American Type Foundersv.Dexter Folder Co.

Circuit Court of Appeals, Second CircuitNov 3, 1947
164 F.2d 118 (2d Cir. 1947)

No. 30, Docket 20676, October Term, 1947.

November 3, 1947.

Appeal from the United States District Court for the Southern District of New York.

Action by American Type Founders, Incorporated, against Dexter Folder Company and others for declaratory judgment regarding the validity and infringement of certain patents, wherein defendants filed counterclaims. From a judgment for plaintiff, 71 F. Supp. 712, the defendants appeal.


William Bohleber, of New York City (Ira Milton Jones, of Milwaukee, Wis., and A.J. Hudson, of New York City, of counsel), for defendants-appellants.

Burgess, Ryan Hicks, of New York City (Newton A. Burgess, of New York City, and Robert C. Watson, of Washington, D.C., of counsel), for plaintiff-appellee.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

The discussion by Judge Kennedy of the scope of U.S. Patent No. 1,898,535 to Haupt, of U.S. Patent No. 2,108,702 to Backhouse, and U.S. Patent No. 2,144,057 to Hallstream requires an affirmance of the judgment in this action for the persuasive reasons given in his opinion. We agree with him that these patents do not disclose an air propelled mode of operation and that even if the specifications could be regarded as sufficiently describing such a method of operation they would not display patentable invention in view of the Vickery British Patent No. 19,335 of 1904, the Smyth U.S. Patent No. 779,975, and the Petty U.S. Patent No. 1,303,592. We accordingly affirm the judgment on the opinion of Kennedy, J., 71 F. Supp. 712.