Leach v. Rockwood & Company

• Decision Date: 29 June 1967
• Docket Number: No. 3416-Civil.,3416-Civil.
• Parties: Elbert C. LEACH, Plaintiff, v. ROCKWOOD & COMPANY, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

273 F. Supp. 779

Elbert C. LEACH, Plaintiff, v. ROCKWOOD & COMPANY, Defendant.

No. 3416-Civil.

United States District Court W. D. Wisconsin.

June 29, 1967.

COPYRIGHT MATERIAL OMITTED

Arthur H. Seidel and Allan W. Leiser, Milwaukee, Wis., Joseph G. Werner, Madison, Wis., for plaintiff.

Joseph P. House, Jr., and Henry C. Fuller, Jr., Milwaukee, Wis., for defendant.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is an action for infringement of Patent No. 2,580,306 issued December 25, 1951, on an application filed September 5, 1945, by Elbert C. Leach, Otto F. Manthie, and George D. Clapp. This action was commenced in this court on February 13, 1961. On April 15, 1966, a supplemental complaint was filed in which infringement by defendant's modified or screw-fed impeller machine was charged. Prior to trial several inter partes tests of the devices involved were conducted at which the court was present as an observer. Trial of this action to the court took place on September 7-13, 1966. Extensive posttrial briefing was completed by January 1, 1967.

Plaintiff is a resident of the State of Wisconsin and resides at Oshkosh, Wisconsin. "Plaintiff is and has been the sole owner of the entire right, title and interest in the patent in suit, No 2,580,306 since July 22, 1959." Plaintiff's Exhibit 67, paragraph 5.

Defendant is a Delaware corporation having a regular and established place of business at Fort Atkinson, Wisconsin, in the Western District of Wisconsin. Defendant does business under the name James Manufacturing Company. Prior to January 1, 1959, James Manufacturing Company was an independent firm, but on or about January 1, 1959, it was purchased by Rockwood & Company. Hereinafter I shall refer only to the James Manufacturing Company, without differentiating its status as an independent firm or as a division of Rockwood & Company.

"Defendant made and sold its Volumatic silo unloaders from June 1957 to about October 22, 1962, and on or about October 22, 1962 defendant began to make and sell the `modified' Volumatic silo unloader, which it continued to make and sell until the sale of its business to Butler Manufacturing Company, such sale being closed some time after July 14, 1964." Plaintiff's Exhibit 67, paragraph 6.

The court concludes that proper parties are prosecuting and defending this lawsuit.

This court has jurisdiction over the parties and subject matter of this action and venue is proper in the Western District of Wisconsin. 28 U.S.C. § 1338(a): "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent and copyright cases." The Act of Congress relied on in this case is 35 U.S.C. § 271 (a), which defines infringement of patents. 28 U.S.C. § 1400(b) "Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."

This opinion and order is based upon a full consideration of all the exhibits, files, records, and proceedings in the above entitled matter. This opinion and order embodies findings of fact and conclusions of law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure. See Frank Adam Elec. Co. v. Federal Elec. Prods. Co., 200 F.2d 210, 212 (8th Cir. 1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953); Smith v. Dental Prods. Co., 168 F.2d 516, 518 (7th Cir. 1948).

Plaintiff contends that the Volumatic silo unloader made and sold by defendant prior to October 22, 1962, infringes Claims 2, 6, 8, 11, 12, 15, 16, 17 and 20 of the patent in suit. Plaintiff contends that the modified Volumatic silo unloader made and sold by defendant after October 22, 1962, infringes Claims 6, 8, 11, 12, 15, 16 and 17 of the patent in suit. These claims read:

"2. A silo unloader, for installation in a silo above the surface of the silage, comprising a vertically movable frame, means for suspending and lowering the frame in the silo, a cutter journaled in the frame at the center of the silo for rotation relative to the frame in a substantially horizontal plane, blades on the cutter for loosening the silage at the upper surface of the latter and working the loosened silage in toward the center of the silo, an air duct having an unobstructed vertical inlet portion mounted on the frame at the center of the same and leading upwardly from the cutter adjacent the center of the silo, and means mounted on the frame and associated with the duct intermediate the inlet and discharge ends of the same for creating an upward flow of air therein of sufficient intensity to cause the loosened silage to be sucked up into the duct for discharge laterally from the silo.

"6. A silo unloader, for installation in a silo above the upper surface of the silage, comprising a vertically movable frame, means for restraining the frame against free rotation, a cutter journaled in the frame at the center of the silo for rotation in a substantially horizontal plane, blades on the cutter for loosening the silage at the upper surface of the latter and working the loosened silage in toward the center of the silo, a pick-up duct leading upwardly from the cutter at the center of the silo above the point where the blades leave the loosened silage, silage conditioning means beneath the duct separate from the blades of the cutter for agitating the silage loosened by the blades to facilitate its becoming airborne, and suction means associated with the duct for causing the loosened silage to be picked up in the duct for discharge laterally from the silo.

"8. A silo unloader, for installation in a silo above the surface of the silage, comprising a vertically movable spiderlike frame having a center portion and three horizontally radiating arms, which arms are adapted to engage with the sides of the silo to center the frame within the silo, three suspension cables connected to the arms, which cables are adapted to extend vertically over pulleys mounted above the same in the top of the silo and to be connected together beyond the pulleys whereby to support the frame against substantial tilting and provide in effect a single raising and lowering cable for the frame operable from a point outside the silo, said cables also acting to support the weight of the frame and to restrain the frame against rotation while allowing the frame to turn a part of a revolution, an arm journaled on a vertical axis in the center portion of the frame and extending horizontally beneath the frame for rotation in a horizontal plane, means associated with said last mentioned arm for loosening the silage and moving the loosened silage inwardly toward the center portion of the frame, means mounted on the frame for rotating said arm, and means also mounted on the frame for conducting the loosened silage to a point outside the silo, said conducting means including a portion which extends laterally between two of the suspension cables and is pivoted for horizontal movement relative to the frame.

"11. A self contained silo unloading machine for installation as a unit in a silo above the surface of the silage therein, comprising a vertically movable support adapted to be positioned centrally of a filled or partially filled silo, cable means connected with the support for suspending and progressively lowering the same in the silo, an electric motor anchored on the support for vertical movement with the latter, a horizontally disposed silage collecting arm, which arm is pivotally connected on a vertical axis with the underside of the support in vertically fixed relation to the latter at a point adjacent the center of the silo and extends radially to a point adjacent the side of the silo, driving means for the arm operated by the motor for causing the arm to travel in a horizontal circle beneath the support about its point of connection with the latter, said arm including blade means for loosening the silage at the upper surface of the latter and moving the loosened silage in toward the pivotal axis of the arm, a rotary fan associated with the support for vertical movement with the latter, driving means for the fan operated by the motor for creating a flow of air, a relatively short suction duct at the pivotal connection of the arm with the support, which duct is open at its lower end and extends upwardly to the fan for receiving and directing into the fan the loosened silage brought in toward the pivotal axis of the arm by the operation of the blades, and a second relatively long pressure duct extending from the fan to a point outside the silo for conducting the loosened silage blown by the fan to the desired point of discharge.

"12. A silo unloader, for installation in a silo above the surface of the silage, comprising a vertically movable frame, means for lowering the frame in the silo, a cutter journaled in the frame at the center of the silo for rotation relative to the frame in a substantially horizontal plane, blade means on the cutter for loosening the silage at the upper surface of the latter and for working the loosened silage in toward the center of the silo, an air duct leading upwardly from the cutter adjacent the center of the silo, and means associated with the duct for creating an upward flow of air therein of sufficient intensity to cause the loosened silage to be sucked up into the duct for discharge laterally from the silo.

"15. A silo unloader according to claim 12, including agitators associated with the cutter and positioned immediately beneath the duct for directing the silage loosened by the blades into the duct.

"16. A silo unloader according to claim 12, including means for restraining the frame against rotation.

"17. A silo unloader, for installation in a silo above the upper surface of the

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