14 F. (2d) 1014 type where two stringers, generally of fabric tape, have fixed thereto metallic interlocking devices, which are operated to lock and unlock by the movement of the slider back and forth. An examination of the patent shows that it is for the slider, per se, and not for the fastener, nor for any adjunct of the fastener. The particular object of the invention, as stated in the specification, is "to provide a slider which will not spread when subjected to a heavy strain, and which can be actuated positively in both directions from either side by a single pull, thus requiring the operator simply to grasp the free end of the operating device and pull the slider in one direction to close the fastener and in the opposite direction to open it." There is another object mentioned in the specification of the patent, viz. to shape the slider so as to prevent the fastener from being opened by pulling the stringers apart; in other words, to hold the fastener locked against opening under lateral tension, as distinguished from the slider shown in patent No. 1,219,881, to which comparative reference is made in the specification. This object the patentee accomplished by forming diverging channels in the slider, meeting at a definite angle. This feature is not defined by the claims in suit and need not be considered. The patent in suit has 15 claims, but plaintiff relies here upon claims 4, 5, and 6, which read as follows: "4. A slider comprising connected wings forming diverging channels and having stiffening means extending beyond the channel intersection on each side, and actuating means carried by said stiffening means. "5. A slider comprising wings forming diverging channels and having a slotted connection, stiffening means inserted in said slotted connection and extending lengthwise on each wing, and means interlocking said stiffening means with the wing connection. "6. A slider comprising connected wings forming diverging channels, and stiffening means extending lengthwise on each wing and engaged therewith at each end." The slider described in the patent in suit comprises a body, composed of a stamping having flat wings, which are provided with turned edges, turned in at a right angle as shown in one figure of the patent, or at an acute angle as shown in another figure of the patent. The inturned edges on the wings are straight, but are disposed at an acute angle to each other, and end in straight portions forming channels through which the inter locking members of the hookless fastener pass. At each end of the wings is provided an upturned lug having a perforation, and connecting the wings is a neck having a slot. The blank thus obtained is doubled over on itself, so as to bring the inturned wings adjacent and in registry with each other; the lugs projecting outwardly on each face of the body so obtained. A stiffening yoke is first stamped from sheet metal in two different forms and comprises a body having flanges around the edge, a longitudinal slot in the middle forming narrow necks, and a` key slot near each end. This blank is doubled over so as to bring the flat faces back to back with the slots registering as shown in Fig. 10 of the patent. The necks now project beyond the flanges, and these projections fit into the perforations in the lugs. The yoke member shown in Fig. 10 is thus generally U-shaped, and is slipped over the slider body until it is stopped by reaching the bottom of the slot, in which position the projections of the yoke are seated in the perforations in the lugs. In order to lock the yoke against withdrawal from the slider body, a key or pin, composed of a narrow, flat strip, is passed through the slots in the yoke immediately under the bent neck of the slider body. The ends of the key are bent down on each side, as shown in Fig. 2, to form guiding surfaces for the interlocking stringer members of the hookless fastener. As appears from Fig. 2 of the drawings, the three elements of the slider so far described form a Y-shaped passage through which the interlocking members pass. One of the features of the yoke is to hold the slider body rigidly against spreading, the yoke extending throughout the entire length of the slider body and being interlocked with the lower end of the slider body. In addition to the function of stiffening the slider body, the yoke serves also as the means of connection between the slider and the pull or actuating means. This pull consists of a stamping having inturned lugs, separated sufficiently to receive the combined thickness of the two yoke flanges. The pull device is adapted to travel around on either side of the slider body, so that the slider is capable of being actuated in either direction, on either side. In Figs. 15 and 16 a construction is shown in which the pull does not travel at all. From the foregoing it appears that the patent in suit describes a three-piece slider, consisting of the slider body, the reinforcing yoke, and the locking key. The claims in suit, however, are not limited to such construction. The defenses are invalidity and noninfringement. It appears from the record that hookless fasteners and sliders co-operating therewith were old and well known many years prior to the filing date of the application which resulted in the patent in suit which was June 20, 1917. For instance, the Judson patent, No. 504,038, issued August 29, 1893, shows and describes a hookless fastener, the strings of which are operated by a slide which comprises connected wings forming diverging channels, as clearly appears 'from both the specification and claims of that patent. This slide is provided with actuating means which permit the slide to be operated in either direction; that is, to either engage the elements of the fastener or to disengage them. In the Judson patent, No. 557,207, issued May 31, 1896, there is also shown and described a slider comprising connected wings, and the diverging channels formed by the connected wings. It is obvious that "diverging channels" means merely two diverging passageways through which the separated fastener stringers pass. Such passageways are clearly shown in patent No. 1,219,881, issued to Sundback on March 20, 1917, and assigned to this plaintiff. The record discloses the fact that the inventor, Sundback, experienced troubles with the slider described in the last-mentioned patent, because, as Sundback testified, the two wings of the slider opened up at times when crossways strain was applied to the fastener, and, when accidentally any object became wedged between the fastener and the slider, the two wings opened up. In so testifying Sundback had reference to Plaintiff's Exhibit No. 7, the so-called hookless fastener No. 2. It appears that this fastener has an outside stiffening member, which strengthens the wings only to the point of the intersecting channels. Sundback thereupon experimented in order to obtain a slider which would be materially stronger than any slider previously produced by him, and conceived the idea of carrying the outside stiffener beyond the intersection of the channels. It appears from the record, however, that this idea was not new with Sundback, because it is disclosed in British patent to Kuhn-Moos, No. 14,358 of 1912. The device described in that patent has a reinforcing yoke extending far beyond the channel intersection on each wing. Plaintiff claims that the Kuhn-Moos patent does not disclose the guiding diverging Yshaped channels of the patent in suit. This claim is not well founded, because it appears, from the drawings of that patent, that a substantially Y-shaped channel is formed in the slider, and it also appears that the stiffening means extends beyond the channel intersection on each side of the connected wings of the slider. [1] Bearing these facts in mind, it must be held that claim 4 of the patent in suit is invalid, in view of the Kuhn-Moos patent of 1912, which clearly shows a slider comprising connected wings forming diverging channels and having stiffening means extending beyond the channel intersection on each side, and having also actuating means carried by said stiffening means. If this claim could be limited to a slider made of a plurality of stamped sheet metal sections joined together in a specific way, I would be inclined to hold the same valid. Inasmuch as such limitations should not and cannot be read into the claim, I am constrained to hold claim 4 invalid. The validity of claim 5 is not seriously questioned. The defendant alleges that this claim, if construed to include soldering, welding, or similar means for uniting the yoke and wings in a solid integral structure, is substantially anticipated by the KuhnMoos British patent. I am unable to agree with this contention, because this claim calls for wings having a slotted connection, in combination with stiffening means inserted within said slotted connection. No construction of this type has been introduced in evidence, no prior art or prior use has been proven, and I must therefore hold that claim 5 is valid. Claim 6 also must be held valid, as it calls for stiffening means extending lengthwise on each wing of the slider body and engaged therewith at each end. This arrangement is entirely novel with the patentee. It must be held, however, that this claim requires that the stiffening means extend through the entire length of the slider body and be interlocked with each wing at the lower end of the slider. Coming now to the question of infringement, it is noted that plaintiff contends that defendant's sliders represented by Plaintiff's Exhibit 3 and by Defendant's Exhibit N infringe claims 5 and 6, and that defendant's slider represented by Plaintiff's Exhibit 4 infringes claim 6 of the patent in suit. The elements of claim 5 are: (a) Wings forming diverging channels and having a slotted connection; (b) stiffening means inserted in said slotted connection and extending lengthwise on each wing; (c) means interlocking said stiffening means with the wing connection. [2] Defendant's slider, represented by 14 F. (2d) 1014 Plaintiff's Exhibit 3, is made of a plurality of parts formed by stamping operations. Without doubt it comprises elements (a) and (b) of the claim. As to element (c) defendant raises the question whether the solder used in uniting the body of the slider with the stiffening means may be termed "interlocking means." Defendant contends that this term should be interpreted to describe a key, pin, or like mechanical uniting means. I cannot agree with this contention, as the term "interlocking means" is sufficiently broad, so as to include any kind of uniting or connecting means. It would be contrary to public policy to permit a defendant to copy plaintiff's slider in its entirety, and to use solder for uniting its elements, rather than the key or pin described in the patent in suit. As I view it, this invention has real merit, and it has advanced the art very substantially, and the inventor should be secured the reward he deserves. I therefore hold that defendant's slider, represented by Defendant's Exhibit N, infringes claim 5 of the patent in suit, and it differs from Plaintiff's Exhibit 4 only in the respect that the wing connecting means is cut off on one side of the stiffening means. This, however, is too trivial a change to avoid infringement, and was evidently suggested in order to avoid infringement. Considering the terms of claim 6 and my interpretation of it, I find that neither Plaintiff's Exhibit 3 nor Defendant's Exhibit N infringes this claim. In neither of these two exhibits do the stiffening means engage the ends of the wings opposite the connecting means. It has been argued by plaintiff that in both of these exhibits the wings are provided with grooves or ribs, and that these, together with the stiffening means, extend throughout the entire length of the wings and therefore infringe. I hold, however, that these grooves or ribs are not "engaged" with the ends of the wings in the ordinary sense of the word, nor are they interlocked, as the claim requires when interpreted in the light of the specification of the patent. Defendant's slider, represented by Plaintiff's Exhibit 4, includes a stiffening means which extends lengthwise on each wing of the slider body; the stiffening means being in the form of a substantially U-shaped flat riveted yoke inserted through slots in the wings close to the channel vertex. This construction, obviously, does not infringe claim 6, because the stiffening means is not engaged with the wing ends. I therefore conclude that claim 4 of the patent in suit is invalid, and that claims 5 and 6 are valid; that defendant's sliders, represented by Plaintiff's Exhibit 3 and Defendant's Exhibit N, infringe claim 5, but do not infringe claim 6; and that defendant's slider, represented by Plaintiff's Exhibit 4, does not infringe claim 6; and there may be a decree accordingly. On Petition for Rehearing. [3] Defendant petitions the court for a rehearing on the question of infringement of claim 5 of the patent in suit by Defendant's Exhibit N, and for a revision of so much of the opinion as holds that Defendant's Exhibit N is an infringement of claim 5. Defendant now avers that, inasmuch as claim 5 was sustained upon the feature of the slotted connection between the wings with the stiffening yoke inserted in the slotted connection, the holding that Defendant's Exhibit N infringes claim 5 is necessarily a holding that Exhibit N has a slotted connection between the wings and that the stiffening means is inserted in said slotted connection, and that such a finding is a mistake in fact, because there is no slotted connection between the wings, and the stiffening means is not and cannot be inserted in the slotted connection, because no such slotted connection exists. In support of its argument, defendant submits two sketches of the blanks from which Plaintiff's Exhibit 3 and Defendant's Exhibit N are made, and points out the alleged differences between these two blanks. All the points that defendant relies upon in its petition for rehearing were carefully considered in reaching the conclusions expressed in the opinion, and I still adhere to the finding that Defendant's Exhibit N infringes claim 5. The only difference between the two exhibits lies in the fact that in Plaintiff's Exhibit 3 a closed slot is employed, while in Defendant's Exhibit N an open slot is used. The slots are in both devices, and are in the connection between the wings of the blank. In both devices the stiffening means is inserted into the slotted connection and exists lengthwise on each wing. This is all that claim 5 requires. The claim does not specify the nature of the slot, and it is entirely immaterial for what purpose the open slot in Defendant's Exhibit N is designed. It follows, therefore, that the petition for a rehearing and revision of the opinion must be, and the same is, denied. 1018 14 FEDERAL REPORTER, 2d SERIES affid 147 (2d) 1019. that, after being served with the subpoena, he 'In re BLEECKER et al. (District Court, S. D. New York. November 17, 1925.) 238. 1. Bankruptcy President and treasurer of corporation held guilty of contempt of bankruptcy court by withholding records after subpoena to produce them. 2. Bankruptcy 242 (2)-President of corporate bankrupt was justified in refusing to answer questions as to book entries but not in withholding physical possession of books after service of subpoena therefor on treasurer. President of corporate bankrupt was justified in refusing to answer questions relative to book entries on ground that answers might incriminate him, but he was without right to withhold physical possession of books after treasurer had been served with subpoena for their production. In Bankruptcy. In the matter of Morris Bleecker and others, individually and as copartners trading as the B. G. B. Dress Company, bankrupt. Motion to punish Mertz Berkowitz and another for contempt. Judgment of contempt. Order affirmed in 14 F. (2d) 1019. Samuel Rose, of New York City, for Berkowitz and Shinkman. Bondy & Schloss, of New York City, for trustee. THACHER, District Judge. Motion to punish Mertz Berkowitz and Samuel Shinkman for contempt upon certificate of referee in bankruptcy recommending such punish ment. During hearings before the referee in bankruptcy herein, it became important to examine the books of Berk's Auto Trucking Company, a New York Corporation, having its principal place of business in the city of New York. One Mertz Berkowitz, a brother of one of the bankrupts and president of the Berk's Auto Trucking Company, appeared before the referee on September 17, 1925, pursuant to a subpoena served upon him requiring him to produce the books of the Berk's Auto Trucking Company. He refused to produce the books, and, when directed to do so, later appeared with the books and declined to answer any questions on the ground that his answers might incriminate him. Thereafter, on September 30, 1925, Samuel Shinkman appeared as a witness and testified that he was the treasurer of the Berk's Auto Trucking Company. He was thereupon served with a subpoena to produce the looks of the company, and the hearing was adjourned until October 6, 1911, at which time he appeared again and testified suggested to Mertz Berkowitz that he resign as treasurer, and thereafter received notice of a meeting of the directors held on October 5, at which time he resigned his office in the corporation; that he had not produced the books because Mertz Berkowitz had told him that he was no longer an officer of the corporation and was not authorized to do so. In opposition to this motion, Mertz Berkowitz submits an affidavit in which he states: "I have asserted before the referee and assert now that I may be incriminated if I am compelled to testify as to the contents of the books of the Berk's Auto Trucking Company, so far as they relate to any transactions between Berk's Auto Trucking Company, the bankrupts, and myself. I make such assertion and claim such privilege in good faith. It is solely because of this claim that I have, within the last two months, kept in my personal possession, in a separate part of the office of the Berk's Auto Trucking Company, the books of said corporation and have declined to permit any other officer of the Berk's Auto Trucking Company to have diate personal supervision, or to remove or access to said books, except under my immehave the custody of any of said books. Mr. Shinkman, who was treasurer of the corporation, has not at any time within the last two months had access to or possession of, or custody of any of said books. I admit that he was served with a subpoena and informed me that he desired to obtain from me the books of the company for production before the referee, but I declined to permit him to have such possession or to give such books to him. I informed Mr. Shinkman that I had claimed the privilege aforesaid, and for that reason. alone, and until the court passed upon my claim of privilege, would refuse to have the books out of my possession. true that on the morning of October 6th Shinkman asked me to let him have the books to produce before the referee, and that I declined to let him have the books. I told him at that time that he was no longer an officer of the company but that I had no objections to his appearing before the referee, nevertheless, but that, even if he were still an officer, I would not let him have the books, because I felt that I had a legal right to retain them upon my pleas of privilege." It is Shinkman, in an affidavit submitted in his behalf in opposition to this motion, attempts to justify his conduct by the claim that he did not at any time after the first hearing on September 30th, have "immediate custody" of any of the books of the Berk's 14 F. (2d) 1019 Auto Trucking Company, and did not have personal control of any character over said books, which were, during such time, in the possession of Mertz Berkowitz, who declined to turn them over to him "because, as he stated to me, he had pleaded before the referee that the books if opened for inspection, might tend to incriminate him (Mertz Berkowitz), and that therefore he would not turn them over or any of them until the court had ruled as to the propriety of his claim of privilege." [1, 2] The referee has found that the removal of Samuel Shinkman from his office as treasurer of the corporation was not effected in good faith, but was a device resorted to by the witness Mertz Berkowitz and the witness Samuel Shinkman to defeat the process of this court. If upon the testimony before the referee there could be the slightest doubt as to the correctness of this conclusion, it is entirely removed by the affidavits of Berkowitz and Shinkman submitted in opposition to this motion. The obvious purpose of the resignation was to enable Shinkman to appear before the referee and assert that he was no longer an officer of the corporation and therefore could not produce the books. It may be that, because of the entirely unwarranted action of Mertz Berkowitz in withholding the records of the corporation under an assertion of personal privilege, Shinkman would not have been able to produce the books, even if he had not resigned. But the plain purpose of the resignation was to conceal from the referee that Berkowitz was contumaciously refusing to permit an officer of the corporation who had been subpoenaed to produce the books and records called for by valid subpoena. Although Berkowitz was justified in refusing to answer questions with regard to the entries in the books on the ground that such answers might tend to incriminate him, his conduct in withholding the physical possession of the books after the treasurer of the corporation had been served with a subpoena for their production is utterly indefensible. Hale v. Henkel, 201 U. S. 43, 26 S. Ct. 370, 50 L. Ed. 652; Wilson v. U. S., 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Wheeler v. U. S., 226 U. S. 478, 33 S. Ct. 158, 57 L. Ed. 309; Essgee Co. v. U. S., 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917. He has persisted in this conduct until the present time, and the resignation of Shinkman was obviously a device by Shinkman and Berkowitz in aid of a deliberate purpose to obstruct the process of this court by withholding from the referee books and records of the corporation. Fines in punishment for contempt will be imposed in the sum of $250 upon Samuel Shinkman, and in the sum of $500 upon Mertz Berkowitz. Both Shinkman and Berkowitz will be committed to the custody of the marshal until their fines are paid and until they shall cease to obstruct and impede the process of this court, or otherwise purge themselves of their contempt. In the Matter of Morris BLEECKER et al. Bankrupts. Samuel SHINKMAN and Milton M. Berkowitz, Petitioners. (Circuit Court of Appeals, Second Circuit. October 14, 1926.) No. 7. Petition to Revise Order of the District Court of the United States for the Southern District of New York. Samuel Rose, of New York City (David Leavenworth, of New York City, of counsel), for petitioners. Eugene L. Bondy and Bondy & Schloss, all of New York City, for respondent. Before MANTON, HAND, and MACK, Circuit Judges. PER CURIAM. Order (14 F.[2d] 1018) affirmed in open court. |