Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
This case concerns the art of Gillette safety razors. We are so familiar with the use for years of such razors that it is hard for us to conceive there could now be any marked improvement therein. The original Gillette patent was before this court in Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421. In a later case, American Safety Razor Corporation v. Frings Bros. Co., 62 F.2d 416, 417, this court noted "that the safety razor art is a thoroughly occupied field. Originally novel and radical in character and for years the subject of patentable novelty and the source of large profits, the field has been thoroughly developed, and as a result thereof and the employment of skilled engineering in its progress, improvement and development are naturally to be looked for." Adhering to those views, we approach the questions involved in the present case and inquire first whether the patentee, Gaisman, disclosed anything useful and a material improvement in the razor art; and secondly, if so, was it merely the engineering progress incident to, and to be expected in, that art, or was it such a departure along new lines as to amount to invention? As the opinion of the trial judge was not printed in the record, we here refer to it, 13 F. Supp. 505, and make it part of the record.
In Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421, 422, two propositions were by this court determined: First, that "a ribbon or wafer razor-blade, so thin as to require external support of its cutting edge, was original with Gillette"; and, second, his claim for such a blade was not invalid, because the blade was not per se operative, but, citing authorities, we held: "As to our fifth conclusion, we note it should be added that claim 2 is not invalid because not for an operative device, for, if such were the law, patentability must have been denied to Elias Howe for 'the grooved and eye-pointed needle' which constituted his seventh claim."
Based on this holding, the Gillette Company enjoyed, until their patent expired, a monopoly of their so-called safety razor. We say "so-called safety razor," for in point of fact it was not a safety razor, as the experience of users of this original Gillette razor has been that they have cut themselves on it quite frequently and now continue to do so. Indeed, the statement of the trial judge, "I generally cut myself," is the experience of all of us safety razor users. During the eighteen years that have passed between the year 1904, when the Gillette patent was granted, and 1922, when the problem of a non-face cutting razor was solved, no one solved, or indeed recognized, that problem, although this record is replete with patents many in number, evidencing attempts to improve the safety razor.
Indeed, the only attempt in the line of safety is the patent of Fretwell, No. 1,467,930, considered by this court in Fretwell v. Gillette Safety Razor Co., 78 F.2d 868, the object of which was to provide a blade of such character "that in the event of an insane person seeking to pick at the blade with a view to removing the same, the blade will be broken into fragments and rendered unfit for use." But this patent, as also that of Hartman, left no impress on the art and were but abortive conceptions with no factory birth or sales maturity.
Curiously enough, the solution of safety came not from the efforts of the Gillette engineering staff in an attempt to extend the monopoly of its expiring patent, but from a competing company. The latter's president, Gaisman, was an experienced razor man. His first effort to improve safety razor blades was his patent No. 1,011,938, which had aimed to reduce the breaking of blades when bent, by tempering the outer or cutting edge of the blade to the desired degree and annealing or tempering to a lower degree the central longitudinal portion. The object of such treatment was "to permit the blade to bend or to curve between the longitudinal edges without danger of breaking or cracking." While this patent is not here involved, it is of interest as showing Gaisman's first effort to improve was along the line of preventing blade breaking and not preventing blade cutting of the face. It is also of interest as showing for the first time in the art the pictorial idea of a square opening in a blade but to which no function was attributed.
On November 21, 1922, when Gillette's patent for the flexible blade had expired, Gaisman applied for, and was granted, patent No. 1,633,739, here in suit. From his specification we see his object was to improve the thin, ribbon-like strip of the Gillette razor which he was now free to use. This is shown by the first nineteen lines of the specification. He there points to the fact that in that type of razor "the blade and the backing are retained from rotation on the guard by the cooperation of said pins with the guard and the clamping of the blade between the guard member and the backing member, so that the blade performs no function in retaining any of said parts with relation one to another."
We here note, as above stated, that in this Gillette type of razor Gaisman sought to improve, the blade was a passive, noncontrolling and nonoperating element in fixing, determining, or maintaining the relation of the backing member and the guard member, and that his invention was in now making the blade the dominating and exclusive factor which positioned, maintained, and kept in proper cutting position, first, the backing member; second, the guard member; and, third, the proper cutting edge of the blade itself. This he set forth in his specification in simple clearness, viz.: "The object of my invention is to provide a safety razor wherein a blade will cooperate with a guard member to retain the blade in shaving relation thereto and the blade will also cooperate with a backing member to retain the latter in proper relation to the blade for shaving purposes, so that the position of the backing member with regard to the guard member is maintained by the blade and not by the cooperation of said members together in the well known manner I have described above."
That no one had done this, or even conceived this, before, is clear, but its significance and effectiveness in making the Gillette Razor a non-face cutting and an actual safety razor is not apparent at first sight.
Addressing ourselves to a study thereof, we note the basic fact that the cutting edge of the blade must be accurately placed initially with reference to the guard that when so placed or positioned, the guard will keep the cutting edge from being so far forward as to cut the face and yet from being so far back that it will not cut the beard. Now this position zone between face cutting and nonshaving has been accurately determined and is proven without any contradiction by the production engineer of the plaintiff as follows:
"Q. To what extent is a safety razor a precision instrument, Mr. Smith? A. It is a precision instrument because it must be made so that there is the least possible variation in blade exposure.
"Q. What are the limits that you found possible commercially or desirable commercially? A. Blade exposure must not be less than zero nor ...