Chisholm-Ryder Co. v. Buck

• Decision Date: 30 July 1932
• Docket Number: No. 1896.,1896.
• Citation: 1 F. Supp. 268
• Parties: CHISHOLM-RYDER CO., Inc., v. BUCK.
• Court: U.S. District Court — District of Maryland

1 F. Supp. 268

CHISHOLM-RYDER CO., Inc., v. BUCK.

No. 1896.

District Court, D. Maryland.

July 30, 1932.

A. P. Greeley, of Washington, D. C., and Preston A. Pairo, of Baltimore, Md., for plaintiff.

Melville Church, of Church & Church, and C. B. Des Jardins, both of Washington, D. C., and H. Beale Rollins, of Baltimore, Md., for defendant.

CHESNUT, District Judge.

Findings of Fact.

(1) Urschel patents, Nos. 1,256,491 and 1,256,492, were issued on February 12, 1918, to a partnership of Cadiz, Ohio, known as Chisholm-Scott Company, without in any way identifying the partners composing such partnership on that date.

(2) Urschel patent, No. 1,336,991, was issued on April 13, 1920, to William E. Urschel, and assigned by him on May 15, 1920, to a partnership of Columbus, Ohio, known as Chisholm-Scott Company, without in any way identifying the partners composing said partnership on May 15, 1920.

(3) In October and November, 1925, an instrument (plaintiff's Exhibit No. 17) was executed by C. Kate Chisholm, W. A. Chisholm, L. A. Chisholm, Bessie L. Bissing, Emelda B. Chisholm, Thomas A. Scott, and Susie P. Scott, purporting to assign to Chisholm-Ryder Company, Inc., a corporation of the state of New York, all right, title, and interest of the assignors in and to Urschel patents, Nos. 1,256,491, 1,256,492, and 1,336,991. This instrument refers to the signers as "the several partners of the Chisholm-Scott Company, formerly of Cadiz, Ohio, now of Columbus, Ohio."

(4) There is no direct evidence that the persons who executed said assignment to Chisholm-Ryder Company, Inc., were partners in the partnership known as Chisholm-Scott Company on February 12, 1918, or May 15, 1920, and no direct evidence of the transfer of any interest in and to said patents to any of said persons, but there is some slight evidence from which it may be inferred that the persons executing the said assignment were substantially all of the persons entitled thereto, and there is evidence of the continued user and control of all said patents by the plaintiff and its predecessor in title for ten years or more without adverse claim.

(5) There are three prior United States patents in evidence, Thompson, No. 1,058,116, April 8, 1913, Carnochan and Damon, No. 1,113,307, October 13, 1914, and Schroeder, No. 1,116,930, November 10, 1914, which establish that, prior to Urschel, it had been proposed to provide machines for snipping automatically the ends from bean pods. In these prior machines, the bean pods, either individually or in groups, were received in pockets in a rotary member, and the ends were snipped as the rotary member carried them into engagement with knives, the amount of snipping being determined by gage plates.

(6) The prior United States patent of Bailey, No. 190,180, May 1, 1877, in evidence, discloses a machine for snipping portions from kernels of grain, such as oats. In this machine, the kernels of grain are fed into a drum having a perforated wall, and, as the kernels are tumbled by the rotation of the drum, they enter and protrude through the perforations, engaging gage plates, which limit the amount of protrusion, and being carried against the cutting edges of knives, which sever the protruding portions of the kernels. The perforations in the wall of the drum flare inwardly, thus facilitating the entry of the ends of the kernels into the perforations.

(7) The prior United States patent of Thorpe, No. 241,249, May 10, 1881, in evidence, discloses a machine for snipping portions from kernels of oats. In this machine, there are a series of wheels having peripheral flanges in which there are inwardly flaring perforations, and a set of knives arranged adjacent the peripheries of these wheels. The oats are fed between the wheels, and the kernels enter and protrude through the perforations, engaging the body portions of the knives, which limit the amount of protrusion, and, while so engaged, being carried against the cutting edges which sever the protruding portions.

(8) The prior United States patent of Sanborn, No. 600,554, March 15, 1898, in evidence, discloses a machine for severing the stems or projecting ends of raisins. This machine comprises a drum having a perforated side wall, with a removable perforated cover or section, closing an opening, through which a batch of material can be placed within or removed from the drum. Arranged close to the outer surface of the drum are a pair of blades, which the patent calls scrapers or grippers. Means are provided for rotating the drum at a speed of about sixty revolutions per minute. A batch of raisins having been placed in the drum and the cover closed, the drum is set in rotation, and the rotation tumbles the raisins about, causing the stems to project through the perforations in the side wall of the drum. The projecting stems are carried against and engage the scraper or gripper blades, and are thus removed.

(9) The prior United States patent of Talley, No. 1,124,972, January 12, 1915, in evidence, discloses a machine, of the perforated drum type, for topping beets. The beets are fed into the rotating drum and tumbled therein so that the green ends project through slots in the side wall of the drum. The projecting ends engage cutting edges and are severed. It seems this machine would also sever long slim root-ends of the beets, when they project through the slots of the drum.

(10) The prior United States patent of Burdick, No. 1,217,269, February 27, 1917, in evidence, discloses a machine, of the perforated drum type, for topping onions. The onions are fed into the rotating drum and tumbled therein so that the onion tops project through the perforations or slots in the wall of the drum, being carried by the drum into engagement with a cutter, which severs the projecting tops.

(11) The Urschel patents, Nos. 1,256,491 and 1,256,492, issued February 12, 1918, in suit, each describes fully the construction and mode of operation or function of one and the same machine for snipping the ends from string beans. This machine comprises a cylinder having a side wall perforated by a large number of slots therein. Within the cylinder, there is mounted a spiral partition plate which forms in the interior of the cylinder a spiral passageway the outer wall of which is formed by the slotted cylinder wall. The sections of the spiral partition plate are spaced from each other less than the length of a bean pod, so as to keep the bean pods crosswise of the cylinder. Upon the inner surface of the cylinder wall, there are a number of triangular bars 21 which extend parallel to each other and are spaced at a distance less than the length of the bean pod. The patents ascribe to these triangular bars 21 the functions of directing the bean pods endwise toward the slots, uprighting the bean pods, elevating the bean pods, and reversing them end for end. The bean pods are continuously fed into one end of the cylinder, entering the spiral passageway and passing therethrough to the discharge end, at which snipped beans are continuously discharged. The bean pods roll end over end upon the slotted bottom of the spiral passageway, due to the presence of the bars 21, which up-end the bean pods, directing them endwise toward the slots and reversing them so that, after one end of a bean pod has been snipped, the opposite end will be directed toward other slots in the bottom of the spiral passageway, so that it may be snipped also. Mounted close to the outer surface of the cylinder and extending longitudinally thereof there is a knife or cutter arranged to engage and sever the bean ends which may project through the slots of the cylinder wall. The amount of projection or protrusion of the bean ends is determined by the size of the slots which are of such size that only the tip end of the average bean pod will project through the slots to be snipped. As the bean pods roll end over upon the slotted bottom of the spiral passageway, the bean ends from time to time protrude through the slots and are severed by the knife.

(12) The Urschel patent, No. 1,256,491, in suit, does not describe any method or process for snipping beans in addition to the operation or function of the bean-snipping apparatus fully disclosed in that patent and the companion patent, No. 1,256,492.

(13) The procedure which is described in the Urschel patent, No. 1,256,491, as a method or process of snipping string beans, is inseparable from the mechanism disclosed for that purpose, and is incapable of being carried out usefully by simple manipulations independently of said mechanism.

(14) The Urschel patent, No. 1,336,991, issued April 13, 1920, in suit, discloses certain improvements in the construction of the bean-snipping machine shown in the Urschel patents, Nos. 1,256,491 and 1,256,492. One of these features relates to the construction of the snipping slots. In Urschel patent, No. 1,336,991, these snipping slots are of irregular or wavy outline, consisting of a series of circular holes connected by narrow necks, as distinguished from the snipping slots of the prior Urschel patents, which had parallel edges. The machine of the prior Urschel patents employed slots which flared inwardly toward the interior of the cylinder, and in Urschel patent, No. 1,336,991, this same idea is made use of by providing inwardly flaring slots which, however, are curved in cross section, as distinguished from the slots of the prior Urschel patents, which, in cross section, had sloping sides that were straight and not curved.

(15) The defendant has made and used for profit a single machine for snipping string beans. That machine is of the batch type and comprises a drum having a perforated side wall; substantially the entire surface of this side wall being filled with circular holes, countersunk so that they flare inwardly of the drum. One section of this side wall is formed by a removable cover which is also perforated. When this cover is removed, a...