Economy Appliance Co. v. Fitzgerald Mfg. Co.

• Decision Date: 01 August 1928
• Docket Number: No. 1878.,1878.
• Citation: 35 F.2d 756
• Court: U.S. District Court — District of Connecticut
• Parties: ECONOMY APPLIANCE CO. et al. v. FITZGERALD MFG. CO.

35 F.2d 756 (1928)

ECONOMY APPLIANCE CO. et al. v. FITZGERALD MFG. CO.

No. 1878.

District Court, D. Connecticut.

August 1, 1928.

Hans v. Briesen, of New York City (Francis V. McCarthy, of Lynn, Mass., of counsel), for plaintiffs.

Charles L. Sturtevant, of Washington, D. C. (Eugene G. Mason and Herbert H. Porter, both of Washington, D. C., of counsel), for defendant.

THOMAS, District Judge.

Economy Appliance Company and Frederick W. Collier charge the defendant with infringement of claims 2, 3, 4, 5, and 9 of letters patent No. 1,358,932. The patent was issued to the plaintiff Collier as assignor to Economy Appliance Company on November 16, 1920. The application was filed February 15, 1917. The patentee has joined with his assignee in suing the alleged infringer.

Defendant does not seriously contest validity, but argues against a conclusion holding infringement, and asserts that the claims should be so limited as to exclude defendant's structure.

The patent in suit is for a toaster embodying a central heating element of the usual kind which may be heated either by gas or electricity. On either side of this heating element is a slice holder so placed that the slice of bread to be toasted will be held in position parallel to the heating element and at a predetermined distance therefrom. The problem which Collier sought to solve was concerned with the development of means for so reversing each slice holder that the untoasted portion of the bread would be brought adjacent the heating element and held by the slice holder in substantially the same position in relation to the heating element as the bread was held before reversal. This Collier accomplished by mounting his slice holder upon carrier members so designed that the slice holder can turn upon itself in a minimum of space. This turning motion is accomplished by supporting each slice holder upon two vertical axes. The carrier member moves about one of these axes in such a way as to carry the slice holder a sufficient distance from the heating element to permit reversal of the holder. The holder itself rotates about the other vertical axis.

Collier has been for many years skilled in the toaster art. Before developing the toaster disclosed in the patent in suit, he had designed various other toasters, none of which he considered ideally successful commercially. There can be little doubt but that he was quite familiar with the more relevant prior art here introduced. He states that his invention consists primarily in the development of a device adapted so as to use a plurality of slice holders in connection with a single heating element, and in the fact that he is the first to so mount his slice holders as to cause them to rotate about two separate axes. I am convinced that the greatest merit in Collier's disclosure lies in this last feature of his invention, because, by the adoption of two axes of rotation, he is enabled to reverse the position of the slice holder within a minimum space, and thus produce a compact, attractive toaster, ideally suited for use on the dining room table. The claims in suit read as follows:

"2. In a toaster, the combination of a heating element having a plurality of heating surfaces, a plurality of slice holders and a plurality of axes for supporting the slice holders whereby the slice holders are movably mounted in such a manner with relation to the heating element that either side of a slice holder can be presented to the same surface of the heating element.

"3. In a toaster, the combination of a heating element having a plurality of heating surfaces, a plurality of slice holders, and a plurality of axes for supporting the slice holders, whereby the slice holders are movably mounted in such a manner with relation to the heating element that each slice holder is reversible with relation to that heating surface to which the slice holder is first presented.

"4. In a toaster, the combination of a heating element having a plurality of heating surfaces, a plurality of slice holders, and a plurality of axes for supporting the slice holders whereby the slice holders are movably mounted in such a manner with relation to the heating element as to be within their own space limits reversible with respect to the heating surface of the heating element to which the slice holders are first presented.

"5. In a toaster, the combination of a heating element having a plurality of heating surfaces, a plurality of slice holders, axes and carrier members for supporting the slice holders whereby through a compound movement about the axes the placement and angular positions of the slice holders with relation to the heating element are brought about and at all times controlled.

"9. In a device of the class described, the combination of a heating element having a plurality of heating surfaces, a plurality of carrier members and slice holders and a plurality of axes for supporting the carrier members and slice holders whereby the slice holders are so mounted with relation to the heating element that each slice holder is reversible by means of a motion which causes the major part of the holder to at first recede from and then to approach the heating element."

Collier discloses as the ideal embodiment of his invention a toaster, each slice holder of which is mounted upon two carrier members or crank shafts. These carrier members are so positioned as to predetermine at each stage of the rotation of the slice holder its position in relation to the heating element. The carrier members are mounted one upon either side of each slice holder, and so fixed in the frame of the toaster that during part of the revolution or reversal of the slice holder it revolves about one carrier member and during the remainder of the revolution it revolves about the other. As a result, the angular position of the slice holder in relation to the heating element is fixed and predetermined at every stage of its rotation. Collier recognized, however, that this feature is not essential to his invention, and specifies in his patent that one carrier member is sufficient support for his slice holders. The device of the patent in suit has met with a substantial measure of commercial success. Since the patent was issued, four licenses have been granted, and in each instance the patentee was approached by the prospective licensee. Under these licenses approximately 700,000 toasters have been sold, and the royalty returns to plaintiffs have been considerable.

Defendant does not seriously contest the validity of the patent in suit, but it does argue strenuously against any holding of infringement, and insists vigorously that, if the claims here involved be held valid, they should be so limited as to exclude therefrom defendant's structure. The alleged infringing toaster is made by defendant under the patent to FitzGerald, No. 1,426,284, issued August 15, 1922, on an application filed January 13, 1921. It will thus be seen that the application for this patent was not copending with that for the patent in suit, as FitzGerald filed about two months after the patent to Collier issued. The defendant has departed slightly in its commercial toaster from the disclosure of the FitzGerald patent, but the devices are so similar, and the modifications so unimportant that the FitzGerald patent may be taken as disclosing defendant's structure.

Defendant's toaster consists of a heating element which, for all practical purposes, is identical with plaintiffs', on either side of which is mounted a slice holder. Each slice holder is supported by a single arm or rod pivotally mounted to the frame of the toaster. After one side of the bread has been toasted, and it is desired to reverse the slice holder, the slice holder is swung away from the heating element on this supporting rod or arm to a sufficient distance to permit the holder to be rotated about the end of the arm and the untoasted portion of the bread is thus presented to the heater. No provision is made in defendant's device for predetermining the angular position of the slice holder in relation to the heating element during the period of rotation. The slice holder may revolve freely about the outer end of the supporting rod or arm. It may be withdrawn from the heating element before the rotation commences, or the commencement of rotation may coincide with the commencement of the withdrawal from the heating element. Obviously defendant employs two axes as support for the slice holder; one the axis about which the slice holder revolves, the other the axis upon which the supporting arm or rod turns. Both these axes are vertical, and in their application to defendant's device perform substantially the same functions in substantially the same way as do the axes of plaintiffs' device. Plaintiff preceded defendant in the field, and, under the circumstances outlined above, the fact that defendant manufactures under a later patent can be given little weight, as was held by the Circuit Court of Appeals for this Circuit in David v. Harris, 206 F. 902, 903.

Defendant insists that the patent in suit should be limited to the device described in the specification as Collier's preferred form, which, as we have seen, requires a structure which predetermines the angular position of the slice holder in relation to the heating element at each stage of its rotation. To support this claim defendant has introduced as examples of the prior art eighteen patents. Three of them, viz., Pierce No. 835 of 1838, Nobles No. 101,652 of 1870, and Cacciatori No. 501,867 of 1893, were cited by the Patent Office during the pendency of the application for the patent in suit, and were not considered by defendant of sufficient relevancy to discuss at the hearing....