Schnell v. Allbright-Nell Company

• Decision Date: 09 July 1965
• Docket Number: No. 14619,14620.,14619
• Citation: Schnell v. Allbright-Nell Company, 348 F.2d 444 (7th Cir. 1965)
• Parties: Carl SCHNELL and The Griffith Laboratories, Inc., Plaintiffs-Appellees, v. The ALLBRIGHT-NELL COMPANY, and Peter Eckrich & Sons, Inc., Defendants-Appellants. Carl SCHNELL and The Griffith Laboratories, Inc., Cross-Appellants, v. The ALLBRIGHT-NELL COMPANY, and Peter Eckrich & Sons, Inc., Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

348 F.2d 444 (1965)

Carl SCHNELL and The Griffith Laboratories, Inc., Plaintiffs-Appellees, v. The ALLBRIGHT-NELL COMPANY, and Peter Eckrich & Sons, Inc., Defendants-Appellants.

Carl SCHNELL and The Griffith Laboratories, Inc., Cross-Appellants, v. The ALLBRIGHT-NELL COMPANY, and Peter Eckrich & Sons, Inc., Cross-Appellees.

Nos. 14619, 14620.

United States Court of Appeals Seventh Circuit.

July 9, 1965.

Charles J. Merriam, Chicago, Ill., Norman M. Shapiro, Owen J. Murray, Jr., Chicago, Ill., Merriam, Marshall, Shapiro & Klose, Chicago, Ill., of counsel, for Schnell.

Richard D. Mason, M. Hudson Rathburn, Robert L. Rohrback, Clemens Hufmann, Chicago, Ill., Mason, Kolehmainen, Rathburn & Wyss, Chicago, Ill., of counsel, for Allbright-Nell Co.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Plaintiffs-appellees, Carl Schnell and The Griffith Laboratories, Inc., brought this action in the United States District Court to recover damages for patent infringement. The District Court held that each of plaintiffs' patents, as follows:

  Patent Number   Claims
                  2,840,318       2
                  2,906,310       1 through 8
                  2,934,120       1 and 2
                  2,934,121       1 through 24
                  Re.Pat.24,765   1 through 3
                                  5 through 15
                  3,044,514       1 through 14
                                  17 and 18
                  Re.Pat.24,683   1 through 16
                

were valid and infringed by defendants. The defendants, The Allbright-Nell Company and Peter Eckrich & Sons, Inc., have appealed from that judgment.

After the District Court's decision but prior to the entry of the decree, defendants urged that the decree should provide for no injunction or damages with respect to Re. Pat. 24,683 on the ground that defendants had been released under that patent. The decree as issued was silent as to relief with respect to Re. Pat. 24,683, and plaintiffs have filed a cross-appeal based on that omission.

The District Judge made extensive and detailed findings of fact,¹ more than 270 in number, which defendants attack as not in the spirit of Federal Rules of Civil Procedure, Rule 52(a), and as not entitled to the protection usually afforded findings of fact by the Rules.

Defendants complain that the findings of fact were adopted without change or comment, with only slight omissions, from those suggested by plaintiffs. The defendants cite criticism of such wholesale adoption of one party's proposed findings of fact as not revealing the discerning line for decision of the basic issue in the case. United States v. Forness, 2 Cir., 1942, 125 F.2d 928, 942; United States v. El Paso Natural Gas Co., 1964, 376 U.S. 651, 657, 84 S.Ct. 1044, 12 L.Ed.2d 12.

There is no question that such findings of fact are formally the findings of fact of the Court and must stand if supported by the evidence, even if they may be, as the Court in El Paso asserts, less helpful to the Appellate Court than findings of fact personally drafted by the Trial Judge might have been. 376 U.S. 656, ftn. 4, 84 S.Ct. 1044.

The defendants further contend, however, that the findings of fact in this case are not so supported and are clearly erroneous.

The findings of fact in this case are abundantly annotated with references to documentary evidence and testimony of witnesses, making it a comparatively simple matter for this Court to determine that the findings are supported by the evidence and are not "clearly erroneous." We are satisfied that the proper standards have been applied by the District Court in holding the patents valid and infringed. Graver Tank & Mfg. Co. v. Linde, 1949, 336 U.S. 271, 274-275, 69 S.Ct. 535, 93 L.Ed. 672; Armour & Co. v. Wilson & Co., 7 Cir., 1960, 274 F.2d 143, 156-157; Hazeltine Research v. Admiral Corp., 7 Cir., 1950, 183 F.2d 953, 954-955 cert. den. 340 U.S. 896, 71 S.Ct. 239, 95 L.Ed. 650; O'Brien v. O'Brien, 7 Cir., 1953, 202 F.2d 254, 255.

Defendants see these patents as relating to comminuting machines, which merely reduce larger relatively solid substances to minute particles, with elements and functions all old in the comminuting art. It is not disputed that prior to Schnell's discoveries cutters and grinders were in use by sausage manufacturers and others. Defendants refer to batch type comminuting machines called "mixers" used in Germany in 1952 to grind up various materials for pigs' feed.

Carl Schnell of West Germany had been making vegetable "musers" which defendants describe as continuous comminuting machines and which plaintiffs call a glorified Waring Blender in which knives rotate in a batch of liquid material. In 1954, Mr. Schnell found that he could cut raw pork rinds to produce a better emulsion which would be suitable for human consumption.

While some forms of sausage use meat in coarsely ground form, most varieties, such as frankfurters and bologna, use emulsions of solid meat and fat in a liquid carrier, which must not separate out into water and fat. The sausage industry utilizes residual portions of trimmings of meat, much of which contains hard gristle which has nutritional value, but which previously was not always found usable.

Mr. Schnell learned that he could emulsify even these hard particles. The defendants contend that Mr. Schnell's vegetable musers were used for this purpose with no substantial changes and that the musers originally were substantially similar to the prior art Hortnagel patent (Austrian Pat. 179,437, issued 1954, Fodder and Beet Mill).

The original machines were not satisfactory for either large scale production or the finest sausages and plaintiffs view them as having been only the springboard for Mr. Schnell's real discovery that one secured a superior product and greatly increased output when the meat, fat and water were comminuted and discharged in the absence of air by sealing off air from the column of meat passing through the machine. Mr. Schnell testified that the machine with the seal aspirated like a pump. The plaintiffs describe the plastic meat material emulsified in the absence of air as existing in a hydraulic column. Mr. Schnell also testified that the small motors previously used burned out when used with the new machines which required greater power.

Plaintiffs' witness, William J. Turner, employed by Griffith Laboratories, Inc., testified that for the past seven years he had been engaged in servicing and demonstrating plaintiffs' Mince Master machines. He testified to the problem of temperature rise involved in comminuting action which was dangerous for perishable edible products. The full power of the motor is translated into heat energy most of which is released into the small zone through which the meat is passing at a rate comparable to that produced in a large furnace. Yet to avoid deterioration of the product, the zone must not be warmed in excess of about 15 degrees.

The plaintiffs point out that in a slow speed grinder much of the heat energy will be lost by conduction through the metal walls of the machine, but when the power input is doubled, little additional heat will be lost by conduction, and when the power is further multiplied, the extra energy will be dissipated as heat into the material being ground.

Mr. Schnell discovered that by maintaining a hydraulic column in which the plastic meat was substantially air free, efficiency of comminuting was so increased that more power was applied to the device with less temperature increase in the meat because the increase in the rate of the meat flow through the machine exceeded the added power.

As the plaintiffs explain, when particles separated by air pass through a grinding machine, a particle propelled by a knife may hit a particle ahead of it which is moving more slowly, but will have no effect on the following particles. In the absence of air, the movement of any particle will pull along those particles behind it and the action of a knife on one particle in a sealed plastic column affects the whole hydraulic column.

This now seems simple and obvious in the light of the Schnell teaching, but it was evidently not at all obvious at the time of the invention. Those working in the field did not accomplish Schnell's results. That fact supports the conclusion that Schnell achieved patentable inventions. Pyle Nat. Co. v. Lewin, 7 Cir., 1937, 92 F.2d 628, 630.

The defendants argue that a "hydraulic column" was present although not so described in the prior art. The defendants compare the physical elements in the prior art devices with the patented devices and conclude that these were all well known. The District Court had the benefit of two experts' testimony: defendants' witness Clarence T. Fishleigh and plaintiffs' witness Karl E. Schoenherr. We have also read their testimony. We believe that it is only in the light of hindsight that the prior art seems to disclose the Schnell invention and to lend itself to the modifications now suggested by the defendants to adapt that prior art in the direction of attempts to accomplish the function of the patents. The defendants, however, did not develop their own device from the prior art but from Schnell. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 1911, 220 U.S. 428, 31 S.Ct. 444, 450, 55 L.Ed. 527.

The prior art, including Hortnagel, avoided increases in size of motor with attendant increases in temperature. Hortnagel even provided for an air intake. The principal prior art on which defendants rely was considered by the Patent Office. Of the few patents not so considered, none appear any more pertinent than those which were cited or considered. That factor also adds weight to the presumption of validity of the patents. Hunt v. Armour & Co., 7 Cir., 1950, 185 F.2d 722, 726; Lewyt Corp. v. Health-Mor Inc., 7 Cir., 1950, 181 F.2d 855, 857, cert. den. 340 U.S. 823, 71 S. Ct. 57, 95 L.Ed. 605.

Mr. Schnell's discovery made possible a tremendous increase in production of sausage. Mr. Turner testified that using older unsealed machines an operator...