Sperry Rand Corporation v. Knapp-Monarch Company, 13678

• Decision Date: 08 August 1962
• Docket Number: No. 13678,13679.,13678
• Parties: SPERRY RAND CORPORATION, Appellant in 13,678, v. KNAPP-MONARCH COMPANY, Appellant in 13,679.
• Court: U.S. Court of Appeals — Third Circuit

307 F.2d 344 (1962)

SPERRY RAND CORPORATION, Appellant in 13,678, v. KNAPP-MONARCH COMPANY, Appellant in 13,679.

Nos. 13678, 13679.

United States Court of Appeals Third Circuit.

Argued January 23, 1962.

Decided August 8, 1962.

Zachary T. Wobensmith, 2d, Philadelphia, Pa. (Clyde A. Norton, Henry Turin, New York City, on the brief), for Sperry Rand Corporation.

Norman Lettvin, Chicago, Ill. (George J. Harding 3rd, Busser, Smith & Harding, Philadelphia, Pa., Norman Lettvin, George B. Newitt, Bair, Freeman & Molinare, Chicago, Ill., on the brief), for Knapp-Monarch Co.

Before KALODNER, STALEY and SMITH, Circuit Judges.

SMITH, Circuit Judge.

These appeals are from a judgment entered in an action under the patent laws and involve the usual issues of validity and infringement. The patent in suit, No. 2,253,037, issued in August 19, 1941, on an application filed by one Raymond Knapp in November of 1937. The court below held claims 1, 5 and 11 invalid and not infringed; it held claim 13 valid and infringed. The defendant has abandoned its appeal from that portion of the judgment which relates to claim 5.

PATENT IN SUIT

The patent in suit, admittedly owned by the defendant, covers a cutter head employed in an electric dry shaver of the flat-face type. The subject of the respective claims is a combination, the elements of which are presumptively old in the art. Richards v. Chase Elevator Co., 159 U.S. 477, 486, 16 S.Ct. 53, 40 L.Ed. 225 (1895); Pierce v. Aeronautical Communications Equipment, 255 F. 2d 458, 462, 463 (5th Cir. 1958), and the cases therein cited. This presumption aside, the elements of the invention as defined are, in fact, old in the art. The claims in issue must be scrutinized "with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements." Great Atlantic & Pacific Tea Company v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 95 L.Ed. 162 (1950).

The invention is defined broadly in claim 11, which is typical, as follows:

"A hair clipper comprising two spaced plate sections formed of sheet metal and having their end portions bent outwardly and then inwardly toward each other to form a flat skin contacting surface and separated from each other by a longitudinal extending imperforate rib, a spacer between said plate sections, means for securing said spacer and plate sections together, slots in said plate sections extending through and transversely of the outer bends exclusive of the rib, and a movable cutter within the plates provided with spaced teeth on opposite sides of the rib making shearing contact with the slotted portions of the plates on the flat face only thereof and means for reciprocating the cutter." (Emphasis by this Court.)

The novelty in the invention as defined, according to the defendant, "lies in the specific combination of" the elements.

The invention of claim 11 is comprised of the following elements: (a) An outer cutter stamped from a thin metal sheet the end portions of which are bent outwardly and then inwardly toward each other, thereby forming a flat surface and side walls; (b) an imperforate channeled rib extending longitudinally through the midde of the flat surface; (c) a multiplicity of transverse notches extending through the outer bends and inwardly toward, but short of, the rib; and (d) a reciprocable inner cutter provided with a multiplicity of spaced teeth on opposite sides of the rib and so disposed within the outer cutter as to permit "shearing contact" on the flat surface only. The essential inventive features, according to the specifications, are: (1) a construction which permits utilization of sheet or other thin metal; (2) the specific arrangement of structural elements; and (3) The use of the imperforate rib to reinforce "the bottom part of the plate where it engages the face".

We see no reason to quote claim 13 of the patent in suit. It varies from the invention defined in claim 11 in that the end portions of the metal sheet, of which the outer cutter is made, are bent outwardly and then inwardly so as to form pronounced convex corners along the opposite linear edges of the flat surface. The inner cutter is so disposed within the outer cutter that the teeth of the former are in spaced relation to the convex corners so that the shearing contact occurs only on the flat surface. This arrangement of the structural elements also provides "a comb-like action." The defendant contends that the invention of claim 13 embodies as an additional inventive feature the convex corners in spaced relation to the teeth of the inner cutter. The "comb-like" action is ascribable to the specific arrangement of the structural elements.

PRIOR ART

The cited references, except the French patent to Gaiztarro, are not prior art in the usual sense, but their disclosures are relevant and material to the issues of prior invention and patentability. Alexander Milburn Co. v. Davis, etc., Co., 270 U.S. 390, 399, 46 S.Ct. 324, 70 L.Ed. 651, et seq., (1926); Ellis-Foster Co. v. Reichhold Chemicals, 198 F.2d 42, 44 (3rd Cir. 1952); Van Der Horst Corporation of America v. Chromium Corporation, 197 F.2d 791 (2nd Cir. 1952); Permo, Inc. v. Hudson-Ross, Inc., 179 F.2d 386, 389 (7th Cir. 1950). A patent issued on an application antedating the application for the patent in suit is the equivalent of a printed publication and speaks as of the date of the application regardless of the date on which the patent issues. Ibid. Such a patent must be given a construction consistent with the scope of its disclosures.

The patent to Gaiztarro, issued in July of 1935, fully and adequately describes an electric dry shaver and the cutter assembly therein employed. The cutter assembly comprises the following elements: (a) an outer cutter, consisting of two rows of cutters in spaced relation and separated by a channeled rib, the horizontal plane of which is imperforate. Each row of cutters is provided with a multiplicity of transverse notches extending across the flat surface and through the outer and inner linear corners thereof; the said corners are rounded and extend slightly beyond the plane of the side walls of the outer cutter; (b) a reciprocable inner cutter structurally identical with that of the outer cutter, except that the corners of the flat surface are rectangular and do not extend beyond the plane of the side walls of the inner cutter. It seems obvious that the structural elements are so arranged as to provide a shearing action on the flat surface only and a comb-like action.

The patent to Schmitt, No. 2,099,537, issued in November of 1937, on an application filed on July 17, 1936, relates to an electric clipper and dry shaver. This reference discloses a cutter mechanism comprising the following: (a) a rectangular outer cutter; (b) a multiplicity of transverse notches extending through and across the flat surface thereof; (c) a multiplicity of "blades," alternately disposed between the notches, having tapered projections "for guiding the hair into the notches for the cutting operation"; (d) a reciprocable inner cutter rectangular in shape and comprised of the following: (1) a multiplicity of transverse notches extending through and across the flat surface thereof; (2) side-wall recesses "adjacent the tapered end projections." The transverse notches of the inner cutter are in spaced relation to the tapered end projections of the outer cutter, thereby providing "clearances for hairs, particularly long ones, to straighten out prior to the cutting operation." The shearing action occurs on the flat surface only, and the arrangement of the structural elements provides a comb-like action.

The patent to Gur Arye, Patent No. 2,281,434, issued in April of 1942, on an application filed on September 23, 1936, antedating the application for the patent in suit by more than a year. We...