Transcript of Record — Smith v. Hall
Supreme Court brief1937
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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.
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
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
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
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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