
    FRANK F. TAYLOR CO. v. ADRIAN. SAME v. WONDER MFG. CO.
    (Circuit Court of Appeals, Sixth Circuit.
    May 5, 1926.)
    Nos. 4534, 4535.
    Patents <@=3328.
    Carroll patent, No. 1,492,202, for baby walking device, held invalid.
    Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hiekenlooper, Judge.
    Two suits by the Frank F. Taylor Company, one against John G-. Adrian, doing business as the Adrian Baby Carriage Company, and the other against the Wonder Manufacturing Company. From decrees for defendants, plaintiff appeals.
    Affirmed.
    Marston Allen and Alfred M. Allen, both of Cincinnati, Ohio (Allen & Allen, of Cincinnati, Ohio, on the brief), for appellant.
    Walter F. Murray, of Cincinnati,’ Ohio, for appellees.
    Before DENISON, DONAHUE, and • MOORMAN, Circuit Judges.
   MOORMAN, Circuit Judge.

This is an appeal from a decree of the District Court for the Southern District of Ohio, Western Division, dismissing the actions of appellant, plaintiff below,, filed against the Wonder Manufacturing Company and John G-. Adrian for infringement of patent No. 1,-492,202, issued to James I. Carroll April 29, 1924.

The patented device, denominated a baby walker, is designed to teach babies between 8 and 16 months old the muscular movements and balancing actions necessary to walking. As defined in the claims of the patent, it consists of a structure comprising a seat open at its sides, a body support flanking the body of the child above its waist line closely enough to prevent the child’s escape at either side of the seat when on “said seat astraddle of said structure,” and rolling means supporting the structure for propulsion of the device by contact of the child’s feet with the surface supporting the rolling means. The defenses to the suits were lack of patentability and noninfringement. The lower court was inclined to the view that both were sustained, but based its decree on the ground of noninfringement.

The device in its essential features embraces many, of the elements in a modified form of the old-style baby walker, which consisted of a seat or saddle that partially supported the baby in an upright position and was adjustably suspended from a ring that encircled the body between the waist line and the shoulders, which ring was connected with a much larger ring that prevented the device from tipping, and in which there were casters resting on the floor, the movement being effected by contact of the feet with the floor. Carroll’s device substituted' for the widespread lower framework rolling supports, on which there was a board for a seat, supported in the rear by an axle on two wheels sufficiently wide apart to prevent tipping, and in front by a single wheel with two guards extending from the front base to prevent tipping. His later structure consists of a front axle supported by two wheels. It may be converted into a “Kiddie-Kar” by removing the retaining ring, the front rolling support, and substituting for the latter a single front wheel and steering post.

What Carroll seems to have done, as' pointed out in the opinion of the District Court, was to adapt the “Kiddie-Kar” to the needs of a child too young to steer or operate the regular type. In doing so he substituted for the single hand-controlled wheel in front a rolling support for the seat, which, as now constructed, consists of a bolster on two wheels, that are not subject to control by the child’s hand, and are so separated as to provide a safeguard against tipping, and attached to the seat on two upright parts, back and front, a ring support that encircles the body beneath the arms without hampering the movements of the legs. His method of holding the baby on the device has a prototype in Hitzelberger’s hobby horse, in Morton’s perambulator, and in the circular support between the waist and shoulders of the old-style baby walker. With the exception of the circular body support, all the elements of his structure are found in Smith’s “baby exerciser.” It has a board for a seat, with the narrow straddle portion, a rolling means, consisting of a rear axle with wheels, and a front wheel, pivoted to a bolster with outriggers, which prevent tipping.

All that Carroll has done is transfer to the Kiddie-Kar certain old parts of perambulators or b^by exercisers, _ with the view of making them more efficient in the uses to which they had theretofore been devoted. He has mounted upon a Kiddie-Kar a ring to prevent the child from falling, spread its rear wheels, and substituted for its front wheel a fixed axle supported on wheels. In making the Kiddie-Kar utilizable in this manner for a child too young to be trusted with steering it, he did nothing more than any skilled mechanic could have done. He may have improved the old baby walker or perambulator, but he has brought nothing new to the art.

Judgment affirmed.  