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July 27, 1938


The opinion of the court was delivered by: KIRKPATRICK

This is a suit in equity for patent infringement and involves a group of four patents, three of which have to do with the processing of materials, and the fourth with packaging materials in a plastic state. They are, in the order dealt with in this opinion, No. 1,783,864, December 2, 1930, to Vogt; No. 1,783,867, December 2, 1930, to Vogt; No. 1,972,253, September 4, 1934, to Vogt; and No. 1,881,106, October 4, 1932, to Vogt and Wymond. They have special application to the manufacture of ice cream, and the alleged infringement is in that field. Some of the claims in suit are for process and some for apparatus.

The two plaintiffs are, respectively, the owner of the patent and a corporation holding an exclusive license, limited to ice cream manufacturing. They will be referred to collectively as "the plaintiff." The record defendant is a user. The real defendant is Creamery Package Manufacturing Company, the manufacturer of the freezers (but not the can filler) used.

 Patent No. 1,783,864.

 This is the most important of the patents in suit and covers, generally, the process alleged to be infringed. It contains 53 claims, of which 25 are for process and the remainder for apparatus. Two of the process claims (claims 3 and 5) are in suit. They are as follows (arranged):

 Claim 3:

 The process of trating a material consisting: (1) In continuously passing the same through a processing chamber; (2) mixing therewith a gaseous fluid; (3) agitating said material and fluid so as to cause the fluid to be enveloped in the said material; (4) maintaining said material and fluid under greater than atmospheric pressure during the mixing thereof; (5) and discharging the treated material at atmospheric pressure whereby the fluid mixed with the material will expand to larger volume.

 Claim 5:

 A method of processing material including: (1) Continuously passing a stream of material through a processing chamber; (2) altering the temperature thereof during said passage; (3) positively forcing a quantity of fluid into said material before the temperature thereof has become substantially changed; (4) and adjustably controlling the quantity of said fluid to maintain a desired quantity ratio between said material and said fluid.

 As applied to ice cream manufacture, the "gaseous fluid" referred to in the claims is air, the "material" is ice cream mix, and the "processing" or "altering the temperature" is freezing.

 As a matter of fact, neither of these claims nor any other claim of the patent are in terms restricted to the manufacture of ice cream, and licenses have been granted under the patent for the manufacture of lard substitutes. It is, however, true that the two claims in suit, if given the meaning which the plaintiff assigns to them, would be of little if any value in the manufacture of anything but ice cream. This fact of course would not prevent a prior patent for processing lard from anticipating, but it has a bearing when it comes to construing the claims as against such prior processes.

 Both claims in suit call for a continuous process. This is a departure from the batch method, now generally and hitherto almost universally used by commercial manufacturers of ice cream, by which the freezer is filled with mix, emptied or nearly emptied after the freezing takes place, and then refilled. Concededly, there were many types of continuous freezers known to the art before these patents; the continuous feature is not urged as part of the invention, and need only be considered so far as it limits the other elements of the combination.

 At this point it may be well to say something about the general development of the are at the time this patent was granted. It does not seem to me that one can broadly accept the view which the plaintiff's argument suggests -- that this is a case in which further progress in ice cream manufacturing had practically been halted by fundamental difficulties. It was a big, successful industry, and the large commercial plants were turning out a product which had been brought up to a very high degree of excellence. Its problems in, say 1929, are best stated in the comparative.

 The increased production possible under a continuous process was not a particularly important matter. I saw batch freezers at work, and they seemed to be about as close to a continuous operation as any non-continuous process can be. The saving of time, floor space and man-power accomplished by the continuous machines has not been greatly stressed by the plaintiff. Control of the amount of overrun (See Note 1) was very accurate and a uniform product was generally obtained, though the necessity of making frequent tests by weighing small cups of ice cream drawn directly from the freezer while in operation was an inconvenience. This, however, is still done in many plants with the plaintiff's freezers, though at longer intervals.

 What was generally desired was an even smoother product, a more nearly automatic control of the amount of overrun, and the ability to turn out a stiffer product without having to sacrifice a high overrun.

 This last point deserves some attention. It is a fact that in order to get the desired high overrun, the product had generally been discharged at a temperature below but close to the freezing point and then taken to cold rooms for further hardening. Protracting the freezing process in this way, the plaintiff contends, resulted in the formation of larger ice crystals, and consequently the ice cream was not likely to be as smooth as if frozen quickly and discharged very cold. There may be something in this, but certainly, as has been stated, the usual commercial product was very smooth indeed, and it takes a rather expert taster to tell the difference. There is such a thing as getting ice cream too smooth (like salve or grease), and there is evidence of complaints from customers and manufacturers on that score. A definite advantage of turning out stiffer ice cream was that packages could be filled directly from the freezers, thus saving some time and labor and facilitating making bricks of mixed flavors.

 The foregoing is a very rough statement of what the plaintiff calls the "Vogt principle" and must be sought mainly in the plaintiff's testimony and arguments. It is not easy to find it in the patent itself, although I am willing to accept the plaintiff's contention that it is there. For all that, one can not read the specification without getting the idea that the patentee felt that the most important object of the patent was to get a smoother ice cream, and that the most important step of the process by which he got it was passing the mix rapidly through a long, narrow freezing chamber or tube in a thin layer, so as to have a large heat transfer surface acting continuously upon a small body of material. (See claims 20, 21, and 44 to 53, inclusive.) The claims in suit do not include this element. Nowhere in any of the claims nor in the specifications does the patent address itself expressly to obtaining a stiffer product without sacrificing overrun, and it apparently entirely ignores the temperature-overrun relationship.

 However, it is well established that the mere failure of a patentee to realize all the possibilities of his invention is not fatal. Westmoreland Specialty Co. v. Hogan, 3 Cir., 167 F. 327; Crozier-Straub, Inc., v. Graham, 3 Cir., 28 F.2d 321; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 31 S. Ct. 444, 55 L. Ed. 527. Therefore, whether Vogt (or, for that matter, Meisenhelter or Light or any of the earlier inventors) knew anything about temperature-overrun relationship is immaterial if they devised a process which, by the use of pressure and forced mixing of air and material, turned out a stiff product with a high overrun.

 Claim 3 may be dismissed very briefly. The reasons for holding it invalid will probably be amplified in the discussion of claim 5, and it need be said here only that, in my judgment, it is fully anticipated by the Meisenhelter patent (1,113,807) and the related prior uses. In spite of the strongly pressed arguments of counsel, I am unable to see that, as applied to the ice cream field, it is anything less than a broad general claim for the process of manufacturing ice cream continuously under superatmospheric pressure in the freezing chamber. It takes too much imagination to follow the plaintiff's argument that the last step, "discharging the treated material at atmospheric pressure, whereby the fluid mixed with the material will expand to larger volume," implies what the plaintiff contends is the essence of the patent -- namely the incorporation of all of the air in the mix so that the product will contain a predetermined quantity of air. If the pressure during the mixing is sufficient to incorporate some of the air in the mix during the stirring and beating in the freezer, and the whole freezing chamber is under superatmospheric pressure, it seems to me that there is bound to be expansion somewhere along the line as the product is discharged into the atmosphere.

 Nor can I accept the defendant's argument that this must mean that the process calls for a sudden expansion or puffing up at the point of discharge. The claim says in effect, "When you discharge it at atmospheric pressure the material will expand." That part of it is really not a step in the process. The discharge at atmospheric pressure is what is claimed as a step, and if it takes place at a series of points along a withdrawal conduit until the product ultimately reaches atmospheric pressure it really adds very little, because every pressure process must ultimately get its product back to atmospheric pressure. Of course, if it means discharge from the end of the freezing chamber directly into atmospheric pressure that would end ...

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