SS Kresge Co. v. Davies, 11642
| Citation | 112 F.2d 708 |
| Decision Date | 25 July 1940 |
| Docket Number | 11643.,No. 11642,11642 |
| Parties | S. S. KRESGE CO. v. DAVIES. F. W. WOOLWORTH CO. v. SAME. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Kenneth S. Neal, of New York City (Page S. Haselton, of New York City, and John H. Sutherland, of St. Louis, Mo., on the brief), for appellants.
Thomas E. Gillespie, of St. Louis, Mo. (Howard G. Cook and Walter R. Mayne, both of St. Louis, Mo., on the brief), for appellee.
Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge.
These are patent infringement suits brought by the appellee, James O. Davies, as plaintiff below, owner of Davies patent, No. 2,040,599, for a certain invention in "superfluous hair removers." The bills of complaint were substantially identical, each alleging infringement. The answers denied the validity of the patent and likewise denied infringement. The suits were consolidated for purpose of trial. The lower court held the patent to be valid and infringed as to all of its claims by the sale of a sandpaper product known as the "E-Z Hair Removing Glove" manufactured by defendants. The parties will be referred to as they were designated in the lower court.
The specification of the patent states that: "This invention relates to a novel method of removing superfluous hair and to a means for practicing said method." It declares that the primary object of the patent is to provide a novel method for removing superfluous hair without the use of chemicals or sharp instruments, whereby the skin is not irritated and the growth of hair is not stimulated. It further says that additional objects are to provide a sheet of flexible material of suitable size and shape so that it can readily be manipulated and having one side provided with abrasive material of predetermined fineness whereby the sheet can be rubbed over the skin surface so that the abrasive substance breaks up the cells of the hair, the degree of fineness of such abrasive substance being so determined that only the cells of the hair are acted upon and the cells of the skin are not affected thereby. It is further declared that this abrasive substance is preferably made from volcanic rock ground to a predetermined degree of fineness so that the abrasive surface is very effective in tearing down the hair structure without affecting the skin. It is also declared that by actual experiments it has been found that an abrasive substance formed of volcanic rock ground to 400A grade is the most suitable for this purpose; that this volcanic rock is a rare mineral consisting of the silicates of beryllium, manganese and calcium, and that the angularity of the ends of each crystal is substantially the same as the angularity of the scales of the hair and that: "This peculiar structure of the crystals permits the latter to engage the hair and break it down without affecting the cells of the skin." It further says that to remove the hair, the pad described in the drawings is placed on the skin with the abrasive surface contacting the skin and is then rubbed over a small area, only gentle pressure being used; that this rubbing action causes the abrasive surface to act upon the cells of the hair so that the hair structure is broken down, but as the abrasive surface is of considerable fineness it does not affect the skin or cause irritation thereof. It further says that the remover can be used without danger or injury to the skin and that no preparation or treatment of the skin is required either before or after the use of the remover; that the remover not only does not injure the skin but on the contrary, due to the massaging action, stimulates it and maintains it in a smooth and healthful condition.
There are nine claims in the patent. For the purpose of the issues here, they are so near alike that claim 1 may be taken as typical. It reads as follows: "An article of manufacture, comprising a hair remover for personal use, including a flexible carrier adapted to be rubbed over the hairy surface and having on its face an abrasive substance adapted to engage and break down the hair structure, said material being of a fineness and character to interengage with the hair structure but in normal use incapable of scratching or impairing the skin, and said flexible carrier being adapted to be held by the hand and conform under pressure of the latter to the hairy surface over which it is moved."
Claim 2 differs from claim 1 only in that the abrasive surface is said to be "ground volcanic rock." Claim 3 calls for ground volcanic rock of a grade of approximately 400A; and claim 4 is similar to claim 1 but a little more in detail as to how the flexible carrier is formed to underlie the hand. Claims 5, 6, 7, 8 and 9 are referred to as "method claims," with instructions as to how the device should be used. Each of the descriptive claims contains the qualifying words, "in normal use incapable of scratching or impairing the skin," and these words are also found in each of the so-called method claims.
Defendants' E-Z products use regular commercial silicon carbide as the abrasive, in the size of grain designated in the trade as "400." From the physical exhibits it appears that defendants' product presents two exposed sandpaper surfaces and is strikingly similar in shape and construction to the device shown in the Bayley patent, No. 2,046,240, not here involved, and under which plaintiff claims no rights. Defendants' product has been made substantially in the form disclosed in the Bayley patent and merchandised by slipping it over a hand-shaped piece of cardboard. It has a red-colored layer of paper glued to the back of the sheet of paper which carries the abrasive grains.
In considering the question of infringement, we must compare the accused product or device with the teaching of the patent in suit as disclosed by the specifications and claims, rather than with plaintiff's commercial device. A study of the file wrapper discloses that plaintiff limited all his claims to an abrasive "in normal use incapable of scratching or impairing the skin." Other claims not so limited as to the quality of the abrasive were presented but rejected and...
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