Greening Nursery Co. v. J & R Tool & Manufacturing Co.

S.D. Iowa

Greening Nursery Co. v. J & R Tool & Manufacturing Co.

252 F. Supp. 117, 149 U.S.P.Q. (BNA) 337, 1966 U.S. Dist. LEXIS 10311

CourtDistrict Court, S.D. Iowa

DecidedMarch 31, 1966

DocketCiv. No. 5-1395

StatusPublished

Cited by2 cases

This text of 252 F. Supp. 117 (Greening Nursery Co. v. J & R Tool & Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Greening Nursery Co. v. J & R Tool & Manufacturing Co., 252 F. Supp. 117, 149 U.S.P.Q. (BNA) 337, 1966 U.S. Dist. LEXIS 10311 (S.D. Iowa 1966).

Pincite

Opinion

HANSON, District Judge.

This is an action brought by plaintiff, The Greening Nursery Company of Monroe, Michigan, against defendant, J and R Tool and Manufacturing Company of Des Moines, Iowa, for infringement of United States Patent No. 2,847,808 which, had its inception by application filed in the United States Patent Office on September 6, 1956, and conclusion by allowance to the plaintiff on August 19, 1958. The machine has been entitled a “Tree Wrapping Machine.” Plaintiff charges that the machine sold by the defendant patented September 26,1961, bearing No. 3,001,345, which was filed on June 17, 1959, called “Bush Packing Machine” infringes the plaintiff’s machine and, accordingly, plaintiff prays for an injunction against further infringement of the patent and an accounting for profits and damages.

Only claims 1¹, 2 ², 5 ³, 6 4, and 7 ⁵ of the plaintiff’s patent are in suit.

[119]*119The defendant has denied that it infringes the plaintiff’s patent and has filed a counterclaim by declaratory judgment asking that the court hold the plaintiff’s patent known as the 808 patent in suit invalid and/or so limited that defendant does not infringe any of the claims thereof.

Thus it must be clearly seen that the normal problems of patent cases involving infringement and denials of infringement and pleadings by counterclaim of invalidity are before the court.

The record by way of stipulation and pretrial order clearly establishes the jurisdiction of the court over the parties and the cause of action. It is further clear that there is no question of ownership of the patents involved.

It appears without question that the defendant began selling its machines which are here charged to infringe on or about June of 1961. All machines involved herein as they relate to the parties plaintiff and defendant are claimed to be designed so as to rapidly and properly package the roots of bushes, shrubs, or trees in bags. This packaging is said to prevent the roots from drying and dying until they can be properly used by the consumer. In both the machines certain types of packing material such as shingle tow, peat moss, excelsior, and saw dust are used in the bag. It is the intention to keep the roots moist and free from air. The machines are meant to provide a good horticultural package properly packed with roots and packing material. [120]*120In both of these machines a bag is supported so as to receive the root end of the plant or tree and the packing materials which are pushed from the forming mechanism by a pusher element. It is obvious that both of the parties involved in this cause are in substance using a U-shaped form of pusher. This is said to be necessary to eliminate damage to the plant or tree being packaged.

Insofar as these machines are concerned, the greatest point of dispute centers around the plaintiff calling its package forming devices “troughlike means” and as stated by the defendant himself: “The propriety of the terms ‘trough’ and ‘cover’ as applied to defendant’s machine is an issue in this suit.” It particularly appears to the court that it is perhaps the main issue.

Plaintiff’s exhibit 1 dated as of August 19, 1958, describing patent No. 2,-847,808 (showing inventor to be J. W. Romine) in the first and second paragraphs thereof states as follows, to-wit:

“This invention relates to an improved tree bagging apparatus and more particularly to improved apparatus to facilitate the bagging of tree roots together with material to preserve the roots for shipment and storage.

One object of the instant invention is to improve tree root bagging apparatus. Another object is to provide improved apparatus for packing preservative material around the roots of trees and for automatically inserting the roots together with the preservative material into a bag or wrapper. Another object is to provide improved apparatus to support a tree, to compress preservative material around the roots thereof, and to insert the roots together with the preservative material into a wrapper while maintaining the roots and the preservative material in a shaped, lightly compressed mass.”

Plaintiff’s exhibit 10 dated as of September 26,1961, describing patent No. 3,-001,345 (showing inventor to be Z. C. Zeller) in the first paragraph thereof states as follows, to-wit:

“This invention is a bush packing machine. It consists generally of a pair of spaced shoes that are more or less semicylindrical in shape which makes it possible, when they are moved close together, to slip a bag or sack over the roots of a bush or shrub, along with the packing material used around the roots in shipping, confined between them. The device also provides structure for modifying the machine to adapt it to a variety of different sized bushes and shrubs. Once the bag or the like to cover the roots of a bush is embracing the outside of the shoes, an ejecting mechanism forces the bush along with the bag surrounding the roots off the shoes. As soon as the bush has been removed from the shoes, the shoes open up again to permit insertion of a fresh bush along with the packing material to go around its roots. A safety structure is included to prevent the shoes from coming together accidentally.”

The plaintiff says in this case that the patent claims in suit are supported by the disclosure of his 808 patent and that all of the elements called for in the patent claims hereinbefore set out are present in defendant’s accused machine resulting in a direct infringement by the defendant. The defendant, on the other hand, contends that his machine although producing the same end result as the machine of the plaintiff, differs in the means for attaining the result and in the manner in which the elements operate and cooperate to produce the result. He further asks declaratory relief by urging strenuously upon the court that claims 1, 2, 5, 6, and 7 of the 808 patent are completely anticipated and, therefore, invalid in view of the prior art patents and particularly as they relate to what is known as the Gribner and Field patents. By reason of all these contentions, the following exhibits are set forth and are found to be issued pursuant to the dates proclaimed upon the exhibits: A, B, C, D, and E.

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