PANAY HORIZONTAL SHOW JAR CO. v. ARIDOR CO., 292 F. 858

EVAN A. EVANS, Circuit Judge. The patent in suit, No. 1,228,473, issued June 5, 1917, covers a transparent show jar for displaying candies. It is one of several issued to the same patentee, Karl Panay. The claim in question reads: “2.

In a device of the described class, the combination, with a metallic member affixed to the front open end of a horizontal jar, of a pair of vertical legs formed integral with said metallic member and adapted to support the front end of said jar upon a higher plane than the rear end.” Were there no prior art disclosed, it would be extremely difficult to sustain a patent such as is represented by this claim.

But all doubt is removed when we examine two patents, No. 722,745, covering “a show case for confections,” and No. 796,752,'covering “a transparent show jar,” issued to the same patentee, the drawings of which disclosed horizontal glass jars of the type described in this patent, and differing only in the absence of the “vertical legs adapted to support the front end of the jar upon a higher plane than the rear end.” Such an elevation of the front end of the jar is suggested, if not disclosed, by the drawings of these previous patents, and furthermore we have no hesitancy in finding that this advance did not spell invention.

It is also apparent that appellant has been guilty of improper and unfair practices, which would preclude it from recovering in this suit, even though the patent was sustained. It put out and extensively advertised what it called an “infringement notice,” under which, in large letters, was printed the word “warning.” Although no court had sustained its patent, it announced that: •‘Our Panay jars and supports are fully protected by patents. We intend to protect our patent rights against all infringement.

We have recently begun suit for infringement in the District Court of the United States, Northern District of Illinois, against the Aridor Company, an Illinois corporation.

Jobbers and dealers are warned that they are equally liable with the manufacturer for damages sustained by us and for profits realized by them through the use of the infringing devices.” There was pictured beneath this notice what was described as “the only and original Panay horizontal show jar.” It was not an embodiment of the patent, and the notice as well as the drawing could have served no other purpose than to intimidate competitors and frighten jobbers and users by the publication of assertions which were false in part and misleading as to thé remainder.

The practice of trying suits in newspapers or circulars, in order to scare or daunt competitors, is pernicious and apparently growing. While courts are always open to protect patentees or manufacturers who have established a business which is being unfairly assailed, they cannot permit or sanction the use of the court’s name, in advance of adjudication (or falsely after adjudication), to harass or obstruct a rival. A patentee who resorts to such practices comes into court with unclean hands, and on that ground alone will be denied the relief to which he otherwise might be entitled. The decree is affirmed.