Cimiotti Unhairing Co. v. Nearseal Unhairing Co.
| Decision Date | 09 April 1902 |
| Docket Number | 115. |
| Citation | 115 F. 507 |
| Parties | CIMIOTTI UNHAIRING CO. et al. v. NEARSEAL UNHAIRING CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Albert M. Austin and William A. Redding, for appellant.
Louis C. Raegener, for appellees.
Before WALLACE, Circuit Judge, and COXE and HAZEL, District Judges.
Infringement is the only question involved. The appellant contends that it does not infringe for two reasons, which are stated in the brief as follows:
'First. Because it has no 'mechanism substantially as described, whereby the brush is moved upward and forward into a position in front of the stretcher-bary.' Second. Because the defendant's machine does not contain a 'separating' brush.
The proof of the prior art is substantially the same as in the American Unhairing Mach. Co. Case, 115 F. 498. The only difference worthy of comment is that in the case at bar the worthlessness of the machine of the Lake patent is affirmatively established. It now appears that in 1881 over $2,000 was expended by parties in New York to build a working machine under the Lake specification and secure a United States patent therefor. After several months of unsuccessful effort the whole project was abandoned, the promoters not deeming the patent of sufficient value to warrant the payment of the final fee of $20. An attempt was made to unhair pelts with the machine, but holes were cut in them and they were badly damaged. Instead of receiving profits the owners of the machine had to pay damages for the skins they had spoiled.
The court has already decided that Sutton, having made the first commercially successful brush machine, is not confined to the precise mechanism described and shown and is entitled to a fair range of equivalents. We have held that a stationary brush is the equivalent of the brush of the eighth claim, provided it accomplishes the identical result. Sutton reaches this result by the so-called 'planetary motion' of the brush Mischke by the movable stretcher bar and the appellant by a large segmental brush which is revolved upward and forward into a position in front of the stretcher-bar. The bristles come in contact with the hair and fur on the narrow edge of the bar, form a 'part' there and then move downward. The action of the brush permits the stiff hair to stand up and bends down the fur on the off side of the bar away from the knives or plucking jaws. The brush is 9 1/2 inches radius and is mounted on a rotary shaft in fixed bearings, about 5 1/2 inches below the plane of the stretcher-bar, it works intermittently like the patented device, and before the bristles revolve and again contract with the fur, the plucking jaws have done their work in removing the stiff hairs.
The argument that the appellant does not use a 'separating' brush proceeds upon lines similar to those discussed in the American Company Case. The Sutton specification contains the following description of this brush:
The appellant contends that this language must be construed literally, that it describes a brush endowed with almost human attributes, a brush capable of selecting the stiff hairs with unerring judgment and permitting them to stand while at the same time it brushes down the soft fur. It requires no technical knowledge to perceive that such a brush never did exist and never can exist. The stiff hairs are much longer than the fur and it is impossible for any rotary brush, hard or soft, to reach the latter without bending down the former. Sutton knew this and every one connected with the unhairing art knew it. He intended to describe the actual operation of the brush as he saw it in practice and not some visionary and untried theory. He was dealing with an actuality, not an absurdity. He intended to say, what...
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Cimiotti Unhairing Co. v. Nearseal Unhairing Co.
...to the appellant from the case as it was presented to this court upon an appeal from an order granting a preliminary injunction. 115 F. 507, 53 C.C.A. 161. All the involved having been previously determined by this court adversely to the appellant, we think it would be unseemly to review th......
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Cimiotti Unhairing Co. v. Nearseal Unhairing Co.
...Judge. It is not perceived that the record here presented is materially different from that which was before the circuit court of appeals (115 F. 507) on appeal from the order for injunction. No additional prior patent or publication is introduced. No additional prior machine is shown. The ......