Muench-Kreuzer Candle Co. v. Wilson, 15132.

• Decision Date: 24 June 1957
• Docket Number: No. 15132.,15132.
• Citation: 246 F.2d 624
• Parties: MUENCH-KREUZER CANDLE CO., Inc., a corporation, Appellant, v. Lester F. WILSON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

246 F.2d 624 (1957)

MUENCH-KREUZER CANDLE CO., Inc., a corporation, Appellant, v. Lester F. WILSON, Appellee.

No. 15132.

United States Court of Appeals Ninth Circuit.

June 24, 1957.

Lyon & Lyon, Charles G. Lyon, Los Angeles, Cal., for appellant.

H. Calvin White, Los Angeles, Cal., for appellee.

Before STEPHENS, CHAMBERS and BARNES, Circuit Judges.

CHAMBERS, Circuit Judge.

This is a patent suit involving Wilson's Magi-Color candle and Muench-Kreuzer's Make-a-Rainbow candle. Wilson holds patent No. 2,464,361 for Magi-Color.¹ The Make-a-Rainbow, which as it burns achieves the same result, is unpatented.

A little candle history is pertinent. Mention of candles is found in the Bible.² And their use has continued through the centuries. For many years in the modern era one of the objectives of candle makers has been to eliminate the dripping of wax as the candle burned. Finally, having achieved a virtually dripless candle, at least dripless in the absence of wind, men turned about face, at least in the novelty field, and sought to achieve again the maximum drip or messiness attainable from a candle. A "dripper" is easily obtained by reducing the size of the wick in relation to the body of wax or by keeping the same wick and increasing the circumference of the surrounding wax. Too small a wick for the size of the body reduces the amount of capillary attraction of hot wax into the wick; thus the hot wax in the bowl under the flame cannot all be consumed in burning. So it runs or drips over the sides.

And into this trade of making dripping candles has come color. The underlying concept of the Wilson candle patented on March 15, 1949, and produced as Magi-Color, was a surprise package. There would be successive drippings of different colored waxes spilled over the side. Perhaps, red, then blue, then yellow, then green and then orange. If Wilson had simply piled a wide collar, band or ring of wax of one color after another around a wick from top to bottom, he could have achieved the Jacob's coat effect on the unburned candle and also again in the drippings when it was burned. But he wanted the surprise. So, in building a candle that was white on the outside, he put collars of wax in solution but in high concentration (called mother color or muetter farben in the trade) around the wick. These collars, after application, were well secreted from the exterior of the candle and not visible from the outside.³ Sometimes the collars of color were contiguous to each other along the wick. At other times uncolored collars of wax separated those that were colored. Again there would be space on the wick between colored rings which was not filled in until the real body of the candle was made by adding the body wax⁴ or candle stock for the body, either by dipping or molding. With this procedure worked out, Wilson applied for his patent. To get a patent at all, Wilson had to restrict his original claims and even then he had to carry it up to the Board of Appeals of the Patent Office. As a minimum, Wilson had a good timely commercial idea and at least one unlicensed competitor, Muench-Kreuzer, was quick to come out with a similarly constructed candle. Under threat of Wilson's claims of infringement, Muench-Kreuzer changed its production methods by adding two more steps to the process. It made a pencil sized taper with the wick inside of that. Then it painted at spaced intervals on the outside of the small taper bands or collars of mother color. Then with further dipping (or molding) the candle was built up to its normal size, the surprises hidden from the outside view.

We are not told how long the practice has obtained, but it is apparent that candles have been made for some time with a wax jacket of color which contrasted with the core of the candle. Also, there has been vertical striping or striping generally upward but following the pattern of rope cording or twisting.

With this preliminary matter stated, it is now appropriate to set forth the claims of Wilson as they were finally allowed:

"I claim:

"1. A drip candle comprising a wax-like body, different wax-soluble dyes normally concealed within the interior of the body at different locations longitudinally thereof and normally undissolved in the wax of said body,⁵ said dyes dissolving in the melted wax of the body to form multi-colored drippings as the candle progressively burns. (Emphasis supplied.)

"2. A drip candle having a wax body and a wick containing a coloring material which dissolves in the wax as the candle burns to form drippings colored different from the normal exterior color of the candle.

"3. A drip candle having a wax body and a wick containing different coloring materials which dissolve in the wax as the candle burns to form multi-colored drippings.

"4. A drip candle having a wax body and a wick, spaced successive portions of which are impregnated with coloring material which dissolves in the wax as the candle progressively burns to color the drippings differently from the exterior color of the candle.

"5. A drip candle having a wax body and a wick, successive portions of the wick being impregnated with different colored dyes which dissolve in the wax to produce multi-colored drippings as the candle progressively burns.

"6. A drip candle having a wax body and a wick, successive portions of which are impregnated alternately with wax and different colored dyes which dissolve in the wax to produce multi-colored drippings as the candle progressively burns."

If the claims are valid, Muench-Kreuzer, the defendant, (appellant here) clearly infringed the Wilson patent until September 5, 1952, when it modified its method by moving the mother color slightly away from the wick toward the periphery. When Wilson as plaintiff, now appellee, on March 6, 1953, brought this suit, patent infringement was admitted by the defendant until September, 1952, on condition the Wilson patent be found valid. After the change of September, 1952, Wilson can only stand on claim (1) for infringement. This he concedes. The district court found that Muench-Kreuzer's Make-a-Rainbow under the modified method — colors around the slender taper instead of the wick — did infringe, as well as holding the whole patent valid with the consequent infringement of Muench-Kreuzer prior to September, 1952, when Make-a-Rainbow was essentially a Chinese copy of Wilson's Magi-Color. The usual injunction and accounting were decreed.

On this appeal, according to our analysis, the judgment must be reversed and the Wilson patent declared invalid. After making due allowance for the proposition that all inventions once achieved are obvious once one understands the field and for the corrollary that such "after-seen" obviousness does not blight patentability if the inventor really has something new, we believe that there is too little that is really new in Magi-Color to protect it.

Our reasoning is as follows:

1. Aniline dyes of one kind or another have been used commercially for over a hundred years. The Sterry British patent of 1871, a patent designed only to improve the color of a candle made with cheap paraffine,⁶ speaks, in effect, of secreting aniline color in so much of the wick as is embedded within the wax, leaving the white ends of the wick exposed.

2. It is the...