AJ Deer Co. v. US Slicing Mach. Co.

• Decision Date: 18 October 1927
• Docket Number: 3756.,No. 3755,3755
• Citation: 21 F.2d 812
• Parties: A. J. DEER CO., Inc., v. U. S. SLICING MACH. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

21 F.2d 812 (1927)

A. J. DEER CO., Inc., v. U. S. SLICING MACH. CO.

Nos. 3755, 3756.

Circuit Court of Appeals, Seventh Circuit.

October 18, 1927.

John S. Powers, of Buffalo, N. Y., for appellant.

Chas. M. Nissen, of Chicago, Ill., for appellee.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

PAGE, Circuit Judge.

These are appeals by defendant (appellant) from a decree finding validity and infringement of claims 1, 2, 3, 6, 7, 8, 14, 25, 26, and 27 of letters patent No. 1,026,721 to Thomas, for improvement in meat holders.

Defendant's contention is that the invention is anticipated in the prior art, that it is a mere double use of the prior art sawmill dogs, and that the claims are too broad.

In the operation of meat-slicing machines, in general use for many years, the meats were clamped down and held upon the table of the machine by a ratchet bar, but, as stated in the Thomas specification, owing to the nature of the clamping arrangement, considerable difficulty and inconvenience was experienced in cutting the short end pieces. Thomas undertook to devise a means whereby those short end pieces could be held while being sliced.

The holder was intended primarily for use in connection with meat-slicing machines, but, as claimed, may be used independently of any slicing machine.

If validity is established, infringement is admitted.

It is thought that claim 1 covers the device in question:

"1. A device of the class described embodying a surface adjacent which the meat is arranged, meat-holding prongs co-operating with the said surface and adapted to be projected outwardly and beyond the plane of such surface into engagement with the meat and to be retracted, and means for thus projecting and retracting the prongs."

The prior art patents, other than those relating to sawmill dogs, are: Oxley, No. 42,715, issued May 10, 1864; Edwards, No. 825,529, issued July 10, 1906; Lorenz, No. 1,049,245, issued December 31, 1912; and British patent to Peebles, No. 26,438, issued in 1906.

The use of the Oxley patent was described in the specification as: "A peculiar construction and arrangement of apparatus for cutting, slicing, and chopping bread, cheese, suet, vegetables, tobacco, leather, or any other substance capable of being cut by a knife" — and was called an improved bread cutter.

The Edwards and Lorenz devices were for slicing machines. While there was some sort of holding device on each, the holding of short end pieces was not one of the problems undertaken to be solved.

Counsel on both sides and the witnesses have somewhat confused the issue by discussing Oxley, Lorenz, and Edwards generally, and by failing to limit such discussion to the holding device. With reference to the Oxley invention, the question discussed was whether the device as a whole was ever practical or workable.

We confine ourselves to a consideration of the question, Is there anything in the prior art patents referred to that so directly or certainly pointed the way to the Thomas device that it must be said the latter was a product of mere mechanical skill and did not involve inventive genius? It seems to us apparent, from an examination of the Oxley, Edwards, and Lorenz devices, that the question as to them must be answered in the negative.

Peebles, in 1906, undertook to solve the identical problem before Thomas. Beyond the fact that Peebles had a block, against the face of which the meat to be sliced was to abut and be held there by pins or skewers, fastened to the block and inserted in the meat close to the face of...