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June 30, 1965

DAL-BAC (PTY.), LTD., Plaintiff,
FIRMA ASTORWERK OTTO BERNING & CO. and Approved Accessories, Inc., Defendants

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

 This is a motion by plaintiff Dal-Bac (Pty.) Ltd. ("Bal-Dac"), and a cross-motion by defendant Firma Astorwork Otto Berning & Co. ("Astor") for summary judgment. Fed.R.Civ.P. 56.

 The action is one for a declaratory judgment (28 U.S.C. §§ 2201, 2202) that United States Letters Patent No. 2,924,865 - a patent for a "buckle for belts or the like" - are invalid or, if valid, that the Dal-Bac product does not infringe. Approved Accessories, Inc. ("Accessories"), the named co-defendant, does not join in Astor's cross-motion.

 In addition to a declaratory judgment, Dal-Bac in its one count complaint has jumbled up its cause of action by asking also for an injunction on the grounds that both defendants "have misused the patent in attempting to dominate non-patented items" (complaint, para. 17) and that both defendants "have unfairly competed" by means of intimidation through repeated threats of "expensive patent litigation" (complaint, para. 18). Dal-Bac does not move for summary judgment on this claim; thus its motion is, in effect, for partial summary judgment.

 Astor, in a counterclaim, alleges that Dal-Bac is infringing its patent and seeks (1) dismissal of the declaratory judgment action and (2) an injunction against further infringement, and accounting, etc. The cross-motion by Astor seeks summary judgment, presumably on the basis of the counterclaim.

 When both sides move for summary judgment, this in itself would indicate normally that there are no issues of fact to be tried. Here, each side contends that, if summary judgment be not granted in its favor, then there should be a trial. The situation is such, however, that there is no genuine issue as to any material fact and a summary judgment is appropriate.

 In substance, Astor denies that the prior art discloses all the claims of the patent in suit and Astor further denies that the subject matter of the patent was "obvious" within the meaning of 35 U.S.C. § 103. This is merely a way of stating the legal conclusion that the patent in suit is valid. Neither the underlying facts concerning the prior art nor what the patentee did is disputed by Astor. "What the prior art was and what the patentee did to improve upon it are questions of fact. Whether what the patentee did is properly to be classified as an invention is a question of law * * * which could be decided by summary judgment." Cee-Bee Chemical Co. Inc. v. Delco Chemicals, Inc., 263 F.2d 150, 153 (9th Cir. 1958).

 Dal-Bac says, in effect, that if its motion for summary judgment is denied, then it has other evidence of invalidity and non-infringement which could be brought out at a trial. This is certainly not a statement sufficient to raise a genuine issue of material fact.

 Moreover, the claims of the patent and the prior art are understandable without the aid of expert witnesses. See Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2d Cir.), cert. denied, 352 U.S. 917, 77 S. Ct. 216, 1 L. Ed. 2d 123 (1956).

 This action is appropriate for summary judgment.


 The Berning Patent

 Rudolf Berning is the inventor of United States Patent 2,924,865 (herein referred to as the "Berning Patent") issued on February 16, 1960. Astor is the assignee of Berning and manufactures belt buckles. The patent has four claims which, in general, pertain to belt buckles adapted to be covered with fabric and worn with women's clothes. The Berning buckle is comprised of two rectangulars frame members (an upper frame and a lower frame), either one or both of which may be covered with cloth and both of which are constructed in such a manner as to permit them to be fitted over each other and thereby to be clamped together. Figure 1, below, shows the lower frame member of the Berning buckle.


 The upper and lower frame members have central openings. Across the opening and parallel to the two shorter ends of the rectangular frame, two cross members (Figure 2 below) are immovably mounted into the lower frame (Figure 3 below).



 The lower frame member is constructed with slots (Figure 1 above, numeral 5) designed to receive the end portions of the cross members (Figures 2 and 3, numeral 3). When the upper frame is fitted over the lower frame with the cross members mounted in position, the end portions (or "holding edges") cannot be seen. (Figure 4).


 Each of the cross members has a tongue-like projection (Figures 2 and 3, numeral 2) directed toward the shorter sides of the rectangular frames. The projections so placed define two U-shaped threading slots with the inner sides of the frame members. The tongue-like projections are adapted to be cut to any predetermined length depending upon the thickness of the cloth to be used for the belt. The free end of the belt passes under and through one of the U-shaped threading slots, then over the cross members and down through the other U-shaped threading slot, as illustrated below (defendant's exhibit D-18):


 If the tongue-like projections are cut to the correct length relative to the thickness of the material of the belt, the belt will be locked in position by the dual pressure from (a) the tongue-like projections applied to the inner side of the belt and (b) from the inner walls of the shorter sides of the rectangular frames applied to the outer side of the belt ("self-locking"). Thus if the belt is manufactured from thin cloth, the tongue-like projections will be cut in such a manner as to extend closer to the shorter sides of the rectangular frames and thus to define narrower U-shaped threading slots which will permit self-locking. Correspondingly, if thicker material is utilized, the tongue-like projections will be cut shorter (and thus smaller), rendering the U-shaped threading slots wider and permitting self-locking.

 The second and fourth claims of the Berning patent envisage a similar construction to that described above, but using an integral (one piece) cross member (Figure 5, below) rather than ...

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