Debnam v. Benthall Mach. Co., Inc.

• Decision Date: 23 November 1916
• Docket Number: 1441.
• Citation: 241 F. 103
• Parties: DEBNAM et al. v. BENTHALL MACH. CO., Inc. [1]
• Court: U.S. Court of Appeals — Fourth Circuit

241 F. 103

DEBNAM et al. v. BENTHALL MACH. CO., Inc. ^[1]

No. 1441.

United States Court of Appeals, Fourth Circuit.

November 23, 1916

Menalcus Lankford, of Norfolk, Va., Lee Britt, of Suffolk, Va., and Harry K. Wolcott, of Norfolk, Va. (Wolcott, Wolcott, Lankford & Kear, of Norfolk, Va., on the brief), for appellants.

T. Hart Anderson, of New York City (Munn & Munn, of New York City and Tazewell Taylor, of Norfolk, Va., on the brief) for appellee.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

The appellee will be referred to as complainant, and the appellants as defendants, such being the respective positions occupied by the parties in the court below.

The complainant, the Benthall Machine Company, a corporation doing business in the city of Suffolk, Va., instituted suit in the District Court of the United States for the Eastern District of Virginia against the Ferguson Manufacturing Company. The bill alleges infringement of certain claims of its peanut picking and stemming patent combined in a machine known as the Benthall machine. The court below in its decree perpetually enjoined the defendants from 'using or selling any peanut picking and stemming machines embodying the inventions of said letters patent No. 808,442, as to claims 2, 4, and 5, and No. 890,401, as to claims 1 and 3, or either of them, or from in any way disposing of any such machines containing said infringing constructions which they may now have on hand to others. ' The case comes here on appeal under section 129 of the Judicial Code (Act March 3 1911, c. 231, 36 Stat. 1134 (Comp. St. 1913, Sec. 1121)).

Inasmuch as this court has already disposed of the questions raised in this controversy as respects claims 1 and 3 of patent No 890,401 at this term of the court in the case of Virginia-Carolina Peanut Picker Company, Incorporated, v Benthall Machine Company, Incorporated, 241 F. 89, . . . C.C.A. . . ., adversely to the contention of complainant, we do not deem it necessary to enter into a discussion of the same further than to say that for the reasons stated in that case we think the court below was in error. Having discussed the claims of the respective parties at great length in the case relating to these patents decided at this term, we fear that in the discussion of questions involved in this case we may subject ourselves to the charge of repetition. However, we hope to avoid this as much as possible.

It is insisted that Ferguson and Benthall are not pioneers in the use of--

'a picking screen, a conveyor moving over the picking screen, and a retarding device above the picking screen to pick peanuts.'

It is further insisted that a similar device is shown in what is known as the Crocker patent, No. 97,364. This machine is described by the inventor in the following language:

'The object of this invention is to provide a simple and efficient machine for separating peanuts from the vines; also to separate them from the chaff, light and faulty peas, and to rub and scour the shells.' This patent was granted on the 30th day of November, 1869. The witness Foster analyzes claim 2 of the Ferguson-Benthall patent, and makes a comparison as follows:

Ferguson-Benthall Patent, 808,442. Claim 2.

1. A stirring device consisting of a frame bearing downwardly projecting fingers.

2. A subjacent picking screen.

4. Means for imparting a lateral motion to the stirring device.

Crocker Patent, 97,364.

1. A thinning and distributing frame, E.

2. A subjacent carrier, C.

3. A subjacent picking screen, H.

4. (The distributing frame, E, is stationary.)

A careful consideration of these claims leads us to the conclusion that there is only one distinction between these two patents, to wit, the Ferguson-Benthall patent is so constructed as to impart a lateral motion to the stirring device, while, on the other hand, in the construction of the Crocker patent there is used a stationary distributing frame, the function of each being precisely the same.

It appears from the evidence that agitators used for the purpose of stirring and shifting grain and other material were common in the prior art many years anterior to the date of the issuance of the Ferguson-Benthall patent, and it is equally true that agitators were used in patent peanut picking machines for separating the vines many years before the patent in suit was granted.

Our attention has been called to what is known as the Filbrun patent, No. 8,653, which shows a plurality of springed fingers for spreading chaff and grain over the sieve of a fanning mill. Indeed, this comes within the knowledge of every one who has had experience on the farm. In describing his patent Filbrun states:

'When the machine is in operation, the shoe is moved horizontally and laterally with a rapid motion. * * * This motion is communicated to all the fingers alike and the fingers being in a horizontal position over the riddle to remove the grain and chaff from the shoe. The whole is spread over the riddle equally, instead of being removed in bunches as is the case of fanning mills without this attachment.'

It further appears that the Crocker patent, No. 502,619, as shown in the evidence offered by defendant, is a peanut picking machine containing a movable agitator equipped with downwardly projecting fingers to be used in stirring up the vines so as to cause the peanuts to drop through the grating. The patentee in describing this machine says:

'In operation the rake bars are advanced along over the grating while in lowered position and drawn back when in elevated position, the result being to move the vines out toward the rear, which movement is somewhat facilitated by arranging the upper bars of the grating longitudinally, as before described. To further facilitate the moving of the vines, and also to assist in stirring the same up to effectually guard against any loose peanuts being carried out by the vines, the teeth are curved toward the rear as shown.'

A careful reading of this claim inevitably leads one to the conclusion that its function is precisely the same as that of the Ferguson-Benthall machine.

Our attention is also called to another peanut picking machine where a stirring device is based upon the same principle as the Ferguson-Benthall machine. This is known as the Carnochan patent, No. 717,345. The witness Foster has compared this patent with that of Ferguson-Benthall as follows:

Ferguson-Benthall Patent, 808,442. Claim 2.

1. A stirring device consisting of a frame bearing downwardly projecting fingers.

2. A subjacent carrier.

3. A subjacent picking screen.

4. Means for imparting a lateral motion to the stirring device.

Carnochan Patent, 717,345.

1. A stirring device, R, comprising a rotary member having slats, R.

2. A subjacent carrier, O.

3. A subjacent picking screen, N.

4. Means for imparting a rotary motion to the stirring device (the belt, S).

The method employed for operating the Carnochan patent is described as follows:

'As the vines are dragged over the screen by the conveyor the peas or beans drop through the perforations of the same, while the vines and pods are discharged over the tail end thereof. In order to cause any detached peas or beans which may lodge in the vines to be shaken out of the same and discharged through the screen, an agitating

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