352 F2d 87 Baxter Bro v. Great Atlantic & Pacific Tea Company

352 F.2d 87

147 U.S.P.Q. 233

H. C. BAXTER & BRO., et al., Plaintiffs, Appellants,
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Defendant, Appellee.

No. 6516.

United States Court of Appeals First Circuit.

Heard Oct. 6, 1965.
Decided Oct. 29, 1965.

W. Brown Morton, Jr., Washington, D. C., with whom W. Brown Morton, Washington, D.C., Paul A. Wescott, Portland, Me., McLean, Morton & Boustead, Pennie, Edmonds Morton, Taylor & Adams, Washington, D.C., and Drummond & Wescott, Portland, Me., were on brief, for appellants.

Nicholas John Stathis, New York City, with whom William B. Mahoney, Portland, Me., John T. Kelton, Elmer R. Helferich and Watson, Leavenworth, Kelton & Taggart, New York City, were on brief, for appellee.

Before ALDRICH, Chief Judge, HAMLIN, Senior Circuit Judge,1 and McENTEE, Circuit Judge.

PER CURIAM.

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1

This is an appeal from a finding of invalidity of a process patent for pretreating French fried potatoes so they will fry to a substantially even color. The facts and an extensive discussion are found in the opinion of the district court, 236 F.Supp. 601. Without deciding whether the evidence justified a conclusion that the patent claims in suit are invalid because wholly inoperative, we think the evidence supports the court's holding that they are invalid under 35 U.S.C. 112 because of the extent of experimentation required of one skilled in the art in order to ascertain their 'teaching.'

2

Affirmed.

1

Sitting by designation