The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is an action for alleged infringement of claim 1 of Patent No. 1,754,959 issued to Dimitry F. Matushenko, on April 15, 1930.
Claim 1 of the Matushenko Patent No. 1,754,959 reads as follows:
"1. In a bracelet lock, the combination with a block adapted to be attached to one end of a bracelet and provided with a slot adapted to engage the other end of said bracelet, of an inner bar pivotally mounted on said block and adapted to cover said slot with said other end of said bracelet, means to resiliently retain the free end of said bar when said bar is in an operating position, an outer closing bar for said slot and said inner bar, means to pivotally support said outer bar on said block, and means to resiliently retain the free end of said outer bar on said block."
The patent relates to bracelet locks. The objects thereof, as set forth in the patent, are as follows:
"My invention relates to bracelet locks and has a particular reference to devices for locking together two halves of a bracelet on a wearer's arm.
"In other to be convenient for use and practical, a locking device must be very small, it must not be too conspicuous on a piece of jewelry and, at the same time, it must be so constructed as to be easily locked or unlocked by the user.
"Ordinary bracelet locks, while fulfilling the above requirements more or less satisfactorily, are usually very unreliable, quickly wear out and often become accidentally unlocked, causing a loss of valuable jewelry.
"In order to provide a reliable lock which will be safe against an accidental unlocking while in use, I devised a locking device with a double locking feature, so that in case of failure of one locking member the other will still retain the parts of the bracelet joined together, thereby preventing its opening."
Plaintiff, Peter I. Drakoff, and the defendant, Dimitry F. Matushenko, are the owners of the patent. Dimitry F. Matushenko failed to join with plaintiff in this action against defendant, however upon the trial he withdrew his defense.
Defendant, Morays Manufacturing Co., Inc., is a corporation organized under the laws of the State of New York, and is the manufacturer of the alleged infringing device (Plaintiff's Exhibit 3). Plaintiff's Exhibit 4 represents plaintiff's commercial product.
The test of infringement should not be between plaintiff's construction (Plaintiff's Exhibit 4) and defendant's construction (Plaintiff's Exhibit 3). The proper test of infringement is to compare defendant's machine with the claim of the patent in suit. Hartford-Empire Co. v. Obear-Nester Glass Co., 8 Cir., 39 F.2d 769.
Plaintiff's commercial device (Plaintiff's Exhibit 4) differs materially from the patent in suit. The inner and outer locking bar on plaintiff's Exhibit 4 are on a single pivot instead of on independent pivots. The patent provides for a spring tail. Plaintiff's Exhibit 4 has no spring tail. The end of the inner locking bar (Plaintiff's Exhibit 4) contains no hole in its end.
Defendant's commercial device does not infringe claim 1 of plaintiff's patent. It follows more closely the Yount Patent No. 1,583,330 which was not cited by the ...