The opinion of the court was delivered by: GALSTON
The validity of the patent in suit, No. 1,673,727, granted to Aronson, for a cigar lighter, was upheld as to claims 2, 7, 12, 13, and 14, in a litigation between the same parties. (D.C.) 52 F.2d 951, and (C.C.A.) 61 F.2d 122, 123.
The defendant's structures there considered were referred to as the Evans "Automatic Lighter" and the "Roller Bearing Lighter."
The suit at bar alleges that a third form made by the same manufacturer and sold by this defendant since the former adjudication, and known to the trade as the "Trig-a-lite," is also an infringement of the patent.
There is no contention that the Trig-a-lite is similar to the Automatic; but it is asserted by the plaintiff that the Trig-a-lite is in all respects similar to the structure and mode of operation of the Roller Bearing device.
In outward appearance the two lighters are very much alike; and so far as relative positioning of the three main parts -- the wick with its snuffer, the abradant wheel, and the finger piece -- constituting the "one, two, three arrangement" referred to by the Circuit Court of Appeals in adopting the descriptive terminology of plaintiff's expert, Mr. Hammer, such arrangement is reproduced in the Trig-a-lite.
However, important points of difference are urged by the defendant.
It is contended that the Trig-a-lite enables the operator to obtain the shower of sparks, not by manual, but by spring, actuation of snuffer and abradant wheel and without the use of gears.
The three claims in suit recite the inclusion of such gear means; and no matter how generous the interpretation of the scope of the claims, Trig-a-lite does not embody such a gear member as the claims define. The pin and slot combination of the Roller Bearing device has been omitted. The actuation of parts is brought about by a combination of finger piece in the form of a lever which is pivoted about an axis upon which the abradant wheel is mounted. In the upper position the finger piece is pressed by a spring. The snuffer is mounted upon a horizontal lever pivoted about an axis marked E in Defendant's Exhibit H. Coiled about this axis E is a spring, one end of which projects to the left and bears of the under side of the snuffer lever. The other end of the spring extends to the right and bears under a portion of the finger piece. A pawl Q, pivoted at point O, and provided with a spring P, causes the pawl to rotate counter clockwise. Notches in the pawl are of such shape and size as enable them to lock around the pivot D.
The energy of the finger piece is used to tension the spring coiled around the axis E; that is, the whole spring is tensioned. The energy is stored in the spring without regard to the rate at which the finger is depressed; and the rate at which the abradant wheel and the snuffer move are independent of the rate at which the finger piece is depressed, but are dependent upon the strength of the spring. One of the notches of the pawl holds the snuffer lever down when the finger piece is pressed, so that the spring is tensioned until the end of the downward movement, and is finally unlatched by the finger piece, which causes the spring to throw up the snuffer lever until the other notch in the pawl contacts with the shaft on which the abradant wheel is mounted. Thus the snuffer lever cannot be forced up further by the spring.
This is neither the mode of operation of the Roller Bearing device nor of the patent. The patent discloses a connection of gearing from the finger piece to the snuffer and to the abradant wheel. That there is a different mode of operation between finger piece and spark wheel in the patent in suit and in the device Trig-a-lite appears from the dependence of movement of finger piece and spark wheel of the former, and the independence of the speed of movement of the surface of the abradant wheel with the speed movement of the finger piece in the Trig-a-lite. This may or may not be an advantage; but be that as it may, there is indicated a difference in operation, resulting from a difference in structure.
On the question of merit, it may be said that the surface movement of the sparking wheel is an important factor in spark production, because the quicker the work is done, the greater the heat, and, therefore, the greater the supply of sparks. Mr. Ray is of opinion that the wheel in the Trig-a-lite device moves much faster in the ordinary use thereof than in the ordinary use of a device made in conformity with the patent in suit. He also points out than so far as the roller bearing construction is concerned, the pin and slot combination bear on the relative ranges of movement between the spark wheel surface and the finger piece. This is not the operation of the Trig-a-lite device.
I think one must conclude then, both on the ground of construction, as well as from operation of the Trig-a-lite and the Roller Bearing Lighter, that in the Trig-a-lite one does not find a gear in the sense of the patent in suit, nor even the equivalent of a one-tooth gear of the Roller Bearing device. And inasmuch as I do not interpret the opinion of the Circuit Court of Appeals in the prior litigation as compelling so broad a construction of the claims in issue as to lead to a disregard of the limitant phrases with respect to the necessity of the inclusion of the gear member, I find that the defendant in the Trig-a-lite device has avoided infringement by the omission of such a gear member.
Moreover, in a discussion of the matter of infringement, the position taken by the plaintiff in overcoming the pertinency of the prior art in the former litigation cannot be overlooked. For example, the plaintiff's ...