Kirschke v. Lámar

• Decision Date: 06 June 1969
• Docket Number: No. 16434-4.,16434-4.
• Parties: Norman W. KIRSCHKE and General Electric Company, Plaintiffs, v. William C. LAMAR, Defendants.
• Court: U.S. District Court — Western District of Missouri

300 F. Supp. 146

Norman W. KIRSCHKE and General Electric Company, Plaintiffs, v. William C. LAMAR, Defendants.

No. 16434-4.

United States District Court W. D. Missouri, W. D.

June 6, 1969.

Carter Kokjer, Kansas City, Mo., for plaintiffs.

Claude A. Fishburn, Kansas City, Mo., for defendants.

FINDINGS, OPINION, AND JUDGMENT

ELMO B. HUNTER, District Judge.

This is an action under Tit. 35 U.S.C. Section 146 by a person dissatisfied with the decision of the Board of Patent Interferences on the question of priority to an invention. The invention in dispute is a self-cleaning combination dishwasher-oven. Defendant Lamar filed his application for a patent, serial no. 279,557, on May 10, 1963. Plaintiff Kirschke, General Electric's assignor, filed his application for a patent, serial no. 339,711, on January 23, 1964.

Proceedings in Patent Office

The competing patent applications were placed in interference and assigned Interference No. 94,529. The Board of Patent Interferences received evidence, considered the matter, and ruled the question of priority in favor of defendant. The issues decided in the interference proceeding were defined in three Counts:

"Count 1

In a cooking appliance, an oven chamber in which foods are cooked, means connected with the oven chamber for supplying a washing solution, and means in the oven chamber for circulating the washing solution into contact with the interior surfaces of the oven chamber for cleaning said surfaces of grease splatters and drippings from the foods which have been cooked in the oven chamber.

"Count 2

A domestic oven comprising a cabinet structure and a cooking cavity formed therein by an oven liner and a front-opening access door, insulating means surrounding the oven liner, heating means provided for the cavity, control means for obtaining the desired level of cooking temperatures, means for introducing cleaning fluid into the cavity, and a fluid distributing means located within the cavity so as to remove any food soil and grease splatter lodged therein, and draining means cooperating with the cavity for removing the soiled fluids therefrom, and means for converting the oven cavity to a dishwashing compartment, said means including dish rack means support within the oven liner so that during the washing operation food soil may be removed from both the oven walls as well as from dishes loaded into the oven cavity.

"Count 3

The method of cleaning from the interior surfaces of an oven liner defining an oven cavity food soils accumulated thereupon during the previous carrying out in said oven cavity of normal food cooking operations in the normal food cooking temperature range extending from about 150° F. to about 550° F., said method comprising supplying cleaning fluids into said oven cavity, recirculating the fluids throughout the cavity at high velocity for a sufficient time to remove the food soil and grease splatters accumulated on the inner liner, removing the fluids from the cavity, supplying a rinsing agent into the cavity, and recirculating the rinsing agent to remove the cleaning fluids from the walls of the liner, and drawing off the rinsing agent from the oven cavity."

The hearing before the Board of Patent Interferences was held on November 4, 1966. Defendant did not present testimony at the interference proceeding, but instead relied upon the filing date of his patent application as a constructive reduction to practice. Plaintiff Kirschke contended that he should prevail because he had actually reduced his invention to practice by June 8, 1962.

Kirschke presented evidence at the interference proceeding that his idea of a combination dishwasher-oven came up several times at brainstorming sessions of engineers in General Electric's range department while he was the manager of that department. Kirschke related this idea to Raymond Dills, another General Electice engineer who was the manager of the Advanced Engineering Development Section. Dills, in turn, disclosed the idea to Paul Staples, an engineer in the range department, who suggested that two students in General Electric's Creative Engineering Program, Christian Charron and Lawrence Levine, be given the project of investigating the feasibility of this idea as their assignment under the program. This project was assigned to Charron and Levine early in 1962.

To test the feasibility of the project, Charron and Levine constructed two units. Unit No. 5093 was coated with an interior coating of teflon and was equipped with a spray arm dishwashing mechanism. Unit No. 5105 was coated with an interior coating of sodium silicate and was equipped with an impeller dishwashing mechanism. Staples assisted in the construction and testing of these units, both in the actual physical construction and testing of the machine and by the procurement of necessary parts and materials. Staples testified at the interference proceeding that he had seen the machines wash dishes and that he had requested a baking test on the oven the results of which were reported in Kirschke's exhibit 9.

Neither Charron nor Levine testified at the interference. However, their report on the project was offered into evidence as Kirschke's exhibit 14 over the objections of defendant that it had not been properly identified, was not the best evidence, and was hearsay. There was other evidence introduced at the interference proceeding as to Kirschke's conception of the idea, his disclosure of it to other General Electric personnel, the construction and operation of the units, and the steps taken by General Electric to patent the invention.

In ruling for defendant, the patent board noted that all three Counts of the interference called "for cleaning said surfaces of grease splatters and drippings from the foods which had been cooked in the oven chamber." The board considered this to be a material limitation of the Counts and held that Kirschke had not demonstrated the reduction to practice of a self-cleaning dishwasher-oven as defined by the Counts. The board based its decision on the ground that no testimony had been presented as to anyone having seen the machine built by Charron and Levine operate to satisfactorily remove grease and food soil from the interior surfaces of the oven as required by the Counts. Accordingly, the Board of Patent Interferences awarded priority of the invention to the defendant.

Plaintiff Kirschke had the choice of either appealing to the United States Court of Customs and Patent Appeals or filing his action in this Court under Tit. 35, U.S.C. Section 146. Plaintiff elected to proceed in this Court with General Electric joining as a plaintiff.

Summary Evidence at District Court Trial

At the trial plaintiffs offered additional evidence on the capacity of the combination units to remove grease splatters from the interior of the oven cavities. Levine testified about the work that he and Charron had done in the construction and testing of the units. They had cooked hamburgers and a pork roast in both units and then had conducted tests to determine the cleaning capacity of the units. Tests were also conducted with a standard oven soil. This was a combination of animal fat, catsup and cherry juice. The soil was smeared on the entire interior of the unit and then baked on for four hours at a temperature of 450° F.

The cooking of the pork roast resulted in heavy grease splattering throughout the entire interior of the oven. Levine and Charron then ran a cleaning test by taking out the oven racks and running the unit through a dishwashing cycle. Levine testified that this was done on numerous occasions and "nearly all the soil was cleaned right off." Cleaning tests with the standard oven soil were also conducted. Again Levine testified that after the washing cycle was completed "virtually all the soil that had been smeared and baked on had been washed off."

In response to a question as to what he meant by "virtually all", Levine stated that in the teflon coated unit (No. 5093) a residue was left on the bottom and in the crevices of the interior. Levine described this as a "wet glop" lying on the bottom of the unit and testified that it could be wiped up with a sponge. This residue was left in the bottom of both units. He testified that the reason for this was that during the drain part of the washing cycle the agitators in the dishwashing mechanisms were not turned in the correct direction so as to agitate the water and force it out an existing drain. The spray arm mechanism had several openings in the upper surface from which water was forced out under pressure to accomplish the washing action. Because this was a dishwasher designed in such a fashion that the dishes were always placed above the spray arm mechanism, the water was always thrown in an upward direction and was never applied with any force to the bottom.

Levine testified that he had recommended a solution to this problem which was to put a hole or a series of holes on the under surface of the spray arm, thereby directing the water in a downward direction so that the bottom residue could be forced out the existing aperture in the bottom of the units. According to Levine these holes were never drilled in either unit 5093 or 5105. Hence, his recommended solution of the problem was not tried out.

Finally, Levine testified that he would have been available to give testimony at the interference proceeding although at that time he was no longer employed by General Electric. He stated that he had left a forwarding address, had exchanged Christmas cards with Charron, who was still employed at General Electric, and could have been located at the time of the interference proceeding.

Paul Staples, who had testified at the interference proceeding, also testified about the cleaning of grease splatters from the oven interior. He testified that he was involved in the roasting of the pork roast in unit 5093 and participated in a cleaning test after the roasting....