117 F.2d 361 (2nd Cir. 1941), 154, Automatic Devices Corp. v. Cuno Engineering Corp.

Docket Nº:154.
Citation:117 F.2d 361, 48 U.S.P.Q. 444
Case Date:February 03, 1941
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 361

117 F.2d 361 (2nd Cir. 1941)

48 U.S.P.Q. 444




No. 154.

United States Court of Appeals, Second Circuit.

February 3, 1941

Page 362

Drury W. Cooper, of New York City, Henry M. Huxley, of Chicago, Ill., and Thomas J. Byrne, of New York City, for appellant.

Robert S. Allyn, Hyland R. Johns, and Edward S. Higgins, all of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment dismissing its complaint in an action to enjoin the infringement of two patents: i.e. claims two, three and eleven of Patent No. 1,736,544, issued to Herbert E. Mead; and claims one, two, ten, sixteen and eighteen of No. 2,117,232, issued to Joseph H. Cohen. The district judge held that Mead's patent was not infringed, and that Cohen's patent was invalid. Both inventions are for improvements in cigar and cigarette lighters installed in motor-cars, containing a glow member heated by, or being itself, a resistance coil in an electric circuit from the igniter coil. When such lighters first appeared they were in form of plugs, carried in a socket on the dashboard and pulled out when used. Two wires from the igniter coil led to opposite ends of a resistance coil in the plug, and, when pulled taut, these closed an open contact in the circuit and heated the glow member. After the plug had been used the release of tension on the wires opened the contact, broke the circuit, and the wires were reeled back into the socket as the plug was returned. These were called 'reel type' lighters; in them the plug was never out of the circuit. They were in use at least as early as 1917. In 1921 a patent was issued to one, Morris (No. 1,376,154), for another type, the 'wireless' lighter, in which no wires were attached to the plug, which, when pulled out of the socket, kept hot only so long as it took the glow member to cool off. In this type, of which there were several forms, while the plug rested in the socket the contracts of the circuit were open, and when the user wished to use it he completed the circuit by pushing it home-- preferably against the resistance of a spring-- and he was obliged to hold it in place until the glow member was hot enough. After he concluded that it had become so (in some forms the glow member was visible) he took out the plug, used it like a match or torch, and returned it to the socket. These lighters required the continued attention of the user, because it was essential that the plug should not close the circuit while the glow member was not to be heated, and that the circuit should not be closed for too long while it was. The record does not show how extensive was the use of these lighters before 1927 or 1928, when the plaintiff began to make them, except that they were already in great demand and much competition had developed among their manufacturers. Another device of the same sort appeared only a little more than a year after Morris (Zecchini, No. 1,437,701, Dec. 5, 1922); a third some six years later (Metzger, No. 1,622,334, March 29, 1927); and still a fourth, less than a year before Mead's patent appeared (Langos, No. 1,697,686, January 1, 1929). None of these differed basically from Morris, and they show that during the seven intervening years the art had been making rather futile attempts at improving and refining upon his disclosure.

So far as appears, nobody in this country before Mead made 'wireless' lighters automatic; that is to say, so that they should hold their position, after they had been manually made to...

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