The opinion of the court was delivered by: ABRUZZO
This action was brought by Paramount Industries, Inc., against Solar Products Corporation, Lamplighter Corporation of America, and R. H. Macy & Co., Inc., for infringement of claims 1-3, inclusive, of Sobel patent No. 2,435,164 which is for a 'Fluorescent Hand Lamp' and纊 infringement of the Harris patent design No. 147,440 for a 'Portable Fluorescent Electric Lantern.'
The complaint asserts in addition a claim for unfair competition from and after September 9, 1947, the date of the issue of the Harris patent.
The plaintiff, Paramount Industries, Inc., which for brevity will be hereinafter referred to as 'Paramount,' manufactured and sold a portable fluorescent lamp under the trade mark 'Totelite.' The defendant, Solar Products Corporation, hereinafter referred to as 'Solar,' was the original manufacturer of a competitive portable fluorescent lamp sold under the name 'Lamplighter.' The defendant, Lamplighter Corporation of America, hereinafter referred to as 'Lamplighter,' is the successor to Solar in this field. The defendant, R. H. Macy & Co., Inc., hereinafter referred to as 'Macy,' is a retailer of the 'Lamplighter' manufactured by the defendants Solar and Lamplighter.
The witness Roters called by the plaintiff is a consulting engineer and adjutant professor in Stevens Institute of Technology in Hoboken, New Jersey, and his testimony indicated that from experience he was qualified to testify as an expert with respect to the patents at issue and the patents alleged by the defendant to be a bar to any recovery in favor of the plaintiff. He testified as to the comparative structures of the two lamps, to wit, the plaintiff's and the defendants'. He described the lamp under the Sobel patent as follows:
The essential features of the Sobel fluorescent hand lamp which co-operate to provide the desired characteristics of compactness and facility of assembly and disassembly are as follows, the reference numerals corresponding to those of Figs. 1, 2, and 3 of the patent and the upper drawing of Exhibit 8, which is similarly numbered:
(1) An elongated open U-shaped wall member. This is the wall member 12.
(2) A seating groove extending longitudinally of each open edge of the wall member 12. This groove is formed either by the Z-strap 24, 25, 26 spot welded to each open edge of the wall member 12, as shown in Fig. 3 of the patent and as embodied in the commercial 'Totelite,' Exhibit 6, or alternatively it is formed by reversely bending the open edges of the wall member upon themselves, as shown in the upper drawing, Exhibit 8, and described in the Sobel patent at page 1, column 2, lines 48-54, the bent portions 26, 25, 24 forming the groove in question.
(3) Top and bottom flanged closure members engaging opposite ends of the wall member and adapted to be secured thereto. These are the members 10 and 15 (Fig. 1 of the patent), the upper member 15 being secured to the wall member 12 by spot welding and lower member 10 being secured thereto by three screws 14.
(4) A translucent front member retained in position by the seating grooves and the closure members. This is the transparent plastic front member 30, the edges of which seat in the grooves described and the ends of which fit within the flanges of the top and bottom closure members 15 and 10, respectively.
(5) An elongated unitary fluorescent tube support and reflector assembly. This is the reflector 27, 28, 29 to which is secured at either end tube supports 37 to form a unitary structure which may be removed as a unit from the housing.
(6) The longitudinal edges 29 of the reflector assembly terminate in the grooves and are retained in position by the front member 30 and the closure members 10 and 15.
(7) As an optional subsidiary feature, the seating grooves are open and extend rearwardly, as shown in Exhibit 8, and the reflector assembly has rearwardly extending flanges 29 engaging the same. Claim 2 includes this subsidiary feature.
(8) As a second subsidiary feature, the front member 30 (Feature 4) is resilient and convex forwardly and the reflector assembly 27, 28, 29, 37 is forwardly concave to provide space there between for the fluorescent tube 38. Claim 3 includes this subsidiary feature.
The defense alleges that the Sobel patent covers merely a tin box for housing the batteries and wiring connections of a portable fluorescent lamp and, as such, it involves nothing remotely inventive, all material and ...