Appendix — Popeil Bros. v. Zysset

Supreme Court brief1964

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Oltrce Supreme Court, U.S

FILED

_ . |. O8T 15 1963

S54... : .

~~ JSORR F. DAVAS, CLARK

IN THE

Supreme Court of the United States

hiseus nr Trem, 1965.

POPEIL BROTHERS, INC. -

Petitioner,

"9.

KARL ZYSSET and’ NEW-NEL

KITCHEN i RODUCTS COMPANY,

Respondents.

Petition ee a Writ of Certiorari té the

United’States Court of Appeals

‘for the Seventh Cireuit. i .

‘APPENDIX TO PETITION FOR CERTIORARI

GEORGE KB. CHRISTENSEN

38 South Dearborn Street

Chieago 3, [hinois

DtGaLp S. McDovuGaL.

13 South LaSalle Street.

Chicago 3. [lhimots

Jay ERENS

100 South Wacker Drive

“Chieago 6, [linois

Counsel] for Petitioner

Worston, Straws, Surtti & Parrersos

Qoms, MceDoveats & iat ’ ey

ee ounsel, .

The Scheffer Press, Inc—ANdover 3-6850

; { c a ,

INDEX TO APPENDIX *

PAGE

Constitutional provision aad statutes involved . Te

Court of Appeals’ apinion -of whieh review is pray ed,

ST TS SEA ih ccvecau cans asus akicatacoensris eemmacaneemalaautialaeaiediess 7a

Original opinion of District Court on merits, 167 F.

SPP Ps BOD ccesssscesseeescesesessnesessnessnesseessnans spetndoaseeiakerMiganisnntsy: Zia

First opinion of Court of Appeals, 276 F. 2d 354 ........ 36a

Findings and Cone lusions, of District Court re Wilson

& Macallay patent, 199 PF. Supp. 594 cn. cence: $a

Findins. c onclusic ms and Judgment of District c ourt

re aamages

Order of District Court denying relief from judgment 69a

Eixcerpts from testimony of Lawrenee C. Kingsland .. Coa

Iixcerpts from file wrapper of patent im suit wo... 74a

Mandates of Court of Appeals .....0.. ee paieisapecaics 88a

‘e

re, )

e s

a. la —

APPENDIX

”

CONSTITUTIONAL PROVISION AND STATUTES

_ INVOLVED |

-. CONSTITUTION oF THE UNITED STATES:

“Art. 1§8:

“The Congress shall have Power

“To promote the ‘Progress of Science and uset uMaArts,

by securing for limited Times to’Authors and hiventors

the exclusive Right to their respective Writings and D.-

“’ « .**

coveries :

FORMER PATENT ACT RECOVERY SECTIONS

Section 70 U.S. C. Prior to 1946: :

“The several courts vested with jurisdiction of cases

arising under the patent laws shall have power to grant

injunetions according to the course and principles of court

of equity. to prevent the vidlation of any rigi.t secured by

patent, on such teyms as the @ourt- may deen reasonable ;

and upon a qweeree being rendered in any such case for an

infringement the complainant shall be entitled to recover,

in addition to the profits to be aecounted for by thie ds

fendani, tue damages, the cemplainant has sustaine i thers

by, ead’ the court shall assess the same or cause the sam

i . - “ . ° . o .

to be assessed. under its direction. Tt on the proots it shal:

‘apperr that the complainant has sutfered.damage from ti»

infringenient or that the defendant has. realized protit-

therefrom to which the complainant is justly entitled, b

that such damages.or profits are not susceptible of eateula

tion and determination with reasonable certainty, the eourt

may, on evidence tehding.to establish the same, in ats es

cretion, receive opinion or expert testimony, Which is her

- d — 2a é— .

hy ‘deélared to be eompetent and admissible, subject to the

general rules of evidence applicable to this charaéter of

testimony >and upon such evidence and all other * evidence

— in’ the record the court may adjudge and decree the pay.

ment by. the defendant to the complainant of a reasonable

sun as profits or general damages for the infringement.

ra we (42 Stat. S92, 35 USC See. 70 (1940 Ed.}) a

"Section 70 U. 8. Code 1946 to 1952:

“The several courts vested with jurisdiction: of cases

arising under the patent laws shall have power to grant:

injunctions according to the course and pranciples of courts

of equity, to. prevent the ciolation of any right secured by

patent, on such terms as the court may deem reasonable ;

- und upon a judgment being re indered in ‘any case for an

infringement the comptaimant shall be entitled to: recover

general damazes which shall be due compensaiion for mak-

inw, using, or selling the invention, not less than‘a reason

able rovaity therefor, together with such costs, and inter-

est, as may be fixed by the court. The court may in its

‘diserction award reasonable attorney's fees to the prevail

Ing-party upon the entry of judgment on any patent tase.

: “he court iscauthorized to receive. expert oF opinion

evidence upon which to determine in conjunction with any

other evidence in the record, die gompensation for mak.

ine, using, or selling the invention, and such expert or opin’

lon evidence 1s deégiared to. be competent and admissible!

subject to the general rules of evidence applicable thereto

ee e160 Stat. 778, 95 TSC 60 (146 ed.) )

—3a-— .

The Patent Act, 35 U.S. Code, Sections as follows:

M8134. Appeal to the Board of Appeals

“An applicayt for @ patent, any of whose claims has been

tWice rejecyéd, may appeal from the decision ‘of the pri

-mary examiner to the Board-ot Appeals, having once paid

the fee. for such appeal. July JY, 1952, 6. 990, $1, 66 Stat.

fae aa .

“$14. “Appeal to Court of Customs aid Patent Appeits

“An applicant dissatistied with the decision of the Board ,

of Appeais niay appeal tothe Umited States Court of Cus

toms and Patent Apporls, thereby waiving his right to pro

ceed under section 149 of this title. A party to an inter

ferences dissatisticd with the decision of the board of pat

ent interferences on the questioncof priorny may appeal te

the United States Court of Customs and Patent Appeats, :

but such appeal shall be distaissed if any adverse party to

“such interference, Within twenty days after the appellant

has filed: notice of appeal aceording to section 142 of this

title, files notice with the Commissioner that’ he elects to

have all further proceedings conducted as provided. in sec

tion 146 of this tith. ‘Thereupon the appeliant shall have

thirty days therearter within which to file a etvil: action

- under section 146, in defanit of which the decision appealed

from shall govern the further proceedings im the ease.

July 19, 1952, 6. 940, 01, 66 Stat. $02, F

“A142. Notice wor appe al: { . ‘

“When an appeal i-taken to the United States Court,

of Customs and Patent Appeals,.the, appellant shall give

notice therecf to the Commissioner, and shall. tile in th

Patent Oilice jis reasgns of appeal, specitically set forth

—4a—

in writing, within such time after the date ef the deeision

appeuied from, not Jess. than sixty days, as the Commis-

sioner appoints. July 19, 1952, ©. G40, 41, 66 Stat. S02.

“S145. Proceedings on appeal

“The United States Court of Customs and Patent Ap?

peals shall, before hearing such appeal, ri. notice of: the

thine and place of the hearing to the Commissioner and the

parties thereto. The Comnussioner shall transmit to the

court certified copies of all the necessary original papers

and evidence in the case specified by the appellant and ans

additional papers and evidence specified by the appeiies

and in an ex parte case the Commissioner shall furnish the

court with the grounds of the decision of the Patent Office,

In Writing, touchins ‘all the points involved by tie reasons

of appeal. July 19.1952, 6. 950, 61, 66 Stat. S02.

“S144. Deciston on appeal

“The Lnited States CoutM of Customs and. Patent Ap.

peals, on petition, shall lear and determine such. appeu!

on the evidence produced before the Patent Otheé, and the

decision shall be confined to th pomts set forth an th

reasons ot appeal. Upon its determination the court shal!

return: to the Commissioner a certificate of its proceedings

and decision, which shall ke entered of recor Lin the Pat

ent Office and govern th: further proceedings In the case

~ July (YW. 132, 6a, ST, 66 Stat. SOZ.

“S140. Creel action to obtain pritent

“An applicant dissatustied with the decision of the Board

of Appeals may unless appeal has been taken to the United

States Court of Customs and Patent Appeals, have remeds

by etvil action against the Commissioner ino the United

States District Court for the District of Columbia if com

—

° c A .

meneed within such time after such decision, not less than

sixty days, as the Commissioner appoints. The eourt mas

adjudg« that such appleant is entitied co receive a patent

for his invention, as specified inany of his claims invobyod

in the decision of the Board of Appeal, as the facets ia the

‘i . ° a . ” x

ease may appear and such adjudication shall authorize the

Comimissione: to issue such patent on compliance with the

requirements of law. All the expense. of the proceedings. -

shall be paid by the. applicant. July 1, 1902, 6. 950, V1,

66 Stat. SOS" ;

(PRE Presumption of validity. detenses

“A patent shall be presumed valid) “The burden of estat

lishing invalidity oP patent shall rest oma party assertims

1t. .

“The following shali be defenses mans action involving

the validity or lafringement of a patent and shall be

pleaded :

"C1) CNommtrihgemensy, absenes of liability for mt rings

ment Or unentoreeability , |

eey st

(2) Tmvahidit,s of the patent or any elamiaim suit on

any ground speettied on part PP oof this tithe as a eondigiot

‘for patentability, e

"oy Pmvalidity of the patentoor ans elaim i suit for

failure to comply with ans requirement or sections T]2 er

PL of this title. : i

. ‘ '

"(4) Any other fect.or act ridide stecdeterse by thix tith

ou GQ a

“$234. Damages

“Upon finding for the claimant the court shall award

‘the claimant damages adequate to compensate for the

infringement, but in no eveht less than a réasonable

rovalty for the use made of the invention by the in-

fringer, together with interest and costs as fixed by the

court. +

“When the damages are not found by a jury, the

court shall assess them. In either event the court may

increase the ‘damages ap to three times the a camount

found or assessed.

“The court may reecive expeit testimony as an aid

to the determination of damages or of what royalty

would-be reasonable under the circumstances.”

poe, nen

(The Court Of Appeals Opinion Of Which Review °

r Is Prayed)

(7 Civ. JIS F.2d FOL, 37 USPQ 694).

ZYSSET et al. v. POPLIL: BROTHERS, INC.

Nos. 13939, 13940, 14007

“June 3, 1Y65 .

[Paragraph Numbers Supplied |

Before Scunackexpers, Castiz, and Kinicy, Cireuit

Judges.

Castiy; Circuit Judge.

(1) Karl Zysset, patentee, and New-Nel Kitchen Prod-

ucts Company, his livensee, sued Popeil Brothers, Lae,

for infringement of Zysset Patent No. 27susle. A> trial

restricted to the issues of validity of the patent-and its

infringement resulted: in a judginent for the plaitiffs

entered in October 195s. Defendant's appeals from that

judgment, and from -the Distriet Court's dental of 4.

subsequent motien for relief therefrom on the basis of

newly -discovered evidence, were considered by this Court

in Zysset ve Popei! Brothers, Inc. 7 Cir, 276 Fitd 354,

124 USPQ 20, cért. den. 3864. US. 826, 127 USPQ D0.

A detailed description of thie Zvsset device, a vegetable

shredder or Ghopper, and. its manner of operation, to-

gether with the claims of the patent, are set forth in that

opinion (pp. 355-356, LA USPQ ar 260-251) end need not

be repeated here. This Court affirmed.’ except as te claime

1, the judzment order of the Distriet Court ‘finding the

Zysset patent to be valid and infringed and enjoining the

defendant from turther mfringement,

, ‘Opinion filed February 11, 1960: modified and rehearing

denied Apri! 14, 1960, 125 USPQ°152; mandate issued May

18, 1960. :

‘hie oat

‘ [2] On the subsequent trial of the issue of plaintiffs’

‘damages, and of the defendant's counterclaim for breach

of contract and unfair competition,.the District Court

awarded judgment for the plaintiffs for $182,320.38, repre-

senting $126,103.12 for damages and $56,222.26 for plain-

tiffs’ attorneys’ fees and disbursements, and for costs.

The judgment was entered July 13, 1962.

(3] -Prior to the trial of the issue of plaintiffs’ dam-

ages the defendant on December 29, 1960, filed a motion’

seeking that the accounting which the District Court had :

_ ordered be terminated and that a final judgment be en-

tered for nominal damages. This motion was grounded

on the conte ntion that claim 2, the remaining claim of the

patent in suit. lacked noselty and patentable invention

over Wilson & MeCaliay Patent No, 207,146, presented as

‘ a’newly discovered prior-art reference. The motion was

heard on its merits and denied.

{4] Both plaintiffs and detiodiont appealed from the

July 13, 1962 judgment. Subsequently, on November 5,

1962, the defendant filed in the District Court a second

motion for relief from judgment on the basis of ‘certain

Swiss patents presented as newly discovered evidence ot

prior art invalidating the Zysset patent.’ The motion was

denied.

[5] ‘Plaintiffs on their appeal (No. 13939) contend that

the damages awarded are inadequate. Defendant on its

* The motion although captioned “Motion For Mitigation

Of Damages Or For Application Of The Rule De Minimus

Non Curat Lex’ was on defendant’s motion’ treated as a

motion under Rule 60(b) (2), Federal Rules of Civil Pro-

cedure (28 W'S.C.A.), for relief from the October am08 judg-

ment of validity and inffingement.

*The motion prayed for issuance of a certificate to this

Court requesting a remand of the cause pursuant to the pro-

cedure outlined in Binks. Mfg. Co. v..Ransburg Electro-€oat-

ing Corp., 7 Cir., 281 F.2d 252, 260-261, 126 USPQ 318, 326.

— 9a— e

cross-appeal (Na. 13940) and on its appeal (No. 14007)

contends that the court erred in denying the defendant's

_.Tespective motions for relief from judgment on the basis

of newly discovered evidence—erred in not holding claim 2

of the Zysset patent invalid—and, in. any event, that the.

court erred in awarding attorneys’ fees and disbursements,

and costs, to plaintiffs.

[6] Contrary to the interpretation defendant secke to

place on Zysset v. Popeil Brothers, Inc., supra, upon which

faulty premise defendant bases the relevancy of its newly

cited prior-art references, it is abundantly clear that it is

the single-piece sinuous blade in .combination with the

sinuous slot of the wiper cup, the housing, indexing”

feature and torsion elutch. all of which are included in

claim 2, which was held to constitute patentable invention.

It is the combination which was held valid and infringed.

—not any particular element thereof, peor se. In Zusset

v. Popeil Brothers, Inc., it was pointed out (276 F.2d 354

at 357, 124 USPQ 250, 252) that the sinuosity of the

. blade and slot in the wiper cup was an important element

in the “combination (lain. -d in the patent” and that:

“Tt eliminated the problem of particles wedging

between multiple blades without loss of the advantage:

of the additional chopping surfaces, and in. combina-

tion with the indexing feature produced a result.

beyond that of inere mechanical: improvement over >

existing arf. .A novel idea was incorporated. While

it took meehanical skill to adapt the idea to practical

use, and although the mechanies employed may have

been obvious, the idea was not. It possessed the ‘im-

palpable something which distinguishes invention > am

simple mechanical skill. Great At lantic & Pacifie Tea

Co. v. Supermarket. Equipment Corp.. 340 Tas. 140,

71 S.Ct. 127, 128, 95 L.Ed. 162, 87 USPQ 303, 305."

(Emphasis supplied.)

— 108 —

- [7]}) We deem it unnecessary for the purposes of this

case to consider or pits s upon the propriety of the Distvict |

Court's action. in entertaingng the defendant's motions of

December 29, 1960 and November 5, 1962, either from the’

standpoint of their timeliness under the limitations of

Rule 60(b)¢ or in view of the previous mandate of this

Court affirming the validity... of the patent elaim tke

motions attack anew. ayer ee such considerations we

are’ not persuaded by de ndant’s contentions that its =

failure to produce the newly cited prior-art referen ces at

the 1958 trial on the issue of validity was not due to lack

of diligence on its part. But more. important we perceive

nothing in this newly tendered prior art which requires

a change in the original conclusions of law and judgment.

‘with respect to thre validity of claim 2 of Zvsset Patent

No. 2,782,826.

[8] The newly cited vrior-art reference’ relied upon im

_connection with defendant's Devember 29, 1960, motion Ts

Wilson & MeCallay Patent No. 207,146 covering a device

for use in cutting yfug tobacco during the process of

manufacture, the chjeet being to eut pieces of plug tobacco

in a zigzag or curved form to facilit. e the adherence of

the sections one to another when subjected to pressure in

the finishing process and: to enable consumers to identify

the manufacturer by the shape of the pieces. Curved or

Zigzag knives were emploved in the cutter- head,.and_ be-

tween them corre sponding|y- formed clearing plates. After

a cut is made the pieces gre separately coverea with a &)

wrapper.and then brought together under pressure to

form a single ‘plug which can be broken apart for the

retail trade. Except for disclosing a sinuous type of knife

blade Wilson & MeCallav is no better a pricr-art ‘reference

than those original cited, and considered and rejected,

“Cf. Marcon’ Wireless Telegraph Co. Vv. United States, 320

U.S. 1, 47-48, 57 USPQ 471, 491. |

Agus es

in Zysset V. -Popeil Brothers, Inc., supra.’ Its disclosure

of a sinuous blade and a-clearing plate is not an enticipa-

tion of the combination of Zysset. Nor ix Wilson & McCal-

lay addressed, to either the purpose or problems of Zysset

It uses a plurality of knives in a single cutting actin

-to obtain pieces of desired shape so that they will adhere

when re-united and when eventually re-separated will

serve to identify the product. Jt is not a shredder or

chopper using a single sinuous blade in repeated cutting

operations, each from a ‘different position than the previ-

ous cutting stroke, and incorporating the combination ° of

features which endowed Zysset with the quality of inven-

. tion over the separate clements employed. a,

“{9] The newly cited prior-art referen@@s now ried

upon by defendant in connection with its November 95,

1962, motion consist of Galant, Swiss Patent No. 261,313

and Hofmann, Swiss “Patent No. 269, 458° Neither’ of

these discloses or anticipates the combination of Zysset.

Galant, a fruit and vegetable cutter, and Hofmann,- an

onion chopper, each disclose a wiper or brush-off vai

through which operate multiple straight blades set ata

angle to each other. Except for disclosure of a saa

‘thiev are no better prior-art references than those origi- .

nally relied upon.

[10] Defendant’s contentions with respect to the dis-

_closwres-of Wilson & MeCallay, Galant and Hofmann are

’ See 276 F.2d 854, pp. 356-857, 124. USPQ 256, 251,-for

‘prior-art references considered , cand rejected. > ;

No. 272.785: as -newly discovered evidence but defendant .

abandoned such assertion when it was revealed that it had

.been cited in an interrogator” answer filed. by plaintiff

Zysset in May 1958. Piller, an onion cutter, like Galant and

Hofmann, had a wiper but the multiple blades were slightly

curved.

— 12a — : lb

predicated upon its faulty assumption that it is one ele- |

ment, cr something less t! xn the whole of the combined

elements, which is relied upon in Zysset to constitute

patentable invention), And such is not the case.

[11] On the question of defendant’s diligence: in tae

discovery of these belated references it is noted that all

three of the newly cited patents are shown by the record

to be classified, and copies thereof physically present, “in.

the same Patent Office classification, Class 146, Sub-class'S >

* 160, as Zvsset Patent No. 2,782,826, Defendant attempts

to negate lack of diligence’ on its part-in connection with

its faure to originally cite Galant and Hofmann by

reference to an affidavit by a Washington, BD.C., patent

attorney that although Galant wasYeecived in the Patent

Office in 1949 and Hofmann in 1950, the affiant, iy 1962, .

‘could tind no reference in the routing records of the

Patent Offiee Library to show’*that they had been -re-

ferred, to Division 5 which issued the-patent in suit al-

though they were then in the files of such Divisio., But

the ack of a reeord of such. routing dees not serve to

esiablish that these two Swiss patents were not available

in Class 146, Subclass 160 and that a proper search prior

to the 1990S trial or. the issue of validity would not have

revealed them. It does not serve to excuse what on its

face shows lack of diligenciton defendant?s part in so far

‘as discovery of this particular, although worthless, prior.

art ix concerned. Defendant offers no valid reason to

excuse its apparent lack of diligenct witu respeet to the

discovery of Wilson & MeCallay, similarly a reference of

ne import. As to Wilson & McCal lay, defendant appears

to rely on the faulty premise that i —o t-until the

‘opinion of this Court in Zysset v. Podeil Brothers, Inc.,

976 Vdd 354: 124 TSPQ 25t, that Wilson & \eCallay

became of, significance But such arguinent falls with

the premise, heretofore dboonsty ted unsound upon which

- jit is based.

—13a— °

{12} We ' perceive nip error in the Di: strict Court's”

denial of defendant's motions tor ‘relief fron. jadgmeat. :

We proceed to consideration of the issues present ted in

connection wWitlr the ‘damages awarde d and the allowance

of attorneys’ fees and costs. °

*(13) A statement ef account filed by the defendant

pursuant to.order «f the District Court disclose~ that it

manufactured, and sold 3,152,578 infriaging food choppers.

The dollar amount of such sales. is stated. to be $2.98],

464.70. On the basis of cost items set forth an the state.

ment of account the court found that the net profit accru

ing to the defendant fron. the manufacture and sale of

infringing devices was $455,293.01, in the computation: of.

which amount: deductions as casts, objected to by’ the

plaintiffs but allowed by the court, were made in the

amount of $42,830.59 representing expenses incurred by

defendant for attorneys’ fees and disbursements in this

litigation, 100,192.44 representing a proportionate alloca-

tion to the: infringing products of the compensation fais ;

to defendant's officers, and $2u.. S56.0S representing & loss

sustained by the defendant in connection with® the sale

of tht infringing deviees during -the period sommencink

August 1, 105%, and terminating Fehbruery 12. 1960. AL

though -al! three deductions were : allowed hy the eourt in

its, findings, in its ronelusions ef daw th eourt conchided

thit a “defend ee costs of litization,.* * *-and salaries

-of officers in 2 closely held carporttion are not properly

deductible in arriving at the net profits”.

{14} ‘The District Court found that an award té plam .

tiffs based only upon a reasonah le rev altyv would be in con

’ formut? with the law; thar upon thi basis of the testimony:

a farr. royalty r avinent would be 4 cents for each of the

infringing devices sol’ by defendant; and that an award

to plair‘iffs based upon seh reasonable rovalty “would.

<c-

attorneys) fees. er S

a4 {5 The plaintiffs contend that the. court erred in. not

Measuring their damages by defendant's profit from the

‘sales- of infringing devices computed without allowance

hegte

hei Be at

iy i ie

together with attorneys’ ‘fees,’ be adequate compenéation

for defendant’s ‘infringement?’ The $182,325.38 judgment

entered for. the plaintiffs, represents - such royalty and

of the deductions for cost to w hich&phjections were made.

. The -defendant contends: “that on the facts and circum-

_ Stances - presented by the record an award of damages

measured by ‘ts profit is not warranted. It .further con-

tends the court erred in allowing plaintiffs their attor-

néys' fees and disbursements— that the record “does not

_ show -the “exceptional! cireumstances” requisite to the

justification of ‘such allowance," nor did the court make

specific finding as to the existence of such circumstances:

And that. 35 U S.C.A. $288 precludes allowance of costs

to-plaintiffs.

[16] The statute governing damages in patent in:

fringement cases, 35 U.S.C.A™~§ 284, in so far as here

pertinent, provides: ‘

‘pon finding. for ‘the. eluant the court shall

award tlre claimant damages adequate to compensate

for the infringement, but in no event less than a

reasonably m@yalty, for the use made of the invention,

“by the- infring. together with interest -and costs as

oh - fixed by the court.” °

17) e statute prescribes a ‘reasonable royalty as

the minimum measure of damages. But it does not pur-

{ .

’ The: reabotiableness of the attorney’s fees and disburse- °

'-Ments claimed were stipujated, but not their allowance.

_ *35 US.C.A. § 285 provides: ‘The court jin exceptional

cases may award reasonable attorney fees to A prevailing

party.” ”

etd

— lia,

port to restrict the allowance of damages meakuged by

the infringer’s profits where proof of such profits cah be

and is made, arid where under the pringiples recognized

“in the decisions sucti measureof damages is otherwise

proper. In this connection we agree with the observation

made*in Ww m. Bro’. Boiler d& Manufacturing Co, v. Gtbson-

Stewart hk 0,, 6 Cir., 312 J 2d 385, 386, 136 USPQ 239; 240,

to) >the effect that in such a ease “if profits are susceptible

‘of determination, no royalty should be awarded”.

[18] .The action of Congress in adding its sanction to

the already judicialty. approved use of a “reasonable

royalty” to measure damages for infringement (Cf.

Dowagiac Mfg. Ceo. v. Minnesota. Moline Plow Co., 235

“U.S. 641, 648),-and establishing such measure-as marking

the ‘minimum below which such damages should not fall,

certainly evinces no intention to substitute “reasonable

royalty” as ati exclusive measure of damage.’ This is fully

borne out by the record of the committee hearings® on the

proposal,.to add the provision relative te reasonable

royalty to 38 U.S.C: § 74, the section from w Rich pyesent

§ 284 is derivative.. <i | é' a

(19) An infringer’s profits are a traditional measure

of damages. Coleman \ Holly “Mia. Co. 9 Cir, 269 P.2d

660, 663, 122 ESPQ 559, 560-561. Such! profits may be

the measure of damages suffered, even though the statute

does ‘not prescribe that “prafits” aré to be retovered as

such. Graham v. Jeoffroy Mfy.. 5 Cir, 303 Fz it tay 4,

116 USPQ 542, 543. But whether an infringer’ S profits

are to be utilized as the measur of the “damages ade-

° Hearing on Januam 29, 1946 on HR 5231, ~~ Com-

mittee on Patents, 79th Congress, 2d. Session, pp. 11, 17-

19, 21. Senate Committee on Patents, Report No. 1503,

July 14, 1946, 1946 U.S. Cong. Service, pp. 1386-7. And see:

94 Cong. Record 1857 (1946).

q . o. . -

; : a ’

Y : < oats 16a —— ? Pa ol

: . J

quble 16 compensate for the infringement” to be awarded:

PuUrsuAbt to © 2Kd poust, a our opinion, depend upon the

farts of the individual ease Cf. Rie Wil Cao v. E. B.

Kaiser Co, 7 Cir, 179 Fl2d 401, 407, &4 CSPQA21, 126-

127 aes :

y-. me : a’ ;

140) Here the aetual profits of the" deféndant: were.

“determinable and were evidenced by defendant's own ac-

counting Unless the nature of the ease makes the employ-

‘nent of such mensure of datnages improper or inequi-

talifed ot should apply. dncits infringing choppers’ defend

_ unt att plove TL the combination of Zysset. There is nothing

in the record to support a chain ‘that the marketable —

Value of the int ringing “devices was attributable to some —

other feature, patented or unpatented. ‘Thus there’ was

ho heed to estibly sti, as was the’ case in National Rejectors,

lnc © ABT Myra. Corp.. 7 Cir. ISS F.2d 706, 709, 89°.

USI i O08, St ls where the intranet device incorporated

other features heensed tinder other patents, what the

. ° 7 . 4 . . ier

Court there cheiraeterized as the “raticy of the entire

itacaetable value cof the infringing device being solely

attesbutable foobut the ome patented feature-—the imnmreve-

ett ot ote TOL the parts of che mechanism, covered I

. ie : ’ . : :

plarmeelil’s patent oun ordet to yUstity an award of th

. pie . . ’ y . . ¢ :

defetcdhati ss enmtiore profits to the plage? Chat “Liu ndaer

hood

steel cuetGiimstanmeces, che-eenttime propes hed moe to the. Main-

oy rn } ge <% . is. >

crf does trot tamer the RPVICRTLOTE OF The Pruie’ to suach

; ' wes : i R

MEUALIONS Mor UNiteale ACNIMST Is apuieation fore

. -- s .

ne rer 5 . . .

Lott. The Distreet Courts rereetom of protrs as a

> . a ‘ e4 , > ee rs . : Vey sea e + > 4 ;

Leesan are, of darrages att Us adoption a Wl ing

frum: the evidence fo comsfiture a reasonable tovdice whiter

. * +e . « rs

Come the: withs “rr had oh Feagdy Watt . abe kbwere fo “+o LeeIgte.

culipernsatien for defemdarn s crcromwernmrn' annedqes. cp

- de predicated upotorts tindeng ae USPQ i Ma

ee ss : o

- —lia—

teen Sa [T |his: is one of those rare: cases in which

an infringesie nt has been a blessing im disguise; t

only the skill, salesmanship and business acumen of:

defendant and its principal affies a agen Popette

has brought a financial reward to the plaimti? in

the form of a fortuitous windfall if this mula ie

finally collee ted. eee

ae . ¢

[22] The record does disclose that defendant was

industrious in the pursuit of its @fringitte activities and -

through ‘employment of demonstration: techniques: and a

~ “sales pitch” sought: to TWH exploit the marketability off

‘food choppers Incorpyrating the combirintian features: of

the Zvsset patent. Prt

it required no unusual business neumen to fecognize the

existence of a wide-sprend aarkef for such a household

‘device. and the possibility cof profit inherent oan att:

marketing. The inferenes. that at wa: only the “saleonan

“ship” of the defendant that: anabled at to dispose of

it took mooskall fo mfringe, and

,lolors infringing chop pers for $ 26 | 464 70 during the

period of its infringemenP ofthe Zyoset pi! entas withont

substantial support in the reeord. Comparison of ror

parable production’ periods of the defendant and New

Nel, the ‘plaintiff-licenset:; shows no’ great disparity mn the

sales of either. Moreover, when after February 12, 1960

the defendant altered its remnoning stotk Of infringing

- chopper: to make therm non-infringing. ‘and gnanufartured

: e } + ; ’ ra ‘ cre

-ONnIV MON-INTring~ing choppers, Eney Were Ming oo

With the purchase of one ef defendant’s other product:

. . , - : 5

- altro .

@ salad maker. bheag

. ; . :

797 r ‘ Lat - § ;

° 4uyt . - * . . ficr* fe ana . oreo

‘ Lew pe) Abe iY. ‘a iS event Jue Ae. ONGaN WNARCIA

=e , :

+s 7? aoe ? >. 454 i™~ a. ty '

*Suce con” if rege ping 4s vile A 58 6 ifi. inge rT yes nits if

t ?

7 7) reor ‘ <t - -e . VT)\o m3 - al BE «a eee £8 r¢ * f:y,* ee te

our «& J pindan Jae Geri sits GH IAs aide eet eet Oc ere te ee pieteed i a,

- v

24 ee 2 = ; n i, - «- ate 2 KH .y Cw- orve

to Defendant did cheaner the construction of i infmngnys

a avr . a7 ve ‘ en > hie rn r rating

chopper: and br- aucresaive. prine reduntiona culronating

. db PE es > _ tr Aves ‘ ~ wee tito

- appro: imate: au’, actnieved an .increaaec S2ies YOIUMNEe.

: 18a

. Tecovery of but the statutory minimum, measure of dam-

ages—a reasonable royalay. é A ahs

(24) From our-examination of: the record we conclude

that the District Court erred in not awarding plaintiffs

damages measured by defendant's’ profits from infringe-

~ ment. The court did make findings with Tespect to such

profits. It is unnecessary to a ‘proper consideration and

disposition here that further findings be made. We need

but “consider whether the court in its computation of

profits erred in allowing the deductions to which plain-

tiffs objected. ' (

{25} The deduction sian for expenses incurred by

defendant for attorneys’ fees and disbursements in this

litigation was improper. Graham v. Jeoffroy Mfg., & Cir.

.253 F.2d 72, 76, 116 USPQ 542; 545; Oud W ell Improve-

ments Co. v. Acme Foundry d Machine Co., 8 Cir., 31

F.2d 898, 900;°Cf. Computing Scale Co. v. Toledo Com

puting Scale Co. , 7 Cir, 279 F. 648, 660, 677.

And the lose sustained bythe. defendant when it dras-

tically reduced the price of its infringing choppers to®

ward the. termination of the infringement period was

not a permissible deduction from the profits it had thereto-

fore made. Duplate Corp. v. Triplex Safety Glass Co.,.

298 U.S. 448, 457-458, 29 USPQ 306, 310; Starr Piano Co.

v. Auto Pneumatic Action Co., 7 Cir. 12 F.2d 586, 589.°,

26] The $109,192.44. which represents a proportionate

allocation to the infringing products of. the compensation

paid to. defendant's three corporate officers, who are the

owners of the corporation, is not a permissible deduction.

. Graham v. Jeoffroy-Mfg., 5 Cir. 253 F.2d 72, 76,:116 USPQ;

542, 545; Flat Slab Patents Co. v. Turner, 8 Cir., 285 F.

257, 283.

plaintiff: s.

—19a—..:

[27] Adjustment of the defendant's profits, as found.

* by the District Court on the basis of defendatit's acéount-

‘ing statement, by the elimination of: these three deduc-

tions-which the court allowed over the objections of the

plaintiffs, results in the profit figure $636,672.12. It is

our conclusion that the plaintiffs are entitled to Nae tal |

for that amount. coe .

. The District Court’s inclusion of piaintiffs’ ‘attorneys’

fees and disbursements in the judgment it awarded was

not predicated upon a finding of “exceptional circum-

stances” justifying such an allowance under 35 U.S.C.A

§ 285—but was ostensibly for the purpose of augnmienting

.the award of damages computed on a reasonable royalty

basis. We are of the opinion that the interest of justice»

do not require ‘that we remand for a finding as to the

existence of a basis for an award of attorneys’, fees to

. (28) ‘The question of costs is‘in our view mandatorily

governed by 35 U.S.C.A. 288. “That section provides:

' “Whenever, without deceptive intention, a claim of ©

a patent-is-invald, an action may be maintained for

the infringement ofa claim of the patent which may

- be valid. The patentee shall recover no costs unless

ga disclainter of the invalid clkim has been entered

at the Patent Oftice before the Tmencement of the:

suit”. : ;

Plaintiffs’ disclaimer cf ENTER 1 was not filed ‘until July

12, 1960, Jong after che comluencemént of this suit, and

subsequent to the determination madé by this Court on

the appeal of the judgment of validity and infringement

(276 F.2d 334, 124 USPQ 250). In view of this the

plaintiffs are precluded from recovery of costs in the

District Court or upon these appea's. Liquid Carbone

Co. v,.Gilchrist, 7 Cir, 253 F. 54, 58-59; Gottschalk Mfg. -

;

— 20a — :

Co. v. +. Bptthotia Wire & Tinsel Co., 1-Cir., 75 F.2d bur

908-909, 24 USPQ. 423, 424.- @

[29] In Appeals Nos. 13939 ani 13940, the judgment

order of the District Court entered July 138, 1962, is re-~

versed in so far as it awards damages and ‘attorneys’ fees

and disbursements in the sum of $182,325.38, and costs;

the cause is remanded to the District Court with ingtruc-

_tions to vacate that portion of its ‘judgment order of

July 15, 1962, and with directions to enter judgment for .

the plaintiffs inthe sum of $636,672.12, without costs but .

with interest from the date of its entry.

In Appeal No. 14007, the judgment order of the District

Court entered November 13; 1962, is affirmed.

Neither party is allowed costs in this, Court in these

appeals. + *

f ;

| @

6 .

2 —21a— cree cee

(Rarlfer Opinions In The any

ORIGINAL OPINION OF DISTRICT COURT |

a - ON MERITS .

: tCaption— iv. ,.* No. 57 C7643) * maa

— States District Court’ . |

_D. Iinois, E..D. sty et

! Oct. 3, 1958, (167 F.Supp. 362) |

PERRY, District Judge.

This action came before the Court on the Amended fs

-Complaint of the plaintiffs against defendant, charging °

infringement by defendant of United States Letters Patent

No. 2,782,826 ‘isgned to Kar! Zyssét, on February 26, 1957.

Defendant filed a Counterclaim praying for a declaratory

judgment findmg the patent. in aN be invalid or not_

5 infringed by defendant. The structuré charged to infringe ,

both claims,of the patent in suit by the Complaint is a .

food shredder identified herein as- Plaintiffs “Exhibit 12.

~~" Defendant “subsequently amended its counterclaim to ask

for, a declaratory judgment that<a second form. of food

shredder made by it subsequent to ‘the commencement. of

this action and identified as Plaintiffs’ Exhibits 27 and *

j 28 does not infvinge the patent in suit. .

Upon full consideration’ of the ‘heel herein, including

the testimony of witnesses in open‘court and_the exhibit-~———~~

_ offered and -reeeivedir evidence, the Court firids as fol-

lows:

—. ,

Finpivas. OF meas

1. This action was filed on or about April 29, 1957,

charging infringement of “United | States Letters Patent

No. 2,782,826 ‘by food shredders or choppers manufactured |

‘and sold by defendant since the issuance of said patent —

on February 26, 1957, the particular product, being. charged.

to infringe all of the claims: of said patent being identi-

fied herein as Plaintiffs’ Exhibit i2.

2. The patent in suit was issued to plaintiff, Kar]

Zysset, of luyss, Switzerland, and there’is no evidence

that the patent has ever been assigned by said .plaintiff —

to any other party. On April 2, 1957, Karl Zysset granted

to Arthur 0. Nelson and Harold Newman an exclusive

jieense under the patent. in suit: to maké, use and sell the

patented invention and that exclusive license‘ agreement .

~ was transferred, im writing,.on. July 10, 1957 to New-Nel

: Kitchen Products C ompany, of Chicago, an Illinois corpo-.

; ration, party plaintiff herein, as shown in Plaintiffs’ Ex-

hibit 5, and’ the plaintiffs, together, own all of the rights

‘ under said -patent ‘in suit.

8. Defendant, Popeil Brothers, Inc.,.is an Illinois cor-

- poration and has its Rrineipal ae of. business. at Chi-

CALO, Iliinois. , | ee

4. -The eartien, by their counsel, pr that the

defendant, pricr to the filing of this action, made and

sold vege ‘table shredders or choppers of the type identi- .

fied heréin as Plaintiffs’ Exhilit 12° and that evidence

showed: that er made and sold sych deviees subse-

quent to issuance® of the patent in suit and- continued,

to make and sell such devices after the filing” of this

action.

~ §. Be “om the patent in suit had been siuinel and

issued by the United States Patent Office and while the

“— 23a — ae

application therefor, was pending in the’ Thiited States

Patent Office, thy defendant purchas'd iy Chicager avege

table shredder or chopper made in Switzerland under

the .authority of plaintiff, Karl Zysset, and such. deviee —

* was taken to the. office ag the defendant company, taken

_. apart and earefully examined by defendant as fe the form

“of its nianufacture and method of operation. Said device

sO ‘purchased by the defendant .and marked Plaintiffs’

_ Exhibit 6 was used by defendant as the rhode! from which

it made production drawings, molds, dies and. tools for _

the subsequent’ manufacture by defendant 9! the. strue-— f

tures charged to infringe - the patent im suit. Only

slight changes were made from the commercial structure

__-_purelinsed by defendant to produce the artiele charged to

infringe, such char@es as there were primarily being the”

omission: of threads between various elements and We

location éf the attachment of the blade, to the blade-bold-

ing bar, both of which were said to have reduced the cost

—of manufacture but neither ‘of which ehanged’ Ahe mode

of operation or. the results obtained thereby if the com

“mercial stracture made in Switzerland and gurchased br

the defendant in the United States, as exmplified in the

device marked Plaintiffs’ Exhibit 6. . |

Pa)

y A

‘

6. In ‘the patent, if suit. there 4 iMustrated and ~de-

scribed a vegetable shredder or chopper comprising a two. 5

part, bell-like ‘ housing having an upper portion and a tg

lower portion. adapted to be placed over the goods to he

shredded and 2 sinuous single-piece knife blade mounted’

at the lower end of yh actuating sppAg-loaded shaft +

whieh is manually depressible’ to place sthe several eatting:

portions of ‘the knife blade into ehonping rek tion with

the oods to be shredded, Adjacent the lower end portion

* of the stem is located a checking membyr attached to the

stem and catryme a sleeve having two drametrieal cams

: a sil ; :

Fe ae Sell "ate ce

on ‘the outer face thereof, a helical: torsion spring dis-

posed in the sleeve’ and coiled about the ‘stem, ore end

_ of t _the~ spring being anchored. Inside the top bell-like

_——portion, theré is: located a socket having a plurality of:

internal helical grooves: When the stem is depressed,

the spring clutch is disengaged and the knife bladé does

nof rotate in its downyard *movement: However, on its" Poe

upward movement near the end thereof, thie cams. on the

checking member enter the helical grooves, and the stem ar

at that time being engaged by the spring clutch, the stem ee

and the gisiuous blade mounted therebn move into a new

position, different froin the position -of the blade as made

on the. previous chopping stroke, Within the housing is °

located a wiper plate haying a sinuous ‘opening which | +

substantially matches the ‘shape of the blade and vege:

table portions which may adhere to the blade are cleared |

therefrom on the upward stroke wherein the wiper plate —- :

wiper such vegetable fragments from the blade. As de-

scribed in the patent, the checking member eomprises a

ring seated. on the stem portion and-a depending sleeve’

mounted on the ring. However, both in the Zysset com-

mereial form of this device and in the structures charged

to infringe, the ring and the sleeve, are combined: into. an

integral unit. ; ke oe -_—

_ While in, the’ sania devieesthe ring and the

ple e above-mentioned are combined into an integral unit,.

they perform precisely the same function. operating in

precisely the same mannereas the ring and sleeve sepa-

‘rately function and: perform as disclosed in the patent

for the same purpose and achieving the same result. It _

is not a departure from the disclosure of the patent for. | >»

the ring and, sleeve to be fade in an integral unit instead

of in two separate units.

‘

8. The patent in suit is not limited ‘as to tin ‘Means

of mounting” the blade on the actuating ‘stem.

“f = ae

9. | The claims of the patent in suit contain no limita-

tions as to whether. the portions of the bell-like -housing. .

are joined frictionally or. by threaded ‘engagement nor

is there any. limitation in either of the claims of, the

patent in suit as to the manner of mounting the handle

knob at the upper end of the. stem.

10.. After this action had been filed. r Was at isch,

. the defendant fommenced the manufacture’ and sale of a

second form of vegetable shre dder or chopper as to which oe

it sought’ the declaratory judgment. of this* Court that

such. device identified herein as Plaintiffs’ Exhibits 27-

. and 28 was “not an infringement of the patent in suit.

This device differed frqm the first: form charged to’ in-

fringe, Plaintiffs” Exhibit 12, primarily in the ‘construe-

tion of the checking me aber which, in the first, form

charged to infringé, included a spring itch w hich in the

second form was changed. to 2 plastic ratchet form of

- clutch having _ fle xible. blades which permitted rotation

of the checking mnembe r rélative to the stem in one diree-

tion but prevented such relative rotation in, the oppcsite

direction. While differént in sate cific form, the. ratehet-type.

clutch was designed and: inte jided and actually’ operates

to Werform the same function’ as the spring clutch used

in the first form of de fendant’s device charged to infringe

and performs such function in substantially the same man- .

ner, to achieve the same result; that Is, to, permit partial

rotation of the ‘blade at the filne the cams on the sleeve

enter the hetieal grooves ang: 0 prevent rotation. of the

blade when the -stem is depressed. Lide the spring cluteh,

the ratchet clutch is a well-known simple form’ of one-way

clutching, well ‘known ir the art as equivale mts for the

v.urpose of, preventing rotation of an clement in one, diree-

+ tion ,and permitting its free rotation mn the opposite

direction. |

ae A

tH. Karl Svcent, plaintiff, is engaged in the manu.

» facture in Switzerland ang she sale of vegetable’ shredders

undef the name of’ Blitzhacker, - made in accordance with ©

the patent iff suit: and as exemplified in the device marked '

Plaintiffs” Exhibit 6, illustratéd- and described in the

Blitzhacker circulars, Plaintiffs’ Exhibits Be, Re, &f, Re

and Sh. Such “devices made in Switzerland were first “sold

in this country in ‘July, 1954. The other plaintiff, New-

"Nel Kitchen Products Company, exclusive licensee ia this |

* country under the patent in suit, commenced the manv-

facture and sale of vegetable shredders made in accord-

ance with the patent in suit’ in the summer: or fall of.

1957. Its’deviees are exemplified -in Plaintiffs’ Exhibits

9, 24 and 30 and are. ‘illustrated in the drawing marked

Plaintiffs’ Exhibit 32 and Plaintiffs’ Exhibit 37, dnd in

the circulars! marked Plaintiffs’ Babies lla, 1tb, 1le

and Ild-. ~ Ape eye,

* 42. The deferidant’s vepitiliie shredders or choppers

° in bothi forms ‘presented to the Court are sold under

various names,, tneluding Chop-O0-Matie, Roto Chop and

_ Merry Go-Round. ‘The first form:.c’ defendant's device

charged to infringe has been, identified“herein as Plaintiffs’

| Exhibit 12 and a cut-open sample thereof has been identi-

fied as Plaintiffs’ Exhibit -34. These exhibits ‘are illus-

—trated ‘in the drawing Plaintiffs’ Exhibit 33.° The second

form:of defendant’s device brought into this acgjon by

defendant’s amendment to its Counterclaim for declars-

tory relief is exemplified in Defendant’s Exhibits 27 and :

98, illustrated in the drawing De fendant’s @xhibit 32. |

13. Defendant published catalog sheetf .or circulars, —

three of whieh are identified herein as Plaintiffs’ Ex! ibits.

14, 15 and’ loa, _whiel’ illustrate products, of the def

ant. This advertising matter is laudatory of the din,

is equally applicable both in illustration and descriptive.

a ee

° 4 are, —_

matter \ to all forms of vegttible shredders or - choppers

ee! made ‘and sold. ‘by. defendant, and represents that. such .

evices ‘were originated by or. ‘irivented fby the defendant,

44. ‘The plaintiffs objected ti bringing into this action

ithe defendanty so-called second form of vegetable shred-

‘der or chopper which was first made after the commence.

ment of: this suit on the. grouhd, that the Caurt did not.

have jurisdiction under Title 28, U.S. Code, Sedtion 2201,

contending that there. had been no actual _eantroversy ©

~ between the parties relative. to such devibe | find that © | f

defendant was actually seeking. an advisory opinion of f

“the Court. The Court, however, gave -defendant leave to;

biing the said second form of device before the. C ourt for: ra

judication. :

“15. The first. form ad vejetible shyedder or chopper-

ade and sold by defendant, Popeil Brothers, Inc. as.

cane lified i Plaintiffs’ Exhibit 12 and Piaintiffs'-Ex-- 9m

hibit |34, a1 d as illustrated in the drawing Plaintiffs’: Iux-

hibit 83, fully responds to and includes. the combination,

of elements -set forth in both claims i and 2 of United

- States Letters Patent No. 2,782, 826 here in suit.

— «16. The so-called second torm, of vege table ietie ‘or

chopper made and ‘sold by deféhdant. commencing subse oe. 9

quent to the institution of this action and exe mplified in

Defendant’s Exhibits 27 and 28 and illustrated.in De fend. .

‘ant’s Exhibit 32 likewise ré sponds fully. to ‘and includes :

the combination of elements set forth in claims i and 2

- of said United States Letters Patent No. 2,782,826 here Bers

in suit,\the fatchet form of the checking means in said oF 2S

second hrm being the full equivalent ot the spring clutch sa

describ@d in the patent in suit and ‘used by ‘defendant in, :

. the first form of vegetable shiedders or choppers charged

to infringe. hase, . 3 "eo °

os : a > 8a— y *

17°. The defendant has. cited | ae “substantial | number of

prior \re patents and: publications, | Defendant. s Exhibits,

5a to SK inclusive, including : epi at i os

-* gq Blake Soo No. 95,309

Hard es 137,074 ©

*. Allen 7. ~ 267,127

Hansen’ >") ° — | 1,023, 517

Hanel (\. - — * 7 2,140,010° y

- Clark... ee BARRO... + BS

Zeller { — 2,623,563 |

Zysset ( Austrian) 7, 180,369

Zysset :(German) . 235,749

~~ Suter (Swiss) Bie a © 155 720,

> and excerpts from the publication “Ingenious Mechan-

"se 4 ” ad

isms . ’ ‘. 3 .

~The Zysset enti referred to in. the foregoing group

were issued upon the applications of Karl Zy sset and do”

‘not represent’ prior art as to the patent in suit.

s\ss patent -No. 155,7 20:were expressly considered by

.18. The Hane! patent No. 2,140,010 and the Suter

United States* Patent Office before grant of the patent

in suit and none of the other references in the prior art

- cited by defendant ¢an be Ponsidered as better or closer

prior art than those expres ssly considered by tke Patent

Office. :

a _19.. None of the references cited by the defendant dis-

closes in combination the structure of the patent in suit

and it does not appear from any evidence that any of

such disclosures would have suggested to a person skilled

in the art the vegetable ‘shredder or chopper invente dd:

‘by Karl Zysset at the time of his invention thereof.

20. One of the patents primarily relied upon by de-

fendant in Hanel patent No. 2,140,010 which was. ex-

‘) :

{— i?

a ae

€3% 2 . , }

pressly considered’ by the Patent Office before the patent

in suit was allowed, and the

Hanel patent does not dis-

close. a structure which will operate to perform the fune- .

tions desired and intended by the patent in suit. Im the

Hane! patent, the. ‘blade is not advanced in the mannet

disclosed by the Zysset patent in suit:to eut up the food —

to be chopped in the manner disclosed by Zysset. Ate

the trial, defendant .produced Mr. Hanel as a witness,

although no previous notice.

thereof was given te plau-

tiffs and although 70 — or structure known to

Mr.--Hariel, other, than. that ‘shown

2,140,010 was-set up in the pleadings or in any notice as a —

matter of defense. The only

address of Mr. Hanel as to

which plaintiffs were given any information either, in the

pleadings er by notice was the address given in the Hanel

patent as Jackson Heights,

/ Hane) testified at the trial th

New York. However, Mr.

athe had not lived in Sack-

-son Heights for a considerable period and that he does

reside at R. D. No. 1, Box 942, jona Lake Road, F yaarktin- -

ville; New Jersey. Over ‘the

objeetions of plaintiffs that.

there was no basis in any pleading orf notice for such’ testi

mony. Mr. Hanel testitied fhaf in about 1988 he made

madels of one or more onion choppers, ‘one of which, |

Defendant’s Exhibit 16, corresponded tg Fig. 5°o0f his

patent... Te also testified that

Exhibit 12, which he said he

duced at the trial eould “h

another model, -Defendant’s

had mads and which he pre

ave been modified roe per-

form .one of the functions of the Zysset “patent in suit,

namely, rotation of the blade in the latter part of the

upward stroke thereof. While

plaintiff* objections to the

testimony of Mr. Hane! for lack of notice may have been

proper\ the Court finds that Hanel’= testimony as Te what, |

he. actually: didy even, if true’

and even if property corre

‘borated, would not ave amounted te the eombination

disclosed and claimed. in the

t «

Zysset patent in suit! Wiat

)

in his patent No“

eee ee “He

Mr. H4n>! may: now believe that he could have done

after be has knowledge of the Zysset patent and its strue-,

ture is of no consequence.

21. None-of the prior art patents or publications antici-

pates the claims \f the patent in suit and it would not

have been obvious to one skilled in the art, at the time

‘that any of such prior.art disclosures were made, to have

made therefrom or in combination with the other prior art

patents the invention described, disclosed - and cefined

in the patent in suit.

22. Each of the claims of the patent in suit clearly

and definitely defines a combination of elements coop-

erating together to. provide a novel food shredder or

chopper possessing -many advantages over any of the

structures of the prior.art.

93. The patent in suit is a clear, concise and exact

description of the Zysset invention, in such ferms as to

‘enable one skilled in the art to make and use the same.”

_ 24. The invention. defined by claims 1 and-2 of the

patent in suit was not patented or described im any .

printed publication or patent in this country or any

foreign country before the filing date of the patent in

suit.

95, The Zvsset German patent No. 935,749, Defend. .

ant’s Exhibit 5i, was not patented in Germany in accord. .

ance with the meaning of the United States Statutes,

until November 24, 1955, which is “the. “ausze sehen” or

‘publication date of the Gernian alent, and that is the

effective date of said patent for the purposes of this suit

rather than the filing date of the German application

namely, March 10, 1954, as claimed by defendant,

— 3la —

96. ‘The record contains no evidience of prior saventsla,

public use or sale of the invention described and claimed

in the patent in suit prior to the filing date of the appii-

cation ‘therefor, which would render the patent invalid.

27. The file wrapper of the patent in suit shows that

there:were no acts, express or implied, taken by the appli-

eant for the patent in suit whieh ereate any estoppel or

restriction of the’claims in suit in se far as their present

interpretation is to be made. The, claims of the. patent

in suit as first presented) were rejected by ‘the Patent

Office because of formal matters only and. ro amendmen s

or changes were made 40 avoid prior art which would

co reftriet either claim of the patent in-suit as to avoid

infYingement by the’ defendant in its manufacture and

sale of devices like Plaintiffs’ Exhibits 12 and 34 and

sndant's ‘Exhibits 27 .and 28 illustrated in the draw-

“ings, Phanfitis’ Exhibit 38 and Defendant's Exhibit 32,

respectively.

98, Defendant earried on some negotiations with the

representatives of Kar! Zysset. plaintiff, for the purchase

of the latter's vegetable shredders or choppers or for «a

license under Zysset's patent rights and. therefore knew

of the pendency of the application for the patent in suit

before it had actually® sold vegetable shredders and

choppers for which-it used a Zysse' chopper‘sas a euide

‘or modei but such negotiations did net culminate in .any

f °- ° _

agreement between the parties and the terms offered -to.

Zysset by defendant were so low as to make it appear

that the defendant never expected or intended that such

negotiations © would eulminate in -an actual agreement.

With full tnowledge of the pendency of Zvsset's patent

applications. the defendant informed the plaintiff Zysset

that it. intended to proceéd with its manufacture and sale

of the vegetable ‘shredder and chopper charged to in.

— 32a —

. Y ae

fringe whether or not it had a license from plaintiff and it

proceeded 1) do so. The Cour) finds that the defendant

deliberately copied the invention of the patent in suit

without authorits id

29° Plaimtuff Karl Zysset granted 41 exelusive license,

Plaintiffs! iexhibit 4, under the patent in) suit, to Arthur

as dowh payinent thereunder and committed the mselves

tT additional roy flies in the amounts set forth in said

Hieense. ‘The leense was obtaine do by, Arthuy ©. Nelson

anid Harold Newman expressly for New: Nel Kitchen P rod-

ucts Company, whieh was subsequently formed as an

Hingy. Corporation for the purpose of manufacturing and

osetia the ‘patented uivertion and such exc ‘Ausive license

agreemeyit Was assigned “to New Nel Kitchen Products

Company with the approval of Karl Zysset as shown in

Plaintitts’ Mahibit 5. - aa. “i :

4000 Phe cequities in this case are .with the plaintiffs,

Karl Zysset and New Nel Kitchen Preduects Company.

: 31. The device of the patent im suit. has had ‘great

eevoumercial success and more than 2,000,000 of such de-

vices have been sold by the defendant and by the plain-

tiff, New Nel Kitchen Products Company, in the United

States . ney | oe

es dt was an unfair practice for the defendant to.

have used the commercial structures made by plaintiff,

Kar! Zrveset, in Switze rland, as models for such -deviees, |

. .

to be miade by gefendant in the United States although

it did’ pot constitute am infringement of the patent ime suit

until that qatent had, actually issued, Continuance of

such practices after the issuance of the patent im suit Was

an Unfair and. inequitable act by the defendant in aggra-

vation of the infringement charged.

--38a— =|

33, The fact that defendant obtained a patent on its

‘saacene form of attacnment of the knife blade to the

shaft does not avoid infringement of the patent in suit

-The particular means of attachment used by defendant

is within the scope of both claims of the patent in suit

and furthermore constitutes no change in the manner of

operation or in ‘the results of operation of the relative

structures, both that of plai intiff and its licensee ;and

those of the defendant operating in substantially the same

manner to achieve substantially the same. result through

use of substanti ially the same means.

34. In addition to, its counterclaims for’ declaratory

judgment as to. validity and infringement of the patent in

suit, defendant filed-an “additional counterclaim” hereim

charging a cons piracy by plaintiffs to engage in acts of

unfazy competition agaist « defendant and. to bring about

a violation of an alleged contract between de fendant and

Arthur 0. Nelson. No evidence was prese nted in support

of said counterclaim and the same should be di smissed,

Coxciusions oF ‘Law

1. The © ouri has jurisdiction of the parties s and af the

subject-matter of this action.

a ~—

> Plaintiff Karl Zysset is and has been the owher of

United States Letters Patent No. 2,782,826 . since said

patent was issued to him en February 26, 1957. :

3. The pjaintiff Sew-N Nel Kitchen Products Company -

is the exclusive ticensve under the patent in suit by wurtue

of an exclusive license agreement dated April 2, . oe

Plaintiff's Jexhiljit. 4, and’ the usrigniment thereof dat: “ad

‘July 10, 1957, Plaintiff’ s Exhibit ?-

4. United States thers Patent No. 2782826 and

both of the claims thereof are good and valid: in law... —

— 34a —

“5. Both of the claims of the patent in suit No. 2,4 782,826

have been and are heing infringed, by ‘the defendant in

‘the mazufacture and sale of devices of the kind exempli-

fied in Plaintiff's Exhibit 12 and Plaintiff's’ Exhibit 34

and as illystrated in the drawing marked Plaintiff's Ex-

hibit 33 and as exemplified in the devices marked De-

fendant’s Exhibits. 27 and 28 and as illustrated in the

drawing marked Defendant's Exhibit 32.

6. None of the prior art re ferences phe ee the com:

/ bination of a housing having a socket provided” with

helical grocves - cooperating with an indexing device for

- advancing a food chopper blade near the end of the

upward stroke nor do they disclose a sinuots blade operat.

- ing through a sinuous slot in a wiper plate. Such a

structure as shown and defined.in the patent in suit con

stitutes a patentable invention and the patent in suit was,

legally and lawfully issued by _the United States Patent

__ Office. -—- ice a

7. The Zysset patent discloses an operative structure

and clearly describes the construction and operation

thereof in such terms as to be clearly understood by those

skilled in the art to which the patent appertains.

8. German patent No. 935, 749, Defendant's’ Exhibit 5i,

does not constitute prior art against the patént in suit.

- 9 Plaintiffs are. entitled to an injuriction restraining

the defendant against. committing further acts of in-

fringement of either of the glaims of the Zysset patent in

suit No. 2,782,826 in the manufacture or sale of vegetable

shredders of the Kind exemplified in Plaintiffs’ Exhibits

12-and 34 and ilustrated in the drawing, Plaintiffs’ Ex-

hit 33 and as exemplified in Defendant's: Exhibits © 27

and 28 and illustrated in the drawing: Defendant's Ex-

hibit 32.

10. Plaintiffs are entitled ts recover from defendant

the damages or profits as provided in the patent statutes

~ of the United States which have been onensiniged by de

fendant’s infringement of the Zysset patent No. 2,782,8: 26

together with interest thereon and the costs of this suit.

i. Plaintiffs are entitled to an accounting by defend-

cant t&® determine the. damages which plaintiffs shall re-

cover from de fendant and the Court, upon, appropriate —

application, will appoint a Master for the purposes of

such an accounting. After such accounting has been. had,.: >

the Court will defermine whether in view of. the willful |

nature of defendant's infringement the amounf of damages —-—

‘so found shall be increased ay. provided by Statute and

the Court: shall at the same time determine the amount

which shall’ be allowed to plairitiffs for their eosts and

disbursements herein. When the amount. of the judgment,

including costs, shall have’ been finally determined, plain. °

tiffs shall have judgment therefor and shall be entitied

to ataaities thereon. /

12. Defendant is not : entitled ‘to any relief under its

counterclaims herein, and the same should be distuissed

with prejudice and with costs to plaintiffs. ;

| a)

—. 36a —-

FIRST OPINION OF COURT OF APPEALS

ree (Caption: Nos: P2492, 12753) il ose

United States: Court of Appeals

Seventh Circuit.

Feb 11, 1960. (276 Fo 2d B54) 0 ee

Rehearing Denied. April 14, 1960.

‘Before ScHNACKENBERG and CasTLe, Circuit Judges, and

Meacer, District Judge.

CASTLE, Circuit. Judge.

Kar] Zysset, patentec,_ and New-¥ 4) Kitchen Peoducts

Company, his licensee, plaititiffs-appellees, sued Pope!

Brothers, Inc.» deferidant-appeliant, for patent: infringe.

‘ment and unfair competition. Trial of the issues involv.

ing ‘validity of ‘the patent and its infringement re ‘sulted

in a judgment.fo; plaintiffs in the Distriet Court finding

the Zysset. patent valid and infringed and’ enjoining: de.

fendant from making, using or selling the aceused devices

_or any other embodying the invention of claims 1 or 2 of

Zysset patent 2,782,826. The issues involving unfair com

petition and plaintiffs’ damages resulting fron a

ment reauwained to be tried,

Defendant appealed and contends that the District Court

erred: in holding the Zv ase patent: met “the standards ré-

‘quired for. patentable invention ovey the non-ecited prior

art and, in any event, Zysset’s claims are narrowly limited

and not infringed by defendant's devices. Subsequent to

defendant's appeal we remanded to the District. Court te

wt]

— 3ia— ese

consider 1 new evidence, the District € ‘ourt having certified |

that there appeared to be ‘sufficient cause at ‘law to war-_

rant reopening of | the District Court's judgment order

pursuant to. Rule 60(b) of the Federal Rules, of Civil”

Procedure, 28 U.S.C.A. After hearing on re mand the

District Court found that no new evidence was presented

which required change of the Court’s original conclusions

of law and judgment. Defendant's motion for relief from

‘the original judgment was denied and defendant's second

appeal followed,

The contested issues are (k) the vailidity of Zysset's

3 ie 4

patent 2,782,826 and (2) whether defendant's arcused -de-

vices are infringements. © '

In the Zysset patent, applied for March 11, 1954 and

issued February 26, 1957, there as illustrated and ‘de

‘seribed a vegetable shredder or chepyper conipris ing a

— two-part, bell-like housing having an upper * portion and

a lower portion ‘adapted to be phiced over, the goods te

be shredded and a. sinuous single-piece knite. blade mounted

at the lower’ end. ofan actuating spring-loaded | shart

which is manually per to place the several cutting

portions of the ‘knife blade “into chopping re lation with

the goods to he Shredded. Adjatvent the lower end yor

tion of the stem is lveated a checking member attached |

_to the stem and cartying-a sleeve having two diametrieal

cams on the outer face thereof a helieal torsion spring

disposed in the sleeve and coiled about the stem, one end

‘of the spring being anchored. Inside thy top bell-tike

portion, there is located a socket haveng a plurality: of?

interna! helical grooves. W hen the stem is depressed, the

spring ‘clutch is diseng raged and the knile blade does not

rotate in its dewnward moveme ‘at. However, on its vaup-

ware movement near the end thereot, the eas on. the:

checking member enter the hélica). crooves and the stem

« toe ; — 38a — : . . oe

at that time being engaged by the spring clutch, the stem

and the «sinuous: blade mounted thereo move into new

position, different from the position of the blade as ‘made

on the previous chopping stroke, Within the housing is .

Jocated a wiper cup or plate having a sinuous opening

which conforms to the shape of the blade and vegetable.

portions which’ may’ adhere to the blade-are cleared tere-

from on the upward st roke during which the: wiper wipes

/ such vegetable fragments from the blade. oe

The claims of the patent are:

“). ‘Ine a vegetable shredder comprising a two-part.

bell-like housing having an upper and a lower portion and”

adapted to be put over. the goods to be shredded, and a

knife blade manually depressible by a spring-loaded actu-

ating stem which has @ lower end portion, said: blade

being mounted on the latter and on each actuation being.

angularly movable by an’ automatically-operating index-

ing device, the improved indexing device including a socket

in the upper housing portion, said socket having a plural-

ity of internal helical grooves, and a checking member

rotatably but ‘axiail!y immovably mounted on the Jower

“end-portion. of the stem, said chefKing member comprising

a ritg seated on said stem portion, a sleeve mounted on

said ring and having two diametrical cams engageable in

said grooves, and a_ helical - torsion spring disposed in

said sleeve and coiled sbout said stem portion, one end

of the spring being anchored in the sleeve.and the other

‘bearing on said. ring; the whole in such ‘combination that

‘on depressing the stem the checking’ meimnber in the first

- stage is rotated. in one direction relatively to the. stem

and the spring is disengaged from the latter, while the

stem ard knify blade dre hot rotated, and that in the last

“stage of the stem’s upward movement the spring engages

4 ‘ee

- 39a — ur 4 ee

the stem and the -latter together with the ae mem-

‘ber and knife blade are rotated in the other dire ction

“2 A vegetable: shredder, as set out in claim 1, in

which the knife blade is sinuous, a wiper cup is rotatably

,but axially immovably mounted in the lower portion’ of |

“the housing for. clearing the blade on tht upward stroke

_thereof, said blade. passing through a conXnucus slot in-

the bottom of the wiper cup, and a blade-harrying rod

passing. in tight fit through ‘a plurality of openings in the

blade and being secured to the lower end portion of the

“stem.” wl .

The feature contended by plaintiffs to be novel and to 7

constitute patentable irivention is the combination of the |

elements of (1) the repositioning of the chopper blade

by automatic rotation occurring only in the last stage

of the. apward stroke when (.e blade is withdrawn from.

and in a position not to move or disturb the. goods being

shredded or chopped and (2) the utilization of a sinuous

blade which although having the advantage of multiple

blades eliminates ‘the wedging of particles of the goods

between blade sections; the sinuous, blade wiping clean

on each upward stroke by “a. continuous sinuous slot in

a wiper plate or: cup. which rotates with the sinuous

chopper blade. “

The prior art: cited*to the. Patent Office. consisted . of

Hane] 2,140,010 and Suter, Swiss. patent’ 155,72 20,

Hane] (1938) discloses a housing fo be placed ‘over the

material to be chopped,-a blade, and a, stem having a

“spiral ‘slot coeperating with a sieeve having ears pro-.

troding into the spiral-slot for giving a rotary motion

to the blade. It does not have a sinuous blade, nor a

wiper cup, nor are means provided for’ permitting the

blade to travel upwardly in a straight line and away from

— 40a —_—- aie he

the chopped. material before the rotary motion is im-.

; parted. ete ; l \

Suter (1932) shows merely a blade attached to a stem

and handle so that they may be manually worked up and

down in an open hollow cylinder having a working base

looselysinserted at the bottom. Three blades arranged in

- the shape -of.an “N” or a zigzag blade were disclosed.

‘Suter does not. disclose a sinuous blade, nor wiper up,

nor any automatic indexing feature. Wiha

Prior‘art not cited to the Patent Office- but relied upon

by defendant includes Blake 95,309, Hard 137,074 ‘and

Clark 2,422,340. oy

; ; ' Blake (1869), a’ meat chopper, disclosed a partia] rota; .

tion or indexing of the rod and knife blade which does -.

‘sot take place until it is lifted nearly out of the receptacle

-. os so that the eéntcats being chopped will not be disturbed

by .the partial revolution. - HardeA 1873), another meat’

: chopper, disclosed the same feature. Clark (1947), a food --

chopper, disclosed a rotation and indexing feature which —

conld by adjustment of: the position of a ratchet dis on ~

. the rod or stem holding the blade be made’ to index only

on the last stage of the uptrard Stroke. .

A:1952 Zeller patent 2,623,563 is illustrative of plain-.

tiffs’ exhibit 17. a Zello.onion chopper, and similar té.

plaintiffs’ exhibit 16, the Provit “device. In these there |

was a housing and multiple blades which were operated

hy a stem anc knob to-chop food. There. was no rotation

or indexing of the blades. although they were wiped ‘by -.

withdrawal into a.slotted eup which sheathed them. The

blades were not sinuous. ‘Particles’ wedging between the

blades could cause them to stick: ~ |

. .The District ‘@ourt found that none of the prior art

references discloses in combination the structure of the

eo . <

“a,

— 4la—

* !

patent in suit; that it does not appear from: any evidence

‘that any of the disclosures would have suggested Zysset’s

shredder or chopper to a person skilled in the art, and

concluded that the strneture ay ‘shown and defined in the

patent in suit constitutes a patentable invention, We agree

with the District Court. If applied thecorreet criteria of

invention. The sinnosity of the blade and slot in the Wiper

cup or plate was wholly nove ‘lin concept and an important

element. in the combination claimed. in . the patent, ‘It

eliminated the problem off, particles wedging between mul-

tiple blades withont® loss of the’ advantage’ of the adili-

tional chopping surfaces, And in -combmation® with the

‘indexing feature praduced “et result beyond that of mere

mechanical improvement over existing art, A novel idea

was incorporated. While it-took. mechanical skill to adapt

the idea to” penctical ise, and although the mechanics

employed: may have been’ obvious, the idea was not. It

possessed the “impalpable sontething which. distinguis Hews:

invention from simple mechanical skill”. Great Atlantic

& Pacific-Tea Co. v. Supermark: t Equipm nt Corp., 3A0

U.S. 147, 71 S.Ct. 127, 129, 95 L.Ed. 162. Here the sinudus

blade constituted | invention although foutra in a combina.

tion of other elements which were old in the art.

The evidence on the -i8sue of infrin; zement shows that

the defendant manufactured and Fold. two accused ‘dev Viees,

The first form of accused device was copied direttly ffm

plaintiff Zysset’s shredder with only such Slight variations

as. would’ effect economy in.large scale manufacture, In

stead of a plurality of holes jn the sinuous blade, wineh

defendant used, without other change, it attached >the

blade to the blade earrying rod by the use of slots rather

than to project. the rod through holes: ri “ring” and

“sleeve” described in. the claims of the patent in. suit

were made es part rather than two No change in

functioning o\ manner of operation resulted.

om | . _ 4

a.’ ae 2

— 42a —

Infringenient is not avoided by making into one part

that which .has been shewn as _two where there is no

change im the function or manner of operation ‘of the

ejement.

‘

In this connection it was pointed out in- Spec ialty E quip-

ment & Machmery Corp. vy. Zell Motor Car Co., 4 Cir,

195 r 2d D515, ds: -

. . =<.

“While it is. true that the function of a machine’

is not patentabite and that there is infringement only

where the same result is reached by ssubstantially

the same-or similar nieans, WW estinghouse ¥. Boyden’

Power Brake Coz, 170 US. 537, 569, 186S.Ct. 707, 42

L.d. 1136, it is, also true that one using the sub-

stance and essentials of a patented combination does

viet avoid infringement by vary Ing, | nonessential de-

tails. Neither the‘ joinder of different Clements of a

patented combination into one, nor the separation

of one integral part into two or more “doing together

substantially what was done by the” single element

will evade a charge of infringement.’ ;

The rule Was expressed by this court in Apex Electrical

Mia Co. x. Mawtag Co., 7 Cir. 122 F.2d 182, 187 a

follows:

“Pate nts are not limited to the structure described

and shown, but the invention may be embodied in

various forms. A transportation or rearrangement of

the parts as set forth in a patent. is an @mbodiment

cof the patented invention and does not avoid in-

fring: tment unless form, location or sequence Is essen--

tial te the result or to the nove ‘Ity of the claims.’

(Citing authorities.) “Infringement is not avoids d‘by

combining two elements of a cain in, one part.”

‘In Roval Tupewriter. Co, v Meminaton Rand. Inc., 2

Cir., 468 Ftd 691, 693 the coud jad oceasion to observe:

sa)

—4a—

“e ° * courts havé with curious unanimity held

that it does not avoid infringement to combine inte

one member that which, the patent discloses as two,’

if the single member performs the duties of both in

the same way. The decisions are so numerous that:

we confine ourseives to. citing those which over the

past thirty years we have Janie ourselves.”

The District = * not- err in its conclusion that

the first form of defendant’s accused. device constituted

infringement.

The second form of accused structure merely substi-

tuted a nylon ratchet clutch for the helical torsion spring

clutch described-in the Zysset ‘patent. Other features, in-

cluding. the sinuous blade and wiper plate, are those of

plaintiffs’ device. The clutch in each instance operates

to prevent the stem and blade tua rotating except in

one direction. This permits, rotation .to reposition the

blade only on the last portion of the upward stroke when

the chopper blade is no longer in contact with the goods

being shredded or chopped. The utilization of «a nylon

ratchet and multiple pawl typé clutch was frem the stand.

point of function and manner of ‘operation a mechanical

equivalent of.the Zysset helical torsion spring type eluteh,

The conclusion of tpg District Court that therdoctram of

“equivalents” applied, and that defendant's second form

of device constituted infringement. was correct. In Kae

Coders Corporatron vy. Acro Tool d& Die Works, 7 Cir,

250 F.2d 562, 568 this court in applying the doctrine’ of

equivalents stated:

“As the Supreme Court said in Graver Tank

| Mfg. Co. v. Linde Air Products Co., 889. U.S, 605, 6u7,

70 S.Ct. 854, 856.. 94 L.Ed. 1097, °°.° ° to permit

‘imitation of a patented invention, which does. not eopy

every literal detail would be to convert the protection .

of the patent grant inte a hollow and useless thing. -

acini ai:

who seeks to pirate a copyrighted book, or play;

may be expected to introduce minor variations to

eoneeal and shelter the piracy. Outright and forth-

. right duplication is a dull and very rare type of in-

fringement.” In this opinion the Court goes on to

point out that the doetrine: of equivalents evolved in -

~yesponse to this type of infringement and reiterates

(239 U.S. at page 608, 70 S.Ct. at page 856) that ‘if

two devices do’ the same work: in’ substantially the

sume way, and accomplish substantially the same

result. they are the same, even though ‘they differ in

name, form or shape.’ ” : '

_ We agree with the District Court ‘that the evidence’

presented on the hearing subsequent to our remand was ©

not such as to require a change in the original conclusions |

of law and judgment. .We have considered the econten- .

tions of the defendant relating to file Wrapper estoppel,

narrow limitations of Zysset’s .claims, and the various

arguments advanced in support thereof. * We find them

without merit. :

The judgment’ of- the District Court is affirmed.

Affirmed.

Upon PBtition for Rehearing |

CastLe, Circuit Judge.

Popeil Brothers, Inc., defendant-appellant. petitions for

“a rehearing which inter alia requests modification so-as to

order that the Distriet Court be reversed as to its finding

and judgment that claim-1 of Zysset’s patent 2,782,826

is valid and infringed. - - . .

A rehearing is denied. The opinion and order of this

Court is modified to show that the judgment of the Dis-

trict Court is reversed as to claim 1 and affirmed as to

claim ® of Zysset patent 2,782,826 and affirmed in all other

respects. a

’

— 45a —

somes AND CONCLUSIONS OF DISTRICT atte

re WILSON & McCALLAY PATENT —

° *. (Caption—Civ. "A. Ne. 57. C-763)/ ° s \

ae TET eel \

United States District Court \, "4

N. D. Mlinois, E. D. ° Nicaa.

Oet. 26, 1961. (199 F.Supp. 594)

Perry. District Judge.

- This action came before the court on defendant's Motion

for Mitigation ‘of Damages or fer Application of The

Rule. De Mininis Non Curat Lex arter. the denial of a

' motion for, leave: to file interloc utory appeal, under See-

tion 1292¢b), 28 U.S. Code, from the. court's order of

January 17, 1961, witnesses having been heard in open:

court and counsel for the respective parties haying been _

heard: and upon full consideration of the reeord herein

and the exhibits offered and received in evidence, the

court. finds as follows. -

1. The Wilson & MeCallay patent. 207,146 relied upon .

. by det endant has a plurality of separated blades fixed im

position on the cutter head spaced so as to cut a long

plug at tobaceo into pieces of equal size, each piece being

of a size for retail sale; whereas. the Zysset invention Is _

for a vegetable shredder for the purpose of eutting food

into small pieces. | ,

2. The Wilson & MeCallay blades reaiprocate to come

into the same position on each stroke and simply enter

the same grooves upon each operation, The Wilson &

MeCallay device. is for: cutting a plug of tobacco into

pieces of particular. size and shape and is coniparable

— 46a —

in ‘that respect with a cutting die or a cookie cutter rather

than a food shredder. The Wilson & MeCallay device will

not accomplish its purpose with only a single blade be-

cause it will not cut a section of a ons of a geoneernnneS

size and shape.

3. In the Zysset food shredder, the food must:be con-

fined in a housing ‘so that it will be held in position under

the blade for repeated cutting as the blade cuts at a

different point on each stroke. The wiper cup. of -the

Zvsset invention is designed to rotate with the blade for |

each new position on each stroke. The Wilson & MeCallay

patent has no such means since the clearing plates are

in fixed position and cannot rotate, and the blades cuz

at the same point on each stroke. |

‘4. In the Wilson & MeCallay'machine the blades are

moved up and down by rotation of a driving shaft D hav-

_ing a crank pin whiclhi reciprocates in a slot to change the

direction of movement of the cutter head on which the

blades are mounted. The blades or knives remain in any

position where they are stopped and do nat return until

the shaft is operated again: The blades of knives in the

Wilson & MeCatlay device are parallel te each other and

that results in the wedging of anything coming between

the paralle] sides rather than the shredding or chopping

in small size of any material to be eut, Pe

5. The Wilson & MeCallay device h&s a Coie of fixed

plates which-have no slots but between which plates the

blades operate to discharge the cut portions of the plug

as they rise into the spaces between the clearing plates.

In the Wilson & McCallay patent the clearing plates are

fixed in position and cannot be moved or rotated ‘by any

‘movement of the blades, wi ereas in the Zvsset invention

the wiper cup is rotatable and as the blade turns from

eee — 47a —

one cutting position to another it rotates the wiper

eup. This fact was demonstrated at the trial..

6. The Wilson & MeCallav patent is no more pertinent

to the issues herein than other prior art patents con-

sidered by the court at the trial. including Suter Swiss

patent 155,720, Hanel patent 2,140, 100, and Zeller sien

2,623,563.

7. -The Wilson & MeCallay patent 207, 146 is in the

same Patent. Office classification, namely,’ ‘Class 146, Sub:-

class 160, as the Zysset patent in suit and has—beeti” so

* classified Sinée. 2923. Defendant's expert .witness testified

that the first- place anvone interested in and investigating

the patent in suit would seareh would, be the class and.

subciass-of the patent under investigation,

ConcLvsions oF Law

1. The Wilson & MeC allay patent does not disclose an

equivalent of the machine of the Zysset patent in suit,

9 The Wilson & MeCallay patent does not anticipate

the combination of elements claimed in the Zysset patent

in suit. .

3. The Wilson & MeCallay patent does not limit the

scope of Claim 2 of the Zysset patent im suit. |

4. Claim 2 of the Zysset patent in suit includes as a

part thereof all of the elements sletined by Claim 1 of the

Zysset patent as well as the additional limitations set

forth in Gaim 2. -

5. Plaintiffs ‘are entitled ‘to recovery of costs “and

attorneys’ fees occasioned by det ‘endant's motion.

6. Pefend: Lit’s Motion for Mitigation of Damages or

for Application of the Rule De Minimis Non Curat Lex

* should be denied. ®

* ae:

—48a—— . bs

FINDINGS, ¢ CONCLUSIONS AND J UDGMENT OF

DISTRICT COURT re DAMAGES

(N.D. Tll., 134 USPQ 999)

No. 57-C-763 . * July 13, 1962

reer District. Julige. 2 one se cm at Lew ace

: Fixpincs oF Fact |

I. On April 29, 1957 plaintiff Kari Zysset filed his bill

of complaint herein: charging infringement of United

States Letters Patent No. 2,782,826, issued February 26,

1957, by defendant's manufacture and sale of vegetable

choppers. By leave of court an amended complaint was

filed adding as a party plaintiff New-Ne! Kitchen Produets

Company, exclusive licensee under ‘the patent~4

Prior to the trial in July 1958, defendant manufac

and sold a modified form of vegetable chopper havin

nylon ratchet clutch in lieu of the spring clutch embodied

in the original form. After. a full trial, in Findings of

Fact and Conclusions of ‘Law and Judgement filed and

entered by the court on October 3, 1Q58 the court found

both forms of deferdant’s ‘device to constitute. infringe-

ments: of claims.4 and 2 of the Zysset patent in suit. In

the Findings of Fact entered by, Judge. Perry on. (etober

3, 1958 it is-stated, “The court finds that the defendant

deliberately copied the invention of the ‘patent in suit

‘without authority.” (167 F.Supp. 362, 119 USPQ 116)

An Order was entered by the court.on October 8, 1958

deferring the disposition of the -issues of defendant's

additional -counterclaim relating to “alleged. unfair eompe-

tition and breach of contract. The Judgment of the court

provided for the recovery of damages and the profits

and gains which the defendant made as a result of its

infringement, and the court held that-the plaintiffs were

entitled to recover their costs.and disbursements .to be

determined by the court at the time of determination of ©

ee Gy eee

7 eee

— 49a — 2

the ‘matter of damages and profits to be awarded to plain-

' tiffs. Defendant. filed ‘its Notice .of eer: on October 8,

1958. a Re

L/ e

On October -27, 1958 New-Nel Kitchen Predicts Com.

pany,. party plaintiff herein, as, exclusive licensee under

~the Zyeset. patent. in suit, brought ar action in the United

st District Court, ~ Northern FiTistriet-.afLinois, East.

Division, for infringement of said patent against

FW. Woolworth & Company (58-C-1916) based upoh the

sale of various formes of vegetable choppers made by

different manufacturers; and on November 6, 1958 de-

fendant moved in the instant case for a — re

strafning order against the proseeution ‘of said suit,

which motion was heard by the court and denied on

November’ 21, 1958). The Findings of Faet, Conchrsions

of Law and Order thereon herein recited that defendant's

petition. for temporary restraining order was without

-eguity and, that plaintiffs were entitled to reeoter their

costs to be determined at final hearing. (11% USPQ 346,

168 F.Supp. 372) :

In the appeal frem the talent Gh Qetober 3, 1998,

Appeal No. 12.492, upon affidavits of counsel, extensions

of time for the filing of appellant’s brief were: granted

to February 12.1959; but on that -date defendant filed,

‘, the United States Court of Appeals for the Seventh

‘Cireuit, its motion to remand for consideration of new

evidence, namely a patent issued to Samuel J. Popeil on

February 10, 1950, No. 2,872,958. The Court of Appeals

ruled that the motion to remand be continued for a

period of sixty days from February 26, 1959 pending

the filing in the Distriet Court of the motion for. the

consideration of the alleged new evidence. On. March 5,

1959 defendant filed its Motion for Relief from Jué lgrment

based upon the newly issued Popeil patent. Thereafter

cry

= Se

upon evidence heard in. open court, the District Court.

filed its certificate in the Court of Appeals’on April 24, ,

1959, whereupon the Court of Appeals, on April 28, 1959,

ordered the case remanded to the District Cou} to con-

sider new evidence brought into existence by the issuance

ef Popei) patent 2,872,958 on February 10, 1959. On

July 8, 1959 the District Court filed and entered its

Findings of Fact and Conclusions of Law and Order

denying defendant's motions for relief from judgment

and to consider new evidence. The order held “That no

new evidence has heen -nreSented tothe court which in

‘ any way changes its Findings of Fact, Conclusions of 7 -w

and Judgment entered in this causé.on October 3, 1935.”

(122 USPQ 128) and provided that plaintiffs are “entitled

to recover their costs of the proceeding and.an allowance

for their éxpenses incurred herein, to be subsequently

determined’ by the court along with other questions of

damages, profits, costs and recoveries. Supersedeas bond

was fixed in the stim of $5,000.00. On July, 13,1959 de-

fendant filed its Notice of Aypeal from the additional

Findings of Fact, Conclustons of Law and Order of July

8, 195%, ane reinstated its appeal from the Judgement. of

October 3, 1958 as amended by the Order of October &,

1958, pales No. 12,492. The new appeal to the United

States Court -of Appeals for the Seventh Circuit nam-

wbered 12.753. Appeals: Nos. 12.492 and 12.753 were con:

solidated by the Conrt of Appeals Order dated Septem. .

ber 10, 1959. Said appeals were heard and, on February

11,1960, the opinion the Court of Appeals was filed

finding ¢laims*1 and 2.of the Zysset patent in suit valid

and infringed. (276 F.2d 354; 124 USPQ 256.) There.

‘after defendant filed its Petition for Rehearing, and, on

April 14, 1969, the Court ‘of Appeals denied the Petition

for Rehearing -but ordered that its judement be modified

to show that the judgment of the District Court is re.

" —S5la—

versed.as to claim 4-of the Zysset patent in suit and —

affirmed as to claim 2 and in all other respects. (129

USPQ 152) Thereafter defendant filed its petition in the

United States Supreme Court for certiorari to the Court

‘of Appeals for the Seventh Circuit and said petition was

denied on October 10, 1960. (364 U.S. 827, 127 USPQ

555)

The decrees of the Court of Appeals ‘sania been ‘fed

in the District Court on May 18, 1960, the District Court, .

on-May 24, 1960, entered an order reading as follows:

The Judgment and Obder,. dated October 3, 1958

_ and July 8, 1959, respectively, having been reviewed

by the Court of Afipeals, and the supersedeas granted

October 8, 1958 having been vacated; it is,

Ordered: Peng e

That all of defendant's “bocks, stat>ments, exhibits, |

records, vouchers and other documents relating to the

above matters, shall be kept intact by the defendant

and remain: in its — ready to be produced

upon further order

That defendant be enjoined from disposing of, or

wasting or linprope ‘tly disposing of, any of its assets

without order 6f the court exeept for such disburse-

ments and expenditures other than cash as aTe neces-

sary to carry on its norma) and ordinary course of

business. ° eae

On June 30, 1960 the District Court entered an Order

pursuant to the opinion’ of the Court of Appeal? dated

April 14, 1960 finding claim 1 of the Zysset patent in

suit, No. 2,782,826, invalid. | . :

II. On October 18, 1960, District Court, entered an

Order in the accounting proceeding directing defendant

to file a statement of. account setting forth the quantity

of vegetable shredders found fo infringe which defendant

had sold, the prices recei ived therefor, and the items of

Ee.

—52a—

cost claimed by the defendant. On December 6, 1960, de-

fendant served its statement of-account which has been

received in evidence -herein as Plaintiffs’ Exhibit 101.

III. On° January 5, 1961 defendant filed: its Motion

for Mitigation of Damages or for Application of the Rule

De Minimis Non Curat Lex, and on January 17, 1961 the

District Court denied the said motion without ‘adjudica-

tion of the merits thereof and also entered an order for

‘an interlocutory appeal from*the denial of said motion.

' The defendant thereupon filed its petition for allowance —

of an interlocutory *ppeal under 28 U.S.C.A. 1292(b), and

on F ebruary 28, 1961 the.Court of Appeals denied the -

said petition. Thereupon defendant renewed its motion

to limit damages and the.matter was set.for the reception

of evidence as to United States patent 207,146 issued to

*Wilson and MeCallay and, the ‘bearing thereof upon the

issues herein, and the testimony in the accounting pro-’

ceeding was staved pending the further. order of the

court. Thereafter evidence in open court was heard and,

on Sepiember 19, 1961, defendant's Motion for Mitigation -

‘of Damages. or for, Appligation of the Rule De Minimis

Non Curat Lex was denied and costs and attorneys’ fees

occasioned. by def fendant’s motion were assessed in favor

of plaintiffs and against defendant, and Findings. Fact

and Conclusions of Law: were filed and entered in support.

of said Order. Thereupon defendant moved to vacate

the said Findings of Fact and Conclusions of Law ‘en-

tered. on September 19, 1961, or in the alternative to

amend and modify the same. On October 25, 4961 the

District Court entered a new Order and new Findings °

of Fact and Conclusicns of Law in support, thereof pro-

viding tliat defendant's .otion for mitigation of damages

be denied and that costs and attorneys’ fees orcasioned

by defendant’s motion be assessed in favor of plaintiffs

—53a—.

and against defendant. (131 “USPQ 178) The court re.

quired a $10,000.00 bond to, insure the payment of. plain-

tiffs? costs and attorneys’ fees, and di fendant deposited

government bonds in that amount with the Clerk of this

Court. On November: 12. 1961 defendant aypeated. from

‘the, Order of October 25, 1961 to the Court-of Appeals

for the Seventh Circuit, Appeal No, 15,593, Plaintiffs

moved to dismiss the appeal and, on January 31, 1962,

the motion was. granted at costs of Popeil. :

IV. . Testimony in the accohitins proceeding comp priked

the following depositions: * a ;

‘Witness Date Exhibit No.

Philip Rootberg | 12 G1. ‘PX 102-4

Samuel J. Popeil 112 61 PX 102-b

- Philip Rootherg || Lisl PX 102-¢

Philip Rootherg 3/16/61 *. - PX.102-d

Philip Rootherg 1561 | PX 102%

Samuel J. + Popei! 1/29/61 |. . -PX 102-f

- Samuel Pope! 11 15°67 PX 102-g

and testimony he love the court on February 21, May 8,

May 14, May.15, and May 18, 1962.

_ Arthur O. Nelson and Roy H, Olson testified in behalf

of ‘plaintiffs, and Harold Newman and “Arthur 0. Nelson,

counter defendants, were callad by defendant, and Messrs.

Stanley, Hoods, _Saunvel, J. Popeil, John D. Rumbough,

and Lawrence { - Kingsland testified in behalf of defend.

ant.

V. The character-of* the Zysset: invention is'set forth

in the Findings of Fact and Conclusions of Law slitered.

_ by the District Court ‘on October 3, 1958 and the Opinion

of the Court of ca filed Fy bruary 11, 1960. As

pointed out above. claim 1 oof the Zvsset _tatent im suit.

‘was found invalid ss the Courtvef Appe: als on April 14

1960 but the Judgment of this court, entered’ on October

— 54a.

3,. 1958, was affirmed in all other respects. Therefore, »°

both forms of defendant’s devices -have been held to be

‘infringements: as set forth in the Judgment of October

3, 1998. & |

(— \VI1. Prior to the manufacture and ie of vegetable.

= choppers: by the. defendant, plaintiff Karl Zysset had —

manufactured and sold, in this country and in Europe,

- vegetable choppers embodying’ the ocigeninn invention. |

VI. .The defendant purchased a sample of Zysset’s

, vegetable: chopper, took it apart, examined it, and copied

' it, as fully established in the record at the trial and: in

, testimony at the accounting proceeding.

VIll. Prior to. the issuance of ‘the. Zysset patent in

‘suit on February 26,,1957, the defendant Popeil carried

* on negotiations for the purchase of Zysset choppers which

were miade by the paténtee in, Switzerland or for a license

+ under the patent which defendant was informéd was about -

to be granted. Such negotiations commenced in about

February 1956 but included a statement by Popeil’s attor-

ney that Popei! intended to continue to make. the

CHOP-O-MATIC devices oe of herein. without

atithoyity from Zysset.

IX. ‘After it had been found by the Court on October

3, 1958 that defendant had: infringed the patent in suit,

defendant eontinaed to manufacture and gel] its infringing

vegetables choppers without chenge until February 12,

1960.

X. Subsequent to the decision of the Court of Appeals

Pope i] continued in the vegetable chopper business, manu: —

facturing and: selling choppers having the same outside-

-appearance as those enjoined by the court but being.

modified internally to omit the rotation feature and the

wiper cup. For these. Popei! continued to use the dies

and molds previously employed in the manufacture of

3 .

ee : ee an

— 59a —

choppers but, at a later time, some of ‘he dies and molds

were modified and other changes we re made. Mr. Popeil

* testified that 1,275,000 Aroppers withoit antomatic rote

tion and vithout wiper cips were thade and. sold by his

company. ) |

XI.° Arthur O. Nelson and his. associate Harold New:

man visited Karl Zysset in Switzerland and ne gotiated |

the lheerise agreement which has been identified as PI ain

tiffs’ Exhibit 4. Tt provided for a liegnse foy the mann

facture and sale of the patented. invention upon the fol.

lowing terms : 7

> For the first vear commencing Ma iv 15, 1958: Swiss

franes-—.45° per vegeti ible shredder on a minimum of

200,000 devices;

c \: . ”

For subsequent vears, after May 15. 1959: Swiss

trancs—.45 per device for the. first 100,000; Swiss”

6) franes—.35 per device for each deview in UXCESS “of,

100,000; Swiss franes—.30 per deviee for each device

exceeding 300,000. . : ,

Licensees agree to pay a reyalty on a minimum

200,000 vegetable shredder: annually commercing May

15, 1958, but Licensor agrees te reduce the 200,000

minimum-after May 15, 1961, if Licensees are unable

to maintain it. [It is andersteod and agreed that if

Licensees are unable to mamifacture and sell thy

mpinimun of 20,000 devices due te an aet ef Godoy

other reason bevond their control, upon which sproe!

ean be and is ‘supplied by Licensees, Licensess will

be relieved of the minimum nimber reqnirement and

in such case only the devices actnaliv manufactured

and sold shall be subject te rovalty payment te 1

censor, | | .

e °

(A Swiss frane had a value of 22.1¢ United Star

currency.)

3 /

“4

na a

The License Agreement dated April 2; 1957 (Plaintiffs’

P ‘

kK xhuibit 4) has not been modified and is,in full foree- and

effect.” New-Nel-Kitehe -_ roduets Compan? has not made

final. settlement for thefovalties accruing‘since May 15,

1928 but, in addition to the $21,000.00 originally paid, has

incurred its attorneys’ fees and disbursements in this

ease aniounting to $21,928. 26 dup to May 1, 1962) with

the expectation of applying them on any. unpaid royalties .

upon the conclusion ef this litigation. (That. amount does

“not include Zysset’s litigation expense.) |

New-Nel manufactured and sold approximately 238,619

of the patented food choppers from the time: it: started

in business after the License Agreement (Plaintiffs’ Bx:

hibit 4) dated April 2 2, 1957 was entered into, until May

15, 1958 which wa. the end of the period covered, by the

first rovalty payment of $21,100.00 .as required by the

License Agreement. Frofn May 15, 1958 to Februgry 15,

1962 New-Nel manufactured and seld 289,945 ‘of the

patented food choppers. |

During» the infringing. period New-Nel had a capacity

for making and selling the patented food choppers of from

2500 to 38000 devices per day, working one shift. ‘With

additional: shifts, and thé acquisition of adeitional facili.

lies, if needed, New-Nel had ample capacity for th, man:

facture and sale of the infringing choppers made‘and sokt

by the ‘def ‘endant, 1... ° B.S DTS | betwee en February. 26,

1957 and Wehruary 12, 1960.

NIT. Daring the t taking of the testimony. before the

court there wer: offered and received in evidence the —

following exhili.s.

XII}. The defendant's Statement of “Aceoufit (Plain-

tiffs’ Exhibit 1Q1) reports ‘the manufacture and sale of

3,152,575 of the infringing’ fvod choppers. The amount of

Laz

—S7a—-

the sales reported is $2,981,464. 74, » After making certain

deductions as sect forth in said. Statement, ‘defendant. re-

- ports het profits before income -tax of $455,293, Ol. Plain.»

tiffs accept the defendant's statement 6f net profit before

“income tax of $455,293.01 exeept that plaintiffs object to

the deduction from defendant's “profits of $42,830.59 for.

expense of this litigation which is part of the item of

“General and Administrative $615,061.32" given in. said

statement and referred:to in the testimony of defendant's

accountant Philip Rootberg on = ember 15, 1961 at page

128° (Plaintiffs’ Exhibit 102- . and excepting also the

‘deduction from defendant’ . ie 3 of the sum of $109,192.44

which represents ‘defendant's ofticers’ compensation allo-

cated to the infringing produets, and which amount is

part of the item © General and Administrative $615,061.32”

given in said statement and as referred to in the testi-

mony of defendant's accountant Philip Rootberg on No- °

vember 15, 1961 at pages 104, 105, 110 and.125 and in

his letter of March 1, 1960 (1901) ( Plaintiffs’. Exhibit

104), and exeepting also the defendant's deduction of the

‘loss as set.forth in Plaintiffs’ Exhibit 105 in the amount

of $29,356.08. aan 7

~ The court allows the aroresaid deductions and finds the

net profits before income tax assessme nt to be $459,293.01.

NIV. . Roy W. Olson, Chicage patent attorney, whose

ition: Were not questioned, testified. as an expe rt.

“in behalf of. plaintiffs as to a reaso nabl® revalty pursuant

to Section 284 of Title 85° U.S. Code. Mr. Olson testified

a reasonable royalty for the manutgeture and sale of. the

patented deviee, and as manufactured and sold by the

defendant and found to he infringements herein, would be

not less than 10¢ pet unit.

XV. Defendant callet as a ‘witness Stanley Hootls,

house patent attorney for Ekco Products Company of

‘ 58a . 3h 2

Chicago, manufacturer of household items, who testified

that the average royalty paid or collected by his company .

for various household items was from 2.5% to 5° of

selling pricgs. Mr. Hoods adinitted, however, that. the

patents he had,under consideration in his testimony in-

eluded design patents and no statistics: were given as to

the pereentage of design or mechanical patents or whether .

they had been adjudicated. as valid and. infringed as in-

the instant suit. Mr. Hoods testified that his company has

no standard practice as’ to royalties which it charges or

which it pays. The company evaluates each license on the

facts pertaining to a particular case. He testified that an

exclusive license calls for a royalty fee which‘is higher

than for a non-exclusive license and where licensor is to

have competition, a, higher fee is required. In* one case

where Mr. Hoods’ company paid a 5° royalty the patent

"in suit was subsequently found to be invalid and the li-

eense in that ease was nonexclusive. Mr. Hoods testified

that as long as there is a va alid claim remaining in a patent

the, royalty is ordinarily continued even though some

claims might be found invalid.

XVI. Defendant also called as a witness John D. Rum-

bough who testified that he was a former vice-president

of The Enterprise Manufacturing Co. of Philadelphia, |

Pennsvivania, nnd, as such, negotiated a lyeense under

Zeller. patent. 2,623,565 for the manufacture and sale of

afy onion chopper-known as the Swiss: House which was in

evidence at the trial of this cause and identified as Plain-

tiffs’; Exhibit 25. Mr. Rumbough testified that the Swiss |

Horse chopper is,no longer manufactured but during the |

form of the lieense and royalty was 2¢ per device which

<M at $7.98 each less 50°>. The license agreement under

which Enterprise. Manufacturing Co. operated was iden- |

tified as Defendant’s Exhibit 117 and it showed, among

other things, that it included Canada as well as the United:

; e- l . .

. — 59a —

States; and.also Mr. Rumbough testified that the Zeller

patent had not been adjudicated. Also the licensor sold

to Enterprise $20,000.00 worth of inventory and equip-

ment whith was td ve paid for by licensee by an additional

royalty of 8¢ per device and not less than $2,000.00 per

year. Failure to pay was cause for cancellation of the

license. In addition Enterprise was to assume licensee's

contracts for the purchase of parts and cartons as set

forth in the written agreement, Defendant's Exhibit 117.

Licensor agreed to supply to. lieensee, without eost or

‘charge, certain art work. ents. mats, electrotype and all

advertising and publi, » material relating to the food

chopper as set forth in Paragraph 14. These and other’

variations are apparent from the written agreement, sO

that the Enterprise license is not helpful in determining:

a reasonable royalty in. the instant CASE, :

XVII. Samuel JJ. Popeil, pres sident of defendant com-

pany, identified his patent 2.599.!12 and a doughnut maker

made of: plastie hr his, company under said patent. The

patent was never adjudicated. He identified a license

agreement (Defendant's Exhibit 113) permitting D.RMew

Corporation to make doughnut makers of metal for a

royalty of 2¢ per device. There is nothing in the agree-

ment about the price of licensee's doughnut makers and

Popeil retained for itself the right to make dou chnut

raakers of -plastie which sold for 471 o¢ each.

XVII. Lawrenee (. Kingsland, former Comimissioner

of Patents, testified that a reasonable royalty under the

_ Zysset patent claim 2 would be 146 per chopper. He

stated that he based this opinion upon the testimony of

Mr. Hoods which, as he heard it. was to the éffect that

214% on deviees of this character would be re asonable.

Commisstner Kingsland’s qualifications, experience and

standing in the patent field were made a part of the record

— 60a'—

and are unchallenged. The court attached much greater

“weight to his.testumony than to that of the other wit-

nesses. His opinion of a fair royalty, together with all

‘of the t facts and circumstances known to the courts in this

cause, has brought this court to the ultimate conclusion |

that a fair royalty payment in this ease is 4¢ for each of

the 3,152,578 accused units sold by defendant.

XIX. An award to plaintiffs based only upon -a rea-

sonable royalty would be.in conformity with the’ law. An

award to plaintiffs based on reasonable rovalty would,

together with attorney's fees, be adequate compensation

for defendant's infringement of the patent in suit, taking

all things into consideration.

Es. When sold as retail shelf merchandise, without

aid of a “sales. piteh’’ or demonstration as Popeil ‘did,

plaintiff Zy sset’s commercial food chopper was not a com-*

mereial success ins the United States. Only 3.883 units.

were shipped . plaintitt Zvsset for sale in the United

States during the.six-year period from 1952 through 1957.

XXTI. On June 12, 1958 defendant filed a counterclaim.

which charges plaintiffs Karl Zysset_and New-Nel Kitchen

Products Conipany, and, in addition, Arthur O. Nelson,

individually and doing business as Crestline Products or

Crestline Company; Harold’ Newman: and Crestline Prod-

ucts Company, 2 corporation; with breach of an alleged

oral contract and unfair, competition in ‘connection with

defendant's food chopper. Defendant. in that counter-

‘elaim, also alleged that it owned a trademark CHOP-O-

MATIC and that the trademark is the subject matter of

United States Trademark Registration No. 656.075. Ad.

ditionally, defendant alleged that it owned unpublished

manuscripts protected by United States Capyright Regis-

trations Nos. €-9560. C- 9637 and ©-10296.:

XXII. The con*ract which defendant alleges Nelson

entered into with it was an alleged oral agreement rela-

tive to the sale by Nelson of Popeil's CHOP-O-MATIC

devices. Nelson testified that there was a discussion about -

a proposed agreement té be submitted to him in writing.

Several months after that discussion, and after Popeil

submitted a proposed written agreement dated December

28, 1956 which contained several provisions’ never previ-

ously discussed between Nelson or anyone on his behalf,

and Popeil Brothers. Nelson never signed or accepted the

proposed agreement. ,Defendant was unable to produce’

any notes made at the meeting between Popeil and Nelson

relative to the contents of the, proposed written agree-

ment. Mr. Popeil testified that there was no proposed |

agreement with Harold Newman or New-Nel Kitchen

Prodacts Company. The proposed agreement required

Nelson, who. was doing business under the name of Crest- |

line Products, not to sell any competing choppers for a

period ‘of tive years. Such provision would be in violation

of the arititrust laws. Another of the provisions of the

agreement .was that it was to last five vears. At the.

trial Popei! testified that the five-year period was to. start

‘at the time Nelson first started to sell Popeil’s CHOP-O- ©

MATIC devices in the summer of 1956;. but, in a deposi-

tion previously taken, he testified that the five-year period:

Was to start on December 28, 1956, which is the date of

the propssed written agreement. ‘The proposed agree-

ment contained several other provisions which Nelson

testified were not-acceptadle to him at the time he first

saw the propesed agriement of December 28, 1956. Testi-

mony was taken relative to the alleged oral agreement

hetween Popeil Brothers and Arthur ©. Nelson, doing:

business as Crestline Products, but, the evidence does not

satisfy this court that there was anv agreement of the

nature ‘charged by defendant entered at any time between

-— 62a —

Popeil Ni on the one khend, and Arthur O. Nelson,

individually or doing business as Crestline Products Co.,

on the other hand.

XXIII. No ‘evidence was: introduwed which shows in

‘any way that Arthur 0. Nelson or any of the counter-

defendants éver used, infringed, traded upon, disparaged

or in any other way ‘committed any act in violation of

the rights anyone, including “Popei! Brothers, may have

-in the name ‘or trademark CHOP-O-MATIC. The evidence

adduced does not establish that “Popeil Brothers is the

owner of Trademark Registration No. 656,075, a’ registra-

‘tion far CHOP-O-MATIC.

XXIV. No evidence was introduced to ‘show that Nel

son or any .of the other counter-defendants ever used,

| copied, inftinged or in any other way appropriated, any

part of, or the whole.of, any of the manuscripts corre-

sponding to United States Copyright Registrations C-

9560, C-9637 and C-10296. _

XXV.. The fact that Arthur 0. Nelson may haye had

access to the copyrighted manuscripts and that one or

two salesmen who purchased food choppers -from Crest-

line Products observed a demonstration by Samue! Popeil

or one oceasion, and perhaps observed demonstrations of

food choppers by persons selling CHOP-O-MATIC. food -

choppers on other oecasions, is insufficient to establish,

and does not’ satisfy this court, that Arthur ©. Nelson

or any one of the other counter-defendants used that

copyrighted -material, or copied that copyrighted material

either in verbal or #n written form. In fact, the only direct

testimony introduced by defendant Popei! Brothers on

that point was through Mr. Samuel Pope?! and he testi

fied that no information ever eame+to him whieh indi-

cated that Mr. Nelson or anyone working for Mr. Nelson,

or on behalf of Mr. ar ever. made any uae/of the

copyrighted manuscripts and that Mr. Popei! hyd no way |

of knowing whether Nelson®had ever nr 1 suel

manuscripts. or encouraged’ their use.

OXXVEL dp 1956 Popeil said Crestline 10¢ < on -CHOP-O

MATIC choppers purchased by Crestline customers. Mr

‘Nelson testified that at the time Crestline was pirehasing

CHOP-GOMATIC Ss efrom Popeil it paid a price of $f.00

‘each and that Popeil said that an the event any of Crest.

line's customers ordered direetts trom Pope, @resthiye

would: be oredited We per devieeoand to cover this Paper!

would eharge such customers S110 for eaeh devices Vs

appears from thy HeSTUTOE that the total erccite an such

matters mounted te several hundred dollars (ne more

than several thotisand choppers); that the eredits were

given for sales cspryor-te the issuance of the Zvsset patent.

and that the safes for which eredits were given were nor

included in th» infringing sales reported an. the Voper!

Statement of Account .

XXXVI] There was no evidence inttdduced whatexos

as to the existefies of any contract, or breach thereot,

hetween Popeil and Kar! Zysset, Popeil and New Nel

Kitehen Product: Company, Popeil and Hareld Newman.

and Popeii and Crestline Product. Company. a corpe

ration;.and there was ne evidenee introdueed: in suppert

of Popeil’s charge of unfair cempetition by any of the’

“eounter-defendants disparaging * Popeil Brothers’ rood

choppers. [tf appears from the evidenee that Mr. Samue!

Popeil and Mr. Arthur ©. Nelson discussed a contract

. but that ne contract Was even completed between Popes

Brothers and Arthur O. Neison. -

XXVIII. No evidence was intreduced on the part ot

counter-defendants relating to damages whieh they mugs

on | _—- Gla —

have suffered as a result of the alleged acts of unfair.

competition, as a result of the'acts and practives alleged

to: be in violation of defendant's purported copyright

and trademark rights, and as a result, of: éounter-defend-

ant’s purported breach: of contract.

XXIX. On July 12, 1960 there was filed in the United. —

States Patent Office’a disclaimer, identified as Plaimtoffs’

Exhibit 109, of claim 1 of Zy sset patent in suit 2,782,826

of February 26, 1957, ; ot

XXX. On. May 1s.. 1962 defendant filed a motion to

dismiss based on, the plaintiffs’ disclaimer identified as

Plaintiffs’ Exhibit 109

XXXI. The parties have einen as to the reason-

ableness of the fecs incurred by. the plaintiffs hereim as

set forth in Plaintiffs’ Exhibit 208. ‘Phe court) tinds the

services and disbursements Teasonable under the cireum-

stances of this case. The fair value of attorneys’ fees

so <tipnleted between the parties is F422, whieh are

hereby found to be due and payable by the defendant to

the plaintiff. (It as reteworthy te add thaf plaintuf (<1

should he de fenckant ). fas been gllowed S4288050 for ats.

attorneys) tees and disbursements ;

XXX. The court tinds that this is one of those rare,

‘eases in which'an infringement has been a Hessing in dis,

guise? that only the skill, salesmanship and business acu

men of defendant and its principal officer, Samuel Popeil,

has brought a financial reward t9 the plaintiff in tle

form of a fortuitous windfall if this judgment is finally.

collected. The defendant did cet legal counse! tetore

acting in ‘this case’ and that. counsel was to the effect that

plaintiff's patent was anvalid.

For all the reasons herein set forth, the court does not

allow any exémplary damages to the plaintiff. The court

takes judicial notice of the fact that the def ndant @id

; Ga — a

not in fact retain the whole amount of net profit, $455,

293.1 ; : that itis a corporation subject to eGrporate taxes

which reducved the amount accordingly, * :

defendant in the amount of One °“Huafdred Twenty-six

Thousand, One Hundred Three and 12.100 Dallars WH1U6,

and ay set forth in th\ Judgment of October 8. POS, as

ae affirmed by the Court of Appeals on Febybory YW 19a,

and us modified by thd Court of Appoals on Aj ril 14,

1960, plus an additional jum of Fifty-feur Thousand, Two

Hundred Twenty-two: and 26 100 Dollars ($54. 229.96) for

services’ and disburse ments of plaint iffs" counsel, plus ‘an

additional gmount of Twa Thousand Dollars ($2.80)

covering services and disbursements of plaintiff.’ coun e!

103.12) as damages for the infringement complained of

XNXIIL. Plaintiff aro entitted to a judgement “avainet |

since January $1, 1902). Plaintiffs are also entitied to tix

able court cysts to be fixed by the Clerk ;

Coxcirsions of Law

1. As to an accounting’ in a patent infringement suit,

thesapplic: ahle statute relating to di mages feads’ (25 U.St!

24): . = te oe Mat

“Upon finding for the claimant. the court) shall

award the claimant damages adequate tu compe nsate

for the unfringement. but ino no event I¢ss than’ a

reasonabl : royalty fer the use made of the imvesition

> ° bw the infringer. together with interest and” costs

as fixed by the court | i

*- When thy damages are not found by ‘a Jury, the

court. shall assess” them. - In either event the court

may increase the damages up to thres tunes the

amount found or assessed.

The Court may receive export testim TLV: ‘is; ‘ats nid

to the dete rmunat ion “of damages or of what rovalty

° =n would be rea sonable under the circ ulustances.”

— 66a —

2. It is well established that a patent, owner in @&

patent infringement action is ‘entitled to recover the profits

- which the infringer has made by reason of his infringe-

ment. The defendant's costs of litigation, income taxes

and. salaries of officers in a closely held corporation are

not properly deductible in arriving at the net profits to.

which the patentee is entitled, The court is réquired to _

make an award to the patent Gwner not less than a reason-

able royalty for the use’ of the patented invention. The

court has received expert testimony as an aid to the deter-

mination of damages as to the amount of a reasonable.

royalty under the circumstances in this case.

A reasonable royalty for the right to manufacture and |

sell vegetable choppers of the patent in suit during the

period from February 26, 1957 to February 11, 1960 woald

be nat less than 10¢ per device.

3. A manufacturer who continues to manufacture a

_patented device “with knowledge ef the patertt but with-

out a license does not have the right to demand, after

‘having been held to infringe. that the measure of.damages

for his infringement is the amount which would have

been’ a reasonable royalty for a license over the ‘period

of his infringement. The reasonable‘ royalty referred, to

in the statute. is not a limt to the amount of oe

for infringement but is’ a lower limit which must he j

any event awarded -to ‘ patent ewner if there are not

other satisfactory proofs of profits and damages result-

ing from the infringement. In this case, there is satis-

factory evidence .of the profits and gains which defendant

made from its infringement-and, under the evidence, the

award ‘to pldintiffs herein should not be limited to p

reasonably: royalty.

4. Defendant, in its counterclaim, charges plaintiffs

with breach of contract dnd unfair competition arising

é.

—67a—

by reason of an alleged agreement ssibaseans defendant,

Popeil Brothers, Inc, and Arthur 0. Nelson, individually

‘and doing business as Crestline Products. The defendant

also charges. counter-defendants with the commission of

acts in violation of its alleged trademark rights and

Produets Company and Harold: Newman’ are concerned,

‘there is no evidence which connects them with the alleged

_ contract, with the alleged breach of contract, with any

Xx acts of unfair competition, or With any violation of copy: |

right or tradémark right helonging to Popeil Brothers.

No evidence as to damages was introduced by Popeil

' Brothers: Defendant's counterclaim as °to, Karl Zysset,

New-Ne] Kitchen Products Company and Harold) Now.

man is dismissed. |

n~ business. form including Crestline Products Company,,

& corporation, is concerned, the most. that appears’ from

the evidence, even IScking at it most favorably to Mefend-

ant, is that Nelson and Popeil Brothers disenssed a con-

tract which was to he reduced to Writing hy Pope ‘Broth.

ers and that, without discussion with Nelson, Samnel

’Popeil and his attorney ‘prepared a proposed agreement

which included provisions’ which had not been discussed

with Nelson and which, when submitted to Nelson, Nelson

refused to execute. There was no contract of the char-

acter, alleged hy defendant in its complaint. entered iyto

between Popeil Brothers and Arthur O. Nelson, individu:

ally or in any business form. Nelson's refusal to execute

e proposed agreément of December 28, 1956 was not,

ir competition. neither has defendant proved

that -Affhur O. Nelson, igdividually orn any business

form, has in any way unfairly competed with dyfendant.

Even if there were 4 contract, as alleged by defendant,

— 68a —

sinve ‘that contract wis to last for a term of five vears,

and since, it, was not in writing and is unsupported by

any memorandum, it is unenforceable because of the

Statute of Frauds. Furthermore, there ds no evidence:

or anyone on his behalf, made any use of defendant's

trademark or copyrights, .or in any Way violated whatever

rights’ and interests Popeil’ Brothers may have in, the

trademark CHOP-O-MATIC, and in Copyright Registra: .

tions Nos. C-9560, C-9687 and €-16296, As such, defend-

- hk individually, and doing business as Crestline Prod-

ucts, or Crestline Products Company, a corporation.

6. The disclaimer filed by plaintiffs and identified as

Plaintiffs: Exhibit 108 is a good and sufficient disclaimer

under Section 253 of Tithe 35 U.S.C., and defendant's

motion to dismiss based thereon should be: denied.

JUDGMENT

‘Upon the record and proceedings, it is.

Ordered:

. That defendant? s -ecounte re laim be, “and the same

hereby is dismissed.,

2. That ‘chai Motion to dismiss hased upon the

disclaimer be, and the same hereby is denied

3. That plaintiffs have judgment in the sunk ¢ of $126,-

103.12 as damages and $56,222.26 for services and “disburse- ;

ments of plaintiffs’ counsel; making a total judgment of

$i 2,020.38 ; - i

It is also ordered:.

That the Clerk of this court tax plaintiffs’ taxable costs

and that the plaintiffs have judgment therefor.

ORDER OF DISTRICT couRT DENYING RELIEF

_FROM JUDGMENT .

* ORDER ere

This cause having come on to. be heard before the Court -

upon defendant's Motion for Relief’ from Judgment Under

Rule 6G0(b) and'to hear alleged: newly diseoyered evidence.

cand plaintiffs’ objecting to the filing of said Motion and

counsel having been heard and it appearing to the Court

that the evidence alleged m said petition to be newly dis.

covered even if tunely presented with exercise ef due dili-.

Fence is not of such nature as to change the Judgment

herein; | |

Now, therefore, Tt Te Ordered :.

1, ,That said Mot iow and the fils ne thereof be und here

hy is deviled and refused. “The question of eosts and allow

anee for attorney's fees is reserved:

so. S. Perry

‘

» Pudys

November 12, Ee . : |

EXCERPTS FROM TESTIM INY OF LAWRENCE

t’.. KINGSLAND. Take nm from Consolidated Addi-

tional “Appendix app wearing in formal record. Side

* paging here is to pages of Consolidated Additiona!

Appendix. }

Sb 0 Mvonaine is Lawrence € Kingsland. | reside in St.

Louis, Missouri. ;

_ 4b T have engaged in the practice of patent and trade. |

. me . . « -

Inark law: since 190s. ] whs Commissioner of Patents

froin Soptember 1947 through the year 1949.- 1 have

Sabse acted as special assistant to the Atrornes General

im charge of antitrust matters in which |] had the re

15b

—Wa— es

sponsibility for the patent questions. -1 have had other

= one of Which was threugh the State De-

partment. -1‘Spent, in 1947, U.--« months at Manila

at the time the Philippine government was anxious to

2+4b

25b

have a patent and ‘trademark code drafted, and on

the recommendation of the State Department 1. acted

as ‘dviser to the Philippine government. I am amem-

ber of the Patent Compensation Board of the Atomic

nergy Commission. — eu eh

Q. How does thy rotation of the blade [of the pat-

ent in suit} relate to the wiping function of the blade

as : passes through .the slot of tue wiper cup?

So far as: the wiping function is concerned,

Rea or not it is rotatable makes no. difference

Whatsoever. That ts, the function of the blaae, the

single sinuous Dbiidde, operating im the slot would per-

form that function just as effectively whether it. Was

rotating or whether it wasn’t rotating,

Q. Does this Thek of relationship between the Wip-

ing function and. the rotation function have any term’,

in patent nomenclature? ;

“A, Yes. We often refer to that as aggregative,

and it certainly—where the function of the blades and

its wiping function in the wiping plate’ is concerned,

that’s entirely separate as to whether or net the blade

~ and plate ratate, and it’s alse of course vety. definitely

separated from the subject matter as | see it in Claim

\. Ex aa Y, $

Q. Do the structure and function of blade-wiping

caus? the indexing features of claim 1 to perform any

_new function in the combination ?

A. There's no re lations ship between the function at-

_tributed to the blade operating in tHe slot, a sinuous

‘blade or a zigzag blade, whichever one wants to call it,

26b

by manual movement

—T7la—.

that is an entirely independent functional relationship

between those members, that has nothing to do what

soever With whether or not they rotate in a particular

way, that is, by indexing or whether they rctate freely

f : . :

Q. Do you have‘any knowledge as to what, the Pat-

ent Offite examining practice is as to dependent claims ?

°° * A. “Weil, to this: extent: Where there is

a dependent claim. the practice is to examine forthe

basic subject matter expressed in the antecedent or

base claim. Finding that allowable Jit is the practice

to allow dependent claims, because the dependent claim

carries over into it all of thie base-Claim:, and there.

fore the examiners look at a dependent claim as merely

a further limitation 6n the subje et matter of the base

_ ¢laim.

. . .

Q. How do you know this’ :

A: I know this from my practice of over fifty vears,

prosecuting’ application: | know it from discussions

in the Patent Offite, and | also know it from the deci

sions. ‘It’s just a— It’s a well understood practice.

Q. Have you ever In your experience encountered

a rejection of a dependent claim onee the base claim

has been allowed

A. No, because ‘they are considered together, as |

have explained. Ones the base claim is allowable n

the judgment of the Patent Offices the dependent claim

“as earried along without any turther disefission., and

no rejection have J everthad of a dependent. clain

where the origina! claim Was allowable.

Q. With respect te that eustomary practies b wonid-

like to ask vou as te whether or not the practices wa.

followed in the prosecution of the Zysset patent in

allowing claim 2, and Twill ask you first. have: .vou

cheeked the Zysset file wrapper with respect to the

subject matter expregsing claim 2?

A. Yes, | think [ said that. as to what ' had done

and [have éheeked at.

(). Is there anything that has been stated in th: it

‘file wrapper with r respect to thie subject matter of claim

> te : : @

JA. Yes, there was a Origimaliv., as V-reeall it

there were certain Claims submitted which meluded

among them the subject-matter of whateultimately |

enine claim 2.) That is, it was direeted to this continu.

ous sinnous krite end the clearancve-—-or cleaning-plate.

wiper plate, with. a’simuous slotoim it, and that) wa-

claimed, and my recollection is that the Patent Office,

ethe examimer at the trne said that that in itsell Was -

nit patentable subyect matte

~Q. With respect to tour last statement | would tike

to reaa fo vou trom Piaintits Exhibit 3. the tile wrap

per ot the Zysset- patent mi sur

. « .

se 8 The addition of a wiper oromeans fo

chonur the -Blade gr handleown the upward stroke

Hhereafois held ta be an ebviens expedient whieh

does not invelye iiVvention

Is that the stateinent to which vou had reference ?.

. all * e

Mr. Horton: TP object, that wis exammmation as te

the tile avzapper aod the seope agd interpretation ot

the clainais a matter whieh is net ‘before vour btioner

and whieh eannot be before your Honor, in view ot

the mandate of the Courtoor Nppeals, and it's strictly

a question qs to what the Wilson and Mcaliay pater:

— 73a —

is, whether that is, truly newly discovered evidence and

whether that affects the judgment.

The Court: Well, I believe, Mr. Horton, ‘if that is

’ admissible, however, evidence on that, | think then

28b

they would be allowed to ask questions comparing the

two patents. I think I will have to let it in. Objection

overruled. .

A. That was the statement that I had in mind, and

simply illustrates, as 1 believe, what | understand to

be the practice. In other words, later on I think you

will find in that file wrapper after the examiner came

to the conclusion that what ultimately became claim 1

of the patent was allowable, then this same subject

matter, which became subject matter of claim 2, was

simply allowed as a matter of course,:;which followed

the practice that | attempted to elucidate a few min-

utes ago. ’ ~

The Court: Well, is it your.testimony that they

- didn't thoroughly examine 2-but just allowed it. to go

int Is that your opinion? , .

The Witness: No, | don’t think it’s a question of

fayrness at al!. I thirk that the whole matter is this =

“The Court: [ didn’t mean fairness. | meun after

they had alliewed | to go in then, as i understand 1°,

2, being a dependent claim in vour viewpoint, thes

didn’t really examine into 2 berause they thought it

wasn't necessary. - Is that what vou mean? .

The Witness: Well. what [ mean is this: -Thes

dont go to th: pry rart after they have found that

there is allowable subject matter and then a depenc

ent elann is pdded, because the dependent clan tenc-

to narre subrect matter whieh they nay airead

found to he aliewab.

/ —T4a—

(Exhibits From The Record Below)

PORTION OF PLAINTIFFS’ EXHIBIT 3-—- -

FILE \,RAPPER OF PATENT IN SUIT

“Claims of Original Application

4156284 -

What I claim as new and desire to secure by

Letters Patent, is: .

4: fn @ vegetable chredder comprising @ Lell

tet ree tite

tod te be put omer she goodie 40 be shredded; ond

mamnsliy deprenuble by @ opring-londed weluating

stem sid ert

ting meane on eneh aetnation being angularly mor

the provisten of a seeket tn the upper portion of

wetted treehertetet,

oatd socket having « plurality Of intermel helien!

ttre:

of @ cheeling mentns tronted an the tower end

portten of satd

etem Sone SnenennG TENEREr CoMENNNNG Fhe Sine

- — 75a —

Plaintiffs’ Exinibit No. 3. *

satd Hotes and spring means adupted to prevent

the eredtoney

te rotate tt the tact stage of tte epward meventent

xt wegetable Go seb Ons te late +

te wehtehk the ehe-

Chetry sember acl pas cael eects rotatably tote

iG Shane oF he ks A a

trtegratty en satd:

steete: and « heltedt torsion oping eoted abort He

Sten; ere ;

end of satd spring being anchored tn atid sleere

se thatthe .

spring + detaphed from the stent on depression

theres? and frie.

Honity engaged thereto on the tepreatd stroke

theres? en ardor

to anequinrty rotate the steve and He entting mer

Faby.

3 st eegeteHe shredder 49 se Ores tre bette 4,

tm tehtek hose

std to eonsitinted of tie ttereonnectetie panties,

Fee COE

SF tHE seoteetetty Geet eneteellyy tormented /

mounted tn the

Per mnp rete

be of wegetable shredder 9 eet out tn elaine

on vette the ent

deep recone ts alee oeol tiie Sieh pesoce

Se eaetaanetiodiadkane :

trots atet of ontd epee. .

4156285

ae ee

er Ht vegetable shredder @9 et out én elaine 4,

te tehtel & red

t+ seerered do the tower end of the stem wt wight

Ht tet bbe

rn a

‘of opentngs

tre ORE HtEtEe

Insert A’

415628—6

— 76a —

- Plaintiffs’ Exhibit No. 3.

Paper No. 3.

Address only The Commis- All comr.-nications respect-

sioner of Patents, Wash- ing this application should

ington 25, D.C. | zive the serial number, date

i of filing, and name of the

applicant.

(Stamp) Mailed Oct 26 1954 Pat. Div. 5.

DePaRTMENT .or COMMERCE

United States Patent Office

Washington

Kari Zysset

c/o P. E. Baumann |.

Metieednte. 5

Kilchberg B. Zech. at ; fy

‘Switzerland :

Please find below a communication from the Examiner

in charge of this application.

Robert C. Watson,

Commissioner of Patents.

Applicant: Karl Zysset

Ser. No. - 415,628

Filed Mar. il, 194

-For Vegetable Shredder

This application has been examined.

References applied : ele

~ Hlanel 8.140.010 Dee 13, 1988! 146-149

Suter (Switzerland) . 155,720 Sept. 16, 1932" 146-69

(1 sht drwg., | 2 pgs. spee.) *

In, the specitieation the brief descrintron of Fig. 1 should’

state Where this seetion is taken and an appropriate see,

tion line should’ be shown on fle appropriate figure’ The

brief deseription ‘of Fig. 3 shouid state where this ser

tion is taken and steuld further state that this view shows

party broken awa

Page 3, line 3, the “openings” should be provided with

a reference character. Line 4, the ‘knife edge’’ shouid,

be provided with a reference character. Line 2, refer-

~ enee character ‘‘lo’’ sheuld be changed to. 10.

o Pa

= a—

Plaintiffs’ Exhibit No. 3. -

Page 4, lines 24 to 29, the modification described should

be shown on the drawing or reference thereto in the spec-

ification should be canceled. - .

Claim 1 and dependent claims 2 to 5 are rejected as

_ being aggregative in form in that claim 1 recites elements

without setting forth the structural relationship between

ag elements and the other elements recited in th: claim. . .

‘or :

_ 415628—10

‘Serial No. 415,628 —2

exanfple, in line 10, the ‘‘spring means’’ has not been

structurally related to any fther element or elements re-

cited in the claim. See In te Hall 614 O. G. 11; 1948 C. D.

534. The functional stateraent which follows the recitation

of the ‘‘spring means’’ does not serve to structurally re-

late. the ‘‘spring means”’ to the other eiements recited in

the claim. ‘

Claims 1 and S-are further rejected as being unpat-

entable over the disclosure of the patent to Hanel. The

patent to Hanel shows a vegetable shredder which .com-

“prises a bell like housing 60 which is formed of two in

terconnecting portions 70a and 706. A cutting means 75

is manually depressed to.engage material being cut by

means of the spring loaded actuated stem 72 and. the hand.

member S2‘at the upper end thereof. The member 70a is

a checking member and the portions 78a are held to be

‘the full equivalent: of applicant's two cams: which co

operated with the stem 72 to retate the stem and biade

during a certain portion of its movement. To place the

spring 86 about the stem 72 instead of about the member

Tia is held to be merely a matter of choice or design which

does not invelve invention ‘

Claims 4 and 5 are rejected as being unpatentable over

the diselosure-of the patent to Hanel in view of the dis

closure of the Swiss patent 155.720

The manner in which the Exanmner apphes the patent

te Hane! te appicant’s construction has been set forth

above. To replace the blade at the lower end of the ac

-tuating member 72.0f Hanel with a biade of the form

shown hv the Swiss patent 155,720 would ‘not invelve in

vention. In this connection attention is directed to the

‘shape of tue blade ef the Swiss patent as illustrated in

“ies. 2 and 5 of the Swiss disclosure,

fons ney 415628—1!

— 78a — o~

Mawmtiffs’ Exhibit No. 3.

Serial No. 415,628 3

The addition of a wiper or ‘means to clear the blade .

of Hanel on the upward stroke thereof is held to be an

obvious expedient which does not involve invention.

1 to 5 are rejected.

No claims are allowed.

“ C. W. Robinson, -

Examiner.

L.W.J. ;

L. W. J ites :de

415628—12 —

J anuary 28, °55

6049

( ieeen) Mail Division Feb 10 1955 U. S. Patent Office:

Received. Fet 11 1955 Division 5 pup No. 4/A.

@. iw.

Pat. Div. 5

Ser. No. 415,628

Filed Mar. 11, °54

Apll.: Karl Zysset

The Commissioner of Patents,

Washington 25, D. C.

Dear Sir, :

This is & response to the Ist O.a. of Oct. 26, °54. In

the drawings, pleage insert the corrections given in the

enclosed sketches. This, however, need not be done be-

' fore a ciuim(s) is granted.

In the specificatior

page 2, line 14, please insert ‘after ‘section ’’—substanti-

ally o. the line 1-1 of Fig: 2—;

line 17, insert after ‘‘Fig. 1’’—on the line 3-3 of

Fig. 2 with parts vroken away—;

page 3, line 3, after ‘‘openings’’ insert —Sa—-; line 4, i

after ‘‘edge’’ inserjg—Sb— ;

page 4, cancel the liness24 # 29, line 25, cance} “une”

page 3, line 26, insert—helical—before ‘“guide grooves’

— 79a —-

_ ™

Plaintif's’ Exhibit No. 3.

Claims : Cancel the claims 1 to 5 and write instead :

‘ag

_Cont’d

Beer

~— *(1)_ 6 Ina vegetable shredder comprising a

two-part bell-like _ ,

housing *(HAVING AN UPPER AND A LOWER

PORTION AND) adapted to be put over the

goods to be shredded, and 2 :

a knife blade manually depressable by a spring-

loaded actua- .

ting stem *°(WHICH HAS A LOWER END POR.

TION), said blade *(BEING MOUNTED ON

THE LATTER AND) on each actuation being an-

gularly movab- ;

le by an automatica!ly-operating indexing device,

the impro- .

‘ved indexing device inciuding a socket ir the

upper housing ; *

portion, said socket having a plurality of internal

helical

grooves, and a checking member rotatably but

axially immovab- ~ s .

ly mounted on the lower end-portion of the stem,

- said checking

member comprising a ring seated on said stem

portion, a slee- ; ee

ve mounted on said ring and having two diametra]

cams enga- : eas

‘ geable in said grooves, and a helical torston spring

dispo-

sed in said sleeve and coiied about said stem por-

tion, one

end of the spring being anchored in the sleeve

and the other

__bearing“tr said ring; the whole in such combina. -

tion that on

depressing the stem the checking member in the

first stage *

yes Ye 445628—13

Aq 7?

‘Is rotated in one direction relatively to the stem.

and the a, mat

spring is disengaged: from the latter, while the

stem and kni- .

cee |

— 80a —

Plaintiffs’ Exhibit No. 3.

. blade are not: rotaied, and that 1 in the last stage

of the

stem’s upward movement the spring engages the

stem and the

“latter together with the checking member and knife

blade are

rotate. in the other Svoution:

°(2) A vegetable shredder as set out in

knife blade is sinuous, a wiper: cup is rotatably

' but axially

perB immovably mounted in the *(LOWER) brent

portion of the housing for .

clearing the blade on the upward stroke thereof,

said blade

‘‘-C: passing ‘through . a, continuous *(SINUOUS)

‘ meander slot in the bottom of = =§ ~

the wiper cup, and a blade-carrying rod passing

; in tight fit

-** 83 through a plurality of openings in the blade * ( AND

BEING SECURED TO THE.LOWER END

~PORTION OF THE STEN). =

References applied :

Hanel’s. chopper has an action similar to that of my

shredder, but its construction is complicated. The. prin-

cipal difference lies in the stem which comprises helix ele-

ments, whereas the stem in my shredder is a plain round

rod. Hanel does not mentic 1 anywhere that the knife will

rotaie only in the last stage of its upward stroke.

- Suter’s knife (Fig. 5) is bent ir z-fo-m, while the knife

in Fig. 2 is non-continuous but comprises three straight

sections &, only the knife-mount 7 being continuous.

Neither Hanel nor Suter show my carrier rod 7 nor my

wiper cup 3. .

I believe that my new claims 6. and ‘7 clear-the Exam-

iner’s ’s objections based on the rua applied.

Yours very truly ;

Karl Zysset

Encl. : | : \ .

2 sketches lees. >

. A2 415628—14

* Matter tn parentheses inserted. fae / ome

— 8la —\

PLAINTIFFS’ EXHIBIT 109.

(Filed, August 9, 1962)

U. §. DEPARTMENT OF COMMERCE

United States Patent Office

; June 2. 1961

This Is To Certify that the annexed is a true copy from

the records Of this office of Disclaimer, filed July 12, 1960, .

ine Patent 2.752.826, granted February 26, 1957, to Kar!

Zysset, for Vegetable Shredder. oa

. by authority of the

Cominissioner of Patents

s F. R. Oliver

Certifying Officer.”

Led"

sa (See memo July 29, 1960)

UNITED STATES PATENT OFFICE

. Patent Offies

Jul 1S 1960

* Patentec’ — Karl Zysset | Issue & Gazette

Patent No. — 2782826 - ~ Branch

Issued — February 26, 1957 ~ Recorded

Improvement —+Vegetable Shredder U.S: Patent Office

. Issue Division”

rial Jul 12, 1960

To The: Commissioner O* Patents: .

DISCLAIMER.

Your petitioners, Karl Zysset, residing at Lyss, Switzer

_land, a citizen of Switzerland, and New-Nel Kaitehen Tred

ucts Company, a corporation organized and existing un

der an by virtue of the laws of the State of Dliimois. has

ing its principal place of iasingss at Chicago, Tlinots, rey

¢ A )

, oy Ba

resent that they are, respectively, the patentee and legal

owner of, and’ exclusive licensee to make, use ‘and: sell the

patented’ invention under, ao United States Letters Pat-

ent No. 2,782, 826, issued to Karl] Zysset for a eertain im-;

. provement in Vegetable Shredder qn February ,26,. 1957,

and that.they have reason to believe that, through inad-

vertence, accideut or mistake and without any fraydulent

or _deceptivedntention, elaim 1 of said Letters Patent ‘is

too broad or is invalid as held by the United States Court

of, Appeals, for the Seventh @udicial Cireuit on April 14,

1960, as seported in 125 USPQ 152.. Your petitioners,

therefore, hereby disclaim claim 1 in so far as‘it is a

separate and independent claim ‘of | said patent pursuant’

to the said opinion and the mandate: of the said Court of

Appeals thereunder, but do not disclaim the wording of

claim 1 in so far as it forms a part of claim 2 of said- -

patent by reference, having’ regard to the-holding of the

said court that said claim 2 is valid. -

Signed by Karl Zysset at Bern, Switzertand, thig 6th

day of July, 1960."

| /s/. Karl Zysget ,

Witnesses: . Pi MES

Se pees eet eeesesesereseseserreewesresesereees

—— Illinois, this 1st day of July, 1960.

New-Nel Kitchen Products .Company .

By /s/ A. O. Nelson - SR

ae President |

Attest:

/s, Mabel Nelson

Secretary ~ Moe a ie

ne aa aay Recorded

Issue Division -

Jul 12 1960

y . j aie ~

Y : . ‘ . x

nxiea - ‘by New-Nel Kitchen Products Company at.

= ae

Defendant’ £ Exhibit, No. 111-

. ‘SUMMARY OF NEW-NEL QU ARTERLY REPORTS

‘TO ZYSSET OF FOOD CHOP PERS SOLD,

ee Period . Net Unite

May 15, 1958 — Aug. 15, 1958 7.740 —

' Aug. 15, 1958 — Nov. 15, 1958 ah 64,584

Nov. 15, 1958 — Feb. 15; 1959 19,835

Feb. 15,:1959 — May 15, 1959 13,446 -

May 15, 1959 — Aug. 15, 1959 48,547

~ Aug..15, 1959 — Nov. 15, "1959 | 11,463 —

_ Nov. 15, 1959.— Feb. 15,1960, 9.460 -

Feb. 15, 1960 — May 15, 1960 ; 9,091

May 15, 1960 — Aug. 15, 1960 “. - 10,576

‘Aug. 15, 1960 — Nov. 15, 1960 7 11.694

Nov. 15, 1960 — Feb. 15, 1961 10,086

* Feb. 15, 1961 — May 15, 1961 | 15,584

May 15,1961 — Aug 15,1961 = ¢. . "12,861

Aug. 15, 1961 — Nov. 15, 1961 16090

Nov. 15, 1961 —- Feb. 15, 1962». ) - +, 11,928

i wt

. i *

; oad >

gl 4 - eo?

i —_ Stu — : 5

K. ZYSSET PATENT #2,782,826

| Feb. 26, 1957. "KK — . 2,782;826

Filed March 11, 1954 . .

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a K. ZYSSET PATENT #£2,782,826. ow.

"Feb. 26, 1957

Filed March 11, 1954

Fiz

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K. ZYSSET

2,782,826

wearmny SHREDDER

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K. ZY SSET. PATENT #2 2,782,826

United States Patent Office °

2,782,826

VEGETABLE SHREDDER

_ Kart Zymset, Lys, Switzertand

Appiication March 11, 1954, Serial No. 415,628

2 Claims. (Cl. 146—160)

sanually operable Vegetable shredders are known which

compre 4 bell-hke housing adapted to be put over the

gO00ds to ‘be shredded, and cutting means disposed im said

housing and depressable by hand against the atten of

y spring. said means when actuated being rotated step by

step ‘with the aid of ‘an automancally acuog indexing

device

in such known — id=:s, the cutting means such as a

or downward stroke ts moved by the indening device

. during the entice stroke

- Su-h known shredders, however, do not operate satis-

tactonly i that whea the knife rotates dunrg the entire

upward stroke, the goods ae angularly moved on their

bed by the cytting Means, thus rendering ineffective the

stepwise rotation for its mayor portcn. Such adverse

conditions are"aggravated when the knife rotates-dunng..

\e¢ downward stroke A further disadvantage of such

apis a shredders 1s that the stem which carnes the cutnrcg

mean ana the actuayng member, has to be, provided

th’ helical grooves on a length at least equal to the

vroke. whereby the manufacture of the shredder and. the

~ caning therdot os, rendered complicated and difficult.

Sait disadvantages are eliminated by the shredder dis-

closad bs my present invention in that the culting means

ire moved through a definite ange Only in the last stage

ot the ‘upwerd stroke .

In the shredder disclosed, the cutting means are con-

cuted by a single sinuous steel stmp passing through a

yeous slot of a Wiper cup which is retatably disposed

1 the housing If the wave hne of such steel stmp is

mace more or less sinuous, thé shredded goods are pre-

\ented trom being seized between the vanous sections of

rhe meander Amie. Such arrangement also eluminates the

yausantage arising in shredders having a stack of parallel

AMIN

19 provide tor easy cleamag of the shredder, the hous-

he Suita) v is net Made of one prece but rather of two

porttons detachab! ¢ trom each’ other, which when inter

Lorn: nected hold a wiper cup so that the latter is “rotatable

e moe atially movabic,

removable when the two portions ars disengaged trom

each omer

One form ct my invention is shown 1a the accompany -

ing drawings. in which—

Fig Lis a vertical secuon substantially on the Loe 1—1

ot Fig.-2 an which the cutting means is in the paised

Poumon.

Fig. 2 «9 a hormzontal section on the une 2—2 ‘of Fig. '.

Fig. 3 1s a section sramlar to Fig. | on the line }—3

ol Bee 2 with pafts brokea away, but in which the cut.

‘tung means 15 19 a partly lowe.ed posinon, and .

Fig 41s 4 partial view of .\ checking member which

\s turned through 90° from the vesition showa in Fig. |

The shredder shown comprises 1 bell-Lke housing made

up of a lower portion i and an wy per portion 2 of trans-

parent plasbe su¢h as polystyrene These two portions

are interconnectadle by means of \weads Ia and tu so

whilst said wiper is readily ,

70 (

Te ie nals our Gadi Ge cans od 0 en ee

open space of the applicance. A compression spring 5S

disposed between a recess 2c in a shoulder 25 of housng

portion 2 and handle 6, after actuation of the latter re*

turns blade 8 to its upper initial positon.

A wiper cup 3 serves to clean the muttple-bent knitc

blade dunng the upward stroke thereof in the operating

position of the shredder, said wiper cup bears on a

shoulder 14 of. cylindrical housiag portion I and is

freely rotatable when the two housing portions I asd 2

are screwed together, but the wiper has practically no

play in the axial direction. When the two housing por-

tions are unscrewed, the wiper cup is teadily removable.

From the apex of a wave line formed by a siot for

koife blade 8, extend a plurality of stiffening 3a

‘from two sides, which brace the wiper cup \

As mentioned in‘ the introductory part of the descnp-:

tien, the shredder is provided with an automatic index-

ing device which acts to angularly move the cutting micans

Said device, in contradistunction to known shredders, iniu-

ate, the rotary movement only during the last stage of

the upward stroke.

Prises on one hand the socket 2/ with helical guide grooves

2e and, on the other hand, & checking member disposed

on the lowes end portion of stem 4. This checking mem-

ber compnses a metallic ring 10 which 1s freely rotatable

on stem 4, a sleeve 9 which ts non-rotatabie with respect

to the latter and has two diametrically opposite cams 9a,

and a torsion spang Hi coiled about wem 4 and of

which the lower end Ila is anchored tn siceve 9 ~=The

latter ts cast or Pressed as one piece of sphnterproof

plastic such as “nylcn.~ The checking: member 19 pre-

vented from atial movement On one hand through a‘ stud

12 fixed to stern 4 and, on the other d, thgough rod

7 against which abuts a metallic washer. 9 of the check

ingmember. , ~* ;

The shredder shown operstes as foilows When ce

pressing knife blade. $ by means of handle 6, the check-

ing member is rotated owing to the cams 9 being engaged

in two guide grooves 2e in the sense of separating the

spring 11 from stem 4 The frmcuon between the oper

ator’s hand and handle 6 is considerably greater than

that between spmng 11 and stem 4 so that katte blade

8 cannot rotate Afier releasing the handic. the anute

first moves straight upwardly under tre actwoa of spring

5 Ia the tast stage of such upwarc movemen!, the cams

92 of the checking member are engaged in Ui: guide

grooves 2¢. Owing to the rotary movement of siceve 9

entorced thereby, springell is put ghtly about stem 4

whereby the latter 1s coercively rotated duping the re-

maining stage of the upward stroke. After cach operanon

of depressing knife 8, the latter is moved through a cer-

tain angie shortly before reaching tls powuon of rest.

What | claiin as new and desire to secure by Letters

Patect, ts

1. In a vegetable shreddet\ comprising a two-part beil-

hike housing having an upper and a lower portion and

adapted (0 be put over the goods t@ be shredded, aad a

knife blade manually depressable by a spring-loaded

actuaturg stem which has a lower end portion, said biade

Deing mounted on the latter *nd oa each actuation bewng

Said d@ice 1m the present case com- .

_K. ZYSSET PATENT #2,782,826 ~

é .

| 2,762,080 " "

3 : P ‘ 4 >

anguiarty movable by an automatically-operanng: wdex the ing member and inife biade are rotated in the

in the upper housing portion, said socket having a plu- 2._ A vegetable shredder as set out in claim |. in which

rality of imternal helical grooves, and a checking mem- the Knife blade is sinuous,.2 wiper cup is rotatably buf

ber rotatably but axially umovably mounted on the 4 axially immovably mounicd in the lower porti8n of the

lowes tnd-portion of the stem, said checking. member housing for clearing the blade on the upward stroke

comprising a ming seated on said stem portion, a sleeve thereof, said blade passing through a continuous sinuous .

mounted on said ring and having two diametrical cams slot in the bottom of the wiper cup, and a biade-carryipg °

engageable in said grooves, and a helical tersion spring rod passing in tight fit through a plurality of openings in

disposed in said: sheeve and coiled about said stem por- 19 the blade and being secured to the lower end portico of

thon, ose end of the spring being afchored in the siecve the stem. . :

and the other beanng on said ring; the whole in such ‘ ;

. combination that on depressing the stem the checking References Cited wi the fiie of this patent ;

member in the first stage is rotated in one direction reia- UNITED STATES PATENTS

_ tively to the stem and the spring is disengaged from the #3, :

latter. while the stem and knife blade are not rotated, _ = 149.010 Hanel --------.------- Dec. 13, 1938:

and that in the last stage of the stem's upward movement FOREIGN PATENTS

the spring engages the stemi and the latter together with 155,720 Switzeriand ............ Sept. 16. 1932

e .

° . ; ‘e

: a

z ; :

> .

- ° : oe

itn

MANDATES. 3 rs

° . (Filed Aw 7 1963).

UNITED STATES OF AMERICA, SS:

The President Of ‘The United. States Of America

To the Honorable the Judges ‘of the United States

District Court: Yor the

Kastern Division

(Seal of U. S. Court of Appeals, Seventh Cireait)

Greeting:

Whereas, - lately _ in the United States. District Court for.

the Northern District of Illinois, Eastern Division before

you, or some of yaii, in a cause between Karl Zysset and

, New-Nel Kitchen Products

Popeil Brothers, Inc...

Company, Plaintiffs, and

Defendant, District Ceurt No. 37-C-

763, a judgment Wale entered on the thirteenth day of

July, 1962;

as by the inspection of the transcript of the record of

the said District Court, Ww

lich was brought into the

United States Court of Appeals for the Seventh Circuit

Pic virtue of an appeal by K

chen Products Company agre

in such edse made and . provided,

appears.

And Whereas, in the term of September,

cur Lord. one thousand nine

said cause came on ‘to be heard ‘before the Enited 8S

arl Zysset And New- Nel — ee ee

eably to the act of Congress,

fully and at large

in the vear of

hundred’ and sixty-two, the

_— Court of _Appea! s for the Sew®mnth Circuit, on the said _

transcript of record, and was argued by counsel

On Consideration W hereof,

by this Court that in Appea

it is ordered and adjudged

ls Nos. 13939 and 13940, the °

ees

States”

‘

. a

" —89a—

judgment order ‘ne July 13, 1962, be, ‘and the same

fs hereby Reversed in so far as it awards -ds_ damages and

attorneys’ fees and disbursements in the sum of $182,- .

325.38, and costs; and that this cause be, and it is hereby

Remanded to the said District Court with instructions to

Wacate tha portion of its judgment order of July 13,,

- 1962,. and with- directions "to enter judgment for the .

‘plaintiffs’ in, the sum of $636,672.12, without costs; but —

with interest from the date of its entry. —

It is further ordered and adjudged by this Court that

_ in Appeal No. 14007, the judgment order of the said Dis-

trict Court-entered November: 13, 1962, be, and the same

is hereby, Affirmed. “ao ”

It is further ordered that neither party ‘is howed eosts

in this Court in these ‘appeals, in accofdance with tne >

opinion of this Court filed this day, Monday, June 3, 1963

_ And afterwards, bi on the’ eighteenth day of June,

_ 1963, there was filed in the office of the Clerk of this Court . . }

a petition for rehearing en banc, which said ‘petition for

” rehearing en bane was denied on the seventeenth day of

eee ae ae : .

. ~ You, therefore, are hereby commanded that such further

proceedings be had in said cause, as according’ to: right»

and justice, and the laws of the United States?aught to be

had, the said judgment notwithstanding. W itness, the

Honorable Earl Warren.’ Chief Justice of the United

States, the sixth dav of August, in the rear of our Lord. -

_ one thousand gne hundred-and sixty- three.

> /s/ Kenneth J. Carrick

Clerk of the United States Court

of Appeals for the Seventh Circuit |

By: /s/ Thomas F. Struhbe,

Deputy Clerk

— 90a — .

(Mandate in Appexl 13940 is identical with above save ~

for recital that the appeal was by virtue of = appeal by .

Popeil Brothers, Inc. ee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.