Dole Valve Company v. Perfection Bar Equipment, Inc.

• Decision Date: 11 December 1969
• Docket Number: No. 17426.,17426.
• Citation: 419 F.2d 968
• Parties: The DOLE VALVE COMPANY, Plaintiff-Appellant, v. PERFECTION BAR EQUIPMENT, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

419 F.2d 968 (1969)

The DOLE VALVE COMPANY, Plaintiff-Appellant, v. PERFECTION BAR EQUIPMENT, INC., Defendant-Appellee.

No. 17426.

United States Court of Appeals Seventh Circuit.

December 11, 1969.

Hill, Sherman, Meroni, Gross & Simpson, John D. Simpson, Lewis T. Steadman, Robert A. Stenzel, John T. Loughlin, Victor E. Grimm, William R. Carney, Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., for plaintiff-appellant, The Dole Valve Company.

William Marshall Lee, Richard G. Lione, Gerald D. Hosier, Hume, Clement, Hume & Lee, George E. Hale, George W. K. Snyder, Jr., Wilson & McIlvaine, Chicago, Ill., for defendant-appellee, Perfection Bar Equipment, Inc.

Before DUFFY, Senior Circuit Judge, KERNER, Circuit Judge, and GRANT,^* District Judge.

DUFFY, Senior Circuit Judge.

Plaintiff-appellant (Dole) charges Perfection Bar Equipment, Inc. (Perfection) with infringement of the Wallace R. Kromer Patent No. 3,162,323 (323) owned by Dole. Perfection filed a counterclaim relating to various antitrust allegations. This counterclaim was severed for separate trial to be held at a later date.

Issued in 1964, the Kromer patent in suit covers a "method of and apparatus for carbonating, cooling, storing, distributing and dispensing beverages. * *"

The general subject matter of the patent in suit as well as the accused structures, concerns a continuously circulating soda water dispensing system of a type which is arranged to dispense a beverage from a storage receptacle by way of dispensing heads located at one or more remote stations. The cooling and carbonation of water takes place at one point and the dispensing of the carbonated water from the system takes place at a remote point.

Three soda dispensing systems which had been marketed by defendant were charged to infringe claims of the patent in suit. They were the "Strenger" system charged to infringe claims 2 to 6, inclusive; the Dunham-Bush "RB" system also charged with infringing claims 2 to 6, inclusive, and the "Richards" system which is defendant's current commercial system, was charged to infringe only claims 2 and 3.

The trial court held that both the Strenger and Dunham-Bush RB systems infringed claims 2, 3, 4, 5 and 6 of the patent in suit. No appeal has been taken from this ruling.

The trial court also held that the Richards system did not infringe claims 2 and 3. Appellant claims the trial court was in error in this respect.

Appellant challenges the finding and conclusion of the trial court that the patent in suit was anticipated by German patents, Laubach No. 288,219 and Laubach No. 280,997, issued in 1915 and 1914 respectively. Appellant also challenges the finding that the alleged invention contained in the patent in suit was obvious at the time of the alleged invention and also the finding of anticipation by the prior art.

Patent 323 in suit was issued to Mr. Kromer on December 22, 1964. The patent is labeled a "continuation-in-part" of an earlier Kromer patent, No. 3,058,620 which, in turn, is asserted to be a "continuation-in-part" of a still earlier Kromer patent, No. 3,011,681. These two patents also are owned by Dole and were the only references cited by the Patent Office during the prosecution of the patent in suit.

Dole claims that in early dispensing systems, carbonated water in the pipe lines became warm and unpalatable because no carbonated water circulated through the pipe except when the faucet was opened. Dole says the problem was insuring that soda water drawn from the tank be both carbonated and cooled to the desired level when dispensed.

The soda water system disclosed in Figure 8 of the patent in suit comprises a continuously operating pump which circulates carbonated water in a closed circuit between a carbonator tank and one or more faucets from which water can be drawn. Two water level sensing electrodes are disposed in the tank for sensing respective upper and lower limits of water level therein. The two electrodes control a relay-actuated device for causing refill of the tank when the lower electrode senses a predetermined lower level of water and for stopping refill flow when the upper electrode senses a predetermined upper level. Refill is accomplished through a one-way check valve which opens to permit flow into the tank but closes automatically when the refill has been completed to prevent reverse flow.

Defendant Perfection claims all this was incorporated in Mr. Kromer's prior Atlas System which was sold starting in 1959 which was more than one year prior to October 5, 1962, the filing date of the patent in suit.

As pointed out by the trial judge, the earlier Kromer patents and others disclosed fluid systems which carbonated fresh water, stored and refrigerated it in a tank, circulated the water to dispensing faucets and automatically added fresh water to the system when needed. In those systems, water was circulated in a closed circuit, including a storage tank, by a constantly operating suction pump. When the level of the fluid in the tank reached a predetermined lower level, sensing electrodes actuated a second pump which then drew fresh water into the system. The water level of the tank rose and when it reached a predetermined upper level, a second sensing electrode stopped the intake pump. An ordinary check valve closed the fresh water line when it was not in use.

In the patent in suit, the circulation pump and the intake pump were...