Calmar, Inc. v. Cook Chemical Co.

Citation336 F.2d 110
Decision Date09 October 1964
Docket NumberNo. 17540,17541.,17540
PartiesCALMAR, INCORPORATED, Appellant, v. COOK CHEMICAL COMPANY, Appellee. COLGATE-PALMOLIVE COMPANY, Appellant, v. COOK CHEMICAL COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert F. Conrad of Watson, Cole, Grindle & Watson, Washington, D. C., made argument for appellants, Calmar, Inc., and Colgate-Palmolive Co. Francis G. Cole and Raymond P. DeMember of Watson, Cole, Grindle & Watson, Washington, D. C., and James P. Burns, Washington, D. C., of counsel, were with him on the brief for Calmar, Inc.; together with Howard A. Crawford, and Jack W. R. Headley of Lathrop, Righter, Gordon & Parker, Kansas City, Mo., and George H. Mortimer, New York City, of counsel, for Colgate-Palmolive Co.; and William H. Curtis, Kansas City, Mo., also for appellant Calmar, Inc.

Gordon D. Schmidt of Hovey, Schmidt, Johnson & Hovey, Kansas City, Mo., made argument for appellee and was on the brief with George T. Morton, Jr., of Watson, Ess, Marshall & Enggas, Kansas City, Mo.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Appellants, Calmar, Incorporated and Colgate-Palmolive Company, brought separate actions for declaratory judgment against appellee, Cook Chemical Company, seeking a ruling of invalidity and noninfringement of United States Patent No. 2,870,943 filed on March 4, 1957 and issued on January 27, 1959 to inventor Baxter I. Scoggin, Jr. Cook had acquired ownership of the patent and counterclaimed alleging its validity, infringement by both appellants and unfair competition on the part of Colgate. All actions were consolidated for trial, but hearing on the unfair competition charge against Colgate was deferred pending the outcome of the issues of validity and infringement. Jurisdiction and existence of a justiciable controversy obtain. The District Court in an opinion published in 220 F.Supp. 414 found the patent valid and infringed, and we affirm.

The Scoggin patent in issue will be referred to as Cook-Bakan 2 and the accused device as Calmar SS-40. The undisputed factual background may be briefly recounted. Cook has been in the household insecticide business since 1945. Until 1947 Cook utilized metal sprayers as a dispenser for its product, trademarked "Real Kill", but in that year it first purchased newly developed plastic sprayers from Calmar as a sales promotion gimmick and attached them to the outside of its bottles of insecticide with a separate holder. Successful sales reaction to the idea necessitated its continued practice. Prior to 1956 Cook purchased its sprays from Calmar, but thereafter manufactured its own sprayers through a subsidiary, Bakan Plastics Company. In 1954 Colgate-Palmolive entered the household insecticide field with an aerosol container labeled "Kan Kill". In 1958 Colgate was marketing its "Kan Kill" in liquid, as well as aerosol, form, using a Calmar sprayer attached separately to a glass container, the combination of which resembled Cook's bottle of liquid "Real Kill" with accompanying Bakan sprayer. Marketing of both manufacturers' products with separately attached plastic sprayers posed extra handling and expense problems. The bottler had to affix the cardboard or plastic holder on the neck of the bottle and insert therein the sprayer. More vexatious were the problems of breakage of the flimsily secured sprayer during shipment and pilfering while on the retailer's shelf. With the advance of the pressurized aerosol container, competition became acute due to the convenient shipment and use of the aerated sprayer, which required only that the housewife remove the sprayer cap and depress a button releasing the gasified insecticide. The liquid insecticide makers were aware of their product's shipping and operation shortcomings, and plagued by the apparent need for a container with an integrated sprayer-pump which could be safely shipped without breakage or leakage. Despite the extensive research and experimentation given the problem by Calmar, Cook and others for a period of some ten years, no solution was forthcoming until conception and commercialization of the Cook-Bakan 2, described by its inventor as a "Pump-Type Liquid Sprayer Having Hold-Down cap".

The sprayer pump, although not the patentable device in suit, has as its upper element, a head containing an orifice, connected with an internal pump through which a dip tube extends to the liquid in the container below. When the sprayer head is depressed, the pump is actuated and causes the liquid in spray form to be emitted.

It was a simple matter to incorporate the sprayer in the container rather than employ the ordinary non-perforated cap with sprayer separately attached, but such an arrangement did not lend itself to shipping because the sprayer would accidentally pump the liquid out in transit. The sprayer head had to be combined and shielded with some type of overcap which maintained the plunger in a depressed position minimizing leakage from the pump of the low viscous insecticide or other similar liquids, while retaining any such leakage within the overcap through a liquid-tight seal until the cap was removed and the product put into use by the consumer.

Scoggin described his answer to these liquid manufacturers' dilemma in the specifications of his patent application as an invention relating to "improvements in structures for dispensing liquids wherein is provided a spray-type hand pump mounted within a container for the liquid through use of the closure cap of such container". Of the four claims on which the Patent Office granted the patent, we are concerned only with Claims 1 and 2.1

The object of the patent is to eliminate the old outside attached sprayer and supplant it with a sprayer enclosed in the container in such a fashion that the sprayer head will be depressed, protected, and sealed in order that the product would lend itself to transportation and handling without breakage or leakage. Claim 1 described a completely integrated device which assertedly accomplished this purpose by the assemblage of corresponding internal threads in the over-cap which screw onto corresponding external threads of the sprayer head's collar with an allowance for a space between the lower edge of the over-cap and the container cap to insure a torqued fit. The overcap, while holding the sprayer head depressed, also provides for a seal resulting from a raised annular rib around the top of the collar engaging the periphery of three surfaces formed by a downwardly facing shoulder on the underside of the over-cap above the threads. An expert testifying on behalf of appellee described the device's novel contribution to the industry as:

"The first commercially successful, inexpensive integrated shipping closure pump unit which permitted automated assembly with a container of household insecticide or similar liquids to produce a practical, ready-to-use package which could be shipped without external leakage and which was so organized that the pump unit with its hold-down cap could be itself assembled and sealed and then later assembled and sealed on the container without breaking the first seal."

Validity of the Patent. The statute provides that a patent shall be presumed valid and the burden of establishing invalidity rests on the party asserting it. 35 U.S.C.A. § 282. The issue of patentability of a new combination of old elements to form invention must, however, be approached keeping in mind the more exacting standard long required by the Supreme Court. In Selmix Dispensers, Inc. v. Multiplex Faucet Co., Inc., 277 F.2d 884 (8th Cir. 1960), we recognized the Supreme Court's admonition in Great Atlantic and Pacific Tea Co. v. Super-Market Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950) that "The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of...

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