CHILDERS FOODS, INC., v. Rockingham Poultry Marketing Co-op.
| Decision Date | 21 April 1962 |
| Docket Number | Civ. A. No. 530. |
| Citation | 203 F. Supp. 794,133 USPQ 648 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | CHILDERS FOODS, INC., Plaintiff, v. ROCKINGHAM POULTRY MARKETING CO-OP, INC., and Rock Island Food Products Co., Defendants. |
duVal Radford, Radford & Thomasson, Bedford, Va., and Charles R. Fenwick, Mason, Fenwick & Lawrence, Washington, D. C., for plaintiff.
George S. Aldhizer, II, Wharton, Aldhizer & Weaver, Harrisonburg, Va., B. Purnell Eggleston, Eggleston, Holton & Glenn, Roanoke, Va., and Gordon D. Schmidt, Hovey, Schmidt, Johnson & Hovey, Kansas City, Mo., for defendants.
This action, instituted on June 21, 1961, charges infringement of U. S. Letters Patent No. 2,932,058, dated April 12, 1960, issued upon the application of Earl L. Childers filed on November 5, 1957, and now owned by plaintiff, and entitled "Apparatus for Separating Meat from Bone". Unfair competition is charged also. On January 18, 1957, one Adoniram J. Churchill filed an application for U. S. Letters Patent, Serial No. 634,967, and entitled "Apparatus for Tenderizing and Separating Meat from Bone". The Churchill application is owned by Gordon Johnson Company of Kansas City, who produced the machine accused of infringement in this action, and sold it to defendant, Rockingham Poultry Marketing Co-op, Inc., which is now using it. One June 12, 1961, the Patent Office, at the instance of Churchill, declared Interference Proceedings No. 91,666 between Churchill and Childers, involving the application of Churchill filed January 18, 1957, upon which no patent was issued, and the said Patent No. 2,932,058 issued to Childers on his application filed November 5, 1957.
After attorneys for both Churchill and Childers had filed their preliminary statements in the Interference Proceedings, which were approved by the Examiner, Childers filed a motion on October 25, 1961, to stay the Interference Proceedings pending a determination of this action. This motion was denied by the Interference Examiner on November 14, 1961, and on January 12, 1962, the Commissioner of Patents denied it also. Since the refusal of the Commissioner of Patents to stay the Interference Proceedings, times have been set by the Interference Examiner for the taking and filing of testimony, and the filing of briefs in the Interference Proceedings, the last brief to be filed on October 25, 1962.
In this action, a pretrial conference was held on October 10, 1961, pending motions were passed upon, and it was noted in the pretrial order that Gordon Johnson Company of Kansas City, Mo., by reason of an indemnification agreement, had assumed the complete defense of this action against Rockingham Poultry Marketing Co-op, Inc. Thereafter, plaintiff has taken and filed depositions of Churchill and others. It is my understanding that these depositions may be used in the Interference Proceeding, if it be so desired. On March 26, 1962, defendants filed herein their motion that this action be stayed until the final determination of the said Interference Proceeding. As previously mentioned, plaintiff's efforts to procure a stay of the Interference Proceeding until the determination of this action, have proved unavailing. As the principal reason for denying the stay, the Interference Examiner stated that Section 35 U.S.C.A. § 135, imposed upon the Board of Patent Interferences "the duty of determining priority of invention where an application for patent is involved." In his refusal to grant a stay, the Commissioner of Patents also noted that the issue in the Interference Proceeding and in this action was not necessarily the same, and that neither Churchill nor his assignee were parties to this action.
So it now definitely appears that whatever may transpire in this action, the Interference Proceeding will be prosecuted to its conclusion in the Patent Office. It is true that the issues and parties in this action and in the Interference Proceeding are not...
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