Motoshaver, Inc. v. Schick Dry Shaver, Inc.

'L'his is an appeal under § 129 of the Judicial Code, as amended, 28 U.S.C.A. § 227a, from a decree rendered in a suit in equity for the infringement of letters patent, the decree being final except for the ordering of an accounting.

The suit was brought by appellees, Schick Dry Shaver, Incorporated, Schick Industries, Limited, and Edises, Incorporated, against appellant, Motoshaver, Incorporated, and a codefendant, Dalmo Manufacturing Company (hereafter called Dalmo). The patents involved are Nos. 1,721,530, 1,747,031 and 1,757,978, issued to Jacob Schick on July 23, 1929, February 11, 1930, and May 13, 1930, respectively. The patents were assigned to and are now owned by Schick Industries, Limited, of which Schick Dry Shaver, Incorporated, is, in the United States, the sole licensee. Edises, Incorporated, is a sublicensee of Schick Dry Shaver, Incorporated. Appellant and Dalmo were alleged to have infringed the palents by manufacturing, using and selling devices called Dual Head Motoshavers. Defenses were that the patents were invalid, and that, if valid, they were not infringed.

Appellant and Dalmo were enjoined, pen-dente lite, from manufacturing, selling, advertising or…

(concurring).

I concur, and disagree with the suggestion that there is novelty in the idea of a beard clipping mechanism which admits the cushioned skin through its slots so that the beard is clipped close to it and the skin not abrased.

The term Shaver as applied to the instruments here in question is a misnomer which has led to a confusion of terminology in brief and argument. These instruments no more shave than does a plumber’s tin shears, and the hairs they clip are no more the product of shaving than the litter of tin trimmed for a flange around a pipe. They are small and compact devices clipping hair by applying the same mechanical principle as the beard and sheep’s wool clippers of nearly a half century ago. One way of stating the question here is whether appellant’s clippers do anything more novel for hair clipping than the more recent volume manufacture of tiny wrist watches does in the way of creating a patentable novelty over grandfather’s ponderous pocket timepiece. If they do not, they are warranted by the art as developed prior to the Schick patents.

Certainly there is no novelty in a thin face plate. Thinness of a metal plate is a relative matter. Four or five…

(dissenting).

I think the decree should be affirmed.

The claims of the first Schick patent, here involved, do not call for a flexible shearplate. Claim 1 describes a shaving implement comprising a shearplate “of extreme thinness”, and means for holding the parts to insure the supporting of the plate against flexing by means of the cutter. Claim 4 provides for “a shearplate supported against external pressure by the cutter”. Claims 13 to 17, inclusive, make no mention of flexibility.

It seems obvious that Schick’s device would not operate successfully if the shear-plate should actually collapse or substantially flex in use. Hence the patent provides for means to prevent a degree of flexing which might otherwise result from the extreme thinness of the shearplate. The purpose of having a thin shearplate was to permit of a close shave, not to allow flexing.

The novelty of the patented device is that, when the instrument is pressed against the face in shaving, the skin enters the slots in the shearplate to the point where the inner, or cutting, surface of the shear-plate encounters the cutter underneath it. The latter is a series of parallel blades moving transversely of the slots…