Safety Gas Lighter Co. v. Fischer Bros. & Corwin

• Citation: 236 F. 955
• Parties: SAFETY GAS LIGHTER CO. v. FISCHER BROS. & CORWIN.
• Decision Date: 29 July 1916
• Court: U.S. District Court — District of New Jersey

236 F. 955

SAFETY GAS LIGHTER CO. v. FISCHER BROS. & CORWIN.

United States District Court, D. New Jersey.

July 29, 1916

[Copyrighted Material Omitted]

Louis H. Harriman and William Quinby, both of Boston, Mass., for plaintiff.

James Hamilton, of New York City, for defendant.

HAIGHT District Judge.

The plaintiff is the owner of patent No. 1,011,643, issued to it as assignee of Frederick H. Pomeroy on December 12, 1911, and patent No. 1,021,363, issued to Matchless Lighter Company, as assignee of Joseph B. Gould on March 26, 1912, and subsequently assigned to the plaintiff. Both patents relate to hand-operated devices for igniting gas. The defendant is engaged in the manufacture and sale of such a device, which it is claimed, infringes claims 1, 2, 3, 9, 10, 11, and 12 of the Pomeroy patent, and claims 2, 3, and 5 of the Gould patent.

The devices of the patents in suit, as well as that of the defendant, differ only in minor details of construction. In principle they are the same. Some time prior to the summer of 1903 Baron von Welsbach, a celebrated Austrian chemist discovered a metallic alloy, consisting of cerium and iron, which upon abrasion will give forth a shower of sparks capable of igniting gas. He applied for, and there were issued to him, patents thereon in Austria, France, and this country. The French patent was published on April 4, 1904; the Austrian on February 25, 1905; and on November 27, 1906, the United States patent was issued. The devices of each of the patents in suit were designed to utilize that metal for the purpose before mentioned. Each of them, as well as that of the defendant, consists, broadly speaking, of a contrivance to be held in the hand, made in the form of tongs, one arm of which carries Welsbach's pyrophoric alloy, and the other a file; the arms being so arranged that by pressing the two together with the fingers of the hand the alloy is brought into frictional engagement with the file, and as it is moved along the surface thereof gives off the sparks. They are designed to be held over a gas jet, and when operated will ignite the escaping gas.

The following cuts show the devices of the patents in suit, defendant's igniter, and that of the first Pomeroy patent:

(Image Omitted) The device is simple, and no doubt has proved very useful, especially in lighting gas stoves, as it does away with the necessity for matches, as well as the danger incident to their use. During a number of years preceding Welsbach's discovery, many contrivances were devised and patented in this and other countries, whose object was to eliminate the use of matches in lighting gas, cigars, etc., as well as devices which, while using matches as igniting means, sought to effect the ignition thereof automatically. The prior art exhibits a number of devices wherein an electric spark, flint, etc., were used. It was to be expected, therefore, as was the case, that as soon as Welsbach's discovery was made generally known many devices for utilizing it for the purposes before mentioned would be evolved.

The Pomeroy patent in suit was not applied for until February 18, 1910, although the same inventor had applied on November 19, 1908, and there had been issued to him on November 16, 1909, a patent (No. 940,276) for a gas lighter in which the Welsbach alloy was used, but which, structurally, was quite different than that of the later patent. The Gould patent was applied for on May 14, 1910. The dates of the applications for the patents are, of course, prima facie the dates of invention, respectively, of the devices therein described. It was established, however, by a stipulation filed in the case, that lighters hereinafter referred to as the 'Blitz,' and which were of the same general design, utilized the same alloy, and operated on the same principle as those of the patents in suit, were imported from Germany into and placed on sale in this country as early as November 1, 1909. The plaintiff then deemed it necessary, as it undoubtedly was, if it was to succeed in this suit, to show that the inventions of its patents were made prior to that date.

It is claimed that the Pomeroy invention was conceived and reduced to practice in the month of March, 1908, and the Gould invention 'not earlier than the summer and not later than the fall of 1909. ' Whether or not it is the rule that the plaintiff must establish that the date of the inventions were prior to the time when the Blitz lighter was placed on sale in this country, 'beyond a reasonable doubt,' as some cases hold Thayer v. Hart, 20 F. 693 (C.C.S.D.N.Y.), I think it has failed to prove by evidence 'strong and convincing,' or 'to the satisfaction of the court' (Hunnicutt Co. v. Gaston Co., 218 F. 176, 134 C.C.A. 56 (C.C.A. 3d Cir.); Clark Thread Co. v. Willimantic Co., 140 U.S. 481, 492, 11 Sup.Ct. 846, 35 L.Ed. 521), that Gould's invention, at least as to the form described in the patent, was made prior to April 15, 1910. Although the inventor of the Pomeroy device and his father claim that the lighter, described and illustrated in the Pomeroy patent in suit, was finished in the early part of March, 1908, and the plaintiff has produced the original, and although a number of witnesses swear that a similar, if not the same, lighter was exhibited to them by the father of the inventor as early as March, 1908, the evidence by no means satisfies me that this or any other such lighter had been constructed by Pomeroy at that time, or in fact before the latter part of September, 1908, at the earliest. It, admittedly, was not even conceived until after the elder Pomeroy had read an article in the Scientific American about the Welsbach alloy, and had sent abroad for a sample thereof, and had received the same. The article in question appeared in the issue of February 8, 1908.

The elder Pomeroy's story is that he read this article at a public library about the time that it came out; that his son, the inventor, was then at work on an electric gas lighter; that the thought occurred to him that the alloy might be useful for making a gas lighter, as, indeed, the article indicated it would be; that he wrote Welsbach, who was mentioned in the article as the person who had made the discovery, at Treibach, Austria, where the article stated the alloy was made, for a sample; that shortly thereafter he received such a sample and exhibited it to his son, who experimented with it, and, within a few days thereafter, built the device of the Pomeroy patent in suit. He further states that shortly thereafter he exhibited the device so made to a number of people in the city in which he lived, a majority of whom, I think, were called to corroborate him. After he had testified, the defendant introduced in evidence a letter which the elder Pomeroy wrote on April 15, 1908, to the writer of the Scientific American article, a Mr. Gilbert, in which he referred to the article and asked that he be advised of the address of the maker of the metal, or be informed as to where he could get a 'sample' of it. There was also produced another letter, written by him on June 1, 1908, to the Treibacher Chemische Werke, of Treibach, Austria, the manufacturer of the metal, inclosing a dollar, and asking that there be sent to him by mail 'a sample of best grade of pyrophoric metal for lighting gas. ' A copy of the money order which was inclosed in this letter was also produced. On September 26, 1908, he wrote the same concern, advising it that the sample of the metal had just been received, and stating that he did not understand the cause of the long delay. In the same letter he ordered $5 worth of the metal.

The elder Pomeroy was recalled to explain the apparent contradiction of his testimony which these letters made, but his explanation is disingenuous and unconvincing. He claims that the quantity of metal which he received on the order of February seemed to indicate that the price was very high, and that he then determined to communicate with the writer of the Scientific American article, with the idea of finding out whether he had ordered it from the proper concern. Yet he testified that the sample which he first received came from the Treibacher Chemische Werke, the same concern to which he wrote on June 1st for a sample. If he had already received a sample from that concern, it is inconceivable why he should write for another. In the letter to Gilbert he expresses a desire to procure 'a sample of the metal.' Nor did he in that letter state that he had written to Welsbach, and had received a sample of the metal, and that he was uncertain as to whether he had ordered it from the proper person, or something similar, as...