Great Lakes Stamp & Mfg. Co. v. Reese Finer Foods, Inc.

• Decision Date: 17 October 1968
• Docket Number: No. 16441,16442.,16441
• Citation: 402 F.2d 346
• Parties: GREAT LAKES STAMP & MFG. CO., Inc., Plaintiff-Appellant and Appellee, v. REESE FINER FOODS, INC., Chicago Paper Company and Weldotron Corporation, Defendants-Appellees and Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.2d 346 (1968)

GREAT LAKES STAMP & MFG. CO., Inc., Plaintiff-Appellant and Appellee, v. REESE FINER FOODS, INC., Chicago Paper Company and Weldotron Corporation, Defendants-Appellees and Appellants.

Nos. 16441, 16442.

United States Court of Appeals Seventh Circuit.

September 19, 1968.

Rehearing Denied October 17, 1968.

C. Frederick Leydig, J. Robert Cassidy, Chicago, Ill., for Great Lakes Stamp & Mfg. Co.; Wolfe, Hubbard, Voit & Osann, Chicago, Ill., of counsel.

Charles W. Bradley, Jr., Chicago, Ill., Harry Cohen, New York City, Fidler, Bradley & Patnaude, Chicago, Ill., for defendants-appellees.

Before MAJOR, Senior Circuit Judge, and SWYGERT and FAIRCHILD, Circuit Judges.

FAIRCHILD, Circuit Judge.

Action for infringement of a patent entitled Method of Heat Shrinking Wrappers on Food.¹ Plaintiff is Great Lakes Stamp & Mfg. Co., Inc., employer of the patentees and assignee of the patent. Defendant Weldotron Corporation manufactured and sold equipment which is alleged to be specially adapted for carrying out the patented process. Defendant Chicago Paper Company resold the equipment, and defendant Reese Finer Foods, Inc. has used some of it to carry out the patented process.

The district court made findings of fact and concluded that the patent was invalid under 35 U.S.C. sec. 103 (obviousness) and under 35 U.S.C. sec. 102 (known or used by others before the invention by applicant, and in public use more than one year prior to the date of the application). Plaintiff has appealed. The district court also concluded that if the patent claim were valid, it had been infringed. Defendants Reese and Weldotron appealed from the failure to declare there had been no infringement.

Motion to dismiss.

The district court entered judgment June 30, 1967 declaring the patent invalid and awarding defendants their costs. On motion of defendants, without objection by plaintiff, the court entered an "amended judgment" July 12, 1967. It was identical except for the addition of an express dismissal of the complaint and amended complaints. Plaintiff's notice of appeal, filed July 27, referred to the findings, conclusions, and judgment entered June 30, but failed to mention the amended judgment. Defendants moved to dismiss, contending we have no jurisdiction. They say the June 30 judgment, mentioned in the July 27 notice of appeal, was no longer the final judgment, and the notice failed to bring before us the amended judgment, which was not mentioned.

Under the circumstances, the intention to appeal from the final judgment was clear, and no one could be misled by the failure to make a specific and accurate reference to the amended judgment. We deem the amended judgment is here for review just as if the notice had made such reference.²

The patent in suit.

The only claim is a method claim and reads as follows:

"We claim:

"The method of packaging food comprising encasing a food product in a heat shrinkable wrapper, progressively conveying said food package through a limited heating zone in an enclosure, forcibly directing a stream of hot air at all exposed sides of said food package to shrink the wrapper thereon at all exposed sides, and salvaging relatively hot air outside the opposite ends of said heating zone but still in said enclosure to maintain a substantially constant temperature in said heating zone and recirculating the salvaged air to said heating zone for subsequent impingement on subsequently conveyed food packages."

The application, filed August 3, 1956, contained four claims, each of an apparatus for treating packaged foods traveling on a horizontal conveyor through a chamber within a housing, with means for feeding warm air into the chamber and means for returning cooled air to be warmed and refed into the chamber. All claims were rejected.

The applicants amended by adding two apparatus claims, 5 and 6, and two method claims, 7 and 8. The patent office required the applicants to elect either the apparatus or the method claims. They elected the latter.

Claim 7 read:

"7. The method of packaging foods compactly comprising encasing the same in a heat-shrinkable wrapper, conveying the wrapped food through an enclosure subjecting the sides and top of the wrapped food to warm air current directed into a portion of the enclosure from the walls thereof and drawing off the cooler air currents from beyond said portion."

Claim 8 was similar.

Claims 7 and 8 were rejected, one reason being stated as follows:

"Claims 7 and 8 are rejected as unpatentable over each of the patents to Weikert, of record, and Cavallito and De Poix, both cited above, in view of either one of the patents to Werner and Lydon, both of record. It is pointed out that each of the Weikert, Cavallito and De Poix references shows it to be old to package foods compactly in a heat-shrinkable wrapper by wrapping the food in the heat-shrinkable wrapper and then exposing the wrapped food to heated air to shrink the wrapper onto the food. It is appreciated that none of the Weikert, Cavallito, and De Poix references discloses the air circulation step as set forth in the claims. However, this feature of recirculating air is of course conventional practice as seen for example in each of the Werner and Lydon references. Accordingly, no patentable significance can be attached to this feature of the claims since it would appear to be a matter of choice, economics and expedient and well within the purview of the skilled individual to provide the heated air enclosures referred to in each of the Weikert, Cavallito and De Poix references with an air recirculation system, if such be desired, and particularly so in view of the teachings disclosed in each of the Lydon and Werner references. It appears that at best applicant has selected certain features of the prior art deemed by him desirable in the production of this product."

Applicants then substituted claim 9, the one ultimately allowed. The amendment was accompanied by remarks asserting that there had been an interview in the patent office and a demonstration of the applicants' commercial machine. It had been demonstrated that while packages were satisfactorily heat shrunk with the blowers in operation, packages put through at the same temperature but in the absence of forced air were of inferior quality.

Applicants stated "The novel function afforded by the applicants' method lies in the forcible impingement of an air stream or jet at the exposed surfaces of a shrinkable wrapper on a package in conjunction with the particular salvaging which causes a turbulent hot air in conjunction with the salvaging." They further alleged distinctions between their claim and the patents previously cited.

The patent was then issued, containing the single method claim previously quoted.

Scope and content of the prior art.

The patent office cited ten patents, and defendants produced others, as well as several publications, considered by the district court.

The district court found: Conveyorized ovens or tunnels with recirculation from outside the opposite ends of an internal heating chamber or zone are not new. Such ovens of appropriate heating capacity and readily adaptable to carry out plaintiff's process have been available commercially for many years. Patents which disclose the use of dry heat for film shrinking do not show the details of the heating source, but simply suggest that articles may be packaged by encasing them loosely in a shrinkable film, then sealing the film, and either blowing with heated air or passing the same through an oven, without specifying the construction of the oven.

Plaintiff concedes that there were prior patents "in which a heat-shrinkable film was said to be shrunk either by passing a package through an `oven' or `heated compartment' or by `blowing with heated air.'" It also concedes "that the world has long been full of furnaces and ovens having recirculating air systems." It points out, however, that although there were patents for recirculating air furnaces and ovens for paint drying, baking, and the like, neither these patents nor the publications cited by defendants described or suggested the use of these devices to shrink heat-shrinkable film when used as packaging.

The court also found:

"Cloud patent 2,490,781, Osterhof patent 2,549,122 and Berst patent 2,829,791, all suggest packaging food articles by running the articles, loosely wrapped in shrinkable film, through a conveyorized oven. Grabenstein patent 2,784,456 states that hot air is the most convenient way to shrink package, and the particular air temperature required depends upon the mass and velocity of the air.

"Shoemaker patent 2,029,131 discloses heat shrinking by evaporating moisture from a cellulosic film to cause the film to contract or shrink, and suggests using heat and air circulation, explaining that a marked reduction in shrink time is achieved by directing a current of warm air against the wrapper — and specifically mentions the use of a suitable drier. Also, an article in the January 1949 issue of `Food Industries\' discloses the use of a heated wind tunnel to shrink bands about the tops of wine bottles at an Italian Swiss Colony Winery, and mentions that other wineries use counterflow hot air tunnels.

"* * * the Ruff article of record on `Recirculation as Applied to Heating and Cooling on Industrial Ovens,\' and the Paschkis text entitled `Industrial Electric Furnaces and Appliances,\' show * * * quite clearly that in conveyorized ovens, as well as in ovens of other types, moving air results in more

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