Keiser v. High Point Hardware Company, C-95-G-58.

• Decision Date: 30 November 1961
• Docket Number: No. C-95-G-58.,C-95-G-58.
• Citation: 199 F. Supp. 623
• Court: U.S. District Court — Middle District of North Carolina
• Parties: David H. KEISER, Jr., d/b/a the Keiser Manufacturing Co., Plaintiff, v. HIGH POINT HARDWARE COMPANY, Defendant.

199 F. Supp. 623

David H. KEISER, Jr., d/b/a the Keiser Manufacturing Co., Plaintiff, v. HIGH POINT HARDWARE COMPANY, Defendant.

No. C-95-G-58.

United States District Court M. D. North Carolina, Greensboro Division.

November 30, 1961.

Armistead W. Sapp, Greensboro, N. C., and Paul & Paul, Philadelphia, Pa., for plaintiff.

Horace S. Haworth, High Point, N. C., and Slough & Slough, Cleveland, Ohio, for defendant.

PREYER, District Judge.

This is a suit to restrain the defendant from infringement of Keiser Patent No. 2,407,237, dated September 10, 1946. The usual defenses are alleged. While High Point Hardware Company is the defendant named as the seller of the accused device, True Temper Corporation is its manufacturer. The plaintiff seeks to have True Temper Corporation bound by the judgment of the Court.

The patent in suit relates to grass shears or hedge shears which are characterized by a pivotal connection involving a pair of pivots, one of which forms a bearing for the horizontal opening and closing shearing movement of the blades, and the other of which is a separate transverse pivot and forms a bearing for one of the blades to swing independently at right angles to its shearing movement. Prior to World War II, various shears had been utilized for the purpose of cutting grass and hedges, most of these shears having a pair of movable blades bolted tightly together by a single nut and screw. Such shears were not only difficult to operate but also were subject to excessive wear from the grinding action of the blades.

The plaintiff himself introduced an easier-working pair of shears which he produced under his patent No. 2,281,977, granted May 5, 1942. The easy-working qualities of these shears were obtained by mounting the blades very loosely on a single high pivot which would allow some vertical tilting to the blades which served to alleviate the tight or grinding action of the blades. But shears manufactured under that patent possessed disadvantages, including excessive wear at the pivot bearings because of the loose fit, difficulty and high cost of assembly at the plant because of the need of skilled labor to make the adjustment at the pivot, and commercial unattractiveness due to the loose and "sloppy" fit of the blades.

The plaintiff, under the patent in suit, overcame these difficulties by embodying the use of twin-pivots, mounted transversely to each other. Such shears could be assembled by unskilled labor and had better wearing qualities due to the tight fit at the pivots, were more easy working, and commercially more attractive.

The plaintiff's present patent claim, then, describes two pivotal elements. Specifically, claim 6 of the patent, which is relied upon in this litigation, reads as follows: "A pivotal connection for a pair of shear blades comprising a pivot forming a bearing for a cooperative flat-wise opening and closing movements of said blades, and a separate transverse pivot forming a bearing for one of said blades for independent swing thereof at right angles to its shearing movement."

Prior Art

The defendant argues that the plaintiff's patent in suit is lacking in patentable novelty. To this end it introduced at the trial 22 patents. The prior art primarily relied upon by the defendant is Keiser (the plaintiff) 2,281,977, dated May 5, 1942; Ginnell 1,562,630, dated November 24, 1925; and Simonson 1,987,375 dated January 8, 1935.

A study of these patents indicates that in none of them is there any vertical movement of the shear blades except by the yielding movement occasioned by the loose fit of the blades about the pivot. Vertical movement of the blades is obtained simply by the loose connection of the blades. None teaches the use of a transverse pivot as the means of obtaining vertical movement of the blades for easier cutting. There is no combination of two pivots, one mounted transversely to the other as in the patent in suit, in any of the prior art.

Defendant's experts stated that the most nearly anticipatory prior art is the earlier Keiser patent 2,281,977. We conclude, however, that the patent in suit, Keiser 2,407,237, constitutes an invention over the earlier patent. The addition of the transverse pivot is something new to the art and is not the normal and obvious result of skill and experience gained in the practice of the earlier invention. In this connection, we note that Keiser 2,281,977 was brought to the attention of the Patent Office at the time the patent in suit was determined to be patentable. The Patent Office did not cite it or any other prior art. This strengthens the statutory presumption of validity. Manville Boiler Co. v. Columbia Boiler Co. of Pottstown, 4 Cir., 269 F.2d 600, 604 (19.9). Also, we take note that plaintiff's device has enjoyed commercial success. While not determinative of either invention or validity, it is a factor entitled to consideration. S. H. Kress & Co. v. Aghnides, 4 Cir., 246 F.2d 718 (1957). In a comparatively short time, the sales of the plaintiff's twin-pivot shears were such that these shears became the principal product of plaintiff's company, and other companies became interested in producing shears of a similar type. Among such other companies is Seymour Smith & Sons, Inc., of Oakville, Connecticut, which company was granted a license under the patent in suit and paid royalties for the use thereof.

We conclude that there is nothing in the prior art that suggests or teaches the subject patent's twin pivot construction, and that such a construction was not obvious to one possessing ordinary skill in the art before Keiser No. 2,407,237. The plaintiff's patent is valid.

Infringement

The infringement charge is directed against True Temper #22 Shears. These shears employ a draw-cut slicing compound movement which is achieved by pivoting a blade support for a movable blade on a movable handle, pivoting the blade supported thereby about a pivot pin disposed in the nose of this blade support, linking an ear of the blade to a downwardly extending lever arm of the movable handle and upon the pivoting of the movable handle about a fixed handle. The movable blade is not secured to the fixed blade, as in the plaintiff's patent. The blade support moves upwardly and rearwardly during the shearing movement, achieving a draw-cut slicing action of the movable blade.

Defendant contends that the action of the True Temper Shears is substantially different from that of plaintiff's shears. Defendant argues that claim 6 of the patent in suit cannot be read on the accused structure because there is not "cooperative flat-wise opening and closing movements of said blades" in the accused shears — not "cooperative" because one blade is fixed and both blades must move to be "cooperative"; not "flat-wise" because the movable blade of the True Temper shears moves in a curved rising and backward manner and not in a flat plane.

Defendant also contends that there is no "pivotal connection for a pair of blades" since there is no pivot connecting the blades directly to each other.

While the construction of the True Temper shears may be somewhat different from that of the Keiser shears, the same parts are present. In the True Temper shears, one yoke pivot structure permits vertical movement of the blades, while another pivot structure at right angles to the first permits horizontal movement. Vertical and horizontal movements of the blades are made possible through two pivots, one transverse to the other. The same structure of the Keiser shears is included in the True Temper shears, although the latter structure may not be limited to the elements of the Keiser shears. In determining the question of infringement, the triers of facts are "not to judge about similarities or differences by the names of things but are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same results, always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substantially different result." Union Paper Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935 (1877); Saco-Lowell Shops v. Reynolds, 4 Cir., 141 F.2d 587, 593 (1944). "Authorities concur that the substantial equivalent of a thing, in the sense of the patent law, is the same as the thing...