to the support. The patented arrangement comprehended a screen guard that was detachable. See ...

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