Art Metal Works v. Abraham & Straus

• Decision Date: 11 December 1939
• Docket Number: No. 1.,1.
• Parties: ART METAL WORKS, Inc., v. ABRAHAM & STRAUS, Inc.
• Court: U.S. Court of Appeals — Second Circuit

107 F.2d 940 (1939)

ART METAL WORKS, Inc., v. ABRAHAM & STRAUS, Inc.

No. 1.

Circuit Court of Appeals, Second Circuit.

November 20, 1939.

Writ of Certiorari Denied December 11, 1939.

Ward, Crosby & Neal, of New York City (Kenneth S. Neal and Joseph Lorenz, both of New York City, of counsel), for complainant-appellant.

Haaren & Barrett, of New York City (David S. Kane, of New York City, of counsel), for defendant-appellee.

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

Writ of Certiorari Denied December 11, 1939. See 60 S.Ct. 293, 84 L.Ed. ___.

AUGUSTUS N. HAND, Circuit Judge.

This suit for infringement by the defendant of Claims Nos. 7, 13 and 14 of U. S. Patent No. 1,673,727 to one Aronson through the sale of a cigar lighter known as "Trig-a-lite" came before this court in 1934. Upon that appeal a decree of the District Court dismissing the suit for noninfringement was affirmed on the ground that "Trig-a-lite" was a spring actuated device that did not come within the element of the claims which called for a "rack and gear" or "gear means". Art Metal Works v. Abraham & Straus, 2 Cir., 70 F.2d 639. We have since sustained a petition for review and the cause again comes before us for a rehearing upon the original record.

The Aronson patent also came before this court in a prior suit between the same parties in which Claims 7, 13 and 14 were held valid and infringed by a lighter known as "Roller Bearing." Art Metal Works v. Abraham & Straus, 2 Cir., 61 F.2d 122. It is argued on behalf of the appellant in the present suit that the "Trig-a-lite" lighter so closely resembles "Roller Bearing" that it falls within the claims and should have been held to infringe on the reasoning and authority of the decision in the prior suit. We think that the decree there is essentially res judicata as to the validity of the claims.

It is argued that the Wolf German Patent No. 221,577, which was not before the court in the prior suit, anticipates Aronson. But this is not so, for the Wolf Patent shows a large cap which is a part of the receptacle. This cap forms a cumbersome outer housing. The lighter has a telescopic shell instead of a finger piece and is little nearer to Aronson than was the British Patent to Bergmann or the Austrian Patent to Hauzenberger which we held in our first opinion did not anticipate the Aronson lighter or deprive it of validity.

The claims read as follows:

"7. A lighter having in combination a receptacle, an abradant wheel journalled on top of the receptacle, a pyrophoric member, means including a spring projecting said pyrophoric member into engagement with said wheel, a wick extending into said receptacle and projecting from the top thereof on one side of the wheel, a finger piece located on the other side of said wheel, said finger piece being adapted to be pressed downwardly, a spring tending to force said finger piece upwardly, a snuffer for said wick, and means whereby upon pressing said finger piece downwardly said wheel is rotated by manual pressure to ignite the wick and said snuffer is removed from the wick, said last mentioned means comprising a rack on the finger piece and a gear operated thereby, and pawl and ratchet means whereby the wheel is operated by the gear."

"13. A lighter having in combination a receptacle, said receptacle being elongated in horizontal cross-section, an abradant wheel centrally disposed over the top of said receptacle and journalled about a horizontal axis, a wick projecting from the top of the receptacle on one side of the wheel, a snuffer for the wick, a finger piece on the opposite side of the wheel from the wick, said finger piece being mounted independently of the snuffer, and means whereby operation of said finger piece will operate the wheel and snuffer by manual pressure, said last mentioned means including gear means operated by the finger piece and acting to operate both the snuffer and the wheel."

"14. A lighter having in combination a receptacle, an abradant wheel journaled on top of said receptacle, a pyrophoric member, means projecting said pyrophoric member upwardly from the top of said receptacle into engagement with said wheel, a wick extending into said receptacle and projecting from the top thereof on one side of the wheel, a finger piece carried on top of the receptacle and adapted to be pressed downwardly, a spring tending to force said finger piece upwardly, a snuffer for said wick, and means whereby upon pressing said finger piece downwardly said wheel is rotated by manual pressure to ignite the wick and said snuffer is removed from the wick, said last mentioned means comprising a rack on the finger piece and a gear member operated thereby."

In our original opinion describing the patented device and holding the above claims infringed by the Roller Bearing lighters sold by the defendant we said (61 F.2d 122):

"The lighter mechanism comprises a fuel receptacle which is flat or elongated in horizontal cross section on the top of which the working parts are mounted. They are mounted in a certain order, namely, the wick with its snuffer cap is at one end of the upper part of the receptacle, in the center is a rotatable wheel, which the patent calls an abradant wheel, and to the right of that is a finger piece which is used by the operator to effect the desired result of lighting the wick, which is under the snuffer cap and extends down into the fuel receptacle. The abradant wheel is so arranged that it rotates in one direction only, which means that the sparks as generated are projected toward the wick. This arrangement of the three main parts of the device, namely, the wick with its snuffer cap, the wheel, and the finger piece, was called by Mr. Hammer (complainant's expert) `a one, two, three arrangement.' The wick and its flame are far removed from the thumb so as to avoid possibility of burns when striking a light, and the construction is so thin and flat as to be adapted to be carried in the pocket. Moreover, the device has no cover or lid, and yet the parts are so arranged that there is no likelihood of their being caught in the clothing. The moment the finger piece is released, a spring forces it up, the snuffer is replaced, and the wick covered automatically.

* * *

"Aronson made an advance over the prior development of cigar lighters by his arrangement of operating parts, so that the wick was at the side furthest away from the finger of the operator; the snuffer, abradant wheel, and thumb piece were on the top of the receptacle; all three were free from a cumbersome outer housing and the manual actuation of snuffer and abradant wheel by the finger piece through gears enabled the operator to obtain just the shower of sparks he might require at the moment."

We also said in the original opinion that in the "Roller Bearing" lighter the pin employed is: "in substance and effect a rack with but one tooth, and the slot in which it engages amounts...