Hyman v. FW Woolworth Co.
| Decision Date | 08 October 1928 |
| Docket Number | 7968.,No. 7967,7967 |
| Citation | 28 F.2d 833 |
| Parties | HYMAN v. F. W. WOOLWORTH CO. SAME v. BUTLER BROS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John H. Bruninga, of St. Louis, Mo., for appellant.
William S. Pritchard, of New York City (Bruce S. Elliott, of St. Louis, Mo., on the brief), for appellees.
Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.
In cause No. 7967, Hyman brought a suit against the Woolworth Company for injunction and accounting, predicated on an alleged infringement of patent No. 1,445,193, issued February 13, 1923, to Ernest Alschuler. After its issue such patent passed by assignment to appellant. The trial court held that there was no infringement and entered a decree dismissing the bill.
The claims of the patent in suit alleged to have been infringed are Nos. 6, 7, 8 and 9. They read as follows:
Appellant asserts that the claims in suit are directed to particular end cap switch structures, not only as sub-combinations, but as distinct entities, adapted for employment in a flash light, whether that flash light has a center switch or not. The fact that the claims in suit do not mention a center switch, while certain of the other claims do mention such switch, gives strength to appellant's contention, and, for the purpose of determining the present case, we will accept his theory of the claims in suit.
The elements of claim 9 which is typical of all the claims in suit are: (1) A battery-receiving casing provided with an exterior end fitting in the lamp circuit, (2) an end cap mounted on such casing, (3) an element mounted in but insulated from such end cap, (4) a spring carried by such element and engaging the battery, and (5) a flange on such end fitting adapted to contact with such element.
In the specification, the patentee states that one of the objects of the invention is to provide a lamp construction which will insure against the accidental discharge of the battery.
The patent drawings are as follows:
The construction and operation of the patented device are described in the specification, in part, as follows:
In appellant's commercial device constructed under the patent the sleeve of the battery casing is constructed of fibre. Attached to one end thereof is an end fitting which forms part of the lamp circuit. The end cap is constructed so it may be screwed on and off this end fitting. A circular disc of insulating material is inserted in the top of the end cap. It is held in place by constructing the ring and screw portions of the end cap of a less diameter than the top of the cap and the circular disc of insulating material. Attached to this insulating disc is a metallic disc crimped over at the edge so as to hold one end of the battery spring, and also form a flange to connect with the flange on the end cap fitting. The battery spring connects with the other end of the battery, and thus the spring, the metallic disc, and the end fitting form part of the lamp circuit. When the cap is screwed up on the end fitting, the flange of the metallic disc is carried against the flange of the end fitting and the circuit is closed. When the cap is partially unscrewed, the metallic disc is carried away from the flange of the end fitting and the circuit is broken. Since the metallic disc is rigidly mounted in the end cap, when the latter is unscrewed a sufficient distance to break the circuit, there is no way in which the metallic disc can be pushed down against the flange of the end fitting and the circuit thereby closed, and because the end cap when in place completely covers the metallic disc, there is no way for any foreign conducter to touch the metallic disc and the end fitting and thereby close the circuit.
The alleged infringing device is illustrated by the following drawings:
It does not employ an end cap, but rather an end ring, a circular portion of the top of the cap being cut out. A metallic disc and an insulating disc are employed, but the metallic disc and insulating disc are fastened together by a non-insulated rivet, and one end of the battery spring is attached to the inward end of this rivet. The insulating disc and metallic disc, instead of being mounted rigidly in the end ring, are constructed so they will move backward and forward like a push button inside the ring. The operator of the alleged infringing device may open and close the circuit by screwing the end ring backward and forward and he may close the circuit by simply pressing the two discs forward against the spring like a push button is moved, and may open the circuit by the force of the spring, by removing such pressure from the two discs.
Because of the fact that the end ring is employed instead of the end cap and the insulating disc operates like a push button instead of being rigidly mounted in such end ring, elimination of danger of accidental closing of the lamp circuit is not accomplished in the alleged infringing device. This is true because force might accidentally come in contact with the insulated ring and push it and the metallic disc forward and thus close the lamp circuit and also a conductor might accidentally come in contact with the exposed outward end of the non-insulated rivet and the end ring and close the lamp circuit.
In the claims of the patent in suit, the metallic disc is firmly mounted in the end cap. This is likewise true in the commercial device of the appellant. Because of this fact in appellant's device the metallic disc is carried in the end cap toward and against the flange of the end fitting when the end cap is screwed up and is carried away and held away from the flange of the end fitting when the end cap is partially unscrewed. The metallic disc being firmly mounted in the end cap, the position of the end cap on the screw threads at all times invariably controls the position of the metallic disc.
On the other hand, in the alleged infringing device, while the metallic disc is located within the end ring, it is not rigidly mounted therein. When the end ring is screwed on to the end fitting, it operates as the force on a push button and pushes the metallic disc forward against the flange of the end fitting. When the end ring is unscrewed it releases this force, and the spring pressure pushes the metallic disc away from contact with the flange of the end fitting, but the position of the metallic disc is not invariably controlled by the position of the end ring on the screw threads.
In the patent in suit the metallic disc moves backward and forward solely by force of the end cap because it is firmly mounted therein. In the infringing device it moves toward the point of contact by force of the end ring or by force of the operator's thumb and moves away from the point of contact by force of the spring.
From the foregoing it will be seen that the functions of the elements employed, the principle or mode of operation devised, and the results attained in the alleged infringing device, are essentially different from the functions of the elements employed, the principle or mode of operation devised, and the results attained in the patent in suit.
Furthermore, the end cap and the end ring are...
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