Spray Refrigeration Co. v. Sea Spray Fishing, Inc.
| Citation | 322 F.2d 34 |
| Decision Date | 26 July 1963 |
| Docket Number | No. 17912-17914.,17912-17914. |
| Parties | SPRAY REFRIGERATION COMPANY, Inc., a California corporation, Appellant, v. SEA SPRAY FISHING, INC., a California corporation, Appellee. SPRAY REFRIGERATION COMPANY, Inc., a California corporation, Appellant, v. VAGABOND FISHING, INC., a California corporation, Appellee. SPRAY REFRIGERATION COMPANY, Inc., a California corporation, Appellant, v. COURAGEOUS FISHING CORP., Inc., a California corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Flehr & Swain and John Swain, San Francisco, Cal., for appellant.
Fulwider, Patton, Rieber, Lee & Utecht, Francis A. Utecht, J. F. McLellan, Long Beach, Cal., for appellees.
Before HAMLEY, KOELSCH and BROWNING, Circuit Judges.
Three patent infringement suits, consolidated for disposition in the district court and here, are before us on the appeals of plaintiff in each case, Spray Refrigeration Company, Inc. The defendants and appellees, one in each suit, are Sea Spray Fishing, Inc., Vagabond Fishing, Inc., and Courageous Fishing Corp., Inc., The patent which was assertedly infringed, owned by appellant, is United States Letters Patent No. 2,909,040 entitled "Apparatus and Method for Freezing Fish," issued to Malcolm L. Newell on October 20, 1959.
Injunctive and monetary relief for infringement was sought against each appellee. Each appellee denied infringement and challenged the validity of the patent. Prior to trial, however, all of the appellees advised the court that they would not contest the validity of the patent.1 Accordingly, at the trial appellees presented no evidence and made no argument relative to that question. The trial court made no finding or conclusion on the question of validity but, as to each appellee, found and concluded that appellant had failed to sustain its burden of proving that the patent had been infringed. A judgment was therefore entered for each appellee.
Appellant contends on appeal, in effect, that the trial court erred in finding and concluding that appellant had failed to sustain its burden of proof on the question of infringement, and in failing to find and conclude that the patent is valid.
We turn first to the question of infringement. The patent claims a method for freezing fish on board commercial fishing vessels while the vessels are at sea. The purpose of the patented method is to provide a means whereby large catches of fish may be quickly frozen, thereby avoiding waste and spoilage associated with commercial fishing, primarily for tuna, in warm waters.
The steps of the method are (1) to provide a closed refrigeration system in a fish receiving zone or hatch and (2) to circulate brine in a spray system over the coils of the refrigeration system, whereby a reserve layer of ice is built upon the coils. This reserve layer, or reserve capacity, according to the inventor, promotes the initial cooling of the fish and cools subsequently sprayed brine to promote further, and complete, freezing of the catch.
Appellant claimed that, as to some voyages, each of the appellees built a reserve capacity of ice upon the refrigerating coils of its respective fishing vessel,2 prior to the time fish were caught, so that when a large quantity of freshly caught fish were deposited in the hatch or hold, the brine which was sprayed over them chilled them quickly. This large reserve capacity of ice, it was claimed, gave appellees a large capacity of "cold" upon which they drew to effect the rapid removal of heat from the fish. The described practice followed by each appellee, appellant asserted, constituted infringements of the method patent described above.
Appellees concede that the freezing apparatus installed in each of their vessels could be operated in a manner that would infringe the patent in suit, i. e., to build up a reserve layer of ice on the coils. On the other hand, Malcolm Lloyd Newell, the inventor of the patent, testifying for appellant, stated that the apparatus installed on each of the accused vessels could be operated in such a manner as not to infringe the patent.
With regard to infringement on the Sea Spray and Courageous, the evidence was in dispute as to whether the freezing apparatus had been employed in a manner which infringed the patent. We are therefore unable to say that the trial court erred in finding and concluding that, as to those vessels, appellant did not sustain its burden of proof on the question of infringement.
With regard to infringement on the Vagabond, appellee Vagabond Fishing, Inc., stipulated that the freezing method claimed in the patent was used on one or two trips made in 1961. Jack Kordich, who was engineer on the Vagabond from August, 1960 to November, 1961, testified that this freezing method was used on two trips he was on in 1960. Kordich further testified, however, that this method of freezing was used on these two trips only for the purpose of experimentation as to the desirability of using this method. As a result of the experiment, Kordich testified, he reached the conclusion that it was not necessary to use the patented method in order to get satisfactory freezing on the Vagabond.
Appellee Vagabond Fishing, Inc. argues that this indicated use of the patented method is de minimis and for that reason should not be regarded as an infringement. This view is predicated not only on the assertedly experimental nature of the use the Vagabond made of the method, and the limited amount of such use, but also on the contention that Newell, the inventor, had suggested that the experiment be conducted. In this latter connection, appellee refers to certain testimony given by John Stanovich, who was captain of the Vagabond at the time in question, and by Newell, which testimony we quote in the margin.3
Giving full credence to this testimony we do not regard it as...
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...22, 1997). However, the court did not do so based on the so-called de minimis exception. See, e.g., Spray Refrigeration Co. v. Sea Spray Fishing, Inc., 322 F.2d 34, 36 (9th Cir.1963). The court concluded that Glaxo was correct in asserting that the de minimis exception has no application to......
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