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July 21, 1950


The opinion of the court was delivered by: BONDY

This is an action for infringement of Killian Patents No. 1,605,445, issued November 2, 1926, and No. 2,128,827, issued August 30, 1938, both relating to the art of manufacturing thin dipped rubber articles and particularly

Patent No. 1,605,445 is for a machine for the manufacture of uniform annular beads on the open end of thin rubber tubular articles. The machine of this patent was the first to roll such beads. It went into immediate use throughout the industry and completely replaced the former method of rolling such beads by hand. It has never been replaced, though the patent expired more than six years ago. Plaintiff's competitors procured licenses and paid royalties thereunder.

 The patent was issued after consideration by the Patent Office of Hadfield Patent No. 1,097,017 and Brubaker Patent No. 1,192,383, relied on by defendants as anticipations.

 The patent was held valid and infringed in Dean Rubber Mfg. Co. v. Killian, 8 Cir., 106 F.2d 316, certiorari denied 308 U.S. 624, 60 S. Ct. 380, 84 L. Ed. 521; Stevens v. Carl Schmid, Inc., 2 Cir., 73 F.2d 54, certiorari denied 294 U.S. 721, 55 S. Ct. 548, 79 L. Ed. 1253; and in the following unreported cases in the Eastern Divison of the Northern District of Ohio: Stevens v. Stardant Rubber Co., *fn1" Equity No. 2508 and Stevens v. Perfection Rubber Co., *fn1" Equity No. 2507, both decided February 16, 1928; and Stevens v. J. L. Shunk Rubber Co., *fn1" Equity No. 2213, decided December 21, 1927. Those courts sustained the patent after careful consideration of the Hadfield and Brubaker patents and evidence which was substantially the same as introduced at this trial. This court likewise concludes on the record before it that the patent is valid.

 Claims 1, 8, 9, 11 and 15 to 20, now at issue, were held to be infringed in those actions. Claim 15, the broadest, reads: 'In a device of the class described, a rotary brush, means to carry forms into operative engagement with said brush and means to directly engage and rotate said forms.' Each of the claims at issue includes such means. Claim 15 was considered in Stevens v. Carl Schmid, Inc., supra, and in Dean Rubber Mfg. Co. v. Killian, supra.

 Defendants contend that their accused machines do not infringe the patent in that they used two rollers instead of a single brush or roller and that they follow the Hadfield Machine, not the Killian device.

 However, one of the rollers of defendants' accused devices is functionless, and the rollers can be adjusted so as to render one of them functionless. Defendants' machines operate satisfactorily with one roller. Indeed, after the Killian Patent expired, defendants used only one roller on their machines. With one roller functioning, the accused devices operate substantially as disclosed in the Killian Patent and as covered by the claims in suit. Infringement is not avoided by the addition of an element to a patented device even if that element constitutes an improvement. Mills Novelty Co. v. Monarch Tool & Mfg. Co., 6 Cir., 76 F.2d 653, 655; Voices, Inc. v. Uneeda Doll Co., 2 Cir., 32 F.2d 673. Nor is it avoided by making an element in two parts or by adding to the Killian device a second roller which is not needed and does not function when the first roller is working. See Simplex Piston Ring Co. v. Hamilton, D.C., 21 F.2d 196, 199, affirmed 25 F.2d 1022.

 The accused machines follow Killian and not Hadfield. Parts of the accused devices are mere mechanical equivalents of the Killian machine. In both machines the conveyor moves the form lengthwise of the rotating element while the forms are prevented from upward movement and are directly engaged with the friction member which rotates them at a uniform rate of speed. In both machines beads are rolled on the open end of thin dipped rubber articles on the forms. In mode of operation and results defendants' accused bead roller is the same as the Killian device.

 The court accordingly concludes that the patent is valid and infringed.

 The corporate defendant can only be held for infringement between September 17, 1941, six years before the action was commenced, and November 2, 1943, when the patent expired.

 Killian Patent No. 2,128,827 is for a method and apparatus for manufacturing automatically, rapidly, continuously and without the intervention of human hands complete and ready to use thin dipped rubber goods such as prophylactics. The steps in the method disclosed were automatically forming a film of latex of desired thickness on its various parts, rolling a bead on the open end of the film, curing the film, dusting the article and removing the dusted article from the form ready for use.

 The apparatus included an endless conveyor for moving forms successively past stations for carrying out each of these steps and moving the forms past a cleaning station where the forms were made ready for a repetition of the aforesaid cycle of steps. The first step, that is the film forming step, was the crux of the invention. This was accomplished by passing the form into and out of a latex bath at a high rate of speed, picking up and carrying out of the bath on the form an excess of latex and then distributing the excess so that a predetermined part of it was retained on the form and distributed thereon circumferentially and longitudinally by mechanical movements which consisted in constantly rotating the form combined with oscillations of the rotating form above and below the horizontal in a vertical plane until water had been evaporated and the latex had become nonflowing and set.

 The angular extent and the time duration of the oscillations determine the rate and the extent of the longitudinal flow of the latex and therefore the distribution of latex and resulting variations of thickness of the various parts and in this manner produce the film from the relatively thin latex in but one dip.

 Prior to 1930, when the application for this patent was filed, there had been many attempts to devise methods and apparatus for making dipped rubber articles from latex, and a number of patents covering such methods and apparatus were granted. Patents Nos. 1,908,719, 1,717,248, 1,719,633, 1,548,689, 1,542,388, 1,791,060, 1,792,187. These made use of coagulants which could not be used for prophylactics or were suitable for making thick walled articles, such as gloves and bathing caps, but not for mass, continuous and low cost production of prophylactics. What Killian accomplished, and what the art did not have until he appeared with his invention, was the removal of a considerable quantity of latex from a bath on a form and transportation thereof away from the bath while retaining it and distributing it on the form and while causing the latex to set in the distributed position, controlling the distribution of latex on the form by simultaneously rotating and oscillating the form and providing a continuous process for making dipped rubber goods such as prophylactics from latex and making a machine which can do continuously and automatically and rapidly what had previously been done step by step with the aid of manual labor. This involved invention. See Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, ...

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