Van Brode Milling Co. v. Cox Air Gauge System, Inc.

Involved in this litigation are validity and infringement 1 of Coleman Patent No. 2,710,660 filed December 10, 1951 and issued June 14, 1955, for “a battery hold-down frame of synthetic rubber resin material”. The chief objects of the invention are stated in the specifications in this manner:

The Claims are four in number. They are printed in the margin. 2

Plaintiff’s complaint put in issue the infringement of Claim 3, and also charged unfair competition. However, the defendants, by answer and counterclaim, have challenged the validity of all the Claims and, in addition to non-infringement, have pleaded anticipation, invention by others and lack of patenta-bility. 3

I

The Unfair Competition Claim

Plaintiff’s pendant claim of unfair competition 4 may be disposed of summarily by stating that the only alleged act of unfair competition is similarity of the frames of the defendant and of the boxes in which they are kept. The frames are of the same size, because they must fit standard batteries. They are both red. But the plaintiff has no exclusive right to the size of a hold-down which must fit standard batteries. Nor can he appropriate the color red for the making of a plastic…