Mott Corporation v. Sunflower Industries, Inc., KC-920.

• Decision Date: 03 April 1961
• Docket Number: No. KC-920.,KC-920.
• Citation: 217 F. Supp. 559
• Parties: MOTT CORPORATION and C. W. Mott Research Engineers, Plaintiffs, v. SUNFLOWER INDUSTRIES, INC., and Owen Murrell Crump, Defendants.
• Court: U.S. District Court — District of Kansas

217 F. Supp. 559

MOTT CORPORATION and C. W. Mott Research Engineers, Plaintiffs, v. SUNFLOWER INDUSTRIES, INC., and Owen Murrell Crump, Defendants.

No. KC-920.

United States District Court D. Kansas.

April 3, 1961.

George N. Hibben (of Hibben, Noyes & Bicknell), Chicago, Ill., and Thomas E. Scofield and Carter H. Kokjer (of Scofield, Kokjer, Scofield & Lowe), Kansas City, Mo., for plaintiff.

Claude A. Fishburn and Orville O. Gold (of Fishburn & Gold), Kansas City, Mo., and W. C. Jones (of Payne, Jones, Anderson & Payne), Olathe, Kan., for defendants.

ARTHUR J. STANLEY, JR., Chief Judge.

This action is a suit for the infringement of a patent owned by the plaintiff, Mott Corporation. An injunction barring future infringement, damages for past infringement, an award trebling said damages and attorney fees are sought. The defendant Crump is president and owner of Sunflower Industries. The patent involved is No. 2,590,065, for a Mower Structure, issued March 18, 1952, and hereafter referred to as the Mott patent. Although the Mott patent has thirteen claims, the plaintiffs have relied only on Claims 6 through 13 in this action. The defendants have denied infringement and allege that the patent is invalid on the grounds of anticipation and lack of invention over the prior art. The defendants also contend that the Mott patent was obtained on the basis of misrepresentations made to the Patent Office by the inventor, Carl W. Mott, Sr.

The Mott patent is for a machine which is sold commercially under the name of the Mott Hammer-Knife Mower. This grass and weed mower is sold in a number of sizes, ranging from smaller machines suitable for cutting lawns to larger machines used for highway maintenance, parks, golf courses and airports. Prior to the advent of the Mott mower, there were three types of mowing machines: sickle bar, reel and rotary. The sickle bar is used primarily for cutting tall crops or weeds. It does not cutup or chop the material mowed, but rather lays it down intact. The sickle bar mows roughly and hence is not usually used where appearance is important. The reel mower is used primarily on lawns, parks and golf courses, where the grass is not tall and where a smooth, even and attractive appearance is desired. It cannot be used successfully in tall weeds and grass. The rotary mower can be used to cut tall weeds and grass as well as lawns. It gives a smooth and even cut when used for lawn work. The rotary can be a hazordous machine if used to cut where there are rocks, cans, bottles, or debris. If such objects are struck by the rapidly rotating blade, they may be thrown from under the mower with great force. When used in tall weeds and grass, the rotary tends to leave windrows of clippings, which can be disadvantageous.

It is claimed that the Mott mower can be used in short or tall grass; that it mows smoothly and evenly, leaving finely chopped clippings without windrowing; and that it does not throw rocks or other debris struck by the machine. The operator walks behind the smaller models of the Mott mower, while the larger machines are pulled or pushed by a tractor. The cutting device consists of a rapidly rotating shaft, carried horizontal and parallel to the ground, on which are mounted a number of flails or knives. The knives are carried on pins which allow them to swing out radially when the shaft is rotating. A roller and wheels support the shaft above the ground at whatever height is required to leave the grass at the desired length. The knives are spaced around the shaft in a helical pattern which produces an overlapping of the swaths cut by each blade. The mower apparently takes its name from the similarity between its action and that of a hammer-mill.

The plaintiffs contend that the Mott patent claims two features that amount to invention. The first is what is termed in the patent as the "back-to-back" mounting of the pairs of blades. Each of the blades is about five inches long, three-quarters inch wide and one-sixteenth inch thick. On a mower which cuts a four-foot swath, 120 blades are carried on the rotatable shaft. These blades are mounted in pairs, in four rows spaced circumferentially around the shaft, fifteen pairs of blades in each row. Each blade has a hole in one end for a pin, by which the blade is attached to the shaft. At the opposite end, the blade is bent or curved. The bent or curved portion is about one inch long. The angle of the bend is claimed to be critical; i. e., if greater than about 65° as measured between the blade tip and the plane of the shaft of the blade, grass will collect on the bent portion of the blade and make the mower inoperative. The "back-to-back" feature consists of mounting each pair of blades on a single pin, with the blade tips diverging in opposite directions. In the language of the patent, the mower and blades are described as follows in Claim 7:

"A grass and the like cutting structure of noncutter bar type comprising a blade carrier rotatable at high speed about a horizontal axis spaced upwardly from the ground surface, and a plurality of blades mounted on said carrier in spaced relation axially thereof and projecting radially of the carrier axis during such high speed rotation, each blade having a cutting edge portion inclined toward the axis of the rotating carrier, certain of the blades in successive contiguity axially of the carrier being in pairs with the inclined cutting edge portions thereof diverging oppositely at angles of departure from a median extending therebetween radially of the carrier, said angles of departure being confined to within approximately 65°, said pairs of blades being arranged in an interrupted helical formation about the carrier axis, and said pairs of blades having a proximity axially of the carrier to cut swaths that lap the swaths cut by axially adjacent pairs of blades."

Claims 11, 12 and 13 relate only to the blades. Claim 11 reads as follows:

"A cutter flail for a rotary grass mower comprising a rigid straplike body having a substantially straight shank portion and a cutter end portion extending from one end thereof, said cutter end portion extending out of the plane of said shank portion at a maximum angle of departure in the nature of 65°."

The defendants have admitted that if the Mott patent is valid, their mower, such as is shown by Exhibits 23a-c, would be an infringing device. With this admission, the court is led directly to a consideration of the validity of the patent.

The defendants' first contention on the issue of validity is that the usual presumption of validity is not applicable in this case because the Patent Office failed to consider certain pertinent prior art. It has been held that the force of the presumption of validity is much diminished, if not destroyed, if the Patent Office overlooked pertinent prior art. Gomez v. Granat Bros., 177 F.2d 266 (9th Cir. 1949), cert. denied, 338 U.S. 937, 70 S.Ct. 351, 94 L.Ed. 578 (1950); Gerald M. Friend v. Walsh, 141 F.2d 180 (2d Cir. 1944); American Soda Fountain Co. v. Sample, 130 F. 145 (3d Cir. 1904), cert. denied, 195 U.S. 634, 25 S.Ct. 791, 49 L.Ed. 354 (1904). The two patents upon which the defendants place principal reliance as supporting this contention are Wallace, No. 1,051,933 (1912); and Goeldner, No. 1,258,109 (1913). The following references were made of record during the prosecution of the Mott patent:

                Inventor              Number        Date
                Campbell          Re. 14,886       1920
                Holland-Letz         578,250       1897
                Ike                1,301,442       1919
                Johnston et al.    1,698,724       1929
                Sterneman          1,870,932       1932
                Cline              2,034,505       1936
                Mable              2,110,147       1938
                Maga               2,220,342       1940
                Loewe et al.       2,378,488       1945
                Bailey et al.      2,505,089       1950
                Henderson          2,509,343       1950
                Herriot et al.       356,602       1931
                                  (British)
                

Wallace and Goeldner are references which should be considered in assessing the validity of the Mott patent, but their disclosures are not of such importance, as compared to the more recent patents cited by the examiner (particularly Johnston, Bailey and Herriot), as to invoke the rule destroying the presumption of validity. See Otto v. Koppers Company, 246 F.2d 789 (4th Cir. 1957), cert. denied, 355 U.S. 939, 78 S.Ct. 427, 2 L. Ed.2d 420 (1958).

A collateral issue has been raised with regard to three patents cited by the defendants. Henderson, supra; Agee, No. 2,506,054 (1950); and Bartch, No. 2,580,640 (1952), were all issued on applications which were filed later than the original application for Mott. Although the Mott patent in issue resulted from a divisional application which had a filing date later than Bartch and Agee, under 35 U.S.C.A. § 121, the divisional application is entitled to the filing date of the original application. Neither Sherwin-Williams Co. v. Marzall, 88 U.S. App.D.C. 374, 190 F.2d 606 (D.C.Cir. 1951), nor Application of Gregg, 244 F. 2d 316, 44 C.C.P.A. 904 (1957), cited by the defendants, holds that patents with later filing dates are proper prior art. Later filed applications which may have matured into patents prior to the Mott patent, or which were being prosecuted at about the same time, are not inconsistent with Mott's claim of first invention. See 35 U.S.C.A. § 102(e).

The evidence in this case supports the conclusion that Mott's mower is a commercial success and that it is capable of performing some kinds of mowing tasks better than any of the three older types of machines. While such facts do not of themselves meet the requirements of invention, they are indicia which support the likelihood that more than mechanical skill has been displayed by the plaintiffs. It has been said that in a close case such facts should, "tip the scales in favor of patentability." Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 594, 88...