Transcript of Record — Smith v. Hall

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TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1936

No. 36

SAMUEL B. SMITH, PETITIONER,

} JAMES MANUFACTURING COMPANY AND ELMIRA

HATCHERIBRS, INCORPORATED

ON WRIT OF CERTIORARI ) THE UNITED STATES CIRCUIT Col

PETITION FOR CERTIORARE FLLED APRIL 21, 1936

CERTIORARE GRANTED MAY 25, 1936

a

_ SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1936

No. 36

SAMUEL B. SMITH, PETITIONER,

vs.

JAMES MANUFACTURING COMPANY AND ELMIRA

HATCHERIES, INCORPORATED

_ ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT

VOL. I.

| INDEX.

4 - Origins) Print

‘Yacord from D. C. U. 8., Western New York... o 1 1

Bill of complaint ................. pe aah eases eee 1 1

NONE 6.5sno cha sce svccnenceuutbanseiese aloe 4

- Amended answer... OPER EE Sb DP 19 12

Plaintiff's motion for bill of particulars.............. 40 27

Answers of defendant to plaintiff's motion for bill of

: Particulars .......- Rib cacddabint Cae AANA oe ea Te 42 28

* Amended answers of defendant to plaintiff's motion for

G- . dill of particulars ...............................- 46 31

§ Motion of plaintiff for supplemental bill of particulars. . 50 34

y.. Defendant's response to plaintiff's motion for supple

f mental bill of particulars... Wines aE eee 52 35

Notice of prior uses and publications defendant will rely

seb eo ta EE CETTE TP OOS Pe 55 87

Stipulation of consolidation .....................~ 58 89

» Stipulation of consolidation... 59 39

pow -pulation limiting record on appeal.............__. 60 40

pmtotion to dismiss bill of compiaint................_ 61 40

-& Derwenes (INc.); Parvreas, WasHinoton, D. C., Avevst 7, 19886.

p —8058-C

*

ii INDEX

Original Print

Record from D. C. U: S., Western New York.............. 1 1

Narrative statement of the evidence .................. 68 41

Testimony of Joseph Inskip Taggart :

eee ree seer 65 43

Recalled

i tee ore whee sh Keen's 213 147

Dt Th. cdcadienenesadeee es 253 175

a an a alan we utcns 4 So 458

Andrew H. Dorenkott:

0 ee ee Sa tical aree 192 131

A eae ea auens 195 132

I ee aa do anes Peewee 196 - 134

Frederick Bruce Hutt

Ne yas Ge aA Pee 197 134

ee ra ntaie es wanna 2 141

Re-direct ..... Sia er an Ata ek ae aad 212 146

Arthur M. Greene, Jr

ee aa eae eS he a aS 263 182

Resumed :

Ph os ceecoet ati awe k ene ks 515 rai)

ree an cle au ae melee 530 370

EE la cen dan atten ee OAT 457

RE Pree rrr eee 662 487

Lavergue C. Gillard:

a PE Ee Sack A Pre 22 24

See onan cng cas oneal eas 430 300

Yee 433 302

Re-cross .......... 433 302

eee on cde he nk 435 303

‘ames G. Halpin

| i Rei AES Sas, ee Pee 435 34

eee OM ahd aoa ie wwe 453 316

Glen F. Richards:

een a kang ewansaew ee 470 328

SI ease cavcisceeece kes’ 482 338

Benjamin F. Zaffke

Dd biuaas ée ran waieee6 4 493 344

CS te eects nen enn eee bs 40H 345

John George Shodron

Dt Minus seedacdesbeoes 495 346

ee RE a gy ee ae 490 348

Recalled :

Dt.) ipakewsarasesessbacns 511 357

tt vena cadenasetenessede 513 350

William N. Willett:

DT sBapacodeccoseesvsctsacen 500 350

ibs bdeadadccécssd¥seeeeee 504 852

DD cons lniucueaeaduneden 510 $57

Milo B. Hastings:

0. ee 716 508

BEE deincabparences cacescesess 708 bf

GE ccccccccccccccccccsces 826

INDEX ill

Record from D. C. U. S., Western New York—Continued

Narrative statement of the evidence—Continued.

Testimony of—Continued. Original Print

I cn ica cWea dere kaaa nae a 828 583

a ee arse ara aan 830 SS4

Norman B. Hickox:

J. Sa Ege PGE PES YEE Or 831 585

CHORD ccc cbecces. S47 596

SI ea ce ceva oa wae va 851 598

A. D. Peabody ° ‘

Sad aa wet nie ae hae & & ee 851 599

eer era eae 855 601

Redirect ...... S55 2

John G. Lieber:

Divect ..... See wate aS, Ae ee 856 602

SN saa ona os eae ee eee S86 611

ane S889 634

L. W. Pitts:

ae 800 634

Siri e's: Un wer wre aed a eaees a eae 902 636

C. T. Brewer

SARE ee Pan eye 905 638

Cross” ..... : 909 641

Van D. Campbell:

OO” Ree Se ree 911 642

Cross ..... 913 643

L. A. Cory

Direct 914 44

2 ae 916 646

Re-direct 919 647

Richard Shanafelt :

i. Rear Lee A ec ee 919 648

WE Cee nu oe eens coud 926 652

Samuel James Ward:

er ore er rh a 932 656

Creme. ...5. 935 658

Re-direct ....... 940 682

Joseph I. Taggart:

RN gaan auds aa 940 662

A cy dasa eo 0's 942 664

Redirect ....... O44 664

Recalled :

Redirect ...... rye 948 668

Roth O. Bartholomew :

AE ee aa SHA 665

Order approving narrative statement of evidence....... 050 669

Plaintiff's Exhibit 1—Smith patent in suit, No. 1,2t..

ee eww eeas oe Se ere ; 951 671

3—Heat graph of hatching egg. 956 676

4-a—Chart showing heat developed

while incubating eggs........ 957 677

iv ; INDEX

Record from D. C. U. 8., Western New York—Continued.

Plaintiff's Exhibits—Continued.

6—Advertisement of Ruckeye Incu-

bator Company showing electro-

type machine .........-2.00%:.

7—Advertisement of Blue Hen Incu-

Deter COMPO <n c es cs csece

1l-a—Drawing of the Smith incuba-

tor showing sectional view

across the machine through the

SB Ae Ee a ee

l1l-b—Drawing of Smith incubator

showing a diagrammatic section

glome te GOETEEO?............

ll-<—Drawing of Smith - incubator

showing a sectional view in

plane parallel to corridor and

midway between front and rear

OD Scbwekecensdes ccukhes:s

12—Drawing of Buckeye incubator

Ce ew cas kx oe pee ee

14—Vertical cross-section of James-

lt SE Coca ces cneee esa

15—Vertical longitudinal cross-section

of Jamesway incubator.......

24—Ten sheets of charts showing find.

ings by witness Taggart on

Jamesway machine !{n normal

I cae do ec asa asa ;

25—Serles of tabulations of James-

way machine with fan and air

mixer not running compiled by

witness Taggart .............

26—Series of tabulations of James-

- way machine with air mfxer

running and fan not running

compiled by witness Taggart...

27—Egg arrangement chart by wit-

ness Taggart ...... nae frre

Origina!

958

959

960

961

966

976

28—Chart compiled by witness Tag- .

gart showing steps.in process

of hatching eggs .............

29—Stipulation of numbers and value

of machines sold by Smith In-

ecubator Company and Buckeye

Incubator Company compiled by

PE co Ch caaan sad aad at 6a

32—Assignment from Buckeye Incu-

bator Company to Samuel B.

Print

INDEX Vv

Record from D. C. U. S., Western New York—Continued.

Plaintiff's Exhibits—Continued. Original Print

33-—License agreement between Sam-

uel B. Smith and Buckeye [ncu-

DAR CONG oii daeesncnss 996 716

34—Contract between Samuel B.

Smith and Buckeye Incubator

ROIs grag ana ag Sinise hee Be 9O8 717

I-——Exhibits D-D, D-H, D-J and aban-

doned Hastings Appplication of

a fe erie 1007 724

100—Certified copies of testimony of

L. A. Cory, 8. J. Anderson, R

Shanafelt, John G. Lieber, Hus-

ton A. Hogan and L.-W. Pitts.. 1048 765

Defendants’ Exhibit 8—File wrapper of Smith patent in

ouit, No. R266 800.......004 1086 795

9—English translation of Stulik

(German) patent No. 155.-

APB 0 Sth ee ne 120 POS

10—The following patents from the

volume of prior art pleaded:

(a) Woods, No. 656,760... 1240 O50

(b) Goldstein, No. 1,137.-

WRG dae suv au seas vs 1245 955

(c} Meschter, No. 347,46. 1248 958

(d) Guerin, No. 3,019..... 1262 962

(e) McAslan, No. 540,107. 1259 969

(f) Bell, No. 601,887..... 1262 972

(gz) Perkins, No. 798,697.. 1266 76

(h) Peters, No. 843,909... 1278 988

(1) Osborn, No. 1,144,232. 1283 993

(j) Faullington, No. 1,2085,-

St cxtuessances sce 1287 997

(k) Gardner (British),

No. 10,288 of 1887.. 1292 1003

(1) Stulik (German), No

155,917, and transla.

te cue ata so ais oe . 1296 1011

(m) Peck, No. 917,4838...... 1305 1018

(n) Freas, No. 1,165,968.. 1310 1022

(o) Lumpp, No. 280,490... 1319 1081

(p) Rogers, No. 327,900... 13822 1034

(q) Verna, No. 891,019... 1325 1087

(r) Bradley, No. 934,274... 13829 1041

(s) Schmidt et al. No.

cf). ar 1383 1045

(t) Proctor et al. No.

re . 1340 1082

(a) Proctor, Reiasne No.

co | Bee ee 1848 1035

vi

Record from D.C. U

S., Western New York —ontinued

Defendants’ Exhibitsa—

INDEX

Continued :

(v) Schwartz, No. 535.175.

(w) Proctor, No. 553,723..

(x) Winkler, No. 286.756...

(y) Van Der Heyden, No.

O44

(z) Schulze, No. 101,168

12—Magazine article entitled

“Mammoth Incubator with

Fans for Circulation of Air”

by George F. Paul.....

1&4—Circular of the Smith Standard

Company

18-a, 18b, 18-<—Drawings showing

internal construction of

James machine

19-Chart showing constructions

held as nop-infringing ma-

chines

April, 1918, issue of

Poultry Journal”

21—Drawings of the Hastings tncu

bator instailed at Brooklyn.

New York .

22—-Fig. 1 of drawings of Westies

Muskogee 1911-1912 machine

22-a—Figs. 2, 3, 4 and 5 of draw

ings of Hastings-Muskogee

1911-1912 machine

22-b, 22, 22-3, 22-e and 22-f—Pho

tographs showing views of

Sirroco blower used. in Hast

ings-Muskogee 1911-1912 ma-

chine

23—Article in February, 1912, issue

of “Poultry Culture”..

24—Photostatic copy of index cover

page and pages 630 and 631

ee

20 “Reliable

of November, 1912, issue of

“Popular Mechanics” maga.

Pee cddeetassencenns

25—Bilue-print copy of July 6, 1912,

issue of “Electrical World”

26—The Hickox Album......

26-a—Typewritten article appear

ing on page 1 of the Hickox

Album, introduced as Defend.

ant’s Exhibit No. 26.

Original

1348

1358

1364

1385

1358S

1382

14m)

Lil

140

1446

14%)

1407

1410

1411

1411

Print

1058

1068

1074

1081

1782

1005

100s

1102

1106

Bil s

Récord from D

Defendants’ Exhibits— Continued

INDEX

, Western New York—Continued

26-b—Photostatic copies of photo-

graphs appearing on page 82

of the Hickox Album, intro-

duced as Defendant's Ex-

REGS FOR; Bice oncescccuscsen

26-c—Photostatic copies of photo-

grapbs appearing on page 84

of the Hickox Album, intro

duced as Defendants Ex-

rae

26-d—Photostatic copies of photo-

graphs appearing on page 86

of the Hickox Album, intro-

duced as Defendant's Exhibit

ih Sb an ic aweeaduaee vedas

26-e—Fhotostatic copies of news-

paper clippings, appearing on

page 87 of the Hickox @i-

bum, introduced as Defend-

ant’s Exhibit No. 26

28-f—Photoatatiec copy of photograph

appearing on page 8&8 of the

Hickox Album, introduced as

Defendant's Exhibit No. 26..

2t+-g—Photostatic copy of photograph

appearing on page ®) of the

Hickox Album, introduced, as

Defendant's Exhibit No. 26

33— Vertical longitudinal sectional

drawing of James machine...

34— Vertical cross-sectional drawing

of James machine.

37—Circular of the plaintifr on sub-

ject of separate hatchers and

incubators ........

38—Second circular of plaintif- ™

subject of separate bhatchers.

30—Smith's circular letter to trade

under date of October, 1930.

on spread of disease. .

—Pages 12 and 13 of the January.

1982, issue, Vol. 7, No. 1, of the

Smith House Organ “Smith

Chickograme” .............

43—Copy of contract between Sam.

uel B. Smith and the Buckeye

Incubator Company on —

rate hatchers .....

Original

1416

1417

1418

1419

1420

1424

1426

1431

1483

Print

1125

1127

1128

1129

1130

1131

1132

1133

1135

1139

1140

1141

Sa

Record from D. C. U. S., Western New York—Continued.

vill INDEX

Defendants’ Exhibits—Continued. Original Print

49—Defendant’s patents: ;

Fullington— 1,205,445 ... 1287 997

Nix—1,548,478 ........... 1441 1146

Markey—1,751,003 ........ 1444 1149

Markey—1,796,872 ........ 1450 1155

Markey--1,837,458 ....... 1457 1162

Markey—1,939,008 ....... 1461 1166

51—-Tabulation by Dr. Greene from

chart introduced as Plaintiff's

Exhibit No. 3............ 1471 1176

54—Photograpb of exterior of Smith

machine and James incubator i472 1177

55-a—Photograph of Smith machine

showing ceiling with three

faas in normal position and

fourth fan swung down...... 1473 1178

55-b—Photograph of Smith machine

exterior with door open..... 1474 1179

55-c—~-Photograph of Smith machine

showing corridor with man

standing inside .......... 1475 1180

ii4i—Photogravh of Smith mac niece

exterior with door open..... 1476 118}

58a—Photograph of Smith machine

with test holes in side and top

candle blowing out......... 1477 1182

56@b—Photograph of Smith machine

with test holes in side and

middle candle blowing out... 1478

56-c—Photograph of Smith machine

with test holes fn side and

bottom candle blowing out... 147%

7-a—Photograph of James machine

with test holes in side and

top candle being sucked in... 1480

57-b— Photograph of James machine

with test holes in side and

middle candle being sucked

oe ae eck eri a eee 1481

57-<—-Photograph of James machine

with test holes in side and

bottom candle being sucked

Piper aiten tive oe ewes waa aes 1482

58—Photographs of prior art ma-

chines :

Proctor patent No. 568,723. 1483

Schwartz patent No. 535,175 1489

Goldstein patent No. 1,157,-

cars wealcake Oaa 1495

Stulik (German) patent

ke |". ere 15038

INDEX

Reeord from D. C. U. S., Western New .York—Continued.

Defendants’ Exhibits—Continued.

59—Photographs of prior art patent

machines and publications. .

66—Pages 681, 632, 683, 634 and 641

of the February, 1926, issue

of the jeurnal of the Ameri-

can Veterinary Association. .

é7—Summary page 23 and pages 46,

47 and 48 of the “Kansas

State Agricultutal College

Bulletin” of November, 1926.

70—Page 232 of the book entitled

“Development of the Chick”

Oe Pee SORT eisek sss cons d

73—Shodron report with turbulator

running and not running....

a 74-a, 7T4-b, 74 and 74-d—Willett de-

tail and diagrams of Smith

hew and old-style fans..

75—Comparative figures between

Plaintiff's Exhibits 1l-a, 11+

and llc< and Smith machine

produced by Dr. Greene.....

101—-Zimmer patent No. -1,075,747.

Opinion, Knight, J........... id aiw aie ad

Findings of fact and elas of OS Pe Ea eee

joterlocutory decree ... 4 oar LF ee Eee

Petition for appeal uccate ne Sates aurea ee

Order allowing appeal ......... :

Assignments of error ............

Bond on appeal..... nap (amine in ovintiog) Sic

MRE Se waa c'g st Vacca a os ean . (omitted in printing)

Order extending time to file record. eerie gs ae

Stipulation and order to file record . Sater ea eter aa oe

Stipulation and order extending time to file record... ..

Order further extending times......

Affidavit of Max D. Farmer......

Order further extending time... Fee

Affidavit of Max D. Farmer.....-............

DE choc r ew nese eG een ketcaee a aew a awa

Statement as to plaintiff-appellee’s counter orniine nae ee

CG Pp FET NS ANY ARR Pir Bn oanae pm ane tate elea?at ati

Ceere eo -cartificste ..... 2.2.2... (omitted in printing) ..

4 . Proceedings in U. 8. €. C. A, Second Circuit.............

EN EERO Meer PU ery) hee Pe

é Beers rere re eas Miles ts Liace wee hae

: Clerk's certificate ......... ....... (omitted in printing) ..

Se MN OUUEUOPOEE ow cc ics vcnecanesspcstecssnese

Original

1507

1517

1526

Print

1212

1222

1226

{fol. 1]

IN THE UNITED STATES DISTRICT COURT, WEST-

EEN DISTRIOT OF NEW YORK

In Equity. No. 253

Samvue. B. Smrru, Plaintiff,

vs.

James Manvuractunine Company, Defendant

Bri or Compiaint—Filed May 12, 1930

To the Honorable the Judges of the United States District

Court for the Western District-of New York:

Plaintiff represents and states as follows:

1. That the plaintiff, Samuel B. Smith, is a citizen of the

United States and a resident of Cleveland, Ohio.

2. Upon information and belief that the defendant, the

James Manufacturing Company, is a corporation of Wis-

_ eonsin, and has and maintains a regularly established office

and place of business at Elmira, Chemung County, New

York, at which place it is engaged and doing business in

the manufacture and/or sale of incubators for the hatching

of eggs.

3. The jurisdiction of this Court depends upon the fact

that this suit is one arising under the patent laws of the

* United States.

{fol.2] 4. Upon information and belief that prior to Oc-

tober 26, 1916, the plaintiff, Samuel B. Smith, was the first,

original and sole inventor of certain new and useful im-

s provements in Incubators, not known or used by others

before his invention or discovery thereof, not patented or

described in any printed publication in this or any foreign

_ /@ountry prior to his invention thereof or more than two

‘years prior to October 26, 1916, not in public use or on sale

“in this country for more than two years prior to said date,

“Rot abandoned, and not patented by Samuel B. Smith or

shis legal representatives or assigns upon an application

_3m@ied more than twelve months prior to said date.

1—36

\

5. On pene 26, 1916, the plaintiff, Samuel B. Smith,

filed in the United States Patent Office an application for

Letters Patent of the United States for said improvement.

6. That prior to April 16, 1918, Samuel B. Smith as-

signed the right, title and interest in and to the said inven-

tion and in and to any United States patent to issue thereon

to The Buckeye Incubator Company, a corporation of Ohio,

and that after due proceedings upon the said application

for patent there was issued to The Buckeye Incubator Com-

pany, aforesaid; United States Letters Patent No. 1,262,860

on April 16, 1918, whereby the exclusive right of making,

using and selling the said invention and improvements

throughout the United States for the term of said patent

was granted to The Buckeye Incubator Company, afore-

said, its successors or assigns, as will more fully appear

from the original or duly certified copies of the said patent

{fol. 3] and assignment, to be produced in Court herein.

7. That under date of April 29, 1927, The Buckeye In-

cubator Company, aforesaid, being then the owner of the

title in and to the aforesaid Letters Patent, did sell, assign

and transfet to thé plaintiff, Samuel B. Smith, his heirs

and assigns, the right, title and interest in and to the said

Letters Patent as will more fully appear from the original

assignment or duly certified copy thereof to be produced

in Court herein.

8. That the plaintiff and his predecessor in title, The

Buckeye Incubator Company, have been at all times the sole.

and exclusive owners of the said patent.

9. That the said patented invention has proven to be of

very great value, that the plaintiff has expended large

sums of money in the manufacture and sale of incubators

embodying the invention thereof, that the incubators so

manufactured and sold have acquired a high reputation

and utility and have proven to possess superior functions

and qualities over other incubators, that the said patent

has been widely recognized and respected, and that the

validity of said patent has been established in litigations

arising thereunder in various Circuit Courts of Appeal and

District Courts of the United States.

10. That incubators manufactured and sold by the plain-

tiff have been marked ‘‘Patented’’ together with the date

' 7

a

pe

3

and number of the patent ebuienia as required by the

Statutes of the United States, and that in addition the de-

[fol. 4] fendant herein has been duly notified in writing of

the patent aforesaid and of its infringement thereof.

11. Upon information and belief that the defendant prior

to and not more than six years before the filing of the Bill

of Complaint herein, has been engaged at Elmira, New

York, in the manufacture and/or sale of incubators for the

hatching of eggs, which said incubators embody the inven-—

tion of said patent No. 1,262,860, and particularly claim 5

thereof, and is selling or offering for sale such incubators,

thereby inciting and contributing toward the infringement

by others of the process of hatching eggs as set forth in

claims 1, 2 and 3 of the said patent, and is threatening to

continue such acts, whereby the rights of the plaintiff as

secured by the said patent are infringed, all without the

license or consent of the plaintiff.

12. That by reason of the infringement complained of

herein, the plaintiff has suffered and is suffering irrepar-

able loss and damage and the defendant has realized profits

and gains which of right belong to the plaintiff, and will

continue to do so unless restrained by this Court.

Wherefore, the plaintiff prays:

1. That a writ of subpcena may issue out of this Court

directed to the defendant, the James Manufacturing Com-

pany, commanding it to appear and answer all and singular

the matters and things herein complained of, but not under

oath, an answer under oath being expressly waived.

- 2. That temporary and permanent injunctions be issued

out of this Court addressed to the defendant, the James

{fol.5] Manufacturing Company, and its workmen, em-

_ ployees, solicitors, agents, attorneys and others claiming or

holding under the defendant, enjoining and restraining them

from in any manner directly or indirectly infringing upon

_ or contributing to the infringement of the patent sued upon

herein.

_ 8. That the defendant be required to account fo cig?

“pay to the plaintiff all the gains and profits acquired

p and recompense the plaintiff for the damages sustained’ by

4

the plaintiff by reason of the infringement complained of

herein.

4. That the defendant pay the costs of this suit, and that

such other further and equitable relief be granted to the

plaintiff as shall be found necessary or proper.

Samuel B. Smith, by Charles W. Parker, His Solici-

tor. Charles W. Parker, A. L. Ely, of Counsel.

Duly sworn to by Samuel B. Smith. Jurat omitted in

printing.

{fol.6] Is roe Unrrep States Disraict Court

[Title omitted ]

Answer—Filed July 11, 1930

The above named deféndant, James Manufacturing Com

pany, by its attorneys, for answer to the Bill of Complaint

in the above entitled cause, says:

{fol.7] 1. Defendant admits that it is a Wisconsin Cor-

poration. Its principal office and place of business is at

Fort Atkinson, Jefferson County, Wisconsin, af which place

its incubators are manufactured. Defendant admits that

it has a regularly established office and place of business at

Elmira, New York, and that some of its incubators are soid

or delivered to purchasers from that place, but denies that

any incubators are being made, or have been made, at El-

mira.

2. Defendant admits the grant of Letters Patent of the

United States to The Buckeye Incubator Company num-

bered 1,262,860 and dated April 16, 1918, on an application

filed by the plaintiff.

3. Defendant is without knowledge as to whether the

subject matter of said Letters Patent had been patented or

caused to be patented by the plaintiff on an application

filed in a foreign country more than twelve months prior

to his application for said patent in this country.

4. Defendant is without knowledge as to whether The

Buckeye Incubator Company, aforesaid, ever sold, assigned _

or transferred to the plaintiff, or to his heirs or assigns,

any right, title or interest in and to said Letters Patent. ©

5

5. Defendant is without knowledge as to whether the

plaintiff, and/or The Buckeye Incubator Company, have

been at all times, or whether they, or either of them, now

are the sole or exclusive owners of said Letters Patent, or

as to whether the plaintiff is the owner of any part thereof.

[fol.8] 6. Defendant is without knowledge as to whether

all incubators manufactured and sold by the plaintiff and/

or by others acting under its authority, as set forth in the

Bill of Complaint, have been marked patented, together

with the date and number of said Letters Patent, and is

without knowledge as to whether the plaintiff has in any

way conformed to the requirements of the Statutes as to the

marking of its incubators.

7. Defendant admits that on or about the 17th day of

April, 1930, it received a notice of said Letters Patent from

Messrs. Ely and Barrow, reciting that they were acting for

the plaintiff and charging that the incubators made and

sold by defendant were believed to infringe some of the

claims thereof, but without specifying which claims were

believed to have been infringed. Defendant says that be-

fore it could investigate or place itself in a position to act

intelligently with respect to said charge, to-wit,—on or

about the 13th day of May, 1930, it received a further notice

from them stating that a suit was being commenced, a Bill

of Complaint having been prepared and forwarded to the

Western District of New York for service; that prior to

.the commencement of this suit defendant was given no

other notice and no opportunity to take any intelligent

action respecting plaintiff’s charge of infringement.

/ ~~ 8. Defendant denies all allegations contained in para-

graph numbered four of the Bill of Complaint with refer-

ence to prior knowledge and use of the alleged improve.

ments set forth in said Letters Patent; the existence of

(fol. 9] prior patents therefor; the description thereof in

printed publications; the public use; the placing on sale;

the patenting or published description thereof more than

two years prior to the plaintiff’s said application; and the

- abandonment of said alleged invention.

* 9. Defendant denies that any invention of the plaintiff

is disclosed or covered by, or claimed in said Letters Pat-

and denies that anything embodying an invention made

6

by the plaintiff has ever been made, used, or sold by the

defendant.

10. Defendant denies that it has ever been engaged in

the manufacture, sale or use of incubators which embody

any invention of said Letters Patent numbered 1,262,860 or

purporting to be described and claimed therein, and de-

nies that it has in any way infringed, or incited or con-

tributed to any infringement by ‘thers, of the alleged

method of hatching eggs as set forih in claims 1 or 2 or

3 of said Letters Patent, and further denies that it has

ever made or sold or used, or contributed to the manufac-

ture, sale or use of incubators made in accordance with

claim 5 of said Letters Patent, and denies that it has ever

intended or threatened to infringe said Letters Patent.

11. Defendant is informed and admits that the plain-

tiff has expended large sums of money in the manufac-

ture and sale of incubators made in general accordance

with the drawings and specification of said Letters Patent,

but defendant denies that the alleged invention claimed

[fol. 10] thereby has proven to be of value and denies that

such incubators have acquired a high reputation or recog-

nition of utility except as to features common to other in-

cubators designed and marketed prior to the. said alleged

invention of the plaintiff, and denies that the plaintiff's

said incubators possess superior qualities and/or functions |

over other incubators previously designed and marketed

as aforesaid, and denies that said patent has been widely

recognized and respected. Defendant is informed and be-

lieves and therefore avers that said Letters Patent have

been generally disregarded and believedsto be either in-

valid or limited to the precise featureg shown and de-

scribed therein. Defendant is without knowledge as to

profits made by the plaintiff from the manufacture and sale

of incubators, as alleged in the Bill of Complaint but de-

fendant is informed and verily believes and therefore says

that said The Buckeye Incubator Company has been ad-

judicated a bankrupt, that a receiver in bankruptcy was

duly appointed and that its assets have been sold to a pur-

chaser who intends to continue the business of manufac-

turing incubators but not under any authority derived from

the plaintiff.

<

ei:

7

12. Defendant is informed and admits that the plaintiff

has instituted suits in various District Courts of the

United States charging others with having infringed said

Letters Patent,- but denies that the validity thereof’ has

been established by any decrees except as against servile .

imitations by persons who had also been guilty of inequita-

ble conduct, and as against persons who had been guilty of

[fol. 11] unfair competitive tactics whereby they had for-

feited their standing in Court. Defendant is informed and

believes and therefore avers that except for such decrees —

and others obtained by consent or settlement the plaintiff

has been unsuccessful in litigation, and that in all such

suits heretofore tried, contesting defendants who were not

servile imitators and not guilty of unfair competition, were

successful in their defenses, and that decrees have been

- entered in such cases, construing and limiting the claims of

said Letters Patent to substantially the exact method and

structure shown and described therein, and to a method

and a structure not used by this defendant.

Further answering, defendant says:

13..That the alleged method purporting to be patented

in and by the claims numbered 1, 2 and 3 of the plaintiff’s

said Letters Patent numbered 1,262,860 is not patentable

under the laws of the United States for the reason that said

claims set forth and attempt to monopolize merely the

functions of the plaintiff’s incubator as shown in the draw-

ings and described in the specification of said patent.

_ 14. That the alleged method as set forth in the claims

numbered 1, 2 and 3 of the plaintiff’s said patent and in

each of them, is limited to the functions and mode of op-

eration which the plaintiff’s incubator as set forth in claim

5 of said patent is intended and designed to perform and

that the incubator set forth in said claim 5 is essential to

said mode’ of operation and to the performance of said

functions; that in-defendant’s incubators such a mode of

(fol. 12] operation is not possible and such functions are

- not and cannot be performed in the manner set forth in

. aid claims 1, 2 and 3, or in any of them,-and that there-

fore, said defendant’s incubator is not equivalent for the

. plaintiff’ 8 incubator as set forth in his said patent in suit

® and is not an infringement of said Letters Patent.

Be

15. Defendant is informed and believes and therefore

avers that in the course of the prosecution in the United

States Patent Office of the plaintiff’s application for the

Letters Patent in suit numbered 1,262,860 such proceedings

were had and such representations, admiasions, recanta-

tions and disclaimers made in behalf of the plaintiff and

such interpretations of the claims involved in this suit

were made in his behalf and for the purpose of procuring

the grant of said Letters Patent, that the plaintiff became

and now is estopped to assert that such claims cover or

monopolize or patent the subject matter of any incubator

made, sold or used by defendant.

16. That in view of the state of the art existing prior to

the alleged invention by Samuel B. Smith of the subject

matter of said Letters Patent No. 1,262,860 the said pat-

ent, if valid, must be construed and limited to the precise

method and structure disclosed in the drawings and de-

scription of said Letters Patent and that none of the

claims of said Letters Patent cover or were intended to

cover any incubator sold by the defendant and that none

of the incubators made and sold by the defendant are em-

braced within the claimed subject matter of said Letters

Patent but that defendant’s incubators and each of them

{fol.13] are different in structure and design and are

capable of no mode of operation or method invented by the

plaintiff, and that defendant’s incubators are not either in

structure or in metlod of use an equivalent for or az em-

bodiment of anything invented by the plaintiff or which

the plaintiff has any lawful right to monopolize in and

by the patent in suit.

17. Defendant is informed and believes and therefore

avers that the claims 1, 2, 3 and 5 of the patent in suit num-

bered 1,262,860 have been construed and limited by judicial

interpretation and adjudidation in suits against other

manufacturers of incubators and that, as so construed and

limited, nothing containedjin defendants’ incubators or in

any mode of operation thereof of which the same are capa-

ble, is an infringement of said claims or of any of them, or

of said Letters Patent.

18. Defendant is; informed and believes and therefore

avers that said alleged invention purporting to be patented

in and by said Letters Patent numbered 1,262,860 was

9

abandoned by said Samuel B. Smith, by the manufacture

and public use of such incubators for purposes other than

experimentation, for a period of more than two years prior

to the filing of his said application.

19. This defendant further says that said Letters Patent

are ineffective to claim or monopolize anything made by this

defendant for the reason that the same as to all features

and combinations of features disclosed in said Letters Pat-

ent and also found in defendant’s incubator are mere

[fol. 14] aggregations of features and elements and com-

binations of features and of elements common to the prior

art and known to and used by manufacturers of incubators

generaly prior to the alleged invention thereof by the piain-

tiff and more than two years prior to his said application

and that no invention was required to so aggregate them

in a single incubator and no new result was obtained by so

doing.

' Purther answering, this defendant says:

20. Defendant is informed and believes and therefore

avers that the Letters Patent in suit numbered 1,262,860

are null and void and have no force and effect whatsoever

for the reason that the alleged invention or improvement

described and attempted to be claimed and monopolized in

and by said Letters Patent and every material and sub-

stantial part thereof, was shown and described and pat-

ented and shown disclosed and described in printed publi-

eations prior to the alleged invention or discovery thereof

by said Samuel B. Smith in and by the following specified

Letters Patents and publications, to-wit:

United States Letters Patent

Date Inventor Title

Mar. 80,1848 Napoleon E. Guerin... Egg Hatching Appara-

tus

Apr. 12,1881 Paul H. Bate......... Refrigerator

Feb. 98,1886 Edw: G. Renwich..... Incubator

Aug. 24,1886 Jacob K. Meschter.... Incubator

May 281885 Norman McAslan..... Incubator

Jan. 28,1806 Josiah K. Proctor..... Apparatus for Order-

ing Tobacco

Apr. 28,1806 John T. Butte......... Incubator

June 14,1888 Joseph McCreery...... Ventilating System

Aug. 28,1900 Granville T. Woods.... Incubator

United States Letters Patent—Continued

Date Inventor Title

Jan. 28, 1902 ‘ Incubator

Jan. 24, 1905 ; a Incubator

May 16, 1905 ; Incubator

Aug. 7, 1906 Incubator ;

Feb. 12, 1907 Atmosphere Reg. Sys

‘ tem

“ June 16, 1908 Drying Room

Apr. 6,1908 C. C. Automotic Fan System,

etc.

Mar. 8, 1910 . Machine for Treating

Tobacco

1,187,752 May 4,1915 Apparatus for Curing,

etc.

1,165,958 Dec. 28, 1915 . B. Fr Heating System

1,205,445 Nov. 21,1916 Roy F. Fullington....* Incubator Attachment

10,288 (British) 1887 John Gardner Improvements in and

(German) relating to incubators

155,917 Nov. 11,1904 E. Incubator

Publications

‘“The Dollar Hen’’ by Milo Hastings, Published 1909

by The Arcadia Press, New York City, Pages 77 ta

107, inclusive.

‘Poultry Culture’, Topeka, Kansas, Issue of Febru-

ary, 1912, Article entitled ‘‘The Mammoth Incubator

Outmammothed.’’

‘‘Boston Sunday Globe’’, Boston, Mass., Issue of No-

vember 10, 1912, Article entitled ‘‘Indoor Chicken

Factories.’’ ,

[fol. 16} ‘‘Technical World’’, Chicago, Ill., Issue of

April, 1933, Article entitled ‘‘Hatching Chickens by

Wholesale’’.

. And by various other prior patents and publications not

now known to this defendant but which this defendant

prays leave to insert in this answer by suitable amendment

when ascertained.

21. Defendant is informed and believes and therefore

avers that said Letters Patent numbered 1,262,860 are null

and void and have no force and effect because in this coum

try, prior to any date of the alleged invention thereof by

Samuel-B. Smith and for more than two years prior to the

date of said application, devices, towit, incubators embody:

». ee

11

fing the alleged invention and. every substantial and mate-

rial part thereof were manufactured, placed on sale, sold

and/or publicly“used by the persons and at their places of .

addrees mentioned in the patents and publications listed in

the foregoing paragraph numbered 20 hereof and by the

following persons whose games and addresses are hereby

given as follows, to-wit: : ee

Walter B. Davis, and Milo Hattings, at Kings Highway »

& 23rd St., Brooklyh, New York.

John Lieber, and Milo Hastings, at Muskogee, Oklahoma.

’ . E. T. Powers, and Milo Hastings, at Port O’Connor,

_ Texas

[fol.17] Chas. A. Cyphers, at Philadelphia, Pa. Strouds-

burg, Pa. )

Rolla Lawry, at Pacific, Mo.

And by various other persons whose names and ad-

dresses are not now known to defendant but ‘which it prays

leave to give and mention in this answer by amendment

hereto, when ascertained. :

. % Defendant is informed and believes and therefore

avers that said Samuel B. Smith was not the first inventor

of anything embodied in defendant’s incubator nor of ahy

method of use practiced or caused or intended by the de-

fendant to be practiced but that each and al] features of

method or of structure employed by defendant and also .

isclosed in said Letters Patent 1,262,860 were invented,

perfected, discovered and/or designed by each of the sev-

eral patentees and persons above named in paragraphs

numbered 20 and 21 hereof, at their respective addresses

" as given in their said patents, and set opposite their re-

~ Spective names in paragraph 21, all of whom were each

., Sontinuonsly diligent in adapting and perfecting his incu-

® bators embodying such improvements or inventions and in

* teducing the same to practice from a date prior to any date

4 of the alleged invention. thereof by Samuel B. Smith and

EPrior to any date following which said Samuel B. Smith

gp yes diligent in the completion of his alleged invention and

&& said Letters Patent are therefore ineffective to law-

ty. claim and monopolize any method or structure used

‘the defendant or intended, or caused by the defendant

used.

aS

_

oe aa | “a

[fol 18] 23. Defendant further says that said Letters

Patent are null and void and ineffective to lawfully claim

and monopolize any method or structure used by the de-

fendant for the reason that the plaintiff failed to comply

with the Statutes in such case made and provided, in that

the’ written description of said alleged invention and of

a empire process of making, constructing and using

~ it not set forth in the plaintiffs application for said

Letters Patent and is not set forth in said Letters Patent

in such full, clear, concise and exact terms as to @gable any

person skilled in the art or sciere to which it appertains

or with which it is most nearly connected, to make, con-

struct, and use the same, and the alleged principle thereof

and the best contemplated mode of applying that principle

was not explained in tk€ plaintiff’s, said application and is

not explained in said Letters Patent so as to distingnish

the alleged invention from other inventions, and that said

application did not, and said Letters Patent do not, par-

ticularly point out and/or distinctly claim in said claims

1, 2, 3 and 5 thereof, or in any of them, the part, improve-

ment or combination of parts which the plaintiff claimed or

now clainis as his invention or discovery. ~

24. Defendant further says that all elements, features,

and combinations of features common to the incubator dis-

closed in the plaintiff’s said patent and to this defendant’s

incubators, are als@e-common to the incubators disclosed in —

the prior patents and publications aforesaid and prior to

the said alleged invention of the plaintiff were commonly

known to and used by the public generally and are not and

[fol. 19] cannot lawfully be covered or monopolized by said

Letters Patent 1 numbered 1,262,860.

;

Wherefore the defendant avers that the plaintiff is en-

titled to no relief whatever and prays that the Bill of Com-

plaint be dismissed, with costs to be taxed against the

plaintiff. — ,

Dated July 11, 1930.

James Manufacturing Co., by John 8S. Powers, Har-

old I. Popp, Defendant’s Solicitors. S. L. Wheeler,

W. G. Wheeler, per S. L. W. Leverett C. Wheeter, «

of Counsel for Defendant. ;

Ix tHE Unrrep Stares Districr Covrr

: [Title omitted]

j _. AMENDED Answeas—Fijled September 17, 1932

-- _ The above named defendant, James Manufacturing Com-

pany, by its attorneys, for answer to the Bill of Complaint

~ fol. 20) in the above entitled Cause, says:

1. Defendant admits that it is a Wisconsin corporation.”

-. Ita principal office and place’ of business it as Fort Atkin.

son, Jefferson County, Wisconsin, at which Place its ineu-

_ bators are manufactured. Defendant admits that it has a

livered to purchasers from that place, but denies that any

~ beted 1,262,860 and dated April 16, 1918

» filed by the plaintiff.

- 3. Defendant is without knowledge as to whether the sub-

- ject matter of said Letters Patent had been patented or

Ste his application for said patent in this country.

4. 4 Defendant is without knowledge as to whether The

+-Baekeye Incubator Company, aforesaid, ever sold, assigned

or transferred to the plaintiff, or to his heirs or assigns, -

~ aay right, title or interest in and to said Letters Patent.

5. Defendant is without knowledge as to whether the:

Plaintiff, and/or The Buckeye Incubator Company, have

dfol. 21] been at all times, or whether they, or either of

#hem, now are the sole or exclusive owners of said Letters

or as to whether the plaintiff is the owner of any

rt thereof.

|

nr

: i Defendant is without knowledge as to whether all in-

Stores manufactured and sold by the plaintiff and/or by

-acting under its authority, as set forth in the Bill of

mp aint, have been marked patented, together with the

4

“s

14

date and numbers of said Letters Patent, and is without |

knowledge as to whether the plaintiff has in any way con-

formed to the requirements of the Statutes as to the mark-

ing of its incubators. .

7. Defendant admits that on or about the 17th day of

April, 1930, it received a notice of said Letters Patent from

Messrs. Ely and Barrow, reciting that they were acting for

the plaintiff and charging that the incubators made and sold

by defendant were believed to infringe some of the claims

thereof, but without specifying which claims were believed

to have been infringed. Defendant says that before it could

investigate or. place itself in a position to act intelligently

with respect to said charge, to-wit,—on or about the 13th

day of May, 1930, it received a further notice from them,

stating that a suit was being commenced, a Bill of Complaint

having been prepared and forwarded to the Western Dis-

trict of New York for service; that prior to the commence-

ment of this suit defendant was given no other notice and

no opportunity to take any intelligent action respecting

plaintiff’s charge of infringement.

[fol. 22] 8. Defendant denies all allegations contained in

. paragraph numbered four of the Bill of Complaint with ref-

erence to prior knowledge and use of the alleged improve-

ments set forth in said Letters Patent ; the existence of prior

patents therefor; the description thereof in printed publi-

cations; the public use; the placing on sale; the patenting

or published description thereof more than two years prior

to the plaintiff’s said application; and the abandonment of

said alleged invention.

9. Defendant denies that any invention of the plaintiff is

disclosed or covered by, or claimed in said Letters Patent,

and denies that anything embodying an invention made by

the plaintiff has ever been made, used, or sold by the

defendant.

10. Defendant denies that it |has ever been engaged it

the manufacture, sale or use of incubators which

any invention of said Letters Patent numbered

or purporting to be described and claimed therein, and

denies that it has in any way infringed, or incited or cam-

tributed to infringement by others, of the alleged

method of eggs as set forth in claims 1.or 2069 .

of said Letters Patent, and further denies that it has

ears

15:

- made or sold or’ used, or contributed to the manufacture,

sale or use of incubators made in accordance with claim 5

of said Letters Patent, and denies that i¢ has ever intended

or threatened to- infringe said Letters Patent.

11. Defendant is informed and admits that the plaintiff .

has expended large sums of money in the manufacture and

(fol. 23] sale of incubators made in general accordance with

the drawings and specification of said Letters Patent, but

defendant denies that the alleged invention claimed thereby

‘has proven to be of value and denies that such incubators

—

except as to features common to other incubators designed

%

ingot

€

i>

5

have acquired a high reputation or recognition of ufility

and marketed prior to the said alleged invention of ' the

' plaintiff, and denies that the plaintiff’s said incubators

possess superior qualities and/or functions over other in-

cubators previously designed and marketed as aforesaid,

and denies that said patent has been widely recognized and

respected. Defendant is informed and believes and there-

fore avers that said Letters Patent have been generally dis-

regarded and believed to be either invalid or limited to the

precise features shown and described therein. Defendant

is without knowledge as to profits made by the plaintiff

from the manufacture and sale of incubators, as alleged in.

. the Bill of Complaint but defendant is informed and verily

believes and therefore says that said The Buckeye Incu-

bator Company has been adjudicated a bankrupt, that a

receiver in bankruptcy was duly appointed and that its

assets havé been sold to a purchaser who intends to con.

tinue the business of manufacturing incubators but not

under any authority derived from the plaintiff.

12. Defendant is informed and admits that the plaintiff

_ bas instituted suits in various District Courts of the United

“Btates charging others with having infringed said Letters

: fol. 24) lished by any decrees except as against servile

i

q

5

:

Z

E

=z

E

F

E

:

é

| Mitations by persons wifo had also been guilty of ineq-

dle conduct, and as against persons who had been guilty

competitive tactics whereby they had forfeited

gir standing in Court. Defendant is informed and be-

B unsuccessful in litigation, and that in all such suits

bre tried, contesting defendants who were not

16

servile imitators and not guilty of unfair competition, were

successful in their defenses, and that decrees have been

entered in such cases, construing and limiting the ‘claims

of said Letters Patent to substantially the exact method

and structure shown and described therein, and to a method

and a structure not used by this defendant.

Further answering, Defendant says:

13. That the alleged method purporting to be patented in

and by the claims numbered 1, 2 and 3 of the plaintiff’s said

Letters Patent numbered 1,262,860 is not patentable un-

der the laws of the United States for the reason that said

claims set forth and attempt to monopolize merely the func-

tions of the plaintiff’s incubator as shown in the drawings.

and described in the specification of said patent.

14. That the alleged method as set forth in the claims

numbered 1, 2 and 3 of the plaintiff’s said patent and in

each of them, is limited to. the functions and mode of opera-

tion which the plaintiff’s incubator as set forth in claim 5

of said patent is intended and designed to perform and that

[fol. 25] the incubator set forth in said claim 5 is essential

to said mode of operation and to the performance of said

functions; that in defendant’s incubators such a mode of

operation is not possible and such functions are not and

cannot be performed in the manner set forth in said claims

i, 2 and 3, or in any of them, and that therefore, said de-

fendant’s incubator is not equivalent for the plaintiff’s in-

eubator as set forth in his said patent in suit and is not

an infringement of said Letters Patent.

15. Defendant is informed and believes and therefore

avers that in the course of the prosecution in the United

States Patent Office of the plaintiff’s application for the.

Letters Patent in suit numbered 1,262,860 such proceedings

and such representations, admission, recanta-

tions and disclaimers made in behalf of the plaintiff and

such interpretations of the claims involved in this suit were

made in his behalf and for the purpose of procuring the

grant of said Letters Patent, that the plaintiff became and

now is estopped to assert that such claims cover or MO

nopolize or patent the subject matter of any incubator made,

sold or_used by defendant. eee

16. That in view of the state of the art existing p jor to

the alleged invention by Samuel B. Smith of the suits

. matter of said Letters Patent No. 1,262,860 the said patent,

‘if valid, must be construed and limited to the precise method °

‘and. structure disclosed in the drawings and description of

said Letters Patent and that none of the claims of said Let-

ters Patent cover or were intended to cover any incubator

[fol. 26] sold by the defendant and that none of the in-

cubators made and sold by the defendant are embraced

within the claimed subject matter of sant Letters Patent but

that defendant’s incubators and each of them are differ-

ent in structure and design and are capable of no mode of

operation or method invented by the plaintiff, and that

defendant’s incubators are’ not either in structure or in

method of-use an equivalent for or an embodiment of any-

. thing invented by the plaintiff or which the planitiff has

any lawful right to monopolize in and by the patent in

_ - suit. a,

17. Defendant is informed and believes and therefore

” avers that the claims 1, 2, 3 and 5 of the patent in suit num-

bered 1,262,860 have been construed and limited by judicial

. interpretation and adjudication in suits against other man-

nfacturers of incubators and that, as so construed and

_ limited, nothing contained in defendant’s incubators or in

' any mode of operation thereof of which the same are

capable, is an infringement of said claims or of any of them,

or of said Letters Patent.

18. Defendant is informed and believes and therefore

- avers that said alleged invention purporting to be patented

= in and by said Letters Patent numbered 1,262,860 was

~ abandoned by said Samuel B. Smith, by the manufacture

© and public use of such incubators for purposes other than

> @xperimentation, for a period of more than two years prior

~ to the filing of said application.

© — 19. This defendant further says that said Letters Patent

® {fol. 27] are ineffective to claim or monopolize anything

‘= Made by this defendant for the reason that the same as to all

@ festures and combinations of features disclosed in said Let-

34ers Patent and also found in defendant’s incubator are mere -

Weeeeeregations of features and elements and combinations of

tures and of elements common to the prior art and

gown to and used by manufacturers of incubators gen-

ally prior to the alleged invention thereof by the plaintiff

ae’ ~

18

and more than two years prior to his said application and

that no invention was required to so aggregate them in a

single incubator and no new result was obtained by so do-

ing.

Further answering, this defendant says:

90. Defendant is informed and believes and therefore

avers that the Letters Patent in suit number 1,262,860 are

null and void and have no force and effect whatsoever for

the reason that the alleged invention or improvement de-

: scribed and attempted to be claimed and monopolized in

and by said Letters Patent and every material and substan-*

tial part thereof, was shown and described and patented

and shown disclosed and described in printed publications

prior to the alleged invention or discovery thereof by said

Samuel B. Smith in and by the following specified Letters

Patents and publications, to-wit:

United States Letters Patent

Name

Napoleon E. Guerin

Paul H. Bate

Edw. G. Renwich

Jacob K. Meschter

19

United Statés Letters Patent—Continued

Number Name Date

152,644 Jones, et al. .. June 30, 1874

165,121 Reynolds . June 29, 1875

280,490 Lumpp July 3, 1883

286,756, Winkler Oct. 16, 1883

410,110 Knowles, et al. Aug. 27, 1889

426,321 Proctor Apr. 22, 1890

432,282 Proctor July 15, 1890

585,175 Schwartz Mar.

United States Letters Patent—Continued

Number

300,118

916,273

754,749

105,891

~ 307,116

297,676

886,325

1,237,874

24,325

934,274

548,573

153,948

[fol. 30]

330,457

709,650

916,454

1,119,090

786,256

874,696

1,277,530

1,284,611

1,263,138

1,158,447

1,100,368

787,671

1,231,112

345,236

263,584

32,597

1,214,053

797,689

676,950

- 206,389

1,237,874

1,225,382

758,695

198,422

Name

Parker.

Coons _..

Cooper .

Blake

Jennings

Conant ..

Osborne

Martini

Neubauer, et al.

Bradley

Moller, et al.

Haight.

Bassini, et al.

Scott ._..

Koons

Madary

Axford

McCarty

Barba

Crumpton

Smith

Coleman

George

Jacobson

Allison

Enggren .....

Briggs —.

Phillips

Jordan ..

Rice ..... oe

Dancan .

Mendenhall PAWN

Mar.

Aug,

Oct.

Apr.

Date

23, 1909

2, 1870

28, 1884

Number

te 449,231

° . -§96,386

571,424

44,324

173,016

1,198,604

34,864

[fol. 31]

1,165,917

1,142,483

1,140,009

1,060,414

“158,391

288,124

327,900

“ 335,351

77,253

1,293,495

669,537

47,991

, 440,786

449.170

; 1,135,556

/ 1,174,627

Wolfe

Lippy, et al.

Jones __.

Tegoli

Petrie

Tegoli

Broemer, et al.

Tashjan

Ayres

Sandholzer

Schmolz

Rogers

‘Hatch |

Cheyney ..

Mackay, et al.

Michaud

Shaler

Bond .

Phillips

Tegoli

Sicignana

Endeman

Renwick

Renwick

Renwick

’ Mor

Cu as

Campbell

' Frey, et al.

Christiansen

bie

Se

BE

United States Letters Patent—Continued 3

o

8

~ B

le

4

on

Sy

5

o

Bp Bros,

z

ie zi

tt = O

et ie

p= CD pet

ASRS

aT

tnd

SO> GN pt

_.. Oct. “14, 1912

Aseria:

United States Letters Patent—Continued

Number

1,195,705

1,222,617

10,288

[fol. 32]

10,019

22,557

155,917

117,089

322,047

450,706

401,431

453,958

345,878

457,043

457,497

468,168

472,728

474,022

476,828

481,043

448,981

27,629

Name

Martin ..

See |

(British) John Gardner 1887

(British) Timar

(British) Mann ........

(German) E. Stulik .

(German) Mann

(French) sMaginez

(French) Haas

(French) Lourdel

(French) ... |

(French) Rachaine

(French) ..

(French) Furley -

(French)

(French)

(French)

(French) ...

(French) Forbes

(French) Mucke

(Swiss) Iden

51,062 —_—

‘he Dollar Hen’’, by Milo Hastings,

by The Arcadia Press, New York City,

107, inclusive.

‘¢Poultry Culture’’

ary, 1912, Article entitled

Publications

Outmammothed’’.

‘‘Boston Sunday Globe’’

vember 10, 1912, Article entitled

Factories’’.

‘«'Technical World’’, Chicago, Ill., Issue of

. Article entitled ‘‘Hatching Chickens by

(fol. 33]

Poultry on a Large Scale for Comme

poses’’ by H. S.

Aug.

Apr.

May

1899

Nov.

Feb.

May

Jan.

Oct.

Feb.

1904

Sept.

Sept.

June

Dec.

Feb.

Sept.

Oct.

Feb.

Apr.

Date

22,

17,

1916

1917

1901

1904

1901

1903

1913

1909

1913

1913

1913

1914

1914

1915

1915

1916

1913

1904

Published 1909

Pages 77 to

, Topeka, Kansas, Issue of Febru-

‘‘The Mammoth Incubator

, Boston, Mass., Issue of No-

‘*Indoor Chicken

April, 1913,

Wholesale”.

Management of

reial Pur-

¥ 23

Judd Co., New York, 1900, and added to the Patent

Office Library on the 29th day of January, 1901—

particularly pages 299 té 303, inclusive.

‘Incubators and their Management’’, by J. H. Sut-

cliffe, 1910.

‘Drying Machinery and Practice’’, by T. G. Marlow,

1910.

‘Plenum Ventilation’’, by Griffiths, 1905.

‘Warming Buildings by Hot Water’’, by Hood, 3rd

Edition, 1891. ae

“Heating and Ventilating Buildings’, by Carpenter,

1910. -

‘‘Heating and Ventilation’, by A. H. Barker, 1912.

‘*Handbook for Heating and Ventilating Engineers’’,

by Hoffmann, 3rd Edition, 1913.

‘“‘The Art of Hatching and Bringing up Domestic Fow!

of all Kinds’’, by M. DeReaumur, London, 1750.

‘“‘Incubation and Its Natural Laws’’, by Charles H.

Cyphers.

‘‘The Incubator’’, by James Rankin, 1886. — .

‘‘Artificial Incubating and Brooding’’, Reliable Poul-

try Journal, 1888.

Catalog of Hugon & Co., Ltd., Manchester, England,

1915, showing Fat Dryer, page 32.

Catalog of Robert Gibson & Sons, Ltd., Manchester,

England, 1913, showing Confectionery Dryer, pages

5 and 21.

Catalog of Linfoot & Cooper, Manchester, England,

1910, showing Colour Dryer, page 27.

[fol. 34] And by various other prior patents and publica-

tions not now known to this defendant but which this de-

fendant prays leave to insert in this answer by suitable

amendment when ascertained.

21. Defendant is informed and believes and therefore

avers that said Letters Patent numbered 1,262,860 are null

and void and have no force and effect because in this coun-

_ tty, prior to any date of the alleged invention thereof by

» Samuel B. Smith and for more than two years prior to the

date of said application, devices, to-wit, incubators embody-

wing the alleged invention and every substantial and mate-

mai part thereof were manufactured, placed on sale, sold

@/or publicly used by the persons and at their places of

address mentioned in the patents and publications listed in

the foregoing paragraph numbered 20 hereof and by the

following persons whose names and addresses are hereby

given as follows, to-wit:

Walter B. Davis and Milo Hastings, at Kings Highway

& 23rd St., Brooklyn, New York.

John Lieber and Milo Hastings, at Muskogee, Oklahoma.’

_ BE. T. Powers and Milo Hastings, at Port O’Connor,

Texas.

Chas. A. Cyphers, at Philadelphia, Pa. Stroudsburg,

Pa.

Rolla Lawry, at Pacific, Mo.

Bert W. Boling, of Brownstown, Indiana, at said Browns-

town.

[fol. 35] And by various other persons whose names and

addresses are not now known to defendant but which it

prays leave to give and mention in this answer by amend-

ment hereto, when ascertained.

22. Defendant is informed and believes and therefore

avers that said Samuel B. Smith was not the first inventor

of anything embodied in defendant’s incubator nor of any -

method of use practiced or caused or intended by the de-

fendant to be practiced but that each and all features of

method or of structure employed by defendant and also dis-

closed in said Letters Patent 1,262,860 were invented, per- ©

fected, discovered and/or designed by each of the several

patentees and persons above named in paragraphs num-

bered 20 atid 21 hereof, at their respective adresses a8

given in their said patents, and set opposite their respec -

tive names in paragraph 21, all of whom were each con- _

tinuously diligent in adapting and perfecting his incubators

embodying such improvements or inventions and in reduc-

ing the same to practice from a date prio to any date of

the alleged invention thereof by Samuel B. Smith and.

prior to any date following which said Samuel B. Smith was

diligent in th invention and that.

used. j 4 : : ag = *

93. Defend: ut further says that said Letters Patent 9

null and void and ineffective to lawfully claim and moms

= {fol. 36] lize any method or structure‘ used by the defendant

* for the reason that the plaintiff failed to comply with the

<~ Statutes in such case made and provided, in that the writ-

* ten'Wescription of said alleged invention and of the manner

and process of making, constructing and using it was not

A } set forth in the plaintiff’s application for said Letters Pat-

1

»

ak

AA

+ ° et and is not set forth in said Letters Patent in such full,

= clear, concise and exact terms as to enable any person

. skilled in the art or science to which it appertains or with

which it is most nearly connected, to make, construct and

use the same, and the alleged principle thereof and the best

contemplated mode of applying that principle was not ex-

5 plained in the plaintiff’s said application and is not ex-

' plained in said Letters Patent so as to distinguish the al-

- Reged invention from other inventions, and that said ap:

-, Plcation did not, and said Letters Patent do not, particu-

.~ larly point out and/or distinctly claim in- said claims i

= $8 and 5 thereof, or in any of them, the part, improvement

* or combination of parts which the plaintiff claimed or now

ims as his invention or discovery.

we

He iy td

a 4 ant

eo

ie

Sth he"

24. Defendant further says that all elements, features,

> and. combinations of features common to the incubator dis-

~. Closed in the plaintiff’s said patent and-to this defendant’s

~ ineubators, are also common to the incubators disclosed in

-—-the prior patents and publications aforesaid and prior to

~. the said alleged invention of the plaintiff were commonly

» known to and used by the public generally and are not and

¢annot lawfully be covered or monopolized by said Letters

Patent numbered 1,262,860. eae

fol. 37] 25. Defendant further avers that said Letters

2 satent are null and void because the complete specification

@f the said Letters Patent.does not sufficiently describe or

sBecertain the nature of the said alleged.invention or in

Ke ee

Waid,

meat manner the same is to be performed and in particular

@entains no or no sufficient directions:

ag .

‘an to be admitted ‘thereby or as to whether or when or

wnat extent such fresh air is to be charged with steam

#50 what is an undue. loss of moisture or how it is to be

(b) As to the velocity with which the air is to be impelled.

(c) As to the manner in which the heated air may be

properly adapted tothe eggs in various stages of incuba-

tion. '

(d) As to what temperature is to be meintained in the

apparatus or different parts thereof and what temperature

is injyrious therein.

(e) As to how units of heat may be carried from eggs in

the more advanced stage of incubation to those in a. less

advanced stagé and the air throughout the chamber main-

tained at substantially the same temperature, or as to how

either of such objects may be attained.

[fol. 38] 26. Defendant further avers that said Letters

Patent are null and void because the complete specification

of the said Letters Patent is ambiguous and does not suf-

ficiently ascertain the ambit of the monopoly claimed and,

in particular:

(a) The expressions ‘‘applying a current of heated air’’,

‘‘whereby the air will be vitalized’’ and ‘‘for the purpose

specified’’ are wholly vague and indefinite, or meaningless.

(b) No purpose is specified therein.

(c) It is uncertain what, if any degree of vitalization is

contemplated.

(d) The public cannot distinguish the method claimed

from the methods of incubation previously existing nor can

they ascertain whether a given apparatus does or does not

fall within the claims.

27. Defendant further avers that said Letters Patent

are null and void because the complete specification of the

said Letters Patent is misleading and contains false sug-

gestions, in particular in that it is’ stated or suggested

therein :

(a) That there is any advantage in forced draft.

(b) That there is any advantage in passing & current of

air first through the eggs in a more advanced stage of in-

cubation.

[fol. 39] (c) That eggs during incubation nee ap

preciable heat or enough heat to cause an app i ae

27

in temperature in eggs contained in an incubator of ordi-

nary construction.

(d) That anything therein described enables’ the rise in

temperature to be prevented from reaching an injurious

point with any more certainty than the methods previously

existing or that an injurious temperature was in fact

reached in previous methods.

(e) That anything therein described effects any improve-

ment upon or beneficial alteration in the procedure of

previous methods.

- 28. Defendant further avers that said Letters Patent are

null and void because an inoperative machine is disclosed

thereby because the process is inoperative if practiced as

taught, that it lacks invention and that it is a mere adop-

tion and extension of well-known principles of heating and

ventilating.

Wherefore the defendant avers that the plaintiff is entitled

to no relief whatever and prays that the Bill of Complaint

‘be dismissed, with costs to be taxed against the plaintiff.

James Manofacturing Co., by John S. Powers, De-

fendant’s Solicitor, 1080 Ellicott Square, Buffalo,

N.Y. & L. Wheeler, Toulmin & Toulmin, of Coun-

sel for Defendant.

(fol. 40] Ix roe Unrrep Srares District Covrtr

[Title omitted]

Piarntirr’s Motion ror Bru or PaRTIcuLars

"Now comes the plaintiff herein and moves that the de-

fendant shall be ordered to furnish better particulars as to

_ ite defense in the following respects :

~_ (a) State which of the one hundred forty-one (141)

United States Patents, three (3) British Patents, two (2)

+ German Patents, thirteen (13) French Patents and two (2)

Swiss Patents referred to in Paragraph 20 of the Answer,

will offer in evidence at the trial of this ease to support

‘defenses set up, and upon which of said patents it will

upon for any of said defenses.

(b) State which of the nineteen (19) publications re-

ferred to.in Paragraph 20 of the Answer, it will offer in evi-

dence at the trial of this case to support the defenses set

up, and upon which of said patents it will rely upon for

any of said defenses.

[fol. 41] (c) State which of the six (6) prior tises alleged

in Paragraph 21 of the Answer, the defendant will attempt

to prove at the trial of this case, or upon which it will rely

to ‘support any of the defenses set up in this case.

'(d) Furnish complete description of such prior uses, the

apparatus employed therein, and when and where sugh uses

oce 3

Charles W. Parker, Attorney for Plaintiff. Charles

W. Parker, A. L. Ely, of Counsel. al

Receipt of the above Motion for Bill of Particulars ac-

knowledged this — day of September, 1932.

Toulmin & Toulmin, Attorneys for Defendant.

[fol. 42] Is roe Untrep States Diwraict Count

[Title omitted]

Awswers oF DEFENDANT TO Pcarntirr’s MoTIoN FoR Bru or

ParricuLars—Filed October 28, 1932

The defendant furnishes the following bill of particulars -

in compliance with the plaintiff’s ‘motion and makes an-

swers to the specific questions propounded therein as fol-

lows: ,

Answer to Question 1:

The defendant expects to offer in evidence at the trial of

: this case, to support the defenses set-up, the following let-

ters patent: .

220,253 H. Endeman...........

173,016 C. W.&E. A. Jones

193,616 E. 8S. Renwick.........

198,422 H. B.Smith.......:...

206,389 T. Clegg........-.----.

—~940,004 P. H. Bate..............

se Se July 3, 1883

Schmolz............ November 6, 1883

W.H. Rogers... October 6, 1885

J.J. Phillips... August 27, 1889

Proctor, etal... July 15, 1890

3 2 eee November 18, 1890

S. G. Phillips......... - March 31, 1891

J. K. Proctor... December 25, 1894

C. W. Schwartz, Jr..... March 5, 1895

N.McAsilan..... ss. May 28, 1895

J. K. Proctor.......... January 28 1896

LA “pre April 28, 1896

mea ee........... 2 January 28, 1902

F.C. Perkins... «ss. September 5, 1905

2. ees June _ 16, 1908

.2eek............. April 6, 1909

M. E. Bradley... September 14, 1909

J. Schmidt & H. Schut- .

Ss . December 65, 1911

G. Stone........ ae Petes February 10, 1914

A. DiDomenica & A.

Amicarelli..... February 10, 1914

R. G. Furley...... May 12, 1914

C. H. Osborn... June 22, 1915

/™ Vivleae............ July 2, 1918

(British) John Gardner 1887

he tions, being all of the publications mentioned in para-

‘Staph 20 of the amended answer filed herein:

(fol. 44] ‘The Dollar Hen’’, by Milo Hastings, Pub-

© _ lished 1909 by The Arcadia Press, New York City,

=. “pages 77 to 107 inclusive. - :

= “Poultry Culture”, Topeka, Kansas, Issue of February

@ = 1912, Article entitled ““The Mammoth Incubator Ont-

a. © Mammothed’’.

Boston Sunday Glo ’’, Boston, Mass., Issue of No-

= vemt oT 10, 1912, Article entitled ‘‘Indoor Chicken

‘‘Technical World’’, Chicago, Dll, Issue of April 1913, .

Article entitled “Hatching Chickens by Wholesale”.

‘““The New Egg Farm or the, Management of Poultry

on a Large Scale for Commercial Purposes’, by

H. 8.-Stoddard. Published by Orange Judd Co., New

York,1900, and added to the Patent Office Library

on the 29th day of January, 1901—particularly pages

299 ©» 303 inclusive. -

‘*Incuvators and@peir anagement’’, by J. H. Sut-

cliffe, 1910.

‘*Drying inery and Practice’, by T. G. Marlow,

1910. .

*P} Ventilation’’, by Griffiths, 1905.

“ ing Buildings by Hot Water’’, by Hood, 3rd

Edition, 1891.

‘‘Heating and Ventilating Buildings’’, by Carpenter,

1910.

‘*Heating and Ventilation’, by A. H. Banker, 1912.

‘‘Handbook for Heating and Ventilating Engineers”,

by Hoffman, 3rd Edition, 1913. — '

‘The Art of Hatching and Bringing up Domestic Fowl

of all Kinds’’, by M. DeReaumur, London, 1750.

[fol. 45] ‘*Incubation . and Its Natural Laws’’, by

Charles H. Cyphers. ,

‘“The Incubator’, by James Rankin, 1886. .

‘‘ Artificial Jncubating and Brooding”’’, Reliable Poul-

try Journal, 1888.

Catalogue of Hugon & %o. Ltd., Manchester, England,

1915, showing Fat Dryer, page 32.

Catalogue of Robert Gibson & Sons, Ltd., Manchester,

‘1913,, showing Confectionery Dryer, /

5 and 21.

Catalogue of Linfoot and Cooper, Manchester, Eng-

land, 1910, showing Colour Dryer, page 27.

Answer to Question 3:

31

~ facture, sale and use of an incubator by said Bert W. Boling

at Brownstown, Indiana, prior to any date of the alleged

. invention, alleged to be covered in letters patent No. 1,262,-

- $62, and for more than two years prior to the date of the

’ application for said patent at said Brownstown, Indiana.

John 8. Powers, Solicitor for Defegdant. H. A.

Toulmin, H. A. Toulmin, Jr., of Counsel.

(fol. 46) Ly rae Unrrep States Dusraict Cover

[Title omitted]

Amenpep Answers or Derenpast to PLamtirr’s Moriox

ror Buz or Pagtricutars—Filed October 31, 1932

The defendant furnishes the following bill of particulars

in compliance with the plaintiff’s motion and makes an-

swers to the specific questions propounded therein 4s fol-

lows:

Answer to Question 1: |

The defendant expects to offer in evidence at the trial of

this case, to support the defenses set-up, the following let-

ters patent:

March _— 30, 1843

October 24, 1871

February 1, 1876

July 31, 1877

Degember 18, 1877

July 30, 1878

April 12, 1881

July 3, 1883

535,175

540,107

553,723

559,260

656,760

691,837

780,912

789,719

C. W. Schwartz, Jr.

March

May

January

April

August

January

January |

May

BPR o

~

SB BB

798,697

828,181

843,909

891,019

917,483

934,274

951,650

1,010,809

September

August

February

June

April

September

March

F. M. Peters, et al.

L. Verna

Cc. C. Peck

M. E. Bradley

Wm. Miller

J. Schmidt & H.

Schutterle

G. Stone... =

A. DiDomenica & A.

Amicarelli

R. G. Furley

Geo. E. Goldstein.

C. H. Osborn...

T. B. Freas..

J. J. F. Bales

Roy F. Fullington

i

a

mar

—_

QO

December

1,086,567 February

1,086,903

February

May

May

June

December |

December 28, 1915

November 21, 1916

1,096,708

1,137,752

1,144,232

1,165,958

1,166,311

1,205,445

(fol. 48]

1,270,900

10,288

10,019

155,917

Wie 2, 1918

.. July

(British) John Gard-

3 1887

1901

November 11, 1904.

Answer to Question 2:

The defendant expects to offer in evidence at the trial of

this case, to support the defenses set-up, the following pub-

lications, being all of the publications mentioned in pare -

graph 20 of the amended answer filed herein: | 5

‘The Dollar Hen’’, by Milo Hastings, Published. 190

by The Arcadia Press, New York City, pages 77%

107 inelusive. ; | —

“Poultry Culture’’, Topeka, Kansas, Issue of Feb-_

ruary, 1912, Article entitled ‘‘The Mammoth In-

cubator Out-Mammothed”’.

‘Boston Sunday Globe’’, Boston, Mass., Issue of No-

vember 10, 1912, Article entitled ‘‘Indoor Chicken

Factories’’. .

‘Technical World’’, Chicago, Il., Issue of April, 1913.

Article entitled ‘‘Hatching Chickens by Whole-

sale’’.

‘‘The New Egg Farm or the Management of Poultry

on a Large Scale for Commercial Purposes’’, by

H. 8. Stoddard, Published by Orange Judd Co.,

New York, 1900, and added to the Patent Office

Library on the 29th day of January, 1901—Par-

ticularly pages 299 to 303 inclusive.

‘‘Incubators and their Management’’, by J. H. Sut-

cliffe, 1910.

[fol. 49] ‘‘Drying Machinery and Practice, by T. G. Marlow,

1910. -

‘*Plenum Ventilation’’, by Griffiths, 1905.

‘‘Warming Buildings by Hot Water’, by Hood, 3rd

Edition, 1891. :

‘*Heating and Ventilating Buildings’, by Carpenter,

1910.

‘“‘Heating and Ventilation’’, by A: H. Barker, 1912.

‘‘Handbook for Heating and Ventilating Engineers’,

by Hoffman, 3rd Edition, 1913. :

‘The Art of Hatching and Bringing up Domestic Fowl

of all Kinds’’, by M. DeReaumur, London, 1750.

“Incubation and its Natural Laws’’, by Charles H.

Cyphers. i

‘The Incubator’’, by James Rankin, 1886,

“‘Artificial Incubating and Brooding’’, Reliable Poul-

_ try Journal, 1888. ee is.

Catalogue of Hugon & Co. Ltd., Manchester, England,

__, 1915, showing Fat Dryer, Page 32. ,

| Catalogue of Robert Gibson. & Sons, Ltd.,\Manchester,

_ England, 1913, showing Confectionery Dryer, pages \

5 and 21.

,. Catalogue of Linfoot and Cooper, Manchester, Eng-

land, 1910, showing Colour Dryer, page 27.

3-36

34

Answer to Question 3:

The defendant expecta to prove at the trial of this case,

and will rely upon the same, the prior use of Bert W.

Boling.

Answer to Question 4:

The defendant is at present advised and informed that

the prior use of said Bert W. Boling consisted of the manu-

[fol. 50] facture, sale and use of an incubator by said Bert

W. Boling at Brownstown, Indiana, prior tony date of the

alleged invention, alleged to be covered in letters patent

No. 1,262,862, and for more than two years prior to the

date of the application for said patent at said Brownstown,

Indiana.

John S. Powers, Solicitor for Defendant. H. A.

Toulmin, Jr., of Counsel. |

——

Ix THE Unrrep States District Court

[Title omitted }

Motion or PuarntirF FoR SUPPLEMENTAL BILL oF

ParticuLars—Filed June 10, 1933

Now comes the plaintiff herein, by his attorneys, and

moves this Honorable Court for an Order requiring defend-

[fol. 51] ant to furnish better particulars as to its defense,

in the follewing respects.

(a) State which of the forty-two (42) United States

patenta and two (2) British patents set up in Defendant’s

Amended Answers to Plaintiff’s Motion for a Bill of Par-

ticulars it will offer in evidence at the trial of this case to

support any or all of the defenses set up.

(b) State which of the nineteen (19) publications set up

in said Amended Answers it will offer in evidence at the

trial of this case to support any or all of the defenses

set up. 3

(c) Give the name of the publisher of each of the nine-

teen (19) publications seb forth in said Amended Answers

and the pages or passages from such publications upon —

35

which defendant expects to rely, and state in what library,

or other place, copies of same may be found.

(d) Give a full and complete description of the alleged

prior use of Bert W. Boling of Brownstown, Indiana, set

forth in the Amended Answers of the Defendant to Plain-

tiff’s Motion for Particulars, together with a full and com-

plete description of the apparatus alleged to have been used

by the said Bert. W. Boling at Brownstown, Indiana, and

the date of such alleged prior use upon which the defendant

expects to rely. ;

Charles W. Parker, Attorney and Solicitor for Plain-

trff. C. L. Ely, Max D. Farmer, of Counsel.

rr fol.52] Ix tHe Unrrep Srares District Court

[Title omitted]

DerenDant’s Response To Piaintirr’s Morion ror Suppie-

MENTAL Brut or Pagticutars—Filed June 19, 1933

In response to Plaintiff’s motion for a supplemental bill

of particulars, defendant hereby, without contest or hear-

ing, furnishes such particulars.

Answering Question (a), defendant says that of the pat-

ents pleaded, it will offer in evidence and rely upon the

following : |

. A. Guerin .March 30, 1843 ©

3,019 N

120,253 H. Endeman October 24, 1871

193,616 E. S. Renwick .. July 31, 1877

198,422 H. B. Smith | .. December 18, 1877

206,389 ~T. Clegg | July 30, 1878

240,004 P. H. Bate - .. April 12, 1881

280,490 Lumpp”. _... July 3, 1883

327,900 W.H. Rogers October 6, 1885

347,946 J. K. Meschter © ...August 24 1886

410,017 J. J. Phillips _......August 27, 1889

< 432,282 Proctor, et al. _- _.. July 15, 1890

_ (fol. 53] Re. 11,460 J. K. Proctor _ December 25, 1894

36

798,697 F.C. ins ........... September 5, 1906

2 843,909 F. er ....... February 12, 1907

891,019 ener Ne on. 24 16, 1908

917,483 C.C. Vero 6, 1909

934,274 M. E. ___.... September 14, 1909

1,010,809 i

_... December 5, 1911

1,086,567 G. as _.' February 10, 1914

1,144,232 C. H. June 22, 1915

1,165,958 ; eG December 28, 1915

1,166,311 _.. December 28, 1915

1,205,445 R. F. Fullington November 21, 1916

1,270,900 S. Viviano........ July 2, 1918

10,288 (British) John Gardner ' 1887

155,917 (German) Stulik ...... November 11, 1904

Answering Questions (b) and (c), Defendant says that

of the publications pleaded it will offer in evidence and

rely upon the following:

‘‘The Dollar Hen’’, by Milo Hastings, Published 1909,

by the Arcadia Press, New York City, pages 77 to

107 inclusive.

‘‘Technical World’’, Chicago, Ill., Issue of April, 1913,

Article entitled ‘Hatching Chickens by Wholesale’’.

“The New Egg Farm or the Management of Poultry

on a Large Scale for Commercial Purposes’, by

H. 8. Stoddard, Published by Orange Judd Co., New

York, 1900, partucularly pages 299 to 303 inclusive.

(fol. 54] ‘‘The Art of Hatching and Bringing up Domestic .

| Fowl of all Kinds’’, by M. DeReaumur, London,

1750, particularly the following pages: 1; 2 (lines —

1-13); 3 (lines 5 to end); 4; 5 (line 1 and lines 17-

27); 6 (last paragravh) ; 7 (lines 1-2) ; 9 (lines 3-18) ;

13 (lines 16-22 and last paragraph) ; 14 (lines 5-17); -

15 (all except last seven lines) ; 16 (lines 18-32); 17 _

(lines 8-26); 18 (lines 19-22); 19 (lines 21-35); 20

(lines 5-16); 22 (lines 4-6) and from line 11 to end;

23 (lines 1-5 and lines 9-21) ; 35 (last paragraph) ; 36

(first six lines) ; 47 (first full paragraph) ; 48 (lines

12 to end and also opposite Plate II); 49; 50 sme :

III; 51 and the opposite

oe.

187 (lines 10-25); 190 (last five lines) ; 212 (line 23

Answering Question (d) with reference to the Burt W.

‘Bolling prior use of Brownstown, Ind., plaintiff is advised

‘that defendant does not deem it necessary to prove that

(fol. 55] prior use and, therefore, will not do so as the

other defenses are regarded as ample.

H. A. Toulmin, H. A. Toulmin, Jr., Counsel for De-

fendant. John S. Powers, Solicitor for Defendant.

June 16, 1933. st

ee

Unrrep States District Court

[ Title omitted ]

Notice or Prion Use anp Pusuications Derenpant Wr

Rey Ow axp Demann Uxpse Equrry Rut aiS8—Filed

October 7, 1933 heady:

. Plaintiff is hereby given notice that at the trial of the

above entitled cause, defendant will rely upon and prove

. [fol. 56] the prior use of Milo. Hastings, at “King’s High-

_ Way and 23rd St., Brooklyn, New York, at Muskogee, Okla-

Bs -homa, at Port O’Connor, Texas, and elsewhere in the

© United States, in the years 1911 and 1912, and prior

, Mereto, as pleaded in the amended answer. |

Plaintiff will also take notice that at the trial of the above

“fatitled cause, defendant will rely upon and prove the pub-

pmeation.‘‘Ponlty Culture’’, Topeka, Kansas, issue of Feb-

Mary, 1912, article entitled ‘The Mammoth Incubator Ont-

wimmothed’’, which publication is also pleaded in the

meended answer herein.

Defendant will further rely upon and prove at the trial

the following publications :

Electrical World, of July 6, 1912, page 55, and of Feb-

ruary 6, 1915, Vol. 65, No. 6, pages 362 and 363, a

copy of these publications being available at the

Engineering Societies Library, 29 West 39th Street,

New York, New York.

Popular Mechanics Magazine, 318 W. Washington St.,

Chicago, Illinois, pages 630 and 631, issue of Novem-

ber, 1912.

Defendant attaches hereto photostatic copies of the

material portions of the publications referred to above and

demands, under Equity Rule 58, that plaintiff admit that

such photostatic copies are true and accurate reproductions

of the matter referred to and that the said works were pub-

lished at the times set forth herein and that such publica-

[fol. 57] tions were generally circulated in the United

States at the times indicated.

The original of this notice and demand is being sent with

a true and correct copy thereof to Mr. Albert L. Ely, coun-

sel for plaintiff, Leader Building, Cleveland, Ohio, with the

request that he acknowledge service on the original and

returtrit to counsel for defendant, and that he endorse on

such original his admission as demanded herein or his re-

fusal to admit the matters covered by this demand.

Toulmin & Toulmin, Counsel for Defendant.

Receipt of copy of the above acknowledged Sept. 28, 1933.

Ely & Barrow, Solicitors for Plaintiff.

The publications are correctly reproduced.

Article appearing in the February, 1912, issue of ‘‘ Poul-

try Culture’’, annexed, will be found herein as Defendant’s

Exhibit No.-28, page 1405 of this record. ~

Index cover. page and pages 630 and 631 of the Novem- _

ber, 1912, issue of ‘Popular Mechanics’’ magazine, a-

nexed, will be found herein as Defendant’s Exhibit No. 2%,

page 1407 of this record.

July 6, 1912, issue of ‘‘Blectrical World’’, annexed, will

be found herein as Defendant’s Exhibit No. 25, page 1410

of this record. le

[fol. 58] Ix Ustrap States Disratcr Cover

[Title omitted]

STrruLarion oF ConsoLmaTIon

It is stipulated by and between the attorneys for the

parties to the above entitled cause, that the related and co-

pending case of Samuel B. Smith vs. Elmira Hatcheries,

Inc., Equity No. 254, be consolidated herewith, pursuant to

a stipulation of even date entered in said Samuel B. Smith

_ vs. Elmira Hatcheries, Inc., Equity No. 254.

Charles W. Parker, Attorney for Plaintiff. John 8.

Powers, Attorney for Defendant. |

It is so ordered this 20th day of November, 1933.

John Knight, United States District Judge.

[fol. 59] Ix Untrep Srares Disratcor Court

[Title omitted]

Sriteutation or ConsoumpaTion

It is hereby stipulated, by and between the attorneys for

the parties to the above entitled cause, that this cause may

be, and hereby is, consolidated with the co-pending and

related cause entitled Samuel B. Smith vs. James Manv-

facturing Company, Equity No. 253, and that, as consoli-

’ dated, the causes shall be known as Samuel B. Smith vs.

James Mannfacturing Company and Elmira Hatcheries,

Inc., Equity No. 253. |

It is further stipulated, that where the papers heretofore

filed in one of said causes may be, in substance, duplicates

_ of or substantially the same as the papers filed in the other,

Se the record on appeal may be limited, as counsel may agree

; t the paper in one of said causes, e. g., pleading, stipula-

__ tion, order, or other paper otherwise competent for or ma-

= _ . Charles W. Parker, Attorney for Plaintiff. John 8.

si Powers, Attorney for Defendant.

"Bo ordered this 20th day of November, 1933.

: John Knight, United States District Judge.

ee

[fol. 60] Ix tHe Ustrap States Distaict Count

[Title omitted] |

Srirutation Luarrmxc Recorp ox Apprat—Filed Septem-

ber 23, 1935

Pursuant to prior stipulation heretofore filed herein and

subject to the approval of the court, it is stipulated between

Samuel B. Smith, plaintiff, and James Mannfacturing

Company and Elmira Hatcheries, . Incorporated, defend-

ants, that the two causes of Samuel B. Smith vs. James

Mannfacturing Co., Equity No. 253, and Samuel B. Smith

- vg, Elmira Hatcheries, Inc., Equity No. 254, having been

consolidated as one case, the transcript of record on appeal

- to the Circuit Court of Appeals for the Second Circuit may

be made up’so as to include only the pleadings, documents

and papers filed in the case of Samuel B. Smith vs. James

Manufacturing Co., Equity No. 253 and the narrative state-

ment of evidence submitted at the consolidated trial, with-

[fol. 61] out including the pleadings, documents and papers

filed in the case of Samuel B. Smith vs. Elmira Hatcheries,

Inc., Equity No. 254. ,

James Manufacturing Company, by Toulmin & Toul-

min, Attorneys. Elmira Hatcheries, Inc., by Toul-

min & Toulmin, Attorneys. Samuel B. Smith, by ~

A. 8. Ely, Attorney. :

Approved this- September 23rd, 1935. John Knight,

United States Judge.

Iw rae Unrrap Stazes Desreicr Court

. } : [Title omitted]

Moyox to Duss Bi eee March 13, -

Now comes the defendant, through its counsel, Toulmin —

and Toulmin, and moves this Honorable Court as follows: _

That plaintiff’s bill be dismissed; and that plaintiff be:

enjoined from instituting and/or prosecuting any suUlb.@F a.

(fol. 62] suits against the customers of defen who a0.

‘ an

XY -

, - Mt

using James Incubators of the kind attempted to be in-

~s volved in this suit, this motion being made on the following

= grounds: ;

~- (1) Because the plaintiff has no title to the Smith patent

“. No. 1,262,860 dated April 16, 1918, on which this action is

- based, except as to incubators which: have an egg capacity

‘ of more than 16,500 eggs, and because defendant’s incu-

bators are of egg capacity less than 16,500 eggs. Defend-

- ant’s incubators here involved have the following egg ca-

_-» pacity: fifty-eight hundred and eighty (5880) eggs per in-

~ enbator. 7

_ (2) Because the plaintiff has heretofore granted, exe-

cuted, and delivered, an exclusive license under said pat-

-. ent here in suit, in and by an instrument in writing, duly

~ executed by plaintiff under date of April 29, 1927, which:

- exclusive license is in full force and effect.

- (3) Because, as to the injunction branch of this motion,

— plaintiff has no legal right to threaten, bring, and main-

* tain, not only this suit, but any other suit or suits against

> the customers of defendant, whose incubators are all of egg

Cd

} =, eapacity less than 16,500, and are not, therefore, within any

-_ present right of plaintiff. |

~ This motion will be called up for hearing in the after-

~ hoon of March 13th, 1935, in the above named court before

~ His Honor, Judge Knight. |

Respectfully submitted, Toulmin & Toulmin, Counsel

for Defendant. °

ae Dayton, Ohio, March 11, 1935.

a fol.63] In roe Unrrep Srares Distatct Cover

y [Title omitted]

| _—s Narrative Statement of the Evidence

a ) it remembered that at the trial of the above entitled

mee, before Hon. John Knight, District J udge for the

ptern District of New York, at the Federal Building,

malo, New York, begun on January 29, 1934, the follow-

Proceedings were had and evidence introduced which

oe a

° #2

is hereby reduced in narrative form pursuant to Equity

Rule 75:

min represented by H. A. Toulmin, Esq., and H. A. Toul-

min, Jr., Esq., and John 8. Powers, Esq.

Counsel for the plaintiff first offered in evidence a copy

of the patent in suit stating that claims 1, 2, 3 and 5 of the

patent would be relied upon. |

Thereupon a copy of U. S. Letters Patent No. 1,262,860,

dated April 16, 1918, was offered and received in evidence

(fol. 64] and marked Plaintiff’s Exhibit No. 1.

Counsel for the plaintiff then made the following state-

ment:

Now, before the proceeding opened, I disclosed to Coun-

sel for the defendant copies of the various instruments”

passing title to the plaintiff. I will just review that for a

moment. The patent in suit was assigned to the Buckeye’

Incubator Company, prior to issuance, by an instrument

dated June 4, 1917. On that condition and of that time, .

Smith was a licensee under the patent. He took a license

back under his patent—assigned his patent to the Buckeye —

Company and took a license back under the patent, and that

condition existed until April 29, 1927, when the Buckeye

Company reassigned the patent to Dr. Smith, the original .

inventor, and the Buckeye Company then took a license

under the patent for the manufacture of incubators of

smaller sizes comparable with the size which is now made

by the defendant in this case.

So that I think it is fair to say that the title to the patent

is stipulated as alleged in the bill of complaint. ;

We have also stipulated between ourselves—the usual

stipulation that uncertified copies may be used with the

full force and effect of the originals, and photostatic copies

of foreign patents and publications, with the right of-cor- ..

rection if error appear. e

We have also stipulated in regard to the stenographer’s

costs; that is, that half would be borne by each of the

parties at the present time, the whole amount to be charge®_

with the costs. : ee

I think that takes care of the formal matters.

~

-~* >

“F: r

* 43

[fol. 65] - Counsel for the plaintiff then offered in evidence

eet of decisions on the Smith patent containing reported

unreported decisions with regard to the patent in suit,

which book was admitted in evidence and marked Plain-

tiff’s Exhibit No. 2.

-JoszPH Insxir Taccaat, a witness called on behalf of the

plaintiff, being first duly sworn, testified in substance as

follows :

Direct examination.

By Mr. Ely:

My name is Joseph Inskip Taggart. My age is 46. My

. residence, Cleveland, Ohio. My present occupation is As-

sistant General Manager of the Smith Incubator Company.

The Smith Incubator Company is a corporatj»n of Ohio.

It is engaged in the manufacture and sale of Mammoth in-

eubators, under the Smith Patent in suit...

I am in more or less direct charge 4f the manufacturing

_ of the incubators. and am in direct charge of the erection

‘and service of these machines, and am in direct charge of

the research work, all experimental work; and it is also my

duty to keep in contact with the various universities over

the country to check on any improvements or any experi-

ments that are going on in the universities, keep in contact

‘with poultry developments, and to keep generally informed

‘Epon the subject of incubation and poultry. I am a grad-

wate from Ohio Wesleyan University, at which school: I

gave special attention to zoology. I was graduated there

With high honors in that department. tac:

{fol. 66] While I was there; I was assistant professor for

fwo-years. After that time I taught one year. I taught

Melogy ; and for the past ten years, or eleven years, I have

Seen actively associated either in the hatchery work or in

re. nt work.

gy ‘Daring that time it has been my business to investigate

‘peat itions, hatchery conditions and incubators in

#y state in the union. I have had experience actually

nn, incubator plants. For four years I was in charge

matchery known as Smith Standard Company of Cleve-

~ lich, at that time, had from a million to a million

and a quarter egg capacity. I also own a hatchery at the .

7 present time, and have owned two. The incubators ‘that

a were used at the Smith Standard Company were a machitie

that was manufactured under the patent of the Smith In. —

cubator Company. The original machines there were the

first machines that were built under the patent.

I describe, just briefly, the process of incubation and the

hatching of an egg as follows: An egg, as we all know, con-

sists of three main parts, the yolk, the white and the shell,

At the time the egg is laid, the shell is practically full.

The content of the egg is more than two-thirds water.

The part of the egg that grows and develops into 9 chick

under incubation is a small germ spot which is located on

the top of the yolk. eS . .

The yolk is developed in the ovary of the hen, and the

yolk part is many times the size of the germ spot.

When the yolk is dropped from the ovary, it lodges in

the oviduct, and as it passes down the oviduct to the vent,

[fol. 67] it passes certain glands which secrete various lay-

ers of albumen on the side of the yolk, and later, the shell,

before the egg finally is ready to pass from the vent.

_ This process of moving, or this journey through the ovi-

duct, varies 24 to 36 hours, depending upon conditions.

The egg is fertilized, generally, just a short time after it

drops into the oviduct. The male germ is there waiting for -

it, and incubation starts right away. That is, incubation

starts as soon as we have the union of the male germ and.

the female germ. The temperature being right, incubation

will continue until the egg has passed from the vent, so that -

by the time an egg is laid, the average egg has been in-

cubating from 24 to 36 hours. |

After it is laid, if the egg is chilled, this incubation proc

ess stops. If it is chilled below a temperature of 69, it

becomes completely dormant. When the temperature is

again raised to a point of 70, incubation starts slowly, but

for it to become active, it requires a temperature near. oUF

body temperature, 99 to 100 degrees. . wba

As incubation. starts again, the live germ develops

rapidly. It is surrounded with excellent food, and a8. 10mg

as we keep the temperature right and prevent too ray ig

evaporation of moisture, we have development taking plaee..

It also requires that the egg be tarned from time fo Gam.

which we will refer to later as turning or exercising:

embryo. fee be:

45

; - To complete thie process of hatching requires approxi-

. 21 days from the time the egg is laid: This varies

with ividual eggs, with eggs from individual flocks or

- will be still used as food and water, and will eventually be

absorbed, sometimes in 48 hours, sometimes 72, but it will

eventually become absorbed.

23 ing this process, the animal or ‘the embyro has been

essimilating food and oxygen. Bringing these two together

_Raturally creates heat and, roughly, the larger the embyro,

_ the greater the amount of heat that is developed. .

_. The embryo within the shel] gets its oxygen as follows:

, Oxygen is assimilated through the shell, and inside the

picked up by osmosis process by the placenta which

© tants of the chick, has been evaporated.

If we evaporate too rapidly, we dry down the ¢hick too

“Buch; we have a poor chick. It we control the evapora-

01.69] tion during the entire period, we get a better

Wick, and it is quite essential that that rate of evaporation

a controlled, not just the last day, but during the entire

As.to the total water content of the egg passing off by

Fof evaporation I would say, about 15 to 20 per cent. of

ee by weight, that is, the interior of the egg, by weight.

lave some graphic means of showing development of

the egg during the process of hatching. This graph

®have here is gotten up to show the heat development, —

46

. day by day, during-the 21 days of hatching. The heavy

curved line is labeled ‘‘Heat Units.’’ Across the bottom

we have numbered the different days of incubation. For

each section upward from the base line we have repre-

sented that as one calory. This calory is used in the met-

ric system as a-unit of heat. It represents approximately

four B. T. U.’s or British thermal units, and a British

thermal unit represents the amount of heat that is neces-

sary to raise a pound of water one degree.

That is the large calory that I speak of.

That is not the small calory they speak about in food.

By following the heavy black line, or the heat curve, you

will note that it starts upward somewheres about the fourth

or fifth day of incubation. |

Now, prior to that time, there is no heat developed.

There is some heat actually absorbed due to chemical -

changes that are taking place within the egg, but you will

note, from the fifth day on, the heat curve raises gradually

until] approximately the 17th day, at which time the heat

(fol. 70] development is arrested for a period. It is right

at the time when they are changing from the feeding on

the white of the egg to the yolk of the egg, and then, after

a period of 24 to 35 hours, it starts up again.

Now, that represents, the development per day in the

ordinary egg. .

The red line or the red curve across the bottom of the

chart represents the heat.consumed per egg per day be-

cause of the evaporation of moisture. It takes a cer-

tain number of units of heat to evaporate a given amount

of water, and if we put an egg in an incubator and main- - -

tain a certain temperature on the incubator, if that egg is

not fertile, so it develops no heat of its own, it will never

get up to the incubator temperature until the water is

evaporated, and that is a sizable amount of heat when con-

sidered in a large mass of eggs. - :

This heat absorption, due to the evaporation of moisture,

is sufficient so that it keeps the eggs at a sub-normal or sub

incubator temperature, until you reach a point where the

heat development crosses the heat absorption curve. +38

is approximately the tenth day. It varieg with individual

You will note that the heat absorption is Somparatively ae

form until about the 19th day, at which time the chiek p

. the shell; somewhere during the 19th or beginning of!

47

20th day, they pip the shell, and as soon as they do, they

begin to breathe by the month. From that time on, the

evaporation is much more rapid, and when they roll out of

the shell, they are quite moist, and evaporation ends quite

rapidly. That evaporation is a chilling process from the

very first, of course. '

ffol.71] At about the tenth day the amount of heat which

is generated by the egg exceeds the amount of heat which

is absorbed by evaporation. And that is about half way

through the incubation period with respect to the incuba-

tion process.

I have termed the eggs that are absorbing heat. as en-

- dothermic eggs. That means that they need heat, they are

picking up heat. The eggs that are giving off heat are

called exothermic eggs. I have colored here the heat that

will be absorbed. I have graphically shown the heat that

will be absorbed during the first ten days, and I have also

graphically shown the heat that will be given off during the

latter half of the hatching period. ee

The amount of heat which is given off—comparing the

" amount of heat which is given off, that is, the heat which

is over and above that required for evaporation—the

amount of that heat compared with the amount of heat

that is necessarily absorbed is several times greater.

There is a line across gn this chart at about the 17%

day. The purpose of that line on the chart is as follows:

In the James way ineubator, they recommend that the

eggs can be removed from the incubator at the 17% to 18th

day, and that was put in there to represent that period, and

“to. show that the red area, or the heat given off up to that

period, was still considerably greater than the heat Te-

“prired by the heat-absorbing eggs.

-~ That is to say that even where the eggs are taken out of

‘(Me incubator at 17% days, there would be an excess of

“ qReat given off over the heat that is required to supply the

<faal.72] Those dot-and-dash lines which appear beneath

amv coloring represent the amount of oxygen consumed and

}amount of carbon-dioxide given off. An egg passes

mathe endothermic, that is, heat-absorbi , to the exo-

emuic stage about the tenth day. That varies with in- ~

mal cases. I have another graph or chart which shows

meat development in the egg.

48

The graph or chart identified by the witness as above

was then offered and received in evidence and marked

Plaintiff’s Exhibit No. 3.

This chart which has just been handed me shows the

heat developed by incubating eggs. Before looking at the

chart, I wish to call your attention to the picture that is

attached to the chart. That picture is taken of either this

box or a similar box (showing box to the court). Within

the box I have placed a dozen eggs. I will get back to

this stage a little later. Through the side of the box I have

placed a fever thermometer or clinical thermometer, and

then the box was sealed. You will note that the box is .

heavily insulated.

Before starting this experiment or test, I place this box,

empty, within the incubator, and I leave it there for at

least 12 hours, so that the box would take on the tempera-

ture of the incubator as nearly as possible. Then, at a

given period or given time, I would take 12 eggs of a

known stage of incubation, and place them in the box, as

shown there. The fever thermometer I would cool and .

shake down so that it was down to at least 90. . Understand,

this is all taking place inside the incubator, where the tem-

perature is 99. Placing in the box 12 eggs of known stage ;

of incubation, seeing the thermometer was down to at least

(fol. 73] 90, then I would close the box, seal it and leave it

on the floor of the incubator, where the air temperature

around it was just the same as it had been around the eggs

for hours. | :

As to how I get the temperature down to 90 when it is

naturally 99— , :

The fever thermometer, you could touch it to your lips,

or in any water, and hold it under a fan, and the’ cooling

action of the evaporating moisture would soon put it dows

to the temperature of your incubator, and you could shake

/ it down below the recording point. —

(Now, within 30 minutes after the box was sealed, I would

read the temperature of the thermometer, and then, 9%

4 tes later, I would read it again, and so on for 8 mime.

or ten-hour period. If the eggs within this box were de

veloping any heat, that heat would be confined in there fat

all practical -purposes ;_ it would be confined, could am.

escape, and the temperature of the thermometer would Hae.

Now, with that explanation, I would like to call ¥

49

attention to the chart itself. On the left-hand column here

I have listed the number of days that the eggs were in

the incubator at the time they were subjected to this test.

The first line at the top, they were in there three days.

80 minutes later—

The Court: You mean they had been in the incubator

three days before you put them in the box? :

The Witness: They had been in incubation in the regular

manner.

[fol. 74] Q. That is, they were three-day old eggs?

The Court : Yes; all right. “

The witness resumed: 30 minutes after they were placed

in there, the fever thermometer—or 30 minutes afterward,

On the ten-day eggs, we began to see heat development,

_ seing 98.3, 30 minutes after it was placed in the box, but

_ it reached’ 99 after it had béen in there seven hours, and

< by the time it had been in there eight hours, it was 99.1.

~ ee

i >

3

‘Un the twelve-day eggs, you will note that the tempera-

re, in nine hours, rose to 100.4. On 15-day eggs, you

Atel: 75} will note it raised to 103.6. On 17-day eggs, it

Geme to 107.3. On the 18 and 19 days, you will note that

ee Dot get as high, only reaching 104.6 on the 18-day,

« 436

Siem ‘

ct ‘

50

and 104.3 on the 19-day. That is the point of this depres-

sion in my heat unit curve on Exhibit 3.

On the 21-day, you will note that there are two records

made there. The first one was made on fertile eggs that

had not pipped at the time they were started. These would

be put in on the morning of the 2ist day, and in that

condition, the temperature rose to 107.6 in nine hours; but

if the eggs had pipped at the time they were placed in

there, we found the temperature went up higher.

I have performed experiments corresponding to the eggs

not pipped, and also eggs pipped, when the temperature

ran up even higher than 111 in a shorter period. The

amount of heat development would vary. This shows that

prior to the 10th day period, the eggs are cooler than the

incubator temperature, requiring heat. Heat must be

added, but after that period, the eggs become exothermic

and give off heat. And that is true of the eggs as far as

the 17th day. .

The chart thus identified by the witness showing heat de-

veloped while incubating eggs was then offered and ad-

mitted in evidence and marked Plaintiff’s Exhibit No. 4-A.

Counsel for the plaintiff likewise offered in evidence 8

photograph of the apparatus used in making the demon-

strations by itness, which photograph was admitted in

evidence and mar Plaintiff’s Exhibit No. 4B.

The hearing was thereupon adjourned until January 30,

1934, at 10:00 A. M. | et

(fol.76] The hearing was resumed on’ January 30, 1934,

at 10 A. M., with the same appearances as before.

Joszrn Insxip TacoaRtT

The witness, Joseph Inskip Taggart, being recalled, re-

aumed the stand and testified in substance as follows:

Direct examination.

By Mr. Ely: :

I am familiar with the condition of the prior practice ame.

the state of the art of incubation before 1915. I became s®.

acquainted, because, well, as 8 boy I saw incubators in ™ 3

in my home vicinity, and while I was in college, in I”

51 -

1908 and 1909, I used incubators for the purpose of hatch-

ing eggs in the department, there, of zoology, where we

were studying embryology; and since that ‘time I have

watched the development, from time to time, and since 1922,

I have made numerons studies of the early incubators.

‘Asked as to the condition of the prior practice and state

of incubation prior to 1915, the witness said: We have been

hatching eggs artificially as long as we have history. The

Egyptians and the Chinese used artificial incubation . as

much as two thousand years ago. Much of the early prac-

tice back there is shronded in mystery because they have

kept many of their practices secret; but in 1915 the inen-

bators that were in common commercia] use were smal]

cabinets when compared with the incubators of today. The

’ average incubator would hold perhaps 150 eggs, some of -

them going up three to four times that much, but that would

(fol. 77] be a fair estimate of the average incubator of that

time. In those incubators the eggs were all placed at one

level. I mean by ‘‘one level,”’ they were placed in a tray

just one egg deep. The €8g8 Were scattered over the tray,

was finished ; providing they had just one machine, that

wag their method. |

- The temperature in these machines was decidedly differ-

ent from the temperatures in the force draft. machines.

' The thermometer hung above the eggs was from 102, the

first week, it might be, and 103 the second week, and 104,

_ Sometimes 105, the third week. That is, it was customary

_ 0 increase the temperatures of these incubators as the

24, Now, a thermometer hung below the eggs was anywhere

ftom six to eight degrees colder than the thermometer

sqmumeeve the eggs. In other words, there was several degrees

) mrence in temperature between the bottom of the incu-

mor and the top of the incubator.

52

The top surface of, the eggs was naturally warmer than |

the bottom surface. Of course, it was customary to turn

(fol. 78] these eggs at regular intervals, and one of the

reasons advanced for turning the eggs was that it was

necessary to warm the eggs uniformly. One of the Eastern

colleges put out a bulletin on that about 1912, in which they 2

recommended turning the eggs six to. eight times a day, the

reason being that it would warm the eggs more uniformly.

That can be well illustrated by a bulletin that was put

out by the United States Government in 1914. I have a

copy of it here (producing). This is called Farmers’ Bul-

letin 585, entitled ‘‘Natural and artificial incubation of hen

eggs,’’ and is edited by the United States Department of

Agriculture. This particular copy came from the printing

office in 1922. On the inside of the cover sheet it states that

it was issued May 8, 1914, and this 1922 is a reprint. On

the first page, on the cover page, it shows a typical in-

cubator. In this particular one it shows the drawer re-

moved, showing the chicks hatching and some eggs and

egg shells left in there.

Now, if you will turn to page 12, you will see there a

picture of the incubator cellar as the experimental form of

the Bureau. of Animal Industry at Beltsville, Maryland,

showing an arrangement of incubators, men testing eggs,

thermometer for reading of temperature of the room. You

will note that there are six or seven incubators shown.

Those are typical incubators of that day.

Now, just to leaf through this bulletin hurriedly; it will

give you some idea of the methods of operating. Opposite

page 12, there, on page 13, it gives you the temperature to

operate the incubators. eon ;

It says, ‘‘When the bulb of the thermometer rests directly

[fol. 79] on the eggs, the temperature is usually held at .

101% degrees to 102 degrees Fahrenheit the first week,

102 to 103 degrees Fahrenheit the second week, and 103

degrees Fahrenheit the third week. While a hanging ther-

mometer is operated at about 102 to-102% degrees Fahren- .

heit the first two weeks, and 103 degrees Fahrenheit the

last week. At hatching times, the machine will frequently

run up to 104 to 105 degrees Fahrenheit without any inju ee

to the chicks.’’ oo a

These incubators required special care and skill in ¢ v

.

tion. At the bottom of page 12 it states “‘jnionbator4 J

: res

’ : 5h

quire careful and regular attention which, though sithple,

is very exacting.”’

The results usually obtained with this type of incubator

varied perhaps more with the operator, due to the operator,

than to the particular machine itself. An operator could

become skilled with most any machine and get good results ;

if they gave it very careful attention, they could expect a

50 to 60 or 70 per cent. hatch, depending upon conditions.

The practice with regard to the period of setting the eggs

often, and many

[fol.'80] operators cooled them twice a day. The cooling

process consisted of opening the door and drawing the tray .

partially out that sometimes as much as two-thirds of the

tray extended out into the room. In other: cases, the tray

- was drawn out entirely and placed on top of the incubator.

It was left there from 10 to 30 minutes, depending upon

conditions and depending upon the wishes and skill of the

Operator. Some of them would cool much longer and much

- currents. The top of the in

Warmer than the bottom of the incubator. There was very-

_ decided prejudice, that I know of, against drafts. Every

_ precaution was taken to avoid drafts,. and they even built

_ Special incubator houses or incubator cellars that were

' -Bailt so that they would avoid drafts, even then; on page 1]

otf this bulletin it gives you a description of the incubator

‘eellar or house, and towards the bottom of that paragraph,

; ‘states, “muslin screens on the windows provide good

eremulation without draft and at the same time keep the sw

iia shinfhg on the machines.’’ :

fWas not possible, in these machines, to practically inon-

=)

a

==?

Pag: s arranged at different levels, becanse there were .

a and they depended upon convection currénts

M4

solely. The incubator had decidedly different tempera-

‘tures at different levels. For example, if we have a tem-

perature of 102 to 103 directly above the eggs, we might ©

have a temperature of 97 below the eggs, and if we would

operate the incubator right for one layer of eggs, we would

[fol. 81] not have the right température for the layer of

eggs below it or the layer of eggs above it. Many people

tried this, and there was a lot of people thought they had

the problem solved, but none of them ever became practical,

and there was none of them ever used that I have been able

to discover. That is, it was not the practice then to hatch

eggs by arranging them at different levels in the incubator.

Whether the eggs were shifted or not from either position

did not make any difference.

(Counsel for the plaintiff then offered in evidence. the

bulletin referred to by the witness, which was admitted in

evidence and marked ‘‘Plaintiff’s Exhibit No. 5.’*)

_ . Other than this bulletin which I have spoken of and show-

ing commercial incubators of the period, I have here a

photostatic copy of an advertisement that was put out by

the Buckeye Incubator Company in 1915, which shows elec-

trotypes that the Incubator Company could furnish people

that were selling these incubators. It states here that they

have seven sizes, 60 to 600 eggs. You will note the general

style of these incubators: There was only one layer of

eggs. They were all lamp-heated.. That was not true of all

the incubators that were cut; some of them were electrically

heated, but these shown here are all lamp-heated, but that is

typical of the small incubators of that time.

Now, there was a number of so-called mammoth incu-

bators at that time. The large number was gained by con-

necting together a lot of these separate incubators, much 88

you would connect sectional bookcases. They would deck

[fol. 82] them up on top of each other, one, two, three and

four decks high. I have an illustration of that, that was put

out by the Blue Hen Incubator Company. Here they have

quite a number of individual incubators connected together.

Each door as shown there represents a separate i |

each of the separate machines. Now, there is another fea-

ture about this Blue Hen that I want to call your attention

to, and it represents a condition in the development of the

art. I have stated before that it was customary to carry

the temperature in the incubator different each week ; that

is, change it as the hatching progressed, and in this machine

it was recommended that they adjust the temperature right

-in the top deck for the first week, and in the second week

they would move them to the second or middle deck, and

the third week they would put them in the bottom deck.

You will even note that the bottom deck is deeper than the

other two. The reason there was to put in an extra tray be-

low the tray of eggs that you see, for the chicks to go into

after they had hatched, and they would keep them in there

for a few hours after hatching. They called it a nursery -

tray. That was a common practice, not only in 1915 but for

a number of years afterwards. This particular illustration

was prepared in 1922. That was typical of the earlier in-

stallations. In those installations, in each cabinet, the eggs

were all the same age. There was no congection between

[fol. 83] the cabinets whatever, outside of the heating pipes.

There was nv connection as far as the heat from the eggs

in later stages of incubation going up.to eggs in the earlier

‘stages; there was no utilization made of that.

By the Court:

Q. There could not be differences in temperature in those

three layers? .

A. Yes, sir.

Q. Well, how would you take your eggs from the bottom

layer; the first week, and the third week, they would be in

the middle layer, which would be, perhaps, a cooler tem-

_ perature instead of a higher temperature?

A. They would be in the top layer the first week, the mid-

‘die layer the second week, the bottom layerthe third. That

was largely offset by the circulation of the water; the water

; were using for heating these cabinets, the warm-

. ~@at water would go to the top.

moe Q. In other words, you do not put them all ig at one time;

_Sayem put them in separate weeks, the eggs?

ee A. Yes, sir. As they would start, they would fill the top

m, and then, the second week, they would move those

r to the second deck and set a new batch in the top

56

deck, and then, the thitd week, they would move them down

to the bottom deck. Re 5s

Q. In that way, you could not fill all three decks at one

time?

A. No, sir.

By Mr. Ely:

There was no communication, as far as the transfer of

heat, from the eggs in the lower series of. cabinets up to the

eggs in the other cabinets. That is, the heat in each cabi-:

net and the air. condition of each cabinet was individual to

{fol. 84] that cabinet, and individual to that age of eggs

that was in that cabinet. That cabinet has its own thermo-

stat and. own controls. The hatching was carried on in

this lower series of compartments. That is, it was-not new

to hatch eggs in a separate compartment from that in

which the major portion of the incubation operation took

place. :

‘Asked in-what respect tais prior art resembled or dif-—

fered from the practice of the hen on the nest, the witness

said: They simulated the hen, copied after the hen in every

way that they could. It was.the teaching of the time that

an incubator had not been built or could not be built that

would be superior to the hen: in her nest. She sat on eggs —

all of thhe same age. Her body was around 105 to 106 at

the start. She warmed the eggs from above. The tem-’

perature below the eggs was considerably cooler than her

- body, and she avoided drafts by keeping the eggs closely —

covered; and she would leave her nest once or twice a day

for food and water, during which time the eggs would be

cooled, and she would turn them by a shuffling or rolling

| process with her feet or beak. She conserved moisture by

i keeping them covered all the time; and the early incubators

did everything that they could to follow the hen. They -

used the hen as their model, and the literature regarding

incubators at that time, and even after that time, among

the people who were manufacturing this type of incubator,

talked about how they follow the hen, how they follow

Mother Nature.

Counsel for the plaintiff.then offered in evidence the

electrotypes of the Buckeye Incubator Company, identified _

(fol. 85] by the witness and the same were admitted in 6B.

dence and marked ‘‘Plaintiff’s Exhibit No. 6”’. ae

57

. Counsel for the plaintiff then offered in evidenté the

electrotypes of the Blue Hen, multiple deck incubator

identified by the witness and the same were ddmitted in

evidence and marked ‘‘Plaintiff’s Exhibit No. 7”.

The Witness then resumed:

As to this defendant and its practice, it early followed

this type of incubator construction which. we have shown

.’ in Exhibits 6 and 7. I have literature showing what this

plaintiff used to do. I have catalogs that were supplied to

us by the defendant. The oldest one here goes back to 1924,

or at least that is the date—yes, it is copyright in 1924; and

is the last one’in the—the back one—this blue one, on the

inside page, it states it was copyright in 1924. On page 4

it shows a type of incubator that they were marketing at

that time. You will note this one was four decks high. It

. differs from the others in regard to ventilation, slightly.

There is no space in between the decks; one deck sits di-

rectly on the other. That incubator there is known as a

_ 23,040—egg machine. The individual compartments were —

180 eggs apiece. This James Way Incubator Book is

known as the 64th edition, and is dated May 14, 1928.

‘The Court :-Fourth edition, issued 1927, it Says.

{fol. 86] Mr. Ely: I guess it is the same; perhaps a re-

print, your Honor.

~The Court: It says 1927.

» __Mr. Ely: Well, it does not make any difference, 1927 or

1928. I guess you probably have a different edition. It is

the same thing, I think.

~ The Court: It seems to be the same.

- The Witness: On page 4 they show a picture of the same

‘Machine, but the cross-section Mr. Ely referred to is shown

on page 27 of that book. This cross-section is labeled as

“End section of the James Way with manifold housing

_ fémoved showing the vertical air shaft. and fresh air in-

F takes’’.

- You will note that this shows four separate machines.

_ There are four separate inéubators. The ventilation shaft

_&8 up the center, and there is entrance into each machine

Mid into each cabinet at the bottom, and the arrows indicate

Me convection air movement that crosses up through the

gages and passes out at the top. This Ventilation is con-

eied by the daiper én the outkide of each section.

58

There were convection currents that went through there,

convection currents only—no forced draft, none whatever.

The eggs were all at one level and they were all in the same

stage of incubation. The heat was applied from above.

Ventilation and cooling from below. The eggs were not

hatched in different levels; they were not arranged in dif-

ferent levels in the cabinet. Each cabinet is individual

[fol. 87] and separate from the others. They advocated.

at that time, 1928—this defendant advocated following

nature’s way, Vigorously. I will point out in the catalogs

where they talk about following nature’s way, and also

where they condemn forced draft. On the top of this page

27, it states, ‘‘Nature’s way of supplying fresh air’’, and

at the fourth paragraph it states ‘‘the air movement in this

shaft is continuous, natural and certain, making it un-

necessary to use electric fans or other mechanical devices

of any kind.’’

Now, if you will just turn back one page, to page 24, you

will note right at the top of the page, ‘‘as Mother Nature

intended, heat from above, moisture from below, ventila-

tion from the side.”’ :

Now, this same statement appears in a number of cata-

logs. For example, in the very next catalog, which has a

green back, if you will look at the back cover page or on the

inside of the back cover page, it states in a bold type ‘‘as

- Mother Natmre intended, heat from above, moisture from

below, ventilation from the side.’’

In one of their very latest catalogs, which is the first one

in front of the orange or the yellow one that we have just

been looking at—in the right hand column of page 33, which

is entitled ‘‘abundant fresh air’’, in the second sentence of

that, it states, ‘‘in the James Way the air is gently moved

through the compartment without draft’’.

As to what date these defendants were sticking to the old

still air machine and knocking the forced draft machine—

well, since 1929 they have been manufacturing both types.

[fol. 88] This latest catalog which I have just read from is

describing the conditions as existed in the still air machine.

And they were finally converted to this forced draft ma-

chine about 1929. The Smith incubator, as it is now sold,

had then been on the market about seven years, but incu-

bators under the patent had been on the market for twelve

years. And during all this time, these people opposed to

. 59

\

the forced draft machine, as J] have shown. Ag have some

bulletins that they put out about\that. This bulletin is en-

titled ‘‘Profits in Baby Chicks, or How to Conduct a Suc-

air enters the bottom of the ©gg compartment, the heat is

supplied from above, and thus the top of the egg is always

warmer than the bottom, thus duplicating the method of

nature.

Thie type of incubator is simple to operate, is flexible and

elastic, to meet the operator’s growing needs; is devoid of

electrical and mechanical devices, hatches chicks in large

(fol. 89] a quality calculated to please the purchaser and

prove a lasting advertisement to the hatchery man. The

James Way represents this type in its highest form of de-

velopment.

Then there is the cabinet type of incubator. The cabinet

type is a large cabinet or chamber in which the eggs are

suspended in trays or hangers of various kinds. This type

requires the installation of an electric fan in the top of the

in this type of machine. This means the same temperature

on the top and bottom of the eggs, which is contrary to

Mother Nature’s method, and which manifestly affects the

- quality of the chicks. It also requires an uninterrupted

lectric service and the expense of current.’’ That com-

fendant in 1924. That picture shows Dr. Crum standing

.» Beside the type of machine most nearly equal to the natn. .

\ fal hen method of hatching. There were two schools of

so Mhoyght in this problem of artificial incubation, Prior to

yi) there was just the one school of thought, and that was

60

to copy Mother Nature as closely as possible, as described

im this James Way incubator. The other school of thonght

was started by Dr. Smith, in which they were placing eggs

in columns in the machine, had different layers of eggs,

and had the eggs in staged incubation, and applying forced

draft through the machines constantly.

In the early stages, there was .considerable~ discussion

along both lines. This defendant persisted in the Nature

method or the hen method until 1929. Then, in 1929, he

[fol.90] shifted over to the other school of thought. As to

those who adhered to the first school of thought, or Nature

_ school of thought, as a practical matter, they practically

all have passed out of business. There are very few of

them still operating, and those that are, are not doing very

much in that line. Several of them have gone out of busi-

ness in the last two or three years.

Counsel for the plaintiff then offered in evidence this

booklet, and particularly the cover page and page 10 of

this booklet to which the witness has just referred and the

same was admitted in. eviderite and marked ‘‘Plaintiff’s

Exhibit =

(Bulletin ‘entitled, ‘*Profit in baby chicks, etc.,’’ marked

‘‘Plaintiff’s Exhibit No. 8.’’)

| The Witness then resumed:

When these incubators were built up in the sectional

bookease form, the disadvantages of that scheme of getting

large production were, well, they took up so much room, as

even in the four-deck machine, there could only be eggs ar-

ranged at four different layers, and it covered a large area.

That is, to get any capacity of any consequence, it covered

a large area; and one of the principal disadvantages was

that it required a special building of houses; you could not —

have the sun shine on the machine, and you could not have

drafts on the machine: If drafts blew against one side of

the machine, it would cause a difference in temperature in

[fol. 91] there. They depended solely on convection cur-

rents to keep the temperature uniform at the different

levels in the machine; so it was the custom to build special

incubator houses or. ineubator cellars.

Then the heating problem was quite extensive. ite

quired sonsiderable fuel, not only to heat the buildiag Wit

algo to heat the incubator. It required lots of labor, in

each individual compartment had to be checked and

temperature had to be regulated in there, and it was. }

tomary to,start the rounds every few hours and read all

the thermometers, a thermometer for each 150 to 200 eggs

in the machine. It was the practice,in most: of those ma-

chines, to cool them once or twice daily, and it required

hours in incubators of any decided capacity. ;

T am familiar with the Smith Patent in suit. I have

made a special study of it, and I have testified regarding

it in different patent litigations, and am familiar with: the

patent. This patent calls for an ‘improved apparatus and

method; is designed particularly for extensive operations

wherein they have a chamber of large dimensions. It calls

' especially for eggs arranged at different levels and eggs in

_ different stages of incubation, and for the application to

those eggs of a forced draft, not an ordinary draft, but a

draft of sufficient velocity to keep the temperature substan-

tially uniform throughout the cabinet. :

Explaining the meaning of “‘arranging the eggs at dif-

ferent levels,’’ the witness said: Prior to this patent, or

prior to Dr. Smith’s work, no_one had successfully _been

- able to arrange eggs at different levels in the same cabinet.

There had been many attempts at it, but no one had been

(fol. 92] able to build a successful incubator where they

had eggs at different levels in the same machine. In the

PFE 2

.. same on all sides of the egg, which was the reverse of the

_ feaching up to that time, the. reverse of the teaching of

Rature. ,

» When the incubator igs filled, the eggs are arranged in

- Slumns, or in stacks, The trays are in stacks, so tha

Miages of hatching. It was not the practice, ‘prior/to Dr.

’s invention, to put the eggs in the incubato in dif-

a

ferent stages of incubation. They all had-to be the same

stage, because they thought it was necessary to change the.

temperature as the incubation progressed; and you will

remember, the Government Bulletin cautioned them

against adding any fresh eggs to the incubator after it

had once been started.

. When the incubator was full, you would have eggs in

several different stages of incubation, as outlined here;

you would have eggs in four to five different stages of in-

cubation.

With regard to circulation of air: Commencing with line ©

40 on the first page, it states:

[fol.93] ‘*The temperature of circulating air should be

such as will prevent the eggs in the early stage of incuba-

tion from falling below 100 degrees and the speed or ve-

locity of the circulating air should be such as to carry the

heat away from the eggs in the later stage of incubation

and thereby hold the temperature of those eggs at 105 de-

grees or slightly below that. It is manifest that the tem-

perature will remain practically the same throughout the

column of eggs, but the air ‘s impelled with sufficient ve-

locity to carry the heat away from the eggs which happen

to be in the advanced stage of incubation.’’

The eggs in the earlier stages of incubation, when they are

subjected to drafts, are warmed by the heat that is given

off from the eggs in the later stages, and the converse is

true: The eggs in the later stages of incubation are cooled

by the heat-absorbing properties of the eggs in the earlier

stages. That is a useful function, as far as eggs in the

later stages of. incubation are concerned, that is, the cool-

ing effect of the cool eggs—very much 80.

By the Court:

Q. It says here, ‘‘The air is impelled with sufficient ve-

locity to carry it away from the eggs which happen to be

in the advanced stage of incubation.’’ Now, is it carried

away at a greater velocity where the eggs are at an ad-

vanced stage of incubation than it is in the case of those

in the less advanced stage of incubation? .

A. The warmer the egg, the more rapidly it will give

off its heat to the air that passes over it. —

The Witness resumed under the direct examination by

Mr, Ely: . . |

That current of air carries heat away from all of the

eggs that are giving off heat. The age of those eggs is

from the tenth to the eleventh day. Any eggs that happen

to be in the cabinet, that are cooler, will pick up heat from

the air, as the air picks up heat from warmer objects and

the air is moving, diffusing together, and the heat units

will be given up to the cooler objects. I say any eggs that

happen to be in the cabinet, that are cooler; the eggs that

_ are there in the cabinet that are cooler are those that are

under the ten-day period of incubation. ‘That is, in carry-

ing out the Smith process, you have eggs that are cooler,

eggs that are absorbing heat, and eggs that are giving up

heat. .

In the preferred method as described by Smith, he places

the cooler eggs in the top of the cabinet. That is, he set

his first eggs in the trays at the very top, and these eggs

were left in horizontal position, because at that time it

_ was the teaching not to turn the eggs the first few days.

It was not considered necessary, and it is not necessary

yet today, but it has become general custom to do it, but

they were not turned, and they were put in that position,

_-and then, as the turning racks immediately follow—these

are perhaps shown better in Fig. 3, where those from the

‘horizontal trays at the top were moved into the trays im-

Sara below, and at certain periods, it was Smith’s

01.95] plan, in his preferred apparatus, to move those

downward, and in the last three days they occupied the bot-

tom’ of the column, where they could: hatch out without

irting up any eggs below them. At the time of hatching

_ there is considerable dirt there, such as droppings from

+ the chicks and particles of shell.

$. By the Court:

~ Q., How were the eggs moved in the crates? I can see

| bo crates are shifted, but it does not occur to me just

mw the eggs themselves are turned in the crates. ©

OF

A. There are individual trays, 4s you will note at the —

bottom in Fig. 2 on the first page. These trays were a

mesh bottom tray, and you will note that the eggs are —

placed on the little end. Smith was the first to recommend

this general practice of placing or traying the eggs on the

little end. Then those trays were slid in the racks, and

when the trays are level, as shown in the central column in

Fig. 3, the tray can be pulled in and out without any diff-

culty; and if the tray is pulled out, you simply have the

receptacle there, the same as a bureau if the drawers are

taken out.

_Q. How.do you turn the eggs?

A. The turning is accomplished | y pulling down one side

Py this rack. You will note thai these racks here are

pivoted at the top, and there are side members to that rack

which are again pivoted on all the cros members, and you

can pull down one side and one side goes down, the other

side goes up.

Q. I still do not see how you turn the eggs?

[fol. 96] A. When first placed in, they are standing on the

little end. Now, if you pull one side down, the egg will then —

be standing at approximately a 45 degree angle on the little

end, and when it is pulled down to the other side, it flops

over to the other angle, making from 75 to 90 degree turn.

The illustration shown here does not give it that much of a

turn, but that has always been the practice.

The Witness resumed under direct examination by Mr.

Ely:

Now, that is imitating the shuffling of the eggs on the

nest by the hen. It ‘accomplishes the same purpose. Smith

was the first to do that, however, in any quantity. Asa

mattter of fact, he has a patent on this very device.

I said that in the old style incubator, ypu turned the egg

over to expose it equally to the heat was coming from

above. That is, the heat was applied from above, and so

you turned your egg over like you turn a pancake over. In

the old style incubator that had other purposes than simply

turning the egg over. That was only part of the story. It

is necessary to disturb the egg, turn it from one position to

another, in order to have the embryo developed properly.

Now, it is possible to hatch some eggs without turning

during the entire period, but your hatch -is greatly in-

that there are two reasons for turning the eggs, or exer-

cising the embryo, as it is sometimes referred to. }

In both practices, or under. the old art’ there were two

[fol. 97] reasons for turning. In Smith there is only one

reason for turning. That is to exercise the embryo, or to.

prevent the embryo from becoming stuck at one point. It

develops much better if it is disturbed in the shell from

method as shown, or preferred apparatus, there are ap-

proximately half of the eggs that are in the endothermic

21 days. If you carry them in the cabinet too, say, 17%

[fol. 98] days, you still have excess heat over that required,

fion, secured in the Smith machine, in this preferred appa.

Tatus that is illustrated here by Smith, he circulated the air

4Y means of propeller fans. These fans were placed in the

= 0p of the cabinet, near the heating pipes. The heating

pipes are shown on both sides of the fan. The air was

caused to circulate down the corridor to a point near the

bottom, where it passed into the egg chambers at each side.

Thence it would move upward through the egg chambers

and back into the fan compartment, where it would be re-

rremlabed

Asked to show how the circuit is completed, the witness

said: On the second page of the patent,\starting in with

line 18, it states, ‘“The longitudinal space 21 above the fans

has open communication above the side walls 22 with the

upper ends of the rack compartments behind the curtains

3 and 4.”’ .

While that communication is not shown clearly on this

Fig. 1, yet the patent states that there was an open com-

munication between the egg compartments and the compart-

ment immediately around the fan. The space where the

air returns to the fan chamber from the column of eggs is

on each side of the fan compartments and is directly over

the supports that are shown on each side of the fan com-

nt. It is not shown clearly here in this, but it is

stated that they are there, and the arrangement is made so

the air passing up through there, up through the egg com-

partments, is drawn back into the fan and recirculated

[fol.99] Now, there is a provision for a certain amount

of this air to escape throngh the opening 28. Now, there is

only one of those openings above each egg compartment.

Just a brief reference to Fig. 3 shows that there is only one

opening 28 above the egg compartment, and that, of course,

is a very small portion of the ceiling above the egg com-

t.

Now, immediately above fan there is an opening for

the intake of fresh air. Yon will note that there are two

slides, one shown on either side, and it shows this opening

decidedly restricted. Now, those are adjustable so that the

amount of air that the fan is continuously taking is con-

trolled. :

Now, of course, only as much air can escape as fresh air

is taken in. That is, if the slides above the fan were com-

pletely closed, there woull be no escape through 28, as all

the air would be circulate over and over again.

A certain amount of fresh air is necessary for supplying

sufficient oxygen and carrying off the carbon dioxide, but

the amount of fresh air must be controlled. If we took im

67

maintain that high humidity, it would be quite expensive ;

(fol. 100] and so, rather than blowing all that humidified air

Now, Smith also provided a moisture jet in the fan com-

partment. This moisture jet, as he supplied, it, was of

air that came in.

Now, in actual operations of our present machines, the

amount of fresh air that is taken in on each cycle is only

' steam for humidity, and he could supply it in any quantity

he wanted to, and the ex ge or the fresh air coming in

was about-three per cent.

The eggs themselves supply some of the humidity. The

evaporation of the moisture from the eggs is quite a factor.

It is very important that it be controlled, as you can not

68

‘was used ‘whereby’ the moisture is conserved,’’—that

moisture is conserved by controlling the,amount of fresh

air that is taken in and holding that down to a point where

we do not carry out an excess of moisture out of the ma-

chine. That is, if you carry out an excess of moisture, you

might be in danger of drying the eggs too fast for suc-

cessful incubation.

I call his Honor’s attention to the point where the patent

describes the regulation of air interchange. The percent-

age of air imterchange is controlled by the regulation—line

43, on page 2: ‘‘The outlets 28 for the release of foul air

are made pf such restricted capacity as to prevent the un-

due escape of moisture.’’ You get the control of percent-

age of air interchange by controlling the amount: that is

taken in. I call his Honor’s attention to that point in the

patent, that refers to that, page 2, beginning at line 39.

‘*More or less fresh air may be taken i in through the valved

opening 24 above the space 21.’’ In other words, the

amourft or percentage of air interchange i is not fixed in the

Smith patent. If the inlet opening is completely closed, no

air will be dischiarged, because if you are not taking in any

quantity of air, you cannot discharge it, but if you open it

so that you are taking in 20 cu. ft. a minute, there will be

a corresponding amount discharged. If it is 10 cu. ft. a

minute, there will be, of course, the corresponding amount

discharged, and you can control the amount of air that is

going out of.the machine either by throttling the exhaust

or by throttling the intake.

[fol. 102] It does not make any difference in the actual

operation as to whether you throttle the exhaust or throttle

the intake. That is because the atmospheric pressure re-

mains the same in the incubator as outside. The fact that

you have a restricted outlet and are only interchanging a

very small percentage.of the air, means that all the air that

is not exhausted must pass back into the fans and be recir-

culated. And in the normal operation of the Smith incu-

bator, ag today, the percentage of the total volume of air

making this recycle or recircuit is over 99 percent. of it.

Over 99 percent. of the air goes around again through the

machine, and repeatedly through it. .

In a little earlier period of the operation of the Smith

incubator, it varied from 98, 97 percent., sometimes smaller,

or as much as 99 percent. It depended upon certain condi-

tions within the machine and within the room, outside tem-

rature and things of that nature. f

it makes no difference 0% the arrangement is, as to

heat or give up the heat to the air.

It depends upon the temperature #f the egg and the tem.

perature of thé air g ely. If you have an exothermic egg

der to accomplish that function, that the air, as it leaves the

fan, shall strike the oldest eggs first.

. Asked what variations could be had in that arrangement,

the witness said: If your air is moving in cycles, you have

& propelling force at one point. That is not the start of the

cycle, necessarily. It depends upon where you want to

start in the cycle. Yon can have your hottest eggs at the

top of the incubator. The air would be drawn right over.

into the fan and carried to the bottom. For example, if yon

had your freshest eggs at the bottom of the machine, they

would naturally be the coolest. If your hottest eggs were at

the top, that heat would be carried through the fan and

down on to the bottom eggs that way. There are inmnumer-

able variations that you would think of, that you might

have: hot and cold egge sandwiched, or any particular ar-

a ) 2 ae

ae aS *

By the Court:

- Q Well, under that same theory, you could put eggs of a

)Gifferent stage of incubation in the same tray, could you

Rot!

wt Yes, sir, that has been done. ,

70 ¢

The witness resumed under direct examination by Mr.

Ely: — ~

It is not convenient, but it could be done. You could put

those trays anywhere you wanted to, mix them up, I mean,

[fol. 104] put them in any order you wanted to. It has been

done. The heat is adjusted between the heat from the eggs

and the heat tliat is turned on, that is what I mean. Phe

circulating air is the medium for carrying the heat and

keeping the temperature substantially uniform. Reg@lated

as to the egg by the heat going outer coming in to the egg

and contact with the outside air. Of course, in all practical

operations, you have to have some controlling means, and it

is custonfiry in all thachines to put a little bit more re-

frigeration into the machines than is absolutely’ required,

. and then have thermostatic controller of heat, to add just

enough to keep it the right temperature. That is to say

with that condition, there is a certain balance more or less

evently maintained between the endothermic and exother-

mic condition of the eggs. You have to check the tenipera-

ture of the air. That is, some heat may be lost by radiation

or carried out, by the small portion of air, or fetl air, that

goes out of the machine, some heat is taken out, and it is

necessary to check that. | :

It is a fact, that the eggs in the later stages of incubation

really do work, that is, really supply heat for the incuba-

tion of the fresher eggs-It is very decidedly a fact. Ina

cabinet machine of this kind, the fyel consumption is de-

cidedly less than it is in the old style machine. There is

another factor, that these heat requirements or the thermal

characteristics of the endothermic and the exothermic eggs .

are fixed by Nature. That has a bearing upon successful

incuMation in this process. I will explain that a little. It

is natural for the temperature within the egg to increase

[fol 105] slightly as the different periods advance, and this

heat that is given off, we cannot take it all away from the’

egg. That is, the eggs in the later stages are warmer than

the incubator, and we cannot take all the heat away. We

can only cool it down to somewhere near the room tempera-

ture, or the incubator air temperature, and the eggs that

are in the earlier stages, we cannot bring them right up to

the incubator temperature, because they have a cooling, re-

frigerating action of their own.

-

71

Now, by circulating the air around all of them, we still

maintain that characteristic in the eggs that the hen had. in

which the temperature of her ©ggs would increase as the

hatching progressed. The endothermic requirements of the

cubation is also fixed by nature. 7 |

Now, those two things being fixed, we make use, in this

shifted or not during the process. of incubation, The fact

that the heat will transfer, regardless of position or loca-

tion, it would be a natural corollary that it is not necessary

to shift the eggs to different positions in order to carry out

[fol. 106] the process. And so long as the eggs remain in

the tiers or different levels, the arrangement of eggs, or the

shifting of eggs, or non-shifting of eggs, or arrangement

of eggs, with regard to carrying out the heat-transferring

properties, it makes no difference on that part. It is simply

_ &matter of convenience. —

, -_Ineubators are made under this Smith Patent by the

Company at the present time manufactures what is known

as a 30,000 egg machine, a 39,000 eggs machine, a 52,000 egg

machine and a 65,000 egg machine. The Buckeye Com-

pany, under this patent, manufactures sizes of less than

- 16,500 eggs: that is, they make a number of different sizes,

2 but their license permits them an exclusive right under the

_ patent to all sizes from 16,500 eggs down.

-. Now, with respect to the commercial Smith machine and

ae commercial Buckeye, the principle of turning the eggs

o48 the same. It is not necessary to turn the eggs clear over. :

gat is necessary to disturb them a certain amount so that

72

the embryo within the shell will shift, but the tilting racks

that are used on the Buckeye machine arp similar to those

that are shown in the patent, and they are covered by a sep-

arate patent by Dr. Smith. In the commercial Smith in-

cubator, we use a different method of suspending the trays.

They are suspended on chaina, but the tilting principle is .

the same. That is, an egg is turned to a 45 degree angle

one way for a period and then turned to a 45 degree angle

at another period, and the turning process takes place at

different times daily.

(fol. 107] By the Court:

Q. I understand you to say it was not necessary to turn

them.

A. It is not necessary to turn’them clear over. It is

necessary to disturb the eggs.

The Court: I understand your Counsel’s question to be

whether it wag necessary to turn them.

Mr. Ely: I think, your Honor, I asked the question as to

the shifting the eggs. What did you understand I meant

by ’hifting the eggs during the process?

The Witness: I meant that it was not necessary to change

the eggs from one level in the machine to another level dur-

ing the process of hatching.

The Court: I understood you to put the question both

ways, shifting and also turning.

Mr. Ely: No, I did not intend to, your Honor.

The Witness: Some eggs will hatch if they are not dis-

turbed at all during the process, but we get a much better

percentage of hatching if we do disturb them.

The witness resumed under direct examination by Mr.

Referring to the shifting of eggs, ¢ movement of eggs

74

‘eggs must always be set in the incubator in the following

manner, and it is extremely important that these instruc-

tions should be closely followed. Each weekly setting wiil

consist of one-third of the’eggs trays in the incubator. Note

accompanying illustration. First week, blue; second week,

red; third week, white.’’

I might state that this blue, red and white refers to tags

that they place on the trays so that they can tell what stage

of incubation they are in: All eggs that are set at one week

would be labeled blue, another week white, and another week

red.

The Court: Why can you not put them in all at once?

What is the reason you cannot put them all in at once?

{fol.110] The Witness: If. you were to fill the incubator

in one day, it requires a considerable heat to bring it up to

temperature and to hold it there for the first ten days, and

after that it begins to generate heat and it is quite difficult

to get enough refrigeration into machine to keep the tem-

perature down, and it is not practical, from a commercial

standpoint, to attempt to do that, and it has been tried re-

peatedly, but it is very difficult to control the temperature

from 15th, 16th and 17th day.

Q. That is because all of the eggs in this incubator would

then be giving out heat, is that true?

A. Yes, sir.- -

Q. And there would be no cold eggs in there to absorb

that heat?

A. Right. Now, if you will go down just below the middle

of the page, there is a paragraph: ‘‘The trays of eggs are to

be remain as set and must not be moved nor location in ©

the racks changed until the end of the 18th day or the begin-

ning of the 19th day of incubation for each setting.’’

Q. Now, when that incubator-is full of eggs, are the trays

of hot and cold eggs sandwiched in the machine?

A. They are. Instead of setting all of a certain age —

together, they sandwich them, intermingle them.

Q. Se Ae it ecenemaet, Oo yeh oto tresses

heat from the hot to the cold eggs!

A. Yes,sir. )

Q. Now; if you'set all your oxgs at one time in this Buk

eye machine or in any machine, you would not have the —

transfer of heat from hot to cold eggs, would you? — wees a

75 .

A. No, sir. .

(fol.111] Q. Because all the eggs would be either all cold

or all hot, is that right?

A. They would be all stages, so far as thermal heat is

concerned.

. Q. At any one time, all the eggs in the incubator would

be in the one stage of incubation?

A. Yes, sir.

Q: And they would all be giving off heat, if it were along

toward the last of the incubation, or they would all: be cold

at the first?

_ A. Yes, sir. Vv

Q. And that is wha you mean by staged incubation, is it?

_ A. Yes, sir.

(The operating book for Buckeye All-Electric Mammoth

Incubators, 1931-1939 edition was offered and admitted in

evidence and marked ‘*Plaintiff’s Exhibit No. a

The witness resumed under direct examination by Mr.

is approximately 1,200 iineal feet. I have one arrow there

near the top which is labeled 1,140 feet.

Now, this fan area where the speed is high is only over

v to 300 feet per minute; thence it passes up-

ward through the egg compartments, and there again you

will note that the speed is greatly reduced because you have

a much larger area through which it is moving.

The Court: Why does it vary and differ on different sides

at the same relative points?

The Witness: You will find it varying at different times

even at the same point. The control is not accurate enough

(fol. 113] to make it move with the same speed; and fur-

thermore, air moving through channels such as this does

not follow the same speed all the time. It becomes turbn-

jent and moves faster at one point than another, and where

it retarns back into the fan compartment above the speed

area is increased again to approximately 500 feet per min-

The witness resumed under direct examination by Mr.

Ely:

The average speed of the air through the egg t

3

r

*

Es

approximately 75 feet per minute. You will find poin

where the air is moving faster than at other points. There

are some points where the air actually reverses, eddies

back. You will find these eddies practically. always just

inside the bottom of the curtain, where the air is passing

underneath the curtain, immediately above that it is eddy-

ing back, and air passing any obstacle is inclined to form

eddies around the side of it; and we also find quite a num

ber of eddies in the corridor. As a matter of fact, it is

full of eddies.

in its movement

low

if

| faster

.

fol

it comes in contact

difference in that

78

tion area to the current. For example, in the egg chambers,

the total cross-section area of the two egg chambers in the

Smith 52,000 egg machine is 75 to 80 square feet. In the

fans, where it is moving the fastest, those fans are only

16 inches in diameter, and there are four of them in the

‘machine, so that the cross-section area there would be four

times the 16-inch fan. I have foygotten just exactly what

that is, but you have it moving at.a rate of less than 1,200

feet per minute there, and by the time you spread that ont

over 75 square feet cross-section, you greatly reduce the

velocity, and it amounts to less than 80 feet per minnte that

is possible, on the average. Now, as the air passes up

through the egg trays, it passes up through the trays or the

egg columns to near the top of the incubator, where it

passes over the beam, that is shown, that forms*each side

of the fan chamber. It is going back into the fan chamber

at the speed of approximately 500 feet per minute. Now,

as the air goes through the egg trays, it naturally follows

[fol. 116] the paths of least resistance, but if you will look

at the third sheet shown here, which is marked ‘‘SS”’, that is

_taken in the plane SS as shown on the first one, which would

be almost through the center of the egg column, you will

uote there the trays are. represented by the rectangles that

are placed in regular manner there. They represent trays,

12 trays high, and between these columns of trays you will

note that there are air columns that are formed when the

trays are tilted. Most of the air passes up through those

air columns. That is the point. of least resistance, and, of

course, that is where they go. In this drawing, this Fig. 2

represents the side elevation of the corridor with the cnr-

tain. It is la here ‘‘RR’’, which represents the sec-

tion through the center of the corridor. That curtain I

have shown is shorter than the curtain shown in the patent. . ~

This is a correct representation of the Smith incubator as

it is made in commercial practice.

As to the reason for shortening the curtain, and when

that was done, I can’t give you the exact time when it was

done, but I have never seen a Smith incubator that had a

curtain very much longer than that, in actual operation.

We tried it both ways, and it makes very little, if any,

difference, and this is our. preferred method of using it -

Now, with the curtain shortened as you see, there is con--

siderable space above what is known as the hatching tray. .

mt

- The speed of the air undérneath the hatching trays is in-

_ dicated by the figures on the side of the circle. The circle

"represents the position of anemometer at the time the read-

ings were taken. The minis sign in the center of this circle

indicates that the air is going away from the observer, is

_{fol..117} going out from the corridor and into the egg com-

partment and the numbers on there represent the speed as

recorded by those anemometers.

Now, the same is true of the circles that rest on top of .

' . the hatching racks, and you will not there the speed-is not

quite as great, being from 190’ to 250 feet per minute.

Now, in actual operation, about one-third of the air comes

‘down the corridor passes underneath these hatching trays,

_ in one circuit, then, will not reach the hatching trays.

. Asked as to the foul air outlets and the fresh air intakes,

_ the witness said: In the commercial Smiths that are being

placed on the markeét today, we have, above each fan, a five-

inch opening, and above each egg compartment, we have

four four-inch Openings. I am referring now to the Model

52 size. Now, that would represent the maximum size of

- those holes.. Now, we restrict the intake openings #0 that

* only & small percentage of their actual capacity is passing

‘through under normal conditions. We have the larger

capacity to take care of extreme weather conditions that

we sometimes have in Southern California or in Arizona;

and we also restrict the outlets with a valve whieh will pyo-

vent a back-draft in there. |

. Counsel for the plaintiff then offered in evidence the book

containing defendants’ catalogs and books of instruction

referred to by the witness and the sanie was admitted in

- @vidence and marked Plaintiffs Exhibit No. 10.

* [fol.118] Counsel fr the plaintiff next offered in evi-

ae the drawings of the Smith incubator referred to by

& the witness, being three sheets of draWings, being a sec-

» onal view across the machine through the fan; a diagra-

mu ie sectional view along the corridor; and a sectional

Sew in plane parallel to corridor and midway between the

@ front and rear of trays and the same were admitted in evi’.

waeeree and marked respectively Plaintiff's Exhibits 11-A, ’

-B and 11-C. ; :

gitar

80

The witness then resumed under direct examination by

Mr. Ely: :

Taking my copy of the patent in suit just a moment—

there is a statement in the patent about the stage of incu-

bation at which the eggs are the most difficult to keep down

in temperature. At the bottom of the first column on page

two, starting in with line 61 on page two, it says, ‘‘so as to

compel the air to circulate through the mesh bottom and

around and about each egg as heretofore referred to, and

as the eggs further advanced in incubation are contained

in these lower trays and as the danger is that the tempera-

ture will rise in these eggs to a point injurious to incuba-

tion the improved methdéd disclosed herein permits the cir-

culating air to act as a medium to prevent the over heating

at this‘stage of incubation.’’

As described in the preferred apparatus here, -the eggs

are in the 15, 16, 17, 18 day stage. And that is the stage

referred to as the ‘Sstage further advanced in incubation’”’.

(fol. 119] That is referred to specifically at line 65 on page

two. And those are the eggs in which the patent says that

the temperature must be kept down particularly. And that

is not the hatching eggs he is talking about—not those

where the

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Transcript of Record — Smith v. Hall · 301 U.S. 216 | Frix