Clark Blade & Razor Co. v. Gillette Safety Razor Co.

• Decision Date: 01 February 1912
• Docket Number: 1,520.
• Citation: 194 F. 421
• Court: U.S. Court of Appeals — Third Circuit
• Parties: CLARK BLADE & RAZOR CO. v. GILLETTE SAFETY RAZOR CO. [1]

194 F. 421

CLARK BLADE & RAZOR CO. v. GILLETTE SAFETY RAZOR CO. ^[1]

No. 1,520.

United States Court of Appeals, Third Circuit.

February 1, 1912

McCarter & English, for appellant.

M. B Philipp and James Q. Rice (Thomas W. Pelham and Clifford E Dunn, of counsel), for appellee.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below the Gillette Safety Razor Company, owner of patent No. 775,134, granted November 15, 1904, to King C Gillette, for a razor, filed a bill against the Clark Blade &amp Razor Company, charging infringement of certain claims thereof. In an opinion reported at 187 F. 149, that court held the patent valid and the claims in question infringed. From a decree to that effect the respondent appealed to this court. The opinion of the lower court is so thorough and exhaustive that an extended discussion of the questions involved could be but a restatement.

Making, then, the opinion of that court by reference the basis of our own, we content ourselves with briefly stating the conclusions to which a study of the record leads. In doing so, we take, for illustration, as did the court below, claim 2, as embodying the crux of the case. These conclusions are: First, the invention of Gillette is substantially set forth in claim 2, viz., 'as a new article of manufacture, a detachable razor-blade of such thinness and flexibility as to require external support to its cutting edge'; second, the proofs carry Gillette's invention to 1895; third, Gillette's device was generic, original, and not anticipated in the razor art; fourth, the proceedings in the Patent Office whereby Gillette substituted a second application for his first were lawful and the subject-matter of the two was substantially the same; and, fifth, claim 2 is valid and infringed.

In support of the second proposition nothing need be said save to refer to the lower court's opinion. The facts cited therein justify such conclusion.

As to the third proposition, we may say that a careful study of the razor-making art satisfies us that a ribbon or wafer razor-blade, so thin as to require external support of its cutting edge, was original with Gillette, and a like study of the art of making razor steel, its chemical qualities, its tempering and the blade contour obtained to aid honing, satisfy us that the Gillette blade was a radical departure from the whole teaching, practice, and trend of the prior art. As to such prior art not anticipating Gillette's device, we can add nothing to the thorough examination and discussion in the opinion below.

A study of the file-wrapper and the proceedings in the two applications shows that Gillette, while he abandoned his first application and substituted therefor a second, did not abandon his invention. This substitution was proper procedure. Godfrey v. Eames, 1 Wall. 324, 17 L.Ed 684; Corrington v. Westinghouse (C.C.) 173 F. 76. We also find the substance of the second application had been embodied in the first. In that respect we have the action of the Patent Office, which, with full knowledge of the previous application, allowed such substitution and based its grant of the patent on the basis of the substantial identity of the two applications. The presumption that arises in such case must, as in a reissue, be overcome 'only,' as said in Smith v. Goodyear, 93 U.S. 499, 23 L.Ed. 952, 'by showing from a comparison of the original specification with that of the reissue that the former does not substantially describe what is described and claimed in the latter. ' A critical examination of the file-wrapper satisfies us that the first application contained a full disclosure by Gillette of his invention, and the additional matter in the second was a mere amplification of the...