Demco v. Doughnut Mach. Corporation

• Decision Date: 30 November 1932
• Docket Number: 3288.,No. 3287,3287
• Citation: 62 F.2d 23
• Parties: DEMCO, Inc., et al. v. DOUGHNUT MACH. CORPORATION. JOE-LOWE CORPORATION et al. v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

62 F.2d 23 (1932)

DEMCO, Inc., et al. v. DOUGHNUT MACH. CORPORATION.

JOE-LOWE CORPORATION et al. v. SAME.

Nos. 3287, 3288.

Circuit Court of Appeals, Fourth Circuit.

November 30, 1932.

Edwin F. Samuels and Charles Markell, both of Baltimore, Md., for appellants.

Frank B. Fox and Henry N. Paul, both of Philadelphia, Pa. (Fraley & Paul, of Philadelphia, Pa., and O. B. Duckett, Jr., and Adams & Hargest, all of Baltimore, Md., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge.

This is an appeal in two patent suits consolidated and heard together in the court below. Appellee sued to restrain alleged infringement of eight patents covering machines for making doughnuts. Three of the patents were abandoned in the trial court and the judge held that there was no infringement as to one of the others. He held, however, that certain claims of Tomlinson patent No. 1,320,662, Bergner patents Nos. 1,492,541 and 1,665,017 and Nye patent No. 1,599,916 were valid and infringed; and, from the decree entered granting an injunction and a reference to a master for an accounting, the defendants have appealed.

The facts are fully set forth in the opinion of the District Judge, reported in 51 F.(2d) 364, 368, and need not be repeated here. The Tomlinson patent relied on by plaintiff covers a machine for frying doughnuts. It may be described briefly as a rectangular tank for containing hot grease, and endless belt conveyors so arranged as to convey the doughnuts through the grease by a process of flotation and to turn them over in the midst of the process so that they will be cooked brown on both sides. The Bergner patent No. 1,492,541 covers a machine for cooking doughnuts by a process of flotation in hot grease. It provides also for the operation of a doughnut former in conjunction with the machine for cooking the doughnuts. The latter consists of a circular tank for containing hot grease in which the doughnuts are revolved in spaced relationship by means of two concentric circular containers with a separating wall between. A turnover device lifts the doughnuts from the inner container and causes them to turn over and fall into the outer. Bergner patent No. 1,665,017 covers a circular tank for holding hot grease in which the doughnuts are floated in a spiral channel. Midway of their progress through the channel they are turned over by revolving grids which operate with a Geneva movement through angles of ninety degrees and, in revolving, pick up the doughnuts and turn them over. The Nye patent covers a machine for cooking doughnuts by a process of submerging them in hot grease. The doughnuts are placed on a lower conveyor in compartments between spaced vanes which hold them in place. Above this are two submerging conveyors which hold the doughnuts down below the level of the grease. Between the two submerging conveyors is a space, "which enables the doughnuts by flotation to distribute themselves laterally" before being again submerged.

The machines of defendant employ submerging conveyors spaced apart so as to submerge the doughnuts in the hot grease and yet allow them to float on the surface a part of the time so as to expand and rid themselves of the steam and gases produced in the process of cooking. Between two of these conveyors and approximately midway the cooking process, defendant's A machine has a rotary paddle constructed with a blade which has a feathering action so as to turn the doughnuts beneath the level of the grease and then release them and push them forward. The B machine has an additional submerging conveyor and substitutes for the rotary paddle with the feathering blade a simple paddle which merely pushes the doughnuts towards the next submerging conveyor. If this paddle be lowered, it will turn the doughnuts. After the granting of the preliminary injunction a stationary baffle plate was substituted for this rotary pusher and the submerging conveyor next before it was covered with a wire screen or mesh, which, according to the contention of defendants, was to hold the doughnuts away from the slats of the conveyor, but, according to plaintiff's contention, was to turn them over. The judge below found that a considerable percentage of the doughnuts were turned by this wire screen attachment; and he held that, because of this turning of doughnuts by both machines of defendant, there was infringement of the Tomlinson patent and of both Bergner patents. He held that Bergner patent No. 1,492,541 was infringed also because defendants used a doughnut former in connection with their cooking machines, geared so as to deposit doughnuts in the hot grease in accordance with the capacity of the cooking machines. The Nye patent was held infringed because the machines of defendants employed a number of submerging conveyors with spaces between them so as to allow the cooking doughnuts to rise to the surface.

We think that the learned judge was in error in holding that there was infringement as to any of the patents sued on. As to the finding of infringement because of the turning of doughnuts by defendants' machines, he gave too broad an interpretation, we think, to the language of the claims upon which plaintiff relies with respect to this aspect of the case; and, while we agree with him that these claims are valid, we do not think that they may be interpreted as granting a monopoly on the turning of doughnuts. We are dealing not with process patents but with patents covering machines. There was nothing new about frying doughnuts in grease. There was nothing new about limiting the time of their cooking. There was nothing new about turning them over during the process. And there was nothing new in using conveyors as an aid in mechanical cooking. What Tomlinson and Bergner did was to devise machines which timed the cooking properly and which accomplished the necessary turnover. Plaintiff is entitled to protection against machines which substantially copy the machines which they invented, by doing the same thing in substantially the same way, but not against machines which proceed on a different principle, even though they accomplish the same result. It is elementary that the mere function of a machine is not patentable, and that the claims of a patent must be construed in the light of the specifications and drawings to...