National Dairy Products Corp. v. Borden Company
| Decision Date | 07 August 1973 |
| Docket Number | Civ. A. No. 63-C-74,63-C-116 and 63-C-117.,63-C-114 |
| Citation | 363 F. Supp. 978 |
| Parties | NATIONAL DAIRY PRODUCTS CORPORATION, Plaintiff, v. The BORDEN COMPANY et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Edwin M. Luedeka, Fitch, Even, Tabin & Luedeka, C. Lee Cook, Chadwell, Keck, Kayser & Ruggles, Chicago, Ill., Paul R. Puerner, Michael, Best & Friedrich, Milwaukee, Wis., for National Dairy Products Corp. (now by change of name Kraftco Corp.) in Civ. A. Nos. 63-C-74, 63-C-113, 63-C-114, 63-C-116, and 63-C-117.
Fred Wiviott, Robert P. Harland, Whyte, Hirschboeck, Minahan, Harding & Harland, Patrick W. Cotter, Brady, Tyrrell, Cotter & Cutler, Milwaukee, Wis., for Interim Development Co., Inc. and Hayssen Mfg. Co., a Delaware corp., in Civ. A. Nos. 63-C-74, 63-C-113, 63-C-114, 63-C-116 and 63-C-117.
Robert A. Downing, Sidley & Austin, Chicago, Ill., David J. Hase, Cook & Franke, Milwaukee, Wis., for The Borden Co. in Civ. A. No. 63-C-74.
Jack Shore and John Milnamow, Herman Gordon, Dressler, Goldsmith, Clement & Gordon, Chicago, Ill., Maurice McSweeney, Foley & Lardner, Milwaukee, Wis., for L. D. Schreiber & Co., Inc. and L. D. Schreiber Cheese Co., Inc., in Civ. A. No. 63-C-116.
George M. St. Peter, St. Peter & Hauer, Fond du Lac, Wis., for the Trustee in Bankruptcy for Concord Cheese Corp., in Civ. A. No. 63-C-117.
DECISION and ORDER
The defendant Hayssen Manufacturing Company, a Delaware corporation (Hayssen Delaware), has filed a motion for summary judgment in these related patent cases. There appears to be a lack of complete agreement between the parties as to precisely what is sought to be resolved by the motion. It is my opinion, however, that the movant's position is reasonably clear.
Hayssen Delaware seeks partial summary judgment dismissing those portions of paragraphs 7 and 8 of each amended complaint which charge it with liability for infringing or contributorily infringing acts of the former Wisconsin corporation of the same name (Hayssen Wisconsin) occurring prior to a sale of the assets of Hayssen Wisconsin to Hayssen Delaware.
Hayssen Delaware also seeks partial summary judgment dismissing those portions of the same paragraphs of the complaint which charge it directly with contributory infringement after the sale of assets by virtue of its sale of an "apparatus" to the other defendants. Resolution of the motion requires a look at the history of this litigation and at the history of the defendant Hayssen Delaware.
These actions were commenced in this district in 1963. The complaints charged infringement of United States Letters Patent No. 2,919,990, the plaintiff's patent covering a "Method of Continuously Producing Packaged Units". It was alleged in each case that the defendants other than Hayssen Wisconsin used certain machines for wrapping cheese and that such use infringed the method covered by the claims of the plaintiff's patent. Hayssen Wisconsin, which had sold and serviced the machines in question, was charged with infringement and contributory infringement in each case.
The cases were consolidated, and the validity issue was severed and tried in another branch of this court. The invention claimed in the patent was found to be obvious by the trial judge; however, the court of appeals disagreed and held the patent valid. National Dairy Products Corp. v. Borden, et al., 261 F. Supp. 771 (1966), rev'd, 394 F.2d 887 (7th Cir. 1968). The issues of infringement and contributory infringement remain to be tried.
Hayssen Delaware was not joined as a defendant until 1969. Its involvement came about as a result of the sale of Hayssen Wisconsin's packaging machinery business. In late 1966, Bemis Company purchased certain of Hayssen Wisconsin's assets, including the packaging machinery business, and conveyed that business to its subsidiary Hayco, Inc. Shortly after the sale, Hayssen Wisconsin changed its name from Hayssen Manufacturing Company to Interim Development Company, Inc., and Hayco, Inc., a Delaware corporation, changed its name to Hayssen Manufacturing Company.
Thus, a new corporation, chartered in another state, took over the...
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