Smith v. Florence-Mayo Nuway Co., 6056.

• Decision Date: 02 June 1950
• Docket Number: No. 6056.,6056.
• Parties: SMITH et al. v. FLORENCE-MAYO NUWAY CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

182 F.2d 507 (1950)

SMITH et al. v. FLORENCE-MAYO NUWAY CO. et al.

No. 6056.

United States Court of Appeals Fourth Circuit.

Argued April 12, 1950.

Decided June 2, 1950.

Jesse A. Jones, Kinston, N. C., and W. Brown Morton, New York City (Pennie, Edmonds, Morton & Barrows, New York City, and Frank H. Kennedy, Charlotte, N. C., on brief), for appellants.

J. Hanson Boyden, Washington, D. C. (Bernard F. Garvey, Washington, D. C., and John B. Lewis, Farmville, N. C., on brief), for appellees.

Before PARKER, Chief Judge, SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by plaintiff from a judgment for defendant in a patent infringement suit. The patent is Smith Patent No. 2,051,348 covering a drying house for tobacco; and claims 1, 2 and 7 of that patent are involved in the suit. The District Judge held that these claims were invalid in view of the prior art, but that, even if valid, they were not infringed. We do not find it necessary to pass upon the validity of the claims, since we are of opinion that, when limited, as they must be, in the light of the prior art, they are not infringed by the apparatus and structure of the defendants.

The patent in suit is directed to the curing of tobacco in the conventional type of tobacco barns by the use of oil as a fuel in a number of small, independent, open-flame burners covered by a hood and arranged in series adjacent to the walls of the barn. Patents relating to this art were before this court in the recent cases of Florence-Mayo Nuway Co. v. Hardy, 4 Cir., 168 F.2d 778 and Smith v. General Foundry & Machine Co., 4 Cir., 174 F.2d 147. In the first of these, we held valid and infringed, as against what was in effect a Chinese copy, the Mayo patent which combined with devices old in the art the bringing of air by pipes from outside the barn and delivering it under the hoods or baffle plates of the burners. One of the patents with which we dealt in the prior art was the Smith patent here in suit. That patent along with another patent to Smith was the subject of the suit against the General Foundry & Machine Co., wherein we held that the patent was not infringed by an oil heating device which did not employ a large number of separate units but a central source of heat. The case here presents the question as to whether the first, seventh and second claims of the Smith patent are infringed by the device of the Mayo patent, which we upheld in the first of the cases above cited. Those claims are as follows:

"1. The combination with a drying house including side walls and end walls, of a plurality of spaced independent fuel burning heating units located within the house and arranged in series adjacent the walls thereof, a main fuel supply located exteriorly of the house, a fuel feed pipe located inside the house and connecting all of the units, and a single inlet pipe connecting the main fuel supply and the fuel feed pipe.

"2. The combination with a drying house including side walls and end walls, of a plurality of spaced independent fuel burning heating units located within the house and arranged in series extending substantially around and adjacent the walls thereof, means located above the units for supporting articles to be dried, spaced baffle means interposed between the units and the articles, and a screen interposed between the baffle means and the articles.

"7. The combination with a drying house including side walls and end walls, of a plurality of spaced independent fuel burning heating units located within the house and arranged in series extending substantially around and adjacent the walls thereof, means located above the units for supporting articles to be dried, and spaced baffle means interposed between certain of said heating units and the article supporting means, the baffle means comprising imperforate portions disposed directly above the associated burners and perforated portions disposed at the side of said imperforate portions."

The record in this case clearly shows that there was nothing new in the use of open flame oil burners for heating tobacco barns. Brock Patent No. 1,368,018 discloses as heating means of tobacco barns, long perforated bunsen burner type heaters covered by an adjustable hood. Reynolds Patent No. 1,509,902 shows the use of an open flame burner under a hood. Other prior art patents of which notice should be taken are the Mims Patent No. 1,493,889, showing the use of an open flame oil burner covered by a hood for treating vegetables and Fizer Patent No. 265,051, showing a number of heaters, but without oil burners, arranged along the walls of a tobacco barn. Account must be taken also of the Torrid Stove installation, which consisted of independent oil burning stoves used for heating purposes in tobacco barns and of the teaching of agricultural department bulletins as to the use of open flame burners in series for the production of gases for the coloring of oranges and grape fruit.

In the light of this prior art it is idle to contend, as does appellee, that the claims in suit should be so broadly construed as to give the patentee a monopoly on the use of open flame burners in the curing of tobacco. The fact is that, in the proceedings in the patent office, the patentee sought broad claims of this character and, after they had been denied on the prior art, accepted the limited claims sued on. He then sought a reissue containing the following broad claim:

"8. The combination of a drying house, of means for heating the same comprising a plurality of independent oil-burning...