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September 6, 1932


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is an action based on the alleged infringement of reissue patent No. 15,627, to George Clements, assignor by direct and mesne assignments of one-half to Clements Manufacturing Company, and one-half to the Hoover Company, for vacuum cleaner, reissued June 12, 1923, on application filed April 30, 1923. Original patent No. 1,392,624, dated October 4, 1921, on application filed June 14, 1911.

The title of the plaintiffs is not questioned.

 The defendant interposed the following defenses: Noninfringement, intervening rights as to claims added after reissue; invalidity as to the reissue claims, as there was no inadvertence, accident, or mistake, but merely a reissue to broaden claims; invalidity of the reissue patent in toto, as the original patent was not invalid or inoperative, and there was no inadvertence, accident, or mistake; estoppel under the original claims 6 and 7 on the ground of laches in asserting these claims against the defendant, and invalidity over the prior art.

 The invention of the patent in suit relates to an improvement in convertible cleaners; the vacuum cleaner being changed from the floor type to the suction hose type by means of a tubular converter letter D.

 The patentee in his specification of the reissue patent in suit, describing his invention, says: "My invention relates to improvements in vacuum cleaners, and has for one of its principal objects to provide means for connection a suction hose directly with the inlet of the pumping chamber such connection causing the nozzle connection between the normal floor nozzle and the inlet to the pump chamber to be disconnected."

 The vacuum cleaner of the patent in suit is of the portable type adapted as shown in Fig. 1 of the patent, to be used as a floor cleaner, or as shown in Fig. 2, to be used with a hose connection for the cleaning of draperies or the like.

 As shown in Fig. 1, the nozzle proper A is connected by a passage A, with the suction chamber A, and through a port A to the fan chamber. In the outer wall of the suction chamber is a second port A, closed by cap A, when the machine is used as a floor cleaner.

 [See Illustration in Original]

 When it is desired to use the cleaner will the suction hose, as shown in Fig. 2, the cap A is removed and the convertible tube D is inserted through the aligned ports A and A and screwed tightly into place; the converter being provided with screw threads D for engaging the threaded port A. The inner end D of the converter tube extends through the passage A and, therefore, when in place, performs the function of shutting off the floor nozzle.

 The outer end of this converter tube is provided with a portion for engaging a suction hose.

 When engaged with the cleaner casing of the patent in suit, as shown in Fig. 2, the converter tube has a dual function, namely, it shuts of the floor nozzle, and it provides a connection between the fan casing and the suction hose.

 The vacuum cleaner of the patent in suit is provided with a floor nozzle A, which as expressed in the specifications is preferably integral with the fan casing, and is so shown in the drawings.

 This suit is based on claims 6, 7, 12, and 13 of the patent in suit, which read as follows:

 "6. A suction cleaner having a pump chamber and a second chamber separated therefrom by a dividing wall provided with an opening whereby the second chamber may communicate with the first mentioned chamber, the second chamber having an inlet mouth and an opening in operative relation to the opening in the dividing wall, and a coupling member adapted to be applied to the last mentioned opening and having an extension adapted to cut off communication between said first mentioned opening and said inlet mouth.

 "7. In a cleaner, a casing having a fan chamber, and a suction chamber adjacent thereto and separated therefrom by a dividing wall provided with an opening, said suction chamber communicating with a suction mouth, the wall of said suction chamber having a removable portion, and a hose connection adapted to be secured in direct communicating relation to said opening when said removable portion is displaced."

 "12. In a suction cleaner, a fan casing comprising end walls and having a peripheral wall, a fan in said casing, means for driving said fan, one of said end walls being provided with an approximately centrally located intake, an approximately peripheral fan discharge, a collecting nozzle secured to one of said end walls about said intake and adapted to discharge into said intake, the end wall provided with the fan intake being adapted to receive and seat therein in closing relation with the fan intake, a replaceable converter member for attachment of a secondary nozzle to the fan intake.

 "13. The combination with a vacuum cleaner having a suction fan casing provided with an inlet, a fan in said casing, means for rotating the fan, a forwardly extending nozzle, mobile supports for the cleaner, of replaceable tubular means maintained in normal fixed closing relation to said fan casing inlet for connecting a cleaning tool to the fan inlet."

 Claims 6 and 7 of the patent in suit with the same members are found in the original Clements patent, No. 1,392,624, and claims 12 and 13 were added and are first found in the reissue Clements patent in suit, No. 15,627.

 The original Clements patent, No. 1,392,624, had a tempestuous passage through the Patent Office, and, after priority of invention had been accorded to one Kirby, and the patent issued to him after an appeal to the Supreme Court of the District of Columbia, an action under section 4915 of the Revised Statutes (35 USCA § 63) was brought by Clements in the District Court for the Eastern Division of the Northern District of Ohio, resulting in a decree in favor of the defendant, and an appeal to the Circuit Court of Appeals for the Sixth Circuit reversed that decree and ordered that the patent be awarded to George Clements, the complainant. Clements v. Kirby (C.C.A.) 274 F. 575.

 Judge Denison, writing for the court in that case, at page 576 of 274 F., says (speaking of the structure of the original patent, which is also the structure of the patent in suit):

 "The primary elements of such a structure are the pump or fan chamber and the suction chamber. The two are divided by a partition having an opening. The suction chamber is provided with a suitable intake nozzle, and the pump chamber has a tangential outlet to the dust receptacle. By the suction effect of the pump, the dust is pulled through the intake nozzle suction chamber and the partition opening into the pump chamber, and is therefrom blown out to the dust receptacle. Each of the contesting applicants improved this old structure by making an opening in the outer shell of the suction chamber, directly opposite and registering with the partition opening, and inserting through the outer shell opening and tightly into the partition opening an open-ended tube for a hose connection, whereby the suction pull was cut off entirely from the normal suction chamber, and this function transferred to the suction nozzle at the outer end of the hose. This improvement has demonstrated its utility and has been largely adopted.

 "It is quite obvious that the possible presence of the inserted tube is an essential part of this invention; for, without it, the invention did not exist."

 That opinion was cited with approval in Clements Mfg. Co. v. Regina Corporation, 34 F.2d 931, by the Circuit Court of Appeals of this circuit, in which, at page 932 of 34 F.2d, Circuit Judge Augustus N. Hand, writing for the court says (in speaking of the converter member): "A hose converter which could be projected through an opening in the outer wall in the suction chamber, completely through the suction chamber, and which at the same time was so positioned and supported in relation to the outer and inner walls of the suction chamber as to prevent wobbling of the converter coupling or disrupting of its sealed relation with the inner partition. It was held in that position at all times when in use, so that the full suction power of the fan was utilized and all connection with the suction chamber and nozzle entirely and automatically cut off."

 Plaintiffs now contend that the pith of the Clements' invention is the provision of the dividing wall with its constricted opening, which communicates directly with the suction nozzle for "on" floor cleaning and to which is attached the hose connection for "off" floor cleaning, both communicating directly with the eye of the fan. This contention is not sustained.

 I accept the statements defining the invention made by the Circuit Court of Appeals of the Sixth Circuit, which gave Clements the patent, and of the Circuit Court of Appeals of the Second Circuit, in the Regina Case.

 In addition thereto, the constricted opening which plaintiffs now contend is the pith of the invention is a feature not claimed as an invention in the reissue patent in suit, nor described in the specification, as the specifiction in no way refers to the opening A as a constricted opening, nor is there any novel function assigned to this opening.

 The prior art shows a large number of structures with the opening leading to the fan casing smaller than the diameter of the fan casing, and novelty was not in the patent in suit and could not be predicated upon this feature, and the argument by plaintiffs, based on its so-called pith of invention, and the cases cited, are not in point.

 For the prior art last referred to, see the Eureka No. 1, Arnold-Richman cleaner, Johnson patent No. 928,456; Russell and Carson patent No. 993,202; Chapman patent No. 1,183,952; French patent to Figueras, No. 365,572.

 Also Pollard patent No. 945,343, which, which it does not disclose a floor nozzle, does disclose a structure which, with relation to the features in controversy in this case, is the same as the structure of the Eureka vacuum cleaners, when these structures are used for wall or hose cleaning.

 Two types or models of defendant's vacuum cleaners are charged to infringe, viz., Eureka Special and Eureka Standard.

 The Eureka Special, as shown in Fig. 3 of Plaintiffs' Exhibit 6H, its principal constituent elements being identified by letters, as follows: A is the motor casing, B is the fan casing, and C is the floor nozzle, which is hinged at D to the lower part of the fan casing. This hinge connection permits the nozzle to be folded underneath the fan casing. The floor nozzle is held in operative position to be used for floor cleaning by a latch E.

 The front wall of the fan casing is provided with an opening F, of sufficient size to permit the fan to be inserted into the fan casing therethrough, and arranged over this opening is a plate G carrying a forwardly projecting nipple H, to which a hose may be attached when the nozzle is removed.

 When the vacuum cleaner is used for cleaning floors, the floor nozzle is attached in place as shown in Fig. 1. When the vacuum cleaner is to be used as a hose or wall cleaner, the latch E is unfastened and the nozzle removed by swinging it underneath the cleaner as shown in Fig. 2. This permits the hose to be connected to the projecting nipple.

 A patent was granted on this structure to Stecker, No. 1,182,595, on May 9, 1916, which patent is owned by the defendant.

 The Eureka Standard differs from the Special as far as any features here in controversy are concerned, merely in that the fan casing is provided with wheels in the Standard, while in the Special the wheels are on the nozzle, and, further, the nozzle is not hinged to the fan casing, but is completely removed from the fan casing, when the hose is to be attached.

 Both structures are charged to infringe, and no different question is presented in connection with the Clements patent in suit, whether the nozzle is removed and swinging out of the way underneath the casing, or whether the ...

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