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Q-TIPS, INC. v. GLICKSTON

DISTRICT COURT, E.D. NEW YORK


May 15, 1939

Q-TIPS, Inc.,
v.
GLICKSTON et al.

The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is an action for the infringement of claims 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 21, 31, 32, 33, 35, 38 and 40 of the patent to L. Gerstenzang, No. 1,721,815, granted July 23, 1929, and claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 16, 21, 22 and 23 of the patent to E. C. Bunnell and L. W. Barnes, No. 1,921,604, granted August 8, 1933, and for the infringement of plaintiff's trade-mark Registration No. 309,256 of September 4, 1933, and unfair competition by the defendant.

Claims 1, 2, 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 21, 31, 32, 33, 35, 38 and 40 of the Gerstenzang Patent No. 1,721,815, read as follows:

 "Claim 1. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them."

 "Claim 2. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of constantly rotating friction rollers arranged along spaced axes and adapted to sandwich the stick between them with its axis parallel to their own axes."

 "Claim 3. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, a stick carrier, and means for operating the latter to bring the stick into said sandwiched position."

 "Claim 4. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, and a stick carrier constructed and arranged to support the stick in a rotatable manner."

 "Claim 7. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, and a stick carrier constructed and arranged to support the stick in a rotatable manner at points alongside of the sandwiched intermediate portion."

 "Claim 8. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, and a stick carrier comprising a disc having a slot extending inwardly from its periphery and adapted to accommodate the stick therein."

 "Claim 9. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, and a stick carrier comprising a pair of spaced discs having marginally disposed radial slots which are adapted to accommodate the stick therein."

 "Claim 11. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a pair of friction rollers adapted to sandwich the stick between them, and a stick carrier comprising a pair of discs arranged on opposite sides of one of said rollers, said discs having an aligned set of slots for supporting the stick therein with its medial portion extending transversed across said roller."

 "Claim 12. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a stick carrier which comprises a pair of discs having an aligned set of slots."

 "Claim 13. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, said means including a stick carrier which comprises a pair of discs arranged and constructed to carry the stick in a rotatable manner between them."

 "Claim 14. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and means for thereupon discharging said stick from the machine."

 "Claim 15. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and means for thereupon discharging said stick from the machine, said last named means including a stick carrier movable into and out of twirling position, and means for moving the carrier out of said position at a predetermined time."

 "Claim 16. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and means for thereupon discharging said stick from the machine, said last named means including a stick carrier which comprises a rotatable disc, said disc having a marginal slot for supporting the stick in predetermined angular positions of the disc and dropping the stick at other positions thereof."

 "Claim 17. In a machine for making swabs of the character described, means for grasping and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and means positioned adjacent said ends for automatically applying medication to said swabs as they are twirled."

 "Claim 21. In a machine for making swabs of the character described, means for grasping and twirling a stick, and means positioned adjacent an end of the stick for automatically applying medication thereto at a predetermined time during the twirling."

 "Claim 31. In a machine for making swabs of the character described, a supply of sticks, and means for successively grasping said sticks and twirling them so that a wad of cotton applied to an end thereof will form a swab thereover."

 "Claim 32. In a machine for making swabs of the character described, a supply of sticks, and means for successively grasping said sticks and twirling them so that wad of cotton applied to an end thereof will form a swab thereover, said means comprising a stick-transporting roller adjacent to the supply, a stick carrier, and means for moving the roller to transport a stick from the supply to the carrier."

 "Claim 33. In a machine for making swabs of the character described, a supply of sticks, and means for successively grasping said sticks and twirling them so that a wad of cotton applied to an end thereof will form a swab thereover, said means including a roller having a stick-receiving groove, and means for moving the roller to present the groove to the stick supply."

 "Claim 35. In a machine for making swabs of the character described, a supply of sticks, and means for successively grasping said sticks and twirling them so that a wad of cotton applied to an end thereof will form a swab thereover, said means including a roller underlying and supporting the stick supply, said roller having a groove adapted to accommodate one stick, and means for moving said roller to present the groove in motion to the stick supply."

 "Claim 38. In a machine for making swabs of the character described, a supply of sticks, and means for successively grasping said sticks and twirling them so that a wad of cotton applied to an end thereof will form a swab thereover, and means positioned adjacent the stick which is being twirled for automatically applying medication to said swab during the twirling thereof."

 "Claim 40. The herein described method of making swabs which comprises the steps of twirling a stick intermediate its ends, simultaneously applying a wad of cotton to each twirling end, and simultaneously applying medication to the two swabs formed thereby."

 Claims 1, 2, 3, 4, 5, 6, 7, 8,9, 13, 16, 21, 22 and 23 of the Bunnell & Barnes Patent No. 1,921,604, read as follows:

 "Claim 1. In a machine for making swabs, means for supporting a stick with an exposed end, and means for grasping and applying a wad of cotton to the exposed end of such stick and means for withdrawing the stick from said supporting means with the wad thereabout."

 "Claim 2. In a machine for making swabs, means for supporting a stick with an exposed end, and means for grasping and applying a wad of cotton to the exposed end of such stick, one of said means imparting a twirling motion to the material it holds for fixing said wad about said end, and means for removing the stick."

 "Claim 3. In a machine for making swabs, means for successively supporting and twirling a plurality of sticks with exposed ends so that a wad of cotton applied to such ends will form a swab thereover, and means for grasping and applying a wad of cotton successively to the exposed ends of such sticks."

 "Claim 4.In a machine for making swabs, means for supporting and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and means for applying wads of cotton to said ends."

 "Claim 5. In a machine for making swabs, means for supporting and twirling a stick intermediate its ends so that wads of cotton applied to said ends will form swabs thereover, and mechanism for forming wads of cotton from a supply and applying them to said ends."

 "Claim 6. In a machine for making swabs, means for supporting and twirling a stick and means positioned adjacent an end of said stick for automatically applying a wad of cotton thereto during the twirling and means for conveying the stick with the swab thereover away from said application means."

 "Claim 7. In a machine for making swabs, a traveling member having spaced stick supports, and means synchronized with said member for grasping and applying wads of cotton successively to the sticks in said supports."

 "Claim 8.In a swab making machine having a stick support, a cotton holding member, and means for automatically forming wads of cotton and feeding them to the position of the stick support."

 "Claim 9. In a swab making machine, a cotton wad forming mechanism including a plurality of means for grasping a strand of cotton at spaced points, and mechanism for moving said means relatively for tearing off a wad of cotton."

 "Claim 13. In a swab making machine, a cotton wad forming mechanism including a plurality of means for grasping a strand of cotton at spaced points, mechanism for moving one of said means relative to another for separating a wad of cotton from the strand and adjustable means for governing the size of the wad to be formed."

 "Claim 16. In a swab making machine having a stick supporting device and a device for supporting a cotton wad in alignment with the end of said stick, means for moving the material supported by one of said devices toward and into overlapping relation with the other material and means for concurrently rotating one such material relative to the other."

 "Claim 21. In a swab making machine, a receptacle for holding a strand of cotton, means for grasping and holding said strand, mechanism for grasping and pulling said strand away from said means thereby separating a war therefrom, and means for transferring the cotton wad from said last named mechanism to the point of application."

 "Claim 22. In a swab making machine, means for supporting a stick on which a swab is to be formed, means for grasping a wad of cotton and conveying it to a position adjacent said stick, mechanism for bringing the war and stick into engagement, and means for applying the wad about the stick end by twirling one of said materials while they are in engagement."

 "Claim 23. In combination, mechanism for supporting and twirling a stick, a receptacle for a strand of cotton, means for grasping the strand at spaced points, mechanism for causing said means to separate a wad of cotton from said strand, and means for picking up said wad and applying it on the twirling stick."

 The objects of the invention are stated in the Gerstenzang Patent No. 1,721,815, as follows:

 "My present invention relates generally to medical swabs and has particular reference to a machine for manufacturing such swabs in quantity; and coordinately to a novel type of swab produced thereby.

 "My invention relates to the type of swab which has heretofore been constructed mainly by hand by wrapping a wad of absorbent cotton about the end of a small stick. It is one object of my invention to provide a machine for turning out such articles in large quanities and at a rapid rate. More particularly, it is an object to provide a machine for the production of double-end swabs, i.e., a stick having its opposite ends associated with small wads of cotton.

 "Another object is to provide a machine which will medicate the swabs during their manufacture.

 "A still further object lies in providing means for treating the stick during the manufacture of the completed article so that the cotton wads associated therewith will be securely held in position."

 The object of the invention is stated in the Bunnell & Barnes Patent No. 1,921,604, as follows: "The present improvements relate to swab making machines and more particularly to means for automatically applying a wad of cotton to a stick and forming a swab thereover."

 The patents in suit prescribe a method for automatically making medical swabs. These swabs consist of a small stick having an applicator of cotton wound on one or both, ends. Prior to plaintiff's invention, the only method of applying cotton to a stick was by hand; this was expensive and slow.

 In the machine made pursuant to patent No. 1,721,815, it was necessary to apply the wads of cotton to the twirling sticks by hand. The daily output was 2,000 swabs or less when produced by hand and 12,000 when produced by the first machine under this patent.

 The second machine made pursuant to patent No. 1,921,604, produced 24,000 swabs per day. This machine is more effective and reduces the cost considerably.

 Both inventions provide a machine that selects individual sticks from a bin, then transfers each stick to a carrier and then transports them in this carrier to a point where the cotton is applied. The machine also applies a liquid antiseptic to the swabs or wads as they are formed. The machine made pursuant to the second patent No. 1,921,604, grasps the cotton and detaches a portion thereof sufficient to be used as a swab, this cotton is applied to the end of the stick by twirling the stick.

 The ideas expressed in these inventions were entirely new. The machines made pursuant to these patents act almost humanly. They are able to make swabs that were formely done by hand, with greater effectiveness and from twelve to twenty times faster.This constitutes invention.

 Not only have the defendants appropriated the plaintiff's invention, but they marketed the products in a small blue package and under a name which would confuse the public. The plaintiff uses the name Q-Tips and the defendant uses Twin-Tips.

 The defendants have set up the following patents against patent in suit No. 1,921,604: The patent to G. B. Richmond, No. 525,793, granted September 11, 1894; the patent to S. A. Flower & W. S. Rhoades, No. 547,751, granted October 8, 1895; and the patent to L. Gerstenzang, No. 1,721,815, granted July 23, 1929. They have set up the following patents against both patents in suit: The patent to F. Schafer, No. 512,061, granted January 2, 1894; the patent to A. C. Campbell, No. 593,532, granted November 9, 1897; the patent to G. T. Trundle, Jr., No. 1,438,623, granted December 12, 1922; the patent to P. Codina, No. 1,507,953, granted September 9, 1924; the patent to G. E. Weight, No. 1,554,932, granted September 22, 1925; the patent to L. C. Shepherd, No. 1,608,628, granted November 30, 1926; the patent to C. F. Rober, No. 1,642,894, granted September 20, 1927; the patent to H. T. Forbis, No. 1,652,108, granted December 6, 1927; the patent to C. De-Felice, No. 1,481,314, granted January 22, 1924; the patent to C. De-Felice, No. 1,700,584, granted January 29, 1929; the patent to R. W. Fuller, No. 1,421,205, granted June 27, 1922; and the patent to L. R. Heim, No. 1,590,190, granted June 29, 1926.

 The following patents were cited by the Patent Office: The patent to F. Schafer, No. 512,061; the patent to A. C. Campbell, No. 593,532; the patent to C. F. Rober, No. 1,642,894; the patent to S. A. Flower & W. S. Rhoades, No. 547,751; the patent to G. T. Trundle, Jr., No. 1,438,623; the patent to G. B. Richmond, No. 525,798; the patent to L. C. Shepherd, No. 1,608,628; and the patent to H. T. Forbis, No. 1,652,108.

 Defendants place reliance upon the patents to C. De-Felice, No. 1,481,314, and No. 1,700,584. These two patents relate to a non-analogous art (that is making artificial fruit). Even if analogous, they do not have the essentials of the plaintiff's inventions. It would require a wide stretch of the imagination for one with knowledge of the De-Felice patents to make medicated swabs on sticks as is provided in plaintiff's invention.

 The infringement of the claims of plaintiff's patents is clear.

 The defendants and each of them also infringed the plaintiff's trade-mark consisting essentially of the arbitrary coined word Q-TIPS and plaintiff's rights under the trade-mark registration No. 309,256, of September 4, 1933, and also have imitated plaintiff's package in which its swabs have been sold for many years, by making or causing to be made, selling, offering for sale and distributing in the Eastern District of New York during the period of four months prior to the commencement of this suit swabs in packages similar to the plaintiff's bearing the mark TWIN-TIPS, said package being in evidence herein as Plaintiff's Exhibit 1A and Plaintiff's said packing being in evidence herein as Plaintiff's Exhibit 15.

 The said patents in suit Nos. 1,721,815 and 1,921,604 are good and valid as to the claims infringed by the defendants which are claims 1, 8, 11, 14, 15, 16, 21, 31, 32, 35, 38 and 40 of the first patent, claims 1 to 4, inclusive, 9, 13, 16, 21 and 23 of the second patent, which are infringed by both of defendants' said machines, claims 9 and 17 of said first patent and claim 7 of said second patent which are infringed by the defendants' said machine No. 1, claims 2, 3, 4, 7, 12, 13 and 33 of said first patent and claims 5, 6 and 8 of said second patent which are infringed by the defendants' said machine No. 2.

 The said claims of the said patents in suit Nos. 1,721,815 and 1,921,604 are infringed by the said defendants by the machines and by the said defendants and each of them in making or causing to be made and using as set forth in the last finding.

 Neither of the said patents in suit Nos. 1,721,815 and 1,921,604 is anticipated by any or all of the prior patents or publications nor by any prior practice or use shown by the record herein, as to the claims above enumerated (the remaining claims not being involved herein), and each of said patents as to said claims is for a new and useful invention.

 The plaintiff, Q-Tips, Inc., is entitled to recover of the said defendants Samuel Glickston and Irving Glickston, the profits, gains and advantages which they and each of them have received or made or which have arisen or accrued to them and each of them from the infringement aforesaid together with the damages which the plaintiff has sustained by reason thereof.

 The plaintiff is entitled to a perpetual injunction of this court restraining the defendants and each of them, their associates, agents, servants, employees and attorneys and each of them from directly or indirectly making, using or selling or causing to be made, used or sold any machines for making swabs or the like or using any method embodying the invention or improvements in the said claims above enumerated and specifically from directly or indirectly making, using or selling or causing to be made, used or sold machines like the defendants machines Nos. 1 and 2 (Exhibits 9 and 10) and from in any way infringing upon any of said claims of said two Letters Patent or upon the rights of the plaintiff under said claims.

 Plaintiff is entitled to a reference to a Special Master to be appointed by this court to ascertain, take and report to the court an account of said profits, gains and advantages and to assess the damages, and to such accounting.

 Settle decree on notice.

19390515

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