Opinion
August 10, 1940.
Samuel M. Amster, of New York City (Charles M. Palmer, of Washington, D.C., and John W. Dickerson, of Philadelphia, Pa., of counsel), for plaintiff.
Hornidge Dowd, of New York City (William M. Cushman and John W. Malley, both of Washington, D.C., of counsel), for defendant and intervener.
Action for patent infringement by the Girard Trust Company and another, as executors and trustees under the will of David L. Short, deceased, and another against the Schwartz-Gilbert Company, Inc., wherein Carl W. Renstrom, doing business as the Tip-Top Products Company, intervened as a party defendant.
Bill of complaint directed to be dismissed, and judgment directed to be entered for defendants.
This is a patent infringement suit based upon patent No. 1,589,248, issued June 15, 1926, to one Augustus H. Sexton, who, before the issuance thereof, had assigned the entire right, title and interest to one David L. Short. After the death of David L. Short, said letters patent passed to the executors of his estate, Girard Trust Company, and Sadie A. Short. Thereafter the executors, for a consideration, transferred the exclusive license of the patent to one Ethel L. Jackson, who thereafter conveyed said license to West Electric Hair Curler Corporation, and the latter, for consideration, transferred this license to Hair Net Packers, Inc., which subsequently changed its name to Solo Products Corporation, one of the plaintiffs herein.
The action was originally brought against Schwartz-Gilbert Co., Inc., which is a customer of Carl W. Renstrom, manufacturer of the alleged infringing article. The latter, doing business as Tip-Top Products Co., of Omaha, Nebraska, intervened as a party defendant.
The Sexton patent discloses a hair curler comprising a hollow curler rod; a clamp bar provided with spaced ears pivotally straddling the curler rod; a swingable loop with two retaining rods, having obtuse-angled hinged portions at one end, and two obtuse-angled or latch portions on the opposite closed end thereof. The latching or locking closed end of the loop has the axle integral with the retaining rods, and a freely revoluble locking spherical ball co-operating with one end of the curler rod.
The defendant's Tip-Top Curler performs the same function and operation as the plaintiff's hair curler, but the retaining rods are in a horizontal plane, while plaintiff's are in a vertical plane; and defendant's locking device is a flat rubber octagonal disc, while plaintiff uses a spherical roller or ball.