Schick Dry Shaver v. Dictograph Products Co., 7870.

• Decision Date: 31 October 1936
• Docket Number: No. 7870.,7870.
• Citation: 16 F. Supp. 936
• Parties: SCHICK DRY SHAVER, Inc., et al. v. DICTOGRAPH PRODUCTS CO., Inc.
• Court: U.S. District Court — Eastern District of New York

16 F. Supp. 936

SCHICK DRY SHAVER, Inc., et al. v. DICTOGRAPH PRODUCTS CO., Inc.

No. 7870.

District Court, E. D. New York.

October 31, 1936.

Oscar W. Jeffery, Abraham Tulin, and Reginald Hicks, all of New York City (Cooper, Kerr & Dunham and George F. Des Marais, all of New York City, of counsel), for plaintiffs.

Watson, Bristol, Johnson & Leavenworth, of New York City (L. A. Watson, C. V. Johnson, and E. R. Helferich, all of New York City, of counsel), for defendant.

MOSCOWITZ, District Judge.

This is a suit for the infringement of claims 1 and 13 of patent No. 1,721,530 issued to Jacob Schick on July 23, 1929, and claim 5 of patent No. 1,757,978 issued to Jacob Schick on May 13, 1930.

The plaintiff Schick Dry Shaver, Inc., is a corporation organized and existing unof the state of Delaware, and is the owner of the exclusive right to make, use, and sell, and to grant to others sublicenses to make, use, and sell in the United States of America, the inventions of the two patents in suit.

The plaintiff Schick Industries, Limited, is a corporation organized and existing under the laws of the Bahama Islands, and is the owner of the legal title to the patents in suit.

The plaintiff manufactures an electric razor, a dry shaver known as the Schick razor.

The defendant, Dictograph Products Company, Inc., is a corporation organized and existing under the laws of the state of Delaware, and has a regular and established place of business within this district.

The defendant's electric razor, a dry shaver, is known as the Packard Lektro Shaver.

Claims 1 and 13 of Schick patent, No. 1,721,530, read 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."

Claim 5 of Schick patent, No. 1,757,978, reads as follows: "5. A shaving machine comprising a shaving head channel-shaped in cross section and slotted and sharpened on its closed side to form shearing edges, and a cutter channel shaped in cross-section and slotted on its closed side and slidable in the head whereby the slotted ends co-operate to cut hair entering the slots of the shaving head."

The defendant has interposed defenses of invalidity and noninfringement.

The general idea of manufacturing a dry shaver was in itself not new. Prior to the invention of patent No. 1,721,530 attempts had been made in the United States, England and France to manufacture dry shavers. Those efforts, however, were without result. The first attempt to manufacture dry shavers was made about 1900, as is shown in the Drosse patent, No. 664,388, issued December 25, 1900. Nothing effective was done until the invention by Col. Jacob Schick of the patent No. 1,721,530.

The subject of plaintiff's patent No. 1,721,530 is a mechanical dry shaver, a device by means of which the hair can be quickly, readily, and efficiently removed from the face and other parts of the body without the use of soap lathers or creams. The device shown in this patent is an effective dry shaver which may be used without an unpleasant or disagreeable effect. The Schick device described in this patent is new, novel, and useful, and it can be well understood that in all probability this device will revolutionize the manner and method of shaving.

The plaintiff Schick Dry Shaver, Inc. has manufactured and sold dry shavers since 1931. Its gross sales have been approximately $6,000,000. It has had a large commercial success. When the plaintiff's razor first appeared on the market, the public was skeptical of its use. No doubt many still are. The fact that 500,000 are in daily use indicates its success. It is not only used by the public, but is prescribed by physicians for sufferers from skin diseases.

No other dry shaver appeared on the market until December, 1935, at which time defendant's device was sold under the name of Packard Lifetime Lektro-Shaver, manufactured by the defendant, Dictograph Products Company, Inc., for Lektro-Shave Corporation, and distributed by the Progress Corporation.

The Packard shaver is claimed to be manufactured under patent No. 1,970,518, issued to A. Harry Aaron on August 14, 1934. Mr. Aaron is vice president of Dictograph Products Company, Inc., and is president and fifty per cent. owner of the Lektro-Shave Corporation, and vice president of the Progress Corporation. Aaron's ideas concerning a dry shaver were not original. All of his information on the subject was obtained in the home of one Hanley, in New Jersey, on the occasion of a visit which Schick paid to Hanley and in the course of which Schick fully explained his shaver to Hanley in Aaron's presence.

The plaintiff's patent No. 1,721,530 is concerned primarily with the head of the shaver and consists, in general, in the provision of a thin shear plate traversed by a plurality of open-ended slots; beneath the shear plate is an inner cutter, likewise traversed by slots. In combination with these elements, means are provided for rapidly reciprocating the inner cutter transversely of the shear plate slots, so that the cutter teeth (formed by the slots in the inner member) effect a shearing action with the nether edges of the slots in the shear plate. No moving part touches the skin. This combination is set forth in claim 13 in suit. In the preferred form of the device, the shear plate and inner cutter are so organized that, if the thin shear plate should flex, it would be supported by the inner member. This additional feature is specified in claim 1 in suit. The head of the device which actually does the work of shaving consists, first, in the provision of a thin shear plate to bear against the face. This plate is a few thousandths of an inch thick, and is provided with shearing edges underneath, against which the hair is cut as nearly flush with the surface of the skin as is possible. The cutting is performed by the teeth of an inner cutter which bears against the back of the shear plate and travels back and forth across shearing edges.

The plaintiff claims that patent No. 1,757,978 is an improvement over patent No. 1,721,530, in that it provides for the ready escape from the shaver of the cut hair, to the end of avoiding clogging of the device and of facilitating cleaning it. Plaintiff further contends that it consists, in general, of the construction of both the shear plate member and the inner cutter member in channel form, the inner member fitting inside the outer, leaving a clear passage through the center of the head into which the cut hairs pass and from which they are readily expelled as is shown in claim 5.

Defendant has set up the following patents, and claims they anticipate the inventions of the patents in suit or deprive them of invention: The patent to H. Drosse, No. 664,388, issued December 25, 1900; the patent to G. L. Roux, No. 847,609, issued March 19, 1907; the patent to L. Brunacci, No. 911,472, issued February 2, 1909; the patent to K. Kawalle, No. 1,543,387, issued June 23, 1925; the patent to R. W. Gregson, No. 1,730,004, issued October 1, 1929; the patent to M. B. & L. B. Stearns, No. 1,158,741, issued November 2, 1915; the patent to M. B. & L. B. Stearns, No. 1,205,576, issued November 21, 1916; the patent to M. Andis, No. 1,671,265, issued May 29, 1928; the patent to C. I. Matson, No. 1,210,340, issued December 26, 1916; the patent to W. A. Fusch, No. 1,350,717, issued August 24, 1920; and the British patent to G. P. Appleyard, No. 753, issued July 10, 1913. Defendant claims that the Appleyard patent is its best reference. That is readily understood, as the other patents do not in any manner affect the patent No. 1,721,530.

The patent to Drosse, No. 664,388, is the earliest dry shaver patent of those introduced in evidence by the defendant. Drosse refers to his dry shaver as a shaving apparatus, and states that safety is insured by the fact that its action does not depend on the moving effect of a blade, but rather on a kind of shearing action between the two cutting edges. However, Drosse states that the blade is laid firmly against the skin. This would indicate that Drosse's shaving apparatus may cut the skin.

Drosse and Roux both contemplate the use of a constantly rotating cutter member of helical form. It can likewise be said that Brunacci, Kawalle, and Gregson are quite the same generally as Drosse and Roux, as each employs a constantly rotating cutter member, mounted in a cylindrical or part-cylindrical housing, and asserted to cut the hair against the edges of one or more holes in the housing.

All of the patents with the exception of Brunacci resemble the Aaron device, in that they contain a worm device and show and describe a housing having a hole or holes in them. The Aaron device was rejected by the American Safety Razor Company and others as of no value.

The Stearns patents, Nos. 1,158,741 and 1,205,576, and the patent to Andis, No. 1,671,265, lack the thin shear plate with open-ended slots extending across it. They, therefore, have no inner or movable cutter to co-operate with any such shear plate and slots.

Matson and Fusch are very much like...