Welsh Co. Of California, a Corporation v. Strolee of California, Inc., a Corporation

290 F.2d 509 WELSH CO. OF CALIFORNIA, a Corporation, Appellant, v. STROLEE OF CALIFORNIA, INC., a Corporation, Appellee. No. 16674. United States Court of Appeals Ninth Circuit. April 28, 1961. Lawrence H. Cohn and Cohn, Powell & Cassidy, St. Louis, Mo. (Warren L. Kern and Harris, Kiech, Russell & Kern, Los Angeles, Cal., of counsel), for appellant. Lyon & Lyon and R. Douglas Lyon, Los Angeles, Cal., for appellee. Before STEPHENS, BARNES and JERTBERG, Circuit Judges. STEPHENS, Circuit Judge. 1 Appellee, hereafter sometimes referred to as Strolee, was the victor in a patent infringement suit brought in the District Court for the Southern District of California against appellant, hereafter sometimes referred to as Welsh. The patents held and sued upon by Strolee are United States Letters Patent Nos. 2,728,580 and 2,798,730, otherwise known as the Preisler patent or stroller and the Smith patent or stroller respectively. The Preisler patent teaches a collapsible baby stroller and the Smith patent one thatcollapsible but also adjustable for lying down, sitting up and intermediate positions. Upon this appeal, Welsh concedes that if the patents are valid, it has infringed…

Appellee, hereafter sometimes referred to as Strolee, was the victor in a patent infringement suit brought in the District Court for the Southern District of California against appellant, hereafter sometimes referred to as Welsh. The patents held and sued upon by Strolee are United States Letters Patent Nos. 2,728,580 and 2,798,730, otherwise known as the Preis-ler patent or stroller and the Smith patent or stroller respectively. The Preisler patent teaches a collapsible baby stroller and the Smith patent one that is not only collapsible but also adjustable for lying down, sitting up and intermediate positions. Upon this appeal, Welsh concedes that if the patents are valid, it has infringed them. It urges, however, that *510 the patents are not valid and, secondarily, that the trial court committed prejudicial error in regard to the exclusion of certain evidence.

The Preisler Patent

As we read appellant’s brief, it raises two contentions in regard to the invalidity of this patent: 1.) That the patent was fully anticipated by the prior art, see 35 U.S.C. § 102 (a), consisting of baby strollers manufactured by the Kuniholm Company and designated in the record as Exhibits E, H, L,…

(concurring).

In concurring in the foregoing opinion, I desire to add that in view of the rejection by the Patent Examiner of claims numbers 6, 14 and 15, as amended, made by Preisler and Shone to the Patent Office, and the subsequent cancellation of those claims by the applicants, and for the reasons stated by the Patent Examiner, I have grave doubts that there exists any invention in the Preisler patent number 2,728,580 over prior art, and I have grave doubts that either it or the Smith patent number 2,798,730 are anything more than a mere aggregation of a number of old parts or elements which perform or introduce no new or different function or operation, and hence, are not patentable. It is difficult for me to see where “the toggle bar form” is a device requiring more ingenuity than might be furnished by any mechanic skilled in the art. I am not coming to any final conclusion, however, until proper findings are before this Court.

I join Judge BARNES in his statement made in the last sentence of' his concurring opinion.

I join Judge BARNES in his statement made in the last sentence of his concurring opinion.