Wolf v. Buckeye Incubator Co.

DONAHUE, Circuit Judge. This is an appeal from a decreq of the District Court holding valid and infringed the five several claims of United States letters patent No. 1,262,860 and the five several claims of the United States letters patent No. 1,263,138, issued April 16, 1918, to Samuel B. Smith, who later assigned the same to the Buckeye Incubator Company. The defenses are invalidity and noninfringement. Patent No. 1,262,860 pertains to a hatching method and improvements in incubators for practicing such method, and is intended for extensive operations, wherein, a chamber of large dimensions is designed to contain thousands of eggs in separate trays. Patent No. 1,263,138 relates more particularly to improvements in trays for holding and turning the eggs while they are being incubated; the object of the invention being to provide means whereby the eggs can be quickly and uniformly turned from one side to the other during the process of incubation. All the claims of both patents are in issue. The opinion of the District Court in this case is published in full. Buckeye Incubator Co. et al. v. Wolf, 291 Fed. 253. This court having reached the conclusion that the decree of the District Cottrt is right, for the reasons therein stated, it is wholly unnecessary to rewrite into this opinion a detailed description of the method of hatching, or of the incubators manufactured under these patents for practicing this method, or the reasons so fully stated by the District Court upon which are based its finding and decree that the claims of these patents are valid and infringed by appellant’s structures. In this court counsel for appellant place particular emphasis upon the claim that the complainants had not notified him, either actually or constructively, that the method of hatching, or the incubators designed for the purpose of practicing this method, were protected by [682] patents. This, of course, would not affect the complainants’ right to an injunction, but would apply only to the question of damages. The bill of complaint avers actual notice. The evidence offered by complainants in support of this averment is practically conclusive, not only of the fact that appellant had knowledge of the existence of these patents and that he was infringing the same, but also the further fact that complainants had given him due and legal notice thereof. It is also claimed on behalf of the appellant that, when this action was commenced, which he says was the first notice he had of the existence of these patents, or that he was infringing the same, he immediately made such changes in the incubators he had constructed and was then using that they no longer infringed plaintiff’s patents. This also relates solely to the question of damages, or rather to the infringing period for which damages should be allowed. It appears from the record in this case that the appellant, after the commencement of this action, placed boards overv the air outlets and operated his incubators by opening the doors from time to time at intervals during the day. It further appears that this method of opening the doors at intervals was adopted by complainants in the operation of the first 31 No. 7 incubators built by them, and that such instructions were issued to their customers, The claims of the patents in suit are not subject to such a limited and narrow construction as would permit this slight departure from the method of their operation to avoid infringement. The motion to enlarge the record by the introduction of further evidence tending to show prior public use must be overruled. The newly discovered evidence is cumulative merely, and not of such positive and irrefutable nature as would compel a different conclusion, nor does it appear that appellant exercised due diligence in the effort to secure and present,this evidence upon the hearing of the case. Society of Shakers v. Watson, 77 Fed. 512, 23 C. C. A. 263; Novelty Tuft Machine Co. v. Buser, 158 Fed. 83, 85, 85 C. C. A. 413, 14 Ann. Cas. 192; Lord v. Staples & Hanford Co., 148 Fed. 19, 78 C. C. A. 493; Banking Co. v. Afton, 134 Fed. 727, 67 C. C. A. 618. For the reason’s stated, the decree of the District Court is affirmed.