King-Seeley Thermos Co. v. Millersville Manufacturing Co.

296 F. Supp. 247, 160 U.S.P.Q. (BNA) 66, 1968 U.S. Dist. LEXIS 12325
CourtDistrict Court, M.D. Tennessee
DecidedJuly 9, 1968
DocketCiv. No. 4899
StatusPublished
Cited by4 cases

This text of 296 F. Supp. 247 (King-Seeley Thermos Co. v. Millersville Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King-Seeley Thermos Co. v. Millersville Manufacturing Co., 296 F. Supp. 247, 160 U.S.P.Q. (BNA) 66, 1968 U.S. Dist. LEXIS 12325 (M.D. Tenn. 1968).

Opinion

MEMORANDUM

FRANK GRAY, Jr., District Judge.

This patent infringement action was instituted pursuant to 35 U.S.C. § 271 by King-Seeley Thermos Company (hereafter King-Seeley), the owner by assignment of U. S. Letters Patent 2,753,694 (hereafter patent 694). The crux of the complaint is that Millersville Manufacturing Company, by the manufacture and sale of its “Sno-Flaker” ice producing machines, has infringed claim 4 of patent 694. Jurisdiction and venue are properly asserted under 28 U.S.C. §§ 1338(a) and 1400(b), respectively.

The invention embodied in patent 694, as well as the defendant’s machine, is designed to produce commercially usable flake or chip ice, that is, discrete ice chips of sufficiently small liquid content to prevent coalescence when stored under normal conditions. The components and mode of operation of the patent 694 machine are as follows:1

“[It] consist[s] of a vertical, elongated, cylindrical freezing compartment which is surrounded by a freezing jacket. Water is supplied to the cylinder through an inlet tube near the bottom, and is maintained at a uniform level. Within the freezing compartment is a rotatable auger with its blades closely fitted to the cylinder wall. The auger is rotated by a motor at a speed which permits ice to be frozen on the cylinder wall. The thin layer of ice is then scraped from the cylinder wall by the action of the auger blades, and conveyed upward as a hollow column of ice. When the ice reaches the top of the cylinder it is saturated with water trapped between the thin layers, and is unusable ‘slush ice.’
“The upper end of the cylinder is closed, with a stationary solid bronze unit extending downward within the cylinder to a point above the upper portions of the auger. This unit is referred to as a ‘breaker-head’ * * * the lower end having a beveled surface for peeling the ice from the auger and breaking and deflecting the column of slush ice and changing its direction as it is conveyed upward. Inside the breaker-head is a stainless steel ‘bushing’ or bearing, to keep the upward end of the auger shaft steady.”

Defendant denies liability on the following grounds: first, that claim 4 of patent 694 is invalid both as reading on prior art and as obvious at the time of the invention to a person having ordinary skill in the art and, secondly, that even if valid, claim 4 is not infringed by the defendant’s machine. Accordingly, the determinative questions before the court are the legal issue of the validity of claim 4 and, if this is resolved affirmatively, the factual issue of infringement.

I

Under 35 U.S.C. § 282, a regularly issued patent is presumed valid and a party asserting the invalidity thereof has the burden of establishing his assertion by clear and convincing evidence. Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983 (1937). Accord, Simplicity Manufacturing Co. v. Quick Manufacturing, Inc., 355 F.2d 1012 (6th Cir. 1966); Tillotson Manufacturing Co. v. Textron, Inc., Homelite, 337 F.2d 833 (6th Cir. 1964). In the instant action, the force of this presumption and the corresponding weight of the. defendant’s burden of establishing invalidity are increased by the fact that claim 4 of the patent in suit has been held valid by the Seventh and Tenth Circuit Courts of Appeals. King-Seeley Thermos Co. v. Tastee Freez [249]*249Industries, Inc., 357 F.2d 875 (7th Cir. 1966), cert. denied, 385 U.S. 817, 87 S.Ct. 38, 17 L.Ed.2d 56 (1966) ; King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir. 1965).2 While these findings are not binding upon this court, they are to be considered as strongly persuasive in the absence of any convincing new evidence of invalidity. American Photocopy Equipment Co. v. Rovico, Inc., 257 F.Supp. 192 (N.D.Ill.1966). See Cold Metal Process Co. v. E. W. Bliss Co., 285 F.2d 231 (6th Cir. 1960); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828 (6th Cir. 1956).

Upon consideration the court finds that the defendant has not introduced any new evidence which substantially contradicts the findings of validity in the Tastee Freez Industries and Refrigerated Dispensers decisions, supra, or which is of sufficient strength to persuade the court of the invalidity of claim 4. The dispositive issue herein, therefore, is whether the flake ice machines produced by the defendant infringe claim 4 of the 694 patent.

II

One fundamental premise of the law of patent infringement is that the patentee’s claim measures the grant. As stated by the Supreme Court in McClain v. Ortmayer, 141 U.S. 419, 425, 12 S.Ct. 76, 78, 35 L.Ed. 800 (1891), “nothing can be held to be an infringement which does not fall within the terms the patentee has himself chosen to express his invention.” Accordingly, the standard against which defendant’s machine is to be judged in ascertaining infringement is the following language of claim 4:

1. An ice chip producing machine comprising an elongated freezing chamber having an open end,
2. means for supplying water to the inside of said freezing chamber,
3. means for cooling at least a portion of said freezing chamber to freeze ice on the inside surface thereof,
4. an ice conveying auger rotably mounted in the freezing chamber with its spiral edge disposed in closely spaced relation to the inside wall of said chamber,
5. means for constantly rotating the auger to cause said spiral edge to shear off ice frozen on the inside wall of the chamber constantly to deliver ice to said open end of the freezing chamber,
6. and an outwardly inclined ice disintegrating and removing member positioned in said open end of the chamber and provided with an ice peeling moldboard-like surface positioned to engage ice carried by the auger, said constant rotation of the auger serving positively and constantly to convey ice to and force it against said moldboard-like surface to break up and positively remove ice from the auger and discharge it as discrete ice chips.

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296 F. Supp. 247, 160 U.S.P.Q. (BNA) 66, 1968 U.S. Dist. LEXIS 12325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-seeley-thermos-co-v-millersville-manufacturing-co-tnmd-1968.