# Transcript of Record — Smith v. Hall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0178%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1937 - **Citation:** 301 U.S. 216 ## Text _ —— CLERK'S COPY. Vol. | 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 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 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 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 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 chicks are actually emerging from the shell. As the fan operates, it throws air out on one side and it pulls it in on another. The quantities of air are equal in both cases. That is, the air that is being pulled into the fan is equal ake quantity of air that is leaving the fan, and it has co refer to the air that is being drawn into the fan as an induced draft or induced current. There is a similarity there between the operation, say, ¥ a pump, pumping water. At a pumping station, if you are pumping water, there is a current of water flowing towards the pump. There is also a current of water flowing away from the pump, and the volumes are the same in each case, and it depends on the size. of the conduit as to whether the velocities are the same. As a general rule, the current flow- ing into the pump is less disturbed than the one that is going out from the pump, but ‘nevertheless they are both currents of equal velocity if the pipes are of the same size. ‘There: is more turbulence in the current after it goes. through the pumping means, whether it be a fan or whether itbe a pump. And an induced current tends to be depending upon the channel through which both currents re the opposite side. [fol. 120] -I am asked if there is any advantage in having the eggs subjected to an induced current rather than the one delivered by the fan? That which is delivered by the The pulling action of the fan draws the air from the top of the egg cha bers, and it is an induced current. It is certainly an induced current in the top of the egg chambers, © The maximum speed with the type of fans that we have showed here is Y & feet per minute. As to the amount of Mir each fan is delivering, the manufacturers of those fans He them at 1,500 cu. ft. per minute, running in free air ; 6-36 82 that is, without any resistance, 1,500 cu. ft. Whenever you put resistance in its way, of course, it slows that up to a greater or ldis degree. And as the air spreads out through the corridor, and then the egg chambers, the speed of the air decreases. I am asked if there is, as a matter of fact, any point in- the Smith machine where the air reaches any such velocity as 11,000 feet a minute. There certainly is not. The high- est velocity that we have is about one-tenth of that. 11,000 feet per minute is considerably over two miles a minute, which would be:around 125 or 130 miles an hour. As to what would happen to the eggs in the trays if any such blast of air blew through those eggs—well, we would have a good sized omelet, anyway. Tornado speed, the highest speed that i is given in storms, I believe, is 100 miles an hour. The highest speed that we ever experience in this section of the country is perhaps 70 to 80 miles an hour. Then with a speed of 11,000 feet per minute you would undoubtedly blow that machine all to pieces and blow the building down. Now I also have some drawings which show the commer- cial Buckeye machine. I am familiar with the decision of Judge Westenhaver; I have read the decision and he does not say that air tra- (fol. 122] velled 11,000 feet a minute. He does not say that at all. Now, taking this drawing—it i is a cross section of Buck- eye Incubator No. 48. It is drawn to-scale. This incubator holds approximately 5,000 eggs. You will note that there is a central corridor having a fan about midway between the floor and the ceiling. In this machine there is no corridor that.a man enters or works in. There are dooks on each side of the incubator, which open outward, dnd all the work that the man has to do with the machine is done from the outside. You will note that there are trays ar- ranged at different levels, and they contain eggs in differ- ent stages of incubation. In this machine, the Buckeye Company does not recommend that the eggs;be placed in one position for a period, and then in another position for . another. They put ther in these upper turning racks aud leave them there for 18 days, and then at the end of that period, they remove them from there and place them a the hatching tray: at the bottom. That is a tray where the eggs can be left level and allowed to remain there during actual emergence from the shell. i FY The partitions on each side of the fan chamber are wood in this case, and there are no curtains; and you will note | from the outside through the doors. That machine is manufactured under the patent. . And it is a commercial machine. Relatively speaking, the machine was approximately four feet high, five feet long, three and one-half feet deep. At that time they advertised both the old type that they had made heretofore, and also this new type. This was the _ first machine that came on the market. To get an idea of the general arrangement of the ma. We might turn to Page 6. The door is open there “@ #01. 124) in the center which shows a central compart- ment with heating pipes. There are fans. immediately fve that part. There are two fans shown there, as you ay has pulled one of the fans up so that you can see the sisg. of it. These were 4 small fan. Then, further over, on Page 8, we have a phantom view of this machine. There are egg compartments on each side of a central corridor, the fans at the top, heating coils at -» the side, and the arrows there indicate the air movement in the machine. ~ The fresh air intakes were immediately above the fan: As a matter of fact, they were located in the board that was directly above the fan, so that when he lifted the fan out, the holes were located in that board. The exhausts were directly over the egg compartments. This incubator embodies the Smith process in its opera- tion. It does not have any ‘‘man entering corridor’’, that our friends have talked about. Counsel for the plaintiff then offered in evidence photo- static copy of the Buckeye Catalog copyrighted in 1917-and the same was admitted and marked Plaintiff’s Exhibit No. 13. The witness Gian resumed as follows: I am familiar with the James Way Incubator Hatcher that has been put on the market recently by the defendant in this case. (fol. 125] I became familiar with it first, through ad- vertisements, and then I had occasion to see them in use, and then the Smith incubator purchased a unit that we have had in our possession for three or four years, and I have used that in regular hatching operations, in prep- aration for this case. I carried on actual hatching opera- tions in that machine. I visited the plant of the Elmira Hatchéries in Elmira, New York. I think it was in April, 1930. I found three different incubators in operation there. They were oper- -ated as three separate machines. They were 10,000 egg capacity each. One of them was being operated as a gas heated machine, if I remember correctly, one as an electric heated and one as an oil-heated, I believe. The machines were substantially identical, with the exception of the heat- ing equipment. And they were identical with the machines. wihak aambeide git on the mastet by the James Way Mem: « , And I saw those machines in ¢ > tion in the Elmira Hatchery. 7 ee - Teannot give the names right now, but I talked with twe or three different people at the Elmira Hatchery. They explained to me how the incubator was run. I have also _ learned how the James Way incubator is run from an in- struction book which they have issued. I have catalogs . which show the James Way incubator which ia here in suit. The catalogs which were furnished us by the defendant, Plaintiff’s Exhibit 10... . If you will open about the middle, you will come to a place where they have the regular catalogs. Now, the the old style incubators which they have utilized for the _ actual emerging of the chicks from the shell. There is Mr. Ely: And that part of the equipment is not in liti- _ gation here, your Honor. We are directing our suits to the The witness résumed : = On the opposite page, Page 6, it gives you another view - of . The eggs are set in that incubator in accordance with ; the instruction. They are set in staged incubation. Yon go 12) is open,” Book ar pom i the cabinet that @ 127] is open. tray 210 ow, re their eggs in this machine at diffrent a4 specifically instruct that two trays be set in each com or in a compartment, every three and one-half The oniy definite arrangement regarding it is that you follow a regular plan of setting; that is, you could set the top today, if you wanted, and three and one-half days later you could set the next two below, or you could sand- wich them. You could arrange them in any manner that you wanted to, but the eggs are placed in this position andeft there for 174% to 18 days. They have some reference in their instruction books to that point of how the eggs may be set; that is, they may be set in any way at all. . | At the bottom of page 8, there is Paragraph 21 that are @ instructions on how to set the eggs. It reads: ‘‘Having planned the hatches to come off twice a week, and having arranged to set four trays in each unit at each setting, the operator may ask himself where to put these trays in the machine. It matters not, as far as results are con- cerned, but like any other business, a regular system should be established and followed for the purpose of con- venience and efficiency. Some operators prefer to put the first setting of two trays in the top of the cabinet, and the next setting of two trays directly underneath, and so on until the machine is filled. Other operators prefer to staggex the trays, putting one tray on the top shelf, and the other tray on the third shelf. At the next setting, a tray is put on the sécond shelf and another on the fourth shelf. On the next setting a tray would-be put on the fifth [fol. 128] shelf and one on the seventh, and so on until the machine is filled. Still other operators do not follow any definite plan,-but place the trays wherever there may be empty spaces. It should be remembered, however, that there are four hatching compartments ahove each cabinet, and only four trays of eggs should be started in one unit at any one time.’”” — That is to say, it does not make any difference in opera- tion of this machine what order or ar-ment of eggs you have. You could get heat transfer from hot to cold eggs, just the same, as in this ome. When this cabinet is full of eggs, some of the eggs are endothermic and some exo- thermic. And there are some of the eggs in this cabinet which are giving off heat and some eggs that are absorb- ing heat. And it does not make any difference, in accord- ance with the instruction of that book how those eggs are 4 The heat is transferred from the hot eggs, to the cold eggs in the James Way machine by circulating the air with . 87 ‘uniform temperature throughout the mass of eggs in the Smith, it is identical. In Smith and in the James Way, gether. Now, in that James Way incubator, when you get it full of eggs you have eggs which are further advanced in ‘in- cubation as described .on line 65, Page 2,.of the Smith Patent. And you also have the cold eggs which are at . Some other point in that circuit. | Now, the instrumentality that carries out the circulation of air in the James Way incubator—there ix & power- » driven fan in the top of the cabinet. Referring to the cata- et on pages 24 and 25 of the catalog, the upper cut is a top view of this incubator with a portion of the top re- , se machine, above, at a higher level than either of the gg compartments. That is caused to rotate at a speed of 800 or 850 r.p.m. by a motor which stands on top of the incubator, which is shown in the right-hand lower figure. The motor is on top It is connected by a shaft with this fan in the top of th. i r. That fan runs, as I have stated, at a rate of or better revolutions per minute. It is a centrifugal or blower-type fan. It is housed in above and below by metal, so-that it is a true fan in its action, blowing the air oyt centrifugally. It is blown to the front, where it enters the ducts 13, at the front and back of the upper diagram, and in those ducts, the air is carried down- ward to.a point at the bottom of the cabinet. It is not quite as easy to see— I had better get my drawings. I have made drawings of the James Way incubator. Those drawings are to scale. The machine depicted in those drawings is the machine with which I made my tests, and so forth, that I am going to testify to. And that is the machine which is now down “in the warehouse here on Ellicott Street, that we want the Court to see. That is also the machine that was here at the time of the proceedings on the preliminary injunction. Counsel for the plaintiff then offered in evidence a draw- ing of a vertical cross-section of the James Way incubator and a drawing of a vertical longitudinal section of a James Way incubator which were admitted in evidence subject to examination by counsel. for the defendant and marked [fol. 131] Plaintiff’s Exhibits Nos. 14 and 15 respectively. . The witness then resumed as follows: We will first refer to the vertical cross section. (Exhibit 14.) This is a drawing showing a cross section of the James Way incubator unit with the front of the maching to the left; the door is represented at the left. At the top of the machine we have placed the motor directly above the fan. At each side, directly in front of.the fan, we have indicated a moisture pan in its regular position, and to the sides of the fan we have two heating pipes, one ofi each . other words, the fan can feed. «In the lower housing thers is also‘a Corresponding openi so that, as this fan rotates, then air can feed into the center of it from both sides, and the paddle wheel arrangement forces the air outward be- cause the housing controls it and makes it the centrifuga! »ction. , go outward by Now, directly below this fan compartment we have ihe - @gg compartment. By the’ Court: (fol. 132] Q. How far do the wings of the fan extend! A. That has a radius of about eight inches, and it is, say three and one-half inches high, and the housing comes close to it on each side. | Mr. Ely: The fan is colored brown, your Honor. Q. What is that above, that purple line across there? . A. That simply represents—— Q. Above your finger to your right? A. That is an electric heating element.” . heating element. — Q. How does the width of the fan com It is a ring pare with the width of that heating element that is shown there? ea - A. The heating element is a ring about eight inches é -m diameter, perhaps, the ring part. It *% it right here. : Well, here is the fan, your Honor, or a repro- 90 - The Court: Yes, I know that. It is shown here as about where those arrows come-down on either side, apparently, All right. [fol. 133] The witness then resumed under direct exami- nation by Mr. Ely: The fan chamber is colored a pink; that is the air space through it. The fan feeds near the eye or the center of it and discharges the air, which it takes in at the center, from the tips of the blades. It discharges it centrifugally, into what I have called the fan chamber or beyond the casing. The lines of that casing are indicated in black above and below the fan. They are labeled ‘‘fan housing’’. That is, there is a narrow channel or box in there in which that fan rotates. And the fan feedg from the center and discharges to the outside of the box. It is a centrifugal fan. And it discharges air over those heating pipes, and then the air goes into the channels that are shown on both the left and right hand side, where the arrows are running down through the ducts to the bottom of the incubator, or to a point near the bottom where it is an opening into the egg compartment. -That is a corridor for the passage of the air. And it is divided into two corridors. There is one at the front of the machine and one at the rear of the machine. This pass- age-way or corridor in the front of the machine is located within the door. That is, the door is a hollow door. And when it closes, that makes the channel communication with the passage for the air from the fan. The other channel or corridor is in the back of the machine. The sides are tight, making it a solid corridor to within approximately three inches of the bottém of the incubator. [fol. 134] I have measured the speed of the air as it goes down from those passage ways. It is approximately 700 feet per minute. It varies a little at different points, but it is approximately 700. It would be the same average speed at the bottom of the corridor as it is entering at the top of the corridor. That is, it must be, because the corridor is the same area all the way down. It is a straight duct ‘and the same size from top to bottom. — As $ what happens to the air after it leaves those corti- dors down at the bottom, those passage ways down at-the bottom, the air is traveling at an approximate rate of 700 : feet per minute, and making the turn that it makes the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0178%3A2. Public record. Not legal advice.