Schick Dry Shaver v. RH Macy & Co.

Citation28 F. Supp. 1013
PartiesSCHICK DRY SHAVER, Inc., et al. v. R. H. MACY & CO., Inc., et al. SAME v. SEARS, ROEBUCK & CO. et al.
Decision Date26 May 1939
CourtU.S. District Court — Southern District of New York

Abraham Tulin and Reginald Hicks, both of New York City, for plaintiffs.

Pennie, Davis, Marvin & Edmonds, of New York City (George E. Middleton and H. Stanley Mansfield, both of New York City, of counsel), for defendants.

GODDARD, District Judge.

One of these suits was brought by the plaintiffs against R. H. Macy & Co., Inc.; the other against Sears, Roebuck & Company, both of which were selling dry shavers made by the Utility Instrument Company, which company has intervened in both cases with the consent of the plaintiffs. The suits are for infringement of patents for dry shavers. The same patents are alleged to be infringed in the two suits. Macy sells the device manufactured by the Utility Instrument Company under the name "Saybrooke Electric Razor", and Sears, Roebuck & Company sells the same device under the name "Champion Electric Shaver". The Utility Instrument Company, the manufacturer of all of them, markets them itself under the name "Utility Electric Razor"; Macy sold three models of the shaver referred to during the trial as Exhibits 8, 11 and 15; Sears, Roebuck & Company has sold only two of these models, Exhibits 11 and 15.

It is conceded that the plaintiff, Schick Industries, Limited, is the owner of the three patents in suit and that the plaintiff, Schick Dry Shaver, Inc., is the exclusive licensee for the patents in the United States. It is also conceded that the manufacture and sale of the dry shavers by the defendant, Utility Instrument Company, which the plaintiffs complain of, the alleged sale of the dry shavers by R. H. Macy & Co., Inc., and by Sears, Roebuck & Company, occurred within the Southern District of New York.

The subject of the patents sued upon is a mechanical shaving device with which hair upon the face or other parts of the body can be shaved off at the surface of the skin. The hair is removed without the application of lather or cream, so that it is a "dry shaver".

Although there had been some ineffectual efforts to invent a dry shaving implement, it was not until 1930 when Schick produced his dry shaver, the subject of the patents in issue, that anyone, anywhere had ever made or sold an actual dry shaver so far as is known; that Schick had invented a dry shaver which would satisfactorily shave a person. That the public were waiting for a dry shaver that would satisfactorily shave a person, and that Schick seems to have succeeded in producing such a shaver is evidenced by the great number of people who are using them since 1930 or 1931, when it first appeared on the market. Upwards of 2,500,000 have been sold at prices ranging from twenty five to fifteen dollars apiece.

The three patents in suit and the claims of each patent in issue are —

"1. No. 1,721,530, issued July 23, 1929, on an application filed March 31, 1928; of which claims 9, 13, 14, 15, 16, 17, 19, and 20 are charged to be infringed by the first and second models of the defendants' devices. All these claims, excepting the last two, namely, 19 and 20, are likewise charged to be infringed by the third model as well.

"2. No. 1,757,978, issued May 13, 1930, on an application filed April 23, 1928; of which claim 1 is charged to be infringed by all the models in suit.

"3. No. 1,747,031, issued February 11, 1930, on an application filed July 2, 1928; of which claim 1 is charged to be infringed by all three models."

The defendants have interposed the defenses of invalidity and non-infringement.

Patent No. 1,721,530 relates particularly to the head of the shaving device which, speaking generally, includes a uniformly thin shear plate to rest against the skin with openings in it and having walls adjoining the sides of the plate; a movable cutter inside the walls operating underneath the shear plate by a shearing action which takes place on, or practically on, the surface of the skin, with means for supporting the thin shear plate against the external pressure in shaving and any inward flexing by means of the cutter to whatever extent the thinness of the shear plate may require; also means for operating the cutter in co-operation with the cutting or inside edges of the openings in the shear plate. The shear plate is sufficiently thin to provide a close shave, the width of the openings in it being so proportioned to the thinness of the plate that when the plate is used against the skin, the skin forms a cushion or enters into the openings so that the shearing or cutting edges, which are on the inner side of the shear plate, are about flush with the surface of the skin. But the shearing or cutting edges are too close together to permit the skin to enter up into or beyond the slots or spaces between them on the inside surface of the plate, so that while the hairs are thus cut practically at the surface of the skin, the skin is safe from being cut. No moving part touches the skin.

The first model of the defendants' shaver (Exhibit 8) appeared on the market in March, 1937, and has two entirely separate and independent shearing assemblies ranged alongside of each other, separated on the side which comes in contact with the skin by a space or trough, the trough serving no shearing function. The metal of the trough unites them so that they may be operated by the same motive power, and both shear simultaneously throughout the two shearing surfaces. In construction it resembles twin Schick shearing members placed alongside of each other with a space between. Both of its two shearing heads have an extremely thin shear plate to rest against the skin and closely spaced narrow parallel slots extending across the shaving head from side to side and open at both ends. The walls of the slots are open at both ends and slant towards each other and tend to converge above the inner surface of the shear plate. The inner and the outer supporting walls of the twin shear plates are also slotted opposite the slots of the shear plates so that hair may enter into the slots without matting down. Beneath each of the shear plates and enclosed within it and the side walls which support the shear plate, there is a cutter with teeth to engage the blades to provide a shear cut and having flat ends to support the blades and hold them in position; the teeth of the cutter being wider than the space between the blades of the shear plate. Means are provided for reciprocating the cutter along and transversely of the blades. Beneath the two cutters are two springs which exert an upward force which tend to hold the lightly constructed cutters in close contact with the inner surfaces of the twin shear plates.

The second model of the defendants' shaver (Exhibit 11) is constructed and operates like its first model except that (1) its twin shear plate blades appear to have a taper over their shearing lengths from .009 of an inch at the inner ends of the shearing lengths down to .0055 of an inch at the outer ends. But this apparently greater thickness of the blades at these points is practically off-set by the fact that the metal on both sides of the slots toward their inner shearing lengths is progressively more and more bevelled out on the skin contacting sides of the blades, resulting in the blades being in effect the same thickness as they are at the outmost points. So that for practical shaving purposes these blades are of uniform thickness throughout their length. (2) The other difference between defendants' first and their second model is that the grooves cut through the inner side walls of the shear plates opposite or as continuations of the slots are not deep in the second model but this seems to be of little importance as they are of sufficient depth to perform a like function.

Defendants' third model (Exhibit 15) differs from their first model in having its shear plate blades thicker by one or two thousandth of an inch and they taper from about .008 of an inch in thickness down to .007 over the outward extent of their shearing lengths, and its slots have perpendicular side walls; also its slots do not continue through the inner side walls, although extending clear through the outer side walls.

Patent No. 1,721,530

Claim 9 reads: "A shaving implement comprising a holder having a series of blades at its end, the blades being so thin that they need support in shaving, a cutter with teeth to engage the blades to provide a shear cut and having flat ends to support the blades and hold them in position, and means for moving the cutter along the blades, the teeth being wider than the space between the blades."

All three of the defendants' models have thin blades. Each of them has a cutter with teeth to engage the blades to provide a shear cut and have flat ends to fit closely against the shear plate, means for moving the cutter along the blades, the teeth being wider than the space between the blades.

The consequences of a substantial amount of flexing in the shear plate would tend to cause the shearing edges of the inner cutter to collide with the shearing edges of the depressed shear plate blades wearing the edges of both and dulling them. Furthermore, the inner cutter would be pushed out of contact with the blades of the shear plate, which were not depressed, and as a result there would be spaces where the hair entering the slots was not shaved off clear but would be wedged in between the inner cutter and the shear plate and cause pulling of the hair.

The defendants' device has two springs which keep the inner cutter in contact with the shear plate. These springs exert a force of one pound ten ounces and the inner cutter weighs but one sixteenth of an ounce. The plaintiffs urge that these springs, besides serving the purpose of keeping the inner cutter in contact with the shear plate, serve to prevent the flexure of the shear plate blades; that springs exerting a force of...

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2 cases
  • Reeves Brothers, Inc. v. US Laminating Corp.
    • United States
    • U.S. District Court — Eastern District of New York
    • January 23, 1968
    ...to make and use the invention, that is sufficient. Application of Folkers, 1965, 52 CCPA 1269, 344 F.2d 970; Schick Dry Shaver v. R. H. Macy & Co., S.D.N.Y.1939, 28 F.Supp. 1013, mod., 2 Cir. 1940, 111 F.2d 1018. Disclosures, however, are not addressed to persons who are ignorant of the sub......
  • Spee-Flo Manufacturing Corporation v. GRAY COMPANY
    • United States
    • U.S. District Court — Southern District of Texas
    • October 14, 1964
    ...F.2d 160 (9th Cir., 1961); Binks Mfg. Co. v. Ransburg Electrocoating Corp., 281 F.2d 252 (7th Cir., 1960); Schick Dry Shaver v. R. H. Macy & Co., 28 F.Supp. 1013 (D.C.N.Y., 1939). Shortly after plaintiff's patented gun was marketed, the defendant offered its "Golden Gun" and its "FF tips". ......

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