Ward Baking Co. v. Weber Bros

• Court: U.S. Court of Appeals — Third Circuit
• Citation: Ward Baking Co. v. Weber Bros, 230 F. 142 (3rd Cir. 1916)
• Decision Date: 17 January 1916
• Docket Number: 2010.
• Parties: WARD BAKING CO. et al. v. WEBER BROS. et al.

230 F. 142

WARD BAKING CO. et al. v. WEBER BROS. et al.

No. 2010.

United States Court of Appeals, Third Circuit.

January 17, 1916

[Copyrighted Material Omitted]

The following is the opinion of the District Court, by Haight District Judge:

The Ward Baking Company, one of the plaintiffs, is the owner of and the Thomson Machine Company, the other plaintiff, is the exclusive licensee to manufacture and sell under, the following patents, which were each issued to William S. and Charles I. Corby, viz.: Reissue No. 11,751, dated June 20, 1899; No. 611,563, dated September 27, 1898; No. 649,437, dated May 15, 1900; and No. 672,414, dated April 16, 1901. It is alleged that a machine manufactured by defendant the J. H. Day Company, and used by the defendants Weber Bros., infringes the following claims of these patents, viz.: Claims 6, 7, 8, 9, 11, 12, 13, 15, and 17 of reissue No. 11,751; claims 1, 2, 4, 5, and 16 of No. 611,563; claim 6 of No. 649,437; and claims 10, 11, 13, and 16 of No. 672,414. All of the patents relate to a machine for working and shaping dough. The reissued patent is the basic one; the others covering merely variations and improvements thereof.

J. H. Day, to whose business the J. H. Day Company succeeded, had originally been licensed by the patentees to manufacture and sell dough-moulding machines under the patents in suit. Subsequently the patents were transferred to one of the predecessors in title of the Ward Baking Company, to whom Day also transferred his rights in the patents. In 1908 the J. H. Day Company entered into an agreement with the predecessor in title of the Ward Baking Company, whereby the former was to manufacture and sell the dough moulders and pay the latter a royalty. A number of machines were manufactured under this agreement. It was later superseded by the exclusive license, granted in 1911 to the C. A. Thomson Machine Company, whose name was subsequently changed to the Thomson Machine Company. This latter company had been manufacturing and selling a dough-moulding machine in competition with the machine of the patents in suit, and in 1910 a suit was instituted in the Eastern District of Pennsylvania by the predecessor in title of the Ward Baking Company against the C. A. Thomson Machine Company for an alleged infringement of reissued patent No. 11,751. This suit was settled, and the exclusive license before mentioned, granted to the C. A. Thomson Machine Company. In 1912 the C. A. Thomson Machine Company, having learned that the Day Company was making a machine which it considered infringed the patents in suit, caused a notice to be sent to the latter company to that effect, and called upon it to refrain from further infringement. Thereafter this suit was instituted.

The machine of the patent was designed to be used in one of the processes of making bread on a large scale. After the dough has acquired the proper degree of lightness, it is separated into small masses, to be made into loaves for baking. It is the design of the machine of the patent to knead and shape such masses. The machine of the reissued patent may be briefly described thus: Upon a suitable frame a rigid table is constructed, at each end of which is mounted a roller, and over the rollers an endless belt or apron is passed, the upper part of which rests upon and travels over the table. Above the table and the belt is a yieldingly supported pressure board held in place by suitable devices, with means provided for adjusting it toward and away from the table and belt. It is between this pressure board and the belt that the dough is kneaded and shaped as it is carried along by the belt. The batch of dough which is to be so converted into a loaf first passes between a pair of rollers, mounted at the forward end of the frame, by which it is sheeted. At the front entrance of the space between the top of the belt and the under side of the pressure board is a device referred to in the patent as a 'curler.' Its function is to engage the front end of the dough sheet after it has passed between the sheeting rollers onto the carrying belt and retard it sufficiently to start it coiling or rolling up so that the sheeted dough will pass into the space between the traveling belt and the pressure board (which space is greater than the thickness of the sheeted dough) in a coiled or thickened condition, and thus will be kneaded and shaped into a loaf. The curler of the reissued patent is not an integral part of the pressure board. It is yielding, so that, as the dough sheet, which is engaged by it, is rolled up or coiled, it rises out of the way and thus allows the coiled or rolled-up mass to pass into the passageway between the pressure board and the belt. It normally projects into the path of the advancing dough sheets, so as to constrict or narrow the width of such passageway. The 'curler' is an element of each of the claims in suit.

The defenses are stated, in defendants' brief, to be as follows: That the reissued patent is void because no statutory ground for reissue existed; (2) that each patent is void for want of novelty; (3) that each is void for want of invention; and (4) that the defendants' machine does not infringe. Several other matters are also apparently urged as defenses, or as reasons why the relief which the plaintiffs seek should not be granted in equity. These will be first considered, and then the main defenses in the order stated.

1. It is contended on behalf of the defendants that the reissued patent is invalid because the description mixes up the new and old, and does not describe what the invention really is. Evans v. Eaton, 7 Wheat. 356, 5 L.Ed. 472, and Jacobs Mfg. Co. v. Almond Mfg. Co., 177 F. 935, 101 C.C.A. 215 (C.C.A.2d Cir.), are cited in support of this contention. It is also urged that the patent is void because the specification 'by ambiguity and a needless multiplication of nebulous claims is calculated to deceive and mislead the public. ' In support of this Carlton v. Bokee, 17 Wall. 463, 21 L.Ed. 517, is cited. These contentions may conveniently be considered together. It is quite true that the specification does not point out what elements of the machine were old, but the invention and patent relate, not to a single element or an improvement on an existing machine, as in one phase of Evans v. Eaton supra, but to a combination of elements, producing as a whole, as is claimed, an entirely new device. What the patentees claimed as their invention are the combinations set forth in the respective claims; the devices of which the machine is composed are specifically described, their mode of operation given, and the new and useful result to be accomplished is pointed out. Unless defective in other particulars, the specification is therefore sufficient. Merrill v. Yeomans, 94 U.S. 568, 24 L.Ed. 235, Parks v. Booth, 102 U.S. 96, 26 L.Ed. 54. If in fact the combinations claimed to be new are not so, or if the invention is merely an improvement on an old device, the patent is void on other grounds. Nor can I perceive that the description of the invention is not 'in such full, clear, concise, and exact terms as to enable any person skilled in the art * * * to make, construct * * * and use the same. ' Rev. Stat. Sec. 4888 (Comp. St. 1913, Sec. 9432). The important feature of the invention, so far as the claims in suit are concerned, is the 'curler.' Not all of the claims of the patent however, include this as an element of the combination. It is stated in the specification that some of the advantages of the invention may be retained in a machine without a curling device. Because of this statement in the specifications, counsel for plaintiff seems to contend that the further description of a curler in the specifications makes the latter ambiguous and indefinite. This clearly is without merit. The curler is a very essential element of some of the claims, whereas it is not included in others. As it was an essential part of some of the claims, it was necessary to be described; but the inventors pointed out that there were other combinations which were claimed and in which the curler formed no part. Exception is also taken to the explanation of the meaning of the term 'curler.' The curler is first described thus: 'Adjacent to the front end of the pressure board E, we arrange a yielding pressure device I, under which the dough must pass before it enters the space between the belt and the board E, and which operates to curl or fold over the advancing end of the mass of dough, and which from its function we term the 'curler.' ' Then follows a description of the preferable form of the curler and the manner and mode of its operation. Later on the description contains this: 'By the term 'curler,' as employed in this case, we refer to a device which effects a curling, rolling, or folding over or other thickening of the forward ends of the dough masses, which device is untimed in its operations relative to the other moving and operative parts of the apparatus so that in operation it is always in position and ready to act upon the dough masses, whether they be delivered rapidly or slowly, or at regular or irregular intervals. ' It is urged that these two provisions make the meaning of the curler indefinite and ambiguous. It should, perhaps, be noted that the latter provision was not in the original patent, but was included in the reissue, apparently to meet some objections of the examiner. There is no inconsistency, that I can see, between the two descriptions. They both describe a device which causes a curling, rolling, or folding over of the dough masses before the latter are carried into the space between the belt and the pressure board. The effect of the latter provision was merely to indicate that the inventor was not to...