GH Packwood Mfg. Co. v. St. Louis Janitor Supply Co.

• Decision Date: 09 January 1941
• Docket Number: No. 11760.,11760.
• Citation: 115 F.2d 958
• Parties: G. H. PACKWOOD MFG. CO. v. ST. LOUIS JANITOR SUPPLY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 958 (1940)

G. H. PACKWOOD MFG. CO. v. ST. LOUIS JANITOR SUPPLY CO.

No. 11760.

Circuit Court of Appeals, Eighth Circuit.

December 12, 1940.

Rehearing Denied January 9, 1941.

Edmund C. Rogers and Lawrence C. Kingsland, both of St. Louis, Mo. (Kingsland, Rogers & Ezell and Estill E. Ezell, all of St. Louis, Mo., on the brief), for appellant.

Frank L. A. Graham, of Los Angeles, Cal. (Edwin E. Huffman, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.

SANBORN, Circuit Judge.

This appeal is from a decree in a suit brought to enjoin, and to recover damages for, the alleged infringement of United States Letters Patent No. 1,863,871, issued on June 21, 1932, to George H. Packwood, Jr., for a dispenser for finely divided material, such as powdered soap, which decree adjudged that Claims 1 and 4 of the patent were invalid, that Claim 1 was not infringed, and that the plaintiff was entitled to no relief. The G. H. Packwood Manufacturing Company, owner of the patent, was the plaintiff in the court below, and the St. Louis Janitor Supply Company was the defendant. (The parties will be referred to as "plaintiff" and "defendant".)

The defenses asserted were anticipation, lack of invention, and noninfringement. The claims in suit were numbers 1 and 4 of the patent, which read as follows:

"1. A dispenser for finely divided material including a hollow body having a tapering bottom portion with a central opening therein, a vertical plunger movably mounted in said body and extending through the opening in said bottom portion, said plunger being reduced in size for a short distance above and below the part passing through said opening and a dispenser cup member secured to said plunger below said bottom portion."

"4. A dispenser for finely divided material including a hollow body having a bottom portion with a central opening therein, a vertical plunger movably mounted in said body and extending through the opening in said bottom portion, a member in said body in position to be engaged by said plunger on its upward stroke, whereby movement of said plunger and the force of the impact agitate and loosen said finely divided material and cause a portion thereof to fall through said bottom opening and a dispenser member secured to said plunger below said bottom portion of said body."

The plaintiff manufactures and sells powdered-soap dispensers under the Packwood patent. The defendant sells similar dispensers which it procures from the Pacific Coast Borax Company and which are manufactured under United States Patent No. 1,993,401 issued to William A. Dudley on March 5, 1935, and assigned to the Borax Company. The structure and operation of plaintiff's soap dispenser and of that sold by defendant can be understood more clearly if illustrated than described. The accompanying drawings sufficiently disclose the structure and operation of these dispensers.

George H. Packwood, Jr., the patentee, is an electrical and mechanical engineer who is a graduate of the Alabama Polytechnic Institute (1910). From 1911 until he went into the soap business in 1926, he followed his profession as an engineer successfully and with distinction. In 1926 he organized the plaintiff company and became its president. In 1912, while he was employed by a railroad company, he noticed that the men in the shop had many kinds of hand soap to wash with, which, though efficient, irritated the skin of the users. He began an investigation of the hand soap field, and carried on extensive experiments in his own laboratory for the purpose of developing a soap which would be efficient and nonirritating. In 1926 he concluded that he had developed a formula for a satisfactory hand soap, and from that time on he has devoted his entire time to the development and sale of hand soap. After he went into this business, he found that if he desired to sell such soap to plant managers for the use of their employees, he would have to furnish an efficient powdered-soap dispenser. He then started the development of soap-dispensing equipment, and during the years 1926 to 1930 he produced several kinds of such dispensers, including those which operated with a crank like the old-fashioned flour sifter and also those of the tilt type. In 1930 the American Telephone & Telegraph Company, after testing his soap, approved it, but disapproved the tilt type of dispenser which he had submitted to it. Its disapproval was based on the ground that that type of dispenser was unsanitary. He was advised by that company that if he could develop a dispenser which could be operated with one hand and which was satisfactory, the company would purchase his soap and his soap dispensers. What was wanted was a rugged soap dispenser which could be operated with one hand; which had few moving parts; which would continue to operate efficiently; and which would dispense soap economically. Packwood then developed the type of dispenser covered by the patent in suit, which met with the approval of the American Telephone & Telegraph Company, and that company and its affiliates purchased soap dispensers from the plaintiff. The Packwood dispenser has proved practical and useful, and some twelve thousand of them have been sold and are now in use.

It clearly appears from the record that, in order to have a practical and efficient dispenser for powdered soap, it is necessary to have a container which will hold the soap, dispensing means which will dispense it in measured quantities, and means for agitating or jarring the contents as soap is dispensed, so that the soap in the container will continue to flow. The dispensing means devised by Packwood is of the flow type; that is, the soap flows by gravity from the dispenser. When the plunger is at rest, the flow of soap is caused to be dammed up in the outlet by the cup which is attached to the plunger and which is just below the discharge outlet of the container. The amount of soap dispensed with each operation of the plunger is, roughly, the amount which is held by the cup, and this amount can be controlled by varying the size of the cut-out portion of the plunger at the point where the plunger passes through the discharge outlet. When the plunger is pushed upward, it does two things: (1) it forces the powdered soap, which is in the cup and between the cup and the outlet, over the edges of the cup, whence it falls into the hand of the operator; and (2) it agitates the contents of the dispenser by causing the shoulder of the plunger, which is near the upper end of the plunger, to strike the crossbar, which causes vibration. When the plunger falls back into position, more agitation of the contents is caused, since the nuts at the upper end of the plunger then strike the crossbar.

The agitating means of the accused device (made under the Dudley patent) are in all substantial respects identical with those of the Packwood device. The plunger of Dudley produces agitation by the same means and in the same way; the shoulder of the plunger strikes the crossbar on the upward stroke, and the cotter pin — which is the equivalent of the nuts at the upper end of Packwood's plunger — strikes the crossbar as the plunger falls back into place. The dispensing means of the accused device differs from that employed in the Packwood device. There is no cup on the plunger of the accused device to catch and stop the flow of the soap from the container, and in normal operation no soap reaches the hand of the operator until the down stroke of the plunger takes place. The pockets or notches of the portion of the plunger which moves up and down through the discharge outlet of the container fill up with soap when the plunger is pushed upward through the outlet, and the size of the pockets determines the amount of soap which will be dispensed as the plunger is released. When the plunger falls, the soap in the pockets is drawn from the container through the discharge outlet, whence it falls by gravity into the hand of the operator.

Claim 1 of the patent in suit is for a combination consisting of (1) a hollow body having a tapering bottom portion with a central opening therein; (2) a vertical plunger movably mounted in said body and extending through the opening in said bottom portion, said plunger being reduced in size for a short distance above and below the part passing through said opening; and (3) a dispenser cup member secured to said plunger below said bottom portion. Claim 1, we think, was clearly intended, and must be read, to cover the form of dispensing element described in Packwood's specification and shown by his drawings, when such element is combined with the other elements referred to in the claim. The claim is too narrow to cover a combination which includes a plunger not reduced in size at the point where it passes through the discharge opening and which has not the dispenser cup of Packwood. It is our opinion that the plunger and dispensing means of the accused device differ sufficiently from those of Packwood to avoid infringement of Claim 1.

Claim 4 of the Packwood patent is also for a combination, the essential elements of which are (1) a hollow body having a bottom portion with a central opening; (2) a vertical plunger movably mounted in the body and extending through the opening in the bottom portion; (3) a member in the body in position to be engaged by the plunger on its upward stroke to agitate the contents; and (4) a dispenser member secured to said plunger below said bottom portion of said body. This is a broader claim than Claim 1. Claim 4 reads upon the accused device unless the dispenser element of that device is not below the bottom portion of the body. Normally the dispenser element of the accused device is below the bottom portion of the body, and it certainly is below that portion when soap is being dispensed. We think that, unless Claim 4 is limited to the exact dispenser...