Reiner v. I. Leon Co.

• Decision Date: 21 December 1960
• Docket Number: Docket 25662.,No. 77,77
• Citation: Reiner v. I. Leon Co., 285 F.2d 501, 128 U.S.P.Q. 25 (2nd Cir. 1960)
• Parties: Kenneth REINER and Frank A. Klaus, Jr., d/b/a Kaynar Company and Kaynar Mfg. Co., Inc., Appellants, v. I. LEON CO., Inc., Appellee.
• Court: U.S. Court of Appeals — Second Circuit

285 F.2d 501 (1960)

Kenneth REINER and Frank A. Klaus, Jr., d/b/a Kaynar Company and Kaynar Mfg. Co., Inc., Appellants, v. I. LEON CO., Inc., Appellee.

No. 77, Docket 25662.

United States Court of Appeals Second Circuit.

Argued November 4, 1960.

Decided December 21, 1960.

Walter P. Huntley, Los Angeles, Cal., William R. Liberman, New York City, Fulwider, Mattingly & Huntley, Los Angeles, Cal., of counsel, for appellants.

Henry L. Burkitt, New York City, for appellee.

Before HAND, SWAN and MEDINA, Circuit Judges.

HAND, Circuit Judge.

This is an appeal from a judgment of Judge Byers, holding invalid for lack of invention claims 1, 2, 3, 4, 7, 10 and 11 of Reissue Patent No. 23,163. We are told that only claims 2 and 3 are in suit. The invention is for "clamps," used to maintain "formed curls" in a woman's hair, and the first question is whether the disclosure was an "invention." The "clamp" consists of two superimposed members, or "jaws," which open and close at one end under spring pressure, between which, when open, the curl is inserted, and which hold it fast when they are closed. It is difficult to give an adequate understanding of the device without the diagrams that are part of the disclosure, but perhaps the following verbal description may serve. Each member of the "clamp" is struck out of a piece of flat metal, and has two parallel prongs, joined together at one end to form a handle. The metal separating the prongs of the upper member is not cut away at the base where it joins the handle and remains attached as a part of the upper member, forming an intermediate tongue. This tongue is first bent upwards and then downwards between the prongs of the upper member. It has a hook at its end which engages the edge of a slot in the lower member between the two prongs of that member.

The handle end of the upper member is bent upwards at a substantial angle, and the handle end of the lower member is slightly bent up, so that the handle ends of the two members are at a substantial angle to each other. When a user of the "clamp" presses together the handle ends, the prongs are forced apart against the resulting distortion of the tongue of the upper member, and the curl is inserted; and when this pressure is relieved, the prongs close again, grasping the curl.

Were this all, there would be nothing to keep the members from shifting laterally on each other, although they would rock and the prongs would open and close on a fulcrum along the line where the plates are in contact. To remedy this defect the members are held together as follows. Near the handle end of the lower member two "spurs" are struck up out of the metal, and pass into corresponding "sockets" or holes in the upper member, large enough to receive the "spurs" with a loose accommodation. This coaction of sockets and "spurs" makes the two members functionally one, the members being held together by the engagement of the hook at the end of the tongue of the upper member to the lower member. Since the tongue spans the fulcrum of the "clamp," nothing more is necessary; the members will rock upon each other on the line of the "spurs" and sockets as long as the hook at the end of the tongue engages the slot between the prongs of the lower member.

The original application was filed on July 24, 1946 and a patent was issued on January 18, 1949. An application for reissue was filed on July 12, 1949, on which the reissued patent in suit was granted on November 1, 1949. Before the date of the original application a number of patents for hair curlers had issued, and it is against the background of these that we must appraise the invention in suit. The first of them was Goodman's patent, No. 1,893,281, issued on January 3, 1933, one object of which was stated to be "to provide a light, strong and durable spring clip which is constructed without a hinge or pivot pin, and which may be readily manufactured on a high production basis at a relatively low cost" (p. 1, lines 8-12). It disclosed a "clamp," or a "clip," without pivot or hinge. This was followed on February 13, 1934, by a patent to Widerman, No. 1,946,561, which was "hinged." In 1936 a patent was issued to Lindsay, No. 2,031,377, for making a "hair curler," one object of which was making a curl which could be "replaced by an article of less size thereby promoting the drying of the hair" (p. 1, lines 25, 26). In 1938 a patent was issued to Jones, No. 2,133,145 (which is incidentally the closest of all the prior art to the patent in suit), and whose purpose was that "the formed curls will be held in curled condition while the hair is moist" (p. 1, lines 4, 5). On February 28, 1939, a patent was issued to Fuscaldo, No. 2,149,214, one object of which was to provide "a new and improved pin or clip that may be removed without becoming entangled in the hair or the net worn by the user" (p. 1, lines 12-15). On July 14, 1942, a patent was issued to Boxer, No. 2,289,749, "for holding relatively flat curled curls or ringlets of hair during drying or `setting' after which the device is to be removed" (p. 1, lines 2-4). On August 1, 1944, Leon filed an application for a design patent for a curl clip.

Thus, between the appearance of Goodman and application for the original patent in suit an interval had elapsed of thirteen years, the art had disclosed seven "clamps" for hair curlers; and the answer to the need for such a device had obviously been the subject of much experiment. How far any of these succeeded the record does not show; but it is apparent that the patent in suit has been widely accepted. Reiner, one of the inventors, had been in a war industry, and had had no experience in women's dress or adornment. Braga, his associate, was, so far as appears, equally unfamiliar with the subject matter. The record does not specifically show what attracted them to this kind of device; but it at once achieved an unexpected success. In the first year — 1946 — its sales approximated $40,000, which at ten cents for every three clamps meant a sale of over a million clamps, and in twelve years the sales had reached 90 million. In 1957 they were about 750,000 a day, and by 1958 the plaintiff had established an...