Gillette Safety Razor Co. v. Triangle M. Lab. Corp., 144.

• Decision Date: 01 February 1937
• Docket Number: No. 144.,144.
• Parties: GILLETTE SAFETY RAZOR CO. v. TRIANGLE MECHANICAL LABORATORIES CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

87 F.2d 699 (1937)

GILLETTE SAFETY RAZOR CO. v. TRIANGLE MECHANICAL LABORATORIES CORPORATION.

No. 144.

Circuit Court of Appeals, Second Circuit.

February 1, 1937.

Morris Kirschstein, of New York City, for appellant.

Henry R. Ashton and William J. Barnes, both of New York City, for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a decree holding valid and infringed claims 1, 3, 4, 5, 8 and 11 of Patent No. 1,948,192, for a method of putting a blue finish upon razor blades as a substitute for blue lacquer. The plaintiff has spent four millions in advertising this color throughout the country and others apparently wished to trade upon the goodwill so created. The patent is primarily intended to fend them off, but the invention also avoids one step in manufacture — polishing — which during the course of a year in the plaintiff's enormous business saves a not inconsiderable sum, though bright polished blades still sell alongside the blue. Stargardter, the inventor, an employee of the plaintiff, filed his application on March 10, 1932. He chose an apparatus already disclosed in a patent granted to Salzman on October 22, 1929, No. 1,732,244, for hardening and tempering razor blades. In this a roll of unhardened steel of proper thickness and width, stamped as a line of blades, was run through a hardening chamber, where it was kept above the necessary critical limit, 1400° F., whence it ran between chilling blocks, "immediately adjacent the delivery opening" (page 2, lines 26, 27); thereafter it passed through a tempering chamber, where it was heated again but to a less degree; and finally it passed through second chilling blocks. As Salzman wished to get a bright blade he tried to avoid oxidizing it; "heating and chilling of the strip 10 are effected without oxidization thereof" (page 2, lines 77-79); the method was "intended to conserve the advantage of the older type of heat treatment in respect of preventing oxidization" (page 1, lines 60-62). Stargardter changed the process so disclosed only by producing, not a bright blade, but a blue, and to do this he introduced into the hardening chamber a controlled quantity of air. The art had long known the effect of oxygen upon heated steel; if ordinary atmosphere is given access to it, it will turn out covered with a black scale. It had been customary, therefore, to introduce into the hardening chamber a mixture of illuminating gas and insufficient air to burn it. After combustion the constituents were steam, hydrogen, carbon dioxide, carbon monoxide, and nitrogen; an atmosphere made up of two groups of opposed substances. The steam and the carbon dioxide tend to oxidize the steel; the hydrogen and the carbon monoxide to counteract them. Stargardter proposed to keep a proper balance between the two in the hardening chamber and to chill the strip immediately on its emerging, so as to avoid exposing it to the air while still heated. He did not claim the discovery of the reaction of illuminating gas and air in the chamber; "ordinary illuminating gas, which, as is well known, is reducing in its effect, diluted with air has been found entirely satisfactory in practice. The addition of atmospheric oxygen to the reducing illuminating gas results in a mixture which is no longer reducing but slightly oxidizing in its effect at the temperature used." (Page 2, lines 30-36.) Nor did he make any effort to disclose the proportions between the two gases; by "adjusting the mixture the tint of the blued finish may be varied and made lighter or darker." (Page 2, lines 41-42.) All the claims in suit except the first describe the hardening atmosphere only as having an "oxidizing effect less than that of atmospheric oxygen," for which claim one substitutes "a gaseous mixture having a reducing constituent but being oxidizing in its effect." Thus the patent left the result to be determined empirically; and while this did not make the disclosure inadequate, it may, and does, have an important effect upon the issue of novelty.

As we have said, the art had long known the effect of oxygen upon heated steel. Steel is annealed at much lower temperatures than are necessary to harden it, but it will blacken none the less if air is admitted in the process, and as far back as 1862 Washburn, Patent No. 36,628, disclosed a method for annealing without oxidizing. This was to be done in an atmosphere of "carbonic oxide or nitrogen or any other substance or gas which shall not give up to the iron of which the wire is composed any or very little oxygen." Already he had provided for bluing the metal: "When such wire is being annealed some atmospheric air may be introduced into the pot; but it must be in such regulated quantities as that it shall only `blue' the metal, but not oxidize it." The oxygen or air must be "only sufficient to blue without oxidizing the wire." This was in substance repeated in Wells' patent, No. 382,447, of 1888, for coating iron and steel with rustless oxide by introducing into the chamber a mixture of steam and carbon monoxide, the steam being the oxidizer and the carbon monoxide the reducer. True, Wells was not after a blue color, and perhaps did not know that he could get it; he wished to cover the surface of the iron or steel with a coating of black or magnetic oxide. Nevertheless, he understood the balancing of the two agents which he introduced. At the end of 1924 Alexander & Imbery filed their applications in England and here which resulted in their patent, No. 1,626,713, issued on May 3, 1927. This was for a process of hardening and tempering a...