Hunt Bros. Fruit Packing Co. v. Cassidy

• Decision Date: 24 October 1892
• Citation: 53 F. 257
• Parties: HUNT BROS. FRUIT PACKING CO. v. CASSIDY.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F. 257

HUNT BROS. FRUIT PACKING CO. v. CASSIDY.

United States Court of Appeals, Ninth Circuit.

October 24, 1892

M. A Wheaton, I. M. Kalloch and F. J. Kierce, for plaintiff in error.

John H Miller, for defendant in error.

Before McKENNA, Circuit Judge, and ROSS and KNOWLES, District Judges.

KNOWLES District Judge.

Defendant in error instituted suit in the circuit court of the United States for the northern district of California for an infringement upon his letters patent for improvement in a drying apparatus for drying fruit.

The allegations in the declaration are:

'That said invention related to an improved device for desiccating fruit and other substances by means of artificial heat, and consisted, among other things, of a novel means of moving the trays on which the fruit is held within the drying chambers from the time it is admitted until it is removed therefrom, as will more fully appear from the letters patent hereinafter set out, to which reference is here made for a fuller description.'

The charge is that defendant--

'Has wrongfully made, used, and sold large numbers of machine containing and embracing the invention described and claimed in and by the said letters patent.'

Turning to the letters patent, we find what are the inventions claimed by Cassidy. He says:

'First. My invention relates to an improved device for desiccating fruit and other substances by means of artificial heat, and it consists, first, of a novel method of utilizing the heat which passes through flues from the furnace, and by leading these flues around the chamber within suitable pipes or cases, and making certain openings from these cases into the chamber, I am enabled to admit heated air from any or all sides and at different heights between the layers of fruit, while heat is also admitted from the bottom of the chamber or not, as may be desired.

'Second. My invention also consists in a novel means of moving the fruit within the chamber from the time it is admitted until it is again removed.'

In describing this second invention the applicant says:

'In order to elevate and support the trays of fruit after they are introduced, I have employed a combination of movable and stationary standards upon two opposite sides of the chamber, and these standards are provided with spring catches, which can be forced inward to allow a tray to pass up, but will return to their places after it passes, and prevent its going down.'

Plaintiff in error says in his brief:

'The patent was for alleged improvements in a drying apparatus.'

Defendant in error says in his brief:

'The patent in suit was granted to John W. Cassidy, * * * and covers improvements in drying apparatus used for drying fruits, vegetables, and other products.'

It contains two claims. Infringement is charged of the second only.

Again,--

'The device covered by the first claim is a system of flues for evenly distributing the heat. No infringement thereof is charged, and it may be dismissed from consideration.'

Again,--

'There is no resemblance whatever between the Alden and Cassidy machines, further than the fact that they are both stack dryers. But the Cassidy claim is not for a stack dryer. It is for a peculiar mechanism to lift the trays of a stack dryer.'

From the foregoing it would appear that there was no contention but that defendant in error's patent was for improvements in fruit dryers, and not for a fruit dryer. In the subsequent consideration of this case this may become important.

Plaintiff in error urges that the circuit court committed an error in allowing Cassidy to give an opinion as to the relative costs between his patented fruit dryer and the Alden fruit dryer. The witness stated that he had for a number of years been engaged in mechanical pursuits; that he had seen a great many fruit dryers of different kinds; that he thought his knowledge of mechanics sufficient to permit him to give an intelligent opinion as to the cost of a piece of machinery when he saw it. This question was then asked him: 'With that as a basis, I will repeat the question, and will ask you which in your judgment would be the cheapest to construct, yours or the Alden? ' The objection of plaintiff in error to this question was 'because the witness says he does not know what the Alden dryer would cost. ' It will be seen that the objection was not that the witness was not competent to give an opinion as to the relative costs of these two machines, or that this was not a competent way of proving their relative costs. It is urged by plaintiff in error that the cost of building the Alden dryer was capable of exact proof. There is no evidence to show this, and this was not the objection made. A party objecting to the introduction of evidence must specify the point of objection definitely, and no other will be considered. The fact that the witness did not know the exact cost of the Alden machine would be no objection to his giving his opinion, as a competent expert, as to its cost. A party is never injured by a question propounded to a witness unless he can show injury from the answer thereto. In this case the answer was much narrower than the question would have warranted. In response thereto the witness said: 'I think, so far as the shifting apparatus is concerned, this would be 50 per cent. cheaper than the Alden,-- fifty or seventy-five. ' This was competent evidence upon the question as to the utility of the machine of the defendant in error.

The next error claimed by plaintiff in error to have been committed by the circuit court is in its refusing to instruct the jury to find a verdict for defendant, when the plaintiff in the court below had rested his case upon the evidence then presented. The ground upon which it is urged that the court should have given this instruction seems to be that it appeared from the evidence that there was no novelty in plaintiff's patent; that it was superseded by the Alden machine; that Cassidy had substituted in his patent only mechanical equivalents for those devices used in the Alden. Plaintiff introduced his patent in evidence. This was prima facie proof of the validity of his patent. In the case of Mitchell v. Tilghman, 19 Wall. 390, the supreme court said: 'A patent issued in due form, when introduced, is prima facie presumption of its correctness ' In Walker on Patents the rule is expressed that the patent, when introduced in evidence, is prima facie proof of its own validity, unless it appears on its face not to be such a document as the statute prescribes. Walk. Pat. Sec. 491. When letters patent are introduced in evidence the burden is cast upon the defendant to show that they are not good, or that the patentee is not the first inventor. Blanchard v. Putnam, 8 Wall. 420; Seymour v. Osborne, 11 Wall. 516-538. The question of anticipation cannot be raised without notice specifying the anticipating invention. Section 4920, Rev. St. The question as to whether, considering the previous state of the art, no invention was made by the patentee may be raised without notice. But the want of invention in a patent is a matter of defense unless the thing for which a patent is claimed shows on its face that it is without invention. Walk. Pat. Sec. 599. In the following cases want of invention is spoken of as a defense: Mahn v. Harwood, 112 U.S. 354, 5 S.Ct. 174, and 6 S.Ct. 451; Hendy v. Iron Works, 127 U.S. 370, 8 S.Ct. 1275. The evidence given by Cassidy concerning the Alden dryer was brought out by defendant on cross-examination. It would appear to have been an attempt on its part to make out its defense in this way. If the evidence of Cassidy had any tendency to make out defendant's defense, it was a matter for the jury to determine its weight. And they should have been able to find from it, beyond reasonable doubt, that there was no invention in his patented devices, or that they had been anticipated. Coffin v. Ogden, 18 Wall. 120; Walk. Pat. Sec. 76. It was not pretended that the Cassidy machine showed want of invention on its face. This result was to be reached only by evidence. Under such a condition there could have been no...