Appeal from the District Court of the United States for the Eastern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This suit is for infringement of patent No. 1,866,779 granted July 12, 1932, for a washing machine. The three claims in suit are Nos. 23 and i6 for an apparatus and No. 38 for a method claim. They are found in the margin.*fn1
The patent, after referring to the wear and tear encountered in washing clothes in washing machines, in which the materials to be washed are 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, points out the desirability of a washing operation in which the friction on the articles to be washed is reduced, thus preserving them. The machine is constructed by combining the tub and gyrator (an impeller or agitator) used in washing machines and so operating the latter that it and the tub coact to give the clothes to be cleansed while in a "suspended condition" in the washing liquid, a definite washing and cleansing movement within the tub. The gyrator is illustrated in the drawings as mounted on the bottom of the tub. The course of the washing and cleansing movement of the contents of the tub is described as "normally radially outward from the center portion of the tub, then upwardly, then inwardly, and then downwardly toward the center of the gyrator, and yet at the same time there is a generally rotary progression or movement by the inside of the tub, first in one direction and then in the opposite direction."
This action of the water imparted by the gyrator causes the water in turn to impart similar action to the fabrics. The liquid content of the tub responds to the action of the gyrator (bladed impeller) when it is rapidly rotated first in one direction and then in a reverse direction. If the gyrator is mounted at the top of the tub, the course of movement is produced in a reverse direction than when it is mounted at the bottom of the tub. The rotary oscillation of the gyrator is referred to as "rapid" and "energetic." The fabrics are said to be maintained in a "suspended condition, suspension, and substantial suspension" in the soapy water or other cleansing liquid used and out of substantial rubbing contact either with the tub or with the agitator. The "substantial suspension" out of substantial rubbing condition is not definitely defined. The specification says that the weight of the articles being washed does not interfere with the gyrator or its action nor do the movements of the gyrator interfere with the goods. It says, the clothes are washed "by 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 rubbed against the sides of the tubs or rubbed against the projections on the interior of the tub." The patent says that the water action "largely prevents rubbing clothes against the container or the gyrator."
The evidence shows that the machine made under the patent and the machines of the appellant, as well, cannot wash by water action alone. Some scrubbing, pounding, or flexing to deform the threads of the fabric is indispensable to the clothes washing operation. In the machine made under the patent, the circular movement of the water and the clothes does in fact bring the clothes and different portions of them rapidly in contact with the impeller blade which scrub, beat, and flex the clothes to conform the threads and loosen the dirt from the interstices of the fabrics. Indeed, the appellee does not claim that there is no rubbing of the clothes against the container or the gyrator but that this is largely prevented in its machine. It says claim 38 calls for substantially suspending the materials while they are being washed. Throughout the specifications and claims it is taught that the machine operates primarily by water action. Thus the method claim as well as the apparatus claims call for washing clothes partly by water action and partly by rubbing the clothes against the moving agitator blades, with the rubbing the subordinate instead of the dominant factor in the cleansing.
Snyder's claim is that an improved method of washing may be effected by immersing the fabrics in soapy or other cleansing fluid in a tub and then impelling the washing fluid about the tub in a predetermined course, specified so "vigorously and rapidly" that the movement imparted to the wash water in turn imparts a similar movement to the fabrics, in which movement the fabrics are distorted and manipulated by the water action and contacts between the clothes and the impeller also occur, whereby the clothes are washed partly by water action and partly by rubbing.
The art already knew how to wash fabrics by immersing them in a soapy fluid by this method. The method claim is broad without regard to the kind of tub or impeller employed to set up the required movement of the washing fluid and without regard to whether the direction of flow imparted to the fluid is that given when the source impulsion is the bladed impeller mounted in the bottom of the tub or the reverse direction set up when the source of impulsion is the bladed impeller so mounted as to depend into the water from the top of the tub. In neither the patent nor in the machine sold by the appellant are there rubbing or scrubbing ribs or corrugations within the tub. Machines of this type, referred to as the agitator type, are characterized by washing action in which there is a vigorous agitation of the water by the agitator and whatever rubbing of the clothes there is, is effected by the impeller.
Machines of this type were disclosed in the Davis patent, No. 1,240,826, September 25, 1917, and were manufactured and sold by the "1900 Company" under Mr. Davis' supervision. The Davis patent recites:
"One of the objects of the invention is to provide an agitator having a novel arrangement of ribs or vanes on the lower or active face thereof and which operate to direct the water outwardly by centrifugal force, thereby setting up a circulation downwardly within the tub adjacent the wall thereof, and thence upwardly through the fabrics in the tub and to the center of the space below the agitator.
"A further object is to provide an agitator designed to float upon the water contained within the tub and the ribs on which will not only serve to set up a circulation of water as stated, but will also rub lightly upon the fabrics without danger of injuring them."
The machine described and built consisted of tub, agitator, which floats on the water in the tub, and has eight depending ribs or vanes, projecting into the water toward the clothes; with power means by which a rotary oscillating movement may be imparted to the agitator. The tub is smooth-walled. The agitator is free of obstructions other than the ribs. The ribs or vanes are regularly spaced and disposed radially on the lower face of the disc. They extend from the rim of the disc toward the center; six are shorter than the other two, and all are beveled at their inner ends, leaving the center of the disc clear. Describing the operation of the machine, the patent says:
"First they will throw the upper portion of the water by centrifugal force toward the wall of the tub, thus creating a suction under the center of the disk, with the result that the water displaced upwardly by this suction will force its way through the fabrics and will create a circulation inwardly adjacent the bottom of the tub and downwardly adjacent the wall thereof. Thus the fabrics will be thoroughly cleaned without being pulled and distorted, the circulation of the water through the fabrics resulting in the removal of the dirt ...