The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit for the alleged infringement of patent No. 1,824,029 issued to Lucifer J. Most and Ralph W. Wilson for container granted September 22, 1931, on an application filed May 9, 1928.
The interest of Ralph W. Wilson was assigned to the plaintiff who has title to the letters patent in suit. No notice of infringement was given to the defendant before the commencement of this suit.
The defendant is only a dealer and this suit is defended by the manufacturer of the alleged infringing device, Majestic Metal Specialties, Inc.
The device complained of is in evidence by stipulation.
This suit is based only on claim 3 of the patent in suit.
The defendant has interposed an answer raising the issue of invalidity and noninfringement.
The device in issue is known in the trade as an "automatic" lipstick container.
The patentees in their specification say: "Our invention relates to containers suitable for cosmetics or other material capable of being fed forth and back, such for example, as lipstick or similar articles, and it is characterized by a container provided with a cover which opens automatically when the material is fed out of the container and closes when the material is retracted. Another object of the invention is to provide a container which has few parts, is simple in construction and will not get out of order."
They further say: "In the appended drawings the container is illustrated for the use of a lipstick but the same may be used for soap or any other suitable material that may be fed in and out of the container."
A lipstick is consumable and is consumed during use. So is soap. Material that is "similar" to lipstick or soap, as contemplated by the patent, is material that is consumed during use. The primary problem in providing a satisfactory "automatic" container was the difficulty presented by its consumable nature, and there were other secondary factors peculiar to the handling of such material.
The following characteristics and construction are peculiar to practical "automatic" containers for lipsticks:
1. Smallness for convenience in carrying.
2. Maximum amount of lipstick material.
3. Means for feeding the lipstick material to exposed position for use.
4. A carrier within the container of minimum length so that the lipstick within the container may be of maximum length.
5. A support for the frangible lipstick when in use adjacent its exposed end.
6. Complete inclosure of the lipstick for protection when not in use.
7. A common actuator for the carrier and for the door of the container.
8. A door opening mechanism which will move the door a predetermined distance only, which is that distance sufficient to open the container for free movement of the lipstick without interference.
9. A carrier which is movable a variable distance so that the lipstick may be exposed for use as its ...