Motoshaver, Inc. v. Schick Dry Shaver

• Decision Date: 19 August 1940
• Docket Number: No. 9178.,9178.
• Citation: 112 F.2d 701
• Parties: MOTOSHAVER, Inc., v. SCHICK DRY SHAVER, Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

112 F.2d 701 (1940)

MOTOSHAVER, Inc., v. SCHICK DRY SHAVER, Inc., et al.

No. 9178.

Circuit Court of Appeals, Ninth Circuit.

June 10, 1940.

Rehearing Denied August 19, 1940.

Oscar A. Mellin, of Oakland, Cal., and Kenneth K. Wright, of Los Angeles, Cal., for appellant.

William Gibbs McAdoo, of San Francisco, Cal., and Abraham Tulin and Reginald Hicks, both of New York City, for appellees.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

This is an appeal under § 129 of the Judicial Code, as amended, 28 U.S.C.A. § 227a, from a decree rendered in a suit in equity for the infringement of letters patent, the decree being final except for the ordering of an accounting.

The suit was brought by appellees, Schick Dry Shaver, Incorporated, Schick Industries, Limited, and Edises, Incorporated, against appellant, Motoshaver, Incorporated, and a codefendant, Dalmo Manufacturing Company (hereafter called Dalmo). The patents involved are Nos. 1,721,530, 1,747,031 and 1,757,978, issued to Jacob Schick on July 23, 1929, February 11, 1930, and May 13, 1930, respectively. The patents were assigned to and are now owned by Schick Industries, Limited, of which Schick Dry Shaver, Incorporated, is, in the United States, the sole licensee. Edises, Incorporated, is a sublicensee of Schick Dry Shaver, Incorporated. Appellant and Dalmo were alleged to have infringed the patents by manufacturing, using and selling devices called Dual Head Motoshavers. Defenses were that the patents were invalid, and that, if valid, they were not infringed.

Appellant and Dalmo were enjoined, pendente lite, from manufacturing, selling, advertising or offering for sale any shaving device embodying the claimed invention described in patent No. 1,721,530. Schick Dry Shaver v. Motoshaver, D. C., 21 F.Supp. 722. The order granting that injunction was affirmed as to appellant and reversed as to Dalmo. Motoshaver, Inc. v. Schick Dry Shaver, 9 Cir., 100 F.2d 236.

Upon final hearing, the District Court entered a decree which, as to Dalmo, dismissed the suit for want of jurisdiction,¹ but, as to appellant, held that claims 1, 4, 13, 14, 15, 16 and 17 of patent No. 1,721,530, claim 1 of patent No. 1,747,031 and claim 1 of patent No. 1,757,978 were valid and infringed. The decree enjoined further infringement and ordered an accounting. Schick Dry Shaver v. Motoshaver, D. C., 25 F.Supp. 346. Appellant seeks reversal.

Patent No. 1,721,530.

Claims 1, 4, 13, 14, 15, 16 and 17 of patent No. 1,721,530 were found to have been infringed by three devices (Exhibits 18, 23 and 24)² manufactured, used and sold by appellant. These claims read as follows:

"1. A shaving implement comprising a shearing plate of extreme thinness to rest against the skin, having an opening for the reception of hair, a cutter to travel across the opening to provide a shear cut with one edge of the opening, and means for holding the parts to insure the supporting of the plate against flexing by means of the cutter."

"4. A shaving implement comprising a movable cutter and a perforated shear plate supported against external pressure by the cutter and of extreme thinness whereby the shearing is done at substantially the surface of the skin."

"13. A shaving implement comprising a shear-plate with slots extending from side to side, a cutter under the plate and having teeth to co-operate with the edges of the slots in cutting, and means for operating the cutter transversely of the slots.

"14. A shaving implement comprising, in combination, a series of thin and narrow blades having outer surfaces adapted to lie against the surface of the skin while shaving, said blades being separated by slots of such width as to permit at least one hair to enter, said width being so proportioned in respect to the thin and narrow dimensions of said blades as to prevent the surface of the skin being shaved from extending above the rear surfaces of the blades when the blades contact the surface of the skin during a shaving operation, cutter means having shearing edges in contact with the rear surfaces of the blades, and means for operating said cutter means in relation to the blades.

"15. A shaving implement comprising, in combination, a series of closely spaced blades whose outer surfaces are applied to the skin during a shaving operation and whose rear surfaces have edges against which hair is cut close to the surface of the skin, the blades being spaced sufficiently to permit hair to enter therebetween but to exclude the passage of skin above the rear surfaces of the blades when the outer surfaces of the blades are applied to the skin and drawn thereover in a direction substantially continuous with the edges of the blades, cutter means having teeth bearing against the rear surfaces of the blades, and means to translate said cutter means whereby the shearing of hair between the blades and teeth is attained.

"16. A shaving implement comprising, in combination, a shear-plate having a series of closely spaced blades adapted to lie in contact with the skin and whose shearing edges are disposed in a direction substantially continuous with the direction of manipulation of the implement during a shaving operation, the blades of the shearplate being relatively thin and of substantially the same cross-sectional area along their shearing lengths, cutter means having teeth bearing against the rear faces of the blades of the shear-plate and forming shearing edges co-operative with the shearing edges of said blades, and means to translate said cutter means in a direction lateral to the blades.

"17. A shaving implement comprising in combination, a shear-plate having a series of parallel spaced blades separated by slots open-ended on at least one side of the shear-plate, said slots being of such width as to accommodate hair and to maintain the surface of the skin being shaved from extending above the rear surfaces of said blades while permitting it to extend substantially to said rear surfaces along the lengths of said slots as the outer surface of the shear-plate is held flat against the skin, cutter means having edges contacting the rear surface of the shear-plate, and means to operate said cutter means in relation to the shear plate."

Each of these claims is for a shaving implement. The implement described in claim 1 has a "shearing plate." The one described in claim 4 has a "shear plate." Each of those described in claims 13, 16 and 17 has a "shear-plate." Each of those described in claims 14 and 15 has a series of "blades." These terms are not defined in the claims. Their meaning must be sought in the specification. The specification states:

"This invention relates to an improved shaving implement that has a shear plate that rests against the face and has a cutter operating under the plate to cut the hairs. The machine can be used for shaving without the use of lather.

"The invention comprises an implement in which the shearing action takes place practically on the surface of the skin as the shearing plate or its equivalent is extremely thin. The thin plate is held in place against flexing and collapsing under inward pressure by the cutter which is disposed inside the shearing plate to co-operate with it in shearing and to support it against flexing.

* * *

"The implement or machine is constructed to shear close to the skin to accomplish a close shave and in order to do this I provide a very thin shear plate or its equivalent, this plate resting on the skin and having an opening or openings against the edge of which a cutter operates to cut the hair. The shear plate is so thin that it would collapse or flex under inward pressure and the cutter is therefore disposed in a way to support the shear-plate over its inner surface. * * *"

From the foregoing it is clear that the patent uses the terms "shearing plate," "shear plate" and "shear-plate" interchangeably; that what the patent calls a shearing plate, shear plate or shear-plate is a plate which is so thin that it would collapse or flex under "inward pressure;" and that, as here used, the phrase "inward pressure" means ordinary shaving pressure, that is to say, such pressure as would ordinarily be exerted in using the implement referred to for its stated purpose, namely, for shaving. That being the sole purpose of the implement, there was no reason for mentioning, or providing support against, any other pressure. Hence, to be a shearing plate, shear plate or shear-plate, within the meaning of the patent, a plate must be so thin that it would collapse or flex under ordinary shaving pressure.

Also, to be a shearing plate, shear plate or shear-plate, within the meaning of the patent, the plate must have an opening or openings. It may have one opening or several. The opening or openings may be of any desired form. Accompanying the specification is a drawing of an implement which, the specification states, is an embodiment of the claimed invention. This implement has a shearing plate, shear plate or shear-plate which, as shown in the drawing, has many openings. These openings are parallel slots extending from side to side of the plate, cutting the plate into a series of parallel cross-strips which the specification calls blades. These are the only blades mentioned in the specification. Thus, what the patent calls a series of blades is merely a slotted shearing plate, shear plate or shear-plate — a plate which is so thin that it would collapse or flex under ordinary shaving pressure.

Each of appellant's devices has two plates, but none of them has a plate which is so thin that it would collapse or flex under ordinary shaving pressure. Hence, none of them has a shearing plate, shear plate, shear-plate or series of blades, within the meaning of the patent. Hence, none of them infringes any of the seven claims set forth...