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July 17, 1935


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This cause involves patent No. 1,866,779 issued to the plaintiff corporation July 12th, 1932, upon application filed by Howard F. Snyder deceased on June 14th, 1922. The plaintiff is the assignee of the applicant, and for convenience reference will be made to the grant as the Snyder patent. It has to do with a washing machine referred to as the Maytag.

The defendant corporation is an inhabitant of this district, and is being sued in this court because it has heretofore sold three competing machines known as the Easy, the A.B.C. and the Thor.

 No jurisdictional or other questions not touching the merits are presented.

 A comparison of the plaintiff's machine and those said to offend, as supplemented by the testimony, reveals unmistakably that there is no fundamental difference between them. The mechanisms, method of operation, and physical characteristics are in such close resemblance, that the issue of infringement presents no problems.

 The one matter relied upon by the defendant, to avoid infringement, is the shape of the base of the impeller, or agent for agitating the water in which the washing is accomplished. That is not controlling, and will be discussed in connection with the claims.

 The issue seriously made is as to validity, and that is presented in dual aspect, namely: That the machine does not function according to the specifications and claims; and if it does, the patent is void for lack of invention.

 Understanding of the controversy requires that something be said of the course of events in this industry, since the plaintiff's machine was put on the market in 1922. By that time and as the result of efforts which had persisted for over ninety years, washing machines had come to occupy an important place in the domestic economy of the country. The courts have spoken of their contribution to the general good. Iowa Washing Machine Co. v. Montgomery Ward & Co. (D.C.) 227 F. 1004, affirmed (C.C.A.) 234 F. 88. The mitigation of the rigors of a prosaic task, which was their purpose, has been a constant challenge to inventive skill, from 1809 when the first patent for such a machine was granted, until the present time.

 The successive types have been known as the rubboard, the peg-dolly (having pegs, and later blades to rotate or oscillate the fabrics against corrugations in tubs), the oscillating type (to tumble the fabrics against ribs or corrugations), the cylinder type having a like purpose, and the so-called vacuum-cup type to press the fabrics and squeeze them against the tub bottom. The two latter were making headway against the peg-dolly type, between 1915 and 1920, although the latter was probably in greatest distribution during those years.

 The washing of fabrics requires that the deposit of foreign substances which find lodgment in the meshes, and in the interstices of the threads themselves, shall be overcome and the substances removed. Soapy hot water loosens the particles so engaged, but as these lack migratory properties, expulsion can be accomplished only by deforming the threads, and hence the fabrics. The testimony to this effect is uncontradicted.

 That is the requirement to be met in devising a substitution for manually rubbing, squeezing, twisting and manipulating the fabrics, when in the soapy water, which precedes rinsing in clean water. It will be seen that the manipulation cannot be avoided, but if the means of accomplishing it can be mechanically applied, the energy required for manual application can be released for different and more congenial manifestation.

 It is unnecessary to portray the operations of the various types of washing machines which preceded the Maytag in point of time; the fact is that they consisted in so disposingl mechanical agents in a closed container or wash tub that the necessary deformation of the threads of the fabrics being washed was undertaken by subjecting the fabrics to contact with ribs or corrugations or similar obstacles contained in the tub itself.

 In the peg-dolly type, which consisted originally of a disc having three or four projecting pegs (so that it looked like a small milking-stool) held in central position by a shaft, the clothes were engaged by the pegs, and the mass was rubbed back and forth by half rotation of the dolly, first in one, then in the reverse direction, and the clothes nearest the walls of the tub were rubbed against it and themselves. In this operation, the mass had frequently to be rearranged through the application of a washing stick. That meant that the cover had to be opened, as occasion required, and heavy wet articles lifted and rearranged.

 The operation of the peg-dollies was rigorous, which meant heavy wear and tear.

 In some models, the pegs were succeeded by blades which were not quite so deep as the length of the pegs, but they were substantial in construction, usually arranged radially, and in section they were usually triangular.

 These blades performed the same office as the pegs, but admitted of somewhat automatic displacement and movement of the materials being washed, because they tended to slip over the blades instead of being rigidly held as by the pegs.

 The diameter of the disc was usually less than that of the tub, but there seems to have been no constant relation of those respective dimensions.

 The contra movements of the disc and its projections agitated the water, which gave rise to the necessity for keeping the top of the tub closed. This condition of turbulence being inevitable was accepted but not apparently recognized as a factor in the washing operation, except in the instances later to be noticed.

 The asserted contribution of the Snyder patent was the departure from the understanding current in 1920 or thereabouts, that washing machine technique required for its success, a method of rubbing the clothes against projections within the tub, so as to duplicate the process involved in the manual use of a scrub board or wash board, when washing was accomplished entirely by hand, and substituting for that, a process of contorting the fabrics mainly by water action, so that the deformation of the threads and the consequent dislodgment and migration of foreign particles from the meshes and the threads themselves, would be accomplished, without subjecting the fabrics to the heavy wear and tear previously encountered.

 Such is the teaching of the Snyder patent, stated in simple language, and the defendant has undertaken to prove that the machine does not function as the patent says it does.

 The Maytag machine consists of a tub, in the bottom of which is a power-driven impeller called a gyrator, consisting of a disc substantially less in diameter than the tub, having a cone-shaped center, and upon the disc are mounted four radially disposed blades. This impeller is oscillated at a speed not specified in the patent, so as to set in motion opposed currents of water which establish a flow outward from the bottom center of the tub, upward at the sides to the surface of the water, and back to the center and down to the inner portion of the impeller blades. The fabrics being washed, if the mass is not too great, follow that course, turning over constantly. The water is hot and contains soap, and at the end of ten minutes more or less, the fabrics so treated, are cleansed.

 The success of the operation is not questioned, but the controversy is as to how it is accomplished; the defendant contends that the impeller is, in effect, the peg-dolly in a different form, and that the result is obtained in the Snyder machine as it was in those of the earlier forms of construction, and that the patent tells one story and the machine acts another.

 The Maytag device was put on the market in 1922, and substantial sales were made in that year; subsequent commercial success has rewarded the plaintiff so that down to the trial, some 2,000,000 machines had been sold, of which 172,000 were of the type illustrated in the patent, and the balance were of the high center post type later adopted. That element is conceded not to affect the issues here involved.

 While comparatively little advertising was done down to 1925, the creation and maintenance of channels of distribution were naturally accompanied by increasing publicity, and large sums came to be expended in later years.

 At the outset the dealers were skeptical concerning the claims of the plaintiff that the machine so operated as to wash clothes by water action. Competitors who were then selling the various types of machines above noted, did what was to be expected in fostering that skepticism. It is not contradicted that the plaintiff's machine was referred to in trade circles as an ensilage cutter, and was otherwise derided both by dealers and salesmen from competing manufacturers.

 Contemporaneously, two of the latter, the A.B.C. Company and the Easy Company, acquired Maytag machines for the information of their experimental staffs.

 In about 1925 and 1926 competitors' machines appeared upon the market of the same type as the Maytag, that is, they had a bottom-positioned impeller, power driven, and of the same general appearance, and the same claims were made for them in pamphlets issued by the manufacturers, as were made by the Maytag Company, namely, that in these machines, washing was done by water action, with a resulting saving in time, and wear and tear upon the fabrics.

 That condition has continued to prevail down to the time when this suit was started.

 The assertions in all the advertising matter, and there is a substantial bulk of it in evidence, are flamboyant and unrestrained to the effect that the A.B.C., Easy and Thor washing machines, do their work by water action, etc. The importance of these representations lies in the fact that the manufacturers who made them may be thought to have intended to induce prospective purchasers to believe them to be true.

 On these manufacturers' behalf, this defendant takes the position that all such assertions, both of the plaintiff and of its competitors, are untrue. The defendant itself distributed some of these pamphlets but professes not to be embarrassed by that fact.

 Of course, the legal issues are not to be controlled by sales patter, but when advocacy is confronted by advertising from its own camp, its objectives forfeit something of access.

 It is asking much to suggest that the court should close its eyes to the repeated assertions of those who are not in the remote background of this contest, and which are directly at variance with the arguments now made by defendant's counsel.

 The foregoing is intended to portray a practical aspect of the controversy which has been waged in this court over the plaintiff's patent.

 Sight has not been lost of the right of the competing manufacturers to copy the plaintiff's machine in all substantial aspects, and to compete with it on its own ground, if the plaintiff's device is simply the embodiment of teachings of an earlier day (than June 14, 1922), which were then at large.

 Certain aspects of the case stand out clearly:

 The Maytag machine has been commercially successful, and washes clothes satisfactorily.

 The patent was pending for over ten years, during which there was one interference proceeding that went to the Court of Customs and Patent Appeals [Unruh v. Snyder, 49 F.2d 1038, decided June 1, 1931] and another was attempted without success. During these years there were many amendments to the specifications and claims.

 It is the defendant's task to overcome the presumption of validity, which gains something from the unusual stress and strain of so searching a process as attended the final grant of letters.

 It is necessary now to examine the Snyder patent at close range.

 The specification recites the inventor's objects as being to provide a novel construction designed to wash and cleanse clothes, fabrics, and the like, including those of delicate texture which would suffer if subjected to the rigors of ordinary washing machines or even washing by hand. It is said "By reducing friction on the articles to be washed the life of the article is preserved."

 In part the objects are attained by associating the tub and gyrator and by so operating the latter "that the weight of the articles does not interfere with the gyrator or its action, or with the tub and its co-action with the gyrator." The latter may be at the top or bottom of the tub, but has always been bottom-positioned in the Maytag machines.

 The articles to be washed are suspended in the soapy water during the operation so that the alternating rotary movements of the impeller called gyrator do not interfere with the latter and so sustain damage while they and the water containing them are "turbulently swirled or whirled about with a surging or seething movement within the tub."

 The drawing shows a bottom-positioned gyrator, and in that type of construction it is said that the impeller action on the water is to "constantly press the clothes upwardly in a swirling formation so that they are maintained in substantial suspension in the liquid above the blades."

 The tub is smooth, i.e., without corrugations, etc., and as shown the bottom is inclined upwardly on both sides adjacent to the impeller "so associated" with it and with the rest of the tub "as to cooperate therewith in aid of such action."

 One object of the invention is to provide the method of and apparatus for such cleansing without bringing the fabrics "into substantial rubbing contact" with the tub or the impeller.

 Another object is to provide flanges or blades to the impeller to impart the characteristic movement to the water and clothes which has been described, while a rotary or gyratory movement thereof results from the alternating rotary action of the impeller, the water and clothes being driven around the tub first in one and then the other direction. The paths of the water and clothes are called devious; the vigorous agitation of the water prevents the clothes from being injuriously affected by the "gyrator operating or actuating mechanism," which latter can be disconnected.

 The new method of washing is described as being accomplished by the action of the water itself on the materials "as distinguished from their being rubbed or drawn through the water by a dolly or other mechanism, or tumbled against the sides of the tub or rubbed against projections on the interior of the tub."

 The water is said to drive and swirl the clothes about the interior of a smooth tub avoiding "substantial contact" with the tub or gyrator; the water movement "largely prevents" rubbing the clothes against the tub or the impeller, whereby deterioration of the materials washed is eliminated.

 The patentee says it is difficult to explain all the advantages because of the unusual water movement.

 The gyrator is defined as an alternating rotary member operable to effect movement of fluids and materials from the central portion thereof to its outer edge.

 Reference to the drawings is extensive and comprehensive. The patentee says that he shows a bottom positioned impeller, but also comprehends one depending from the top of the tub, whereby the characteristic flow heretofore described, would be reversed in direction (not referring to the circulatory currents however).

 The gyrator is annular, dish shaped as shown, "the central or inner portion of which merges in a continuous concave curve into a central upstanding stem portion 53, which terminates in an upper rounded end. The outer peripheral edge of the trough-like portion 54 extends outwardly and upwardly in a concave curve 55, which is continuous with the dished curve of the portion 54." The blades or flanges are vertical, and incline from their outer edges to the trough-like portion of the gyrator, extending half-way up and merging into the center stem. They are of "substantial height" so as to project well into the water of the tub. They are lobe shaped, extend considerably above the dish shaped member (disc) to provide sufficient blade surface "to impart a considerable force or throw to the water" outwardly and somewhat parallel to the axis of rotation of the gyrator.

 The curve upward of the dish assists this water movement, which is also augmented by the inclined adjacent walls of the tub.

 It may be convenient to pause sufficiently to observe that the assistance and augmentation so referred to, are not deemed essential features of the disclosure, by this court. The water movement is initiated by the blades, and is almost equally present according to the testimony, when the flat disc model is employed in a tub which does not contain walls which incline upwardly adjacent to the impeller.

 So much of the specification as relates to the power and coupling is not presently material.

 The recital continues that when the gyrator is alternately rotated (in practice about 225 degrees is the extent of rotation) or oscillated, the water and materials are given the outward, upward, inward and downward movement previously stated. The materials being washed are said to be given "a quick, snappy, sieving, whirling, reversing double action, produced by the gyrator, doubling the clothes first one way and then the other until every thread in the fabric is acted upon an untold number of times, somewhat like the cracking of a whip-lash in all directions." Again it is said that it is difficult to describe the action of the water and the clothes produced by the rapid reciprocation of the gyrator, whereby cleansing is accomplished while the materials "are held in suspension" by the peculiar and novel movement and action of the water. In spite of this the patentee thinks that anyone skilled in the art can readily construct and operate the invention and utilize the method disclosed.

 The offending machines constitute a tribute to that prophecy, although it is now said that they are embodiments of earlier teachings.

 The claims in suit are the following:

 "23. A washing machine comprising in combination, a tub for containing cleansing liquid and materials to be cleansed, said tub having a bottom portion and an upwardly extending wall portion, the interior surface of which is free from rubbing projections, a rotary reciprocatory impeller mounted in the tub adjacent its bottom, having a base and a plurality of blades, each of which is of substantial height and lateral area, and a central portion projecting upwardly from the base, the upper surface area of the base being considerably less than the horizontal cross-sectional area of the tub through its upwardly extending portion, the margin of said base being spaced a substantial distance away from the upwardly extending portion of the tub, said tub and impeller being so constructed and positioned relative to each other than when the impeller is rapidly reciprocated each blade and its adjacent portion of the impeller base will simultaneously drive the cleansing fluid in one and then an opposite outward upward circulatory direction toward and around the clothes, and act in cooperation with the interior of the tub to cause violently flowing opposed currents of liquid to meet and flow inwardly and downwardly toward the central portion of the tub, and substantially suspend the materials in the fluid while being washed, a rotary reciprocating drive shaft extending upwardly through the bottom of the tub into the interior thereof for supporting the impeller for movement in a fixed plane, and power means for rapidly reciprocating the shaft and impeller for the purposes set forth."

 "26. In a washing machine for cleansing fabrics by forcing cleansing fluid through them while substantially suspended by the action of the fluid, as distinguished from pulling or pushing the fabrics through the fluid or against scrubbing forces, or otherwise scrubbing them by mechanical means, a tub, a substantially imperforate rotary reciprocatory impeller mounted to operate in a fixed plane having blades of substantial height and area projecting therefrom in a direction toward the fabrics while they are being cleansed, said tub and impeller being so constructed and arranged as to cooperate while the impeller is in operation for whipping the fluid and violently forcing it outwardly, upwardly and in a general vertical and circulatory movement and circumferentially of the tub first in one and then in an opposite direction and through and around the materials, and substantially suspending the materials in the fluid while being washed, and power means for rapidly reciprocating the impeller."

 "38. The method of washing fabrics by forcing cleansing liquid through and around them while substantially suspended by the action of the fluid, as distinguished from pulling fabrics through the fluid against scrubbing corrugations, or otherwise scrubbing them by mechanical means, comprising immersing the fabrics in a washing fluid in a container, then vigorously and rapidly impelling the washing fluid in one and then in an opposite outward circulatory direction away from the plane of the source of impulsion and through the fabrics and circumferentially along the interior of the container in rapid succession, and causing these violently opposed currents of fluid to meet and flow inwardly and toward the central portion of the container, and toward the source of impulsion thereby substantially suspending the fabrics in the fluid and cleansing them while thus suspended."

 The principal assault upon this patent as has been stated is, that the Maytag machine does not function in accordance with the recitals, or the claims; that the materials are not held in suspension near or over the blades, but are actually battered by them, and are dragged back and forth in the water, precisely as was done by the peg dolly type of washer; and that the required squeezing, release of pressure and rubbing are administered by blows struck by the impeller. That in effect the same things are done to the fabrics by the impact of the impeller blades, as was first done by hand in remote times, and latterly by the machines prior to the Maytag.

 It is not easy to observe how any of these machines really does function. Demonstrations in the court room in glass tubs, so illuminated as to reveal all that the eye can perceive, yielded little which can be stated precisely.

 In clear water, tracer cloths alone, if few in number, showed that the course of flow described in the patent does take place, and that in addition there is a constant turning called roll-over of the tracer; the whiplash was not always easy to see, but there was a ...

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