Kalich v. Paterson Pacific Parchment Co., 10119.

• Decision Date: 30 July 1943
• Docket Number: No. 10119.,10119.
• Citation: 137 F.2d 649
• Parties: KALICH et al. v. PATERSON PACIFIC PARCHMENT CO.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F.2d 649 (1943)

KALICH et al. v. PATERSON PACIFIC PARCHMENT CO.

No. 10119.

Circuit Court of Appeals, Ninth Circuit.

July 30, 1943.

L. R. Geisler and Theodore J. Geisler, both of Portland, Or., for appellants.

Robert H. Eckhoff, of San Francisco, Cal. (A. W. Boyken, of San Francisco, Cal., of counsel), for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from the judgment of the District Court of the Northern District of California, Southern Division, in a suit for the alleged infringement by appellants of Patent No. 2,124,412 and Reissue Patent No. 21,144. The patents, which were issued to one Wesley Dodge and then assigned to the appellee herein, allegedly cover a method of packing lettuce in parchment or other paper, both waterproof and moisture permeable, to protect the lettuce from direct contact with surrounding ice while keeping the lettuce in a cold but humid atmosphere. All three claims of the original patent the lower court held not infringed but ruled that Claims 4, 5 and 6 of the reissue patent, claims which do not appear in the original patent, are infringed by appellants.

The original patent was issued July 19, 1938 and the reissue patent July 11, 1939. The application for the reissue patent was denied at first for the reason that the new claims sought by the reissue patent did not cover any invention which applicant obviously intended to secure by the grant of the original patent and further that the claims were anticipated by prior art. After amendment, the reissue patent was allowed.

Commercial lettuce was first shipped by placing it in a shipping crate and alternating it with layers of ice. Gallagher obtained Patent No. 1,828,179 issued October 20, 1931, which provided for a refrigerated package for shipping vegetable products, comprising a crate, layers of non-absorbent material at top and bottom of crate, a layer of cellu-cotton on the bottom layer, a layer of vegetable products on the cellu-cotton and crushed ice on top of the vegetable product, another layer of cellu-cotton, another layer of vegetable product and crushed ice, etc.

On May 30, 1933, the Grande Patent No. 1,911,361 was issued for a refrigerated shipping crate, having bottom and side-walls with moisture proof linings, horizontal layers of vegetables, horizontal layers of cracked ice in contact with layers of vegetables and partitions interposed between adjacent layers of cracked ice, said partitions having perforations of restricted capacity to allow the down flow of water from melting ice in contact with the vegetables.

The abandoned application of Don Taylor, Patent Application No. 530,955, provided for wrapping of vegetables in parchment paper or other paper saturated in a salt solution or other solution with a layer of the same absorbent paper between each layer of wrapped vegetable product.

The patent here in suit and the reissue patent were applied for and issued some years after the two patents and application for patent just described.

The primary question before the court is whether the broader claims of the reissue patent, namely, 4, 5 and 6, which were held infringed by the lower court, are valid.

The claims of the original patent are:

"1. A method of packing a product for shipment, said method comprising enclosing said product in a flexible, tough, water proof, moisture permeable material having the capacity of resisting prolonged contact with water without disintegration, arranging such wrapped product in a crate, contacting the so wrapped product with a quantity of ice fragments, and confining the ice so as to cause the meltage therefrom to flow over said wrapped product.

"2. A shipping package comprising a crate, a parcel arranged therein, a quantity of crushed ice distributed in said crate in contact with said parcel, and means for maintaining the parcel in contact with said ice, said parcel comprising food stuff wrapped with a tough, flexible, water proof, moisture permeable wrapper, having the capacity of resisting prolonged contact with water without disintegration.

"3. A shipping package comprising a crate, a parcel arranged therein, a quantity of crushed ice distributed in said crate in contact with said parcel, and means for maintaining the parcel in contact with said ice, said parcel comprising food stuff wrapped with vegetable parchment."

Claims 1, 2 and 3 of the reissue patent are the same as the claims of the original patent except that the word "crate" appearing in the original patent has been changed to "container" in the reissue, and the phrase "and means for maintaining the parcel in contact with said ice" in the original patent reads "and maintained by the container in contact with said parcel" in the reissue patent. Claims 4, 5 and 6, which do not appear in the original patent and which are the only claims in issue here, are:

"4. A shipping package for a vegetable product comprising a crate, layers of said product arranged in said crate, a quantity of ice distributed between the layers, and a shield of flexible, tough, substantially waterproof and moisture permeable material arranged in said crate between ice and adjacent faces of said layers of said product to maintain said ice and meltage therefrom out of contact with said product.

"5. A method of packing a vegetable product for refrigerated shipment, comprising: interdistributing a quantity of said vegetable product with a quantity of comminuted ice in a shipping container, and protecting said vegetable product from wetting by meltage from said ice, by interposing, during said interdistribution of ice and vegetable product, a shield of flexible, tough, substantially waterproof and moisture-permeable material having an extent adequate to isolate the distributed vegetable product from wetting by meltage as developed.

"6. A shipping package for a vegetable product, comprising: a container, a quantity of ice within said container, a quantity of said vegetable product within said container and distributed therein in heat-transferring relationship with said ice, and a flexible, tough sheet of a substantially waterproof, moisture-permeable material interposed between said distributed ice and vegetable product substantially shielding said vegetable product from wetting by ice meltage yet permitting heat and limited moisture-transfer there-between."

The appellee's patent differs from the Gallagher patent in this — the original patent teaches the use of parchment paper and isolates the vegetable product from the ice by wrapping the former according to the illustrated manner in the patent application. Gallagher was the first to advocate the feeding of the...