242 F. 939 | 2d Cir. | 1917
This is a suit for infringement of United States letters patent No. 868,977 for a strip-serving device granted to tire complainant as assignee of Elliott, the inventor. The claims in issue are 12 and 13, but it will be necessary only to state the latter:
“13. A strip-serving apparatus adapted to serve strips of paper or the like for wrapping or binding packages, comprising a strip support, a strip moistener operatively related to said support and adapted to moisten the leading end of the strip as it passes the moistener from the support in the operation of the apparatus, and strip-severing means positioned with relation to the moistener and adapted to sever the strip in the rear of the moistened portion thereof, without necessitating further serving of the strip from the support after the moistening to effect the presentation of an unmoistened portion to such strip-severing means.”
Although the device for feeding the dry end of the tape forward so that it can be grasped by the fingers was stated in the specification as one of the objects of the invention, it is entirely omitted in the claim. We will assume, however, that it should be treated as included. Patents for tape-moistening machines are numerous and have been several times before the courts in this circuit. National Binding Machine Co. v. McLaurin (C. C.) 186 Fed. 992; Same v. Eisler (D. C.) 197 Fed. 175; Same v. Larkin, 233 Fed. 998, 148 C. C. A. 8. The District Judge apparently thought that the tape is continuously served in Elliott’s device by a mechanism indicated on the figure by a handle 17 and a pawl and ratchet IS and 21, whereas this mechanism serves the dry end of the tape after it has been severed only far enough forward to pass between the presser and the moistener, where it can be grasped by the fingers, and from that point on the tape is served by hand. The operation of the defendant’s device is exactly similar, except that the first step, to wit, the serving of the dry end of the tape forward, so that it may be grasped by the fingers, is done not by a mechanism, but by the application of the fingers to the tape. We hardly think this difference sufficient to avoid infringement.
The real ground, however, of Judge Augustus N. Hand’s decision, is that the device involves no invention, and in this we concur. The placing of the cutting knife behind instead of in front of the moistener, as in Piper, was a mere mechanical improvement. If the U-shaped arm were made to swing backward far enough to admit the fingers, the dry end of tire tape could be drawn out by them and, if room enough was not left it was not invention to use the handle, pawl, and ratchet-to serve the dry end of the tape forward to a point where it could be grasped by the fingers.
Decree affirmed.
