VENDO COMPANY v. WM. F. CROME & COMPANY
| Decision Date | 20 April 1961 |
| Docket Number | No. 11986.,11986. |
| Citation | 192 F. Supp. 764 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | VENDO COMPANY, Plaintiff, v. WM. F. CROME & COMPANY, d/b/a Coca-Cola Bottling Company, Defendant. |
Lawrence C. Kingsland of Kingsland, Rogers & Ezell, St. Louis, Mo., Donald E. Johnson (of Hovey, Schmidt, Johnson & Hovey), Kansas City, Mo., of counsel, for plaintiff.
Ralph H. Hudson and Wm. B. Kerkam, Washington, D. C., Thomas E. Scofield, Jr., of Cameron, Kerkam & Sutton, Kansas City, Mo., of counsel, for defendant.
This action was instituted by the plaintiff, a Missouri corporation, with its principal place of business in Kansas City, Missouri, against the defendant, Wm. F. Crome & Co., d/b/a Coca Cola Bottling Company, and the Clinton Manufacturing Company, Inc., a Missouri corporation, both engaged in business at Clinton, Missouri.
The action arises under § 281 Title 35 U.S.C.A. for alleged infringement of Claims 3-5-6 of U. S. Letters Patent 2,766,906, entitled, "Selective Bottled Beverage Vending Machine", issued on October 16, 1956, to The Vendo Company, as assignee of an application filed by Floyd V. Bookout, et al., on October 15, 1951. The patent is now owned by the plaintiff.
Defendant Crome admitted having used the accused structure within the territorial jurisdiction of this court by installing and operating same on the premises of the Clinton Manufacturing Company in Clinton, Missouri, under an arrangement asserted to have been made by the said defendant directly with the employees of the Clinton Manufacturing Company.
By mutual consent the suit was dismissed as to the Clinton Manufacturing Company, without prejudice, before the case came on for trial.
The accused structure was admittedly manufactured and sold to the defendant by Cavalier Corporation, a Tennessee corporation, having its principal place of business in Chattanooga, Tennessee. It was stipulated that the accused structure would be represented in the record of the action by evidence relating to Model CS-72 and CS-96 selective, bottled beverage vending machines manufactured by Cavalier, and that such Model CS-72 and CS-96 machines of Cavalier, including certain successive minor variations thereof, are, in all respects material to the suit, identical to each other and to the particular accused machine sold to defendant by Cavalier and used by defendant within the territorial jurisdiction of this court.
Cavalier has agreed with the defendant Crome to hold the latter harmless for damages and costs in connection with this action, and to bear the monetary expense of defending the same. Cavalier also selected the attorneys on behalf of the defendant Wm. F. Crome & Co., to defend the case, subject to the approval of the defendant Crome.
Plaintiff requests the court to find that Cavalier openly and with the knowledge of the plaintiff, controlled and conducted the defense of this action through attorneys of its own selection. It was apparent to the court that during the trial of the case the defense was in fact being conducted by counsel for the defendant on behalf of Cavalier, as it was the only one involved in the litigation who stood to lose or to gain by a determination of the issue in controversy.
The type of mechanism involved in this controversy is of comparatively recent origin and results more or less by evolution from the early types of containers for the sale of cold bottled beverages. The early types used were simple old-fashioned iceboxes in which the bottles were placed on ice or in ice water for the purpose of cooling; the hinged type or sliding top of the chest afforded access to the interior where the vendor or the customer removed the bottle of his choice from the ice or fished it out of the ice water, paid for it and the top was again closed. This operation required a more or less personal relationship between the vendor and the vendee by payment directly to the vendor of the purchase price.
Plaintiff early developed a coin-controlled top for such coolers or chests. The top contained a mechanism which was released by the deposit of a coin. This cooler was a decided improvement over the older type, but it did not afford a choice of flavors or types of beverage.
The next development of a machine offered to the public using the plaintiff's description was a
Although there had been numerous types of vending machines in use prior to the beginning of the last decade, after that time the idea in the mind of the public of acquiring merchandise through a vending machine automatically, began to point the way to a new field in the sale of merchandise generally. There had been efforts in this field to develop a practical type of selective beverage vending machine which is the subject of this suit. Such attempts had been to provide selective vending machines both in bulk and bottled products.
Efforts to develop the present machine apparently had not been entirely successful in providing means for selectively vending bottled beverages of various kinds and flavors from supplies maintained under refrigeration in an upright cabinet having a relatively small customer access door in the front thereof through which a customer, upon deposit of a coin, could select and withdraw the lower-most bottle from the shelf for any desired flavor.
But, plaintiff's present structure supplied that demand and it also provided a mechanism which prevented the withdrawal of additional bottles until after a second coin had been deposited and the release mechanism again adjusted to the withdrawal of a second bottle or choice.
Both of the devices before the court— plaintiff's device and the accused device, using the description of the plaintiff again,
The selective bottled beverage vending machines produced by plaintiff under the patent in suit, including the Vendo Model V-110 first marketed in late 1951 or early 1952, and the later Vendo Model V-81, were accorded prompt, continuing and marked commercial acceptance.
The accused structure was designed in late 1956 or early 1957, by an employee of Cavalier, who was furnished by Cavalier with both a copy of the patent in suit, and a specimen of the machines being made by plaintiff under the patent in suit. Cavalier's employee was instructed "to design a machine to do a specific job and to make it better and, too, of course, to avoid any infringement".
Defendants claim first, that Claims 3-5-6 are invalid for lack of invention, and second, that they are not infringed by Cavalier because "they contain what we think are material limitations which do not apply to the accused device".
To sustain its charge of lack of invention and in discussing the prior art, the defendant calls the attention of the court to the patents of Howe, Clark, Gabrielsen, Hanson, Stewart, Smith and others, for developing vending machines for beverages and other merchandise long prior to Vendo, and contends that these were— "Upright cabinets, mechanical refrigeration, inclined shelves, dividers at the lower ends of the inclined shelves, coin-controlled gates, and various types of coin-controlled locking mechanisms employing slidable plates arranged either vertically or horizontally, together with wedge-type or rotatable spreaders", and that they were all old and well known in the art.
The Claims which are in controversy here, 3-5-6 are:
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Crome & Company v. VENDO COMPANY
...evidence and that its conclusions are correct. Chief Judge Duncan, in a fully detailed and carefully considered opinion, published in 192 F.Supp. 764, properly determined each issue presented. No good purpose would be served in the rewriting or rephrasing of his views, with which we fully c......