Wallace v. FW Woolworth Co.
| Citation | 133 F.2d 763 |
| Decision Date | 03 March 1943 |
| Docket Number | No. 147.,147. |
| Parties | WALLACE v. F. W. WOOLWORTH CO. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Pennie, Davis, Marvin & Edmonds, W. B. Morton, and H. Stanley Mansfield, all of New York City (W. B. Morton, of New York City, of counsel), for appellant.
Briesen & Schrenk, of New York City, (Fred A. Klein and Henry C. Quigley, Jr., both of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
This is an action by John H. Wallace, Jr., against F. W. Woolworth Company for infringement of U. S. Patent No. 2,236,387, issued on March 25, 1941, to the plaintiff John H. Wallace, Jr., as assignee of the interest of the joint inventor Wilfred C. Hand.
The subject of the patent in suit is a cosmetic preparation for checking the flow of perspiration. Such preparations have been sold for a number of years and have generally consisted of a water solution of aluminum chloride or aluminum sulphate which have an advantage over other acids and the acid salts of other metals in being cheap and in not deteriorating on standing.
It appears from the specification that the invention relates to improved perspiration retarding or inhibiting compounds. It states that it had been the prior practice to retard the flow of perspiration by the application of solutions containing an acid salt of a heavy metal, usually aluminum chloride or aluminum sulphate, and that such solutions, while effective in stopping perspiration, were unsatisfactory because they frequently produced skin irritations and rotted clothing fabrics in contact with the treated areas. It is said that in an attempt to mitigate the action of these compounds the solutions were permitted to dry on the skin and the skin was thereafter wiped off with a damp cloth before the clothing came in contact with them; but the solutions dried slowly and the precautions were frequently disregarded. The specification goes on to say that in the case of aluminum sulphate the aluminum or aluminum hydroxide ion combines with and coagulates the skin proteins only in the presence of the sulphate radical and that as a result a residue of sulphuric acid remains which rots the clothing. Finally the specification describes a perspiration retarding agent which is claimed as an improved invention that contains a neutral protective ingredient selected from the amides and amino acids of which urea is an example. Claim 12 may be taken as a typical embodiment of the invention and describes the composition of the product as follows:
The question before us is whether it constituted patentable invention to combine urea with a solution of aluminum sulphate when the solution, while sufficient to check the flow of perspiration, would leave a residue of sulphuric acid that would tend to rot fabrics which came in contact with it or to irritate the skin or both. It is established by evidence in the record that the introduction of urea will eliminate or mitigate the effects of any residue of sulphuric acid that is derived from the original solution and is apparently augmented by a reaction from the proteins of the skin.
While the commercial products which have been used as anti-perspirants have consisted of aluminum sulphate or aluminum chloride, the specification named a wide variety of agents comprising strong acid salts "of one or more metals, such as aluminum, zinc, cerium, zirconium, titanium, iron or bismuth. * *...
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