(dissenting).
In my view the plaintiff’s Creveling patent and the defendant’s Bebry patent were both anticipated in all their essentials by the prior art, and both should fall for want of invention.
The Creveling and Bebry patents relate to an article of furniture which can be used either as a bed or as a hassock, and which can be easily converted in a single continuous operation from the one type of furniture into the other. Both patents use three hinge-connected sections of substantially equal size, which are foldable, one over the other, into a rectangular base frame. When so folded, the uppermost section, which constitutes the foot of the bed when the unit is open, becomes the seat of the hassock. The hassock may be opened into a bed by lifting the top section up and forward. This motion draws out the middle section, which is attached to the top section by a hinge or pivot. This movement of the middle section causes the lower section to rise vertically within the base frame to the top of the frame. In this new position the lower section constitutes the head of the bed, the middle section is the middle of the bed, and the top section of the hassock is the foot of the bed. In closing the bed, the top or foot end is lifted upward toward the base frame. This motion causes the middle section to pivot into a position where it may fold into the base frame in a position between the top and bottom sections. As the middle section begins to *309fold toward the hassock it causes the bottom section to descend vertically within the hassock.
The only difference between the Creveling and Bebry patents is the manner in which the folding or unfolding movement of the middle section causes the bottom section to descend or ascend within the base frame. In the Creveling patent, the bottom section is supported by toggle links, pivotally connected at the center, and pivoted at the ends to the bottom section and to the bottom of the base frame, respectively. The center of this toggle linkage is connected by a series of levers to the middle section of the bed. As a result, the lifting and unfolding operation of the middle section imparts a straightening action to the toggle links, which in turn lifts the bottom frame. Conversely, the folding of the middle section back into the hassock causes the toggle links to collapse, with the result that the bottom section, supported by those links, descends vertically within the base frame. In the Bebry patent, the bottom section is connected to the base frame by criss-cross legs instead of the single toggle lever of the Creveling patent. As the trial court found, however, the criss-cross legs perform substantially the same operation in substantially the same way as the single toggle lever. When the bed is open, a folding of the middle section toward the base frame causes the crisscross legs to collapse, with the result that the bottom section, supported by those legs, descends within the base frame. Conversely, a lifting and unfolding of the middle section causes the criss-cross legs to rise and to elevate the bottom section to the top of the base frame. As in the case of the Creveling patent, the motion of the middle section is transmitted to the bottom section and to its supporting mechanism by appropriate intermediate levers.
Thus the two patents are similar; but there is nothing novel in either one of them. Except for the manner in which the bottom section is raised and lowered within the base frame, both patents were fully anticipated by U. S. Patent No. 1,945,186, issued January 30, 1934, to William E. Prank for a “Folding Couch or Davenport.” Like the patents involved in the present case, Frank’s folding couch used three hinge-connected sections of substantially equal size which were foldable, one over the other, into a base frame, and which opened to form a bed. In all three patents the folded bed is opened by lifting the top section up and forward — a movement which draws out the middle section — and is closed by reversing this process. In the Frank patent, the base frame was a davenport or short couch of the width of the conventional double bed, while the Creveling and Bebry patents use a hassock as a base frame. But a variation in the width of this structure does not involve any element of novelty. The only other difference between them, also of no consequence, is the fact that the Creveling and Bebry patents permit collapsing of the bed with the mattress still attached to the frame, while in the Frank couch the mattress must be removed, to be folded and stored between the middle and bottom sections of the folded couch.
So far as the raising and lowering of the bottom section is concerned, the mechanisms employed to accomplish this by the two patents before us were both present in the prior art. The toggle links used by the Creveling patent were anticipated by U. S. Patent No. 1,265,073, issued May 7, 1918, to Hyman and Nathan M. Freedman for a folding davenport. Similarly, the criss-cross legs used by the Bebry patent appeared in French Patent No. 850,835, issued September 18, 1939, to Jules Devillechabrolle for “Improvements of folding sofa beds and chair beds.” The combining of the contributions of these prior inventors does not call for any special ingenuity or skill.
Accordingly both patents before us are invalid for a lack of novelty, irrespective of whether the patented articles of the prior inventors were functionally successful or commercially profitable independently. In their opinion my brothers rely more on the trial judge’s assumed find*310ings of fact than is done generally in patent cases; in so doing I think they have overlooked the settled rule that invention is a question of law, usually a serious and important one, to be settled only upon a careful comparison of the claimed new product over the prior art. Here the significant disclosures in the earlier patents cited demonstrate that neither of the present parties really shows any novelty or is entitled to maintain a claim for patent infringement. I would therefore reverse the judgment below.