Steigleder v. Eberhard Faber Pencil Co., Civ. No. 7025.
| Decision Date | 19 November 1948 |
| Docket Number | Civ. No. 7025. |
| Citation | 81 F. Supp. 143 |
| Parties | STEIGLEDER v. EBERHARD FABER PENCIL CO. et al. |
| Court | U.S. District Court — District of Massachusetts |
Avery, Dooley, Post & Carroll, Herbert S. Avery and Charles E. Cunningham, all of Boston, Mass., for plaintiff.
Kenway, Jenney, Witter & Hildreth and Herbert P. Kenway, all of Boston, Mass., for defendants.
This is a patent infringement suit brought by Frank N. Steigleder against Eberhard Faber Pencil Company, Jordan Marsh Company, William Filene's Sons Company, R. H. White Company, Thorp and Martin Company, and James R. Armington for an accounting for profits and damages and a preliminary and final injunction against further infringement by said defendants. The defendants move for summary judgment on the pleadings, deposition of the plaintiff, and admissions of fact made by the plaintiff, under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that as a matter of law they are entitled to judgment that they have not infringed the patent in suit.
The plaintiff alleges that several common types of ball point pen, manufactured by the defendant Eberhard Faber Pencil Company or by other manufacturers under agreements with the Eberhard Faber Pencil Company and sold at retail by the other defendants herein, infringe the claims of his Patent No. 1,875,184, dated August 30, 1932, for a Liquid Ink Eraser for Pocket Fountain Pens and Desk Set Fountain Pens. The patent contained three closely similar claims. Claim 1 may be taken for the purposes of this case as typical of all three and reads as follows:
The patented invention was intended to operate as an ink eraser by serving as a device for spreading liquid ink eradicator on paper or a similar surface which had been written on. This ink eradicator was contained in a rubber sack from which it could flow into a hollow cylinder or sleeve. A ball valve was placed in the outer end of this sleeve, this outer end being crimped slightly inward to afford a valve seat, and the ball valve being held firmly seated therein by a spring placed inside the cylinder and exerting pressure between the ball and the inwardly directed fingers on which it bore at the other end of the sleeve. The outer surface of the ball projected beyond the end of the sleeve and when pressure was exerted thereon by pressing the device against the paper, the spring was compressed, the ball valve unseated, and an opening thus provided through which the ink eradicator flowed out onto the ink to be erased. Other fluids could be used in place of the ink eradicator. Thus, as the patent application points out, ink could be used and the device could serve as a writing instrument.
The important characteristics of the pens which are alleged to infringe, so far as these concern the issue of infringement, are set forth in the statements of the plaintiff in his deposition. In regard to the allegedly infringing pens, he admitted that in none of them which he examined was there any spring (stenographic record of deposition, Q. 13, p. 3) nor any inwardly pointing finger at the end of the sleeve (Q. 24, p. 5); that in none of them was there any element placed behind the ball to retard the turning movement of the ball (Q. 18, p. 4) nor anything behind the ball to exert pressure on it (Q. 15, p. 4); that instead, the ball in these pens is kept in position by the shoulder or socket in which it is held so that it is not possible for the ball to be moved longitudinally along the body of the pen (Q. 16, 17, p. 4) and that its only possible movement is within the limits of the tolerance or clearance of about .001 or .002 of an inch between the ball and its socket (Q. 21, p. 5) which allows the ball to rotate freely in the socket and thus feed ink to the paper (Q. 22, p. 5). As is seen, there is in both the patented device and the allegedly infringing device a ball seated in the opening at the outer end of a sleeve or housing.
Plaintiff contends that the ball valve set forth in his claims is the essence of his invention, and that the pens made or sold by the defendants are infringements in that they substantially embody in their structure and operation the principle of his ball valve. Defendants contend, on the other...
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...in patent cases where infringement is charged. Rubinstein v. Silex Co., 73 F.Supp. 336 (S.D.N.Y.1947); Steigleder v. Eberhard Faber Pencil Co., 81 F.Supp. 143 (D.Mass.1948). Therefore, it appears to this court that a motion for summary judgment for infringement or non-infringement may be gr......
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