Kugelman v. Sketchley, 10096.

• Decision Date: 11 February 1943
• Docket Number: No. 10096.,10096.
• Citation: 133 F.2d 426
• Parties: KUGELMAN v. SKETCHLEY.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F.2d 426 (1943)

KUGELMAN v. SKETCHLEY.

No. 10096.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1943.

Bernard F. Garvey, of Washington, D. C., and Frank L. A. Graham, of Los Angeles, Cal., for appellant.

Robert W. Fulwider, of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

This was an action by appellant against appellee for infringement of claims 13, 14 and 15 of patent No. 2,042,407. Defenses pleaded by appellee were that the claims were invalid, and that, if valid, they were not infringed. The court below held the claims invalid and dismissed the action. Appellant seeks reversal.

The patent was applied for by appellant on August 13, 1931, and was issued to him on May 26, 1936. It relates to devices for cleaning drains and other conduits. Such devices are called drain cleaners, plumber's snake tools, pipe-cleaning tools, pipe-opening machines and various other names. Claims 13, 14 and 15 read as follows:

"13. A plumber's snake tool comprising a flexible member adapted to be advanced into a conduit to be cleared and to be worked therein in conduit-clearing action, a circular member-housing sheath having a substantially central guide aperture on its side aperture centrally inward of the periphery thereof and through which said member may be withdrawn for advance into a conduit and through which aperture said member may be returned to the interior of the sheath angularly to be automatically coiled in normally housed condition in the sheath and with convolutions in substantial number expanded into intimate engagement with the inner periphery of the sheath, and a mounting means for said sheath.

"14. A drain cleaner including a casing circular in cross section, a resilient snake engageable in the casing to form coils expanded into intimate engagement with the casing wall, and a tubular guide member for the snake mounted on and communicating with the casing, the guide member being substantially perpendicular to the plane of the coils and substantially central of the latter.

"15. A plumbers' snake tool comprising a flexible conduit-clearing member adapted to round the turns of a conduit to be cleared of an obstruction, a circular sheath member in which retracted portions of said conduit-clearing member are normally housed and against the inner periphery of which stored convolutions of said conduit-clearing member may lie, and a tubular member on the sheath forming a guide for a portion of the length of said conduit-clearing member and through which such last named member may be reciprocated as portions thereof are withdrawn from and returned to said circular sheath member for storage therein."

To ascertain the meaning of terms used in the claims, we look to the specification. Motoshaver, Inc., v. Schick Dry Shaver, 9 Cir., 112 F.2d 701, 702; L. McBrine Co. v. Silverman, 9 Cir., 121 F.2d 181, 182. Therefrom it appears that the "flexible member" mentioned in claim 13, the "resilient snake" mentioned in claim 14 and the "conduit-clearing member" mentioned in claim 15 are one and the same thing, namely, a flexible, resilient, rotatable wire, commonly called a plumber's snake; that the "member-housing sheath" mentioned in claim 13, the "casing" mentioned in claim 14 and the "sheath member" mentioned in claim 15 are one and the same thing, namely, a circular casing in which the snake is stored when not in use; and that the "guide member" mentioned in claim 14 and the "tubular member" mentioned in claim 15 are one and the same thing, namely, a tubular guide through which the snake...