Cugley v. Bundy Incubator Co., 7646.

• Citation: 93 F.2d 932
• Decision Date: 13 December 1937
• Docket Number: No. 7646.,7646.
• Parties: CUGLEY et al. v. BUNDY INCUBATOR CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

93 F.2d 932 (1937)

CUGLEY et al. v. BUNDY INCUBATOR CO.

No. 7646.

Circuit Court of Appeals, Sixth Circuit.

December 13, 1937.

Otis A. Earl and Ralph L. Chappell, both of Kalamazoo, Mich. (Thomas G. Haight, of Jersey City, N. J., and Earl & Chappell, of Kalamazoo, Mich., on the brief), for appellants.

Albert L. Ely, of Cleveland, Ohio (Laurence W. Smith and Smith, Strawhecker & Wetmore, all of Grand Rapids, Mich., on the brief), for appellee.

Before SIMONS and ALLEN, Circuit Judges, and HAMILTON, District Judge.

ALLEN, Circuit Judge.

Appeal from a decree holding Patent No. 1,911,250 valid and infringed, and enjoining appellant company, which is a manufacturer of incubators competing with appellee, and appellant George Cugley, manager and vice-president of appellant company, from manufacturing or using structures which infringe. The patent is for a method, and the only claim involved is No. 5, which reads as follows:

"In a method of operating a mammoth incubator, placing eggs in an inclosure, heating the air to a constant temperature, stirring the air in the enclosure, humidifying the air to a relatively low humidity, moving the eggs to another enclosure, again heating the air in which the eggs are located, again stirring the air, again humidifying the air to a relatively higher humidity without increasing the temperature and while maintaining it at the same constant."

The art of incubating is old, and is fully described in many adjudications.¹ Eggs were formerly incubated in onechambered cabinets, in which the incubation and the hatching took place, there being no mechanical agitation of the air. The necessary moisture was obtained by placing pans of water within the incubator or by sprinkling the eggs. Later, in order to control the temperature, fans were placed in the incubator by which the air was circulated. Incubation requires eighteen days, and hatching requires three additional days, during which the eggs give off heat, thus raising the temperature. Smith, in his "staged" incubation method, placed the eggs in the cabinet at intervals of three or four days, using the heat generated by the hatching eggs for the purpose of helping to incubate the eggs in the earlier stages. Smith v. Snow, 294 U. S. 1, 55 S.Ct. 279, 79 L.Ed. 721. Smith also circulated the air in the cabinet by means of fans. In all of the earlier forms of incubators, as well as in Smith, while the temperature and moisture might vary at different times, all of the eggs at any given time were subjected to the same degree of temperature and to the same humidity because they were not segregated.

A later step in the process of incubation was the invention of the separate hatcher incubator in which the incubating eggs and the hatching eggs were placed in separate compartments of the incubator. The Stover process adopts the two separate compartments and changes the conception of the treatment of temperature and humidity theretofore existing. The temperature in both chambers is the same, but the humidity is substantially raised in the hatching chamber. The air is agitated in each enclosure. In the specifications of the patent the exact steps for carrying on the process are detailed, and the differentials in humidity are set forth.²

It is the theory of the method in suit that during the hatching period an increased humidity is needed. The chick, which is attached to the shell by a thin membrane, must turn itself inside the shell in order to "pip," or break through the shell. If the membrane dries, the chick cannot do this, and must be manually removed from the shell. The chick comes out of the shell wet, and if the air is dry, evaporation is too rapid, and the chick is chilled. A higher humidity corrects this condition, and also promotes the calcium metabolism of the chick, allowing it to absorb part of the calcium from the shell. This is advantageous in two ways: it makes the chick sturdier and weakens the shell, making it easier for the chick to break out. If the air is dry, the down flies through the compartment, tending to spread a baccillus infection. For these reasons it is essential that the humidity during the hatching process be increased over that maintained during the incubation process. The degree of humidity necessary for the hatching process is detrimental to the incubating process, resulting in a high mortality of embryos.

Since eggs in the hatching period give off much heat, a humidifier cooler is provided by Stover to keep the temperature constant and to increase humidity by passing a portion of the air through a spray of water created by a revolving wheel. The use of the Stover method produces new and beneficial results. Incubators using this method have increased their hatches from six to fifteen per cent.

In the catalogues of appellant company and its predecessor, issued prior to the notice of infringement, the importance of constant temperature and increased humidity at hatching time was constantly stressed. In speaking of the advantages of the separate compartments, appellant company's predecessor advertised: "The temperature and moisture can be correctly regulated for the two stages of incubation which unquestionably produces more chicks and better chicks because it is a well known fact that to obtain the best hatching results a higher humidity and less heat is required at hatching time than during the earlier stages of incubation." Statements such as these made in appellant company's publications carry more force than its present denial that any advantage results from the Stover method.

While the component elements of the method are old, it achieves such new and highly meritorious results that we conclude that it rises to the dignity of invention. Goodyear Tire & Rubber Co. v. India Tire & Rubber Co., 6 Cir., 51 F.2d 204; Detroit Carrier & Mfg. Co. v. Dodge Bros., 6 Cir., 33 F.2d 743. Cf. Bassick Mfg. Co. v. R. M. Hollingshead Co., 298 U.S. 415, 419, 56 S.Ct. 787, 788, 80 L.Ed. 1251.

Appellants contend that every feature of this method existed in the prior art. It is true that incubators with separate hatching and incubating compartments are not new. The agitation of the air and the process of securing increased humidity at hatching time, either by the use of pans of water placed in the incubating chamber, or through the manipulation of ventilators, are also old. Appellee contends, however, that these old features have never been united with the feature of constant temperature in both chambers, and that the combination of all of these elements produces a new and improved result.

The early practice does not anticipate Stover, for as hatching proceeds, it increases the temperature, while Stover requires that the temperature be kept constant in both chambers. Thus the Hannas, the Cline, and the Lamon & Slocum publications all recommend an increase in temperature during the hatching period. The still air incubators followed this early teaching and increased the temperature in hatching. The single-chambered incubators subjected the eggs in both stages to the same conditions of humidity and temperature, and do not anticipate. For instance, while the Bundy Patent, No. 1,850,918, states that increased moisture in hatching is one of its objects, such an increase could not be obtained without subjecting all of the eggs to uniform humidity.

The McCoy Patent, No. 1,740,741, is claimed to anticipate Stover. It discloses a cabinet divided into two compartments, one for incubation and one for hatching. It does not provide for the increased humidity which, with the constant temperature, is the gist of Stover's idea, nor does it state that increased...