Lincoln Stores v. Nashua Mfg. Co.

• Decision Date: 20 January 1947
• Docket Number: No. 4133.,4133.
• Citation: 157 F.2d 154
• Court: U.S. Court of Appeals — First Circuit
• Parties: LINCOLN STORES, Inc., v. NASHUA MFG. CO.

157 F.2d 154 (1946)

LINCOLN STORES, Inc., v. NASHUA MFG. CO.

No. 4133.

Circuit Court of Appeals, First Circuit.

July 19, 1946.

Writ of Certiorari Denied January 20, 1947.

COPYRIGHT MATERIAL OMITTED

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

Henry M. Huxley, of Chicago, Ill. (Robert Cushman, of Boston, Mass., Benjamin C. Trotter, of Spray, N.C., and Milton T. Miller and Ralph E. Bowers, both of Chicago, Ill., on the brief), for appellant.

J. L. Stackpole, of Boston, Mass. (H. L. Kirkpatrick and Edgar H. Kent, both of Boston, Mass., on the brief), for appellee.

Claude R. Branch, of Boston, Mass., and James F. Armstrong, of Providence, R.I., amici curiae.

MAHONEY, Circuit Judge.

The Nashua Manufacturing Company brought suit against Lincoln Stores, Inc., for alleged infringement of patent No. 2,208,533, issued by the United States Patent Office to the Nashua Company July 16, 1940, on an application filed by Robert Amory December 20, 1939. Claims 7, 10, 16 and 19 of the patent are in issue. The patent is hereinafter referred to as the Amory patent or as the Purrey blanket, the commercial name for the blanket manufactured under the Amory patent. The case is being openly defended by Marshall Field & Co. That company manufactured and sold to the defendant the Jacquard blanket, plaintiff's Exhibit 7, which was purchased by the plaintiff from the defendant on July 23, 1943, and which is alleged to infringe the plaintiff's patent. We are principally concerned with the validity of the claims in issue.

Amory's patent has reference to a household blanket preferably made mainly of rayon fibers but which may be made of other artificial fibers.

The warmth of a blanket varies with the number of air passages in the nap of the blanket. These passages have an insulating effect because they entrap the air thus preventing the cold air from reaching the body under the blanket and preventing the warm air emanating from the body from escaping to the outside. A blanket with a very lofty nap has more air passages and consequently greater warmth than a blanket with a lower nap. The warmth of a blanket with a fairly uniform and homogeneous nap, that is a nap which is equally high throughout the blanket, will be more evenly distributed than the warmth of a blanket with a less uniform nap. In addition, a blanket with a lofty and uniform nap has a more pleasing appearance.

Woolen blankets are generally recognized for their warmth because of their lofty and uniform nap. Of course, the quality of the wool used in a particular blanket will reflect upon the loftiness and uniformity of the nap.

The Purrey blanket is characterized in Amory patent as a blanket with "a lofty and homogeneous, though firmly anchored, stiff and resilient nap, consisting essentially or principally of staple rayon fibre" which has "the advantages of an all wool blanket at a far lower cost". Claim 7 of the patent, which is the most important claim in issue, asserts that the Amory blanket is "a low density blanket composed principally of a filling having a napped wrapping of relatively coarse, soft yarn, essentially of random intermingled staple artificial fibres of an average fibre denier of at least 4.00, said fibres being mostly fibres in excess of 2.75 denier loosely wound with and carried upon a small and hard twisted core thread, with a major portion of the volume of the blanket constituted by said wrapping raised in the form of a lofty, homogeneous nap throughout the area and napped thickness of the blanket on both sides thereof, though firmly anchored to the core thread, and a hard-twisted warp interwoven with said filling."

In the specifications, the wrapping of the filling yarn, i.e., the weft or the woof, is described as "preferably slack twisted and undrafted, though with the fibres randomly intermingled". The wrapping "is lightly laid upon and loosely twisted with or loosely wound around so as to be carried by a small but relatively strong core thread (preferably a spun rayon core) which serves as a reinforcement for the napped rayon exterior of the blanket, in which practically all of what originally was the available or exposed wrapping portion of the filling appears as nap of the finished blanket." The warp upon which the filling threads are woven is a light but strong warp preferably of spun rayon fiber. The specifications further state that the filling wrapping must be of a yarn of an average denier of more than 2.75 and that 4.50 to 5.0 or even more is the preferred average denier. The fibers in the wrapping of the filling "should include a substantial portion of fibers of a length 1½" ± ½" in order to secure an adequate number of ends to provide the desirable nap of this invention". Additional springiness may be obtained by using a small percentage of wool fibers with the rayon fibers. In actual practice the Purrey blanket contains about 20% wool fibers and 80% rayon fibers. The wrapping is "slightly or slackly twisted with or around the core and is subjected to little or no drafting" so that the fibers are not parallelized as they would be if subjected to a drafting process. Thus the fibers are randomly intermingled and the napping operation produces a stiff and resilient nap similar to that of high grade wool blankets. The filling thread is strengthened by a core thread, which is buried in the filling with the warp threads. Thus these threads are not greatly affected by the napping process and the wrapping may be more effectively napped. After the napping operation the nap constitutes 30% ± 5% of the weight and 60% ± 5% of the volume of the blanket. The napping operation is conducted in the customary fashion and has no special significance in this case.

Blankets made essentially of rayon had been known for many years but until the Purrey blanket was placed on the market no rayon blanket achieved any great degree of commercial success. This was due to the fact that the nap of the rayon blankets prior to Amory was not lofty or uniform and shed easily. Men skilled in the art attributed this to the unelastic, straight, smooth qualities of rayon, and thus they believed that rayon could not be used to produce a blanket similar in quality to a wool blanket. Wool, however, is elastic, curly and rough.

The district court found that the nap produced by application of the Amory patent has the same qualities of warmth and much the same appearance as the nap of an all wool blanket of greater cost, and that the Purrey blanket is light, strong, relatively non-shedding, warm and capable of high moisture absorption. It attributed the successful manufacturing result of Amory's process to the use of essentially staple rayon fibers of at least 1" in length and having a denier of at least 4.00 kept in a randomly intermingled state, and to the use of a core thread around which the wrapping is loosely wound, which serves as an anchor for the ends of the fibers so that the nap is held in place and will not shed easily in the napping process or in laundering.

The defendant challenges claim 7 of the Amory patent as not meeting the standards of clarity required by R.S. § 4888, 35 U.S.C.A. § 33, because it is impossible to determine whether a given blanket infringes the patent. This challenge is based on the defendant's assertion that the word "staple" as used in the claim has no exact meaning. The defendant asserts that the word "staple" is used merely to distinguish short filaments from long filaments; that staple rayon is made by cutting long filaments into relatively short lengths or fibers, ordinarily of uniform length; that staple fibers are found in both the uniformly cut fibers and in garnetted material. The district court held, however, that the word "staple" as commonly used in the rayon industry and as used in this patent, means a filament cut to a predetermined length and that this definition read in the light of the specifications requires that the filling wrapping contain fibers of a predetermined length, preferably 1" to 2", and it concluded that there was no difficulty in deciding which blankets infringe and which do not. We agree with the district court.

Patentees are allowed much latitude in terminology and the language they use will be given the meaning intended by them if it can be ascertained from the context. Strong-Scott Mfg. Co. v. Weller, 8 Cir.1940, 112 F.2d 389, 394. It is immaterial that we must refer to the specifications for an understanding that the fibers are to be cut to a length of between 1" to 2". Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir.1931, 54 F.2d 896, 899.

The defendant further asserts that claim 7 is vague because the phrase "lofty, uniform, homogeneous nap" is meaningless. We agree with the finding of the district court, based on the evidence, that the phrase means a fairly high nap that on cursory inspection does not appear to be appreciably denser in one part than another.

The defendant has cited a number of prior patents, uses and publications, as constituting anticipation of Amory's patent. Although the prior art discloses many and possibly all of the elements used in Amory's invention, no one before Amory had combined all these elements into a single process. It is our understanding Amory did not patent any single element but rather a combination of numerous elements.

The Carleton patent, No. 16870, applied for and granted in 1857, was for the manufacture of cotton flannel. This patent disclosed the use of a "hard warp and filling" for the purpose of allowing the strength necessary to permit a high degree of napping. Amory may have used this principle for the purpose of securing transverse strength but he combined it with many other features not mentioned in the Carleton patent. In addition the Carleton patent does not refer to the adoption of this principle to the manufacture of blankets much less the manufacture of blankets composed essentially of rayon.

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