Mueller v. Pickwick Corp.

• Citation: 94 F. Supp. 742
• Decision Date: 05 September 1947
• Docket Number: Civ. A. No. 105.
• Parties: MUELLER et al. v. PICKWICK CORP. et al.
• Court: U.S. District Court — Northern District of Iowa

94 F. Supp. 742

MUELLER et al. v. PICKWICK CORP. et al.

Civ. A. No. 105.

United States District Court N. D. Iowa, Cedar Rapids Division.

September 5, 1947.

F. O. Richey, H. F. McNenny, Cleveland, Ohio, Amor H. Sargent, Cedar Rapids, Iowa, for plaintiffs.

Alexander C. Mabee, Samuel W. Kipnis, Chicago, Ill., Don Barnes, Cedar Rapids, Iowa, for defendants.

GRAVEN, District Judge.

Pursuant to assignment, the above entitled cause came on for trial at the Federal Court House at Cedar Rapids, Iowa, on March 5, 1946. The parties presented their evidence on March 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 1946. On March 22, 1946, the parties completed the presentation of their evidence. The parties desired to submit written briefs and arguments after a transcript of the evidence had been made. By Court order, the parties were to file their written briefs and arguments within specified times after the transcript of the evidence had been made and filed. Prior to the filing of the transcript of the evidence, the plaintiffs on June 18, 1946, filed herein an application to reopen the case for the taking of additional evidence. On July 5, 1946, the defendants filed herein an application to reopen the case for the taking of additional evidence. The said applications were granted, and on January 7, 1947, at the Federal Court House at Cedar Rapids, Iowa, the taking of additional evidence was commenced. On January 8, 1947, the parties completed the presentation of their additional evidence. By Court order it was provided that written briefs and arguments should be filed after a transcript of all the evidence had been filed. Subsequently a transcript of all of the evidence was filed, and thereafter written briefs and arguments of the parties were filed. On July 30, 1947, the last of the written briefs and arguments was filed and the case was then submitted to the Court and by it taken under advisement.

Now, to-wit, on this 5th day of September, 1947, the Court now being fully advised in the premises makes the following Findings of Fact, Conclusions of Law and Order for Interlocutory Judgment.

Findings of Fact

This is a suit under the Patent Laws of the United States charging the defendants with infringement of United States Patent No. 2,300,157, issued to George R. Hunt on October 27, 1942, pursuant to an application filed November 16, 1939. The patent is for a "Feather-picking apparatus for fowls and the like."

2. Plaintiff, George R. Hunt, is the owner of the legal title of the patent in suit, and plaintiff, Conrad B. Mueller is the owner of the equitable title thereof by virtue of an exclusive license agreement dated February 14, 1940.

3. Defendant, Pickwick Corporation, a corporation of the State of Iowa, having its principal office at 221 3rd Street, N.E., Cedar Rapids, Iowa, has, since October 27, 1942, been manufacturing and selling the accused poultry picking machines and fingers therefor illustrated in plaintiffs' Exhibits 4a, 5a, and 8 and exemplified by plaintiffs' Exhibit 8a. Defendant Jerry Srp is a citizen of the United States, has an address at 221 3rd Street, N.E., Cedar Rapids, Iowa, and since October 27, 1942, has been President of Defendant Pickwick Corporation and has controlled, directed and participated in the infringements committed by the Defendant Pickwick Corporation, and, since October 27, 1942, has used the accused machines and fingers illustrated in plaintiffs' Exhibits 4a, 5a, 7 and 8 and exemplified by plaintiffs' Exhibits 7a and 8a. Defendant Flournoy E. Corey is a citizen of the United States and has an address at 221 3rd Street, N.E., Cedar Rapids, Iowa, and is General Manager and Secretary of the Defendant Pickwick Corporation and since October 27, 1942, has controlled, directed and participated in the infringements committed by the Defendant Pickwick Corporation.

4. The patent in suit contains 19 claims. Of these only Claims 2, 3, 7, 10, 12, 14, 17 and 19 are here in issue. These claims are divided as follows: Claims 2, 3, 7, 10 and 17 are machine claims and Claims 12, 14 and 19 are finger claims. During the trial of the case, the plaintiffs claimed infringement of method claim 16, but after the decision by the Sixth Circuit Court of Appeals in the case of Campbell v. Mueller, 159 F.2d 803, on February 3, 1947, and before this case was submitted to the Court, the plaintiffs disclaimed such method claim.

5. Each of the claims here in suit was held valid by the District Court for the Southern District of Ohio in the case of the plaintiffs herein v. Harold C. Campbell, H. D. Thomas, and William E. Ginovan, in a decision, plaintiffs' Exhibit 34, reported at 68 F.Supp. 464, which decision was affirmed by the Court of Appeals for the Sixth Circuit in a decision reported at 159 F.2d 803. Each of claims 2, 7, 10, 12, 17 and 19 was held to be infringed by the Campbell and Thomas Machine illustrated by plaintiffs' Exhibit 36 herein.

6. In a decision finding Campbell and Thomas guilty of civil contempt, plaintiffs' Exhibit 98, reported at 68 F.Supp. 475, the District Court for the Southern District of Ohio held each of claims 2, 3, 7, 10, 12, 14, 17 and 19 of the patent here in suit to be infringed by the "modified" machines sold by Campbell and Thomas embodying solid fingers and illustrated in plaintiffs' Exhibit 102 herein. The patent in suit is also involved in a suit of the plaintiffs herein against Robert F. Wolfinger d. b. a. Superior Manufacturing Company, 68 F.Supp. 485, in which case the District Court for the Southern District of Ohio found that the plaintiffs were entitled to a bond or a preliminary injunction against the manufacture by defendants of machines illustrated in plaintiffs' Exhibit 109 herein.

7. The device shown and described in the Hunt patent in suit consists of an apparatus used in the poultry business for picking feathers from fowl in the course of preparing poultry for the market. The machine comprises a structure consisting 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. In operating the device, a chicken (or other fowl) which has previously been scaled is pressed against the revolving drum, and the fingers remove the feathers by a rubbing or scrubbing action. The operator manipulates the chicken by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum.

8. The problem which existed in the art prior to the invention covered by the Hunt patent in suit was in general to pluck poultry (fowl) mechanically and specifically to remove feathers from poultry rapidly and effectively without injury to the poultry and in such a manner that quantity production could be obtained. This problem in particular had existed and had been recognized in the art at least since 1916 within the knowledge of witnesses testifying in this case and to general knowledge always. At least since 1916 throughout the poultry industry there had been a need and a demand for a machine for plucking poultry, which would increase production and decrease the labor required, without injuring the poultry. There had always been a demand and a need for a machine which would pluck poultry.

9. From time immemorial poultry has been plucked by hand. Hand plucking had many disadvantages which had long been recognized in the art. Hand plucking was slow and laborious, very unsanitary, expensive, and involved considerable loss from scuffing, barking, or breaking the skin of the poultry.

10. Leading manufacturers of poultry equipment, since at least 1916, had been trying to develop a machine for plucking poultry, which would successfully remove the feathers without injuring the poultry. They had also searched for any such machine that might have been produced by others. Both these trials and these searches were unsuccessful until the appearance of the machine of the Hunt patent in suit. In the course of these efforts the devices shown in the patents to Swanson, No. 1,889,228, Richards, No. 1,755,665, and Bouda, No. 1,372,595, were tried out. They failed to accomplish the desired result. Many ideas were suggested, most of which were found to be impractical and useless.

11. A number of years prior to the filing of the application by the Hunt patent suit, E. G. Berg of Fairbault and New Ulm, Minnesota, the patentee of Berg Patent 1,217,393, had conducted experiments with machines intended to pick poultry by means of revolving bristles. Those experiments were unsuccessful and were discontinued and the machines were subsequently abandoned and junked. The machines with which E. G. Berg conducted his unsuccessful and abandoned experiments did not use rubber fingers similar or like the finger described in the Hunt patent in suit. E. G. Berg did not contemplate or envision the use of such type of rubber fingers in connection with his machines.

12. Plaintiff, George R. Hunt, began experiments in the basement of his home in 1931 in an effort to produce a poultry plucking machine. All of his efforts failed until in 1937 he produced a machine which he tried out experimentally at the home of a friend, Edwin Ilg. While this machine successfully removed feathers without injuring the poultry it was too slow to be of commercial use nor would it remove all of the feathers from a chicken. Hunt continued his experiments and finally in 1939 he produced a machine substantially as shown in the drawings of...