Burger Train Systems, Inc. v. Ballard
| Decision Date | 28 April 1977 |
| Docket Number | Nos. 75-1690 and 75-1691,s. 75-1690 and 75-1691 |
| Parties | BURGER TRAIN SYSTEMS, INC., Plaintiff-Appellant, Cross-Appellee, v. John BALLARD d/b/a Ballard's Dairy Queen, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert B. Smith, Bloodworth, Smith & Biscone, Oklahoma City, Okl., for plaintiff-appellant, cross-appellee.
Jerry J. Dunlap, Dunlap, Codding & McCarthy, Oklahoma City, Okl., for defendant-appellee, cross-appellant.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
In this patent case the plaintiff-appellant seeks a partial reversal of the judgment of the district court. Specifically it seeks reinstatement of a jury award on one of two claims which it had made. The jury awarded $15,000 damages on each of plaintiff's claims. However, the trial court set aside one of the jury verdicts on defendant's motion for judgment n. o. v.
The allegation of the complaint was that Burger Train Systems, Inc. was the owner of two patents, the first being a design patent for a drive-in restaurant, U.S. Letters Patent No. 211,010, and the second being a process or utility patent, U.S. Letters Patent No. 3,363,723. Defendant was the operator of a drive-in Dairy Queen restaurant. The process patent covered a movable carrier or cart which transported food from inside a drive-in restaurant to cars parked on the outside. Burger Train, Inc. had obtained both of the patents from the patentee by assignment.
Plaintiff-appellant had sought from the trial court an adjudication of infringement of both patents plus a permanent injunction enjoining Ballard from infringing and an award of money damages for the alleged infringements. Ballard's position was that the patents were invalid and that he had not infringed in any event. He further alleged that the patents were misused and thereby were unenforceable.
Following a jury trial on the issues thus presented, verdicts were returned in favor of plaintiff-appellant for the infringement of the two patents. Two $15,000 jury verdicts were returned. Defendant moved for judgment notwithstanding the verdict or a new trial. The motions were denied as far as the award for infringement of the utility or process patent was concerned. The motion was granted as to the award for infringement of the design patent. It is this latter action of the trial court which has caused Burger Train, Inc. to appeal to this court and seek reversal. Ballard has cross-appealed from the judgment with respect to the infringement of the utility patent.
The design patent was issued in 1968 to a man named Cunningham. It disclosed a roughly circular building having scalloped roofs. It also had a superstructure in the center-top of the building with a pole extending vertically from the superstructure together with a ball on top of the pole. It shows a number of tracks extending from the building to a car parking area in the shape of spokes of a wheel. Ballard's building also was roughly circular with a scalloped roof and with tracks extending from it as in the form of spokes of a wheel. It did not, however, have a superstructure in the center-top with a pole extending vertically from the superstructure and a ball on top of the pole.
The utility patent was also issued to Cunningham in 1968. The application filed in the Patent Office for a drive-in restaurant food serving system contained nine claims. Each of the last eight claims was dependent upon and referred to claim 1 which read:
In a drive-in restaurant system having a food preparation area defined by a surrounding wall, a food dispensing station remote from said preparation area, and a two-way communication system interconnecting the food preparation area with the food dispensing station, wherein the improvement comprises: track means extending between said food preparation area and said food dispensing station, said wall having a door opening surrounding the track means; a carrier means movable along the track means; means for moving said carrier means; and door means opening and closing the door opening in said wall by the movement of said carrier means therethrough.
It was thus a system for transporting food from the preparation area within the building through a door, opening and closing in the wall of the building, to food dispensing areas where automobiles were parked. This transportation was accomplished by means of a carrier device moving along tracks.
The examiner in the Patent Office refused to approve the original claim 1 and the eight claims dependent upon it. Evidence at the trial showed that the examiner cited prior art in two earlier patents and suggested to the patent applicant's agent that claim 1 be revised by incorporating in it the specific descriptions of the track means, carrier means and door means contained, respectively, in original claims 2, 3 and 4. The patentee accepted the suggestion and so the substituted claim 1 which received approval consisted essentially of original claims 1 through 4.
Claim 1, as approved, described the track means as comprising "a pair of substantially U-shaped channel members having the legs thereof projecting horizontally toward each other and connected in spaced-apart parallel relation forming an upwardly open coextensive groove; and an angle member connected to the upper outer edge portion of each said channel member." The carrier means "comprises a horizontally disposed rectangular platform, a pair of axles transversely connected to said platform, a wheel journaled by the respective end of said axles and supported by said angle members, a food shielding hood mounted on said platform, and an inverted substantially U-shaped bow overlying said hood, said bow having its leg portions connected to the respective end portions of said platforms." The third element, the door means, has "a pair of window sashes interconnected at one end portion in A-shaped relation, a hinge joining the apex formed by said window sashes to the upper limit of the wall opening for horizontal pivoting movement of the window sashes toward and away from the plane of the wall opening." The remaining five claims in the original application (claims 5-9) depend upon claim 1 as approved.
The Ballard structure operates in a manner similar to the patented system. His drive-in restaurant food distribution system includes a track extending from inside the building through an opening in the building's wall to serving stations outside where customers are parked in their automobiles. Food travels in a carrier along the track. The carrier passes through a door opening in the wall to the customer.
One difference between Ballard's system and that of the patented device is that the Ballard track is a single iron channel with legs extending upward, whereas in the patented device the track consists of a pair of substantially U-shaped channel members with legs projecting horizontally toward each other and connected in space-apart parallel relation forming an upwardly open coextensive groove. There is also an angle member connected to the upper outer edge portion of the channel members in the patented device that is not present in Ballard's device. Thus, the track in Ballard's system is a simpler structure than the one in the patented device.
The carrier means in the Ballard system is supported as it moves along the track on rollers or wheels. Included in the rollers are circular flanges at their outer edges which extend along the outer edge of the channel irons (tracks). The flanges prevent the rollers and in turn the carrier from slipping from the track. In the patented device there are wheels that are journaled by the ends of the axles and are supported by angle members, elements not present in the Ballard device.
The carrier means in the Ballard system consists of a platform that includes a covering that shields the food. It does not include the inverted, substantially U-shaped bow that overlies the food covering or hood in the patented system.
Finally, the door means in the two systems differ. That used by Ballard consists of two physically separated doors that are hinged at their upper edges to the top surface of the door opening. The two doors are horizontally separated by a distance which provides sufficient clearance for the carrier device as it passes through them on the track. The two doors are interconnected by a linkage system so that when one door is raised to allow the carrier to pass, the other door will be lowered. Thus, the door device ensures that outside elements do not penetrate the opening in the wall of the building. Each door also has a roller device on it which contacts the hood of the carrier as the latter approaches in order to cause the doors to be raised and lowered by the movement of the carrier through the opening in the wall.
The door means in the patented device consists of a pair of window sashes interconnected at the top-end in A-shaped relation. A hinge joins the apex formed by the two window sashes to the upper surface of the door opening in order to allow the window sashes to pivot as the carrier hood comes into contact with a cushioning device attached to the window sash that is in the closed (vertical) position. As the movement of the carrier forces that window sash to rotate upward the trailing window sash rotates downward to the closed position by virtue of the interconnected A-shaped relation of the sashes.
The window sashes or doors in the Ballard system are not connected in an A-shaped relation as in the patented device. As noted, at the top of the Ballard door structure, the sashes or doors are horizontally separated. A further difference is that the Ballard system includes two separate hinges upon which the doors rotate. On the other hand, the patented device has a single hinge that operates at the apex of the...
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