Bissell Inc. v. ER Wagner Manufacturing Company

• Decision Date: 08 May 1962
• Docket Number: Civ. A. No. 61-C-88.
• Citation: 204 F. Supp. 801,133 USPQ 469
• Parties: BISSELL INC., Plaintiff, v. E. R. WAGNER MANUFACTURING COMPANY, Wagner Products Corporation, and Glamur Products, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

204 F. Supp. 801

133 USPQ 469

BISSELL INC., Plaintiff, v.E. R. WAGNER MANUFACTURING COMPANY, Wagner Products Corporation, and Glamur Products, Inc., Defendants.

Civ. A. No. 61-C-88.

United States District Court E. D. Wisconsin.

May 8, 1962.

COPYRIGHT MATERIAL OMITTED

Elwin A. Andrus and Eugene R. Sawall, of Andrus & Starke, Milwaukee, Wis., for plaintiff.

James P. Brody, of Foley, Sammond & Lardner, Gerrit D. Foster and Paul R. Puerner, of Michael, Spohn, Best & Friedrich, Milwaukee, Wis., for defendants.

GRUBB, District Judge.

This action arises under the patent laws of the United States.Plaintiff, Bissell Inc.(hereinafter referred to as "Bissell"), is a Michigan corporation having its principal place of business at Grand Rapids, Michigan.It is the owner by assignment of PatentNo. 2,975,462(hereinafter referred to as Patent '462) and PatentNo. 2,976,559(hereinafter referred to as Patent '559).Defendants, E. R. Wagner Manufacturing Company and Wagner Products Corporation, are Wisconsin corporations having their principal place of business at Milwaukee, Wisconsin.Defendant, Glamur Products, Inc., is a New York corporation with an office in Milwaukee, Wisconsin.E. R. Wagner Manufacturing Company wholly owns Wagner Products Corporation and owns a majority of the stock of Glamur Products, Inc.

Following trial on affidavits and oral testimony, Bissell's motion for a preliminary injunction to restrain the alleged infringement of certain claims of one of the patents in suit was denied on July 7, 1961.Thereafter, and prior to the final trial of the case, the parties stipulated as follows:

Plaintiff would rely solely upon claims 3, 8, 13, and 15 of Patent '462, and upon claims 8 and 11 of Patent '559 at the final trial.

Defendants would rely solely upon the following defenses at said trial:

1.That claims 3, 8, 13, and 15 of Patent '462 and claims 8 and 11 of Patent '559 are invalid as lacking patentable invention over the prior art under § 103,Title 35 U.S.C.

2.That claims 3, 8, 13, and 15 of Patent '462 and claim 11 of Patent '559 are invalid for aggregation.

3.That claims 8 and 11 of Patent '559 are invalid for double patenting.

4.That claim 8 of Patent '559 is not infringed.

5.That Bissell has misused its patents and has unclean hands.

Bissell denies the charge of patent misuse and unclean hands, and further asserts that in any event it has purged itself therefrom.

The parties further agreed that there is an issue as to the date of the commencement of any liability for damages.

The issue of damages was severed prior to final trial of the case.In addition to the evidence adduced at the trial, the court's findings and conclusions as set forth hereafter are based on the evidence offered on the motion for preliminary injunction and on certain affidavits which were received by agreement of the parties after conclusion of the trial.

PATENTS IN SUIT

The patents in issue relate to an apparatus for applying detergent to rugs and the like, commonly called a rug shampoo applicator.

Patent '462

The device (hereinafter also referred to as the "Bissell applicator") disclosed by the claims in issue of this patent consists of the following elements:

1.A body member of laterally spaced walls with a downwardly spaced channel housing.

2.A handle, connected to said body member, provided with a hand piece.

3.A liquid receptacle connected to the body member.

4.A longitudinally extending discharge conduit located in the body member.

5.An inlet to said discharge conduit in connection with the liquid receptacle.

6.A spring-seated valve for said inlet.

7.Means for manually controlling the spring-seated inlet valve with a finger piece positioned adjacent the hand piece of the handle.

8.An elongated cylindrical roller of resiliently compressible synthetic spongy material surrounding a rigid core.Said roller is rotatively mounted in substantially fixed bearings on the body member and positioned in noncontacting relation to the discharge conduit located in said body member.

9.Elongated, resiliently yieldable brushes supportedly mounted on the body member and having downwardly extending bristles.The brushes are positioned in a lateral noncontacting relation to the roller, sufficiently spaced to engage the nap surface in the path of the roller during manipulation of the apparatus without direct interference with the roller.

In carrying out the purpose of the apparatus disclosed in Patent '462 as set forth in the claims in issue of said patent, the roller receives the liquid detergent mix in controlled amounts through the discharge conduit from the liquid receptacle.The spongy, resiliently compressible material of the roller aerates the liquid absorbed by it to foam, generating said foam on deformation of the roller under pressure contact with the nap surface of the rug.The roller progressively produces foam and discharges same when rolled back and forth over the given surface under pressure from the upright handle and the weight of the device.The brushes located on either side of the roller control the deformation thereof by assuming part of the load of the device and thereby modify the foam generating function of said roller.The brush located in front of the roller conditions the nap of the rug for receipt of the foam, and the brush following the roller assists in working the foam into the nap surface.

The elements of the Bissell shampoo applicator thus interact and cooperate to accomplish the function of progressively producing detergent foam and applying the same uniformly to a surface to be cleaned with rapid distribution of the foam for the purpose of cleaning the surface without excessive moisture penetration of the rug.

Patent '559

The claims of Patent '559 in issue specify improvements in an apparatus for applying shampoo to rugs to attain certain manufacturing economies and to provide improved operation thereof.

Claim 8 defines a rectangular frame, removably mounted and carried by the end walls of the channel housing of the body member.The brush means of the device are carried by the sides of said removable frame, and the cylindrical roller is rotably carried by bearing supports in the ends thereof, generally parallel and between the brushes.

Claim 11 of Patent '559 positions the roller of the apparatus so that it normally extends downwardly beyond the bristle tips of the brushes to cause the partial compression of the roller before the bristles make contact with the rug.Claim 11 further specifies the securement of the rigid handle to the body member of the apparatus to provide tilting control upon the roller and brush treatment of the rug.

VALIDITY

Defendants contend that all claims in issue of Patents '462 and '559 lack patentable invention over the prior art under § 103 of Title 35 U.S.C.This section requires nonobviousness of the subject matter as a condition for patentability.A patent may not be obtained where

"* * * the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. * *"

Prior Art

Prior art patents cited by defendants in connection with Patents '462 and '559 are cited in the margin.¹

Prior Art as to Patent '462

Defendants rely principally on Davis, Dixon, Lichter, Rosen, Mitchell, and Abdo as pertaining to Patent '462.

Dixon, Rosen, Mitchell, and Abdo may be described generally as handle-operated, valve-controlled fountain type scrubbing brushes.Abdo, additionally, uses a synthetic sponge block located between two brushes and recessed from the plane of contact with the surface to be treated.

Davis is a fountain brush for painting and whitewashing, employing a roller with a brush on either side.The roller consists of a hollow, revolving cylinder covered with suitable cloth for the absorption of paint or whitewash and for leaving same upon the surface over which the device is passed.The brush following the roller smoothes off any of the applied material unevenly remaining upon the surface.

Lichter is a floor polishing device employing a fountain supplied roller of felt or other absorbent yielding material which serves as a medium for distributing the oil or other polishing liquid in frictional contact with a surface.

Additionally, the Bathurst patents, Sporer, Hodschar, Saffioti, and Elvy are cited as defining rollers having a foam-producing and applying capacity when supplied with an appropriate liquid.The Bathurst patents are for a combination mop, scrubber, and wringer.They employ a tubular mop of porous, resiliently compressible material such as cellulose sponge or air foam rubber, compressible for the purpose of squeezing out cleaning fluid and for picking up dirt particles in rolling or sliding contact with the surface to be cleaned.

Sporer discloses a window-washing device having a roller which serves as the washing element.This roller is covered with sponge or other material and is located between two squeegees.

Hodschar is a wet cleaning attachment for carpet sweepers.It employs a rotably mounted, liquid-distributing roller having a surface of some absorbent material which will absorb the liquid from its feeding mechanism and distribute the same upon the carpet.The device may be operated in conjunction with a rotary carpet sweeper or with a carpet brush for renovating the carpet simultaneously with the sweeping or brushing operation.

Saffioti employs a sponge covered cleaning roller in contact with a rug surface, and Elvy describes a sponge roller made from synthetic foam rubber for washing, cleaning, or polishing floors.

Prior Art as to Patent '559

Defendants rely on Henning and Abdo as most pertinent to the removable frame subassembly of claim 8, and on Sporer and Wisner as to the positioning of the roller...