American Cone & Wafer Co. v. Consolidated Wafer Co.

• Decision Date: 11 December 1917
• Docket Number: 55.
• Citation: American Cone & Wafer Co. v. Consolidated Wafer Co., 247 F. 335 (2nd Cir. 1917)
• Parties: AMERICAN CONE & WAFER CO. v. CONSOLIDATED WAFER CO.
• Court: U.S. Court of Appeals — Second Circuit

247 F. 335

AMERICAN CONE & WAFER CO. v. CONSOLIDATED WAFER CO.

No. 55.

United States Court of Appeals, Second Circuit.

December 11, 1917

The bill was to procure specific performance of a contract for the assignment of patent 1,122,913 issued to John P. Groset and assigned by him to the defendant. The gist of the action lay in the words of an earlier assignment from Groset to the plaintiff's predecessors in title of a patent, 1,010,619 issued to him before the patent now in suit. This assignment concluded with the following phrase after the description of the patent: 'Together with all rights and privileges thereunder, as well as all improvements that may be made thereto or thereunder. ' Several questions were litigated at the hearing besides that upon which the case turned below and turns here; i.e., whether Groset's second patent falls within the language just recited. They are not set forth here.

Both patents were for machines to mold and bake ice cream cones made from batter. No detailed description of the patents is intelligible without the accompanying drawings, especially as the second patent discloses an elaborate and complicated machine. A short description of each, full enough to make a discussion of the cause understandable, appears in the following excerpts from the opinion below: 'The machine of Groset's first patent shows a horizontally rotating carrier provided with radially extending cup-shaped holders and vertically swinging pivoted arms carrying the conical formers co-operating with the cup-shaped holders. These cup-shaped holders are divided molds, and suitable mechanism is provided for opening the molds and for raising the conical formers. When the molds have received a charge of batter, the swinging arms carrying the formers drop down and form the batter into a hollow cone shape, after which the horizontal revolution of the table or carrier carries the closed molds and formers through a semicircular oven where the cone-shaped batter formations are subjected to heat for the purpose of cooking. * * * In the machine of the patent in suit, the divided molds and cone-shaped formers are carried by what might be termed a ferris wheel rotating, not in a horizontal but in a vertical, plane, and instead of passing through a circular oven each set of molds and formers is provided with individual heating instrumentalities for the purpose of cooking the batter forming the cone.' James A. Watson, of Washington, D.C., and A. Parker Smith, of New York City, for appellant.

Charles Dushkind, of New York City (T. Hart Anderson, of New

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

LEARNED HAND, District Judge (after stating the facts as above).

We think it clear that the purpose of the language used was not to subject every future cone baker which Groset might devise to the assignment; the...