Mueller v. Campbell

• Decision Date: 23 June 1945
• Docket Number: No. 279.,279.
• Citation: 68 F. Supp. 464
• Parties: MUELLER et al. v. CAMPBELL et al.
• Court: U.S. District Court — Southern District of Ohio

68 F. Supp. 464

MUELLER et al. v. CAMPBELL et al.

No. 279.

District Court, S. D. Ohio, W. D.

June 23, 1945.

F. O. Richey and H. F. McNenny, of Richey & Watts, all of Cleveland, Ohio, and Jos. D. Chamberlain, of Dayton, Ohio, for plaintiff.

John J. Mahoney, of Corbett, Mahoney & Miller, all of Columbus, Ohio, for defendants.

NEVIN, District Judge.

This is a patent suit wherein plaintiffs charge defendants with infringement of Hunt Patent No. 2,300,157.

Plaintiffs are George R. Hunt, of Akron, Ohio, the patentee, and Conrad B. Mueller, of Cleveland, Ohio, the exclusive licensee of the plaintiff Hunt, under the patent-in-suit. Plaintiff, Conrad B. Mueller, does business under the names of Mueller Metal Products Company and Greenbrier Company of Cleveland, Ohio.

The defendants are Harold C. Campbell, of Ashley, Ohio, manufacturer of defendants' alleged infringing device; H. D. Thomas, doing business as The Thomas Company of Delaware, Ohio, who purchases machines from the defendant Campbell, and sells them to the trade, and William E. Ginovan, doing business as Ginovan Poultry Market, at Xenia, Ohio, a user of the alleged infringing (Campbell) machine.

The ownership of the patent is not in dispute. It is conceded that the patentee, George R. Hunt, is the owner of the legal title to the patent and that the plaintiff, Mueller, is the exclusive licensee of Hunt and the owner of the equitable title thereto.

Plaintiffs filed their complaint on October 7, 1943. On November 18, 1943, defendants filed their answer, and with their answer included a counter-claim. As a part of the counter-claim they allege that the defendants, Harold C. Campbell and H. D. Thomas, have an implied license under the patent-in-suit. In their counter-claim, defendants further charge plaintiffs with unfair competition on account of which they pray for damages and an accounting.

On May 31, 1944, certain amendments were filed by defendants to their original answer. In their answer and the amendments thereto, defendants deny infringement and allege invalidity of the patent upon the several grounds set forth.

On December 6, 1943, plaintiffs filed their reply to the counter-claim denying the allegations thereof.

During the progress of the trial (R. p. 29), defendants asserted that they were also relying upon the claim or defense of "unclean hands" upon the part of plaintiffs. This defense is not raised in the pleadings.

At the conclusion of the trial (R. pp. 1361 et seq.) the Court decided and disposed of the issues of unclean hands, implied license and the other issues raised by the counter-claim and the reply thereto.^*

It would serve no useful purpose, therefore, to discuss these questions further at this time. Such reference to them as is necessary is made in the Court's Findings and Conclusions. The issues remaining to be now determined are those of (1) validity of the Patent and (2) infringement.

VALIDITY.

Involved in the question of the validity of the patents are the defenses asserted by defendants of (a) anticipation; (b) exercise of invention as distinguished from mechanical skill; (c) whether or not Claims 16, 17 and 19 are indefinite and ambiguous, and (d) whether or not claims 12, 14, and 16 are based upon new matter in the patent-in-suit.

The patent-in-suit was issued on October 27, 1942. It is for "Feather-picking apparatus for fowls and the like." It contains 19 claims. Of these, claims 2, 3, 7, 10, 12, 14, 16, 17 and 19 only are here in issue. These claims may be further classified as follows: Claims 2, 3, 7, 10 and 17 are machine claims; Claims 12, 14 and 19 are Finger Claims; and Claim 16 is a Method claim.

The device of the patent-in-suit consists of an apparatus used in the poultry business for picking feathers from fowls in the course of preparing poultry for the market. Its purpose, broadly, is to eliminate hand picking of feathers from poultry.

Basically, the machine consists of a drum mounted in a frame and revolved by an electric motor, having flexible fingers arranged completely around the drum and extending outwardly from the periphery thereof. A chicken (or other fowl) which has previously been scalded, is pressed against the revolving drum and the fingers remove the feathers by a rubbing or scraping action. The operator manipulates the bird by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum.

(A) Anticipation.

(As to the Machine and Finger Claims.)

At the trial defendants selected claim 2 as typical of the Machine claims in issue. Plaintiffs, however, prefer to use claims 2 and 3 as representative. These claims read as follows: "2, a feather plucking device comprising a rotable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one end thereof being hollow. 3, a feather plucking device comprising a rotable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means having a thin wall and the remainder thereof having thicker wall portions."

Claim 12 — selected by defendants as representative (Br. pp. 32 et seq.) of the Finger Claims in issue — reads as follows: "12, a poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body throughout its length being hollow, the walls of the body being sufficiently thick to avoid collapse in a direction parallel to the longitudinal axis when the finger is in use."

Defendants assert that all of the elements of the Machine (2, 3, 7, 10 and 17) and Finger (12, 14 and 19) Claims in issue of the patent-in-suit, are old; that they "Are invalid because all specific elements thereof are shown in the prior art patents" and in support of their assertions, defendants offered in evidence, a book containing the patents referred to in their answer and the amendments thereto, now Exhibit "S" herein.

Among the patents so offered are those to Morava, No. 793,210; Morrison No. 837,330; Griggs No. 920,566; Bouda No. 1,372,595; Young No. 1,502,535; Richards No. 1,755,665; Swanson No. 1,889,228, and Jahns, (German) No. 450,570, and No. 450,571.

In their brief defendants submit that the foregoing patents, either alone or in combination with other patents, disclose all of the elements of the Hunt patent-in-suit, and that either separately or in such combination, are a complete anticipation of the claims of the Hunt patent. For example, referring to Morava, Patent No. 793,210, defendants say (Br. pp. 21, 22), "although this Morava device was designed for picking cotton it would be adaptable for plucking feathers from fowls. The picking of cotton is a delicate operation and from the use and demonstration of the prior art machines to Morrison and Jahns, defendants' Exs. W and V, it will be evident that the Morava device could be used to pick feathers from chickens as the device has every element of the Hunt patent. * * * The patent to Morava, therefore, shows every element of the Hunt machine claims and therefore anticipates these claims of the Hunt patent. * * * Morava shows a finger having all the characteristics or structures defined in the Hunt finger claims * * * Morava would therefore constitute a complete anticipation of these claims."

At the trial, the witness Corey (defendant's expert) testified that Swanson patent No. 1,889,228 was the best reference to all of the claims of the patent-in-suit, except claims 12 and 16, and that Griggs, Patent No. 920,566 was the best reference to claim 12.

As to the Swanson patent No. 1,889,228, defendants submit (Br. pp. 18 and 24) that it contains every element of both the Machine and Finger claims of the patent-in-suit and that it "Therefore constitutes a complete anticipation of these claims."

As to Griggs, No. 920,566, defendants assert (Br. p. 23) that "this Griggs patent shows fingers having all the elements defined in the Finger claims of the Hunt patent and therefore, constitutes a complete anticipation of Hunt's Claims."

While reference to prior art patents relied upon for anticipation by defendants is included by the Court, in its Findings and Conclusions, nevertheless, it may be noted here in passing, that Swanson depends entirely upon suction to remove the feathers and that the rotation of the fowl by the rotating suction devices would prevent any mechanical action such as Hunt uses to remove the feathers. Furthermore, Swanson states that one of the objects of his invention is "to provide a mechanical picking means for the fowls after they come from the scalding machine, which effectively removes most of the feathers therefrom, so that the fowl can be subsequently dried and then dipped in a substance reduced to fluid by heat, such as paraffin, whereby to coat the fowl so that after it is removed from the substance the atmosphere will harden the coating, whereupon the fowl can easily be `peeled' by hand of the paraffin coating, which brings with it all remaining feathers, pin feathers and hair."

Hunt, on the other hand, has as an object of his invention, "A feather picking apparatus * * * which will remove all of the feathers, including pin feathers, hair, etc., from a fowl in a minimum of time, with but little effort on the part of the operator."

Morrison, in his patent No. 837,330, proposes to withdraw the feathers from the fowl gradually by the use of clamping-jaws "co-operating to grasp the feathers and frictionally hold the same while being loosened from the skin of the bird, after which the feathers may be withdrawn by pneumatic or other means and conveyed to any suitable location."...