THE CoBVALLIS FBUIT Co.
CURRAN and others.
(o.rcuit Court, D. Oregon.
A machine for drying fruit, which employs substantially the formg and
nechanical contrivances of the one patented to William S. Plummer, is an i Ifringement of such patent, although in some respects it is an improvement , Ipon the latter.
A patent is primajacie evidence that the patentee was the inventor of the thing patented, and of its novelty and utility.
Suit for Injunction. Wallis Nash, R. S. Strahan, and D. R. Kennedy, for plaintiff. Cyrus A. Dolph, W. R. Bilyeu, and J. K. Weatherford, for defend",nt. DEADY, D. J. 'On May 22, 1877, a patent, numbered 1£11,072, was issued to William S. Plummer "for an alleged new and useful improvement in fl'uit-driers," for the term of17 years; and on October 9th of the same year a re-i8sue of said patent, numbered 1D5,948, was made to him. The specification I of the second patent states that"The object of this invention is to furnish an improYed apparatns for drying fruit, which shall he simple in construction, convenient in nse, and etleetive in operation, drying the fruit rapidly and evenly, aJl.cl which sh:ll1 be so constructed that it Illay be readily taken down, set up, and moved fl'omplace to place;" and that "the invention consists in the case provided in its lower part with a lining set at a little distance from its walls, the large door, the small door, the or slides to reeeive the fruit frames or trays, the doors, and the cover and· cap to allow the moisture-laden air to escape, to adapt it for use in drying frUit." I:
Having thus described his inrention, he claims "as new""The case, A, provided in its part with a lining, B, set at a little distance from its walls, the large door; G, the small door, H, the cleats or slides, I, to receive the fruit frames or trays, 'and the cover and cap, L M, to allow the Illoisture-Iaden ail' to eseape, SUbstantially as herein shown and described, to adapt it for use in drying fruit."
On December 1, 1870, the plaintiff, the Corvallis Fruit Company, became the lawful assignee of said patents and improvements for the county of Linn, Oregon; and on January 13, 1881, it brought this suit to restrain the defendants from infringing the same by the manufacture and sale of fruit-driers, in said county, "produced by the inventions and improvements described and claimed in said letters patent." On June 27th an application for a provisiona.l injunction
CORVALLIS FRUIT CO.
was heard upon the bill and stindryaffidavits, and the models of the respective machines. The Plummer fruit-drier is a wooden case, three feet six inches square and six feet two inches high, with a fixed iJ;lverted hoppershaped cap or cover, having an aperture in which a tube is inserted to allow the steam to escape from within. In the lower p",rt of the case is the hot-air chamber, with a lining of brick or metal at a little distance from the outer wall of the case, to facilitate the ascent of the hot air towards and upon the sides of the case, so as to dry the fruit evenly upon the edges of the trays as well as the center. The air is heated in this chamber by a box-stove or furnace, two feet long and one and a half feet wide. Above this cleats are fastened to the sides of the case, about four inches apart, upon which rest the movable trays containing the fruit to be dried, and in front of each tray iss. door that opens perpendicularly, through which it can b., taken out and replaoed. , The defendants admit they are maldng and vending a fruit-drier. in Linn county known 80S the "Thomas Fruit-drier," and claim; that it was invented by the defendant Charles Thomas, and that he has applied fora patent therefor. Upon ·the argument it was stated,by counsel for the defendant, that a decision was daily expected upon this application, and the consideration 6f this motion has since been delayed await the result of sllch application; but 8syet nothing ',: baa been heard from it, so far 8081 am advised. The Thomas drier is similar in form and operation to the Plummer drier, except that the space between the wall and lining of the hot air chamber in the latter is .carried in iihe former up' to the top of the case by means of metal lining a little distance from the walls of the case. The effect of this is to distribute the heat more evenly throughout the drying chamber, ancl to produce a greater uniformity in the results. The cap or cover upon the Thomas drier is flatter than that on the Plummer, and is movable.. It is als'o claimed that it is so shaped inside as that, when the hot, air from the space between the lining and the wall of the Gase strikes it, it is thrown downwl'\<rds and inwards upon the upper trays of fruit, which are otherwise the longer drying. The other differences are mere differences in form or mechanical contrivance, as in the 'shape of the stove and the door to the drying chamber, which latter if.? In one piece, and opens horizontally instead of perpendicularly. The continuation of the space for hot air on sides of the Thomas drier to the top of the case is probably a pa'tentable improvement on the PI1,l,mmer one; and it may be that
the change in the cap is also. But all the rest of the Thomas drier is substantially the same in form and operation as the Plummer one, and therefore an infringement upon the plaintiff's patent. Upon the argument counsel for the defendants qnestioned the validity of the plaintiff's patent, on the ground that it lacks novelty. But the patent is prima facie evidence that the patentee is the inventor of the thing patented, and of the novelty and utility thereof. Curt. Pat. § 470 et seq.; Seymour v. Osborne, 11 Wall. 538. No attempt has been made to overcome this evidence of novelty, except by the introduction of patents for drying or preserving fruit or vegetables, as follows: Nos. 121,569, December 5,1871; 121,795, December 12, 1871; 120,253, October 24, 1871; and 4,792, March 5, 1872. But all the machines described in these, except the last, are very different in form, operation, and mechanical contrivance from the PJummer drier; in particular, as they involve the use of machinery for exhausting or blowing the air into or from the machine. ' The last one does rely upon the natural tendency of h6l1ted air to move upwards, as the Plummer machine does, but its mechanism and contrivance appear much more complex and costly. It appearing, then, that the Thomas machine, although in one respect an improvement upon the Plummer one, is in other respects an infringement upon it, and that the defendants are manufacturing and selling their machine for considerably less than the price of the Plummer one, and thereby preventing the sale of the plaintiff's machine, to its manifest injury, a provisional injunction will be allowed until the final hearing 011, the further order of this court, upon giving bond in the sum of $2,000, with sureties, to the approval of the master.
COTE and others
(Circuit Court,' D. Massacltusetts. July 2, 1881.)
1. HE-ISSUE No. 7,356-BoOT AND SHOE STIFFENING MACHINE-ANTICIPATJONVALIDITy-INFRINGEMENT. Re-issued letters patent No. 7,356, granted October 24, 1876, to Louis for macllinery for forming boot and shoe stiffeners, !teld" not anticipated by letters patent No. 63,550, granted John R. Moffitt, April 2, 1867, for apparatus for molding and vulcanizing articles of rubber, and letters patent No. 135,150, granted January 21, 1873, to John Pearce, for machine for bending sheet metal; also, 'ldd fJalid, and infringed by machines constructed under letters patent No. 178,869, granted June 20, 1876, to John R. Moffitt, for and machine for manufacturing counter-stiffeners for boots and shoes.