Respondents Brief — American Fruit Growers, Inc. v. Brogdex Co.

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“IN THE

Supreme Court of the Gnited States a

_ OcroBER Tena 1929.

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Amenicay Part Growers, Inc. )Pelitioner,.

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-BroGpex Contours)! Respondent. -

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_. BRIEF FOR RESPONDENT IN REPLY TO.

>. AMICICURIAE. © —

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. Cea Neave,/

¥ MELVILLE Cuvurcir, _—

_ ¥ Roy F: Srewarp, oN A

| ALEXANDER C. NEAVE,) > |

"Counsel for Respondent.

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; Press or Byron 8S. Apams, WasHiIneToN, D.O. - 9

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IN THE ©

Supreme Court of the United States

Ocroser .TeRm 1929.

No. 667. .

American Fruir Giowens, Ixc., Petitioner,

a, Tew

Brocpex Company, Respondent.

BRIEF FOR RESPONDENT IN REPLY TO

- AMICI CURIAE. :

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With reference to the briefs sought to be’ filed by

several parties amici curiae, we desire to draw the at-

tention of the Court ‘to certain points which ye believe .

should be kept clearly in mind. To sorhe extent this

may..involve a repetition 6f points which have abready

been made in respondent's drief in opposition to the -

petition for certiorari bat which, will bear elaboration.’

There is a concerted effort here to make it appear

to this Court that a question of great public importance

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is presented for review, W &. subwit that the record

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amply establishes the contrary.

‘Th effect, these ioitins re present to the Cc ourt that

the re is tio Way ly which the public “ean tell whether

it ‘infringes or not; that the patent purports to take

Away from the publif and: to) monopolize something

long previously bnjoyed by the pubhe; that, in short,

the patent sustained by botly lower courts: after most

thorough eansideration and without a dissenting vaice,

constitutes a strangle hold aupen the fresh fruit supply

of the country and a sinister threat to every American

breakfast table.

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Now what are the facts as shown by the record?

Do they support sue h contentions! Unquestionably

the y do not. ’ ; ; a: :

Long privr to 1923 the citrus fruit industry had at-

tained very large proportions, many milliotis of boxe.

annually bemg. packed and oan «ld to market from

Florida and California (Tr., Vol. It, pp 49, 93-4, 399)

A wel détined pac kang heuse practice had/been built

ap and used for years. It emphasized and einbodied

all that the art then. kre w of how to ensure arrival of

_ fre ah fruit in market in the heat condition. That there

was av arfadte to the publie under that practice a:

‘ample supply of eranges and grapefruit will hardly

Pree clerréed

Blne mold decay was a recognized serious problem

= trom the first. Eminent experts, ine luding those of the

Depart ment of Agriculture, labored long and, arduous!y

toevercome it. The net reeult of years of investigation

waa the. recommendat berth, repeatedly emphasized in”

ad

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Jong series of Department bulletins and other ‘pub-

lished official communications to the industry appear-

ing during the twenty years next preceding 1923, to

handle the fruit with extreme eare and to delay aun-

avoidable decay through refrigeration. These rerre-

dies, and no others, were what br industry was taught

and whit it cope in (e.g. Tr., Vol. I, 36-7, 69-76,

109-7, 186-75 153-2 » 184-7 iP 190, 255-6, 301, 3: 29, 370, 463,

595, 560, 622),

During all this timé, the experts, including those of

the De ‘partme nt of Agriculture, were declaring over and

over again that it was, hopeless to try to check blue

mold devay in fresh fruit by chemical treatment, be-

cause it had been tried and had failed. (Tr., V ol. II, pp.

79, 123, 250, 265, 2M), 309, 339-40, 440.)

‘

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‘But. ernindiy in the fall of. 1924, the whole scene

suddenly changed. The Department of Agriculture

_ began publishing bulletins and official communications .

’ telling the industry how reniarkably efficient borax

treatment was for solving the long- standing problem of

blue mold deeay, (Tr., Vol. Il, 649, 657, 660, 671, 673,

659.) The reason for this is apparent when it is re-

called that, in the fall of 1923, this respondent had al-

Teady de monstrated the borax treatment in semi-com-

merejal tests in Tulare ¢ ‘ounty, California, which were

witnessed by Barger, a representative of the Depart-

ment of Agric ulture. (Tr., Vol. I, pp. 297-303.) This —

same Barger later (January, 19: 24) also observed the

treatment in re “cular commercial use af Walnut, Cali-

fornia, by one of re spondent’s licensees. (Tr., Vol. 1,

pp. 303-4.) There followed i issuance of patents to Bar-

ger and othe ‘rs of the Bureau of Plant Industry, De-

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ree ee of Agriculture, on various specifié phases

' of the borax treatment, al-applied for long after re-

spondent had introduced the invention of the patent

into commercial practice ag aforesaid. (Tr., Vol. II,

pp. 709, 713, 715, 717.)

Thus, until 1924, the art was led by all the accepted

art teachings directly away from the invention of the —

patent in suit. Yet.the, Department of Agriculture,

which was foremost in gondemning chemical treatment:

of fresh fruit in the packing house for control of blue

mold decay as worse'than useless even to attempt, now -

contends that the sustaining of this patent by the

Courts below’ raises a question. of vital importance to

the public. °

Why so? The public never knew of the invention

prior to 1924, and yet. it was always well supplied with

oranges. It can be so supplied today, just as formerly,

without let or hindrance on the part of this respondent,

. by packers and shippers who feel that the old practice

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is m gone enough.

To argue that, because the presence of applied borax

on the rind of borax-treated fruit is usually percepti-

ble only upon chemical examination, there is imposed

upon dealers and eonsumers an undue burden of in-

quiry, amounts in the last analysis to contending that

‘nothing is patentable whose distinguishing character-

isties are determinable only by the making of some

‘technical test, whether it be chemical or otherwise, not

readily performed by every ultimate consumer or user.

The inherent fallacy of such an argument is obvious,

Furthermore, the question is wholly a moot one here,

since the,petitioner-defendant waé perfectly well aware

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of what it was doing when it infringed. Moreover, in

situations where it appears that dealers have ‘‘inno-

cently”? infringed, equity courts may be relied upon to -

do justice in the future, as they have in the past, by’.

merely enjoining continued infringement.

_ While the efforts of the petitioner and parties amici

curiae to ensure a review of this case on certiorari elo-”

quently attest the great importance of the patented in-

vention as an outstanding advance inthe art to which

it pertains, we submit that they wholly fail to make

~ out a’situation characterized by: general public impor-

~ tance in the sense apparently regarded heretofore by °

this Court ; as warranting such: ‘review of a patent case.

“

Respectfully submitted, F

CuarLes NEAVE, .

- Metvitte Cuurcu,

Roy F. Srewarp, - _

ALEXANDER C. NEAyE,

: root bee? Counsel for Respondent:

March 12, 1930. Rig abn ee :