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MYTHBUSTERS: Sheaffer's "Balance Lawsuit"


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#1 david i

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Posted 14 January 2012 - 09:49 AM

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Sheaffer submitted a design patent for its Balance pen in 1928, having created a fountain pen that would set the tone for generations of pens to come. Of note, other brand pens from that era crop up today showing startlingly similar design, including but not limited to the original Equi-Poised, a high line pen by top-flight pen maker Wahl-Eversharp, and a name-unknown model by Eagle, a 2nd tier pen maker which did produce some decent pens. Then... it seems... such pens... stopped. Wahl lost its resemblance to Balance. Parker's competitor to Balance, the newly streamlined Duofold, made a weak attempt at streamlining. Waterman really did not attempt significant streamlining during the 1930's. Conklin released pens with rounded ends but lacking the curved taper of Balance.


For years one of the iconic myths in collectable pendom was that around 1930 Sheaffer sued other pen makers to protect its new design, the Balance, noting that "myth" is used in the
academic/Campbellian mode, indicating not falsehood or fairytale, per se, but rather something widely believed to be so, even if it is not definitely so. Collectors routinely reference , allude to, or-- if more careful-- admit to imagining such a case. But, despite our hobby's 35 year existence in organized fashion, despite our hobby being laden with legal types, despite the legal types having access to monstrous online legal history search resources... no one ever had admitted to finding the actual legal cases. Indeed, when asked about the 'conventional wisdom' in this arena, the matter-of-fact references to the 'Sheaffer Balance lawsuit' give way to slack-jawed, zombie-like vacant stares.

That changed last week w
hen Roger Wooten mentioned that he had hard evidence of such a suit, in an FPB thread about Wahl's Equi-Poised. This made him the first researcher to go public with claim to having such material in hand.

Subsequently, I had dinner with an old friend in the patent field. I mentioned the situation while we chatted over sushi and chicken fingers. I was rather surprised (so much for knowing old friends), that she'd worked with BIC/Sheaffer previously and had familiarity with the company. That, accompanied by said friend's skill at patent work, led me to ask for a quick search. Lo and behold... two Sheaffer lawsuits came to light within ten minutes work, and I had hard copy in hand.

Turns out the Wahl managed not to be sued. Eagle, though, and Worth Featherweight-- you don't hear that name every day-- were not so lucky.


First let's peek at the Sheaffer patent.


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regards

David


David R. Isaacson MD. Website: VACUMANIA.com for quality old pens with full warranty.
Email: isaacson@frontiernet.net

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#2 david i

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Posted 14 January 2012 - 09:55 AM

Part 2

I'm fond of pens with superbly preserved Jade celluloid, and I collect variably Sheaffer's Balance and Wahl's Equi-Poised. Probably have 200-250 Balances and perhaps 25 Equi-Poised pens. It was inevitable I'd have some nice Jade pens from both brands, and I could not turn down a Balance lookalike by Eagle when one turned up. These three show the issue Sheaffer faced soon after it released Balance. Keep in mind that most pens prior were cylindrical flat-ended things, or  they featured straight angles (as with  taper cap pens).
<br><br>Posted Image <br><br><br>regards
<br><br>David
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#3 david i

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Posted 14 January 2012 - 09:56 AM


Part 3:


Shown for the first time in its entirety is the major decision in the first of a couple suits Sheaffer filed to protect Balance, in this case Sheaffer vs Worth Featherweight. Highlighting notes key points.

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regards

David

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Email: isaacson@frontiernet.net

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#4 david i

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Posted 14 January 2012 - 10:02 AM

Part 4:

Another lawsuit by Sheaffer.

Shown in its entirety for the first time in collectable pendom... the 1931 Sheaffer vs. Eagle judgement.


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regards

David
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Email: isaacson@frontiernet.net

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#5 david i

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Posted 14 January 2012 - 10:20 AM

Part 5: The overwhelming charm of finding this information... at more than one level.

Noting that library/legal research has never been my pendom focus-- though I greatly respect its pursuit by those who go there-- my particular interest in a 1930 Sheaffer Balance lawsuit stems both from my interest in both Balance and related-era pens, and from curiosity driven by the mythic nature within the hobby of the "Sheaffer Balance lawsuit"... referenced, assumed, or at least imagined by so many collectors, yet never documented in 35 years of organized collecting.

While the "Balance Lawsuit" has been (now... "had been") a key issue in the history of a pen I collect, I now find myself bit amazed by the meta-issue. How many times has "Sheaffer suing about Balance" been mentioned as an assumption in our hobby? How many attorneys collect pens? How long has LexisNexis been around? No one with access bothered to hunt, in all this time?

And, yeah, the myth is busted. It no longer is a myth. The Balance lawsuit now is fact.

I wish I could claim that coming up with the Eagle case represented hard fought research, a Brobdingnagian challenge whose recounting would contribute to the mythos of myth-busting.

But... no. Once I was prompted for the first time to consider a search, when a reliable source cited an awareness of an actual case (I was not made aware of details), all it took was a ten second email listing key words to an old friend who in ten minutes returned the two cases to me. After 13 years of hearing assumptions that probably have been circulating for a couple decades more, it took ten minutes or so to find a hard answer to the question.

There always is the chance in our hobby that information is out there but is being... hoarded. Having the two case reports in hand, and having seeded information that I likely would publish the Eagle case shortly and having dropped hints with side-by-side Sheaffer-Eagle photos within the last few days, it was my hope and expectation that we could force some useful information out of the woodwork. And, in other venues, that seems to have happened. Within a day or so of my photo posts and back channel notes, it seems as if unpublished book chapters or perhaps articles on just this subject subject suddenly have come to light. Even allowing for coincidence, I can say-- invoking an expression often reserved for great pen finds-- "Happy David" :)

We'll have to try this again.

All the case information I posted above is from judgements. The documents that went into testimony could number hundreds, perhaps thousands of pages. No doubt such paper would be worth reading.

While earlier cases might be harder to find than 1930's material-- I've been alerted to a couple topics to hunt-- perhaps soon I'll request such material. We are... overdue.

Again, thanks very much Roger for confirming the existence of a 1930 Sheaffer Balance lawsuit. Absent that, we would not have on hand the Eagle case, and who knows how much longer it would have been before details of the Worth Featherweight case came to light.

Thanks for peeking.

-david
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#6 matt

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Posted 14 January 2012 - 05:09 PM

Part 4: The overwhelming charm of finding this information... at more than one level.
SNIP
We'll have to try this again.

All the case information I posted above is from judgements. The documents that went into testimony could number hundreds, perhaps thousands of pages. No doubt such paper would be worth reading.

While earlier cases might be harder to find than 1930's material-- I've been alerted to a couple topics to hunt-- perhaps soon I'll request such material. We are... overdue.

Thanks for peeking.

-david



How about just that portion of Sheaffer's affadavit naming the four companies "as having desisted, on notice, from manufacturing pens infringing the plaintiff's design."

"Chinese copy" How ironic. We've had a lot of success in slowing that down in the intervening 81 years, not.

Edited by matt, 14 January 2012 - 05:13 PM.


#7 david i

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Posted 14 January 2012 - 05:21 PM

How about just that portion of Sheaffer's affadavit naming the four companies "as having desisted, on notice, from manufacturing pens infringing the plaintiff's design."

"Chinese copy" How ironic. We've had a lot of success in slowing that down in the interveening 81 years, not.




Hi Matt,

I'd guess Wahl was one of the companies to desist. Might be mentioned in Danel's 18 page chapter recently posted as a PDF. Weird that he didn't offer it on Zoss List.

Not sure that I plan to hunt the full case, though Roger might have some of that on hand. I'm not sure how well I've conveyed my basic contentment just to know the answer to one of the Great Questions of Collectable Pendom. Well, maybe i have conveyed that pretty well Posted Image

The "Chinese copy" note caught my eye too. I wonder if the meaning has changed today, perhaps less racist and more awed (which makes assumptions for "then" and for "now" but still...). The flavor of Chinese Copy in that judgement seems to be that of cheap crappy knockoff, one not necessarily made in China, though I admit I have not examined purported Chinese knockoffs of manufactured goods in the 1930's.

"Chinese" was a put-down, then. Today while many might want to imagine that this remains the case, many of the apparently high quality items we take for granted are built there.... and in the USA we don't even have our own crappy knockoffs of the Chinese goods to show. My Apple computer. A new bridge for San Francisco. Etc. Times change. Empires rise and fall. Heck, aren't some of the old USA-brand FP's now made in China? Thought I heard something about that.

You really should come to a pen show Matt. This is fun stuff to discuss over beer and cheese in the evenings.

regards

david
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#8 matt

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Posted 14 January 2012 - 05:30 PM

"Chinese copy" brought to mind pirated software, fake Apple stores, and the cheap fountain pens clogging ebay.



#9 david i

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Posted 14 January 2012 - 05:37 PM

"Chinese copy" brought to mind pirated software, fake Apple stores, and the cheap fountain pens clogging ebay.





Yeah, but at least those Chinese copies (btw- does the pirated software tend to work less well?) are... actually... Chinese. And the fake Apple stores there are selling Apples. Or at least are selling Chinese Copies of Chinese non-Copies. The term at least is not a generic synonym for junk, whether made here or there. Think I'm growing dizzy...

regards

david
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Email: isaacson@frontiernet.net

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#10 Roger W.

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Posted 14 January 2012 - 07:04 PM

David;

I'm glad you linked Daniel's article as the above is mere rabbit droppings in comparison.

Here is the Wahl bit from Equity docket# 53-188 Box 2627, folder 4-

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#11 Wahlnut

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Posted 14 January 2012 - 07:13 PM

Hoarding? Not Sharing everything....Oooh, a twinge of guilt (but not unbearable) arises?


Nice recap of the LexisNexis information driven info. LN has been around in one form or another for at least 45 years. When I was in law school (1968) every first year student had to take "Legal Bib" and learn how to use the law library to dig for cases and other information. LN grew out of a US Air Force data base search engine that tapped into a legal research hard copy database that was growing for maybe 100 years.and evolved into a great computer based tool for legal research. David asks:"How many attorneys collect pens? How long has LexisNexis been around? No one with access bothered to hunt, in all this time?" The question supposes that no one has used it to hunt for pen related legal issues…not so at least in my case. Not publishing the LexisNexis driven results on line does not necessarily mean the resource or the information derived from it or other research tools has not been used. Cliff Harrington is an attorney and a big Wahl-Eversharp expert collector. I would be amazed if he had not also been using it, but that is for him to say.

For those who might be interested, About 6 years ago when the anecdotal/legend of the legal issues was a hot topic for a while,( in no small part due to David I's interest in the subject,) I had posted on one or another list that in addition to the legal records David mentions (which at the time I think I mentioned as Sheaffer legal activity or some such catch-all phrase, about the Balance design issue, I mentioned correspondence with the surviving attorney in Chicago with the historical legal records from Wahl Co./Eversharp, Inc. who corroborated not just the threat of possible legal action, but other correspondence on the subject between the companies. Why might it be that Wahl was not actually sued over the Balance? Sheaffer had a competitive yet "friendly" relationship with Wahl. Wahl and Sheaffer were "working together" at least from the licensing of Sheaffer elements in Wahl Pens such as one of the lever systems. Sheaffer and Wahl were on speaking terms and the correspondence between them in the presence of other law suits, appears all that was necessary to persuade Wahl to change its design. Law suits cost $$ and are the last resort when correspondence to achieve the same ends break down. The listing as a desisting party in the "Daniel" information always pointed to the existence of legal issues behind the various Equi-Poised design changes. That there was no furtherance of the dispute over the name Equi-Poised versus the "Balance" still fascinates me.
A photo-essay that I posted/pinned on the WahlEversharp forum on FPN, on the Equipoised pen, attempts to establish up to 5 different models of Equi-poised pen supposedly demonstrate Wahl's attempts to placate Sheaffer and the models thereafter. Just 3 weeks ago I acquired yet another Equi-poised pen that I am assuming is a prototype (even if I am may be saying so because of my never having seen any such variation before in my Wahl Evershrp myopic history) that may prove to be attempt number 6!.

Syd "the Wahlnut" Saperstein
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#12 david i

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Posted 14 January 2012 - 07:26 PM

David;

I'm glad you linked Daniel's article as the above is mere rabbit droppings in comparison.

Here is the Wahl bit from Equity docket# 53-188 Box 2627, folder 4-

SNIP




Hi Roger,

If my epitaph is, "Isaacson, he left rabbit droppings of wisdom to collectors of old pens", then my hobby life will have been fulfilling.

It seems we are generating a real and actual discussion. How cool is that?

And, too, we have now seen the first transcripts of two suit judgements in favor of Sheaffer. Perhaps relative droppings, but not absolute droppings. Geez...

I owe you big thanks for being the proximate cause of my plunge into this Sheaffer info, and I will amend my note a bit later to reflect that. I did not want to be too effusive initially, in case it made you uncomfortable. I know you are more used to my simply giving you grief.

regards

David
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#13 david i

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Posted 14 January 2012 - 07:28 PM

Hoarding? Not Sharing everything....Oooh, a twinge of guilt (but not unbearable) arises?


Nice recap of the LexisNexis information driven info. LN has been around in one form or another for at least 45 years. When I was in law school (1968) every first year student had to take "Legal Bib" and learn how to use the law library to dig for cases and other information. LN grew out of a US Air Force data base search engine that tapped into a legal research hard copy database that was growing for maybe 100 years.and evolved into a great computer based tool for legal research. David asks:"How many attorneys collect pens? How long has LexisNexis been around? No one with access bothered to hunt, in all this time?" The question supposes that no one has used it to hunt for pen related legal issues…not so at least in my case. Not publishing the LexisNexis driven results on line does not necessarily mean the resource or the information derived from it or other research tools has not been used. Cliff Harrington is an attorney and a big Wahl-Eversharp expert collector. I would be amazed if he had not also been using it, but that is for him to say. SNIP


Hi Syd,

Thanks for joining dicussion. Always good to hear your views on Wahl.

Yep. The four vs five (vs other) types of Equi-Poised is a non-trivial though classic discussion. You and I actually have played with it in the past, and I've made some references to the taxonomy of Equi-Poised in recent FPB posts.

Certainly you get kudos for turning what had been "the pen that collectors and early books called Equi-Poised but which might not actually be Equi-Poised because there is no hard evidence from Wahl for that name but it is still reasonable to call it that"

.... into....

"The Equi-Poised that early collectors and books did call Equi-Poised but which they might not have known really was Equi-Poised when they lumped it with that series just because it seemed to make sense to do so since there seemingly was a lack of hard evidence for that model unless they in fact did happen to have the magic Advert that Syd eventually actually found, thus formally turning an Equi-Poised like pen that some called 'Equi-Poised' into an an actual Equi-Poised".

Can I come up for air now?

Lest there be any confusion, I do want to reiterate that of course no one has any way to know what useful information might be hiding or hoarded in private collector files, if those with that info have not come forth with it. In other words, I would not doubt that anything I ever find that seems new to me might not be new to all who ever have considered the subject. My note about the "Balance Lawsuit" explicitly noted that. Indeed, it was my hope as we released some rumblings about Balance suits, that information would pop out of private holdings, and it turns out this is exactly what happened.

But, there remains benefit to hobby to finding apparently new things and to publishing them, even if one person in ten thousand might quietly already have that info.

I have a number of odd Equi-Poised-like pen images shot from Don Lavin's collection a few years back. Some seem to be the semi-streamlined flat-top ("Transitional") type... with tweaks. I will dig up image later and post it, though I suspect you've already seen it, from previous postings years ago.

regards

david
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#14 Roger W.

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Posted 14 January 2012 - 08:54 PM

David;

I think you are a little remiss for not posting the link to Daniel's article. Here it is -

My link


Roger

#15 david i

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Posted 14 January 2012 - 11:08 PM

David;

I think you are a little remiss for not posting the link to Daniel's article. Here it is -

My link


Roger


I really doubt that. I invite links to all sorts of sources. I had guessed Daniel didn't want link here or at Zoss list as he did not post one. Sigh. No courtesy goes appreciated ;)

I greatly enjoyed that chapter from Daniel's book when I saw it yesterday. It's about time we put out some pen material.


-d
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#16 Shadow Wave

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Posted 15 January 2012 - 06:19 AM

Very interesting stuff. As a law clerk for a federal judge, I can confirm that it's easy for any lawyer to find a published opinion. The original testimony and exhibits in Daniel Kirchheimer's article are another matter. Digging that up took some real hands-on research. Such things are public records, but for space reasons aren't kept in the district court clerk's offices for very long. You can retrieve them given enough time, although there is now a movement underway to destroy old files in unpublished, non-significant cases. Nowadays everything that isn't originally an electronic document gets scanned, of course.

Judge Woolsey, by the way, is most famous for having written the opinion allowing James Joyce's novel Ulysses to be brought into the US; the customs service had been seizing copies on the grounds that it was obscene. That's another story....




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