# Petitioners Brief — Smith v. Hall

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1937
- **Citation:** 301 U.S. 216

## Text

FILE COP

> - 7 -

Supreme Court of the Anited States
OCTOBER TERM, 1936.

Nos. 35 and 36.

oO

SAMUEL B. SMITH,

Petitioner,
vs. :

A. B. HALL and L. C. HALL, d@. b. a.
HALL BROTHERS,
Respondents.

»
ae

SAMUEL B. SMITH,

vs.

JAMES MANUFACTURING COMPANY and ELMIRA
HATCHERIES, INCORPORATED,
Respondents.

Petitioner,

BRIEF FOR PETITIONER.

CHARLES NEAVE,
DEAN 8. EDMONDS,
ALBERT L. ELY,

Counsel for Petitioner.

v.

—_——————————

ACKERMAN PRESS, Inc. 143 Liberty St, ‘Phones Rector 3-585¢-7

,

SUBJECT INDEX.

, PAGE
Tue Opinions BEeLow 1
JURISDICTION 9
STaTEMENT OF THE CaSE 2

The Prior Suits - , 2

The Smith Invention 7

Brief History of Hastings. 7
Te Errors AssigNep anp To Be Arauep 11
Summary oF ARGUMENT 1]
ARGUMENT 15

Point I.—The Smith invention consists of a
plurality of elements, all of which must be
present .

Point II.—In none of his efforts did Hastings com-
bine the essential elements of the Smith in-
vention

The Hastings Defense in General
‘‘The Dollar Hen”’ ‘
The Davis (Brooklyn) Incubator

Principles of the Smith Invention Not
Embodied in It i
The Davis Incubator Was Not a Public

Use, Nor a Reduction to Practice;
It Was an Abandoned Experiment —

15

16
16
18
22

22

29

The Davis Incubator Was Not Suc-

cessful

The Muskogee Incubator

The Muskogee Incitbator Was Not a Du-
plication of the Brooklyn Incubator

—Nor Did It Embody the Smith.

Process

The Muskogee Incubator Was a Failure —

Wexcuses Offered for the Musko gee

Failure

Hastings’ Port O’Connor Hatchery —-~-

Hastings’ Subsequent History

Point III.—Neither in the Hastings abandoned
application as filed, nor in the subsequent
amendments thereto did Hastings disclose the
Smith invention

The Hastings Application Can Be Used Only
to Corroborate Other Testimony of the
Prior Uses

Point IV.—Under established principles of patent
law the Hastings defense must be rejected —

Success Is Not Anticipated by Failure

Prior Invention and Prior Uses Must Be
Established by Evidence Which Leaves
No Reasonable Doubt of Their Existence
and Efficacy

Point V.—The respondents have used the Smith
invention and infringed upon the patent

62

68

71

73

iil

PAGE
Hall Brothers ae 7 73
James Manufacturing Co. | 76
The 18 Day Defense | 82

Point VI—The Smith patent is not invalid be- \
cause of insufficiency of disclosure.m_____ 86

CoNCLUSION 89

_iv

CASES CITED.

‘PAGES
Barbed Wire: Patent Case, 143 U. S. 275, 284 14, 17, 30, 72
Boyd v. Cherry, 50 Fed. 279, 283 29

Buckeye Incubator Co., et al., v. Cooley (D. N. J., un-
reported, see anoendix, p. i), affirmed 17 F. (24)

453-455 (C. C. A. 3) 4, 6, 13, 23, 38, 45, 52, 91
Buckeye Incubator-Co., et al., v. Hillpot (D. C. N. J.),
22 F. (2d) 855 4

Buckeye Incubator Co., et al.,.v. Stone (D. Oregon,

| Maguire, Special Master, unreported, see appen-
dix, p. ix) 5, 38, 45, 91

Buckeye Incubator Co., et al., v. Wolf, 291 Fed. 253-
258 (N. D. Ohio, W. D.), affirmed 296 Fed. 680

es ati : .4, 6, 20, 25, 91
Cusian v. American Smelting, etc., Co., 11 F. (2d) 766

(C. C. A. 9) 30
Coffin v. Ogden, 18 Wall. 120, 124 14, 28, 69

Consolidated Valve Co. v. Crosby, 113 U. 8. 157-179 —. 70
Corn-Planter Patent Case, 23 Wall. 181, 210, 211 30, 62

Deering v. Winona, 155-U. S. 286-301 72
Donner v, Sheer Pharmacal ae 64 F. (2d) 217 (C.

C. A. 8) 89
Eibel Co. v. Paper Co., 261 U. S. 45-68 29, 70, 72
Electric Smelting, etc., Co. v. Pittsburgh Reduction

Co., 125 Fed. 926 (C. C. A. 2) 30
Franc-Strohmenger & Cowan v. Arthur Siegman, Inc.,

27 F. (2d) 785, 788 (C. C. A. 2) 29, 89
Gaylor v. Wilder, 10 How. 477 — | 30

His Majesty the King. etc., v. The Smith Incubator
Co. (Exchequer Court of Canada, see appendix,
p. xxv) 5, 50

PAGES -

Rowell v. Jones, 91 U.S. 171, 183 83
Smith v. Hankins (D. C. Okla., Vaught, J. ” pabenetied,

see Hall R. p. 185) 86
Smith v. Johnson (D. C. Ind., Baltzell, J.; unreported,

see Hall R. p. 176) 86
Smith v. Kribs ’. C., Mich., Tuttle, J., unreported,

see Hall R. p. 193) 86
Smith v. Le Mieux (D. C. Wis., Geiger, J., encennand, ake

see Hall KR. p. 189) 86
Smith v. Sims (D. C. Ind, Baltzell, J., unreported,

see Hall R. p. 167) 5, 86, 92
Smith v. Snow, 294 U. S. 1 2, 3, 5, 7, 11, 15, 16, 33,

43, 67, 71, 75, 80, 84, 86, 87
Smith v. Street (D. Minn.; Joyce, J., ialensaalie see

Hall R. p..172) 86
Smith v. Street (D. Minn., Molyneaux, J., ikea.

see Hall R. p. 180) , 5, 6, 86, 92
Smith & Griggs\Mfg. Co. v. Sprague, 123 U.S. 249-257 31
Standard Paint /Co. v. Bird, 175 Fed. 346, affirmed 182

Fed. 1023°(C. C. A. 2) - 89
Sun Ray Gas Corp. v. Bellows Claude Neon Co.,

49 F. (2d) 886 (C. C. A. 6) 89
Telephone Cases, 126 U. S. 544.545 —. 69
Tilghman v. Proctor, 102 U. S. 707, 710 29
U.S. Blind Stitch v. Reliable, 67 F. (2d) 327 ww... 63
Waxham v. Smith, 70 F. (2d) 457, 459 (C: C. > oe

| 294 U. = | peer 5, 7,11, 16, 71

73, oi 80, 83, 86, 87
Wickelman v. A. B. Dick Co., 88 Fed. 264, 266, 267 29

IN THE

Supreme Court of the Hnited State

OCTOBER TERM, 1936.

Samuet B. Samira,
Petitioner,
vs.

A. B. Haut and L. C. Hau, d. b. a. Hats BrorHers,
Respondents.

Samvue. B. Smits, — ;
Petitioner,
vs.

James Manuracturinc Company and Eumma
HatcHEriges, INCORPORATED,
Respondents.

Seetiaetinal

BRIEF ON BEHALF OF PETITIONER.

The Opinions Below.

The opinions of the Circuit Court of Appeals for the Sec-
ond Circuit (83 F. [2d] 217, 221), both rendered upon the
same day, held invalid U. S. Letters Patent No. 1,262,860

(claim 1 in the Hall case and claims 1, 2, 3 and 5 in the
James case), granted April 16, 1918, to Samuel B. Smith,
¥ reversing decisions of two District Courts which had held
* the patent valid and infringed — R, ha 211; James R.
II p. 1259).
Jurisdiction.

These cases are here on writs of certiorari inder the
provisions of Title 28, Section 347, of the Uniied States
Code.

, Statement of the Case.

These two cases went to the Circuit Court of Appeals
upon two different records, they were argued on the same
day, and the Court of Appeals treated the cases as though
the two records constituted a joint record applicable to both
cases. We are, therefore, presenting the cases jointly.

The Prior Suits.

The Smith patent, here in suit, was held valid and in-
fringed by this Court in two cases entitled*Smith v. Snow
and Wazham v. Smith (294 U.S. 1 and 20). The decisions
of this Court in those two cases were rendered January
7, 1935. The decisions of the Court of Appeals for the ©
Second Circuit in the instant cases were rendered more’
than.a year later, and the patent was held invalid because
of asserted prior invention, use and disclosure by a

. man named Milo Hastings. That defense was no} pre-
sented in the Snow and Wazham cases decided by this
Court (it was pleaded in the Snow case,® but no proofs
were presented). It had been unsuccessfully presented in
various prior suits.

In the Snow and Wazham cases, this Court was con-
cerned primarily with the scope of the protection secured

*Snow Record page 8.

3

by the Smith patent under its claim 1, which claim is in-
volved in both of the instant cases. But in determining the
scope of that claim, this Court examined and commented
upon the evolution of the modern method of and apparatus
for incubating chicken eggs as shown by the testimony and
the prior patents, and held the Smith patent to be valid
and of far-reaching scope. Thus, this Court said in the
Snow case: g

‘“‘This history of the prior art serves to emphasize
rather than to discredit the striking advance made by
Smith in effecting the combination defined in Claim 1.
More than the skill of the art was involved in combin-
ing and adjusting its elements in such fashion as to
solve the major problems of artificial incubation’’ (294
U.S. 17).

And, as presenting the revolutionary character of the Smith
invention, this Court said:

‘*The.commercial success of the new method was im-
mediate and striking. At first the inventor devoted
himself to developing his own hatchery for the use of
the new method; it was the largest in existence, with a
capacity of over 1,000,000 eggs. In 1922 he began the
manufacture and sale of the new incubator. In ten
years he, and a corporation which he had organized
for the purpose, had made sales of incubators aggregat-
. ing. about $24,000,000, having a total egg capacity of
over 188,000,000. The old type of incubator, with eggs
arranged at a single level, all in a single stage of in-
cubation, has thus become obsolete’’ (294 U. S. 7).

The. patent hgs been the subject of continuous litiga-
tion extending over the past fifteen years. It has been
reviewed by this Court, by five Courts of Appeals, by
fifteen District Courts, and by two Masters appointed by
District Courts, and a corresponding Canadian patent has

A _UC“” "=

4

been passed upon by a Court of Canada. In all of
these numerous cases prior to the instant ones, the patent
was held valid*, as was noted by this Court in its opinion
in the Snow case (294 U. S. 1), and in the cases at har the
patent was held valid by both District Courts.

The Hastings defense has been known since the bela’
ning of the litigation of the Smith patent.

In the first case, Buckeye, et al., v. Wolf, the history of
Hastings’ futile effort, including the complete Hastings file
wrapper and many of the Hastings publications, was re-
viewed by Judge Westenhaver in the District Court for
the Northern District of Ohio, and his conclusion was that
Hastings had not contributed anything of value to the solu-
tion of the problem of mass incubation (291 Fed. 253, 258).
.This decision of Judge Westenhaver in the Wolf case was
affirmed by the Court of Appeals for the Sixth Circuit,
without specific discussion of the a defense (296
Fed. 680).

In the next case, Buckeye, et al., v. Cooley, in the New
Jersey District Court, the Hastings defense was more
completely exploited. Hastings testified as to his prior
efforts, the Hastings abandoned application complete was
again presented, and an additional publication was offered.
The case was tried before Judge Bodine and the Hastings
defense was again rejected. The Couft’s opinion has not
appeared in printed records but it is reproduced in a sep-
arate pamphlet constituting an appendix filed with this
brief. Judge Bodine’s ruling was affirmed by the Circuit
Court of Appeals for the Third Circuit, whose opinion is.
reported in 17 F. (2d), at page 453, the discussion of the
Hastings defense being on pages 454 and 455.

*If_ respondent, Hall, refers to the Becond paragraph of the
decree in the Hillpot case (Hall R. p. 209), we direct the atten-
tlon of the Court to pages 2 and 3 of our reply brief on petition
for certiorari in the Hall case.

SEE aaa

5

The third suit, Buckeye, et al., v. Stone, was in the Dis-
trict Court for the State of Oregon and there again the
Hastings defense was urged. Tho case was referred to a
Master, Mr. Maguire, and he alsc rejected the Hastings de-
fense. His opinion is not reported but it is reproduced
in the appendix. There was uo review of the Master’s
report by the District Court or the Court of Appeals.*

In the following years and up to the decisions of this
Court in the Snow and Wacham cases, no one of the de-
fendants in suits based on the Smith patent saw fit to urge
the Hastings defense.

Since the decisions of this Court in the Snow and War-
ham cases putting an end to numerous other defenses
against the validity of the Smith patent, various other de-
fendants have urged the Hastings defense.

In Smith v. Street, in a District Court of Minnesota, tried
before Judge Molyneaux, Hastings testified at the trial
(Hall R. p. 54) and the records of all previous litigations
were presented, and again the Hastings defense was re-
jected (Hall R. p. 183).

In Smith v. Sims in the Indiana District Court, tried
before Judge Baltzell, the record of the present James case
was presented (Hall R. p. 54; James R. p. 1106) and again
the Smith patent was held valid and infringed (Hall R.
p. 171).

Lastly, Hastings and the Hastings publications appeared
in a suit brought in Canada to invalidate the correspond-
ing Canadian Smith patent and the Exchequer Court held
the patent valid. The Court’s opinion (1936 Ex. C. R. p.
105) deals with many issues; those portions dealing with
the Hastings defense are the only ones of importance here
and they are reproduced in the appendix.

The present Hall case was tried before Judge Hincks in
the Connecticut District Court. Hastings and two cor-

*The unreported decisions in the Cooley and Stone cases are
contained in Plaintiff's Exhibit 2 in the Hall case (Hall R. p. 43).

6

roborating witnesses testified at the trial and the Hastings
publications and abandoned patent application were pre-
sented. In this case the Hastings testimony dealt pri-
marily with the Davis incubator at Brooklyn. Judge Hincks
also rejected the Hastings defense, commenting on the
‘‘dearth of evidence’’.in support of the defense and the
absence of any successful achievement as a result of Hast-
ings’ effort.

The present James case was decided by Judge Knight
in the District Court for the Northern District of New York
at Buffalo. The testimony in support of the Hastings de-
fense in this case was taken by deposition and includes a
deposition of Hastings. No attempt was madé to support
the testimony of Hastings as to the Davis incubator in
Brooklyn; ‘instead, the testimony related practically en-
tirely to Hastings’ second effort at Muskogee, Oklahoma.
Here again, the Hastings defense was rejected and the
‘Smith patent sustained and held to have been infringed.
No discussion of the Hastings defense appears in the
Court’s opinion but the rejection of it is covered by the
findings of fact (James R. p. 1266).

Thus, the Court of Appeals for the Second Circuit, in sus-
taining the Hastings defense, ruled oppositely to the Court
of Appeals for the Sixth Circuit in the Wolf case and the °
Court of Appeals for the Third Circuit in the Cooley case,
and oppositely to ‘the ‘decisions of the District Courts in
the instant cases and the several other District Courts
we have noted in the foregoing. Three of the District
Court Judges who rejected the Hastings defense had had
the marked advantage of observing Has&ngs and listening
to his testimony at the trials before them in the Hall,
Cooley and Street cases. Such personal contact of Judge
Bodine with Hastings in the Cooley. case led to the follow-
ing comment (App. p. viii).

‘*Hastings’ testimony adds only this to the Hastings’
writings, that one is satisfied that his experiments were

7

never in any definite direction and that he never
achieved the pdint of successful operation. * * * Hast-
ings was and is boastful. Gonvincing proof of his al-
leged method and device is certainly lacking. Success
never rewarded his attempts.’’

The Smith Invention.

We do not here detail the facts in connection with the
character and accomplishment of the Smith invention. The
petitioner’s proofs on these points in the instant cases are
the same in substance as those presented to this Court in
the Snow and Wazham cases. |

The facts are set forth in the decisions of this Court in
those cases (294 U. S. 1 and 20).

Brief History of Hastings.

Details of the facts in relation to the Hastings defense
can best be presented in the course of the argument (p.
16-73, infra). We shall, here, merely outline the situation.

Hastings first appeared in 1908 as an employee of the -
Poultry Division of the Department of Agriculture. While
there he became acquainted with a certain method and
apparatus developed by one Madison Cooper for the pres-
ervation and cold storage of vegetables. The idea occurred
to him that incubation of eggs could be successfully car-
ried on by the use of the same principles which had proved
successful in cold storage: He elaborated this idea in a
book published. in 1909 entitled ‘‘The Dollar Hen’’. After
the publication of this book, he resigned from the Govern-
ment employ to put his idea into practice.

His first attempt was at Brooklyn, New York, at a poul-
try farm operated by cne Davis who furnished the neces-
sary funds. There, in the spring of 1911, Hastings built an
inenbator following Cooper’s ideas and tried-it out in the
cellar of the Davis house. This was an incubator of 6,000-

8

egg capacity, but in actual test it never contained more
than 2,000 eggs.

On May 3, 1911, and while still at Brooklyn, Hastings
filed an application for patent which shows nothing more
than Cooper’s cold storage plant applied to the hatching of
eggs. The application as filed did not disclose the prin-°
ciples of the Smith invention, and, had it issued as a patent,
would not have anticipated Smith. After a prosecution
extending over a period of two years, the application was
rejected by the Patent Office and abandoned.

The Brooklyn (Davis) incubator was operated during
the months of March and April, 1911. The Court of Appeals
for the Second Circuit said that this incubator was success-
fully operated during the years 1910 and 1911. This was
an error for the testimony shows that the incubator was not
built until the spring of 1911 and was operated only during
4 short period in the hatching season of that year (James
R. p. 506; Hall R. p. 52). There is no testimony_in either
record how or to what extent the incubator was used after
Hastings departure. There is no evidence that any eggs
were set therein after April, 1911. The only testimony basis
for a finding of successful operation is the oral testimony of
Hastings (Hall R. p. 52). There is no corroboration of
his testimony by witnesses who were connected with this
enterprise. Neither Davis nor his wife testified that the
operations were successful; in fact they were in no position
to give any such testimony. Neither of them followed the
operati#ns sufficiently to permit of giving such testimony.
Mrs. Davis gave hearsay testimony that comparative tests
were made with the old style incubators (Hall R. p. 62).
But no one except Hastings testified as to results secured -
and no further evidence of the tests was produced. The
finding of the Court of Appeals that ‘‘there is uncontra-
dicted testimony that this Davis hatchery was an operative
success’’ (Hall R. p. 242) is inexplicable.

9

Some eggs may have been hatched, but unless the inct-
bator actually secured a percentage of hatch comparable
with or superior to the old prior art incubators it can-
not be said that the results were successful, and as to the
actual results secured there is no proof in the weord.
Furthermore, at no time during its operation was the inen-
bator loaded to more than one-third of its operative capac-
ity (Hall R. p. 55); nor was the Brooklyn incubator a
‘*Public Use’’ as the operations were carefully guarded from
the public. .

Hastings left Brooklyn in May, 1911, and in 1913 the
incubator was torn down and completely destroyed (Hall
R. p. 60).

In the fall of 19H, Hastings: appeared at Muskogee,
Oklahoma, where, with the financial backing of one Lieber,
he built another type of:incubator. The Court of Apptals
for the Second Circuit found that this Muskogee incubator
embodied the same construction as the Brooklyn incubator.
This is not true for, in the Muskogee incubator, Hastings
operated upon an entirely different principle from that em-
bodied in the Brooklyn incubator. In the spring of 1912,
Hastings started operations at Muskogee and carried them
on through that hatching season, making a number of
changes and revisions in the construction as the season pro-
gressed. In May, 1912, he fled Muskogee, leaving the in-
eubator on the hands of his supporters and no more eggs
were set therein that year. ;

In 1913, Hastings’ backers put some more money in the
enterprise and set one batch of eggs, but, when this one
batch was a failure, they abandoned the incubator and it
was never operated again (James R. p. 785). In the fall
of 1913, this incubator was destroyed and no trace of it
Temains (James R. p. 607).

The operations in Muskogee were a complete financial
and practical loss. Many customers testified to disappoint-
ing results and in some cases to complete failure te hatch

10

eggs. During the year 1912, some eggs may have been
batched but no records were produced to show the amounts
or percentages. Hastings and Lieber both testified that
the results were variable and it is quite apparent that,the
average was so poor that continued operation of the incnu-
bator was impractical.

The Court of Appeals for the Second Circuit found that
this Muskogee incubator ran through the hatching seasons
of 1912 and 1913. Undoubtedly it was attempted to oper-
ate it as a commercial enterprise during the hatching sea-
son of 1912, but the unsuccessful attempt to hatch one set-
ting of eggs in 1913 hardly warrants the finding made by
the conrt.

From Muskogee Hastings went to Petaluma, California,
at which poultry center he received no support, and later
he appeared at a new poultry center at Port O’Connor,
Texas, where, in the fall of 1912, he secured additional
funds and built another incubator of a still different type
and with a capacity of 150,000 eggs. This incubator was
operated for a single setting only of 720 eggs and was then
abandoned by Hastings (Jamas R. p. 573).

Hastings then sought the support of the Hall Incubator
Company, an established concern engaged in the manufac-
ture of the old still-air type incubator. After a brief so-
journ with this concern, he discontinued all further effort
until 1918 (James R. p. 575-576).

In 1918, after Smith had been commercially operating
his successful hatchery in Cleveland, Hastings visited Smith
and then went on to Tiffin, Ohio, where he built another
incubator and of that he said, ‘*I tried out a method of
hatching very much more like the Smith Buckeye devices
than I had used in the past’’ (James R. p. 577). This
Tiffin incubator was also a failure and was abandoned by

Nothing further was heard of Hastings until the litiga-
tion of the Smith patent brought him into the Courts.

il

During the period covered by these years, Hastings at-
tempted to publicize himself and his efforts in newspapers
and periodicals, holding himself out as the successful in-
ventor of modern mass incubation. There was a total
absence of practical achievement resulting from his efforts.

The Errors Assigned and To Be Argued.

' The errors assigned in the petition for writ of certiorari
and to be argued here are: ;

1. The Court of Appeals for the Second Circuit erred
in holding that the Hastings defense was effective to render
the Smith patent invalid as to claim 1 in both cases and
as to claims 2, 3 and 5 in the James case.

2. The Court of Appeals for the Second Circuit erred
in ordering reversal of the decrees of the District Courts.

Each of the respondents presented other defenses, pri-
marily that of non-infringement, based upon reasons which
must be rejected by this Court in conformity with the hold-
ings of this Court in the Snow and Wazham cases. Brief
discussion of those issues is included herein, but in the
main this brief is confined to the Hastings defense.

Summary of Argument.

Petitioner’s proofs in the instant cases are the same in
substance as those presented to this Court in the Snow
and Wazham cases. The very substantial revolution in
the art of incubation was traced directly to the Smith in-
vention and it was shown that the principles of that in-
vention were new in the art and have been followed by

the respondents.

12

The remarkable development in this art is not trace-
able to the prior efforts of Hastings; on the contrary,
when Hastings, in the fall of 1912, abandoned his third
attempt to solve the problem of mass incubation, nothing
had been accomplished and no one ever tried to duplicate
his efforts. The art persisted in the use of the old, still- .
air incubators with the eggs in a single layer in one stage
of incubation. ‘Beginning with Smith’s achievement of the
solution in the year 1915, the revolution was continuous
and overwhelming. .

. The events of the Hastings defense occurred more than
twenty years before the witnesses testified in the instant
rases. Their testimony about the construction and method
of operation of the Hastings incubators and the results
obtained in the operations is meagre and uncertain. It
includes many admissions of total lack of knowledge of
the results obtained and also many material departures
from testimony given by the same witnesses in former
litigations. No records of results obtained were produced,
and there is no contemporaneous evidence, which is at all
specific, dealing with either the constructions employed or
the methods of operation. |

Hastings was afforded every facility for making practi-

= cal use of any novel ideas he evolved on the subject of
incubation in connection with each of the three incubators
he built and operated prior to the Smith invention. There
is no suggestion of lack of funds or hampering of his efforts
by others. Yet it is a fact that each of his three incubators
was operated for a short time in one hatching season only,
use of each of them was then discontinued, and each was
then destroyed.

Thongh the construction of the three Hastings incubators
is not proven with any accuracy, it is clear that each dif-
fered markedly from its predecessors. There appears to
have been no consistency to Hastings’ efforts, but instead
a vacillation which is indicative of groping for something
satisfactory without ever reaching it.

ee

13

The various publications relied upon by respondents are
statements and claims made by or for Hastings for suc-
cess which was never realized. They contain no adequate
description of the Smith invention and fail to describe with
sufficient clarity the construction of the several Hastings -
incubators or how he attempted to conduct mass incubation
in them.

Hastings filed an application for patent contemporane-
ous with his first attempt to-build a successful incubator,
but this application lacks two essentials of the Smith in-
vention—staged incubation and current movement of air
in sufficient volume. and velocity to equalize the tempera-
ture throughout the mass of eggs in staged incubation. On
the former point,-the application is wholly silent. On the
second point, the structure illustrated and described would
effectively choke any effective current movement of air
through the eggs. The application was rejected by the
Patent Office and abandoned. No claim commensurate with
Smith’s Claim 1 was ever made during the prosecution of
the application, and none could have been made for the
application afforded no basis for such a claim. ;

In amendments filed toward the close of the prosecution
of the application, reference is made to the differing thermal
characteristics of eggs in different stages of incubation, a
fact which Hastings apparently grew to appreciate from
his experiemtes while the application was pending. He
traced the difficulties which he was encountering to the
behavior of the eggs, but the disclosure of the abandoned
application and of the documents filed with it is devoid of
any adequate suggestion as to how these difficulties might
be overcome. | ae

These facts mark the whole of Hastings’ effort with the
brand of failure. As stated by the Court of Appeals for
the Third Circuit in the Cooley case (p. 455):

‘The result was negative, and, judging from what hap-
pened to the hatcheries, it was not successful.”’

—_— ee

14

The decisions of those Courts which disposed of the Hast-
ings defense at the threshold of this protracted litigation
are sound and follow the well-established principles laid
down by this Court in many leading cases dealing with
defenses of prior use and prior invention. Preminent
among such cases are the Barbed Wire Patent Case (143
U. 8. 275) and Coffin v. Ogden (18 Wall. 120).

* In the Barbed Wire Patent Case this Court said at page
284:

**We have now to deal with certain unpatented de-
vices, claimed to be complete anticipations of this pat-
ent, the existence and ise of which are proven only by
oral testimony. In view of the unsatisfactory char-
acter of such testimony, arising from the forgetfulness
of witnesses, their liability to mistakes, their proneness
to recollect things as the party calling them would have
them recollect them, aside from the temptation to actual
perjury, courts have not only imposed upon defendants
the burden of proving such devices, but have required
that the proof shall be clear, satisfactory and beyond
a reasonable doubt.’’

In Coffin v. Ogden, 18 Wall. 120, 124, the Court said:

15
ARGUMENT.
POINT L.

The Smith invention consists of a plurality of elements,
all of which must be present.

The nature of the Smith invention and the essentials
of successful mass incubation, first perfected by Smith, are
fully and accurately presented in the opinion of this Court
in the Snow case (294 U. S. 8). Those essentials are:

(1) The eggs must be set in staged incubation which is
defined as the successive setting of eggs within the cabinet
at brief intervals. In order to secure the benefits of the
invention, intelligent use must be made of staged incuba-
tion so as to secure an approximate balance between the
endothermic and exothermic eggs. A mere hit and miss
setting of eggs of varying ages will not suffice, for if only
a small percentage of the eggs is in one stage and the
great mass in another, obviously the preponderance of cold,
or hot, eggs will destroy the necessary balance which should
be maintained.

(2) The eggs in staged incubation must be set in one
room in order for the heat interchange to function, and this
room must have the ‘‘restricted openings’’ which supply
the requisite fresh air and permit escape of foul air with-
out excessive loss of moisture, which would result in drying
the eggs too rapidly.

(3) The air must be circulated about all of the eggs in
this single room with sufficient force to constitute a definite
current as distinguished from such drafts as may be gen-
erated by the differing heat conditions at different points
within the room; and

; a a me ee ee ee) a ee
16

(4) The current of air must move with a sufficiently
high velocity to maintain the air at the same temperature
about all of the eggs, thus breaking down any tendency
for the formation of hot or cold spots about any group
of eggs. As stated by this Court, this latter step marks
‘‘the boundaries of the claim’’. Smith mounted his fans
directly within the chamber and vigorously recirculated
substantially the same body of air over and over again
through the eggs so that the temperature of the air was
the same at all points, and all of the eggs, whether new
or old, were subjected to the same air temperature.

As shown by the records in the Snow and Wazham cases,
the Salution of this problém was the result of persistent
and untiring efforts extending over a period of over nine
years (Snow R. p. 134; Waxham R. p. 545; 561). Repeated
disappointments and failures dogged Smith’s efforts, and
it Was only in the vear 1915 that he finally combined all
the elements of Claim 1. When the combination was made,
success immediately followed.

POINT II.

In none of his efforts did Hastings combine the essential
elements of the Smith invention.

The Hastings Defense in Genera].

The Hastings defense is typical of the class of defenses
so frequently found in patent litigations where the success-
ful inventor who creates a new art and achieves a large
measure of material success, is confronted with earlier
failures in the field. The answer is usually found in com-
parative results secured. In such cases the true inventor
is immediately rewarded with striking success, and the art
adopts and uses his inveation from the day it first appears.
On the other hand, the efforts of the earlier worker lead

_
17

nowhere and nothing is heard of him until he is brought
forward in an effort to depreciate the achievement of the
true inventor. As was said by this Court in The Barbed
Wire Patent Case (p. 284), supra, ‘‘almost every important
patent, from the cotton gin of Whitney f6 the one under
consideration, has been attacked by the testimony of wit-
nesses who imagined oe og made similar discoveries long
before the patentee.’’ e Smith patent is no exgeption
to this rule. . . oe
Undoubtedly Hastings tried to solve the problem of mass
_ ineubation. As we shall show in detail in a moment, he
made three separate attempts at three different places,
but none of his efforts lasted through more than one
season. After each attempt he moved to another loca-
tion, getting new capital to finance his efforts. Each
incubator which he built differed in a wide measure from
the preceding; and each incubator was soon destroyed.
Neither Hastings, nor any one else connected with him,
made a penny from his work, each lost all he had
. put into it, and none of Hastings’ incubators was ever
duplicated or reproduced by him or his.associates or any-
one else. His last attempt was in the fall of 1912. Nothing
more was done by him until after Smith had made the in-
vention and knowledge of it reached the world. Then, in
1918, Hastings made an attempt to build a practical in-
cubator, following Smith’s teaeghings. Even this was a
failure, and Hastings passed out of the field until his efforts
were resurrected by successive defendants, none of whom
succeeded in injecting life into the defense until the Court
of Appeals for the Second Circuit, after the expiration of
the Smith patent, decided in favor of Hastings.
Considered from the standpoint of practical results at-
tained, it appears to be particularly plain that Hastings
failed to grasp the essentials of the Smith invention and
failed to bring together those essentials in any one of the
three efforts he made prior to the Smith invention. -Had

18

Hastings, in fact, made the invention, commercial success
would have been inevitable, just as it was with Smith.
Hastings had every opportunity for success, but he failed
completely. Hastings had no difficulty in securing financial
backing for each of his efforts, he was enabled to try out
his ideas unhampered by his associates, he spread news .
of his attempts over the pages of numerous technical and
popular publications, and he was given every encourage-
ment from those directly interested in the poultry business.
After all of this, in 1912, Hastings’ gave up the problem.
But ever after he has entied the success which came to
Smith, and it is evident that his testimony has been colored
by that feeling. As he testified in the James case (R. p.
579) he felt

**some element of resentment that he did not share in
such returns.’’

We shall now discuss the several publications and the
installations made by Hastings in his attempt to solve the
problem of mass incubation, pointing out wherein each
publication fails to disclose the Smith invention and
wherein each incubator failed to attain the goal of suc-
cessful achievement.

7
‘*The Dollar Hen’’.

In the year 1908 Hastings, then about 24 years of age
and an ‘‘expert’’ in the poultry division of the United
States Department of Agricuiture, encountered Madison
Cooper, a refrigerating and ventilating engineer, who had
designed a refrigerating apparatus for the preservation of
vegetables, consisting of a cold storage room with perfor-
ated diaphragms above and below and a fan outside to cause
a slow circulation of air through the room. Hastings con-
ceived that this scheme might be used for an incubator.
As he says {James R. p. 540) ‘‘I adapted that idea to in-

lh aia tats ROCIO Seep e pree NE Ee ORE il

19

cubation.’’ Hastings had no conception ‘that the art of
incubation, dealing with animate heat generating organ-
isms, differed in any way or presented any problem distinct
from that which confronted a cold storage engineer in the
preservation of inanimate perishables.

Conceiving that incubation presented no difficulties not
solvable by the application of refrigeration principles,
Hastings wrote ‘‘The Dollar Hen’’. This is the publica-
tion to which the Circuit Court of Appeals referred at
considerable length, quoting therefrom a selected passage
(Hall R. p. 238). Eitherjthe Court did not read the whole
of the book, or else it failed to understand the significance
of other passages. Hastings said in this publication:

“The plan of the hatchery is on that of a cold storage
plant as far as insulation and general construction
go’’ (p. 104);

and:

‘‘The means by which the air moisture is regulated
is similar to that used in up-to-date cold storage plants
where the air is made moist by sprinkling and dried
with deliquescent salts’’ (p. 105).

It all seemed very simple to Hastings.

‘“‘So simple is this that the reader will doubtless
wonder why it was not developed earlier’’ (p. 104).

Hastings testified (James R. p. 540):

‘Tt oceurred to me, while considering this method
of refrigeration, that the problems of refrigeration
and the problems of incubation were very similar, in
fact we might say identical, and I believe I so wrote
in ‘The Dollar Hen’. . I did so testify in the Cooley
case.’’

-

And at page 541:

‘‘The statement of my opinion, as expressed in ‘The
Dollar Hen’, was that the adaptation of the forced
draft fan system of equalizing tempercture, used by
Cooper in cold storage, would apply to incubation. I
was under the impression that the application cf the
device and method to incubation constituted an in-
vention.’’

The publication fails to give any adequate description
either of the incubator structure or of a method of opera-
tion. It was written by Hastings before he made an at-
tempt to carry out the process. Judge Westenhaver cor-
rectly appraised this publication when he said in the Wolf
ease (291 F. 253-257):

‘‘The earliest article in the ‘Dollar Hen’ may be
disregarded, as Hastings there merely describes a
process for maintaining temperature in cold storage
and suggests how it may be applied in a hatchery. It
does not purport to describe an apparatus or ever to
have been put to any use.’’

That Judge Westenhaver was correct is admitted by
Hastings (James R. p. 540).

The reasons why the vague ideas expressed in ‘‘The
Dollar Hen’’ do not anticipate the Smith invention are
apparent. They ¢onstituted nothing more than the use of
principles of cold storage in incubation. Hastings did
not appreciate or understand the value of setting the
eggs in staged incubation. and he gave no definite in-
structions as to the manner in which they should be
set. The ordered and intelligent utilization of the endo-
thermic and exothermic properties of a large mass. of
eggs, set with some regard for their progression in in-
cubation, was-wholly a closed book to Hastings. Nor did
Hastings conceive of the Smith method of conserving mois-

ture by the restricte. outlets; on the contrary, he pro-
posed to adopt the systems used by cold-storage opera- |

= —_—s = - _—- — Sa —

21

tors. Nor did Hastings understand the necessity for a cir-
culation of air any more vigorous than might be required
in Cooper’s cold storage plant, a fact which is made clear
when we consider the patent application which he filed
during the period when he was attempting to make use of
the conception. If a perforated partition such as that
used by Cooper (James R. p. 554), or its equivalent, a
fabric, is placed between the fan and the egg chamber,
the force of the circulation will be retarded to such an
extent as to destroy current movement of the air (infra, p
25, 26). Lawry, another alleged prior user who appeared
in earlier cases, also attempted to adapt Cooper’s cold
storage system to mass incubation (Waxham R. p. 457)
and failed, as is shown by the discussion of the Lawry
prior use by the Circuit Court of Appeals for the Ninth
Circuit in the Waxham case at 70 F. (2d) 457, 459. As the
Court said:

‘«‘Lawry did provide for a large chamber of heated
air in which the eggs were placed. He did provide
small vents above and below this chamber through
which the air entered and escaped from the incubating
chamber. The air in the Lawry process was given some
momentum by an electric fan, but the effect of this

“momentum was almost entirely dissipated by the fact
that the current of air was forced through a large
number of small openings and escaped through similar
openings to return through narrow passages to the fan
to be again circulated through the incubation chamber.
The obvious purpose of. Lawry in this method of in-
cubation was to supply fresh air without agitating the
contents of the incubating chamber any more than was
necessary to supply the fresh air. Apparently there
was no effort to remove the heat from the incubating
eggs by a current of high velocity. The plan was a
failure and was abandoned and need not be further
considered. We conclude that the Smith patent is
valid.’’ |

a

22

Ten years later, after the Smith invention and after
Hastings’ experiences at Tiffin, Ohio, Hastings character-
ized this ‘‘Dollar Hen’’ publication as ‘‘an impractical
poultry book’’ (James R. p. 578-579).

’ The Davis (Brooklyn) Incubator.

Principles oF THE SMITH INVENTION
Nor Emsoprep Iw It.

Still believing that mass incubation was-a very simple
transposition of the cold storage system to the art of in-
cubation, Hastings resigned from the Department of Agri-
culture in 1910 and sought an opportunity to apply this
refrigeration idea to incubation. He set forth from the
shorés of theory on the troubled waters of practice armed
with all of the self-assurance of a young ‘‘government ex-
pert’. He first disclosed his ideas to Francis Orvis, the
editor of ‘‘The Poultry Digest’’, who was not called as a
witness by the defense in either case, and whose absence
was not explained (Hall R. p. 54). Orvis introduced him
to Davis, a printer engaged in operating a large linotype
establishment in New York City, who also ran, as a side
line, a poultry farm on the outskirts of Brooklyn, N. Y.,
in connection with which he operated a rqad-house selling
chicken dinners. Davis was busy day and night operating
his printing establishment and gave little attention to his
poultry farm (Hall R. p. 59-60). The farm was run by a
man named Miller, and a helper (Hall R. p, 62; James R.
p.*505), to whom Hastings disclosed the operation of the
incubator (James R. p. 546). Neither Miller nor the helper
was called as a witness by respondents, nor was their ab-
sence accounted for. The present Mrs. Davis was then a

—— —————

23

bookkeeper for Davis and went oyt to the poultry farm
only occasionally (Hall R. p. 63).

Davis gave Hastings a salary and turned him loose in
the Brooklyn hatchery to make what he could of his ideas
in comparison with some old Cyphers incubators which he
had at the place. Hastings built an incubator and tried
it out in the spring of 1911. The patent application is
the only contemporaneous record which shows the con-
struction of the incubator. There are no records produced
of the results of any experiments and no records of any
hatch or of the number of eggs put into the incubator
and the number of chicks produced. There is only the
testimony of Hastings as to whether there were any
successful hatches and as to what was the method of oper-
ation of the incubator.

Just before Hastings testified in the Cooley case, he
made some drawings purporting to show the Davis hatch-
ery. As Judge Bodine said (Appendix, p. vii):

‘*The drawings made on the eve of the present suit
are, at best, Hastings’ recollection of what he now
fancies he did. in.1911. It seems impossible that the
methods disclosed in his drawings should not bear a
resemblance to Smith’s successful incubator rather than
his failures.’’

in the James case, new drawings of the Davis incubator
were made on the eve of the testimony in that case, and
these drawings show differences in the fan arrangement

from the Cooked sdarynes and a closer approach to the
Smith principle ( p. 542-543).

The application for patent, prepared by Hastings (Hall
R. p. 57) and executed April 20, 1911, contemporaneously
with the operations at Brooklyn, contains a drawing of the
ineubator and some indication of what were Hastings’
ideas at that time on the subject of inenbator operation.

24

. The application is at pages 727 to 764 of the James Record,
and the drawing appears on page 764. It is reproduced
below.

ee eheannitst

This drawing made by Hastings and incorporated by him
in his patent application was made at about the time when
he completed the Davis or Brooklyn incubator. Therefore
it seems only reasonable to assume that it represents what
Hastings then had in mind as the best embodiment of his
ideas about incubator construction and the construction he
employed in building the Davis incubator. But the con-
struction illustrated by it is very different from that shown
by the Cooley and James drawings made by Hastings from
memory more than twenty years later.

In view of the fact that Hastings’ conception was the
mere transposition of Cooper’s cold storage process to in-
cubation, it is not surprising to find that his application
shows an incubator which is a replica of the Madison
Cooper cold storage plant as described by Hastings (James
R. p. 540). The room A is enclosed top and bottom by the
partitions E shown in dotted lines and the fan is outside
of the room. The partitions are described as ‘‘fabrics or
perforated partitions’’ simulating the perforated partitions
used in the Cooper cold storage plant. Hastings in his

ae iieaniniatdin

25

actual construction used the fabric; he never used the per-.
forated partitions (James R._p. 554).

The fabric panels would chetk the flow of air from the
fan, and no appreciable current of air could find its way
through them. The result would be that the air within the
chamber would be practically still air, decidedly different
from the vigerous current movement which is one of the
main essentials of the Smith invention. As Hastings said:

‘‘Those fabric panels had the effect of checking the
air flow and served no useful purpose. They were
deleterious to incubation only to the extent of checking
the amount of air’flow; making the fan less efficient’’
(James R. p. 551).

and

‘‘The presence of the fabric panels would affect quite
materially the flow of air’’ (James R. p. 552).

Hastings had in mind a still-air environment for the
eggs, following the teachings of the old prior art incubators.
He said (James R. p. 551): .

‘‘The expediency, in my mind, of the idea of using
fabrics was a combination of the idea of diffused air,
which was made a great point of in the Cyphers ma-
chines of that day, plus the idea of the distribution
of the air — throughout the area of the egg
chamber.’’ .

Judge Westenhaver appreciated the effect of these fabric
panels when he said in the Wolf case, 291 Fed., at page 258:

‘*The specification and drawings disclose an appara-

tus which,.in the light of our present knowledge on the

' _ subject, is known to be impracticable and inoperative.
As described, it merely drives heated air down one side

26
of an egg chamber, and permits it to filter through
fabric or perforated partitions into the egg chamber,
and escape, if it can, on the other side. No provision
is made for re™oving foul air, or supplying fresh air,

or conserving . i0isture.\ No well-defined channels for
the circulation of the air gre proviged.”’

Judge Hincks, in the Hall case, also sensed their big-
nificance when he said (Hay p. 219):

‘“*And if Has*mgs, as the drawing of his abandoned
patent application discloses, had his fan outside a
fabric enclosure of the egg chamber, perhaps the only
mechanical circulation of air was around the outSide
of the fabric enclosure; inside the fabric it well may
be that the only circulation of air was the product of ‘
convection as in the old-style incubators, so that the
incubation was proceeding under the old process rather
than the new.’’

It must, therefore, be concluded that this Brooklyn
hatchery lacked the forced current &rculation of air through ~

a jarge mass of eggs with sufficiént velocity to maintain
and equalize the temperature #iroughont.

There is also doubt aa Hastings had the other es-
sentials of the Smith pr at the Brooklyn plant. There
is no evidence of any Value indicating that he set eggs in
staged incubation or that he had any appreciation of the
value of that step.

“On this'question of whether staged incubation was em-
ployed in the Davis incubator, there are contradictory ©
statements by Hastings himself. When he testified in the
Hall cage in the spring of 1935, Hastings was very posi-
tive that he set the eggs in staged incubation (R. p. 52,
53), stating that he set the eggs.on the average of twice
a week. However, when he testified in the James case two
years before, he said (p. 548):

27

**I do not remember the details of the time we set
these eggs, because it was of no importance to the
principle of incubation but merely a matter of con-
venience in handling the and taking off chicks.
I have no memory today, afler some twenty-two years,
on which to base a positive staTement as to the exact
time of setting these eggs.’’

The testimony of Davis and his wife that the eggs were
set in staged incubation must be rejected for the reasons
given by the District Court (Hall R. p. 217):

‘*Davis and his wife, to be sure, testified that Hast-
ings practiced staged incubation, but Davis had a busy
linotype establishment running in New York day and
night; his wife was his bookkeeper. The record does
not show that either of then actually saw the eggs
set in staged incubation. Their betief in the presence
of staged incubation obviously is attributable to the
fact that they received bills for frequent shipments of
setting eggs. They now say they supposed these eggs
were set in the Hastings incubator twice a week, as
received. But so far as their actual knowledge is con-

‘cerned, it well may have been that the eggs received
for setting were distributed between the Hastings in-
cubator and the several Cyphers incubators, in use
near by, wholly without staged incubation. Thus, on
analysis, the practice of staged incubation in connec-
tion with this alleged prior use rests upon the verbal
testimony of Hastings alone.’’

When one refers to the only contemporaneous documen-
tary evidence, the patent application, no corroboration of
this testimony is found. The patent application, filed
while the operations were being conducted, is wholly silent
as to this essential feature. Somewhat later, reference
was made to the. differing thermal characteristics of the
eggs during the process of incubation, but as Judge Hincks
said (Hall R. p. 217):

26

of an egg chamber, and permits it to filter through
fabric or perforated partitions into the egg chamber,
and escape, if it can, on the other side. No provision
is made for removing foul air, or supplying fresh air,
Or conserving moisture. No well-defined channels for
the circulation of the air are provided.’’

Judge Hincks, in the Hall case, also sensed their sig-
nificance when he said (Hall R. p. 219):

‘‘And if Hastings, as the drawing of his abandoned
patent application discloses, had his fan outside a
fabric enclosure of the egg chamber, perhaps the only
mechanical circulation of air was around the outside
of the fabric enclosure; inside the fabric it well may
be that the only circulation of air was the product of
convection as in the old-style incubators, so that the

incubation was proceeding under the old process rather
than the new.”’

It must, therefore, be concluded that this Brooklyn
hatchery lacked the forced current circulation of air through
a large mass of eggs with sufficient velocity to maintain
and equalize the temperature throughout.

There is also doubt whether Hastings had the other es-
sentials of the Smith process at the Brooklyn plant. There
is no evidence of any value indicating that he set eggs in
staged incubation or that he had any ———— of the
value of that step.

On this question of whether | incubation was em-
ployed in the Davis incubator, there are contradictory
statements by Hastings himself. When he testified‘in the
Hall case in the spring of 1935, Hastings was. very posi-
tive that he set the eggs in staged incubation (R. p. 52,
53), stating that he set-the eggs on the average of twice ;
a week. However, when he testified in the James case two
years before, he said (p. 548):

" — —
a ee = -= oo —_— - .

27

‘‘T do not remember the details of the time we set
these eggs, because it was of no importance to the
principle of incubation. but merely a matter of con-
venience in handling the eggs and taking off chicks.
I have no memory today, after some twenty-two years,
on which to base a positive statement as to the exact
time of setting these eggs.”’

The testimony of Davis and his wife that the eggs were
set in staged incubation must be rejected for the reasons
given by the District Court (Hall R. p. 217):

‘‘Davis and his wife, to be sure, testified that Hast-
ings practiced staged incubation, but Davis had a busy
linotype establishment running in New York day and
night; his wife was his bookkeeper. The record does |
not show that either of them actually saw the eggs
set in staged incubation. Their belief in the presence
of staged incubation obviously is attributable to the
fact that they received bills for frequent shipments of

‘setting eggs. They now say they supposed these eggs
were set in the Hastings incubator twice a- week, as
received. But so far as their actual knowledge is con-
cerned, it well may have been that the eggs received
for setting were distributed between the Hastings in-
cubator and the several Cyphers incubators, in use
near by, wholly without staged incubation. Thus, on
analysis, the practice of staged incubation in connec-
tion with this alleged prior use rests upon the verbal
testimony of Hastings alone.’’

When one refers to the only contemporaneous documen-
tary evidence, the patent application, no eorroboration of
this testimony is found. The patent application, filed
while the operations were being conducted, is wholly silent
as to this essential feature. Somewhat later, reference
was made to the differing thermal characteristics of the
eggs during the process of incubation, but as Judge Hincks
said (Hall R. p. 217):

28

‘‘That Hastings in 1912 knew of staged incubation
is slight evidence, if any, that he practiced it in 1911.’’

The Court of Appeals stated in ‘its opinion that Hastings
used staged incubation in the Brooklyn hatchery. To sup-
port this finding the Court said-that ‘‘Davis and his wife
both testified that eggs were put in the chambers as they
came in, once or twice a week’’ (Hall R. p. 239). Neither
witness claimed to have been there when the eggs were
set; obviously, their statements are expressions of infer-
ences which they thought might properly be drawn from
their recollection that eggs were shipped in at short inter-
vals. That is the conclusion reached by Judge Hincks as is
shown by his comment quoted on the preceding page wherein
he said that Davis and his wife testifying twenty-odd years
after the events, ‘‘supposed’’ that the eggs which were
shipped to their Brooklyn house at intervals were put in
the Hastings ipcubator at similar intervals.

In further support of that assertion, the Court of Ap-
peals made reference to ‘‘The Dollar Hen’’, published in
1909, as showing what Hastings did in the Davis incubator
in 1911, the suggestion being that because in discussing his
imaginary incubator Hastings hinted at staged incubation
as a possibility, he must have used it in the Davis incuba-
tor. The Court of Appeals must have forgotten tempo-
rarily the admonition of this Court that ‘‘the law requires
not conjecture, but certainty’’ (Coffin v. Ogden, p. 124,
supra).

Again, the Court quoted a newspaper article published
‘by Hastings in 1912 in which it is stated that the ‘‘eggs
at all stages can be placed in the same trays’’, and that he
‘‘hatched several thousand eggs under such conditions in his
‘Brooklyn (Davis) plant last year’’. But this is not staged
incubation. The scattering of new eggs through a tray con-
taining old eggs with no definite realization of the value
of staged incubation and without any attempt to balance

a —
ee

29

endothermic and exothermic eggs, is not sufficient. It seems
quite evident that at that time Hastings had no conception
of the importance of staged incubation.

Furthermore, the Court appears to have overlooked en-
tirely the next sentence in that article where Hastings said:

‘‘This point, while upsetting a tradition, is of no
practical significance because eggs of different ages
should be kept apart as a matter of general convent
ence’’ (James R. p. 1116). .

Hastings’ failure to recognize the importance of staged
incubation appears again in his testimony in the James
case where he said ‘‘it was of no importance to the prin-
ciple of incubation’? (James R. p. 548).

Even had Hastings set some eggs at intervals less than
the full period of incubation, the result would be no differ-
ent. Accidental use of one step of the process without
appreciating its benefits or advantages cannot invalidate
a patent granted to one who first recognized the value of
that step and was led thereby to employ it in a new and
successful process (Tilghman v. Proctor, 102 U. S. 707, 710;
Eibel Co. v. Paper Co., 261 U. S. 45; Boyd v. Cherry, 50
Fed. 279, 283; Wickelman v. A. B. Dick Co., 88 Fed. 264, 266,
267 ; Franc-Strohmenger & Cowan v. Arthur Stegman, Inc.,
27 F. [2d] 785, 788).

Tue Davis (Brooxtyx) Ixcusaton Was Nor 4 PusBLio
Use, Nor a Repvotion To Practice; Ir Was an Apan-
DONED EXPERIMENT.

>
The Court of Appeals did not state whether it regarded
the operation of the Davis incubator as a public use or
merely as evidence of prior invention by Hastings. It-was
merely an experiment made by Hastings, and the record
clearly shows that it was abandoned ; the construction was
not duplicated in any of Hastings’ later work. An aban-

a

30

doned experiment is never regarded as an anticipation of
a later issued successful patent.*

That the Davis hatchery was not a public use is clearly
established. In writing for the-‘Boston Sunday Globe”’ in
November, 1912, Hastings said (Hall R. p. 63):

‘“‘Finally in the winter 1910-1911, a small plant
was constructed on the Davis Poultry Farm in
Brooklyn, New York, and the idea fully demonstrated.
This plant was not open to the public as its workman-
ship was crude and the applications to the Patent Of-
fice not completed.’’

In testifying in the James case Hastings said (p. 534):

‘“‘T know and would remember all of those who saw
the Davis machine, as there were only a few in. num-
ber and were personal friends of Mr. Davis and my-
self.’’

And again at page 553 of the James record:

‘*He was hatching for himself alone, or I was hatch-
ing for him, his employee, and it was not public in the
sense that we had public customers nor any bid made
to the outside public to come and visit the hatchery,
but Mr. Davis’s friends and mine were shown the
hatchery.

Q. And you kept it secret because of the fact that
you hadn’t filed a patent application at that time,
isn’t that correct? A.I think that was my impression
at that time, of not wanting the general public in,

% yes.”’

*Gaylor v. Wilder, 10 How. 477; The Corn-Planter Patent, 23
Wall. 181; The Barbed Wire Patent, 143 U.S. 275; Electric Smelt-
ing, etc., Co. v. Pittsburgh. Reduction Co., 125 Fed. 926 (C. C. A. 2);
Carson v. American Smelting, etc., Co., 11 F. (2d) 766 (C. C. A. 9).

ona aw me eee em sere ——
,

31
‘In the Hall case, Hastings said (p. 56):

‘*My incubator was built in the same cellar of the
same house where Mr. Davis had his other incubators.
I think that it is correct that I testified in the Simms
and James cases that I did not operate th’ ‘thing as
a public use but kept it secret because my application
for patent had not yet been filed.’’

The Davis incubator was located in the cellar of the
road house and was carefully guarded from the public
gaze so that-no knowledge of its existence or mode of op-
eration reached any further than the small group com-
posed of Hastings, Davis and their immediate friends and
workmen about the place. An attempt was made in the
Hall case to establish that many people must have seen
the Davis incubator because mahy hundreds of people vis-—
ited the road house for dinners (Hall R. p. 60). Mr. Davis
did not testify that the guests for his Sunday dinners were
taken into the cellar of the house and shown the incubator.
He carefully avoided such statement, nor would his testi-
mony have been credible had he so stated for it would have
been directly contradictory to the quoted statements made
by Hastings.

It is well settled that a concealed experimental installa-
tion, such as the Davis incubator, is not a ‘‘public use’’
in the sense of the patent law (Smith & Griggs Mfg. Co. v.
Sprague, 123 U. S. 249-257).

The Court of Appeals stated in its opinion in the Hall
case that the Davis incubator ‘‘was in use during the
hatching seasons of 1910 and 1911’’ (Hall R. p. 242). The
Court was in error in this holding. Hastings testified that
the incubator was not completed until ‘‘February or early
March, 1911’’ (James R. p. 545) and he left the Davis’ plant
‘“the last of April or the first of May’’ (James R. p. 546),
while the hatching season was still on. There is no testimony
in the record that the incubator was operated after Hast-

32

ings left, except to finish up the operations which had been
started. The only man who could have testified on this
point was the manager, Miller, who was not called.

Nor was the Davis incubator a reduction to practice.
It was built for 6,000 eggs. There are no records of how
many hatches were conducted or the number of eggs set
or the results secured. Hastings ‘stated that at no pe-
riod of its operation did it contain more than 2,000 eggs
(James R. p. 547; Hall R. p. 55). In other words,
the Davis incubator was never more than one-third filled.
Such an operation would not afford an adequate test of
the Davis incubator. With a few eggs in trays in a room
adapted to hold three times as many, some eggs might
successfully hatch even though the air was not perceptibly
in motion. No one can predict what would have happened
if the incubator had been filled to or approaching capacity.
Under the conditions under which Hastings operated, the
incubator was, in effect, nothing more than a still-air in-
cubator of the old type and operating under the principles
of the prior art. As the District Court said (Hall R. p.
219): -

‘*For all I know, 2,000 eggs set in a chamber three
times too large for them and supplied with some heat
and some natural ventilation, even without a fan, might
have produced as good a hatch as Hastings got.’’

Tae Davis Incusator Was Nor Successrun.

Hastings in his most extravagant statements did not
claim that he had made an improvement in percentage of
hatch over the old ‘‘Cyphers”’ incubators (Hall R: p. 52-53).
In rating the percentage of hatch at 59% Hastings was
admittedly. guessing, and it is not anlikely that he exagge-
rated the results secured, but as his results were never
better than the ‘‘Cyphers’’ (Hall R. p. 53) and as Davis

oe ¢ - —

33

said he ‘‘had not had very good luck with the Cyphers”’
(Hall R. p. 58) it is evident that Hastings effected no ith-
provement in the number of chicks produced from a given
number of eggs incubated.

One of the main advantages of the Smith invention is
the increased percentage of hatch. As this Court said in .
the Snow case (p. 7):

‘*By use of the new method it is possible to operate
, successfully an incubator containing as many as 52,000
eggs, and the percentage of eggs successfully hatched
by artificial incubation has been materially raised.’’

Thus it is apparent that the Davis incubator never dem-
onstrated that it was capable of producing the results of
the Smith invention.

The record also contains a very striking admission of
failure of the Brooklyn hatchery in the words of Hastings
spoken shortly after the event. In an amendment to his
abandoned application dated May 24, 1912, Hastings re-
ferred to ‘‘a painstaking and very costly series of experi-

‘ments’’ (James R. p. 744) which he had performed. Prior
to that date the only experiments which he had performed
were at Brooklyn, N. Y., and Muskogee. No one who had
successfully operated the Brooklyn incubator would so
write to the Patent Office. Had the Davis incubator been
successful, Hastings would have proclaimed the fact to
the Patent Office and to everyone else.

For most of the facts about the Hastings incubators at
the Davis farm in Brooklyn and at Muskogee, one is forced
to rely on the testimony of Hastings himself, but there is
much reason for questioning how reliable a witness he is.
For instance, immediately following the brief experiment
with the Davis incubator, Hastings published a prospectus
for the purpose of getting funds to build another incubator.
In this prospectus he said:

——

a

‘In the season of 1910-11 I built and operated a 15,000.

egg single compartment hatchery on the poultry farm
of W. B. Davis in a suburb of Brooklyn’’ (James R.
p. 554 and Hall R. p. 55).

This was admitted by Hastings to be an ‘‘exaggeration’’
and not true (Hall R. p. 56). Also Hastings said:

‘*T exaggerated the capacity: more than two and a half
times for the purpose of getting people to put money
in jt. As-a matter of fact I hadn’t run my incubator
with more than 2,000 eggs in it at the time I made this
statement”’ (James R. p. 555).

This admission of exaggeration in presenting certain of
the facts about his incubator suggests that the same will-
ingness to exaggerate may have entered various others
of his statements and that therefore hesitation and careful
scrutiny are necessary before accepting his uncorroborated
statements.

The final chapter of the Meter of the Hastings incuv-
bator at the Davis farm stamps that effort quite definitely
as an unsuccessful and abandoned experiment. Use of the
imeubator extended over March and April of 1911 (James
R. p. 506). Hastings departed about the first of May, 1911,
never to return (James R. p..546). The incubator re-
mained in the cellar of the Davis house, unused.and aban-
doned for aught the record shows. In 1913 Davis sold
the farm, and, at his direction, the incubator was ‘‘knocked
to pieces and put out in the back yard and burned up along
with a bunch of other trash’’ (Hall R. p. 61).

Thus ‘he incubator was deserted by both Hastings and
Davis, Mastings who had -put his efforts into it, and Davis
his money. Had it been successful, Hastings would have
continued to operate it and to exploit it; but even if he
had deserted it and it was a successful operative device,
doubtless Davis would have continued with the use of the
incubator and probably with its exploitation.

——

35

The Court of Appeals seemed to find excuse for this out-
come of Hastings’ effort at the Davis farm in the fact
that Davis suffered financial reverses and that the incubator
could not be removed except by dismantling it. This dis-
regards the probabilfty that if the incubator had been
successful, Davis would not have suffered financial reverses.
He would have had immediately at hand a source of wealth
far richer than his printing establishment or his chicken
farm, and even if the incubator had to be moved ta a dif-
ferent location and could be moved only by dismantling it,
it could have been reconstructed or duplicated in a new loca-
tion instead of burning it ‘‘along with a bunch of other
trash’’.

The foregoing facts are to be considered in contrast with
the statement by the Court of Appeals that there is ‘‘un-
contradicted testimony’’ that the Hastings incubator at
the Davis farm ‘‘was an operative success’’. The testi-
mony about its operation is that of ‘Hastings, Davis and
Davis’ wife. Neither Davis nor his wife gave any testi-
mony as to whether or not the incubator was ‘‘an operative
success’. They could not because they did not know what
degree of success or non-success was attained (Hall RB. p.
59-60, 62). Thus, the specified ‘‘uncontradicted testimony”’
is that of Hastings alone. We have shown that Hastings
admitted exaggeration of the facts about the incubator,
that he was biased by envy of Smith’s success and that he
claimed no advantage for his incubator from the standpoint
- of percentage of hatch. Also, analysis of the asserted
operative success reduces it to nothing more than the
fact that the Hastings incubator at the Davis farm
produced chicks from eggs. Whether or not it produced
them cheaper or better or in a way that was an improve-
ment in any other respect is not proven, and the fact that
it was capable of producing chicks from eggs is quite un-
important because there were plenty of available incuba-
tors at the time which would do that.

ad

36

The conclusion of the District Court in the Hall case
on, the matter under discussion is much more sound. Judge ~
Hintks’ summary of the condition presented by the testi-
mony under review is (Hall R. p. 220):

‘*T am thus left in doubt as to whether Hastings on the
Davis farm in the spring of 1911 did what it is said he
did; if so, whether he used the method of claim 1 of the
patent in suit; and if so, whether his usé thereof was
a successful use within the rule of Corona Cord Twe
Co. v. Dovan, 276 U. 8. 358.”’

Hastings’ testimony, the only testimony on this Davis in-
cubator which can be included within the Court of Appeals’
reference to uncontradicted testimony, presented noth-
‘ing calling for contradiction because it asserted no improve-
ment in the Davis incubator over other incubators such
as those in use on the Davis farm, and as to the incubator
being ‘‘an operative success’’, its history contradicts that
overwhelmingly. The use of this Davis incubator was dis-
continued. The incubator was abandoned by its designer
and by its financial sponsor at a time when both were
greatly in need of a source of revenue and, when something
had to be done with it, it was destroyed and later was
referred to by the appropriate designation of ‘‘trash’’.

ka The Muskogee Incubator.

By resort \to the false statements above referred to
about the operations at Brooklyn, Hastings, in 1911, se-
cured the necessary financial support for the building of
his second incubator (James R. p. 555; Hall R. p. 56).
Concerning this incubator nothing appears in the Hall rec-
ord; the testimony and exhibits are all found in the James
record.

37

Leaving Brooklyn in May, 1911, Hastings journeyed to
Kansas where he sought out Rees V. Hicks, the editor of
‘the poultry magazine ‘‘Poultry Culture’? (James RB. p.
511), who was not called as a witness nor his absence
excused. Through Hicks, Hastings met John Lieber ‘‘a
prosperous and leading spirit’’ of the repidly growing town
of Muskogee, Okla., then on a great boom (James R. p.
512). Lieber advanced the money and gave Hastings a
building in which to construct his incubator and left him
to his own devices.

Tre Musxocee Incusator Was Nor a DupticaTion oF
THe Brooktyn Ixcusator—Nor Dip It Emsopy THs
SmitH Process.

The Second Cireuit held that this Muskogee incubator
‘was similar to the one built for Davis in Brooklyn’’. This
is far from accurate. |

The incubator Hastings built at Muskogee differed ma-

_terially, both in construction and method of operation, from

the Davis incubator. Instead of a single chamber to re-
ceive the eggs, this incubator had a long row of seven
chambers, each intended to receive about 5,000 eggs. Each
chamber was substantially closed and distinct from every
other chamber and had small openings at top and bottom,
the opening at the top being controlled by a sliding damper
by which the amount of heat admitted to each chamber
could be regulated (James R. p. 603). Across the top of
the row of chambers there were one or more flues (the num-
ber not fixed in the record) leading from a single fan of the
common type. The fan was supplied by Lieber from a
moving picture theatre which he owned and operated
(James R. p. 604).

In a contemporaneous article published in ‘‘ Poultry Cul-
ture’? of February, 1912, and stated by Hastings to be a

correct description of the incubator (James R. p. 520), it

38

appears that there were two flues or ducts extending from
the fan to the several chambers. One of these flues con-
taine@ a heater, the other did not, it being Hastings’ pur-
pose to maintain different temperatures in the chambers in
accordance with the progression of incubation. As the
article says (James R. p. 1115-16):

‘‘varying degrees of air temperature will be required
in heating (or cooling) eggs in varying quantities and
different stages of incubation. To accommodate this
need, the inventor has ingeniously arranged that the
air be divided, after it leaves the fan, into two flumes.
One of these passes the heater and the other does, not.
Into the ceiling of each compartment slide dampers
open from either flume, so that by opening the two in
proper relative proportions any temperature desired
may be attained in any compartment.’’

There are no contemporaneous drawings or photographs
of the Muskogee incubator showing its interior construc-
tion. Just as in the case of the Davis incubator, Hastings
made a drawing of the Muskogee incubator for use in the
Cooley case just before the trial; and in the James case the
attorneys for the defendants had another drawing made
’ (James R. p. 541). The Cooley and James drawings differ
in important details of fan arrangement (James R. p. 542-
- §43; 560) but neither of them shows the two ‘‘flumes’’ de-
scribed in the only contemporaneous description of the
Muskogee incubator.

As to the method of operation which Hastings practiced
at Muskogee, we have the evidence of defendants’ witness
Lieber, the only witness other than Hastings who knew
how the incubator operated. Lieber testified in September,
1925, in the Stone case:

‘‘This incubator had six separate compartments,
-each holding 5,000 eggs. He had valves or cut-offs con-
neeted with each of these sections, or compartments,
by which he could regulate the heat of the air in each

\ :
a a a om \ 7 —

39

section or compartment. He could have one tempera-
ture in one compartment and a different temperature
in another. He explained to me at the time-that this
was necessary because when eggs were first placed in
an incubator they required the maximum amount of
heat whereas a‘few days before they hatched the
chicks in the eggs furnished considerable heat, and.
therefore it was not necessary to supply as much arti-
ficial heat just before the chicks hatched. He gave
this as his reason for having to have the device so that
it would have one temperature in one compartment and
a different temperature in another compartment’’
(James R. p. 776-7).

In the James case he reaffirmed this statement of opera-
tion at page 626 saying:

‘‘} remember it was a 30,000 egg incubator, six (6)
compartments at five thousand (5,000) each, and one
(1) compartment that he used to take the chioks off
in, because he had to have different temperatures: in
each de(com) partment.’’

And at page 627:

‘*His idea was, according to my recollection, that he
would have a continuous hatching all the time. That
is, he could start eggs in one compartment, carry on
for a few days, and then move them to another com-
partment and leave for a few days. And then move on
for another period until they finally got down to the
end. Yes, that is, if he was crowded for space, as new -
eggs came in he would put the eggs in the first one,
and keep on moving them, and he would be putting
eggs in the first compartment and taking chicks out
of the last one at the same time. And in the interme
diate compartments would be eggs further advanced
in the incubation. And he adjusted those slides so
more or less hot air would go into each compartment,
to control the temperature. The temperature of the

different compartments was different. My recollection

40

is that the temperature varied about ten degrees from
the starting to the end.’’

By 1933 it had become apparent to siehnnabanives of
respondents that the method of operation which Lieber
said was employed was not the Smith method at all. The
result is just what one would have expected, namely, vig-
orous protestation by Hastings in the James case that the
process. described by Lieber is not the one which was em-
ployed. Hastings said he set eggs of different ages of in-
cubation in each compartment and hatched the chickens at
the bottom of each compartment (James R. p. 535). There
is absolutely no record evidence to support this testimony
of Hastings, and it is contradicted by the only other witness
who knew how the incubator operated, namely, Lieber, who
said that the eggs were all hatched in one compartment
(James R. p. 603).

On the other hand, there is contemporaneous record
evidence that Hastings was in fact practising the process
described by Lieber.

We have already referred to that portion of the ‘‘Poul-
try Culture’’ article describing the two ‘‘flumes’’ leading
from the fan, one leading past a heater, and to the fact
that by regulation of the dampers ‘‘any temperature de-
sired may be attained in any compartment’’ (James R. p.
1116, top of first column). In the same article at the top
of column 2, page 1115, it is said:

‘“During hatching, trays with higher sides are placed
on alternating tray slides, thus requiring two compart-
ments for hatching the twenty trays incubated in one.’’

Here is a definite statement that the full complement of
the hatching capacity of the incubator was incubated in
one compartment, which, necessarily forecloses any possi*
bility that eggs of different ages were located in the differ-
ent compartments. This quotation establishes a condition

sesaehinektimeneiehaamianie —

41

wholly incompatible with Hastings’ testimony in the James
case. This same method of operation is described in De-
fendants’ Exhibit 26 A (James R. p. 1121) prepared by
Hickox and stated by Hastings to be ‘‘a very excellent
and accurate description of that incabator’’ (James R. p.
522).

Also, in the ‘‘Poultry Culture’’ article, Hastings said
‘‘eggs of different ages should be kept apart’’ (James R.
p. 1116), which is consistent with Lieber’s testimony but
inconsistent with that of Hastings on this subject of the
method of operation of the Muskogee incubator.

At the date of the ‘‘ Poultry Culture’’ article (Feb., 1912)
Hastings had hatched only a single setting of eggs in one
compartment, and the photographs show only this one
‘setting of 250 eggs, all of which were set at one time
and not in staged incubation (James R. p 556). The
photograph in the upper left hand corner shows the hatch
partially completed with some of the eggs hatched and
others about to hatch.

That Hastings actually practiced the process of moving
the eggs. progressively front compartment to compartment
as incubation progressed, and transferring each set of
eggs finally into the end compartments for the hatching,
is shown by an examination of a later photograph taken
‘‘in the midst of the hatching season of 1912’’ (James R.
p. 526). We refer to the photograph Exhibit 26-D im--
perfectly reproduced on page 1127 of the record. This
photograph shows the seven chambers of the Muskogee —
incubator with 8 considerable number of trays drawn for-
ward. No hatching is being done in the chambers in the
_ foreground. But in the background it will be noted that

the trays have the high sides characteristic of trays for
hatching (James R. p. 527). Therefore, it seems clear that
the structure illustrated is one in which incubating was
practiced as Lieber described, namely, by moving the eggs
along the series of chambers progressively until they reach

42

the chambers at the end of the row where the hatching
occurs.

The Muskogee incubator required the operator to adjust
the several inlets to the compartments to maintain the
different temperatures in each compartment dictated by
the stage of advancement of the eggs therein. This was
a problem accentuated by the heat characteristics of the
endothermic. and exothermic eggs and complicated by
- multiplication as the number of eggs in each compartment
increased. The circulation of air through each compart-
ment of the Muskogee incubator was scarcely perceptible
and in reality a still-air condition. This was no advance-
ment over prior art incubators which involved still air
conditions and the same problem of careful adjustment of
temperatures as incubation advanced.

That Hastings utilized only an ineffective current of
air and required a careful adjustment of the several cham-
bers to conform to the stage of egg advancement in each
compartment, is established by the evidence and corrobo-
rated by the statements quoted from Hastings in that por-
tion of the brief before the Patent Office in which he was
referring to his Muskogee operations (James R. p. 756):

‘‘a current of air is blown past each and every
egg at the rate of thirty feet per minute * * °. This
method of heating keeps the temperature of the eggs
in the advanced state of incubation down within a few
degrees of that of the air, the exact difference being
regulated at will by adjusting the speed of the fan.
When properly adjusted the same blast of air used
to heat fresh eggs does equally well for eggs in the
advanced stages. ° * °’’ 7

And on page 755 in the body of the attorney’s brief:

‘*it becomes a comparatively simple matter to regu-
late both the temperature, the humidity or the gaseous

1That this is an ineffective speed is shown at pages 59 and 60,

ati cial rey aia em ——

a —

43

composition of the air, inasmuch as all of the air is
drawn positively through a circulatory system and may
be modified at any point during tts circulation’’.

Each compartment of the Muskogee incubator was in
effect a still-air incubator of the prior art with the diffi-
culties of operation greatly increased by the ambitious
capacities. In the words of this Court in referring to
other prior art incubators, the Muskogee incubator in-
volved the same ‘‘necessity.of varying by nice adjust-
ments the temperature of the applied air, so as to conform
to the varying temperatures of the eggs as they passed
through successive stages df incubation’’ (Snow case, p. 7).

Thus, Hastings’ operation at Muskogee was radically dif-
ferent from the Smith method. This being true, it is imma-
terial whether the Muskogee use was an operative success,
for tt was not the Smith invention. The process which
Hastings used at Muskogee was, in fact, the identical
process which had been known in the prior art for years.
In the year 1887, British patent No. 10,288 issued to one
Gardner (James R. p. 1003), described in detail this same
procedure which Hastings used at Muskogee. That pro-
cedur® is distinct from that of the Smith invention as was
stated by defendants’ expert in the James case (p. 427):

‘‘Q. And as I understand the Smith patent—and
disagree with me or not, as’ you like—is this correct;
I will put it this way; is this a correct statement of
the Smith patent, that you maintain a temperature sub-
etantially uniform throughout the chamber? A. That
is the wording of it, yes, sir. .

Q. And then your temperature of the air around the
cold eggs is substantially the same as the temperature
of the air around the hot eggs? A. That is what the
wording means.

Q. And you have in the Gardner patent, however, the
temperature of the air different on each of the differ-
‘ent sets of eggs? A. That is correct.’’

44
Tae Musxooze Incusatorn Was a Fartune.

Persuasive evidence of the truth of the above statement
is that Hastings ‘‘never built another incubator exactly
. like the Muskogee incubator’’ (James R. p. 571). Nor has
any practical hatcheryman since that date duplicated the
Muskogee incubator or attempted to operate upon the prin-
ciple employed by Hastings. In addition, there is positive -
proof of its failure.
When Hastings left Muskogee in May, 1912, the hatch-

ing season waa still on, but no eggs were set in the incn-
bator in 1972 after his departure (James R. p. 537). In
1913, Liebeg_arid one Hastain. tried to operate the incnv-
bator, thé latter putting an additional $500 in the enter-

prise (James R. p. 774). But this effort was a failure.
It failed though Hastain was said to know more about the
operation of the incubator than any one other than Hast-
ings (James R. p. 785). Testifying in the Stone case in
1925, Lieber said (James R. p. 776):

**Q. After Milo Hastings left, did you or Ed Has-
tain undertake to operate the Hatchery? A. Mr. Has-
tain and a brother-in-law of his, named Dierfield, op-
erated the hatchery during a part of 1913. But neither
of them knew anything about the eal of the
hatchery and they had no success.’’

And on page 785:

‘*Q. How long did Hastain continue to operate in
the Spring of 19131 A. My recollection is that they
only put in one batch of eggs and closed down the
hatchery when the hatch was unsatisfactory.

Q. Why did he not try the second hatch? A. We
could not figure out its failure to hatch in 1913, except
fon the theory that Milo Hastings, the inventor, was
the only man who knew how to operate it.’’

wre ——~ - —

45

Realizing the damaging effect of the testimony of Lieber,
the defendants in the James case induced Lieber to testify
differently in 1934. At page 607 of the James record, Lie-
ber testified :

‘‘Mr. Dierfield put some money in the business the next
spring, and he’’ (Hastain) ‘‘and Mr. Dierfield operated
it during the season of 1913. I say they operated it.
I mean by that, they hatched eggs in it.’’

On cross examination, Lieber made his statements more
emphatic, saying on page 622 that it was ‘‘absolutely not’’
a failure in 1913 and that ‘‘hundreds of chickens were
taken out to Mr. Hastain’s farm in 1913 from that hatch-
ery.’’. When confronted with his testimony in the Stone
case, Lieber took the absurd position that he had not
changed his testimony. It ia quite significant that neither
Hastain nor Dierfield was called to testify fer the defend-
ants, nor was their absencé excused. .
_ Lieber’s unreliability is aptly illustrated by this con-

tradictory testimony. This fact was apparent in the Stone
case where it appeared that he had insisted upon reim-
bursement for all of his losses as the price for testifying
in the Cooley case. The master commented upon this in
the Stone case, saying ( Appendix, p. xvi):

*‘John G. Lieber, who was financially interested in
the Hastings hatchery, testifies that hatches of about
fifty per cent. were obtained. It is apparent, how-
ever, that Lieber was interested and more or less hos-

tile with the hope that at some stage of the litigation
of Smith’s patent and the infringement suit brought
by the Buckeye Incubator Company against Cooley, he
might receive a return of the money he lost in the Hast-
ings venture.’’

With these facts we have stated in mind, it is surprising
to note that the Court of Appeals found that the Muskogee

46

hatchery ‘‘ran through the hatching seasons of 1912 and
1913’’ and that counsel persist in their claim that the Mus-
kogee incubator operated more than one hatching season.
In 1913 the Muskogee incubator was entirely dismantled
(James R. p. 624) so that not a trace of tt ts in existence
today. Respondents maintain that a certain blower fan
shown in Exhibits 22 B to 22 F is a relic of the Muskogee
incubator, but, as we point out below (tnfra, p. 51-52), it
is impossible, in view of the testimony, to connect this fan
with the Muskogee incubator.

The destruction of the incubator and the complete finan-
cial and operative loss which it brought to all who were
connected with it stamps it with the ineradicable brand of
failure and abandoned experiment. As Hastings said:
‘*No one made any mioney out of it’’ (James R. p. 571).
Lieber said (p. 607): ‘‘The venture was not a financial
success. In other words, I did not make money out of
my investment in that incubator. No, I lost it all.’’ How
different the story would have been had Hastings conceived
the Smith invention! There would then have been no ex-
cuses and no attempts to disguise the palpable failure of
the enterprise and no need for either. Hastings and his
friends and associates in Muskogee would have reaped the
‘rich reward of success instead of the ashes of failure. ‘As
Lieber said (James R. p. 622):

‘‘But he’’ (Hastings) ‘‘got disgusted and left and left
the thing on your hands? A. Yes, sir, that is right.’’

Hastings said (James R. p. 536) that he was ‘‘discouraged
with my work’’.
Testifying in 1925, Lieber said (James R. p.-775) :

‘*Milo Hastings was an eccentric sort of a fellow and
became disgusted with the mess in which he had got-
ten the business of the hatchery in. He finally left,
turned it over to me, and told me to do the best I could

with it.’’
Smenanepeey ome ent RS eee pene wee - een

47

Lieber was so disgusted and discouraged with the whole
incubator business as a result of this experience that he
never used or operated another one. As he said (James
R. p. 631):

**Q. You used an incubator? A. No, sir, just bought
chicks; never used an incubator; one was enough, for

- me. ae |
Q. Your experience with the Hastings Incubator was
enough for you? A. Yes, sir, one was enough for me.”’

——

Hastings had every opportunity tp succeed. Lieber was
a wealthy man at that time and Hastings was given entire
charge of the building and operation of the incubator.
Muskogee was the center of a large poultry industry (James
R. p. 652), and Hastings was enthusiastically received by
the poultry men of the vicinity. He had the endorsement
of the influential ‘‘Poultry Culture’’ and the support of
the Poultry Department of the Kansas Agricultural Col-
lege. He associated wifh him an energetic publicity ex-.
- pert nanied Hickox, who spread the news of the Hastings
incubator in the scientific journals, periodicals and news-
papers of the country. Here then was the golden oppor-
tunity for Hastings if the construction and method of op-
- eration of his incubator were those which were productive
of successful commercial operation.

oe

Hastings and those who supported and patronized his
hatchery were doomed to a great disappointment (James
R. p. 649). Shortly after Hastings started. operations,
Shanafelt, a successful and outstanding poultry. man, took
200 eggs to the Hastings hatchery. They were a choice
breed, and! eggs from the same flock had hatched under
hens, but hie received not more than seven chicks in return |
(James R® p. 648). Cory, also an experienced breeder, took
down three lots of 100 eggs each and received no chickens
at all (James R. p. 645). Cory testified (p. 646):

-_

**T never got any results at all from the eggs which I
took to Mr. Hastings, not ‘a chicken.’’

Results from the same flock, hatched under other condi-
tions, averaged about 50%, and he had no complete fail-
ure except from the eggs he took to Hastings (James R.
p. 645). Ward, who was intimately associated with Hast-
ings and with whom Hastings discussed the failure of his
incubator (James R. p. 657), testified (R. p. 657):

‘*The reports I got concerning the Hastings’ hatches
were that the first hatches he got, he did not get over
from 5 to 20 per cent. of the fertile egg hatches. In
those days we counted fertile eggs to get a percentage,
which were candled afterwards. At first he got from
5 to 20 per cent. He remodeled the incubator. After
he remodeled it, he got better hatches, but at no time
did he ever get over a 50 per cent. hatch.’’

Ward also testified that poultrymen arcund Muskogee re-
fused to continue to patronize the Ha&tings hatchery be-
cause of the poor results secured (James R. p. 658).
Hastings pretended that he never knew Ward (James R.
p. 534).

In 1925, 8. J. Anderson, an experienced poultryman, tes-
tified that he took 150 to 200 eggs to Hastings’ incubator
in March, 1912, and received back five chicks. They were
fertile eggs and were hatching under hens (James R. p.
768).

Respondents placed L. W. Pitts on the stand who testi-
fied on direct examination that he did not remember the
percentage of ‘hatch but that he saw the incubator in oper-
ation. On cross examination it was brought out that in
testifying in 1925, this same witness had said that Hast-

. ings ‘‘didn’t have a very good hatch, and the chickens that
were hatched were rather weak’’, and that ‘‘the percen-
tage of chicks to the eggs was very low’’ (James R. p.
637), and on page 638 he reaffirmed this as his present
recollection.

— _
~ —

—

49

C. T. Brewer testified that he took eggs to the hatchery
and received some chicks but whether these chicks were
produced from the eggs which he took in, he had no means
of knowing. As Brewer testified ‘‘so far as my knowledge
is concerned, the chickens we got from Mr. Hastings might
have come front some eggs other than ours’’ (James R.
p. 641). It is admitted that Hastings was in the habit of
supplying customers with chicks hatched from. eggs re-
ceived from other sources. As Lieber said (James BR. p.
630): ‘‘People got back a lot of chicks from eggs they
never sent.’’ It is highly probable that whatever chicks
were received by Brewer weré hatched from eggs supplied
by some one else. Therefore, the number of chicks which
Brewer received means aes as to the _———- of

hatch.

Van D. Campbell, who was ele twenty yearmold at the
time, testified that his parents sent some eggs to Hastings’

hatchery but he had no knowledge of how many chicks
they received (James R. p. 642). His parents who were
living in Muskogee where the depositions were taken were
not called to the stand (James R. p. 644).

No records were produced to show the results of the Mus-
kogee operations though records and books were kept
(James R. p. 569).

Hastings admitted repeatedly that the results secured
were very disappointing. He said at page 575 of the James
record, ‘‘We had many disappointing hatches’’, and in
writing to the Patent Office on May 24, 1912, just after
the Muskogee experience, Hastings said, as noted above, —
that he had conducted ‘‘a painstaking and very costly series
of experiments’’. In the article appearing in the ‘‘ Boston
Sunday Globe’’ of November 10, 1912, Hastings said, refer-
‘ ring to his Muskogee and Brooklyn incubators, that he was
‘*finding out other ways to better the hatching results of
the cruder machines’’ (James R. p. 575).

In the Canadian suit Hastings testified:

50

‘‘The hatching records as a whole for that plant were
not high and there were many individual cases of very
poor results. I should judge that the hatching record
of the whole would run around 40 per cent.’’ (Appen-
dix, p. xxxv). |

_ Finally, we have the admissions of Hastings and Lieber
that the results secured were very erratic. Hastings said
(James R. p. 519) that the results were ‘‘highly variable’’,
and Lieber testified (James R. p. 607) ‘‘it ran from nothing
in some cases to as high as 75 and 80% in other. cases’’. This
unreliability in operation is ample indication that there
_was something radically wrong. No machine with the vari-
ation of results testified to by Lieber and Hastings can be
said to be an operative success or even to have emerged
from the stage of experimentation.

Excuses Orrerep ror THE Muskooee FaILure.

Many excuses are offered for Hastings, but if the incu-
bator had been an operative success no excuses would have
been necessary.

One exeuse is that the eggs brought into Hastings’ plant
were of poor quality and that is the reason they did not
‘hatch. On the contrary, however, each of his dissatisfied
customers was an experiénced poultryman and had normal
success with the same eggs in the old fashioned way. An-
other excuse for the failure of ‘the Hastings incubator is
that it was a financial failure due to the fact that Hastings
charged only one cent for hatching an egg and that price _
-was too low, but Hastings testified that he purchased for
their own production thousands of eggs of good hatching
quality from other sources throughout the season (James
R. p. 519), and Lieber testified that Hastings was hatching
his own eggs at the same time that he was doing hatching
for others (‘‘custom hatching’’) (James R. p. 623). There-
fore, the one-cent rate does not excuse very much in any

a — ed TOPE OR ee

51

event and no reason has been advanced as to why that rate
could not have been raised.

In writing in the ‘‘Boston Sunday Globe’’ in November,.
1912, Hastings ascribed. his failure to the weather (James
R. p. 575).

Respondents have also.urged that the fan installed in the
Hastings hatchery was insufficient in volume. When Hast-
ings. built the incubator he installed a fan which he secured
from a moving picture theatre which Lieber owned.. -This
fan was admitted to have been a failure (James-R. p. 516;
561) and the disastrous hatches were attributed to it. The
claim is made that when it developed that the first fan was ~
a failure, Lieber purchased a new blower type fan from the
American Blower Company of Detroit, Michigan, and this
fan was substituted-for the inadequate ventilation fan. The
record lacks any documentary proof of the purchase or
delivery of this fan, nor is any excuse offered for the failure
- to substantiate this testimony. None of Hastings’ customers
ever saw the blower fan. The fan which is shown in the
photograph Exhibit 26 C (James R. p. 1126) and which
is reproduced in the ‘‘Electrical World’’ of July 6, 1912
(James R. p. 1120), referred to by the Court of Appeals, is
the open bladed ventilation fan which Hastings claimed
he used ‘‘before the main hatching work of the season
was under way’’ (James R. p. 517). However, this .pho-
tograph was taken at the same time as the photograph
Exhibit 26 D (Hickox, Jamés R. p. 597) and Hastings said
the latter was taken in the height of the hatching
season (James R. p. 526). Lieber, testifying for the
respondents, said that the new fan was purchased and
installed in January, 1912, ‘‘within three days after
he first started the incubator with eggs in it’’, and
before Hastings had completed any hatches in’ the
‘Machine (James R. p. 615). This contrariety of tes-
timony not only nullifies this excuse for the failure of
the hatches, but places Lieber and Hastings in direct con- .
tradiction. An electrician, Peabody, was called to testify

32

as to the installation of the blower fan, but he testified \
to an entirely different state of facts when he said (James
RB. p. 601) that the second fan was one which ‘‘we had fur-
nished to Judge Lieber some time previous’’, thus destroy-
ing the testimony of Lieber and Hastings that a new
blower fan was purchased from the American Blower Com-
pany and installed in the hatchery.

At the time of taking Lieber’s deposition, a blower fan
illustrated in the photographs (Exs. 22 B-F; James R. p.
1113-14) was exhibited at Hastain’s farm and was offered
in evidence @mthe blower fan concerning which Lieber and
Hastings testified. Thts ts not the fan. It is a spurious sub-
stitute. At three places in the James record and in testify-

_ ing in the Cooley case (p. 516, 537, 567, 663), Hastings
said the blower fan had an 8-inch outlet. Respondents at-
tempted to introduce these photographs without producing
the fan, and Lieber testified that he ‘‘thought it was an
8-inch fan’’ (James R. p. 614). It was only upon the in-
sistence of petitioner that the parties were conducted to the
fan itself (James R. p. 662). When measured, the fan had
@ 12-inch outlet and not an 8-inch outlet as repeatedly stated
by Hastings. In other words, the spurious fan produced by
Lieber was over twice as large as the fan which Hastings
testified was installed (James R. p. 663, 664). Respondents
have sought to belittle this serious discrepancy, but it is
plain from the record that the fan now offered is not a true ©
relic of the Muskogee incubator.

Finally, respondents. have sought to excuse the testi-
mony of the customers who had such discouraging results
from Hastings’ Hatchery by claiming that Hastings stole
their chickens (James R. p. 647).

Hastings’ Port O’Connor Hatchery.

In May, 1912, Hastings was in a ‘‘mess’’ (James R. p.
775). The dream of success and fortune to be made from

™~ —

— — . . i A iE snr ee

53

his ideas collapsed and he surveyed the ruin all around
him. He borrowed $100 from Lieber, and shook the dust
of Muskogee from his feet, wholly disgusted and defeated,
and never returned. Some eggs were still in the machine
but he left without caring to find out what happened to
them (James R. p. 570). He told Lieber to do the he
could and fled (James R. p. 775). When he started 2
the early part of the year, he had planned to double the
capacity at Muskogee; and the Kansas Agriculture College
had agreed to build an incubator there if the Muskogee
experiment proved to be a success (James R. p. 567). But
opportunities like these which had seemed to present such
glowing prospects earlier in the year had all been lost in the
failure of the Muskogee incubator and Hastings went to
Petaluma, California, looking for a job (James R. p. 581).

Receiving no encouragement at that poultry center, he
‘next appeared at Port O’Connor, Texas, whence emanated
the statement in the ‘‘Boston Sunday Globe’’ of November
10, 1912;

‘*At Port O’Connor with more experience and more
funds at his command, Mr. Hastings has far excelled his
previous efforts and has here completed and begun op-
erating what is unquestionably the greatest hatchery
ever built’’ (James R. p. 574).

- At Port O’Connor, Hastings built a new incubator with -
150,000. egg capacity and differing in construction from
both the Muskogee and Brooklyn plants, but this incubator
was never operated beyond placing one batch of 720 eggs
in it (James R. p. 573). That was all that was ever done
at Port O’Connor. After this one hatch, Hastings fled
again, and, except for the brief sojourn with the Hall Incu-
bator Co., this marked the end of his experimental work
until long after Smith perfected his process, received his
patent and was operating a highly profitable incubator en-
terprise at Cleveland, Ohio.

a — = s

54

However, and illustrating the unreliability of the Hast-
ings publicity, his admitted failure did not prevent him
from spreading false statements and claims.of remark-
able success. An article entitled ‘‘Hatching Chickens by
Wholesale’’ appeared in the ‘‘Technical World’’ of April,
1913, in whick the Port O’Connor plant is represented as
& going concern with 150,000 egg capacity, with compart-
ments holding 10,000 eggs, and capable of ‘‘turning out a
chicken every twelve seconds’’ (James R. p. 573).

Hastings’ Subsequent History.

Hastings next connected himself with the established
Hall Incubator Company, for which he designed a still dif-
ferent incubator. This, too, was a failure (James R. p.
575, 576) and he left that company.

In 1917 or 1918, he was called to Tiffin, Ohio, at the

instance of a poultryman named Hoppel, but on his way
stopped off in Cleveland to see Dr. Smith whe was then
in full operation in his own plant and had started the
‘Buckeye Company in the manufacture of the successful
Buckeye Incubator using the Smith principles. His object
was to secure employment from the successful inventor
but he failed (James R. p. 576).

He then went on to Tiffin and after having learned how
the Smith incubator operatetl from his employer, he there
built a hatchery in which he ‘‘tried out a method of hatch-

' ing very much more like the Smith Buckeye devices than I
had used in the past’’ (James R. p. 577). Again, at the
Hoppel plant, Hastings spread himself in print, writing the

' article entitled ‘‘Hastings’ Mechanical Draft Chick Hatch-
ery”’ which appeared in the ‘‘ Reliable Poultry Journal’’ of
‘April, 1918 (Deft.’s Ex. 20, James R. p’ 1106-1109). In
this article Hastings lauds himeelf as the inventor of the
successful incubator. ‘

Even with the benefit of the knowledge he had acquired
from Smith, Hastings could not make g successful incu-

EERE — — —

55

Sd

bator, and after another. season ‘at it, he left and never
again engaged in the incubator business. From incubators
he turned to the literature of tabloid periodicals. Since
‘the complete failure of his series of experiments at the
several places named, his sole function in the incubator
field has been that.of.an itinerant witness, ready and will- °
ing at all times to testify at the behest of infringers of
the Smith patent. His career in this field is set forth at
page 54 of the Hall record and he said it had proven to be
a much more: profitabie one.

POINT II.

gy in the Hastings abandoned application as filed,
the subsequent amendments thereto - meted
: died the Smith invention. |

Hastings filed his application for patent in May, 1911,
after the partially filled Davis incubator had been given
a brief trial. The application (James R. p. 731) contains a
full disclosure of Hastings’ idea that ‘‘the problems of re-
frigeration and the problems of incubation were very sim-
ilar, in fact we might say identical’’ (Hastings, James R.
p. 540). Hastings admitted (James R. p. 541) that his
‘‘invention’’ did not go beyond the adaptation of the cold
storage process to incubation and that he finally abandoned
the application when the Patent Office held that such a con-
ception was not patentable. Hastings did not understand
heat development in a large mass of eggs, nor the impor-
tance of balancing endothermic and exothermic eggs, since
otherwise he would have mentioned them in the application.
Nor did he realize the necessity for vigorous current move-
ment of air through the eggs, since otherwise he would not
have shown fabric partitions above and below the egg cham-
ber through which the air had to filter to and from the
chamber and which were effective obstructions to air
movement.

‘56

The application was promptly rejected. On June 19,
1911, Haatings presented an argument for allowance based
solely on the substitution of a fan-impelled circulation of
air rather than natural draft (James R. p. 736). He was
again and finally rejected August 14, 1911. He then ap-
pointed the firm of Chureh & Church as his attorneys

. (James R. p. 740-741). On May 24, 1912, these attorneys

filed a new claim (James R. p. 743). With this claim was
presented an argument in which appears the first reference
to the varying temperatures of eggs during the process of
hatching.

This communication to the Patent Office followed Hast-
ings’ disastrous experiences at Muskogee. It is probable
from this sequence of events that it was through his expe-
riences at Muskogee that Hastings learned that heat gen-

. erated within eggs makes mass incubation a vastly differ-

ent problem from the preservation of inanimate foodstuffs
in cold storage. aia

Hastings’ attorneys wrote that he believed the heat char-
acteristics of the eggs ‘‘to be one of the principal reasons
why, up to the present time’’ (May 24, 1912) ‘‘hatcheries
of large capacity have proven to. be practical failures’’
(James R. p. 744). This appears to be a reference to
Hastings’ own abortive efforts, particularly as in the fol-
lowing sentence he said he had ‘‘by a painstaking and very

costly seties of experiments’’ discovered the reason for this

failure. But he had no other remedy to offer than me-
chanically forced circulation of air. There is no sugges-
tion in this entire argument that setting in staged incuba-
tion was a necessary or desirable step toward the solution
of the problem and the rate of air movement indicated is
far below that which experience has shown is essential to
successful operation.

The application was appealed to the Board of Appeals
of the Patent Office, and on December 20, 1912, after the
abortive attempt at Port O’Connor, Texas, a brief was
filed. In this brief Hastings’ attorneys commented at

oo

«
a Se ee a A et ery : "s we wa’

57

greater length on the difficulties arising from the heat de-
velopment in the eggs. But this discussion must be viewed
in the light of what Hastings had done, because an aban-
doned application can be used only to ‘‘clarify the character
of a claimed prior use’’, a principle which the Court of
Appeals stated (Hall R. p. 242) but failed to apply.

A serious error of the Court of Appeals was in viewing
this file wrapper argument in the light of what Smith did,
and, knowing what Smith did, reading his process into the
argument.

It will be recalled that at Muskogee Hastings built a
seven-compartment incubator with the eggs in a different
stage of advancement in each compartment, each setting
being moved to a new compartment every third day. A
single fan propelled air to all the compartments but each
compartment had its individual damper which could be
positioned to regulate the freedom of entrance of air into
the compartment and thereby maintain the different tem-
peratures in the several compartments at the points desired.
This is not staged incubation, and it is not the invention of
the Smith patent. It is a procedure which has never been
used successfully by any one so far as the record shows.

This Muskogee procedure is what is referred to in the
brief in the file wrapper of the Hastings application.
Neither the specification of the Hastings application, nor
the drawing of that application, nor the brief referred to
by the Court of Appeals, nor any other document connected
with the application contains that essential of the Smith in-
vention commonly referred to as ‘‘staged incubation’’. The
distinctive requisite of staged incubation as practiced by
Smith is that eggs in various stages of incubation are sub-
jected to the same body of air, moving in repeated cycles
over all the eggs and thus maintained at the same tempera-
ture throughout the entire process. In accordance with
the unsuccessful Muskogee operation, however, there were
eggs in seven different stages of incubation, in seven differ-

| ent chambers or compartments, and receiving seven differ-

.)

ent currents of air which maintained seven different tem-
peratures in the seven compartments.

The opinion of the Court of Appeals contains nothing
indicating that the Court understeed what was the actual
method oi operation of the Muskogve incubator as de-
veloped in the testimony of Lieber and shown by the
contemporaneous Hastings’ publications, to which we have
referred. Instead, the brief filed in com: ection with the
Hastings application appears-to have been read by the
Court with the Smith invention in mind, whereas it should.
have been read with the Muskogee operation in mind, for |
it was written in Hastings’ behalf shortly after the con-

- elusion of the Muskogee effort. When the brief is read
as it should be, keeping in mind the’ knowledge available
at the date when it was written and without aid from
the subsequent invention of Smith and the successful utili-
zation of that invention, it becomes apparent that the brief
does not refer to what has since become known as ‘‘staged ~
incubation.’’ Instead, the reference throughout-is to such
a procedure as that practiced by Hastings at Muskogee
involving the use of several compartments, each containing
eggs in some one stage of incubation, and separately reg-
ulable dampers for each compartment whereby its temper- _
ature may be adjusted independently of all of the others
to maintain therein a temperature different from those
.in the others. That is not the staged incubation of the
Smith patent. It is for that reason that the Hastings
application, with or without the brief filed in connection
with it, contains no disclosure of this essenflal of the

- Smith invention. 4

Nor does the application, with or without the brief or
any other paper filed in connection with it, disclose another
of the essentials of the Smith invention referred to in
claim 1 as maintaining in the egg compartment of the
incubator a movement of air

eal aaa oe cL le een eam een ore ITSM Te —

59

‘fof sufficient velocity to circulate, diffuse and main-

tain the air throughout the chamber at substantially -
the same temperature, whereby the air will be vital-

ized, the moisture conserved and the units of heat will |
be carried from the eggs in the more advanced stage

of incubation to those in a less advanced stage.’’

The Hastings application is entirely indefinite as to the
volume and velocity of the air movement within the incu-
bator. It illustrates and describes an incubating chamber
having a fabric covering at its top and bottom through
which the air impelled by the fan is said to flow. Any
such fabric covering would so impede the air flow as
greatly to restrict its rate of movement (supra, p. 25, 26
and. James R. p. 551, 552).. No data was supplied by
Hastings or any other witness as to the rate of air
movement in either the Davis incubator at Brooklyn or
the incubator installed at Muskogee. It may well be
that one of the elements contributing to the failure of
the Davis incubator was the suppression of the air move-
ment by. these fabric coverings. At Muskogee there were
wooden partitions where these fabric coverings were in
the Davis incubator and these wooden partitions had
openings in them with dampers to regulate their size.
So far as the record evidence goes, these dampers may
have been so’regulated as to make the rate of air move-
ment substantially the same as that which occurred in the

- Davis incubator, and therefore one-pf the elements which
contributed to the failure of the Muskogee incubator may
have been this same lack of sufficient air flow.

The brief filed in connection with the Hastings applica-
tion, referred to and quoted from in the Court of Appeals’
opinion, supplies one item of more definite information on
this particular point than is to be found elsewhere in the
record. In this brief it is stated that the rate of flow
of air through the egg chamber is 30 feet a minute (James

60

R. p. 756). This speed of 30 feet a minute or 1,800 feet
an hour, or one-third of a mile per hour, is an exceedingly
low speed. It is about one tenth of the speed at which
a man normally walks. A movement of air at that rate
would hardly be perceptible, would not overcome con-
vection currents, and could not persist in current form
through the eggs. That air movement is of such an
entirely different order from the speeds which have been
employed in the incubators which have attained commer-
cial success as to justify the view that, with such a low
speed of air flow, successful operation Would be precluded
no matter what was the construction of the incubator and
no matter what was the method of operation in other re-
spects. The records of these cases show that successful
commercial mass incubation cannot be practiced with a
speed of air movement of the general order of 30 feet
per minute.

The record evidence on this matter of speed of air
movement is that in the Smith and James incubators the
average speed of movement of the air through the egg
chambers is 135 feet to 142 feet per minute (James R. p.
474-5). In the Snow and Robbins (Waxham) incubators
where no guiding means are provided for the air currents,
the speed of movement of the air is approximately four
times greater than in the Smith incubator (Snow RB. :p.
110; Waxham R. p. 303). .

Thus, the summary of all this is that all that was done
by Hastings as evidenced by his Brooklyn incubator, his
Muskogee incubator and his application for patent with
all the documents relating to it, was characterized by
absence of two essentials of the Smith invention, namely, ©
staged incubation, and a sufficient velocity of the air cir-
culating through the egg chamber to accomplish the pur-
poses and funetions essential tajsuccessful mass incubation
as specified in claim 1 of the Smith patent.

a pane —

—

61

In the Davis installation there was no staged incubation,
and the fabric coverings of the top and bottom walls of
the egg chamber precluded air movement with sufficient
velocity. In the Muskogee incubator there was likewise
no staged incubation and no proof suggesting that the
rate of air movement was at all greater than that em-
ployed at Brooklyn.. In the patent application as filed
there is no disclosure of staged incubation, and the illus- .
tration includes just such fabric coverings as were em-
ployed at Brooklyn.

Considering the brief filed by Hastings’ attorneys as
supplementing the disclosure of his application, the dis-
closure thus supplemented remains unchanged except that,
as noted above, there is more specific statement that the
rate of air circulation is definitely low, altogether too low
to effect the desired purpose, and far lower than has ever
‘been found effective in practice.

The drawing of the application shows but one egg com-
partment whereas reference is made in this brief to several
egg compartments. This reference to several egg com-
partments must, therefore, have been reference to several
egg compartments employed as Hastings employed them
in the Muskogee installation where the arrangement of
the eggs was not that appropriate for.staged incubation,
and all of the statements in the brief are consistent with
that assumption. oe
_ Giving to the statements in the brief about the arrange-
ment of the eggs in the several chambers any other inter-
pretation involves applying to them the later acquired
knowledge contributed to the art of incubation by Smith,
and that is precisely what should not be done. Those
statements should be read in the light of the knowledge
then existing, that knowledge which left the art of mass
incubation with an unsolved problem which workers in the
art strove for years to solve before the real solution wae
ultimately attained by Smith.

62

Tae Hastinos ApPucation Can Be Usep On ty To
Cornroporats OrHEer TESTIMONY OF THE Prior Uszs.

After the filing of the brief, the Hastings application
was rejected by the Board of Examiners in Chief, and
the application was then abandoned.

It is well settled that an abandoned application for pat-
ent cannot be used to anticipate a later issued patent.
This principle of patent law was stated by this Court in
the Corn-Planter Patent, 23 Wall. 181, where it was said
(p. 210-211);

‘*Were it not for the application for a patent it
would justly be regarded as an.abandoned experiment,
incapable of being set up against any, other claim.
Can the fact that such an application was made and
afterwards voluntarily withdrawn, and never renewed,
maké’ any difference? We think not. Had a patent
been actually zranted to Remy & Kelly, it would have
been different. The case would then have come di-
rectly within the seventh section of the act of 1836,
which makes a ‘patent’ or a ‘description in a printed
publication’ of the invention claimed, a bar to a fur-
ther patent therefor. But a mere application for a
patent is not mentioned as such a bar. It can only
have a bearing on the question of prior invention or .
discovery. If upon the whole of the evidence tt ap-.
pears that the alleged prior invention or discovery
was only an experiment and was never perfected or
brought into actual use, but was abandoned and never
revived by the alleged inventor, the mere fact of hav-
ing unsuccessfully applied for a patent therefor, can-
not take the case out of the category of unsuccessful
experiments.”

The only bearing which this application can have upon
the Hastings alleged prior use or prior invention is in sub-

stantiating (if it does) the testimony of witnesses as to |

63
operations of the Hastings installations carried on contem-
/oraneously with the several communications to the Patent
Office (see U. 8S. Blind Stitch v.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0179%3A03. Public record. Not legal advice.