Snow v. Smith, 9757.

• Decision Date: 05 May 1934
• Docket Number: No. 9757.,9757.
• Citation: 70 F.2d 564
• Parties: SNOW et al. v. SMITH.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 564 (1934)

SNOW et al. v. SMITH.

No. 9757.

Circuit Court of Appeals, Eighth Circuit.

April 12, 1934.

Rehearing Denied May 5, 1934.

James F. Williamson and Ralph E. Williamson, both of Minneapolis, Minn., for appellants.

Albert L. Ely, of Akron, Ohio (George C. McConnaughey, of Cleveland, Ohio, and Paul, Paul & Moore, of Minneapolis, Minn., on the brief), for appellee.

Before STONE and SANBORN, Circuit Judges, and WYMAN, District Judge.

STONE, Circuit Judge.

This is an action for infringement of two method claims (claims 1 and 2) of Patent No. 1,262,860, issued to Samuel B. Smith covering method and apparatus claims for an egg incubator. From a decree determining infringement, this appeal is brought by defendants. The issues here are invalidity of these claims and noninfringement, if valid.

I. Validity.

This patent has been frequently litigated. It has been held valid by every court which has passed upon that issue. This court so held in Miller Hatcheries v. Buckeye Incubator Co., 41 F.(2d) 619, 620, wherein this court not only accorded decisions in the Third and Sixth Circuits due comity but "independently examined the question of validity." Obviously, that decision should control here unless it be clearly shown that important additional evidence bearing on invalidity is present here which was not before this court in the above case. Appellants contend that such evidence is here and rely upon an article in "Ure's Dictionary of Arts, Manufactures and Mines" (vol. II, pp. 652, 653) and upon three patents, being No. 426,321 to Proctor and Knowles, No. 843,909 to Peters and Hungerford and No. 1,010,809 to Schmidt and Schutterle. The dictionary article covers two distinct matters. The first describes two incubation systems both of which depend solely upon a maintenance of proper hatching temperature by heating a compartment with warm water. In one the water is in a circulatory system of pipes and the eggs are apparently placed in trays between the layers of pipes. There is no thought of air circulation. The second method is not described but has to do with the use of water from warm mineral springs. The three patents all have to do with air circulatory systems. The Proctor and Knowles patent is for a "drying-machine" designed to create a circulation of warm air throughout a room for the purpose of drying articles of any character placed or hung therein. Peters and Hungerford is for an "Atmosphere-regulating system" for maintenance of substantially uniform conditions of temperature, humidity, and ventilation in a room. Schmidt and Schutterle is for an "Apparatus for drying Macaroni and like bakery products." Study of each and all of these references convinces that the problems they sought to solve are essentially different from those of incubation and that they are not so anticipatory of Smith as to render this patent invalid. We find in all of this evidence no reason to depart from the above conclusion that this patent is valid as announced by this court in the Miller Hatcheries Case, supra.

II. Infringement.

Determination of infringement depends largely upon the scope to be given the two above claims of the patent. The contentions as to the scope of these claims is best appreciated after a statement of the problem, the patent, and the claims.

The patent and this controversy are comprehended only if certain basic facts which govern incubation are understood. These have to do with the proper development of the embryo of the egg into a chick and, of course, depend upon the features of such development existing naturally in the egg. During the twenty-one days necessary for complete incubation, the problem requires consideration of the vital effects of temperature, moisture, and ventilation. Temperature is involved because development of the embryo requires a temperature of about 100 degrees Fahrenheit and this requirement continues during the entire incubation period. The maintenance of this desirable temperature is complicated by the fact that the temperature disposition of the egg changes during incubation. During approximately the first half of the incubation period the egg is receptive of heat from a surrounding temperature of 100 degrees while during the last half it is giving off heat under such surrounding temperature. This change is fairly regular and is progressive. Because of this change in the temperature characteristic of the egg at different stages of incubation, it is obvious that temperature control — that is, maintenance of all eggs at all times at about 100 degrees — presents a different problem depending on whether the eggs in the incubator are all at the same stage or are at different stages of incubation. Smith addressed himself to the situation where the eggs were in all stages of incubation. His problem, therefore, was to supply about 100 degrees of heat to all eggs in the first half of the incubation period stages and to remove from those in the later stages any excess over 100 degrees — to maintain all eggs at about 100 degrees.

Moisture was another element of the problem because while eggs constantly give off moisture, the chick will be below normal if this evaporation takes place unduly. In short, it must be controlled and kept normal. Ventilation is important because the incubating eggs give off enough carbon dioxide to be harmful if it is not released. Since Smith was concerned with eggs which were at all stages of incubation, these features of moisture and ventilation were constantly present. His entire problem was to maintain a temperature for all eggs of about 100 degrees with provisions for maintaining the proper moisture conditions and for sufficiently purifying the air of the carbon dioxide.

The subject of the invention is an improved apparatus and method in incubators and is "particularly designed for extensive operations wherein a chamber of large dimensions is adapted to contain thousands of eggs in separate trays arranged in tiers" (page 1, lines 9-12). The basic purpose of the method is that "the heated air is adapted to the eggs in various stages of incubation" (page 1, lines 13-15). The air is so "adapted" if all of the eggs can be maintained at "temperatures between 100 degrees and 105 degrees Fahrenheit approximately" (page 1, lines 17-19).

The main principles of the method are two: First, a forced circulation of the heated air and, second, the positioning of the eggs at different stages of incubation. The circulation is to be such as to be "largely around the eggs" (page 1, line 25) in the earlier stages of incubation and "between the different eggs" (page 1, line 39) at the advanced stages so that, during these advanced stages, it "will in effect act as a cooling medium for the eggs" (page 1, lines 39, 40). The temperature of this circulating air is to be such "as will prevent the eggs in the early stage of incubation from falling below 100 degrees" (page 1, lines 42, 43) and the speed or velocity of the circulation is to be such "as to carry the heat away from the eggs in the later stage of incubation and thereby hold the temperature of those eggs at 105 degrees or slightly below that" (page 1, lines 45-48). By this action, "the temperature will remain practically the same throughout the column of eggs, but the air is impelled with sufficient velocity to carry the heat away from the eggs which happen to be in the advanced stage of incubation" (page 1, lines 49-55). The positioning of the eggs primarily involves the "location" of the trays. There are three of these "locations." The first is that of trays containing the fresh eggs. After being in this location for "a predetermined time" (page 1, line 24), they are removed to "a different location but still subject to the same column of air" (page 1, lines 27, 28). After remaining in this second location for "a predetermined time" (page 1, lines 32, 33), they are "again moved to a different position with reference to the forced circulation of hot air and so placed therein that the air will tend to keep...