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May 8, 1940

FROST et al.

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Plaintiff petitions for a declaratory judgment that Frost United States Letters Patent No. 2,157,407 are invalid and have not been infringed by it. This because an actual controversy exists between the parties on that subject, and because defendants "are representing to purchasers, prospective purchasers and users of" plaintiff's product that infringement of the said Frost patent is involved in the manufacture, sale and use of plaintiff's device.

That such notices were sent in bad faith, prior to the issuance of the Frost patent, and that thereby plaintiff's customers have been driven away.

 The answer need not be quoted except to say that direct infringement by plaintiff is disclaimed since its product does not incorporate the elements disclosed in Frost No. 2,157,407, but contributory infringement is alleged.

 A counterclaim is asserted based upon that Frost patent, and a decree is sought establishing validity and granting an injunction and accounting for damages and profits. As to the latter, an appropriate reply was filed and served.

 Claim 1 is in suit and reads as follows:

 "1. A display and storage package comprising an open top container having an outwardly extending and downwardly inclining resilient annular peripheral flange, a sheet of transparent flexible material spanning the top and flange of the container, and means to clamp said sheet to the container flange comprising an annular continuous member of edgewise stiff sheet material of less diameter than the container flange and having relatively rigid, continuous, annular, spaced and inwardly extending shoulders on the inner side thereof, said member being adapted to be applied to the container flange to clamp the sheet thereto by engaging the annular member upon the container flange and pressing downwardly thereon to constrict and squeeze in the flange and cause one shoulder on the annular member to pass over the edge of the container flange, and said container flange by the resiliency thereof springing over said shoulder and engaging the interior of the annular member between said shoulder and the other shoulder, and said latter shoulder forming a cam surface for permitting the removal of the annular member by pressure applied to said member to constrict and squeeze in the container flange."

 Some of the evidence will be discussed later, with references to the findings by letter. The facts established by the evidence may be summarized as follows:


 (a) The plaintiff, a New Jersey corporation having its principal office in Philadelphia, Pennsylvania, has manufactured and sold a paper board or paper fiber device used as a pie-ring, since January 14, 1933, which was earlier than the filing date of the application for the Frost patent No. 2,157,407 (February 1, 1935) by over two years, and is over a year earlier than the earliest time which the defendant claims as the actual date of the Frost invention so disclosed.

 (b) That device, when so used, constituted a means to hold a sheet of cellophane or like material over and around the top of a pie, if the latter had first been placed upon a plate, since the device could be made to constitute a ring or collar, when held in circular form; it was made to fit snugly around the edge of the plate and vertical play was substantially eliminated, because the inner side of the ring contained a semicircular beading at the top, thus reducing the inner diameter of the ring, when measured from the top of the beading, to less than that of the plate; spaced nearly half-way from the top to the bottom of the ring, was a second inner beading of the same shape, which did not extend so far inwardly as the top beading.

 The edge or lip of the plate rested between those two beadings, and the cellophane was held in place, when the ring had been pressed into position, by contact between the edge, lip or flange of the plate, the cellophane, and the inner surface of the ring between the upper and lower beadings.

 The ring was so affixed by being pressed down from the top of the plate, and since the lower beading did not bulge inward of the ring as much as the top beading did, removal of the ring could best be accomplished by pressing the plate downward; the lower beading presented less of an obstacle to that effort, than the top one would have, had there been an insistence upon thrusting the plate and its contents upward so as to disengage the ring.

 (c) The defendant is the owner of record of the said Frost patent, and is a resident of this judicial district.

 (d) The pie-ring element of the Frost patent is of different contruction, in that it contains a top and a bottom semicircular beading of the same size, so that the plate may be disengaged as easily by an upward thrust as by a downward effort.

 (e) These two rings serve the same purpose, of holding a cellophane or other similar covering to a pie plate.

 (f) The plaintiff's device was made of a sufficient width, so that the bottom of the ring was flush or even with the plate; in this it differed from the Frost ring, which was not so constructed or shown to have been used.

 (g) The two rings were not shown to have been capable of interchangeable use, since the ring of the Frost patent was designed to be snapped over a pie plate having a downwardly inclining flange, while the plaintiff's ring was used upon a plate with a lip or flange which was clearly to be distinguished in size and inclination from that shown in the drawings forming part of the Frost patent, and embodied in Plaintiff's Ex. 16.

 (h) The ring of the Frost patent does not disclose patentable invention over Erlich No. 2,068,540, granted January 19, 1937, on application filed April 28, 1933.

 (i) The prior use by plaintiff of its ring deprives Frost of patentable invention, so far as the pie-ring of his patent in suit is concerned.

 (j) The defendant caused a customer of the plaintiff, namely, The Wagner Pie Baking Corp., to be notified under date of March 31, 1939, prior to the granting of the Frost patent in suit, that the latter had been allowed and that the plaintiff's ring "clearly infringes the same", i.e., the ring of the Frost patent. Further: "We understand you have cordial business relations with the manufacturer of the ...

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