Chore-Time Equipment, Inc. v. Cumberland Corp.

• Citation: 713 F.2d 774,218 USPQ 673
• Decision Date: 13 July 1983
• Docket Number: Nos. 83-518,83-598,CHORE-TIME,s. 83-518
• Parties: EQUIPMENT, INC., Appellant, v. CUMBERLAND CORPORATION, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 774

713 F.2d 774

218 U.S.P.Q. 673

CHORE-TIME EQUIPMENT, INC., Appellant, v. CUMBERLAND CORPORATION, Appellee.

Appeal Nos. 83-518, 83-598.

United States Court of Appeals, Federal Circuit.

July 13, 1983.

Richard Bushnell, Chicago, Ill., argued for appellant. With him on brief was Todd S. Parkhurst, Chicago, Ill.

Edgar H. Martin, Washington, D.C., argued for appellee. With him on brief were Kevin E. Joyce and Kendrew H. Colton, Washington, D.C., of counsel.

David A. Dyrus, Chattanooga, Tenn., of counsel.

Before MARKEY, Chief Judge, and NICHOLS and SMITH, Circuit Judges.

MARKEY, Chief Judge.

Chore-Time Equipment, Inc., (Chore-Time) appeals from a judgment of the United States District Court for the Eastern District of Tennessee (Wilson, J.) holding Chore-Time's U.S. Patent No. 3,911,868 (the Brembeck patent), issued October 14, 1975, for a "Poultry Feeder", invalid and awarding summary judgment to Cumberland Corporation (Cumberland). Chore-Time also appeals an award of costs to Cumberland. We affirm.

BACKGROUND

On May 23, 1980, Chore-Time sued Cumberland for infringement of claims 1, 2 and 7 through 11 of the Brembeck patent. Cumberland denied infringement and moved for summary judgment, asserting patent invalidity in view of certain prior art patents and the deposition testimony of Howard S. Brembeck (Brembeck), President of Chore-Time and patentee of the Brembeck patent.

The court granted the motion on September 14, 1982, holding in effect that: the subject matter of claims 1, 7 and 9 would have been obvious under 35 U.S.C. § 103 in view of U.S. Patent No. 3,490,419 (Van Huis '419); that the subject matter of claims 1, 7 and 11 was anticipated under 35 U.S.C. § 102 by Van Huis '419; and that the subject matter of claims 1, 2, 8 and 10 would have been obvious under 35 U.S.C. § 103 in view of Van Huis '419 and U.S. Patent Nos. 3,388,690 (Hostetter), 3,566,843 (Van Huis '843), and 3,511,215 (Myers).

Cumberland, in its Bill of Costs, requested reimbursement of $3,077.29 for hearing and deposition transcripts, copying of documents and exhibits, translation, computer

                time, and enlargement of exhibits.   In a November 19, 1982 order, the court awarded $2,932.32 in costs for all but computer time and exhibit enlargement
                

THE BREMBECK PATENT

The Brembeck patent discloses and claims a feeder pan assembly for automated poultry feeding:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The feeder of the Brembeck patent includes:

1. a hood consisting of:

(a) a shell member 24 and

(b) a storage pipe 23

2. a pan 21

3. a wire interconnector 45 suspending the pan from the hood.

Feed is delivered by an auger conveyor to the pipes 23 of a series of individual feeder pan assemblies. The terminal edges of pipe 23 and shell 24 form respectively with the conically-shaped bottom 33 of pan 21 two gates functioning as feed flow regulators (claim 1). ¹

Gate 34 controls feed flowing into the hood to provide limited storage of feed, and gate 39 controls flow into the feeding area (Claims 7 and 11).

Shell 24 is sloped "to prevent birds from resting thereon" and is positioned "more proximate with respect to the pan side than Rib and strut members connect shell 24 and pipe 23 with pan 21 (Claims 1, 2, 8 and 10).

to the apex of the pan conical portion ... to prevent feeding poultry from climbing bodily into the feeder" (Claims 7, 9).

In attempting to distinguish over the prior art in the Patent and Trademark Office (PTO), at trial, and before this court, Chore-Time repeatedly emphasized the two-gate configuration and the limited space between shell and pan.

THE REFERENCES

Van Huis '419 discloses a feeder pan assembly for automated poultry feeding:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The feeder of Van Huis '419 includes:

1. a hood consisting of:

(a) a shell member 28 and

(b) a storage pipe 40

2. a pan 26

3. wire interconnectors (not shown) suspending the pan from the hood.

In the Van Huis '419 feeder, the terminal edges of pipe 40 and shell 28 form respectively with the conically-shaped bottom of pan 26 two gates functioning as feed regulators.

Myers discloses a feeder pan assembly for automated poultry feeding:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Myers feeder includes:

1. a shell member 38

2. a pan 102

3. wire interconnectors 104 for suspending the pan from the hood.

Hostetter and Van Huis '843 disclose feeder pan assemblies including, as does Myers, struts connecting the hood with the feeder pan.

ISSUES

Whether the district court erred in (1) granting summary judgment, or (2) awarding costs.

OPINION

I. Summary Judgment

A. Propriety of Summary Judgment:

Chore-Time says there are genuine issues of material fact respecting the scope and content of the prior art, the level of skill in the art, and the commercial success of the Brembeck patented device, citing Graham v. John Deere, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).

Though we approach the question, as we must, prepared to resolve all doubt respecting the presence or absence of material issues of fact in Chore-Time's favor, we discern no basis for doubting the absence of any such issue here. The mere incantation of the fact findings listed in Graham cannot establish the impropriety of issuing a summary judgment when there is no material issue of fact requiring a trial to resolve, and the facts of record require a holding of patent invalidity. Many, if not most, suits for patent infringement give rise to numerous and complex fact issues, rendering those suits inappropriate for summary disposition. Where no issue of material fact is present, however, courts should not hesitate to avoid an unnecessary trial by proceeding under Fed.R.Civ.P. 56 without regard to the particular type of suit involved.

It is undisputed that the district court had before it all of the relevant prior patented art. The subject matter, i.e., the scope and content, of those patents being easily discernible from their drawings and written descriptions, no testimony, expert or otherwise, regarding their scope and content was necessary.

Chore-Time's assertions concerning a genuine issue of material fact regarding the disclosures of the prior art are unconvincing in light not only of that prior art itself, but also in light of Brembeck's admissions respecting the precise features on which Chore-Time relies.

Brembeck admitted that Van Huis discloses two gates functioning as feed regulators:

Q. Now referring to the Van Huis ['419] patent, are there two gates disclosed in that patent?

A. I think there are.

* * *

Q. But there is a common denominator, is there not, that Mr. Van Huis discloses the use of first and second regulators and you disclose the use of first and second regulators?

A. Yes, I think so. It shows there. That's what he's trying to do, evidently.

Brembeck also admitted that the upper conical portion of Myers' shell was intended to keep birds from resting thereon, that the Myers shell was spaced closer to the edge than to the apex of the pan, and that it would be uncomfortable for birds to stand in the Myers pan.

The affidavit of Chore-Time employee Rigterink, contradicting Brembeck's admission, creates no genuine issue of fact, for it is wholly conclusory and its conclusions are contrary to the clear disclosure of the drawings and written description found in the Van Huis '419 patent. Cf. International Harvester Co. v. Deere & Co., 478 F.Supp. 411, 416 (D.Ill.1979) vacated on jurisdictional grounds, 623 F.2d 1207 (7th Cir.1980) (no legitimate issue created by affidavits contradicting admissions of the patent owner and inventors).

Similarly, there is no genuine issue respecting the level of skill in the art. Chore-Time has not shown error in Judge Wilson's determination that because the subject matter of the patent and the prior art were in this case so easily understandable, a factual determination of the level of skill in the art was unnecessary. See Schutt Manufacturing Co. v. Riddell, 673 F.2d 202, 205 (7th Cir.1982); Monaplastics, Inc. v. Caldor, Inc., 378 F.2d 20, 21 (2d Cir.1967). ²

Chore-Time, does not, as it cannot, argue that an unnecessary fact is material. It makes only a naked allegation that some unspecified higher level of skill should have been applied. That allegation is insufficient to create a fact issue material to the outcome of this case and cannot, here, defeat a motion for summary judgment.

Nor is there a genuine issue of fact concerning commercial success. Brembeck and Marttila (Chore-Time's Vice President) admitted that the feeder pan assembly of the Brembeck patent was never marketed. Chore-Time's commercial product was based on its Swartzendruber Patent No. 4,070,990 and did not incorporate the invention claimed in the Brembeck patent. The success of Chore-Time's commercial product is irrelevant in determining the validity of the Brembeck patent claims in suit and, accordingly, raises no material issue of fact.

B. Correctness of Summary Judgment:

Judge Wilson discussed individual elements in the claims, comparing them to corresponding elements in prior art structures, apparently in response to Chore-Time's assertions of nonobviousness of those elements. Claims should be considered as a whole. We follow here the path of discussion as presented, however, for consideration of the claims as a whole would not in this case affect the outcome.

(1) Claims 1, 7, and 9

Chore-Time's effort to show error in the judgment respecting claims 1, 7, and 9, centers on the design of the pan and shell to discourage birds from roosting on or in the device. That effort must fail. ³

Brembeck, in his deposition testimony, admitted that the sloping hood of Myers was intended to perform the same anti-roosting function and that the periphery of the Myers' shell is closer to the edge than to the apex of the feed pan as set forth in Brembeck's claims 1, 7, and 9:

Q....