Helena Rubinstein, Inc. v. Robert G. Bau and Edna P. Bau

The defendants Bau appeal from a partial summary judgment in favor of plaintiffs Helena Rubinstein, Inc. and Oscar Wurmbock, (collectively Rubinstein). The Baus, in this patent litigation, filed a counterclaim against Rubinstein asserting the infringement of Bau’s patent No. 2,902,041, issued September 1, 1959 (Bau ’041). The judgment holds that claims 3, 4 and 5 of Bau ’041 are invalid. We affirm, but for a reason different from that stated by the trial judge.

The action began as one brought by Rubinstein under 35 U.S.C. § 146 , as parties dissatisfied with a decision by the Board of Interference of the Patent Office. The interference had been declared between claims 3, 4 and 5 of Bau '041 and identical claims Nos. 7, 8 and 9 in Wurmbock’s Application No. 748,879, originally filed July 16, 1958 (Wurmbock Ápp. ’879). The Board held that as to these claims, Bau was entitled to priority of invention.

On September 29, 1967, the Baus filed a motion for summary judgment, grounded on the proposition that the Wurmbock commercial device corresponding to claims 7, 8 and 9 of Wurmbock App. ’879 had been in public use and on sale in this county as early as November, 1955, more than one…