46 F.2d 965 | 6th Cir. | 1931
In 1924 the appellants, Buckeye Incubator Company and Samuel B. Smith, sued the appellee, Boling, in the United States Dis
It is conceded by the appellants that the Indiana decree protects Boling and his customers against further suits for the use of machines substantially identical with the machine that was held not to infringe by the Indiana court, and further, that the injunction in the present ease was rightly issued if the incubators sold by Boling and involved in the three District Court eases did not embody substantial changes in the Indiana incubator in the direction of infringement. Kessler v. Eldred, 206 U. S. 285, 27 S. Ct. 611, 51 L. Ed. 1065; Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 37 S. Ct. 506, 61 L. Ed. 1148.
The Smith patent has been the subject of much litigation.
The closed corridor in Smith, operating with other features of the device, was thought by this court in the Petersime Case to have the effect of producing a defined current of air. Whether such a current was formed in the Indiana structure or there was merely an agitation of the air are questions that were not necessarily determined in the Indiana case, for there was the further difference between the two methods there involved, that in Smith the warmed current of fresh áir first contacted with the eggs in the more advanced stage of incubation, whereas in the Indiana structure, if there was such a current, it contacted first with the eggs less advanced in incubation.
This latter difference, as well as the difference in the direction of the current, if there was a current in the Indiana device, are ’ quite obviously embodied in the later Boling devices. There has been, however, such a change in the corridor of these later devices as might well be thought to assist in forming a defined current or cycle that did not exist under the Indiana method. Such change is necessarily in the direction of infringement upon one possible basis of the decision by the Indiana court. Whether infringement is avoided in the present devices by the lack of a sufficiently well-defined current or cycle of air, or by the direction in which the air is propelled, or by the fact that the heated air first contacts the eggs in the less advanced stages of incubation, we expressly refrain from deciding. Those are questions to be determined by the courts in which the cases are pending. It is sufficient
The decree is reversed, and the cause remanded for a dismissal of the bill.
Buckeye Incubator Co. v. Wolf, 291 F. 253 (D. C.); Wolf v. Buckeye Incubator Co. (C. C. A. 6) 296 F. 680; Buckeye Incubator Co. v, Cooley (2 C. C. A.) 17 F.(2d) 453; Buckeye Incubator Co. v. Blum, 17 F.(2d) 456 (D. C.); Buckeye Incubator Co. v. Petersime (6 C. C. A.) 19 F.(2d) 721; Buckeye Incubator Co. v. Hillpot (3 C. C. A.) 24 F.(2d) 341; and Buckeye Incubator Co. v. Blum (6 C. C. A.) 27 F.(2d) 333.