National Fruit Products Co. v. CH Musselman Co.

• Decision Date: 23 November 1934
• Docket Number: No. 1091.,1091.
• Citation: 8 F. Supp. 994
• Parties: NATIONAL FRUIT PRODUCTS CO., Inc., v. C. H. MUSSELMAN CO.
• Court: U.S. District Court — Western District of Pennsylvania

8 F. Supp. 994

NATIONAL FRUIT PRODUCTS CO., Inc., v. C. H. MUSSELMAN CO.

No. 1091.

District Court, M. D. Pennsylvania.

November 23, 1934.

Melville Church, C. B. Des Jardins, and Halbert P. Brown, all of Washington, D. C., and John D. Keith, of Gettysburg, for plaintiff.

John McD. Sharpe, of Chambersburg, Pa. (Watson E. Coleman, Frederick S. Stitt, and Frederic B. Wright, all of Washington, D. C., of counsel), for defendant.

JOHNSON, District Judge.

The bill of complaint charges the defendant with infringement of letters patent No. 1,557,358, relating to a method of treating fruit for canning purposes. The plaintiff is assignee of the patent. The defendant admits infringement if the plaintiff has a valid patent, but contends that the patent is invalid.

Application for the patent in suit was filed on August 20, 1923, by the inventor, Eugene G. Grab, and letters patent No. 1,557,358 were issued on October 13, 1925. The patent in suit relates to a method for treating fruit for canning purposes, and the primary object thereof is to secure an improved quality of fruit in a solid pack. Briefly, the patented method consists of a method of placing the fruit in bulk into a retort, extracting the air and gases from the fruit by means of a vacuum, and then instantly applying and equally distributing steam thereto. It is to be noted that the fruit is not submerged in a liquid. The patent contains three claims of which two are in suit. The two claims in suit are as follows:

"1. A method of treating fruit or the like in bulk consisting in extracting air and gases therefrom and instantly applying and equally distributing steam thereto.

"2. A method of treating fruit or the like in bulk consisting in placing prepared fruit in a retort forming a vacuum therein to extract air and gases from the cells of the fruit and applying steam to the retort in a manner to equally distribute the same to the contents thereof to overcome the vacuum therein and cause the fruit to remain solid and firm."

On April 20, 1934, after the suit was commenced, the plaintiff filed a disclaimer, the effect of which was to limit the patent in suit to a method of treating apples.

Defendant filed a motion to dismiss the bill of complaint on the ground that the above disclaimer was an admission that the matter disclaimed was old in the art and that therefore the patent in suit is invalid. The defendant further contends that the patent is invalid because it is anticipated by the prior art; because the introductory portions of the claims, "A method of treating fruit or the like in bulk * * *," is the only suggestion of a distinction over the prior art and this introduction does not constitute a part of the process and therefore does not affect the patentability of the claims.

On the pleadings and evidence, the single question for determination is whether the patent in suit is valid.

The filing of a disclaimer is not an admission that the subject of the disclaimer appears in the prior art, and the patent therefore is not on that account invalid. Manhattan General Construction Co. v. Helios-Upton Co. (C. C.) 135 F. 785; N. O. Nelson Mfg. Co. v. F. E. Myers & Bro. Co. (C. C. A.) 29 F.(2d) 968; United Chromium, Inc., v. International Silver...