Nicholl, Inc. v. Schick Dry Shaver, 8769.

• Citation: 98 F.2d 511
• Decision Date: 11 August 1938
• Docket Number: No. 8769.,8769.
• Parties: NICHOLL, Inc., v. SCHICK DRY SHAVER, Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

98 F.2d 511 (1938)

NICHOLL, Inc., v. SCHICK DRY SHAVER, Inc., et al.

No. 8769.

Circuit Court of Appeals, Ninth Circuit.

August 11, 1938.

Lyon & Lyon, Frederick S. Lyon, Leonard S. Lyon, and Henry S. Richmond, all of Los Angeles, Cal., and Jesse W. Curtis, Jr., of San Bernardino, Cal., for appellant.

William Gibbs McAdoo, of Los Angeles, Cal., and Abraham Tulin, of New York City, for appellees.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

This is an appeal from an interlocutory order which, in a patent infringement suit brought by appellees, Schick Dry Shaver, Incorporated, Schick Industries, Limited, and Edises, Incorporated, in the District Court of the United States for the Southern District of California against appellant, Nicholl, Incorporated, an inhabitant of that district, enjoined appellant, pendente lite, from manufacturing, selling, advertising or offering for sale any shaving implement embodying the invention covered by patent No. 1,721,530¹ and, particularly, the Nicholl Velvet Shaver or the Nicholl Velvet Shaver, Model M.

The sole question is whether, in granting the injunction, the District Court abused its discretion. If not, the order should be affirmed. Kings County Raisin & Fruit Co. v. United States Consolidated Seeded Raisin Co., 9 Cir., 182 F. 59, 60.

The patent was issued to Jacob Schick on July 23, 1929, and was by him assigned to one Baker, who in turn assigned it to Schick Industries, Limited, of which Schick Dry Shaver, Incorporated, is, in the United States, the sole licensee. Edises, Incorporated, is a sublicensee of Schick Dry Shaver, Incorporated. The title of appellees, as owner, licensee and sublicensee, respectively, is not questioned.

The specifications state:

"This invention relates to an improved shaving implement that has a shear plate that rests against the face and has a cutter operating under the plate to cut the hairs. The machine can be used for shaving without the use of lather.

"The invention comprises an implement in which the shearing action takes place practically on the surface of the skin as the shearing plate or its equivalent is extremely thin. The thin plate is held in place against flexing and collapsing under inward pressure by the cutter which is disposed inside the shearing plate to co-operate with it in shearing and to support it against flexing.

* * * * *

"The device is constructed to present a shear plate for movement along the skin, which plate has slots with both ends open. This form therefore provides a plate with no defined front or back but which can be moved back and forth across the skin and can therefore rest close to the skin and the hairs that are still uncut and in the slots do not raise the device out of close contact with the skin. This allows a very close shave to be accomplished. The inside cutter that operates across these slots and transverse relative to the direction of movement of the machine cuts across the edges of the slots to sever the hair, the slots being close together to form a series of narrow teeth which are prevented from moving inwardly by the support given by the inside cutter, which cutter has its teeth arranged on the end as differentiated from prior cutting devices in which the movable cutters have the teeth operating alongside the shear plate."

The patent contains 21 claims, of which only claims 1 and 13 are here involved. They are as follows:

"1. A shaving implement comprising a shearing plate of extreme thinness to rest against the skin, having an opening for the reception of hair, a cutter to travel across the opening to provide a shear cut with one edge of the opening, and means for holding the parts to insure the supporting of the plate against flexing by means of the cutter."

"13. A shaving implement comprising a shear-plate with slots extending from side to side, a cutter under the plate and having teeth to co-operate with the edges of the slots in cutting, and means for operating the cutter transversely of the slots."

Claims 1 and 13 were construed and, as construed, were held valid by the Circuit Court of Appeals for the Second Circuit in Schick Dry Shaver v. Dictograph Products Co., 2 Cir., 89 F.2d 643, decided April 12, 1937. They do not appear to have been considered or passed on by any other appellate court. In the Dictograph Case, as in this case, it was argued by defendant that British patent No. 753, issued to one Appleyard in 1914, was a complete anticipation of Schick. The court said (pages 645, 646):

"We are not now concerned with how much Schick took from Appleyard except in so far as that helps determine whether Schick disclosed and covered in the claims in the suit something patentable either by itself or in combination with what was old. The importance of Appleyard's patent in this connection lies only in the fact that it embodies for present purposes everything material that was old. * * * So it is enough on validity if Schick, regardless of how much he may have taken from Appleyard, made one or more patentable improvements which he disclosed and covered in his claims in suit. We think he did just that at least in (1) providing the shear plate throughout of extreme thinness; having (2) slots extending all the way across from edge to edge; and (3) a cutter bar supporting the shear plate, throughout its entire width, against flexing. * * *

* * * * * *

"Claim 1 calls for extreme thinness in the shear plate without otherwise defining more definitely the degree of thinness. But that is not fatal. The claim is to be read in connection with the disclosure of the specifications and given of permissible meanings the one which will fairly...