Appeal from the District Court of the United States for the District of Delaware; John P. Nields, Judge.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
This is an appeal from a decree dismissing a bill in a patent infringement suit. The patent in question is Swan Patent No. 2,046,219 issued June 30, 1936 relating to safety razors. The defendant denied the validity of the patent and the infringement. The litigation arises out of defendant's attempted solution of a difficulty which had been a source of trouble to both the manufacturers and users of Gillette razors. Injury to the corners of the cap of the oldfashioned type of Gillette razor, caused by dropping or other type of blow, resulted in destroying the proper alignment of the blade in the holder. This, of course, interfered with the efficiency of the instrument in shaving to the dissatisfaction of the user and eventually loss to the maker. The problem was met by the Gillette Safety Razor Co. through its chief engineer, Mr. Thompson, by the reenforcement of the corners of the cap of the razor and the creation of a blade with the corners so clipped or recessed that the cap extended beyond the corners of the blade. The essential improvement was the spanning of the recesses in the blade. Even a considerable blow would not, if the blade was not flush with the corner of the cap, seriously interfere with the proper operation of this razor. The extra lugs at the corners were valuable only in strengthening the frame against injury through dropping or other accident to it. This improvement was devised in 1929 and the defendant in 1930 announced a new razor manufactured in accordance with the above changes.
Meanwhile, plaintiff's assignor, Swan, had developed in England a safety razor and had had models made there. He came to this country in 1927 and disclosed his invention to Mr. Fuller, director of the defendant corporation, and to Mr. Thompson, its chief engineer. As described in the British application*fn1 Mr. Swan's invention elated to "an improved safety razor and has for its object to provide an arrangement and construction of safety razor of the type employing a series of rollers to act as a guard and guide the direction of movement of the razor." These wheels or rollers were set at an angle both to the plane of the blade and to the cutting edge of the blade. This of course left the sharp corners of the blade unprotected. The British specification went on to say:
"Guards may be provided at each corner of the blade so as to prevent any risk of the corner of the blade catching in the skin. Such guards may comprise lateral projections at the ends of each side of the upper plate or platform which projections extend substantially level with or slightly beyond the edge of the blade and are located at the corners thereof. Other forms of guard may, however, be combined with the cover plate which clamps the razor blade upon the platform or in any other desired manner.
"If desired this cover plate may have projections at each corner extending sufficiently to act as a protection for the corners of the blade either in addition to or instead of similar projections arranged upon the platform upon which the blade is supported.
"If desired suitable recesses may be provided in each corner of the blade so as to permit the projecting corner guards to engage therein so as to more effectively screen the corners of the blade without obstructing its use during shaving."
The application for the patent in suit was filed in October, 1930. Interference claims between Gillette and Swan resulted and claims 2, 3, 4 and 5 of the Swan patent were in issue. The Court of Customs and Patent Appeals decided in favor of Swan on those claims. Swan v. Thompson, 1936, 80 F.2d 374. Thereafter the Swan patent was granted on June 30, 1936. The present suit involves claims 2, 3, 4 and 7.
The plaintiff says that the real subjectmatter of his claims, read in the light of the patent disclosure, is as follows:
"First, as defined in claim 4, the combination of a cut-out corner blade with a Gillette type razor having cap side edges substantially longer than the cutting edges of the blade, so that, in combination, the cap corners overhang the cut-out blade corners with substantial clearance, and the cutting edges are thereby protected from distortion by the bent cap corners, - with the addition of corner lugs 'spanned with clearance' in claim 7.
"Second, as defined in claim 3, the combination of a cut-out corner blade with a Gillette type razor having fulcrum edges or shoulders so placed on the guard that, in combination, the inner corners of the blade notches are aligned with the fulcrum edges, to avoid the twisting of the metal that would occur if these elements were not in alignment, - with the addition of corner projections in claim 2."
The plaintiff, it is to be noted, relies upon two features; one is the blade with the cut-out corners. The other is the spanning of those corners by the cap.The Second Circuit has already held that there was no invention in cutting out the corners of the blade. Gillette Safety Razor Co. v. Standard Safety Razor Corp., 2 Cir., 1935, 74 F.2d 691. The appellant here invites a reexamination of the correctness of the conclusion reached in that decision. Our consideration of the question leads us to agree with the decision of the Second Circuit.
If there is no invention in the cutting out of the blade corners is there an invention in the fact that the corners of the cap span the cut-out corners of the blade? We fail to see any. If one starts with the cap which covers completely a blade of the old Gillette type and then cuts out the corners of that blade the cap will extend over those recesses. That, in essence, meets the problem of distortion of ...