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September 11, 1936


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a suit for the alleged infringement of three patents relating to the temperature control of exothermic (heat imparting) pads used to generate chemically sufficient heat to impart a permanent wave to hair as follows:

Patent No. 1,892,426, issued to Ralph L. Evans, assignor to Zotos Corporation, for method of and means for permanently waving hair, granted December 27th, 1932, on an original application filed January 21, 1932. Divided and this application filed September 22, 1932.

 Patent No. 1,894,032, issued to Ralph L. Evans, assignor to Zotos Corporation, for method of and means for permanently waving hair, granted January 10, 1933, on an original application filed January 21, 1932. Divided and this application filed September 21, 1932.

 Patent No. 1,919,690, issued to Ralph L. Evans, assignor to Zotos Corporation, for method of and means for permanently waving hair, granted July 25, 1933, on an application filed January 21, 1932.

 The plaintiff is vested with title to all of the patents in suit.

 The plaintiff is a New York corporation.

 The defendant, doing business under the trade-name of Rader Beauty Supply Company at Brooklyn, N.Y., within the Eastern District of New York, is a jobber of hair treating products and engaged in the sale of "New Ray" exothermic pads manufactured by Raymond Lee, who is conducting business under the trade-name Raymond Laboratories, at St. Paul, Minn.

 The defense of this suit was openly and avowedly conducted by, and on behalf of, said Raymond Lee.

 Notice of infringement was duly given to the defendant, Rader, and the manufacturer, Raymond Lee.

 Prior to 1905 the permanent waving of human hair was confined to hair off the head; that is, postiche puffs, curls, and transformations.

 About 1905 Nessler in England began to experiment with a method for permanently curling the hair on the human head, and, having in the meantime improved his process, in 1910 he secured his first patent covering the use of an electrical heater for the purpose of supplying heat for curling hair.

 Between 1910 and 1920 Frederics and Sutter, among others, entered the field and employed electrical heaters of various forms.

 In 1923 or 1924 Sartory of England perfected a machine in which quick lime, wetted with water, was used to generate heat necessary to create a permanent wave in the hair.

 About 1925 Barnett, an associate of Sartory, came to the United States and organized a company known as Vaper Marcel, Inc., for the purpose of manufacturing and selling devices under the Sartory patents.

 Vaper Marcel, Inc., went into bankruptcy in 1928, and its assets were purchased by Evans, the patentee of the patents in suit.

 Although the predecessor of the plaintiff, with the same organization and management, earnestly endeavored to develop and successfully market the Sartory machine from 1928 to 1932, the Sartory system proved to be a commercial failure.

 Other systems, such as steam generated from a central boiler and conducted to the hair through tubes, were evolved about this time for permanent waving.

 Hair waving operators were confronted with the problem of the control of generated heat during the delay period to permit of the adjustment of the electrical or other heater about the strands of hair wound upon the mandrels without burning the hands of the operator, to provide a period of acceleration immediately following the delay period during which the temperature would quickly rise to a point where the moisture in the strand would be heated to boiling temperature, and to maintain an extension period during which the heat was maintained at the boiling temperature until the wave was set.

 Only partial success was attained in the attempt to solve this problem in the electrical machine, which depended on the skill of the operator, and, where that skill was not displayed in the use of the machine, frequently resulted in serious burns.

 In the use of the Sartory machine, which closely followed the practices in the electric machine method, and in effect substituted a chemical heater for an electrical heater, even more reliance was necessarily placed upon the skill of the operator, for its control.

 In 1931 a small pad containing exothermic material capable of producing a permanent wave in the hair came to the attention of Dr. Evans, patentee of the patent in suit, who was the plaintiff's chemist and had formerly been a member of the faculty of Columbia University, and plaintiff acquired the rights thereto.

 Ther active principle of that pad, like the Sartory pad, was calcium oxide or lime, which, when wetted with water, would generate heat sufficient to impart a permanent wave to hair, but, like the Sartory practice, it was ungovernable. It did not provide for a definite period of delay, it had no controlled acceleration, and no controlled extension. Unlike Sartory, it was designed to operate without a metal shell such as he used to overcome the dangers in the use of lime.

 Dr. Evans testified that during a test of the pad, wrapped around a thermometer, an explosion occurred, scattering the hot lime over his face, which convinced him of the necessity for a proper control of the reaction.

 He then addressed himself to the development of means to overcome these disadvantages and do away with the use of a machine during the hair waving operation.

 Evans was not the inventor of the machineless hair waving pad.

 Nor did the Evans invention reside in the discovery of any new delayers, any new accelerators, or any new extenders.

 Evans' invention was directed to a new combination of steps performed exothermically, and it matters not if the delayers, accelerators, and extenders be old and well known, as it was the combination, and not the individual elements, that was the invention.

 What Evans taught was that it was posible to permanently wave hair by automatic chemical control of an exothermic pad without the necessity of using a machine for purposes of control, and how to do it. By his invention, definite periods for the several steps could be predetermined in the laboratory with a uniformity in practice impossible of accomplishment by different operators, of even the same operator at successive times, with machines.

 The patentee in patent No. 1,892,426 in his specification described his invention as follows: "This invention comprises a novel method of and a novel means for controling the development of heat generated by the self heating chemical wherein certain materials are used to extend the development of the heat over a longer period of time than could be done by the heating chemical itself."

 And in patent No. 1,894,302 he described the purposes for which certain materials are used as follows: "To accelerate the development of heat."

 And in patent No. 1,919,690 he described the purposes for which certain materials are used as follows: "To delay the development of the heat, or to accelerate the development of heat over a longer period of time of the heat or to extend the development than could be done by the self heating chemical itself, said materials being used also for delaying and then accelerating the natural heat development or for delaying, then accelerating and finally extending the heat development."

 Defendant offered in evidence sixteen alleged prior art patents on which he relied.

 Of these, only Sartory 1,565,509, Frederics 1,596,247, and Barnett 1,609,683 relate to the art of permanent waving of hair.

 Sartory 1,565,509 and Barnett 1,609,683 relate to improvements in the so-called Sartory machine method of permanent waving, in both of them the generation of heat exothermically was from straight lime alone (or its equivalent), which had no inherent control whatever, and required special and complicated mechanisms including suspended metal cylinders or shells to prevent danger of explosions injuring the customer. Both of these patents were cited as references by the Patent Office, but the patent in suit issued over them.

 Frederics 1,596,247 discloses a device for applying a borax solution to the hair to condition it and has nothing whatever to do with the generation of heat chemically. It certainly does not disclose the invention of the patents in suit.

 The following patents, Wertheimer 1,434,576, Wallace 1,488,656, Berkey 1,497,970, Perrault 1,502,744, O'Neal 1,613,120, Smith 1,620,581, Baker 1,760,102, Mann 1,901,313, and Ziegler 1,910,874, relate to a heating bag to be applied to the human body in the nature of a hot water bottle, the heat being generated exothermically from suitable chemical compositions. A comparison of a Thermat heating bag (Exhibit 44), with a New Ray pad taken from a box of New Ray pads (Exhibit 4), shows that the Thermat bag is very much larger and sixty times heavier. Physically there is no suggestion inherent in the hot water bag that it might be used in place of the hair waving pad.

 There is not involved in the hot packs of the type shown by those patents the specific requirements of delay, then acceleration, then extension at the high critical temperature of boiling water.

 The body heating bags must be kept at a sufficiently low temperature at all times not to burn either the hand or body of the patient, and the delay period, if existent, is undesirable and accidental, and those patents do not teach how to obtain a delay period of from one to one and a half minutes necessary in a hair waving device to enable adjustment on the head without burning the fingers of the operator.

 There is no period of rapid acceleration immediately following a definite period of delay.

 The development of heat in the body heating bags must extend over a period of hours with the maximum temperature in the neighborhood of 160 degrees F., which is far below the critical temperature of boiling water, whereas the development of heat for the permanent waving of hair in order to accomplish the best results must extend only from 3 to 6 or 7 minutes, and then cool within a few minutes, so that the pad may be removed without burning the fingers of the operator.

 The admission of large quantities of air is required in the body heating bag to effect the generation of heat. There is no teaching in any of those patents how air necessary for the generation of sufficient heat for hair waving could be introduced in the hair waving pad, and it is not obvious how air could be introduced in sufficient quantity to generate the required heat, nor is it apparent how a suitable temperature could be obtained if air were introduced by some means into the hair waving pad. The body heating bag and the hair waving pad are in my opinion nonanalogous arts.

 Ther series of experiments which defendant's expert Reynolds testified he had run under the teachings of the Wallace, Perrault, O'Neal, Kirk, and Baker patents, were run in 1936, a month or so prior to the trial of this suit, at the instigation of defendant's counsel Stryker, without any opportunity being afforded plaintiff to observe them.

 Reynolds states that he tested under Wallace patent 1,488,656, giving the mixture he claims to have used, and that the delay period was 25 seconds and the extension period was 430 seconds. Plaintiff's expert Snell performed the same experiment as described by Reynolds, and obtained delay period of 10 seconds and an extension period of 350 seconds. The delay in both cases was too short to be operative for hair waving.

 Wallace did not disclose any of the substances used in the test, nor weights given by Reynolds. The ratio of the oxidizing agent and the electrolyte to metal is greatly distorted over that disclosed in the patent. The ingredients and proportions used by Reynolds are different than those disclosed in the patent. The patent discloses a different purpose, a temperature not to exceed 194 degrees F., and to continue for some hours, all of which are contrary to the results obtained by the unwarranted formula adopted by Reynolds. No anticipation is shown by the use of a formula not even suggested in the patent. H.D. Smith & Co. v. Peck, Stow & Wilcox Co. (C.C.A.) 262 F. 415, 417; Radio Corporation of America v. Twentieth Century Radio Corporation (C.C.A.) 19 F.2d 290, 293.

 Wallace did not discern any deficiency in the methods of hair waving, nor did he point out any means of overcoming them, and did not ...

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