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DIXIE VORTEX CO. v. LILY-TULIP CUP CORP.

May 26, 1937

DIXIE VORTEX CO.
v.
LILY-TULIP CUP CORPORATION



The opinion of the court was delivered by: GALSTON

GALSTON, District Judge.

This action relates to the alleged infringements of letters patent No. 1,766,420, issued to the Individual Drinking Cup Company, Inc., of Pennsylvania, on the application of Wessman and Stone, for a paper cup making machine; of letters patent Nos. 1,256,913 and 1,336,469, both issued to the Individual Drinking Cup Company, Inc., of New York, on the applications of L. W. Luellen, for cup containers or dispensing apparatus; of design patent No. 74,793 for a paper cup or similar article, issued to the Individual Drinking Cup Company, Inc., of Pennsylvania, on the application of Joseph Johnson; of trademark No. 301,390 for the name "Chily-Bear"; of copyright print No. 16,169; and alleges also unfair competition. Thus there are presented seven causes of action which will be discussed in the order indicated.

Wessman & Stone Patent,

 No. 1,766,420.

 This patent was issued June 24, 1930, for a paper cup making machine.There are fifty pages of specification and claims, and thirty-two sheets of drawings, but it was not found necessary in the presentation of the proofs to consider all of the detail disclosed. Of the 171 claims the following are in issue: Nos. 76, 77, 89, 101, 102, 104, 107, 108, 109, 110, 111, 114, 142, 143, 144, 147, 149, 150, 151, 152, 153, 154, 155, 156, 164, and 165.

 The paper cup for drinking purposes has been for over twenty years a commodity of recognized utility.With sanitary objective, its introduction was to displace tin or other metal cups used in public places, so as to provide cups for individual and single use. Increasing demand necessitated large production at a low cost.

 Two contrasting forms were known to the art; the flat envelope type, and the relatively rigid cylindrical form of cup. To facilitate a wide distribution for packages and shipment, as well as for ready delivery from dispensers, it was important to make the cylindrical cup of thin material.

 In carrying out this invention, Wessman and Stone designed a machine to produce a complete cup without previously cutting the blanks therefor. The specification states: "In other words, a machine which will take the rolls of paper from which the cups are to be formed and by continuous operation form a complete cup having a cylindrical body or wall portion and a bottom secured therein."

 This machine comprises means for supporting two rolls of paper, one adapted to be cut for forming the body portion, the other for forming the bottom of the cup. The machine makes use of revolving turrets. Three of these are provided. The cut body blanks are delivered to the first revolving turret which carries them into position beneath tapered forming mandrels, carried by the second revolving turret. Previous to positioning the body blank beneath the forming mandrel, one of the bottom blanks is to be drawn or formed over the end of the forming mandrel and is to be held thereon by suction.

 Mechanism is provided to position the body blank around the forming mandrel; the body blank is secured to the bottom blank by adhesive which has been applied to the body blank during the rotation of the first turret. The longitudinal edges of the body blank are held together by a line of adhesive also applied during the rotation of the first turret. Means are provided on the second turret "to strike the cup formed on the mandrel a sharp blow over the longitudinal line of adhesive so as to imbed the adhesive into the fibers of the paper to form a secure seal."

 The cup is brought into line with a mechanism for rolling the bottom edge of the body beneath the bottom blank and, as the second turret continues to revolve, it brings the forming mandrel containing the cup adjacent to the upper end of a chute which extends over female dies carried by the third revolving turret. The cup is then blown from the mandrel to one of the female forming dies of the third turret. Then the third turret, as it revolves, brings the cup in position beneath a male die member, the object of which is to flange or curl the upper edge of the cup. After this operation, further rotation of the third turret brings the cup in line beneath a chute, and the cup is again blown from the female die of this turret and discharged through the chute into a package or to a conveyor which carries the cups to a receptacle from which they may be removed.

 The inventors conclude their description of the machine and its operation with the following statement: "We wish to again lay particular stress on the fact that with a machine such as described a cup which is formed from a plurality of parts is manufactured from what may be termed raw material in the form of strips of paper the parts making up the cup being formed into the desired shape and then secured together by a continuous operation of the machine."

 The patent is attacked on many grounds, among others that the various instrumentalities for performing any and all of the operations required to make a two piece cup were well known in the art and that all of these instrumentalities were open to the defendant. It is urged that the patent in suit presents no real combination; that its claims should be interpreted as reciting but mere aggregations.

 The Wessman & Stone machine is of undoubted utility and, despite the fact that the defendant adduces a number of prior art patents, there is no one that anticipates the patent in suit.

 Defendant's expert Ray was asked:

 "XQ585. You wouldn't say that any one of those patents discloses a machine organized in the way in which the machine of the Wessman and Stone patent is organized? A. No, Wessman and Stone have arranged the various instrumentalities in a somewhat different manner from any other patent."

 However, infringement is vigorously denied. The defendant says its machine is assembled from the prior art and follows particularly the Cooley patent No. 1,199,160; and also is somwhat modeled on the Thompson patent No. 945,875, Luellen patent No. 1,273,891, Regan patent No. 187,388, Whitney patent No. 1,082,836, Luellen & Wessman patent No. 1,365,517, Carle patent No. 1,429,324, and J. M. Taylor patent No. 1,077,496.

 Granting that each and every element of the defendant's machine can be traced to these several patents, if the assemblage falls within any valid claim of the Stone & Wessman patent, under most elementary patent law the defendant cannot escape infringement.

 The claims in suit permit of a certain grouping. Claims 89, 101, 102, 104, 107-111, 114, 142, 143, 144, and 151 may thus be considered together. Claim 89 reads: "In a machine for making paper cups or the like, a mandrel, means for shaping a bottom on the mandrel, means for shaping a body on the mandrel around the shaped bottom and securing the same to the bottom, means for clamping the body on the mandrel, and means for curling the bottom edge of the body without effecting the previously shaped bottom."

 It is to be noted that this claim provides means for shaping a bottom blank on the mandrel. In the defendant's machine, as in the E. Z. Taylor patent, the bottom blank is formed independently of the mandrel and is, as thus formed, pushed into the complete body portion beyond the body forming station. This departure from the structure and operation of the plaintiff's machine avoids infringement.

 Similar limitations are found in claims 101, 102, 104, 107, 108, 109, 110, 111, 114, 142, 143, 144, and 151, and, therefore, these claims likewise are not infringed.

 I cannot agree, however, with the defendant's contention that claims 76 and 77 include the same limitation. In these claims reference is made to means for forming a body and means for forming and securing a body around the bottom. It would seem that the language is sufficiently broad to cover the instrumentalities employed by the defendant. It is true that in the defendant's machine the bottom is formed separately of the body and slides into position, but in terms at least the defendant's machine has "means for forming a bottom and means for forming and securing a body around the bottom." Whether the defendant's machine has "means for curling the bottom edge of the body without effecting the previously shaped bottom," within the meaning of the terminology and the fair intent of the specification, raises a matter which was discussed at great length at the trial. The defendant urged that it has not means for curling the bottom edge of the body; that what it does consists in bending the body edge against the bottom flange and then ironing out these associated parts into a three-ply structure. It is argued that such is not a "curling" operation. The distinction is tenuous, if indeed there is a distinction at all. Clearly, too, defendant's operation is carried out "without effecting the previously shaped bottom." Despite, therefore, the fact that the defendant's machine employs different instrumentalities for bending and ironing the associated edges, it does employ all the means broadly stated in these two claims. Accordingly, I think these claims are infringed.

 Claims 164 and 165 include means applying divergent lines of paste on the body blank to secure the edges thereof together and the bottom thereto. Claim 164 defines the mechanism as comprising a pair of adjacent paste applicators and means for actuating them without interference of one with the other. In claim 165, the one paste applicator is defined as engaging the blank prior to its presentation to the mandrel and means whereby the paste applicator will apply a line of paste on the blank in an arc concentric to the are of the lower edge of the blank.

 The mechanism for applying the glue is described on pages 10 and 11 of the patent. Lines or bands of glue are applied adjacent to the concave longitudinal edge of the blank and a transversally extending line or band is applied adjacent to one end of the blank.

 In the defendant's machine a printing ruler is used for the pasting or gluing operation. The lines of glue are at an angle to each other.

 The mechanism for applying the adhesive in the defendant's machine is substantially that described in the Cooley patent. There is no doubt that the defendant applies two paste lines to the body blank, but the mechanism for so doing is not that of the patent. I do not find that the defendant's structure includes "a pair of adjacent paste applicators" as set forth in claim 164.

 As to claim 165, provision is made for "means for treating the body blank, so that the bottom and body will be secured together, comprising a paste applicator adapted to engage the blank prior to its presentation to the mandrel and means whereby the paste applicator will apply a line of paste on the blank in an are concentric to the are of the lower edge of the blank which is to encompass the bottom."

 The defendant says it avoids infringement because the way in which it lays a line of glue was old in such patents as Marks, Ball, Davidson, and Swift. Undoubtedly, if the only matter in issue were whether the gluing operation defined in this claim was claimed as an invention by and of itself, there is sufficient in the prior art soundly to urge that no invention was involved. But what seems to be overlooked in the defendant's argument is that the means for performing the gluing operation are but part of the other means described in a machine for forming paper cups. The mere inclusion of an old element with other old elements does not of itself create doubt as to the validity of this claim. The claim is not anticipated and is valid, and is sufficiently broad in scope to include the defendant's machine.

 The clamping mechanism referred to in claim 147 is limited by the provision of "connecting means for relatively effecting the actuation of the clamping and turning mechanism." The relative movement referred to between the clamping and the curling mechanism is not employed by the defendant. Accordingly I find no infringement of claim 147.

 Claims 149 and 150 read as follows:

 "149. The combination of a cup supporting mandrel having an apertured portion, means for creating a jet of air through said apertured portion to assist in releasing a cup from the mandrel and blowing the same from the mandrel and other means for delivering a jet of air into the open end of the cup between the same and the mandrel to overcome any back or holding current of air working rearwardly between the mandrel and cup from said first mentioned jet.

 "150. The combination of a cup supporting mandrel having an apertured portion, means for creating a jet of air through said apertured portion to assist in releasing a cup from the mandrel and blowing the same from the mandrel, and means to overcome any back or holding current of air working rearwardly between the mandrel and the cup."

 The defendant's position in respect to infringement of these claims is not sound. There is no escape from the fact that the defendant in some of its machines made use of a supplemental air blast. It does not escape infringement by asserting that in its commercial machines no such supplemental air blast is used.

 But invalidity of these claims is asserted because of Palmer patent No. 1,312,570, and particularly figure 32 thereof. The Palmer patent provides a back or liner for a rigid pasteboard box. In figure 32 an air-jet is shown. This is controlled by a manually operated valve. The means disclosed are for taking the container away, not from the mandrel, but for removal after it has ...


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