Jungersen v. Baden

• Decision Date: 07 February 1947
• Citation: 69 F. Supp. 922
• Parties: JUNGERSEN v. BADEN et al. (AXEL BROS., Inc., et al., Intervenors).
• Court: U.S. District Court — Southern District of New York

69 F. Supp. 922

JUNGERSEN v. BADEN et al. (AXEL BROS., Inc., et al., Intervenors).

District Court, S. D. New York.

February 7, 1947.

Drury W. Cooper and John N. Cooper, both of New York City, and Karl W. Flocks, of Washington, D. C., for plaintiff.

Fish, Richardson & Neave, of New York City (John Vaughan Groner, and Robert B. Whittredge, both of New York City, of counsel), for defendants.

RIFKIND, District Judge.

In this patent infringement suit plaintiff seeks judgment for damages, profits and injunctive relief. The answers put in issue both validity and infringement and contain counterclaims for declaratory judgment adjudicating the validity of the patent.

The patent in suit is No. 2,118,468 issued to plaintiff on May 24, 1938, on an application filed September 28, 1934. It contains six claims of which the first five relate to a method of casting articles of jewelry of intricate design, and the sixth is for an article of jewelry produced by the method.

Claim 2 reads as follows: "2. A method of casting articles of jewelry of intricate design consisting in, first making a model of the article desired to be cast, then forming a primary mould in separable sections there-around of plastic material capable of assuming intimate contact with the intricate designs of the model and adapted to retain the assumed shape, then removing the model, then by centrifugal force projecting into the mould cavity and completely filling same a molten material of a low fusing point which will not injure the mould, then removing the fusible pattern so cast, then investing said pattern in a refractory material which will assume all the contours of its intricate design to form a secondary mould, then heat treating said investment removing the low fusing pattern therefrom, then by centrifugal force projecting molten metal into the heat treated mould, and finally removing said mould from the cast article."

Claims 1, 3, 4 and 5 describe variants of the method.

Claim 6 reads as follows: "6. An article of jewelry or a part thereof of a design intricate to the extent of having one or more small projections or depressions made by a process comprising first producing a model of the article to be cast, then forming about said model a primary mould, then removing the model from the primary mould, then introducing into the mould by force sufficient to deposit the material into the depression or depressions of the primary mould, molten wax or other material of low fusing point that will not injure the primary mould to form a pattern, and employing the pattern so made for the manufacture of a casting mould."

In the specifications the object and the several steps of the process are thus described:

"The principal object of this invention is to facilitate the casting of small metal articles, particularly articles of intricate detail such as jewelry which frequently are designed with hollows, undercut portions and perforations, so that they will have a smooth clean surface faithful in detail to the original and free from imperfections or holes, and to enable such result being accomplished with the minimum of expense.

"A further object of the invention is to enable the formation of intricate castings which will so closely resemble the original and finished product that the slow and tedious work of patterning and detail cutting required in connection with present casting methods is eliminated."

The steps in the process are these:

1. A model of the article to be cast is made of wood, metal or other suitable material.

2. This model is placed upon a base and a flexible mould-forming material such as rubber is built up around the model and vulcanized. The mould is then separated into half sections.

3. After removing the model from the mould, the two half sections are brought together again and a suitable quantity of a very low temperature fusing material which may be wax or a metallic alloy such as Wood's metal, is poured into the gate of the mould and the mould is rotated rapidly in a centrifugal casting machine. The wax is thus forced into the cavity of the mould.

4. The wax pattern thus produced is removed from the mould by separating the half sections of the mould. It is then invested in plaster of paris which will form a suitable mould for the metal which it is ultimately desired to form to that shape.

5. The investing material may be dried out in any suitable manner but in any event the mould created by the plaster of paris is subjected to sufficient heat to melt the wax and all traces of this wax are completely removed from the mould.

6. The cavity within the plaster mould conforms to the wax pattern. The mould (investment) is then placed in a centrifugal casting machine and the molten metal from which the casting is to be made is poured into this mould and is projected by the applied force of the centrifugal action into the fine recesses. The mould is then broken up and the metal replica of the original model is abstracted.

The process thus described is a refinement of the ancient "cire perdue" or the "lost wax" process. In brief it calls for two castings for the production of a metal replica of a model. First, a wax casting is produced which in turn is used to form a mould suitable for metal casting; second, a metal casting is formed with the aid of the final mould.

There is no dispute concerning the methods pursued by the defendants and intervenors in the manufacture of rings. All use the several steps of the process with the following variations: For the primary mould some use soft metal moulds as well as rubber moulds. To inject the wax into the primary mould all use a centrifuge and some also use an eye dropper or syringe, air gun, air injection machine, hydraulic machine and vacuum casting machine. All have produced and sold articles of jewelry made by the process. At least to the extent that defendants have used centrifugal force to deposit the wax into a primary rubber mould, and all have, there can be no question that they have infringed.¹

The issue of validity is thus reached immediately.

At or about the time the plaintiff contrived his process, December, 1933, the jewelry manufacturing industry generally used one of four methods for the fabrication of rings.²

1. Handcraft by skilled artisans.

2. Cuttlefish casting, which consists of compressing the model of the ring to be reproduced between two loaves of cuttlefish bone. The yielding surfaces of the bone

form a cavity roughly corresponding to the form of the compressed model. A channel or opening between the two loaves permits the molten gold to flow into this cavity, to form a rough replica of the model. This casting is then hand-finished.

3. Sand casting, which consists of imbedding the model in a sand frame which, upon the removal of the model, leaves a cavity into which the molten metal is admitted by an opening provided for the purpose. Its advantage over cuttlefish casting is that it permits the production of six to twelve castings from a single mould. The casting is rough and requires hand finishing.

4. Die stamping, which consists of stamping out the ring or parts of it by means of metal dies. This process is very efficient. It is still in extensive use when numerous castings of a single design are desired. Its initial cost is high. The dies for a single ring-design cost from $250 to $2,000.

Today cuttlefish casting and sand casting are of little commercial significance. Die stamping and the "lost wax" process are preeminent in the production of rings.

The evidence clearly supports a finding that, after Jungersen, the lost wax process as refined by him has been extensively employed in the manufacture of rings; and I shall therefore attribute to the patent "commercial success".

This, however, does not foreclose consideration of the issue of invention; nor does it render dispensible inspection of the prior art. Defendants rely upon seven items to prove that the patented process is old. In chronological order these are:

1. The Treatises of Benvenuto Cellini, 16th Century.

2. Haseltine, British Patent No. 2467, issued 1875.

3. Spencer, U. S. Patent No. 748,996, issued 1904.

4. Kralund, U. S. Patent No. 1,238,789, issued 1917.

5. La Gravure, Publication, 1926.

6. Slatis-Dee, use and sale of product, 1931.

7. Austenal, use, 1932.

Cellini describes in minute detail the "cire perdue" or lost wax process as applied to the casting in bronze of figures of life size or under. The features which distinguish it from the patented process are that Cellini does not use a rubber mould but one made of "Gesso", that is, plaster of paris or gypsum; he pours his wax, apparently employing no force but gravity to fill his mould; and when the wax is melted out, he allows the molten bronze to flow into its place, again without the use of pressure.

Plaintiff, of course, calls attention especially to Cellini's method of pouring the wax as differentiating it from the patented process. He also argues that Cellini's method was available only to the artist and not to the artisan because Cellini suggests that after the wax form has been prepared, "if you are minded to add any subtle labour or fancy to your work, you are easily able to do it". This last suggestion, however, does not diminish the value of the disclosure to those who are not minded to add "any subtle labour or fancy". Finally, plaintiff argues that Cellini's publication is not part of the relevant prior art because it pertains to the non-analogous sculptural art. Consideration of this point is deferred since it is also addressed to some other prior art citations.

Haseltine's invention has as its object the production of a metal casting which is a perfect copy of its model. He teaches the making of a thin rubber mould about the model, into which mould, when freed from the model, he pours melted wax. To help the thin rubber retain its shape, he suggests its suspension in water. The wax model is invested...