675 F.2d 10 (1st Cir. 1982), 81-1403, Carter-Wallace, Inc. v. Gillette Co.
|Docket Nº:||81-1403, 81-1426.|
|Citation:||675 F.2d 10|
|Party Name:||214 U.S.P.Q. 497 CARTER-WALLACE, INC., Plaintiff-Appellant, v. The GILLETTE COMPANY, Defendant-Appellee. CARTER-WALLACE, INC., Plaintiff-Appellee, v. The GILLETTE COMPANY, Defendant-Appellant.|
|Case Date:||April 07, 1982|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Argued Dec. 11, 1981.
Herbert P. Kenway, with whom George W. Crowley, Edmund R. Pitcher, and Kenway & Jenney, Boston, Mass., were on brief, for Carter-Wallace, Inc.
Robert W. Furlong, with whom Frank P. Porcelli, Gregory A. Madera, and Fish & Richardson, Boston, Mass., were on brief, for The Gillette Co.
Before CAMPBELL and BOWNES, Circuit Judges, WYZANSKI, [*] Senior District Judge.
BOWNES, Circuit Judge.
These appeals arise from a patent infringement action brought by Carter-Wallace, Inc., against The Gillette Company. The patent-in-suit covered the formula for an aerosol antiperspirant underarm spray called ARRID EXTRA DRY (Arrid). After a jury-waived trial, the district court, 531 F.Supp. 840, in a comprehensive well-written opinion found and ruled that Carter-Wallace's patent was invalid for obviousness and lack of criticality. The court specifically rejected Gillette's claim of anticipation. It also ruled that if the patent were valid, Gillette would be liable for infringement. The district court further found that the doctrine of file wrapper estoppel was not applicable. Gillette's motion for attorney's fees pursuant to 35 U.S.C. § 285 1 was
denied. Carter-Wallace appeals from the findings of obviousness and lack of criticality. Gillette cross-appeals the findings on anticipation and infringement.
Sometime after man emerged from the primeval state, it became apparent that the odor given off by the human body during and after perspiration was not particularly pleasing and the more civilized humans became, the more offensive became the smell of sweat. We are informed by reliable authority that perspiration itself does not have an unpleasant odor; it is the decomposition by bacteria of organic matter contained in the perspiration that smells. Because of the nature of the beast, the armpits are a particularly strong source of body odor. The use of clothes, which inhibits the free flow of air over the body, compounds the problem. Unfortunately for our olfactory senses, underarm sweating is a natural and necessary function of the human body. Man has striven mightily since time immemorial to reduce or disguise the after odor of body perspiration. For centuries, soap and perfume were the main weapons in man's continuing battle to smell sweet or, at least, avoid smelling too badly. Our era, in line with its general progress in science and technology, has seen the advent of two new weapons in the continuing war against body odor, the deodorant and the antiperspirant. The deodorant reduces odor by covering it up; it acts like and is indeed similar to perfume. The antiperspirant, on the other hand, goes to the root of the problem; it reduces perspiration. At first, deodorants and antiperspirants were applied in the form of creams and lotions. Then came a new breakthrough; the use of an aerosol spray to apply the product. This patent case is but one battle in the continuing struggle by cosmetic companies for access to the armpits of America. The amount of money involved in selling products promising to eliminate or reduce underarm perspiration and odor can be gauged by the fact that the inventors of the patent-in-suit were paid royalties of almost nine million dollars ($8,826,167.41).
Starting in the early sixties there was a concentrated effort by a number of companies to develop an aerosol spray for the effective application of an underarm antiperspirant. One of the problems was that the antiperspirant most commonly used, aluminum chlorohydrate, was a salt which when dissolved in water was corrosive to ordinary metals. The aluminum chlorohydrate also had a tendency to clog the apertures from which the aerosol spray was propelled. These side effects of aluminum chlorohydrate were due to the same thing that made it effective as an antiperspirant, its reaction with water. In order to be effective as an antiperspirant, the particles of aluminum chlorohydrate must be dissolved in water so as to produce aluminum ions which act as an astringent, reducing perspiration. Most of the aerosol sprays contained particles of aluminum chlorohydrate in an aqueous solution so they would be effective antiperspirants. Unfortunately, an...
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