of the aerial target devices of which the Lamkey patent is illustrative.
In the Finlay patent several kites are elevated, and between them the ends of a rectangular advertising banner is attached. At each end of the banner there is a rigid bar, and converging from this bar to a common point are three flexible lines. At the confluence of the three lines the lines leading to the kites begin. The only relevancy that this patent possesses is in the method in which the three lines run from the rigid bar to the common point. It is contended that this arrangement stabilizes the banner so that it will remain in a vertical position. If that is true it would follow that the stabilizing device used by the plaintiff has been anticipated. The three lines in the Finley case come together as follows: The line leading from the top of the banner goes to the common point hereinbefore mentioned, and with the rigid bar forms a right angle. The line leading from the bottom of the banner joins at the common point and would be the hypothenuse. The third line leads from the center of the rigid bar to the confluence. In the case at bar there are also three lines leading from the rigid bar to a common point. But here an isosceles triangle is formed with the third line bisecting.
The court is not convinced that the manner in which the three lines converge in the Finlay patent produces an effective stabilizing agency. In fact, there was persuasive testimony that the banner in the Finlay patent would develop unstable tendencies and corkscrew. At any rate the banner in the Finlay patent was never intended to be towed in flight as in this case. Furthermore, the plaintiff not only made a different angle out of the three lines leading from the rigid bar, but added a weight to one end of the bar in order to insure stability.
As an introduction to the patents relating to aerial targets it is significant to observe that the purposes of aerial targets and advertising banners are in diametrical conflict. The aerial target is supposed to represent enemy aircraft. To obtain efficacy it must be obscure and elusive. In the case of aerial advertising, the banner must captivate the attention of the onlooker and must necessarily be obvious and conspicuous.
There is ample testimony that none of the target devices could compete with plaintiff's advertising device. This is due to the instability of the target.
The Lamkey patent shows a rectangular banner used as a target towed by a flying machine. There is no rigid bar at the front end of the banner as described in the Finlay patent or as in the patent in suit. There are, however, lines running from the top and bottom of the banner to a common point where the towing cable is connected, with two other lines splitting the angle thus formed. It thus appears that this patent involves nothing but a flexible rectangular banner connected to a towing cable. It is destitute of any stabilizing element, and cannot be said to anticipate the patent in suit.
The court is of the opinion that the plaintiff's patent is valid and infringed. An order may be taken in accordance with the views herein expressed.
The relief prayed for in defendants' counterclaims have been denied in the main actions, and the same are dismissed.
This memorandum is desigtned to meet the requirements of Equity Rule 70 1/2, 28 U.S.C.A. following section 723, with regard to the filing of findings of fact and conclusions of law.
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