439

Reporter's Statement of the Case

The drawing which is plaintiff's exhibit 6-D and which originated from the Bureau of Ships, Navy Department, bears the date February 26, 1943, which is subsequent to the expiration date of the patent in suit and is therefore immaterial in this case.

The drawing which is plaintiff's exhibit 6-C bears the date January 6, 1941. This drawing also originated from the Bureau of Ships, Navy Department.

Plaintiff's exhibit 9 is an uncertified blueprint supplied to the Navy Department by the contractor, L. F. Dietz and Associates, Inc., the Marine Division of Jamestown Metal Corporation. This is a drawing of Navy plan C&R No. 392746 for a dental cabinet. This drawing dated January 18, 1941, lists the following ships:

11. On October 3, 1947 the court issued another call directed to the Navy Department for information as to whether the Navy Department had manufactured for it or used in the infringing period any structures disclosed in the drawings attached to and forming a part of the former call and in the drawings and blueprints also listed in the call. This call was replied to on June 11, 1948 (plaintiff's exhibit 14), the reply stating with respect to the dental cabinets that

The investigation to date does not show use by the Navy during the period Dec. 8, 1940 to Nov. 6, 1942 of a dental cabinet as shown in either of the two certified drawings which are described in the May 16, 1947 response to the Court (Ref. (c)) as follows:

"Navy plan Bu. No. 392746 dtd Jan. 8, 1941 for Dental Cabinet. Navy Plan Bu. No. 551,581 dtd Feb. 26, 1943 for Dental Cabinet".

The drawings here referred to are the first and second drawings listed in the preceding finding (plaintiff's exhibits 6-D and 6-C).

Reporter's Statement of the Case

114 C. Cls.

The reply of the Navy Department made no reference to the third drawing listed in the preceding finding (plaintiff's exhibit 9), and the use or nonuse by the Navy of the dental cabinet disclosed therein has therefore not been determined.

12. The dental cabinets shown in the three drawings listed in Finding 10 are constructed of metal and are rectangular in form, being 5 feet wide, 21 inches deep, and approximately 7 feet high. Their interior construction is substantially similar in all three drawings, comprising a series of four shelves across the top, below which are numerous compartments and drawers. These are of various sizes and are for card indexes, dental abstracts, correspondence, linen, and other items essential to dental work.

In all three instances the external appearance or front of the cabinet, which is the only matter here in issue, is the same. This front consists of four metal doors vertically hinged at the sides of the cabinet as shown in the view reproduced herewith from plaintiff's exhibit 6-C. The in

439

Reporter's Statement of the Case

dividual doors are each provided with a T-shaped pull handle, each pair of doors being provided with a lock adjacent the right-hand pull handle. The upper pair of cabinet doors is relatively short as compared to the lower doors. The arrangement of the doors gives the cabinet a symmetrical appearance,

There is no identity of appearance between the Government's dental cabinets and the design patent in suit, and if the Government used or had manufactured for it any of the dental cabinets shown in the drawings, plaintiff's exhibits 6-C, 6-D and 9, no act of infringement exists.

The safe locker

13. During the period from January 1, 1942, to November 5, 1942, safe lockers known as "safe locker No. 3" were part of the furniture aboard Battleships Nos. 55 and 56. This period falls within what has been previously termed the unauthorized period of use.

COMB.LOCK

The safe locker.

Reporter's Statement of the Case

114 C. Cls.

14. This safe locker, which is alleged to infringe the design patent in suit, is shown in blueprints, plaintiff's exhibits 10 and 11. These prints disclose safe lockers Nos. 1, 2 and 3 and all have an identical external appearance, the three distinguishing numbers occurring because of differences in the internal structure of these items.

The external appearance of these safe lockers is shown in the accompanying drawing, which has been reproduced from plaintiff's exhibits Nos. 13 and 14.

The alleged infringing safe locker is in the form of a portable storage cabinet. The entire front face is formed by a rectangular door which bears no decorative features and is connected to the adjacent side wall of the locker by three large hinges at one of its side edges. This door has a conventional rotary knob or combination lock and a conventional tee handle for opening the safe. There is no identity of appearance between the safe lockers used by the Government and the design patent in suit, and no infringement exists.

THE PRIOR ART

15. During the prosecution of the Dickey application which materialized into the design patent in suit, the following patents and publication were cited by the Patent Office:

United States patent to Cummings No. 29,809, patented December 13, 1898 (defendant's exhibit 2-B); United States patent to Sellers No. 1,226,708, patented May 22, 1917 (defendant's exhibit 2-C);

Publication entitled "Furniture Mouldings" by E. J. Warne, published in 1923 (defendant's exhibit 2-D). In addition to the above, the following patents and publications were available, on the dates indicated, to those skilled in the art:

Printed publication entitled "A Collection of English Furniture of the XVII & XVIII Centuries" by Luke Vincent Lockwood, published in 1907 (defendant's exhibit 3A);

Printed publication entitled "English Furniture & Decoration, 1680-1800" by G. M. Ellwood, published in 1910 (defendant's exhibit 4B);

439

Reporter's Statement of the Case

United States patent to Shulin No. 492,877, patented March 7, 1893 (defendant's exhibit 3B);

United States design patent to Flynn No. 53,963, patented October 14, 1919 (defendant's exhibit 4A);

United States design patent to Carolan No. 24,079, patented March 5, 1895 (defendant's exhibit 5A);

German patent to Mischol No. 176,263, Ausgegeben October 12, 1906 (defendant's exhibit 5B).

The above-enumerated exhibits are made a part of this finding by reference.

16. United States patent to Shulin listed above (defendant's exhibit 3B) is the closest approximation to the Dickey design patent in suit.

As shown in Fig. 1 of the Shulin patent, herewith repro

duced, this combination piece of furniture has at the top a bookcase with a pediment located thereon, the bookcase having shelves that are visible through two identical rectangular glass doors arranged side by side.