236 F. 955 (D.N.J. 1916), Safety Gas Lighter Co. v. Fischer Bros. & Corwin

Citation:236 F. 955
Party Name:SAFETY GAS LIGHTER CO. v. FISCHER BROS. & CORWIN.
Case Date:July 29, 1916
Court:United States District Courts, 3th Circuit, District of New Jersey
 
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Page 955

236 F. 955 (D.N.J. 1916)

SAFETY GAS LIGHTER CO.

v.

FISCHER BROS. & CORWIN.

United States District Court, D. New Jersey.

July 29, 1916

Page 956

[Copyrighted Material Omitted]

Page 957

Louis H. Harriman and William Quinby, both of Boston, Mass., for plaintiff.

James Hamilton, of New York City, for defendant.

HAIGHT, District Judge.

The plaintiff is the owner of patent No. 1,011,643, issued to it as assignee of Frederick H. Pomeroy on December 12, 1911, and patent No. 1,021,363, issued to Matchless Lighter Company, as assignee of Joseph B. Gould on March 26, 1912, and subsequently assigned to the plaintiff. Both patents relate to hand-operated devices for igniting gas. The defendant is engaged in the manufacture and sale of such a device, which, it is claimed, infringes claims 1, 2, 3, 9, 10, 11, and 12 of the Pomeroy patent, and claims 2, 3, and 5 of the Gould patent.

The devices of the patents in suit, as well as that of the defendant, differ only in minor details of construction. In principle they are the same. Some time prior to the summer of 1903 Baron von Welsbach, a celebrated Austrian chemist, discovered a metallic alloy, consisting of cerium and iron, which upon abrasion will give forth a shower of sparks capable of igniting gas. He applied for, and there were issued to him, patents thereon in Austria, France, and this country. The French patent was published on April 4, 1904; the Austrian on February 25, 1905; and on November 27, 1906, the United States patent was issued. The devices of each of the patents in suit were designed to utilize that metal for the purpose before mentioned. Each of them, as well as that of the defendant, consists, broadly speaking, of a contrivance to be held in the hand, made in the form of tongs, one arm of which carries Welsbach's pyrophoric alloy, and the other a file; the arms being so arranged that by pressing the two together with the fingers of the hand the alloy is brought into frictional engagement with the file, and as it is moved along the surface thereof gives off the sparks. They are designed to be held over a gas jet, and when operated will ignite the escaping gas.

The following cuts show the devices of the patents in suit, defendant's igniter, and that of the first Pomeroy patent:

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The device is simple, and no doubt has proved very useful, especially in lighting gas stoves, as it does away with the necessity for matches, as well as the danger incident to their use. During a number of years preceding Welsbach's discovery, many contrivances were devised and patented in this and other countries, whose object was to eliminate the use of matches in lighting gas, cigars, etc., as well as devices which, while using matches as igniting means, sought to effect the ignition thereof automatically. The prior art exhibits a number of devices wherein an electric spark, flint, etc., were used. It was to be expected, therefore, as was the case, that as soon as Welsbach's discovery was made generally known many devices for utilizing it for the purposes before mentioned would be evolved.

The Pomeroy patent in suit was not applied for until February 18, 1910, although the same inventor had applied on November 19, 1908, and there had been issued to him on November 16, 1909, a patent (No. 940,276) for a gas lighter in which the Welsbach alloy was used, but which, structurally, was quite different than that of the later patent. The Gould patent was applied for on May 14, 1910. The dates of the applications for the patents are, of course, prima facie the dates of invention, respectively, of the devices therein described. It was established, however, by a stipulation filed in the case, that lighters hereinafter referred to as the 'Blitz,' and which were of the same general design, utilized the same alloy, and operated on the same principle as those of the patents in suit, were imported from Germany into and placed on sale in this country as early as November 1, 1909. The plaintiff then deemed it necessary, as it undoubtedly was, if it was to succeed in this suit, to show that the inventions of its patents were made prior to that date.

It is claimed that the Pomeroy invention was conceived and reduced to practice in the month of March, 1908, and the Gould invention 'not earlier than the summer and not later than the fall of 1909. ' Whether or not it is the rule that the plaintiff must establish that the date of the inventions were prior to the time when the Blitz lighter was placed on sale in this country, 'beyond a reasonable doubt,' as some cases hold Thayer v. Hart, 20 F. 693 (C.C.S.D.N.Y.), I think it has failed to prove by evidence 'strong and convincing,' or 'to the satisfaction of the court' (Hunnicutt Co. v. Gaston Co., 218 F. 176, 134 C.C.A. 56 (C.C.A. 3d...

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