Lenk v. Hunt-Lasher Co.
| Decision Date | 02 August 1926 |
| Docket Number | No. 2472.,2472. |
| Citation | 14 F.2d 335 |
| Parties | LENK v. HUNT-LASHER CO. |
| Court | U.S. District Court — District of Massachusetts |
Roberts, Roberts & Cushman and Odin Roberts, all of Boston, Mass., for plaintiff.
Ellis Spear, Jr., and James J. Gaffney, both of Boston, Mass., for defendant.
This is a suit for infringement of claims 6, 14, 15, and 16 of letters patent No. 1,551,069, issued to the plaintiff, as assignee of one Stanley Stanczyk, for an improvement in automatic blow torches, in which alcohol is used as a fuel, and which are adapted for use by jewelers, electricians, and others for soldering and brazing. The blow torch consists of a flame cylinder and a pressure-producing cylinder, both adapted to contain the fuel. At the upper end of the flame cylinder is inserted a wick plug, with feeder wick depending therefrom, designed to provide a flame area, and at the same time to obviate any leakage when the torch is tipped. The pressure or blast cylinder is shorter than the flame cylinder. Into this cylinder is introduced a jet tube, which goes nearly to the bottom of the cylinder. The upper end of the tube is curved in such a manner that it normally overhangs the plug wick in the flame cylinder. In this tube is a wick, twisted about a copper wire; the wick and wire extending to the lower end of the blast chamber. The two cylinders are joined in an adjustable manner by means of a clamp. In operation the plug wick is ignited, and the heat from the flame is applied to the jet tube, and transmitted to the alcohol in the blast chamber, causing vaporization therein, and producing a pressure of gas which, when forced through the small opening at the end of the jet tube and across the flame, gives a needle-pointed flame which the operator can use in soldering or brazing.
Claims 6 and 15 are sufficiently illustrative of the alleged patentable novelty claimed for the torch. They are as follows:
The plaintiff has manufactured and sold to the trade a considerable number of the patented blow torches.
The defendant is manufacturing and selling an automatic blow torch, known as "Selfblo," which in external appearance is nearly an exact copy of plaintiff's torch, and in its structure it differs only in two or three particulars, but the defendant contends that these departures are sufficient to enable it to maintain its defense of noninfringement. This contention demands a comparison between the so-called "plug wick" in plaintiff's torch and that in defendant's. Plaintiff's wick plug is a short piece of large cylindrical wicking, with a braided jacket through which is drawn a double strand of ordinary wicking as a feeder wick. Defendant's is made by folding a long piece of strand wicking into a cylindrical wad and compressing this into the lamp cylinder, leaving one end of the strand hanging from the bunch to form the feeder wick. In my opinion the language of claim 15 of plaintiff's patent covers the plug wick made and used by the defendant. I agree with the plaintiff that this difference in mode of making and assembling, involving no difference in function or relationship, is in law no difference at all. The other point of difference lies in the manner of constructing the pressure-producing member. Defendant's jet tube does not extend below the top of the blast cylinder, and, as originally sold by the manufacturer, no heat-conducting wire is inserted in the tube. But each torch sold is accompanied by printed instructions to users to "insert two ordinary pipe cleaners in the tube" in place of the wireless wick, when that wick becomes charred. In these pipe cleaners is a metal center, which, while not as efficacious as the copper wire used by the plaintiff, nevertheless embodies the same principle, and, when used, clearly infringes claim 6 of the patent. On these facts the patentee is entitled to invoke two well-established principles of patent law. As to claims 14, 15, and 16, he may invoke the doctrine of "equivalents." Imhaeuser v. Buerk, 101 U. S. 647, 25 L. Ed. 945; Duff Mfg. Co. v. Forgie, 59 F. 772, 8 C. C. A. 261; Hardison v. Brinkman, 156 F. 962, 87 C. C. A. 8; Gill v. Wells, 89 U. S. (22 Wall.) 1, 22 L. Ed. 699; Brown & Sharpe Mfg. Co. v. Starrett Co. (D. C.) 225 F. 997.
In Manton-Gaulin Mfg. Co. v. Dairy Machinery & Construction Co., Inc. (D. C.) 238 F. 210, it was said that infringement was not avoided by joining two elements in a patented machine into one integral part, accomplishing the purpose of both, and no more, so long as the same results are accomplished.
The plaintiff, as to claim 6, may also rely upon the doctrine of contributory infringement. Canda v. Michigan Malleable Iron Co., 124 F. 486, 61 C. C. A. 194; Jockmus v. W. W. Gale & Co., Inc. (D. C.) 295 F. 208; Goodyear Shoe Machinery Co. v. Jackson, 112 F. 146, 50 C. C. A. 159, 55 L. R. A. 692.
On the evidence, I find that the substitution of pipe cleaners for the regular wicks was actually made by the user, and the intent on the part of the defendant to assist in this infringement is clearly shown. Such contributory infringement has long been recognized as ground for injunctive relief. Wallace v. Holmes, Fed. Cas. No. 17,100, 9 Blatchf. 65; Thomson-Houston v. Kelsey, 75 F. 1005, 22 C. C. A. 1; Electro Bleaching Gas Co. v. Paradon Engineering Co., Inc. (C. C. A.) 12 F.(2d) 511.
It follows, therefore, that the plaintiff must prevail in this suit, unless the patent be declared invalid on one or more of the grounds urged against its validity in defendant's answer. The grant of the monopoly to plaintiff to manufacture and sell the device carries with the patent a presumption of its validity. Westinghouse Electric & Manufacturing Co. v. Formica Insulation Co., 266 U. S. 342, 45 S. Ct. 117, 69 L. Ed. 316.
The defendant has undertaken to overcome this presumption by offering evidence tending to show:
First, that, if the torch possesses patentable novelty, plaintiff's assignor, Stanczyk, was not the one who first made the discovery;
Second, that the device is anticipated in the prior patented art. The defendant also contends that the patent is void for want of invention.
Taking up these defenses in order, a proper consideration of the question of priority of discovery necessitates at least a brief review of the events leading up to the issuance of the patent in suit, as I gather them from the evidence offered by both plaintiff and defendant, which evidence is not wholly free from conflict.
Lasher, president of the defendant corporation, was, up to June, 1921, associated with the plaintiff in the manufacture of mouth blow torches, known to the trade as the "Supreme" torch. The business was carried on in corporate form by the Federal Manufacturing Company, which became bankrupt in June, 1921, when Lenk and Lasher severed business relations; the former to organize the Lenk Manufacturing Company, and Lasher to organize the Hunt-Lasher Company, the defendant.
In 1918, Stanczyk conceived and constructed an automatic blow torch, which he disclosed to several persons and had reduced to practice before he entered the employ of the Federal Manufacturing Company in the early summer of 1920. This first torch was a crude affair, made of iron pipe and plumbing supplies, but it contained all of the elements of the patented torch, and in the same association. It had the two chambers, the plug wick with depending feeder, the curved tube in the blast chamber, the wick with wire therein, and the two chambers were operably joined by clamps. The mode of operation, the functions of parts, and the results were the same as appear in the torch later perfected and patented. When Stanczyk came to the Federal Manufacturing Company, the plug wick used in the Supreme torch was made of felt, with a feed wick running there-through. It was not altogether satisfactory, because it did not prevent leakage or "boiling over," and the company was experimenting with plug wicks in an endeavor to overcome these objectionable features of the felt wick. During this period Stanczyk disclosed to his superintendent his automatic blow torch, and out of materials used in the manufacture of the Supreme torch he constructed several torches like the original model, except that for a plug wick he used strands of wicking...
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