Patents, Inc. v. Gillette Safety Razor Co.
| Decision Date | 09 August 1939 |
| Docket Number | No. 1226.,1226. |
| Citation | 28 F. Supp. 666 |
| Parties | PATENTS, Inc., v. GILLETTE SAFETY RAZOR CO. |
| Court | U.S. District Court — District of Delaware |
Theodore S. Kenyon and Frederick Bachman (of Kenyon & Kenyon), both of New York City, and Charles F. Richards (of Richards, Layton & Finger), of Wilmington, Del., for plaintiff.
Henry R. Ashton and William J. Barnes (of Fish, Richardson & Neave), both of New York City, and Herbert L. Cohen, of Wilmington, Del., for defendant.
This is a suit for infringement of Claims 2, 3, 4 and 7 of Swan U. S. Patent No. 2,046,219 for "Safety Razor" issued June 30, 1936, on an application filed October 17, 1930. The defenses are invalidity, non-infringement and abandonment.
Plaintiff charges infringement by the manufacture and sale of five types of Gillette razors with standard Gillette cutout corner blades, viz.: (1) The original Gillette razor; (2) the New Improved razor; (3) the Bostonian razor; (4) the Aristocrat razor; and (5) the Sheraton razor.
In 1926 Swan filed in the British Patent Office a provisional application for a patent for "An Improved Safety Razor". No drawing was furnished. The application was never followed up by the filing of a complete specification and became forfeited. In the application the only stated object was provision for diagonal wheels to give the razor a diagonal stroke. The wheels were arranged below the blade and left the sharp corners unprotected. In a model made in London Swan retained the old end guard lips of the conventional Gillette razor "to prevent any risk of the corner of the blade catching in the skin". He projected the lips into the plane of the blade and cut out the corners of the blade. At the end of the provisional specification Swan left it optional whether the corners be cut out.
January 14, 1927, Swan obtained in England a design registration of a blade with rounded corners. Shortly thereafter he came to this country. The only invention he then claimed to have made was a razor having wheels to provide a diagonal stroke. The guard lips took the place of the end guard teeth of the conventional razor to prevent, as he said, the corners of the blade cutting the skin. Swan had friends in this country who could have financed his razor. None were interested. In 1928 he laid aside his invention. In January, 1929, he took a job in a brokerage office. In June, 1929, he quit brokerage to exploit the old type Gillette blade in a slot machine which he had designed and for which he filed a patent application. To manufacture the machine he organized the Triple-X Corporation and raised $20,000. If he had had any idea his cutout corner blade was useful he could have manufactured and sold it. Swan admits he had no idea of cutting the corners of the blade to "span the cap corners" of the razor. That function is referred to in Claim 4 of the Swan patent but originated in Thompson's application in the Patent Office.
October 17, 1930, application for the patent in suit was filed. This was nearly four years after Swan came to this country to exploit his invention with wheels. Swan admits that several months before filing an application in the United States Patent Office he had obtained full knowledge of defendant's razor with reinforced cap corners and cutout corners of the blade. In April, 1929, the Thompson application was filed. As early as January, 1930, the Thompson razor and blade had been sold on the market. In the Saturday Evening Post of March 8, 1930, the Thompson razor and blade were fully described as well as its functions. Swan read this description. Swan filed an affidavit in his brother's application in the United States Patent Office stating that he knew about Thompson's claims on October 7, 1930. Afterwards he filed his application and in that application he embodied the Thompson claim to a cutout corner blade to span the cap corners. He discarded the object stated in his British provisional specification. He stated the nature, objects and advantages of his invention "will become apparent from consideration of the following specification taken in conjunction with the accompanying drawings" &c. He sought to use his discarded device to cover the very different idea of Thompson. In his application he gave prominence to guard lips and the cutout corners of the blade. Only in the two last claims did Swan make any reference to the guard wheels. These claims were rejected by the Patent Office on the British Rawson patent No. 26,355 of 1909, which anticipated everything in the guard wheel idea.
Defendant began to manufacture the original Gillette razor in 1903. By 1926 defendant had sold more than 40,000,000 razors. The sole function of the blade cutout corners in this razor was to avoid possible burrs on the cap corners. The New Improved razor is identical with the original Gillette except the fulcrum edges. Neither holder member has projections. The sole function of the blade cutout is still to avoid burrs on the cap corners whenever the cap is dropped. The lugs on each of the cap corners in the Bostonian razor are to reinforce the corners to prevent damage. They do not guard the corners of the blade. The end guard teeth guard the corners of the blade. The Aristocrat and Sheraton razors are identical with the original Gillette as respects the guard. They do not have fulcrum edges nor guarding projections. These razors are of one piece in which the upper clamp members may be swung open like trap doors by turning the handle. The upper clamping members, being permanently attached to the rest of the razor, can not be dropped separately. The effect of dropping the Aristocrat or Sheraton razor is to bend the corner links and other parts so that the razor will not close. The corner links neither perform the function of Thompson's reinforcements, such as were used in the Bostonian razor, nor do they perform the guarding function of the Swan guard lips. Swan did not show his blade to Thompson. Neither Thompson nor the defendant got the idea of cutting out the corners of the blade or providing reinforcing lugs on the cap corners from Swan.
Claim 4 of the Swan patent is typical and reads:
The main feature of each of the claims in suit is the cutout corners in the blade. They are the heart of the alleged invention as claimed. If validity is to be attributed to any of the claims it must be based primarily upon the provision of these cutout corners.
The only function which Swan's guard lips were capable of serving in the razors disclosed in his patent was to guard the blade corners and prevent the razor from cutting the user. If the guarding of the corners of the blade in a safety razor could be thought of as having presented a problem to Swan that problem is the only problem which he could make any claim to have solved by his guard lips and blade cutout corners.
It was common practice in the prior safety razor art to cut out the corners of the blade to fit the razor and also to protect the corners of the blade by lugs or projections on the guard projecting into the plane of the corners. This is fully illustrated in the following prior art patents: Reed, No. 896,153 of 1908; Hetlyn, No. 1,028,461 of 1912; Ballreich, No. 1,246,219 of 1917; Marchese (Canadian), No. 173,126 of 1916; Eklund, No. 1,557,676 of 1925; Hoffman, No. 1,602,613 of 1926; and Hall (British), No. 284,800 of 1928.
It was also common...
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Berghane v. Radio Corp. of America
...invention. And, second, the patents cannot be broadly construed for infringement purposes, as this court in Patents, Inc., v. Gillette Safety Razor, D.C.Del., 28 F.Supp. 666, 670, declared the patent "is a paper patent and must be narrowly construed" (affirmed 3 Cir., 115 F.2d 484). Again, ......