Appeal from the District Court of the United States for the Eastern District of New York.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
This suit is for the infringement of patent No. 1,706,392, applied for March 31, 1928, and granted March 26, 1929, for a method of treating furs and a machine used therefor. There are five claims; the first and second are apparatus, and the third, fourth, and fifth method claims. The apparatus claims are for a hot roller to place on a well-known electrifying and uncurling machine. The method claims are for the step of moistening the fur prior to using the same in the machine. The decision below is grounded on the defense of noninfringement.
"1. A machine for setting the hairs of a pelt comprising brushing means, feeding means adapted to feed the pelt towards said brushing means, and means adapted to heat the fur before it is subjected to the action of the brushing means.
"2. A machine for setting the hairs of a pelt comprising brushing means, feeding means adapted to feed the pelt toward said brushing means, and roller means adapted to heat the fur before it is subjected to the action of the brushing means, and means adapted to force a current of air over the furs after they have been subjected to the brushing action.
"3. A method of setting the hairs of a pelt which consists in moistening and heating the said hairs, and subsequently brushing the hairs while permitting them to dry and cool.
"4. A method of setting the hairs of a pelt which consists in moistening the hair said thereof, and then brushing the hairs of the fur while subjecting them to the action of an air current to dry them.
"5. A method of setting the hairs of a fur which consists in moistening the hairs, directly heating the said hairs, brushing the said hairs while they are in the hot and moist condition, and subjecting the brushed hairs to the action of an air current to rapidly dry them."
The specifications and drawings of the patent disclose a machine having a hollow heated roller which is pressed against the hair side of the previously moistened fur to be treated and having feed rollers which propel the heated fur forward on the machine so that it is subjected simultaneously to an electrifying and brushing treatment by a wire brushing means and to a drying treatment by a forced current of air.
The new thing for the apparatus claims, as the patent reads, was to add the hot roller, 27, to the machine in advance of the rollers which engage and carry through the fur. In appellant's commercial machine, the heating roller is dispensed with and the upper feeder roller is converted into a heating roller. It is admitted that both appellant and appellees use the same type of electrifying and uncurling machine. In the appellee's machine, the fur is fed from the work table by means of a lower feed roller and the upper pressure roller to a position between a pressure plate and the rapidly revolving drum. This drum on appellee's machine carried alternately spaced ironing segments and brushing segments; each ironing segment being provided with an electrical heating unit. Thus there is produced rapidly alternating brushing and ironing operations on the fur. The appellee feeds the fur through the machine in a dry condition.
The method claims of appellant propose the step of moistening the fur prior to using the same in the machine. Claim 4 provides the moistening of the fur prior to its use. Claims 3 and 5, in addition, involve the steps of heating the hairs of the fur and cover the method of moistening and heating the hairs of the fur and subsequently brushing them. This brings up the hair and luster so that it will withstand rain and have long life and a glossy appearance.
We think that claims 1 and 2 are anticipated by the Pomeranz previous application, which was filed June 20, 1925. That petition for a patent provided for an improvement in a machine for fur electrifying, ironing, and uncurling. The invention is established by the testimony of the inventor, his patent draftsman and attorney, as well as by documentary proof, to wit, the abandoned application and original drawing. This was filed nearly three years before the patent here in suit. We are satisfied that the commercial machine of the appellant is an exact copy of the Pomeranz machine shown in the first sheet of his drawings. Pomeranz' draftsman fully explains his original sketch and points out all the elements shown in appellant's machine with the exception that in the Pomeranz application the heating element may have been stationary while in appellant's it is rotatable. In Pomeranz' application the heating element is described as "preferably ...