Hughes v. SALEM CO-OPERATIVE COMPANY

• Decision Date: 22 September 1955
• Docket Number: Civ. A. No. 1984.
• Parties: Don E. HUGHES, Plaintiff, v. SALEM CO-OPERATIVE COMPANY, Inc., a nonprofit corporation, Defendant, and Prater Pulverizer Company, Intervening Defendant.
• Court: U.S. District Court — Western District of Michigan

134 F. Supp. 572

Don E. HUGHES, Plaintiff, v. SALEM CO-OPERATIVE COMPANY, Inc., a nonprofit corporation, Defendant, and Prater Pulverizer Company, Intervening Defendant.

Civ. A. No. 1984.

United States District Court W. D. Michigan, S. D.

September 22, 1955.

Frank E. Liverance, Jr., and Dilley & Dilley and Abner D. Dilley, Grand Rapids, Mich., for plaintiff.

Thiess, Olson & Mecklenburger, Sidney Neuman, and Fred T. Williams, Chicago, Ill., John Duncan McDonald, Grand Rapids, Mich., for defendants.

STARR, Chief Judge.

Plaintiff Don E. Hughes, the patentee and owner of United States Letters Patent No. 2,227,090 issued December 31, 1940, on application filed April 1, 1940, for improvements in a "crushing and grinding machine," filed complaint alleging infringement by defendant Salem Co-operative Company, Inc., a Michigan nonprofit corporation. He asked for an injunction against further infringement and for damages, costs of suit, and attorney fees. Upon its motion and with plaintiff's consent, the Prater Pulverizer Company, an Illinois corporation, which manufactured and sold to defendant Salem Co-operative, and also to other users, the crushing and grinding machines which are alleged to infringe plaintiff's patent, was granted leave to intervene as a party defendant and file answer. For sake of brevity the plaintiff is herein referred to as "Hughes," defendant Salem Co-operative Company as "Salem," and intervening defendant Prater Pulverizer Company as "Prater." The defendants filed separate answers alleging that plaintiff's patent is invalid because of prior art anticipation and lack of invention, and denying infringement. It was stipulated that only claims 5, 9, 10, and 11 of the patent are alleged to be infringed.

In support of their claim of invalidity of patent because of prior art anticipation and lack of invention the defendants cite the following patents: Muhlig 56,083 issued July 3, 1866; Jones 362,971 issued May 17, 1887; Boll 805,899 issued Nov. 28, 1905; Lavagnino 876,812 issued Jan. 14, 1908; Mansfield 1,092,222 issued Apr. 7, 1914; Blum 1,185,620 issued June 6, 1916; Lauterbur 1,525,506 issued Feb. 10, 1925; Prater 1,591,560 issued July 6, 1926; Lauterbur 1,612,976 issued Jan. 4, 1927; Duvall 1,713,957 issued May 21, 1929; Peters 1,847,193 issued Mar. 1, 1932; Gredell 1,928,887 issued Oct. 3, 1933. The file wrapper indicates that of the above only the Peters and Gredell patents were cited as references by the examiner. In further support of their claim of invalidity of patent on the ground that plaintiff was not the first inventor of his claimed improvements in a crushing and grinding machine, defendants allege that his claimed improvements were known and used by others in this country before his discovery and invention thereof.

The crushing and grinding machine in which plaintiff's claimed improvements are incorporated and the defendants' accused crushing and grinding machine, are both of the long-known, conventional impact or hammer type, comprising a cylindrical-shaped housing with a rotatable shaft mounted between the end plates and with a plurality of hammers or impacting members attached to the shaft for high speed rotation within the housing. In such a conventional type of machine means is provided for moving grain or other material into the central portion of the cylindrical housing, where it is subjected to the crushing and pulverizing effect of the rapidly rotating hammers. Means is also provided for discharging the pulverized or comminuted particles from the housing through a screen, the maximum size of the discharged particles being controlled by the size of the perforations in the screen; thus if a coarse grind is desired, a screen with large perforations is used, and if a fine grind is desired, a screen with small perforations is used. Clearance is provided between the ends of the hammers or impact members and the screen so that the screen does not function as a grinding surface.

In the specifications of his patent for claimed improvements in the conventional type of crushing and grinding machine, plaintiff states in part:

"The present invention relates to a grinding and crushing machine of the swinging hammer or hammer mill type such as is commonly used in the milling of grains and for grinding and crushing many other articles in processing thereof. Generally speaking, the invention relates to the provision of a novel type screen for such a machine, which is adjustable lengthwise thereof and is provided with apertures of different sizes selectively positionable by the adjustment of the screen to regulate the size or fineness of the ground product and thereby enable custom grinding of grain and the like. More particularly, the invention includes devices of one type or the other for automatically shifting the screen and positioning the same and in further devices for firmly clamping the same against the sides of the grinder housing so as to completely seal the same and prevent exit of the ground stock from the housing other than through the grinding apertures. All these instrumentalities are actuable and controllable from a point remote from the machine itself."

Plaintiff's patent provides for parallel, aligned, arcuate slots in the opposed side walls of the cylindrical-shaped housing to receive an elongated, arcuate screen mounted on the housing, said elongated screen consisting of separate sections of screen with different-sized perforations or mesh, said sections being compositely connected together end to end. The patent provides that this elongated arcuate screen, consisting of sections with different-sized perforations, can be moved longitudinally in the parallel slots back and forth through the housing, and that the section of the screen with the desired perforations can be adjusted and clamped into position in the housing by the manual operation of connecting rods extending vertically to an upper floor of the mill building. The means for clamping the desired section of the screen into position closes the two arcuate slots in the housing and prevents the exit of the ground material through the slots. Claims 5, 9, 10, and 11 of plaintiff's improvement patent, which are claimed to be infringed and which are reasonably illustrative of all claims, provide as follows:

"5. In a grinding machine of the type described having a housing wherein hammers are rotatably mounted, an elongated arcuate screen having a plurality of longitudinally disposed sections thereof provided with grinding and grading apertures of different sizes, said housing having side walls provided with arcuate slots receiving the screen for longitudinal translational adjustment of the screen with reference to the housing, means for actuating the screen for translational adjustment to selectively position said sections relative to the housing and hammers, and means for clamping the screen on the housing in adjusted position thereof, said last named means slidably engaging the side walls above the screen and closing the opening afforded by said slots not occupied by the screen."

"9. In a grinding machine having a housing and a grinding member operatively mounted in the housing, an elongated arcuate screen shiftably mounted on the housing and adjustable with reference to the housing to longitudinally position different areas of the screen selectively relative to the housing, said housing having side walls provided with arcuate slots axially alined with one another for receiving the screen, means operable at a point remote from the machine to longitudinally adjust the screen to selectively position said areas, and means for clamping said screen against said side walls at the slots therein when the screen is in longitudinally adjusted position."

"10. In a grinding machine having a housing and a grinding member operatively mounted in the housing, an elongated arcuate screen shiftably mounted on the housing and adjustable with reference to the housing to longitudinally position different areas of the screen selectively relative to the housing, means to longitudinally adjust the screen to selectively position said areas, and means for clamping said screen against said side walls when the screen is in longitudinally adjusted position."

"11. In a grinding machine having a housing and a grinding member operatively mounted in the housing, an elongated arcuate screen shiftably mounted on the housing and adjustable with reference to the housing to position different areas of the screen selectively relative to the housing, said housing having side walls provided with arcuate slots axially alined with one another for receiving the screen, means to adjust the screen, and means for clamping said screen against said side walls at the slots therein when the screen is in adjusted position."

The accused machine manufactured by defendant Prater and used by defendant Salem, a reduced-scale working model of which was put in evidence, is also the conventional type of crushing and grinding machine having a cylindrical-shaped housing with opposed vertical side walls. In one side wall is an arcuate slot through which a single arcuate screen is passed into the housing and withdrawn back out of the housing. The opposite side wall of the housing is not provided with an arcuate slot or opening, as the single screen does not pass on through the housing as the composite elongated screen does in the plaintiff's patent. When not in use the separate screens with different-sized perforations are nested together, one over the other, outside of the machine housing. The screens are arcuate in form, and the end of each screen is attached to a horizontal bar which is connected to an arm joining with a bar telescopically received in the end of a horizontal guide tube and therein connected to a vertical rod extending to an upper floor of the mill building. By the manual operation of the vertical rod from the upper floor the screen to which that rod...