COMMERCIAL NOVELTY CO., Inc., v. VICTORY FIREWORKS & SPECIALTY CO. et al., 92 F.2d 299

PARKER, Circuit Judge. This is an appeal and cross-appeal from a decree in a suit for infringement of patent No. 1,467,755, which'the court below held valid and infringed by the globular toy torpedoes of defendant’s manufacture, but not by its “salutes.” The facts are fully stated in the lower court’s opinion, which is reported in (D.C.) 16 F.Supp. 969, 974; and all-of the questions presented to tíiis court are there fully considered.

As the majority of the court, after careful consideration of the record and briefs and arguments of counsel, are in thorough accord with the reasoning as well as with the conclusions of the District Judge, nothing need be added to what is there said. The only serious question in the case is whether there was patentable novelty in the torpedo and the process of making it covered by the patent in suit, in view of the disclosure of the Graber patent, No. 902,650. We think that there was.

As was well said by the judge below: “It is true that most of the features of his improvement in toy torpedoes, in one form or another, have heretofore been known and used separately. Thus there is nothing new in the form or contents of the inner cartridge; nor in an encasing device to protect it; nor in the spheroidal form of the latter; nor in the use of a fibrous material such as wood-pulp or sawdust for a casing; nor in the mere process of rolling or tumbling to increase size or bulk.

Cimorosi has, however, combined several prior ideas or devices to create a new and, for the limited purpose mentioned, useful result in the making of much more efficient toy torpedoes. See Parks v. Booth, 102 U.S. 96, 102, 26 L.Ed. 54; Black & Decker Mfg. Co. v. Baltimore Truck Tire Service Corporation, 40 F.(2d) 910 (C.C.A.4th); Langston Co. v. Hooper Co., 8 F.Supp. 613, 616 (D.C.Md.), affirmed 79 F.(2d) 992 (C.C.A.). It was something more than the ‘exercise of the skill of the calling or an advance plainly indicated by the prior art.’ Altoona Theatres v.

Tri-Ergon Corporation, 294 U.S. 477, 486, 55 S.Ct. 455, 458, 79 L.Ed. 1005; Diamond Rubber Co. v. Consolidated Rubber Co., 220 U.S. 428, 443, 31 S.Ct. 444, 55 L.Ed. 527; Electric Cable Co. v. Edison Co., 292 U.S. 69, 79, 54 S.Ct. 586, 589, 78 L.Ed. 1131. Furthermore there is a really new feature in the Cimorosi process which consists in the combined agglutination and agglomeration of the granules of sawdust formed by the process of tumbling whereby they are both agglutinated to the cartridge and to each other to form the casing in spheroidal form.

And this combination of the new and old creates a new utility for this class of articles in the combined advantages of (1) safety against accidental ignition in transportation or handling; (2) protection from deterioration by absorption of moisture; (3) certainty of detonation upon intentional percussion due to the spheroidal form which insures explosion no matter what the point of contact between the torpedo and the resisting object; and (4) intensity of explosion due to the substantially non-resilient characteristic of the shell of agglomerated and agglutinated material which is ‘sufficiently tenacious to produce a pressure over a sufficient area of the fulminating material to give substantially instantaneous explosion’ and therefore a louder noise.” To these considerations should be added the presumptions of patentability arising from the grant of the patent, from commercial success, and from the copying of the process and product of the patent by the defendant.

In view of all of these, we are of opinion that the patent should be sustained and that the decree appealed from should be affirmed. Affirmed.