Crystal Percolator Co., Inc. v. Landers, Frary & Clark
| Decision Date | 15 May 1919 |
| Docket Number | 1477,1478. |
| Citation | 258 F. 28 |
| Parties | CRYSTAL PERCOLATOR CO., Inc., v. LANDERS, FRARY & CLARK (two cases). |
| Court | U.S. District Court — District of Connecticut |
Asher Blum, of New York City, for plaintiff.
Harrie E. Hart, of Hartford, Conn., for defendant.
The plaintiff, by assignment, is the owner of a mechanical patent for percolator supports, No. 1,180,881, issued on the 25th of April, 1916, to Fiore Ricciardelli, and a design patent, No 47,545, for a percolator, issued on July 6, 1915, to F Ricciardelli and J. B. Bleichrode. Separate suits were brought on each patent. They were tried together and will be decided together. Under equity rule 26 (201 F. v, 118 C.C.A. v), as Judge Dickinson says in Eclipse Machine Co. et al v. Harley-Davidson Motor Co. (D.C.) 244 F. 463:
To meet the spirit of the rule it is better to join such causes of action as are here set forth in the same bill.
The bill based on the mechanical patent charges infringement. The defenses are invalidity and noninfringement. Claims 3 and 4 are in suit. They are as follows:
3. 'The herein described percolator support comprising a base, an upright rising therefrom and having a pin projecting vertically from its upper end, a handle having an opening through it removably and pivotally mounted on said pin, a hand grip at one end of the handle, and a collar at the other end thereof composed of two parts whereof one is secured to the handle and the other is hinged to the first part with its free end adapted to lie against the handle, and a clasp for holding said end in place.'
4. 'The combination with a friable receptacle having an upstanding cylindrical neck, of a support therefor including a base, an upright, a handle pivotally carried by said upright, a two-part collar of channel iron whereof one part is rigidly carried by one end of the handle and the other part is hinged at its outer end to the first part with its inner end adapted to lie against the handle, a clasp slidably mounted on the handle and adapted to embrace such inner end, and packing within the channels of both parts, for the purpose set forth.'
The patent in suit relates generally to coffee percolators of the type where there is an upper chamber or receptacle of glass in which the powdered coffee is placed, a lower chamber or receptacle of glass in which the water is placed, and a funnel tube of glass which extends from the upper chamber or receptacle down into the lower chamber or receptacle.
With the application of heat to the lower receptacle the water is heated until there is sufficient pressure created to force the water up through the funnel tube into the upper receptacle, where it mixes with the coffee. When the water has nearly all ascended into the upper chamber, the receptacle is swung away from the flame, and then the condensation in the lower receptacle creates a vacuum, which permits the liquid which has ascended into the upper receptacle to trickle back through the coffee into the lower receptacle. The bottom of the funnel tube is spaced a suitable distance from the bottom of the lower receptacle, so that all of the water in the lower receptacle does not ascend.
The patent in suit is directed specifically to a support for this percolator; the title of the patent being 'Percolator Support.' That support comprises generally a base, an upright rising from the base, a handle pivotally mounted at the top of the upright, a hand grip at the outer end of the handle, and a collar at the opposite end of the handle from the hand grip for engaging and supporting the percolator parts. The collar surrounding the neck of the globe is made of two parts hinged together. It has a groove to receive a resilient packing that gently, but firmly, grips the globe. The hinged parts of the collar are connected by a sliding clasp, and this arrangement prevents contact between the neck of the glass globe and the collar itself.
The handle carrying this collar is mounted pivotally at its center to an upright carried by a base on which the alcohol lamp is placed, so that the entire percolator can be swung away from the lamp without disturbing it or the base.
Respecting the prior art, it is conceded that the process of making coffee by infusion is very old. It dates back to 1839, with improvements made in 1841 and 1842, all as shown in the British patents to Vardy & Platow and the French patents to Malpeyre, Hiraux, and Fortant.
It has for years been recognized as a fact that the great objection to all such devices lies in the danger of breakage of the glass receptacle suspended over the flame, with its consequent and manifest dangers, whenever the water in the lower receptacle has arisen to the upper receptacle. A still further objection to using this process of making coffee is due to the inherent fragility of the glass globes employed, causing constant breakage in their handling and cleaning in the kitchen, and the expense incidental to the breakage, so that the sales of this device have never been large, and it is fair to say will never be large, as long as fragile glass globes are employed for this purpose. The use of the device is something of a fad, though the coffee brewed by this process is of admitted superiority.
Counsel for plaintiff, both in oral argument and in their brief, direct with much care the court's attention to the proceedings in the Patent Office as disclosed by the file wrapper, and urge the importance of the final decision of the examiners in chief to sustain the claims in suit. This record shows that, after many amendments to the claims, they were all finally rejected by two different primary examiners, and that on appeal, on an ex parte hearing, the four claims of the patent were allowed by two members of the examiners in chief; the third member being absent. All of the evidence in this record was not before the examiners in chief. In Auto Pneumatic Action Co. v. Kindler & Collins et al., 247 F. 323, 328, 159 C.C.A. 417, the Circuit Court of Appeals for this Circuit has held that it is unnecessary to consider what was said by way of argument during the passage of the case through the Patent Office, and that arguments made in the Patent Office by the applicant to the examiners are not to be taken as a measure of his patent, when not accompanied by any changes in the claims. See, also, Spalding & Bros. v. Wanamaker, 256 F. 530, . . . C.C.A. . . ., decided by Circuit Court of Appeals, Second Circuit, February 13, 1919.
The history of the art of percolators of the type with which the patent in suit is concerned will first be discussed in order that we may determine what was in the prior art, and all patents here referred to were, as disclosed by the file wrapper, before the examiner in the Patent Office, and reference was there made to them.
The British patent to Vardy & Platow of 1839 shows an early use of a percolator of the type shown in the patent in suit. The inventor says:
Thus, as early as 1839, the plan of action of percolator like that shown in the patent in suit was fully and completely disclosed, although the particular form of structure differs from the particular structure shown in the patent in suit.
In June of 1841, French patent No. 8,051 was granted to Malpeyre. From the official translation in the Patent Office, and respecting its operation, the following appears:
In October of 1841, French patent No. 8,507 was granted to Hiraux for a glass coffee machine. The drawings of the patent show three different types of complete percolators, and Fig 1 shows a device which comprises a base, an upright arising from one side of the base, a handle mounted on that upright, a hand...
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