Mastoras v. Hildreth
| Decision Date | 24 February 1920 |
| Docket Number | 3341. |
| Citation | 263 F. 571 |
| Parties | MASTORAS v. HILDRETH. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rehearing Denied April 5, 1920.
Joseph L. Atkins, W. A. Robbins, and David E. Lofgren, all of Portland, Or., for appellant.
MacLeod Calver, Copeland & Dike, of Boston, Mass., and Chester G Murphy, of Portland, Or., for appellee.
Before GILBERT, MORROW, and HUNT, Circuit Judges.
The appellant appeals from a decree of the court below whereby he was adjudged to have infringed claim 1 of patent No. 831,501 issued on September 18, 1906, to Herbert M. Dickinson, for an 'improvement in candy-pulling machines.' The appellant denied infringement and denied the validity of the Dickinson patent.
The only prior patent to which we find it necessary to refer is No. 511,011, issued to Firchau on December 19, 1893, for an improvement in 'machines for working or pulling candy. ' Firchau's machine consists of a fixed drum wherein are placed heads which carry lateral fingers arranged so as to travel in different orbits in opposite directions. In operation the candy is hung upon the upper finger, and, upon the rotation of the heads in opposite directions, it is engaged by the lower finger and stretched in an opposite direction and worked. Say the specifications, 'This takes place at each rotation of the heads, the candy being alternately massed and stretched. ' In the Dickinson machine the candy is placed in a trough some eight feet in length in the bottom of which at the center is placed an upright fixed pin. Attached to an arm pivoted on a transverse traveling bar are two pins which project downwardly and nearly to the bottom of the trough. The bar with the arm on which are fastened the projecting pins is carried back and forth on the top of the trough from one end thereof to the other. As the bar approaches each end, a hook engages the arm from which the pins are suspended and turns it about upon the bar, whereby the pins make in the trough approximately a semirevolution, before returning to the opposite end. The specifications say: 'The candy is acted upon in a manner and by means of the shifting hook along a path corresponding to what I term a figure 8.'
Claim 1 is as follows:
'(1) A candy-pulling machine comprising a plurality of oppositely disposed candy hooks or supports, a candy-puller and means for producing a specified relative in-and-out motion of these parts for the purpose set forth.'
The machine which was held to infringe is one made under the patent to G. L. Langer No. 1,232,697, issued July 10, 1917, for 'a candy-pulling machine.' Langer's specifications say:
'My invention relates to candy-pulling machines, and more particularly to a machine adapted to automatically pull candy by means of a floating puller which is carried through a course of travel corresponding in form to the figure 8, and around fixed supporting pins arranged concentrically within the two circular portions of said figure 8, whereby the candy is pulled by said floating puller and alternately carried thereby around said fixed supporting pins.'
The machine consists of a base supporting two circular or drumlike castings joined together at one side and standing on edge. In the center of each of these drums, and on either side thereof, is a fixed pin, while a movable pin projecting on each side passes first around one drum and then around the other in continuous operation. Candy is simultaneously pulled on each side of the machine. It is stretched across the fixed pins on either side and above the moving pin. By the movement of the machine the moving pin pulls the candy and wraps it first around one fixed pin, then stretches it and wraps it around the other, and continues that operation alternately from pin to pin, thus pulling and stretching the candy as the floating pin is carried through its course of travel. The essence of the Langer invention is that it is adapted to carry a floating pulling member first around one circular course in one direction, and then around another circular course in the opposite direction. The machine is shown below:
(Image Omitted)
It is said that the Firchau patent has no place in the prior art for the reason that it will not pull candy but will only mix it. To this we cannot assent. The moving fingers of that device undoubtedly will to some extent pull candy. The candy, being placed upon the upper finger which has projecting knobs to hold it, will as that finger moves be caught by the lower finger and pulled in the opposite direction. If it be said that the pulling operation is not continuous but intermittent, the same may be said of the Dickinson device, for it is obvious that during the travel of the movable pins from the end of the trough toward and to the central pin there is no pulling of the candy or anything more than a pushing of the mass thereof in front of the moving pins. It is only as Dickinson's moving pins travel away from the center and toward the ends of the trough that any tension is placed on the candy. It is thus seen that Dickinson did not get very far beyond Firchau, and that in his device, as in Firchau's, the candy is 'alternately massed and stretched.' Although claim 1 of the Dickinson patent does not call for means to support the candy against gravity, it is obvious that the device will not operate without a trough for support such as the specifications describe, and that if the pins were placed in a horizontal position they could not be so operated as to sustain the candy against gravity, for the reason of the intermittent relaxation of the candy from all tension. In Hildreth v. Auerbach (D.C.) 223 F. 545, Judge Learned Hand said:
'I must confess that the conception of the pins as 'supports' seems to me quite foreign to Dickinson's disclosure.'
Dickinson was not the first to invent a machine to pull candy. But if he were the first, as the appellee contends, he acquired no more than the exclusive right to pull candy in the way which he specified, and he is not justified in claiming the exclusive right to pull it in some different way.
The testimony leaves it doubtful whether the Dickinson machine is operative. The only testimony as to its practical operativeness is that of the appellee. He testified that three machines were made, that two of them had been broken up, and that the third was still in his possession; that he did not use it in practical operation; that on one occasion, a number of years after he bought it, he had used and pulled candy with it; and that by shortening the pull and speeding the machine it would 'pull candy all right.'
'
* * *
A witness for the appellant, an experienced candy worker, testified that the Dickinson device would stir candy but would not pull it, and stated as a reason therefor that--
It does not let in enough air, 'doesn't get the air to it. It lays flat on the floor there on the bottom of the trough, and it certainly doesn't get air around.
In any of the pulling machines, as it is in existence now, the air is from all sides. It absorbs the air in knocking it around, but this one don't.'
The appellee himself has recorded his adverse criticism of the principle on which the Dickinson machine operates. In his specification in letters patent No. 832,384, for a candy-pulling machine, issued to him October 2, 1906, he states:
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