The opinion of the court was delivered by: BYERS
This is a patent infringement suit involving plaintiff's patent No. 2,105,580, granted January 18, 1938, on application filed June 7, 1935. The complaint also pleads No. 2,248,328, granted July 8, 1941, on application filed May 19, 1939. Plaintiff elected to withdraw this with prejudice because of its being thrown into interference after the complaint was filed on September 16, 1941.
The defendant is alleged to be a secondary infringer, in that it sells the component elements of the patented structure unassembled, to mattress manufacturers, in the effort to displace the plaintiff's product.
That is denied, and validity is in issue.
1. This court has jurisdiction of the cause which arises under the patent statutes, and of the parties.
2. Plaintiff is the patentee named in U.S. Letters Patent No. 2,105,580 for a handle, granted to him January 18, 1938 (application June 7, 1935) and he makes and sells the patented device to mattress manufacturers who affix the elements to the side walls of mattresses, and assemble them, according to the plaintiff's instructions, thereby forming handles in the sides of mattresses to facilitate turning.
3. Claims 4 and 5 are in suit, namely:
"4. A flexible handle including, a flexible resilient reinforcing bar member, means for attaching said bar to the inside of a flexible wall, and a flexible handle means lying flat along the outside of the wall and anchored at its ends to the means for securing said flexible bar, the resiliency of said flexible bar normally stretching said flexible handle means taut.
"5. The combination of a soft flexible mattress or cushion wall, a flexible reinforcing bar extending along the inside of said wall and fixed thereto and a flexible handle on the outside of said wall and extending parallel to said reinforcing bar with its ends anchored to the ends of said bar, to direct the load on the handle to the ends of said bar, said bar flexing to permit the wall to bend to receive the hand while engaging said handle and having a spring action to straighten said handle flat against the outside of the wall when not engaged."
4. Plaintiff's device when assembled is a handle for mattresses, consisting of a resilient flexible bar with means for attaching it to the interior wall of a mattress, a flexible handle lying flat on the outside of the mattress wall, which is affixed or anchored at each end to the means which so attach the said resilient flexible bar; the resilient quality of the bar stretches and holds the flexible handle taut, and also admits of the insertion of the hand of a user between the flexible handle and the outer wall of the mattress, so that the mattress may be lifted or turned by the use of the handle as so constituted.
5. The prior art does not disclose such a mattress handle.
6. The plaintiff's structure embodies patentable invention over any invention, patented or otherwise, upon which the defendant relies as disclosed by its evidence in this case.
7. The defendant makes and sells a precise copy and counterpart of the plaintiff's device as described in Finding 4 above, namely, a set of elements consisting of a resilient flexible bar, means for attaching it to the interior wall of a mattress, and a flexible handle to be affixed or anchored at each end to the means for attaching the said bar to the interior of the mattress wall; and solicits sales thereof upon the representation that the device, when assembled and attached, is the same thing as the subject matter of the plaintiff's patent.
8. Prior to so making and selling the said device, the defendant was a jobber of the plaintiff's structure pursuant ...