267 F2d 308 Scripto Inc v. Ferber Corporation

267 F.2d 308

121 U.S.P.Q. 339

SCRIPTO, INC., Plaintiff-Appellant,
v.
FERBER CORPORATION, Defendant-Appellee.

No. 12763.

United States Court of Appeals Third Circuit.

Argued May 5, 1959.
Decided May 13, 1959.

Warley L. Parrott, Charlotte, N.C. (Nicholas Conover English, McCarter & English, Newark, N.J., Ernest P. Rogers, Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., Parrott & Richards, Charlotte, N.C., William J. Ormsby, Jr., Atlanta, Ga., on the brief), for appellant.

Maxwell E. Sparrow, New York City (Milton Rosenkranz, Jersey City, N.J., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

PER CURIAM.

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1

Appellant's mechanical patent, No. 2,748,748, and two design patents, Nos. 171,093 and 176,469, were held to be invalid by the district court, primarily because they are all covered by prior art. The record affords sound basis for these conclusions.

2

The trial judge did not, as asserted by appellant, ignore the presumption of validity attaching to appellant's patents. He did consider, and properly, the fact that a wealth of relevant prior art had not been called to the attention of the Examiner which circumstances detracted mateially from the importance of the presumption in these instances. Dole Refrigerating Company v. Amerio Contact Plate Freezers, Inc., 3 Cir., 1959, 265 F.2d 627; Murray Company of Taxas, Inc. v. Continental Gin Co., 5 Cir., 1959, 264 F.2d 65, 69.

3

The judgment will be affirmed upon the opinion of Judge Hartshorne in the district court.