Nye & Nissen v. Kasser Egg Process Co.

Citation96 F.2d 420
Decision Date26 April 1938
Docket NumberNo. 8416.,8416.
PartiesNYE & NISSEN v. KASSER EGG PROCESS CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Arlington C. White, of San Francisco, Cal., for appellant.

George B. White, of San Francisco, Cal., for appellee.

Before WILBUR, DENMAN, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This is a suit brought by appellee charging infringement of certain claims in two different patents issued to Morris Kasser covering machines designed for handling eggs and for processing them by cleaning and coating them with mineral oil preparatory for shipment, or cold storage. The eggs are delivered to a processing machine in crates with two compartments, each containing five fillers with 36 eggs in each.

The problem presented is the removal from the crate of each filler as a unit, the treatment of the eggs, and the return of the eggs to the filler for crating, with a minimum amount of handling. To this end Kasser, in his first patent in suit, No. 1,489,944, developed and patented a machine which received the layer of eggs from the filler to a square basket or tray containing a receptacle for each egg, 36 in all, arranged in the same manner as in the filler. These eggs are moved through the processing baths in the basket, or tray, and must be removed therefrom for replacement in the crate.

Claims 12, 14, 15, 28, and 29 of the first patent in suit are limited to a conveyor, a basket carried on the conveyor, and means for releasing the eggs from the basket. Claims 12, 14, and 28 provide that the means for releasing the eggs from the basket are actuated by the movement of the conveyor. Claim 29 provides for the basket and conveyor and "means for releasing the eggs from the basket while the conveyor is in motion."1

The basket is connected with two sprocket chains (the conveyor), one on either side of it, and forms a part of the conveyor used in the machine, although removable therefrom. The drawings of this patent show as part of the basket a plate with 36 apertures so arranged that they may be enlarged to permit the eggs to drop through a chute and into a filler placed immediately below. The eggs are released when the part of the traveling basket below the plate containing the eggs is moved with relation thereto by coming in contact with a stationary cam. The basket is so arranged that the upward movement of this lower part of the basket tilts the segments of the plate holding the eggs, thus enlarging the openings and permitting the eggs to fall through into the filler placed below.

Claims 1 and 8 of the second patent in suit, No. 1,798,608, cover an improved form of basket for use in an egg processing machine.2 This form of basket contains an upper plate with 36 openings for the reception of eggs having metal fingers extending downward to support the eggs. Below this there is a series of six parallel metal strips attached at each end to a crossbar so arranged that when these cross-bars are moved upward, or the top plate is moved downward, the six parallel strips enter the bottom of the sockets containing the eggs, contact the eggs, and press them upward until the strips reach the plane of the top of the upper plate, thus completely removing the eggs from the sockets. In the operation of this basket a filler is placed directly over the upper plate and that plate is pressed down so that as the bottom of the eggs contact the cross strips they are forced upward into the filler. When the operation is complete the filler can be slid off the upper plate of the basket. In the preferential device disclosed in the patent the basket has a square table or shelf of the same size as the basket, or filler, attached at the forward end of the moving basket by a hinge connection. The eggs are slid upon this table after being ejected from their sockets into the filler and the table, with the filler, is thrust into a waiting egg crate as the sprocket chains advance. The reverse movement of the sprocket chains, as they turn about the sprocket wheels, withdraws the table from the crate, leaving the egg filler therein. The patent does not disclose the manner of handling the eggs after they are slid from the top of a basket which is not equipped with the hinged table.

The appellant uses an alleged infringing tray in its egg processing machine which, like the baskets in the patents in suit, is attached to two parallel sprocket chains which pass through the processing baths to the point of removal. The appellant's basket contains an upper and lower plate, the upper plate perforated with 36 holes so arranged that the bases of the eggs are supported in these openings after the filler is removed. In order to remove the processed eggs from the basket the appellant's machine is arranged so that as the baskets move forward they pass over a wedge-shaped cam which lifts the lower plate of the basket against the bottom of the eggs and forces them upward into a filler placed over the eggs by the operator. The filler with the 36 eggs is then lifted by an operator and removed from the basket into a crate by the insertion of a well-known form of egg fork containing seven diamond shaped prongs, five prongs being shoved between the rows of eggs, the other two passing on the outer sides of the outer layers of eggs. The partial lifting of the eggs by the cam device from their sockets in the upper plate is desirable in order that the fork may be easily inserted below the largest diameter of the eggs and thus facilitate their handling.

It should be noted that there is testimony to the effect that in appellant's device the eggs are never free from the recesses of the upper plate because in actual operation the under plate stops at least one-eighth of an inch below the lower surface of the upper plate (which is about one-eighth of an inch thick) and therefore about a quarter of an inch below the upper surface. Thus if the operator fails to superimpose the paste-board filler or to remove the eggs when the egg basket passes beyond the cam which raises the lower plate, the eggs return to their former position in the basket and pass on uninjured.

The trial court held the claims of the two patents sued upon to be valid and infringed by the appellant's device. The appellant denied infringement and attacked the validity of the patents in suit, claiming that they were without novelty and anticipated by the prior art.

Infringement of Patent No. 1,489,944.

To determine whether or not the first patent in suit is to be given a broad or narrow range of equivalents some consideration of the prior art is necessary.

The first Kasser patent was granted April 8, 1924, on an application filed April 24, 1920. On February 9, 1915, Victor Clairemont was granted patent No. 1,127,733 upon an application filed January 14, 1914, for an egg processing machine adapted to treat eggs in baskets containing 36 eggs. In that machine, the baskets are carried on a conveyor from the original crate, through the processing fluids, and then returned for unloading. At the unloading station, an operator places an empty cardboard filler covered by a metal plate over the eggs contained in the basket. The eggs are emptied into the filler when the chains pass around the sprocket wheels to return to the filling station. It is apparent that the machine disclosed is very similar to the combination claimed in the first patent in suit. The disclosures of this Clairemont patent read upon the broad claims of the Kasser patent, particularly claims 12 and 29, although the means of transferring the eggs from the basket to the filler in the former patent are quite different from those disclosed by the specifications and drawing of the first Kasser patent in suit.

On a patent application filed April 10, 1915, Clairemont secured a second patent, No. 1,224,710, issued May 1, 1917, for an egg processing machine wherein the eggs were removed from the crate in fillers containing 36 eggs passed through the machine, and ultimately deposited in a filler in a crate. In this machine the eggs were carried in baskets attached to sprocket chains through the processing fluids. These baskets, however, had no bottom, but the eggs therein rested upon a...

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3 cases
  • Mantz v. Kersting
    • United States
    • U.S. District Court — Southern District of California
    • October 14, 1939
    ...U.S. 8, 23 S.Ct. 521, 47 L.Ed. 689; S. H. Brinton Co. et al. v. Mishcon, 1937, 2d Cir., 93 F. 2d 445, 449; Nye & Nissen v. Kasser Egg Process Co., 1938, 9 Cir., 96 F.2d 420, 423; and see my recent opinion in Delaney Patents Corp. v. Johns-Manville et al., D.C., 29 F.Supp. 431 decided on Sep......
  • Mobil Oil Corp. v. Filtrol Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 22, 1974
    ...Air Factors, Inc. (9th Cir. 1954) 210 F.2d 481, 482, cert. denied, 348 U.S. 825, 75 S.Ct. 41, 99 L.Ed. 651; Nye & Nissen v. Kasser Egg Process Co. (9 Cir. 1938) 96 F.2d 420, 424-425. The trial court '15. If, in order to avoid prior art and sustain the validity of a patent, a claim is constr......
  • Air Device v. Air Factors
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 24, 1954
    ...and functions of louvers and vanes, they would be void as broader than the true invention. As this court said in Nye & Nissen v. Kasser Egg Process Co., 96 F.2d 420, 424, quoting from an earlier decision: "`Plaintiff is to be held to a construction of his patent whereby nothing shall be inc......

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