Diamond Match Co. v. Sun Match Corporation

• Decision Date: 17 December 1925
• Docket Number: No. 1775.,1775.
• Citation: 9 F.2d 695
• Parties: DIAMOND MATCH CO. v. SUN MATCH CORPORATION.
• Court: U.S. District Court — Eastern District of New York

9 F.2d 695 (1925)

DIAMOND MATCH CO. v. SUN MATCH CORPORATION.

No. 1775.

District Court, E. D. New York.

December 17, 1925.

John R. Nolan, of New York City (William A. Redding, of New York City, of counsel), for plaintiff.

Arthur H. Serrell, of New York City (William Houston Kenyon, Edgar F. Baumgartner, Arthur H. Serrell, and Kenyon & Kenyon, all of New York City, of counsel), for defendant.

CAMPBELL, District Judge.

This is a suit in equity, brought by the Diamond Match Company, plaintiff, to restrain the alleged infringement by the Sun Match Corporation, defendant, of United States patent No. 1,042,472, issued to the Diamond Match Company, the plaintiff, as assignee of Michael Paridon and Thomas A. Palmer, for machine for making match books, dated October 29, 1912, and for damages. Another patent to one Campus, No. 1,073,394, is mentioned in the bill of complaint, but withdrawn.

The defense urged upon the trial and in the briefs of defendant's counsel is that of noninfringement.

This action is based upon claims 18, 21, 22, and 26, which read as follows:

"18. In a machine for making match books, the combination, with a carrier, of means for inserting covers therein at one part of its traverse, means for inserting match cards having headed splints into said carrier at another part of its traverse, and placing them parallel to the covers and with the heads of the splints extending rearward, and means for fastening together the covers and match cards while in the carrier."

"21. In a machine for making match books, the combination, with a cover carrier, of means for supporting match strips laterally of the path of travel of said carrier, means for severing the margins of said strips to form match cards of predetermined length, and means for feeding such cards successively to the carrier and within the covers carried thereby.

"22. In a machine for making match books, the combination, with a cover carrier, of means for supporting match strips laterally of the path of travel of said carrier, a cutter whereby said strips are severed at their margins to form match cards of predetermined length, means for feeding the strips to the cutter, and means for feeding the severed cards successively to the covers carried by said carrier."

"26. In a machine for making match books, the combination, with a cover carrier, of means for supporting a match strip laterally of the path of travel of said carrier, a cutter adapted to sever the margin of a match strip transversely to produce match cards of predetermined length, means for actuating the cutter, means for moving the successively severed cards beyond the cutter and into the carrier and the covers therein, and means for moving the remainder of the strip endwise after the severance of each card therefrom to present another portion of the strip to the actions of the cutter and card-moving means."

Machines for the wrapping of a great variety of articles, and for conveying to and stitching articles, and machines for making and packing matches, and patents covering those machines, are shown in the prior art, which was introduced by the defendant. These consisted of 16 United States patents.

The defendant's expert prepared and described a chart of some of the prior machines and the machine in suit, which was received in evidence as Defendant's Exhibit H. The chart is divided into six columns, which, reading from left to right, show in the first column the number of the patent and name of the patentee, in the second the kind of carrier, in the third the manner in which the wrapper is applied to the carrier, in the fourth the manner in which the article is applied to the wrapper, in the fifth the manner in which the wrapper is folded while on the carrier, and in the sixth the manner of fastening.

In the Schloss patent, No. 566,540, the carrier is of the chain type. On each link are a pair of upright posts, and a pocket is formed between the rear post on one link and the leading post on the next succeeding link. The wrapper is applied to the carrier from a stack by a device consisting of a rotary shaft with four radial arms; the article is applied to the wrapper by hand "or in any other desired manner." The folding is accomplished by the flat cover blank, on which the article to be folded is laid, being pushed down and folding up the two sides of the cover blank, which thus stands up on either side of the article to be wrapped. The apparatus then produces in succession two folds, and the cover is fastened by the paste which adheres to the outside of one flap of the cover, having been placed thereon by the roller on the rotary arm just before it removed the cover from the stack. Schloss had in mind the wrapping of a bunch of braid, but described in his specification that for wrapping other kinds of articles certain adjustments must be made.

In the Van Vleet patent, No. 567,014, the carrier is in the form of a belt on which the cover is laid out flat by the picker 32, which pushes out blank X from the bottom of a stack in magazine N on the belt A. The pusher 30 cuts off the article from the pile in the magazine 37, and delivers it to the cover X, the lateral sides of which have been pressed up, to give a boxlike form, before the articles are introduced into the box. The longer flap is then turned up, and in the next step turned down over the cigarettes. The short flap is then turned down, and the package is fastened by means of a surrounding outside box open at each end, into which the package enters, like the drawer of a table.

In the Stearns patent, No. 570,615, the carrier is in the form of a wheel. There are outstanding projections on the periphery of the wheel forming separate pockets, which correspond to the pockets or recesses in carriers of the chain type. The wrapper placer Jj pulls the wrapper g off a stack over the pocket e in the carrier wheel E. The packages are brought up one by one by the package feeder K, which reciprocates horizontally, and when they are under the package placer L, which reciprocates vertically, it descends and takes the package between the pair of spring jaws and presses it down into the pocket of the carrier wheel. That action serves to fold up the two sides of the cover, the folding being completed by the five following folding operations, and the package is fastened by a paste.

In the Schloss patent, No. 574,174, the carrier is of the chain type, quite similar to the carrier in the prior patent, No. 566,540, of which this patent is in the nature of a development. The cover blanks are held in a stack or hopper, the stack being laid down horizontally, so that the edges of the wrapper blanks lie upon the bottom of the stack, which is formed by a belt which moves slowly toward the right, and the blanks are picked out one by one by a rotating picker of the suction type, which rotates with the wrapper and sets it down upon one of the pockets in the chain, and it rides to the point where the parcel is inserted. Above that is the article supported from the wrapper by an opening in the table, and above the article is a pusher, which pushes this article down through an opening in the table into the pocket, serving at the same time to bind up the sides of the wrapper around the article as it enters the pocket. These articles are brought to the machine one by one by means of a belt. The cover is then folded in the same manner as in the prior patent and fastened by paste, which is put on the wrapper at about the time it is laid upon the carrier.

In the Bunol patent, No. 579,038, the carrier is of the chain type, with box links open on the sides, with spring grips for the cover. The cover, prefolded by the same machine into the form of a six-sided open-ended box, is pushed into the carrier link. Cigars, cigarettes, or other articles are forced out into a plate 92, and are pushed from right to left by a pusher 92a against a stop on the lefthand side. Then the pusher 94, which moves at right angles to the pusher 92a, forces out the desired number of cigars, cigarettes, or other articles into the cover A, through a guide marked 98. After the articles are placed in the boxlike covers, its ends are folded over by a series of folders, as indicated in Figs. 22, 23, 24, and 25, and are fastened by being gummed while the ends of the cover are tucked in.

In the Armstrong patent, No. 691,737, the carrier is of the wheel type; the periphery of the wheel being provided with a series of pockets 36, over which the cover is drawn from a reel. After a proper length of cover strip is drawn over a pocket, it is automatically cut off leaving a proper length in position. In this instance the material is caramel, and is fed toward the point of application by means of feed wheels, which feed the length of stock up against a stop. A descending knife then cuts off the desired portion of the stock strip to form the individual article to be wrapped. A pusher then descends, forcing the article with the cover underneath into the pocket, and in so doing folds up the two ends of the cover. The folding then takes place; there being no other fastening shown, as the folding is sufficient to hold the cover in place.

In the Landfear patent, No. 692,789, the carrier is also of the wheel type, with four pockets 87 around its periphery. The covers are in a pile of stock W, above which is a reciprocating pusher 54, with a roughened lower surface which, as it moves to the left, operates the top wrapper of the pile to feed rolls 41 and 42, which carry the wrapper over into position above the pocket of the carrier wheel. The articles (cigarettes) are fed in a long row by means of a belt 30 to a stop, and then a pusher 82, called a placer, comes down and cuts off the desired number of cigarettes, and forces them, with the cover underneath, into the pocket, folding up the ends. The folding is completed by the making of a number of folds and fastened with paste.

In the Marresford...