Cherry-Burrell Corporation v. Dairy & Creamery E. Co.

• Citation: 75 F.2d 60
• Decision Date: 20 December 1934
• Docket Number: No. 9978.,9978.
• Parties: CHERRY-BURRELL CORPORATION v. DAIRY & CREAMERY EQUIPMENT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

75 F.2d 60 (1934)

CHERRY-BURRELL CORPORATION v. DAIRY & CREAMERY EQUIPMENT CO.

No. 9978.

Circuit Court of Appeals, Eighth Circuit.

December 20, 1934.

William O. Belt, of Chicago, Ill. (Arthur C. Brown, of Kansas City, Mo., on the brief), for appellant.

Charles W. Gerard, of Kansas City, Mo., for appellee.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

STONE, Circuit Judge.

This is an action for infringement of letters patent No. 1,620,116, granted D. A. Maanum, March 8, 1927, and covering a mechanism to wash milk cans. The defenses were invalidity of the patent and noninfringement. The issue of invalidity in the court below involved prior use and also anticipation by prior patents. The trial court found prior use and noninfringement without indicating any view as to the issue of anticipation by earlier patents.

Anticipatory Patents.

Appellee seeks here to support the decree of the trial court, not only on the two grounds above stated, but upon the additional ground of anticipation by prior patents. The record here is not in condition to make this contention subject to our examination. In the trial below various patents seem to have been introduced as anticipations, but, when the record was made up for this court, all of these anticipatory patents were transmitted as physical exhibits to this court under a stipulation of the parties that they might be available here and need not be printed in the transcript of the record. An order was made by the trial court transmitting these matters as physical exhibits. They were not made part of the printed record (printed under our rule) here; no order excepting them from our rule (rule 23) as to printing the record was sought. It is not within the power of the parties to abrogate in whole or part our rule as to what shall be printed in this court. All of these exhibits were of a character which permitted of printing. Where the parties transmit, as physical exhibits, matters which are capable of reproduction in the printed record with full effect as to their evidentiary value, a failure to include such in the printed record or to obtain an order suspending our rule as to printing, in so far as it affects such matters, makes them no part of the record before us which we are compelled to consider. Such violation of our rule makes it a matter of pure discretion upon the part of this court, whether it will consider such unprinted, though transmitted, matters. Our rule as to printing is of great practical value and is a time and labor-saving device for the judges of this court who are heavily burdened with work. It is easy to present a motion to suspend that rule, and this court has never been arbitrary in acting on such motions where there were substantial grounds therefor. In the present instance there seems no excuse for a violation of the rule, and our discretion should and will be exercised against consideration of the matters omitted from the printed record. The result is that there is no basis in the record before us for this contention of appellee, since the printed record contains none of the anticipatory citations.

Prior Use.

The trial court held the claims involved here to be invalid because of prior user. The petition expressly limits the controversy to claims 3, 4, and 5. Each of these claims is very general in character. Claim 3, which is typical, is as follows: "A self-contained...