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February 5, 1934

POPPER et al.

The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

On consent, the two above entitled actions were consolidated on the trial.

These are suits for alleged patent infringement, the first based on patent No. 1,891,308, issued by the United States Patent Office to Horace F. Gruman, assignor to Lewis Invisible Stitch Machine Company, for combined seaming and pinking machine, granted December 20, 1932; the second based on patent No. 1,909,346, issued by the United States Patent Office to Horace F. Gruman, assignor to Lewis Invisible Stitch Machine Company, for combined seaming and pinking machine, granted May 16, 1933.

 The corporate identity of the plaintiff and the title of the two patents in suit in the plaintiff, as alleged in the two bills of complaint, are stipulated.

 The court has jurisdiction as both of the defendants are residents of the borough of Brooklyn, in this district.

 The defendants are individuals and brothers.

 In both bills of complaint it is charged that the defendants are copartners conducting a business within the borough of Manhattan, city, county, and state of New York, under the name Popper Machine Company, where the alleged infringing business is carried on.

 I am convinced on all the evidence that the defendant Max Popper was the proprietor of the business of Popper Machine Company at the time of the commencement of the first suit, and has continued as such proprietor, and that the defendant Anton Popper has and had no financial interest in Popper Machine Company, but conducts his own independent business at the same address as Popper Machine Company, to wit, No. 117 Bleecker street, and also works for his brother Max Popper on a salary.

 Therefore the suit should be dismissed as to the defendant Anton Popper.

 The defendant Max Popper has by answers interposed in both suits the defenses of invalidity and noninfringement, and in the second suit the additional defense of double patenting, in view of what is patented in the first patent in suit, and he will hereinafter be referred to as the defendant.

 The two patents in suit relate to a machine which simultaneously performs two functions, namely, the stitching of two pieces of cloth together to form a seam, and the pinking of the edge of the cloth adjacent the seam. The purpose of the pinking is to prevent a raw edge of a woven piece of cloth from fraying or raveling, and it consists in serrating the edge by cutting closely adjacent shallow V-notches into the edge. It has been customary in domestic sewing to cut the notches in the raw edges with shears. From the evidence it appears that, excepting shears, the only pinking tool ever provided and ever used prior to plaintiff's machine, made under the patents in suit, was a wheel, the periphery of which was provided with a zigzag cutter, and which rolled over the cloth to pinch off the edge. This wheel was not, however, combined with a sewing machine so as to operate concomitantly with the formation of a seam.

 As to Patent No. 1,891,308.

 This patent is embodied in the first type of Lewis machine, Plaintiff's Exhibit 12. The main shaft 7 in the sewing machine head is connected to operate the needle bar 8 and the needle 9 in the usual way to co-operate with the looper underneath the bed of the machine, to make the stitches in the cloth traveling over the bed under the needle. Alongside of and close to the needle 9 is a vertically reciprocatory upper knife 35, which is disposed on the lower end of a shank 44 and co-operates with the lower horizontal and relatively stationary knife 57. This lower knife is, in the patent, termed the ledger blade. The upper or movable knife is V-shaped and co-operates with the V-shaped sides of the triangular opening in the ledger blade.

 The knife 35 is reciprocated by a bell crank lever 27 oscillated by an eccentric on the main shaft 7. This bell crank lever has a hub or sleeve bearing portion which surrounds and bears upon an eccentric axle portion 25 extending from the hub 24 of a pulley 22 which is mounted upon a jack shaft 20 parallel to the main shaft 7. On opposite ends of the sleeve portion of the bell crank 27 are oppositely extending arms 28 and 29. The arm 28 is pivotally connected to one end of a link 31, the other end of which surrounds an eccentric 32 fixed on the main shaft 7. The arm 29 is pivoted to one end of a link 46, the other end of which is pivoted on a screw stud which screws into the shank 44 of the upper or movable knife and travels in a slot in the guide holder 37 for the shank 44.

 With every rotation of the main shaft 7 and consequently of the eccentric 32 thereon and the arm 28, the entire bell crank lever is given one complete oscillation which is transmitted through the link 46 to the upper knife 35, and that knife is thereby given a complete reciprocation for every complete rotation of the main shaft 7.

 The purpose of the eccentric axle 25 on the pulley 22 is to render the reciprocation of this knife 35 effective only on selected reciprocations of the needle 9. As shown in the patent, the device will operate on a two to one ratio, but is operated to cut synchronously with the stitching. This is necessary for the reason that the feed dogs operate to move the cloth along as the needle is rising, and the pinking cut can only be made when the cloth is stationary. The knife 35 descends as the needle descends, though only on alternate reciprocations of the needle.

 The pulley 22 is shown in the patent as belted to a smaller pulley 21 on the main shaft; the angular movement of the pulley 22 is one-half that of the pulley 21. The rotation of the pulley 22 rotates the eccentric axle member 25 and serves to raise and lower the bell crank lever 27 and its connected parts in a ratio of one to two to the oscillations of the bell crank lever. The eccentricity of the axle member 25 is sufficient to raise the knife 35 out of operative relation with the ledger blade when the eccentric member 25 is in the uppermost position. While the bell crank lever oscillates and reciprocates the knife 35 once for every rotation of the shaft 7, every other oscillation of the bell crank lever is idle because it is raised up to inoperative position by the movement of the eccentric member 25 at the time of the idle oscillation.

 Plaintiff's Exhibit 12, which embodies the disclosure of the patent No. 1,891,308, employs gearing in place of the pulleys 21 and 22 and the belt 23 connecting them, and otherwise, except for the transference of the spring attached to the ledger blade from the top of the bed to the bottom, Exhibit 12 is an exact embodiment of the disclosure of the patent No. 1,891,308.

 Means are provided to throw the pinking mechanism out of operative position when it is desired to use the machine only for stitching, but as this has nothing to do with the issues of these suits, it will not be further referred to.

 The relative angles and the co-operative relation of the two knives is an important feature of the patent.

 The angle of the walls of the movable knife is somewhat less than that of the stationary knife. See Fig. 8 of the patent. The bottom of the cutting edge of the movable knife is beveled so as to slope downward from the apex toward the rear. The ledger blade is slidably mounted in guides and is urged rearwardly by a spring 62. The bottom or cutting edges of the movable knife being beveled, the contact of each edge with the co-operative edge of the lower knife or ledger blade is a point contact. At the beginning of the cutting operation, the apex of the upper knife is substantially in advance of the apex of the lower knife. See Fig. 7 of the patent. As the upper knife descends, the point of contact between the cutting edges on each side of the V travels forward until the two points come together at the two apices, which are then in engagement. To permit this there must be a relative backward movement of the upper knife so as to bring its apex into register with the apex of the lower knife. In the construction shown, the mounting of the upper knife does not permit it to yield backwardly, but instead the lower knife is permitted to yield forwardly against the tension of the spring 62. In this way a typical scissors action is obtained simultaneously on both sides of the V, and the cuts simultaneously approach each other until they meet at the then common apex of the two cutters. Both cutting edges of the upper knife cross the co-operative cutting edges of the lower knife, and those points of crossing advance toward the apex at the same time that the upper knife relatively recedes to bring its apex eventually into coincidence with that of the lower knife. This relative action of the Lewis knives can be seen by an examination of the two Lewis machines, Exhibits 12 and 13.

 Means are provided to guide the two Lewis knives together into cutting relation and maintain the movable blade in co-operative relation with the ledger blade, and in the construction shown are what are termed "heel" extensions on the upper blade. Some such expedient is necessary to prevent the upper blade from escaping from the lower blade, in its uppermost position.

 As to Patent No. 1,909,346.

 The construction disclosed in this patent is embodied in plaintiff's commercial or No. 91 machine, exemplified in Plaintiff's Exhibit 13. So far as the knives are concerned and their coactive relationship, there was no change between the original or No. 90 machine and this commercial machine of plaintiff. There are, however, some real differences mechanically. Instead of a knife guided in vertical guides and operated by a bell crank lever, which is lifted up on every other stitch, there is employed in this machine of patent No. 1,909,346 a pivoted lever for carrying the movable knife. This lever is disposed underneath the overhanging arm of the sewing machine head, and is forked at its rear end so as to straddle the upright portion of the head with which it is pivoted. The movable knife is carried on the front end of the pivoted lever. The length of the radius of movement of the knife is such that to all intents and purposes, the knife moves up and down vertically as in the former machine. The lever is braced upwardly by a spring, and is actuated downwardly by a cam which is driven from the main shaft of the sewing machine head. The cam is numbered 22 in the patent and is mounted on a jack staff with a larger gear 18 of a pair of drive gears 17, 18; the former being mounted on the main shaft.

 There is no departure from the knife construction described and illustrated in the patent No. 1,891,308 and embodied in the machine No. 90.

 In 1930 the No. 90 machine was developed and sold by plaintiff; the first being sold to a concern in Kansas City.

 The mechanism was complex, and this was so apparent that only four or five were sold. As a result of the steps that were immediately taken to simplify the machine model No. 91 was produced, and plaintiff marketed it in the first part of 1931. The principal difficulty which the patentee encountered in developing the machine seemed to be with the knives, which had to be designed so that they would stand up and would have the proper shearing action, and the patentee overcame it by employing V-shaped knives and having one knife smaller than the other with respect to the angle between their cutting edges.

 There was no change in the fundamental principles of operation which were essential to the successful operation of a combined sewing and pinking machine in model No. 91 over model No. 90, but No. 91 proved satisfactory and is plaintiff's commercial machine.

 Patent No. 1,891,308 was applied for August 6, 1930, and issued December 20, 1932, and patent No. 1,909,346 was applied for March 13, 1931. The two applications were therefore copending.

 The machine of the plaintiff has met with commercial success; approximately 465 of the model No. 91 having been sold up to October 1, 1933. The machine sells for $150, and the plaintiff has advertised it continuously since about June, 1931.

 There are sixteen claims of patent No. 1,891,308 in suit, and one claim of patent No. 1,909,346 in suit. The claims may be grouped with reference to four general features of construction as follows:

 (1) V-shaped knives with differential angles, claims 1, 3, and 8.

 (2) V-shaped knives with yieldable frictional engagement, claims 2, 3, 9, 16, 17, ...

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