494 F.2d 162 (7th Cir. 1974), 73-1050, Popeil Bros., Inc. v. Schick Elec., Inc.

Docket Nº:73-1050 to 73-1053.
Citation:494 F.2d 162, 181 U.S.P.Q. 482
Party Name:POPEIL BROTHERS, INC., Plaintiff-Appellant, v. SCHICK ELECTRIC, INC., et al., Defendants-Appellees.
Case Date:March 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 162

494 F.2d 162 (7th Cir. 1974)

181 U.S.P.Q. 482

POPEIL BROTHERS, INC., Plaintiff-Appellant,

v.

SCHICK ELECTRIC, INC., et al., Defendants-Appellees.

Nos. 73-1050 to 73-1053.

United States Court of Appeals, Seventh Circuit.

March 21, 1974

Argued Nov. 28, 1973.

Page 163

George R. Clark, Neil M. Rose, Walther E. Wyss, Mason, Kolehmainen, Rathburn & Wyss, Chicago, Ill., for Sunbeam Corp. and Northern Electric Co.

Gerald Levy, Kane, Dalsimer, Kane, Sullivan & Kurucz, New York City, John D. Dewey, Lockwood, Dewey, Zickert & Alex, Chicago, Ill., for Schick, Electric, Inc. and Schick Service, Inc.

Edward W. Osann, Jr., James B. Muskal, Wolfe, Hubbard, Leydig, Voit & Osann, Ltd., Chicago, Ill., Charles R. Miranda, Bridgeport, Conn., for Sperry Rand Corp.

Arlie O. Boswell, Jr., Hibben, Noyes & Bicknell, Chicago, Ill., for Aldens, Inc.

Before CLARK, Associate Justice, [*] GRANT, Senior District Judge, [**] and NOLAND, District Judge. [***]

NOLAND, District Judge.

Popeil Brothers, Inc., the owner of U.S. Patent No. 3,565,083, brought suit in the District Court seeking injunctive relief and damages charging each of the defendants with infringement of and inducement to infringe the patent in suit. 1 The defendants denied the infringement allegations and asserted that the patent in suit was invalid.

Following a trial before the court without a jury, the District Court entered findings of fact and conclusions of law and dismissed the complaints, holding that the patent in suit was invalid as anticipated by prior art and for obviousness, that the plaintiff misused the patent, and that the defendants neither infringed it nor induced its infringement. The plaintiff appealed.

The issues presented by the plaintiff's contentions on appeal are:

(1) Whether the District Court erred in finding and concluding that the Popeil patent was anticipated by prior Japanese publications, the Churchill U.S. Patent No. 1,809,510 and the Churchill Canadian Patent No. 295,443.

(2) Whether the court erred in finding and concluding that the Popeil patent was obvious under Section 103 of the Patent Act.

(3) Whether the court erred in finding and concluding that the defendants neither infringed nor induced infringement of the Popeil patent.

(4) Whether the court erred in finding that plaintiff misused the patent in suit.

Page 164

The cause was heard on the pleadings, stipulations, answers to requests for admission, testimony of witnesses, including expert witnesses, depositions and exhibits on the basis of which the court made fifty-nine detailed findings as to the factual issues presented. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure (28 U.S.C.A.) the trial court's findings of fact may not be set aside unless clearly erroneous. The scope of our review of such findings is therefore limited to a determination of whether they are clearly erroneous. Wahl v. Carrier Manufacturing Co., 452 F.2d 96, 99 (7th Cir. 1971); Reese v. Elkhart Welding and Boiler Works, Inc., 447 F.2d 517, 520 (7th Cir. 1971); George R. Churchill Company v. American Buff Co., 365 F.2d 129, 130 (7th Cir. 1966); Wahl v. Carrier Manufacturing Co., 358 F.2d 1, 3 (7th Cir. 1966).

'If they find support in the evidence, albeit they involve resolution of conflicting testimony, we are bound thereby and there remains but the question of whether or not the court applied the correct legal criteria in reaching the ultimate conclusion it did. Absent a definite or firm conviction that a mistake has been made we must affirm.' Minnesota Mining and Manufacturing v. Permacel-LePage's, Inc., 334 F.2d 820, 822 (7th Cir. 1964). See Briggs v. M. & J. Diesel Locomotive Filter Corp., 342 F.2d 573, 574 (7th Cir. 1965).

The Popeil patent is directed to a method of setting hair by wrapping it around a hair curler previously moistened and heated by immersing it in an atmosphere of steam. The sole claim of the patent in suit relevant to this action is claim 1, which states:

'1. In the method of curling hair by using a cylindrical curler in which the hair is wound tightly on the curler and fixed in such tightly wound engagement until the hair is curled, the improved steps of

preheating the cylindrical curler in a steam chamber out of contact with any boiling water therein,

removing the heated curler from the steam chamber after its exterior has attained its maximum effective moisture content of retained distilled water, and

promptly wrapping a strand of hair about the curler in tight engagement thereby entrapping the distilled water retained on the curler, whereby

the moisture transfer at...

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