Wahl Clipper Corporation v. Andis Clipper Co., 4939.

Decision Date20 July 1933
Docket NumberNo. 4939.,4939.
PartiesWAHL CLIPPER CORPORATION v. ANDIS CLIPPER CO. et al.
CourtU.S. Court of Appeals — Seventh Circuit

Max W. Zabel and Greek Wells, both of Chicago, Ill., for appellant.

Warren G. Wheeler, S. L. Wheeler, and Leverett C. Wheeler, all of Milwaukee, Wis., for appellees.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

ALSCHULER, Circuit Judge.

Appellant brought this suit to recover damages and restrain further infringements of claim 7 of its patent No. 1,832,437, which covers vibrators of a type used for massage and similar purposes. The validity of the claim is the only question involved, for infringement is not disputed if the claim is valid.

At the conclusion of the trial, the court disposed of the case saying: "Claim 7 is held invalid for aggregation."

It supplemented this statement by formal findings of fact, the substance of which was that the patent was owned by appellant; that claim 7 only is involved; that appellee Andis Clipper Company manufactured and appellee Beauty Appliance Corporation sold the product (Exhibit 7) within the Eastern District of Wisconsin after appellant's patent was issued; that claim 7 relates solely to an aggregation of an old form of vibrator mechanism with an old form of casing; that the form of casing defined by claim 7 was designed by Andis, president of appellee Andis Clipper Company, before the date of the invention claimed for the patent in suit; that the devices of patent No. 1,682,447, which covered both hair clipper and vibrator, antedated the patent in suit; that in the light of the prior art the adaptation of the Andis casing to a well known vibrator mechanism was a matter of mechanical design perceptible to any person skilled in the art; and that claim 7 required merely the non-inventive adaptation of prior art tool handles to the operator's hand.

As conclusions of law, the court found that claim 7 is void for lack of invention and is void for anticipation by the device manufactured by Van Osdel.

In the application for appellant's patent, Wahl, the patentee, described his invention and its purposes rather fully. He said:

"My invention relates to vibrators * * *.

"It is a purpose of this invention to provide a device of this character which shall be easy to manipulate or hold without the provision of an extended handle.

"* * * to provide a vibrator * * * with a container or housing that may readily be grasped by the hand of the operator and firmly held so that there is no danger of it twisting out of the operator's hand and so that it may be properly directed to give the most advantageous results.

"* * * to provide a vibrator * * * with a container which is adapted to serve as a handle and which container may be readily detached in sections from the vibrator to permit access to the interior thereof.

"* * * to provide in a device of this character novel means for resiliently supporting the movable armature on the electro-magnet."

After describing in detail the various parts of the vibrator, he said:

"By having the weight distributed lengthwise of the casing and having the vibrator carried by the armature adjacent the front end of the casing so as to have the work pressure and maximum reaction at the one end of the casing in order to cause a turning movement in a plane lengthwise of the casing, the vibration at the other end is materially lessened. By having the tail piece in a generally diagonally opposite position with respect to the place of pressure application, the turning movement can be opposed by the smaller fingers of the operator's hand with but little of the tiring pounding or vibration upon them.

"The heavy core of the armature together with the winding and the housing makes a heavy mass that is not subject to an objectionable reaction due to the vibration of the light armature 14 and the massage tool carried thereby. Furthermore, in view of the manner in which the armature is mounted, heavier pressure on the massaging device brings the armature closer to the electro-magnet and thus increases the magnetic pull so that the degree of vibration obtained is substantially increased at will without adjustment."

The novelty of claim 7 resides in the structure of the casing, the location of the vibrator in relation to the casing, and the distribution of weight in the electrical mechanism.

Vibrators were, of course, old. Generally speaking, a vibrator necessitates four elements: (1) A casing wherein the electro-magnetic means for actuating the vibrator is housed; (2) said electro-magnetic means; (3) a carrying armature located either at the end of the casing or extending perpendicularly from the casing; and (4) a handle for the operator to hold.

It is the theory of appellant that the novelty upon which his claim of invention is predicated lies in the particular type of its structure, not in the introduction of new elements nor in the elimination of old elements of the combination. In other words, asserted inventibility is traceable to the particular form, weight, and size of the casing, coupled with the position of the vibrator in relation to the casing, the distributed weight of the vibrator actuator, and the shaping of the casing so as to use it as a handle.

Claim 7, divided into its elements showing the limitations of each element, reads as follows:

An electro-magnetic vibrator having:

An elongated casing provided therein with electro-magnetic means for actuating a vibrator carrying armature,

Said electro-magnetic means being so arranged as to distribute the weight throughout the length of the casing.

An armature resiliently mounted in the casing whereby to swing toward and away from the front of the casing under the influence of said electro-magnetic means;

Said armature carrying a vibrator at one end of said casing whereby the pressure of the vibrator against the work exerts a turning movement tending to rotate said casing and said casing having substantially diagonally opposite the vibrator carrying end of the armature

A tailpiece forming a reduced end extension flush with the back of said casing which serves as a grip to prevent turning of the casing.

It will thus be seen that the combination consists of four elements: (a) A casing; (b) electro-magnetic means for actuating a vibrator; (c) an armature carrying a vibrator; and (d) a tailpiece which is a part of the casing and serves as a handle. Each element is modified by limiting clauses which narrow the claim as a whole. For example, the electro-magnetic means which constitute the heavier part of the mechanism must have its weight distributed throughout the length of the casing. The armature must be resiliently mounted in the casing so as to swing as specified. Likewise, the armature must be so constructed as to carry a vibrator at one end of the casing so that the vibrator will react to...

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    ...little, if any, weight on the question of the patentable invention as distinguished from anticipation. Wahl Clipper Corporation v. Andis Clipper Co., 66 F.2d 162, 165 (7 Cir., 1933); Campbell v. Mueller, 159 F.2d 803, 809 (6 Cir., 1947); Holstensson v. Webcor, Inc., 150 F.Supp. 441 (D.C., I......
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