Cover v. Chicago Eye Shield Co.

• Decision Date: 29 April 1940
• Docket Number: 7037.,No. 7036,7036
• Citation: 111 F.2d 854
• Parties: COVER v. CHICAGO EYE SHIELD CO. (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

111 F.2d 854 (1940)

COVER v. CHICAGO EYE SHIELD CO. (two cases).

Nos. 7036, 7037.

Circuit Court of Appeals, Seventh Circuit.

March 20, 1940.

Rehearing Denied April 29, 1940.

Joshua R. H. Potts, Eugene Vincent Clarke, and Basel H. Brune, all of Chicago, Ill., for Harvey S. Cover.

F. Allan Minne, of Chicago, Ill., for Chicago Eye Shield Co.

Before EVANS, SPARKS, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

Cover charged the Chicago Eye Shield Company with infringement of six United States patents of which he was the owner and patentee. The patent numbers, with the several dates of application and issue, and the claims involved, are in the margin¹ and they will be separately referred to hereafter by the last two digits of their respective numbers. The answer was invalidity and non-infringement.

The court held that claim 4 of No. 95 was invalid; that claim 2 of No. 30 was infringed but invalid on account of anticipation by prior use; that claim 3 of No. 30 and claims 2 and 3 of No. 70 were not infringed; and that claims 12 and 14 of No. 64, and claims 1, 2 and 3 of No. 83 were valid but not infringed. From these rulings Cover appeals under cause No. 7036. The court held that claim 1 of patent No. 70, and claims 1, 2 and 3 of patent No. 31 were valid and infringed by the Company. From these rulings the Company appeals under cause No. 7037. The two cases were consolidated for hearing in this court.

All of these patents relate to respirators and their improvements, and we shall describe the first patent issued, No. 64, and later discuss the special objects which each subsequent patent stresses. The object of this patent is the production of an economical and efficient device to be used for protecting the user from dust, smoke and noxious gases, without occasioning great difficulty in the user's breathing. Other objects are to provide such a device to which auxilliary filler chambers may be securely attached with ease and speed, and which device also has a conveniently positioned exhaust valve. It is further stated that the invention when in use will not interfere with the user's vision; that it is foldable, compact, well-balanced, light and easily put on, so that it is practically impossible to apply it incorrectly.

The preferred construction comprises a main shielding body, integrally molded, and has a hollow interior and a wedge-like exterior appearance. The body may be provided at its rear edge with cutouts for the accommodation of the bridge of the nose. These cutouts being identical, the device may be reversibly used, that is to say, upside down.

Centrally and toward the front of the device may be a flutter valve, which may be formed of two lips, preferably formed integrally with the body and adapted normally to remain in closed position. These lips may be formed of the same kind and thickness of rubber as the body, and resemble in cross-section the appearance of a duck's bill, with the extreme forward ends in contact, and their rear edges spaced apart to some extent. Interiorly the device preferably provides a pair of integral rubber bosses adjacent the rearmost portions of the lips, centrally and substantially vertically of them. Since each boss is similarly placed on its lip, the two bosses will contact and cause the lips to remain separated at the point of contact. Thus there is a large air passage provided around the bosses which continues forwardly, diminishing in size, until it is entirely closed by the forward meeting edges of the lips. The bosses serve as fulcrums, so that as the face portion is spread to apply to the face, the valve lips are pressed more firmly together to ensure proper closing of the valve.

The side walls of the body may be extended so as to provide filter-retaining chambers having end walls provided with apertures. The side walls of extending filter chambers may be provided with integral extending bosses, which may be of appropriate size and height to engage apertures of an extension cap which may be made of relatively stiff material, as aluminum, and have a large opening in its outer end wall. A screen may be inserted in the extension cap, retained by a flange, thus covering the opening in the outer end wall of the cap. Hence the space between the end walls of the retaining chambers and the screen provides a space in which suitable air filter material may be placed.

Adjacent the inner ends of the walls of the filter chambers may be provided suitable flanges, formed by extending the side walls of the body across the inner opening of the filter chambers. The side walls of the body carry large apertures through which filter material is inserted into the filter chambers and retained therein by flanges. Preferably the body, filter chambers, valve, bosses and flanges are one integral piece of rubber. The lips may be properly molded by old methods so as to separate the rubber and provide a passage for air at the outer end of the lips. Adjacent the rear edges of the side walls of the body there may be secured fastening devices or bolts to which head straps are to be attached.

Appropriate filler material is put in the filter chambers, and if more is desired it is placed in the extension caps. These caps are pushed into the chambers in such manner as to line up the bosses with the apertures thereby retaining the caps in proper position. The resiliency of the rubber will cause the bosses to be pushed outwardly through the apertures thereby securing the engagement of the caps.

The respirator is secured to the face by placing one of the cutouts on the bridge of the nose and applying the head straps. When the user inhales, air is drawn inwardly through the filter chambers, and also through the filter caps if used. At such times the lips of the flutter valve are closed, but exhalation causes them to open until exhalation ceases. The vertical arrangement of the opening of the flutter valve, and the valve lips, which are a continuation of the converging walls, causes no appreciable interference with the user's vision, and directs the condensed moisture downwardly to the bottom of the opening, thus preventing a clogging of the valve throughout its entire length. Exhausted filtering material may be replaced quite easily with new.

The disclosure is referred to as the flutter valve patent. The two claims relied upon were held not infringed and that ruling is not questioned here.

Patent No. 83 is described as broadly relating to patent No. 64, and other copending applications of Cover. It relates to valves generally, including exhaust valves for respirators. Its principal object is to provide such valve with a movable sensitive element, easily removable and replaceable by inexperienced persons, whereby a maximum efficiency in opening and closing the valve is obtained.

The principle disclosed applies to a bulbous extension of an integrally formed respirator. The extension is of greater length than width, and preferably provided with an opening in each end, and a bead and lugs for retaining the valve. The valve arrangement includes an oval valve carrying frame, comprising an annular flange and a concave base plate, which in turn is provided with a pair of spaced exhaust openings.

The carrying frame is also provided with a pair of centrally secured stud pins having heads and reduced portions, which act as hinges for the movable valve element. This movable valve element is made of thin, flexible and resilient rubber and substantially covers the base plate, and is provided with a pair of apertures adapted to register with the stud pins. These apertures are smaller than any portion of the stud pins, so that the aperture-forming walls seat in a conelike manner about the reduced portions of the pins, thus forming pockets between the portions of the flap resting on the base plate, so that when the movable element is placed in position the aperture-forming walls will be under tension and force the valve to lie snugly upon the base plate, within the flange.

It is obvious that the new feature claimed² for this patent is the provision of holes in the valve element smaller in diameter than the pins, so that the valve element is distorted adjacent the pins and is thus maintained in a concave condition, which it is said will cause the valve to seat better.

The District Court held that none of these claims was infringed by defendant's structure, and we think the evidence fairly supports that conclusion. In that structure the pin is approximately the same size in diameter as the opening in the valve element, and there is no material stretching of the valve element. Moreover, defendant has made its valves the same way since during the year 1933, and is further justified in so doing by the disclosure of the Willson Company respirator described in a printed publication on January 3, 1933.

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