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NATIONAL POPSICLE CORP. v. HARVEY

April 26, 1934

NATIONAL POPSICLE CORPORATION et al.
v.
HARVEY et al.



The opinion of the court was delivered by: WELSH

The above-entitled cause having duly come on for trial at a stated term, to wit, the March term, 1934, of the United States District Court for the Eastern District of Pennsylvania, held at the courtroom thereof in the city and county of Philadelphia, state of Pennsylvania, on Monday, the 7th day of March, 1934, and succeeding days, before not for a premanent injunction, and the same having been tried before me, and all the parties hereto having duly presented proofs and evidence on all the issues involved therein and submitted to the court for consideration and decision:

This is a suit for a permanent injunction for the alleged infringement by defendants of: United States letters patent No. 1,505,592, granted August 19, 1924, to Frank W. Epperson, for "Frozen Confectionery," which is a process patent; United States letters patent No. 1,470,524, granted October 9, 1923, to Harry B. Burt, for "Process of Making Frozen Confections," which is a process patent; United States letters patent No. 1,718,997, granted July 2, 1929, to Harry B. Burt for "Frozen Confection," which is a product patent; United States letter patent No. 85,189, granted September 22, 1931, to Leonard B. Krick for "Design for a Confection," which is a design patent.

 The bill of complaint also charged the defendants with violation of seven United States registered trade-marks owned by the plaintiff the Popsicle Corporation of the United States: No. 177,230, registered December 11, 1923; No. 219,744, registered October 26, 1926; No. 274,276, registered August 26, 1930; No. 284,006, registered June 9, 1931; No. 288,393, registered October 27, 1931; No. 288,507, registered October 27, 1931; No. 288,575, registered November 3, 1931, of which the frozen confection sold under plaintiff's trade-mark "Popsicle" during the year 1931 amounted to approximately 225,000,000 confections of the plaintiff, and substantial portions of such sales were made in the Eastern District of Pennsylvania.

 The bill of complaint also charged the defendants with engaging in unfair business competition and using unfair trade practices.

 The testimony shows that, if the patents are valid, they were infringed by the defendants.

 The Epperson patent relates to the manufacture of frozen confections which have a frozen body portion formed of an edible liquid, flavoring matter, and sugar, which is subjected to intense refrigeration so as to form a confection homogeneous from end to end, and of such character that the flavoring matter and sugar may be sucked therefrom to leave a tasteless mass of snow or ice. The claims therefore disclose the process of preparing such a frozen confection by immersing the combined handle and sustaining member through substantially the entire height of the portable substance and subjecting the same to refrigeration, causing the confection to become solidified by congelation to the solid sustaining member extended thereinto.

 The Burt patents relate to a frozen confection which will stay on a stick until entirely consumed, by the application of refrigeration after the insertion of the stick, the frozen crystals of the confection extending into the pores of the stick from the body of the material so as to form an effective congelation bond.

 The defendants attempted to defend, alleging that: The prior art of Hinck, patent No. 1,312,325, teaches a handle member attached to an edible body substance. The prior art of Holden, patent No. 207,278, teaches handle members attached to ice blocks by congelation; in other words, adhesion by congelation. The prior art of the Eskimo pie (Nelson patent No. 1,404,539) teaches a body portion frozen by congelation and an edible protective covering therefor; and that the patents as claimed by the plaintiffs are invalid.

 It has been decided, however, that these three alleged prior art patents, the Hinck patent, No. 1,312,325 (the lollipop on a stick); The Holden patent, No. 207,278 (the large block of ice with a rope handle frozen therein); and the Nelson patent, No. 1,404,539 (Eskimo pie without a stick), did not read upon the patents in issue.

 In re Burt, 58 App. D.C. 7, 24 F.2d 273, the Court of Appeals stated:

 "To insert a stick in a small cake of frozen ice cream would break the cake apart, and if the cream was less hard the stick would not adhere sufficiently to permit handling. Of course, to be a success, the union between the stick and the frozen cream must be such as to permit the eating of the cream without breaking the union, and to make this result attractive to the public it must be accomplished without human hands touching the article in the process of manufacture. Finally, Mr. Burt hit upon the idea of freezing the stick in the ice cream; that is, by inserting the stick in the cream before freezing and then subjecting the mass to refrigeration. His experiments demonstrated that such a process created the desired union between the cream and the stick. The product was placed upon the market and has been a great success. * * *

 "It is one thing to insert a stick in a warm, soft, sticky substance, that by cooling will adhere thereto, and quite another thing to effect a strong union between a stick and a frozen substance."

 In the case of Popsicle Corporation of the United States v. Isadore Weiss (D.C.) 40 F.2d 301, Judge Bondy discussed the various claims, stating:

 "Burt provides a frozen confection which will stay on the stick until entirely consumed, by the application of refrigeration after the insertion of the stick, the frozen crystals of the confection extending into the pores of the stick from the body of the material so as to form an effective bond.

 "A method of uniting a frozen confection to a stick was unknown to the art of making frozen ...


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