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June 12, 1936


The opinion of the court was delivered by: GALSTON

GALSTON, District Judge.

This is a patent suit involving letters patent No. 1,429,207, issued September 12, 1922, to Koppelman & Cooper, on an application filed July 17, 1922, for an improvement in packing for fragile articles; also patent No. 1,445,780 to L. Mann et al., issued February 20, 1923, on an application filed July 18, 1922, for an improvement in packing for eggs and other fragile articles.

Claims 1, 3, 4, 8, 9, and 10 of the former patent and claims 1, 2, and 6 of the latter are in issue.

 The patent to Koppelman & Cooper was the subject of litigation in Holed-Tite Packing, Inc., v. Mapes et al. (D.C.) 11 F.2d 787, and claims 1 to 6, inclusive, and 8 to 10, inclusive, were held valid and infringed.

 In the Koppelman & Cooper patent the inventors state that prior to the filing of their application it had been proposed to make packing units having holders projecting from a "flat" by taking a sheet of drawing board, heavy paper, or the like and stamping or rolling it so as to produce the projecting holders. It is asserted that none of those devices was ever successfully used and none brought to have any practical or commercial value. Apparently the reasons for failure resided in the material employed, for the inventors state:

 "One reason for this is that even if the paper or board is thoroughly saturated with water or other liquid, and then formed by flat dies or rolls, or otherwise, the fibres having once been set -- in the original making -- in certain positions and relations will always have a tendency to return thereto, and to deform the unit and the parts thereof, and to reduce its strength to such an extent that it will not do its work properly. Another reason is found in the fact that in forming the projecting members from such a sheet of material the area is necessarily very greatly increased, and the fibres stretched and torn, even where openings are made in the material and the displacement of the opening utilized in forming the projections. The result is that the holders are weak and badly formed and will not hold their shape or resist the shocks and strains of use. If board of sufficient thickness were used to permit the formation of holders thereon without rupturing or unduly weakening the material, the objection first noted would still be present, and the weight of the board and its cost would be prohibitive."

 Additional grounds are cited for these failures in the prior art attributable to "the shape and proportions of the holding projections which give them a tendency to yield under ordinary strains and permit the eggs or other articles to become loose in their cells, and even permit the cells to move thereon and displace the eggs or cause them to break, through indirect contact with each other on opposite sides of cell walls or holders or otherwise."

 To overcome the failure in the prior art, attributable to the material employed, the inventors form their sheet or flat of wood pulp or cellulose or other loose fibrous material, the fibers being first placed in a liquid bath. The parts, it is said, may then be made by felting, as described in a then pending application of these inventors.

 To meet the failures arising from the shape and proportions of the flats of the prior art, the holders for the eggs or other articles are made substantially of conical form and simultaneously with the sheet, as described in letters patent to Morris Koppelman et al., No. 1,413,047, of April 18, 1922. The holders have a web or globe-like connecting and reinforcing portion extending over the space circumscribed by the edges of their upper openings, "the pitch or inclination of the outer walls of the holders being in the opposite direction of that of its inner walls, which, with the bottom portion, form the cup-like interior."

 The inventors claim that their holders are of such form and so constructed as to hold the eggs securely and to lock the cell walls or "fillers" against all lateral movement. This is accompished while they are held only "relatively rigid" with "a sufficient degree of elasticity to accommodate themselves to variations in the sizes of the eggs."

 None of the claims includes the method of producing the packing. The defenses to this patent are invalidity and noninfringement.

 Claim 1 may be taken as a typical claim. It reads:

 "A packing for eggs and other fragile globular articles, comprising a sheet having thereon a series of projecting holders each consisting of a round upstanding rim of substantially truncted conical form, an inwardly and downwardly inclined interior part extending to a point near the base of the said upstanding portion, and a central bottom portion, the downward inclination of the said inner portion being approximately tangential to the curve of the article to be placed therein, the space defined by the edge formed by the junction of the upstanding portion and the interior portion being of lesser diameter than the greatest diameter of said article and adapted to hold the latter by contact therewith between its middle and its bottom and the bottom part of the holder being normally below the said bottom of the article."

 In the defendant's structure, the form of the projecting holder differs from that defined in this claim as well as in the other claims in suit. It does not consist of a "round" upstanding rim of "substantially truncated, conical form." In the defendant's structure, there are no conical surfaces. On the contrary, most obviously plane surfaces intersect one another with a gap between the two groups of such intersecting planes at two opposite corners. While this difference in form might at first appear to be a deliberate attempt to avoid the terminology of the plaintiff's claims, actually a difference in function is effected. The defendant's holder supports the egg at a point about midway down along the side walls of the holder. Even plaintiff's expert in his diagramatical illustration of the defendant's structure shows the egg supported at a point a little more than half way down the side walls at a considerable distance ...

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