The opinion of the court was delivered by: GODDARD
These are two actions consolidated for trial, one for patent infringement and unfair competition against the defendant, Seligman, and the other for patent infringement against the defendant, Sears Roebuck and Co. Defendants deny the allegations and allege invalidity of the patent.
Patent No. 2,014,904, for a Combined Carrying Bag and Work Basket, was issued to plaintiff on September 17, 1935, and plaintiff began to manufacture this article in 1938. After a modest beginning, sales steadily increased so that by 1944 he had sold 250,000 pieces, an average of about 40,000 pieces a year. From 1944-1946, sales were curtailed and eventually ceased because of the war.
In 1939, one of plaintiff's chief customers was Musgrove Mills, a jobber in Germantown, Pennsylvania. In 1941, plaintiff agreed with Musgrove that plaintiff would sell his entire output to Musgrove and this arrangement continued until plaintiff ceased operations in 1946. Musgrove, in turn, marketed these baskets, selling to, amongst others, the defendants, Seligman and Sears.
The baskets sold by Musgrove were shipped directly from the plaintiff to Musgrove's customers. However, at Musgrove's direction, plaintiff billed it to the customer showing Musgrove as the shipper, and plaintiff's name was not to appear on the bills. While all the goods contained the label 'Bagsket, patented, Musgrove Mills, Germantown, Penna.', only some of the goods bore the patent number. 'Bagsket' was plaintiff's trade-mark.
After the war, plaintiff resumed manufacture in 1947. However, at this time, he eliminated Musgrove as a distributor and he decided to sell directly to the retail trade. From 1947 to 1951, plaintiff sold only 71,500 pieces (6,000 in 1947; 12,750 in 1948; 18,900 in 1949; 18,600 in 1950, and 15,250 in 1951). From 1947 to 1950, he attempted to regain the trade of Sears but was unsuccessful.
Defendant, Seligman, who had been in business since 1938 selling a line of knitting bags which were manufactured for him by contractors, ceased buying the baskets from Musgrove in 1942 or 1943. After plaintiff resumed manufacture in 1947, Seligman attempted to buy plaintiff's basket but was refused. About June, 1950, Seligman bagan to manufacture his own version of the basket, the alleged infringing product, and he was able to sell it to Sears, among others. From the time he began in 1950, until September, 1952, he sold a total of 800 to 900 dozen pieces in all. Initially, Seligman did not label his product but in the early part of 1951 he placed his label 'Styled by Seligman' in all the baskets he manufactured.
Plaintiff terminated his business on December 31, 1951 and sold his machinery to a New England firm which continues to make plaintiff's product and pays plaintiff royalties on it. Plaintiff's patent expired on September 17, 1952.
Plaintiff seeks damages for infringement from Seligman and Sears up to the date of expiration of the patent and he seeks an accounting of the profits from the alleged unfair competition by Seligman to December 31, 1951, when plaintiff ceased doing business. Notice of infringement was served by plaintiff on Seligman on December 5, 1950, and on Sears on March 14, 1951.
The product involved in the suit is a combined carrying bag and work basket, constructed of a fabric bag built upon a collapsible wooden frame, designed to carry knitting materials. Plaintiff charges infringement of claim 1 of the Martin patent. His claim 1 reads:
'1. In combination, a pair of frames each consisting of a pair of centrally pivoted legs, rods extending between said frames and connecting the upper and lower ends of the legs of one frame with corresponding legs of the other frame, an endless belt of flexible material extending around the lower rods and constituting means to limit opening of said frames, and sides of flexible material extending up from the upper sides of said belt, two of the sides being connected to the upper rods.'
The file wrapper shows that the Patent Office, in allowing the application, cited one patent, Wever Patent No. 241,765, of May 17, 1881.
The defendants refer to several patents as evidence of the prior art. They chiefly rely on the Morgan patent, No. 1,310,669, issued on July 22, 1919, as ...