Appeals from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
These suits are for infringement of patent No. 1,866,779 for a gyrator type of washing machine. We held this patent invalid as to claims 23*fn1 and 26;*fn2 also, claim 38, for a method claim, in our determination of a suit in Maytag Co.v. Brooklyn Edison Co., Inc., 2 Cir., 86 F.2d 625. In addition to these claims (23 and 26), claim 29*fn3 is here in suit.
Claim 29 defines the washing machine of the patent in the same language as claim 26. It differs from claim 26 in that the impeller is expressly stated to be mounted adjacent to the bottom of the tub. In claim 23 of the patent, as in claim 26, the washing machine elements are said to be so constructed and positioned as to bring about the characteristic movement of the contents of the tub. Claim 23 differs from claim 26 in that the impeller is said to be "mounted in the tub adjacement its bottom," the upper surface area of the base is said to be "considerably less than the horizontal cross section area of the tub," and the margin of the base is said to be spaced " a substantial distance" away from the upwardly extending portion of the tub and the impeller is specifically described with reference to its shape and the nature of the impelling action. The limitation "mounted adjacent the bottom of the tub" is found in claim 23.
Since our decision in Maytag Co. v. Brooklyn Edison Co., Inc., supra, Judge Otis of the District Court for the Western District of Missouri has rendered a decision (Maytag Co. v. General Electric Supply Corporation*fn4) contrary to our views, holding the claims here in suit valid and infringed. In that decision he expressed a willingness "to make some contribution to the final decision," but, upon examination of what he wrote, we discover no contribution to cause us to change the views expressed in the previous litigation in this circuit as to the invalidity of this patent.
After a full oral argument, a study of the new briefs submitted by the appellant, and after observing a demonstration of the machines, we are of the view that our former determination was correct. We must therefore affirm the decrees and do so upon the authority of Maytag Co. v. Brooklyn Edison Co., supra.