Hunt v. Armour & Co.

• Decision Date: 16 January 1951
• Docket Number: No. 10181.,10181.
• Parties: HUNT et al. v. ARMOUR & CO.
• Court: U.S. Court of Appeals — Seventh Circuit

185 F.2d 722 (1950)

HUNT et al. v. ARMOUR & CO.

No. 10181.

United States Court of Appeals, Seventh Circuit.

December 15, 1950.

Petition for Rehearing Dismissed January 16, 1951.

Horace Dawson, Casper William Ooms and George E. Frost, Frederick R. Baird, Carl C. Batz, all of Chicago, Ill., for appellant.

Will Freeman, Norman Lettvin, Chicago, Ill., F. O. Richey, H. F. McNenny and F. B. Schramm, all of Cleveland, Ohio, George N. Hibben, Chicago, Ill., (Davis, Lindsey, Hibben & Noyes, Chicago, Ill., Richey & Watts, Cleveland, Ohio, of counsel), for appellees.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

U. S. Patent No. 2,300,157 for Feather-Picking Apparatus for Fowls And The Like was issued to George R. Hunt on October 27, 1942. This appeal is from a judgment holding Claims 2, 3, 7, 10, 12, 14, 17 and 19 of said patent valid and infringed by various chicken-picking machines constructed by E. J. Albright Company and Gordon Johnson Company and owned and used by defendant.

Defendant urges the defenses of non-infringement, invalidity and patent misuse and argues that the doctrine of equivalents which it claims was relied on by the trial court may not be resorted to because of an alleged file wrapper estoppel.

The patent in suit relates to improvements in picking feathers from fowl, and particularly to the provision of novel fingers for use in removing feathers. The problem confronting Hunt was to find some means or evolve or invent some device which would avoid the slow, tedious and expensive process of handpicking of fowl. There are 8000 feathers on a chicken, ranging from the large flight feathers on the wing and tail to the small cover feathers, down feathers and pin feathers. In plucking a chicken it is very desirable to remove all the feathers without breaking the skin, because germs then may enter which will spoil the flesh of the chicken. In the commercial processing of chickens care must also be taken to avoid bruising and discoloring the flesh.

For many years before Hunt there had been a strong and insistent demand for some device to remove feathers from fowl mechanically. Many skilled in the art had searched for a solution of the problem and many efforts were made to construct chicken picking devices, but none of them was successful.

Hunt was a mechanic living in Akron, Ohio. In 1931 he started working in the basement of his home on the problem of developing a workable, efficient chicken picking device. His efforts failed until in 1937 he produced a machine that removed most of the feathers of a chicken, but was too slow in operation to be of commercial value. Hunt continued his research and in 1939 produced a machine substantially as shown by the drawings of the patent in suit. Hunt produced several machines by hand and sold them.

Hunt filed his patent application on November 16, 1939. After three interferences in which the awards were to Hunt, and after claims had been rejected, amended and rewritten, and after a demonstration of the Hunt machine before the principal examiner of the Patent Office and his assistant, the patent in suit was issued on October 27, 1942.

Conrad B. Mueller obtained an exclusive license on the Hunt invention and started to manufacture machines on a commercial scale. The machines met with immediate and widespread acceptance. The impact upon the industry is impressive. Within four years after the Hunt machines were first put on the market, about 85% of the commercially dressed poultry was picked on machines while the percentage at the present time is about 90%. Mueller assigned his exclusive license to the plaintiff, Greenbrier Company.

The device shown by the patent in suit is a hollow drum mounted in a frame, and driven by an electric motor. From the periphery of the drum extend a plurality of flexible fingers projected at an angle of inclination of about 14°. The fingers are arranged in spaced rows completely around the drum, each row being staggered with respect to the adjacent rows. Each finger has closely spaced screw-thread corrugations extending part way down the finger from the outer end. In the preferred form the fingers have a tapered bore extending from the outer or free end almost as far as the corrugations extend. The specifications also stated that solid fingers would remove feathers but that the operation was speeded by the use of hollow fingers.

Before a chicken is plucked it is immersed in hot water and the higher the temperature of the water, the more easily the feathers are removed. When chickens are prepared commercially for immediate sale, a water temperature of 128° is used. However, when the chickens are to be placed in cold storage, water of a lower temperature (semi-scald) is used. The operator presses the chicken against the fingers projecting from the revolving drum. By turning the chicken to different positions all parts of its body will be contacted by the fingers of the machine and the feathers will be removed by a rubbing or scrubbing action. Even when only the semi-scald has been used the Hunt manual machine will quickly remove up to 95% of the feathers without injuring the delicate outer layer of the chicken's skin. When the higher temperature water is used, the Hunt manual machine removes practically all of the feathers within a period of 8 to 10 seconds.

The patent in suit, although of comparatively recent date, has been the subject of considerable litigation. In Mueller et al. v. Campbell et al., D.C.S.D.Ohio, 68 F.Supp. 464, decided June, 1945, the action was against one Campbell who had been involved in one of the interference proceedings in the Patent Office. Judge Nevin held that the machine Claims 2, 3, 7, 10 and 17 and the finger Claims 12, 14 and 19 were valid and infringed, but held that Claim 16, the method claim, was invalid. On appeal the Court of Appeals for the Sixth Circuit in Campbell et al. v. Mueller et al., 159 F.2d 803, affirmed the judgment on validity of the claims there in issue, and also as to their infringement, with the exception that the fingers of Campbell's machine were held not to infringe Claims 3 and 14. The court limited Claims 3 and 14 to a machine equipped with fingers or a finger which varied in thickness. There was no ruling on whether a solid finger infringed, as that question was not before the court for decision. After the appellate court's decision the plaintiffs disclaimed Claim 16.

In 1946 Judge Nevin held the defendants in contempt for continuing their infringement of the Hunt patent by manufacturing and using a machine with a solid tapered finger. Mueller et al. v. Campbell et al., D.C.S.D.Ohio, 68 F.Supp. 475. In that case the defendants emphasized the defense of file wrapper estoppel, but it was overruled. Judge Nevin held that Claims 3, 14, 17 and 19 do not recite the hollow feature of the finger, and that Claims 2, 7, 10 and 12 were infringed, by applying the doctrine of equivalents.

In Mueller et al. v. Pickwick Corp. et al., D.C.N.D.Iowa, 94 F.Supp. 742, Judge Graven held that the claims of the Hunt patent here in issue were valid and infringed, and that there was no file wrapper estoppel.

In Mueller et al. v. Wolfinger et al., D.C. S.D.Ohio, 91 F.Supp. 971, Judge Nevin again held that the claims of the Hunt patent here in issue were valid and infringed by the defendants by the use of both the hollow and the solid tapered fingers.

In Hunt et al. v. Priebe & Sons, Inc., D.C. N.D.Iowa, 92 F.Supp. 767, defendants were charged with infringement by their use of machines built by E. J. Albright Company and Gordon Johnson Company. The claims of the Hunt patent here in issue were again held valid and infringed, and the court held that the Hunt patent was a pioneer patent and basic in nature.

In the case at bar the district judge said in his opinion, 90 F.Supp. 767, 769: "* * It is my holding, and the record shows conclusively, that until the Hunt patent and the disclosures made by Hunt there was never any machine built that successfully picked chickens mechanically. * * *"

He also referred to prior patents, including Bouda No. 1,372,595 and Richards No. 1,755,655, as paper patents and said, 90 F.Supp. at page 770: "* * * Each and everyone of them, including Bouda, was merely an inventor's dream. None of them was ever built and none of them ever picked a chicken. * * *"

Rejecting the prior art and denying the claim of file wrapper estoppel, Judge Shaw found the claims here in issue to be valid. As a conclusion of law he held as to infringement: "Defendant, Armour and Company, has infringed claims 2, 7, 10, 12, 17 and 19 by using the Albright automatic machines illustrated in Plaintiffs' Exhibits 1, 2 and 3 and the fingers thereof exemplified by Defendant's Exhibit 8; has infringed claims 2, 3, 7, 10 and 17 by using the Albright automatic machines illustrated in Plaintiffs' Exhibits 1, 2 and 3 equipped with licensed Barker fingers exemplified by Defendant's Exhibit 2; has infringed claims 2, 3, 10, 12, 14, 17 and 19 by using the Johnson automatic machines illustrated in Plaintiffs' Exhibit 11 and the fingers thereof exemplified by Defendant's Exhibit 5; has infringed claims 3, 10, 14, 17 and 19 by using the Johnson old manual machines illustrated in Plaintiffs' Exhibit 13 and the fingers thereof exemplified by Defendant's Exhibit 7; has infringed claims 10, 17 and 19 by using the Johnson new manual machines illustrated in Plaintiffs' Exhibit 10 and the fingers thereof exemplified by Defendant's Exhibits 6 and 45."

Claims 2 and 3 are typical of the machine claims, and Claim 12 is typical of the finger claims¹:

"Claim 2. A feather plucking device comprising a rotatable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one end thereof being hollow.

"Claim 3. A feather...