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Dixie-Vortex Co. v. Corporation.

March 7, 1938; As Modified on Denial of Reargument April 1, 1938.


Appeal from the District Court of the United States for the Eastern District of New York.

Author: Manton

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

This suit for infringement of the Wessman and Stone patent, No. 1,766,420, issued June 24, 1930, resulted in a decree holding 6 claims (76, 77, 149, 150, 156, 165), out of 26 sued on, valid and infringed; 20 were found either invalid or not infringed. The decree also held the Johnson design patent, No. 74,793, invalid; plaintiff's copyright K, No. 16,169, invalid; the registered trade-mark No. 301, 390 Chily Bear not infringed, and the defendant not guilty of unfair competition.

Defendant appeals from that part of the decree holding the 6 claims valid and infringed. This patent is for a machine making paper drinking cups. It contains thirty pages of specifications and 171 claims, 26 of which were in issue below. The manufacture of paper cups has been developed over a period of many years. The type involved in this litigation is a two-piece cup made consisting of a body blank and the bottom blank. The body blank is so shaped that, when its longitudinal edges are overlapped and united by a line of adhesive, the body will be conical. The bottom blank is a disc which is cupped so as to provide it with a flange standing at about right angles to the central round flat portion of the cup bottom.

In the production of such blanks by machinery, no problem was involved, as many patents of the prior art were available for a machinist to set up instrumentalities which would perform the successive operations to make the composite structure. What instrumentalities were selected for use necessarily depended upon the type of cup to be made. Plaintiff's cup was called the Dixie, with the flanged cup bottom so positioned that in the finished cup it will point in an upward direction toward the mouth of the cup. Mechanism for this construction includes a tapered mandrel, upon the smaller end of which a flanged cup bottom is formed and then held in place by suction until the blank of the cup body, provided with appropriate lines of glue, is wrapped around the mandrel and into contact with the flange of the cup bottom. Later the bottom edge of the cup body is rolled in, and this operation in plaintiff's machine must be so conducted as not to affect the bottom in order that the latter shall not be displaced and cause a leaky condition.

Defendant makes the Gem cup, which is structurally different and requires different instrumentalities for manufacture. In the mechanical construction of defendant's cups, the flanges of the bottom point downwardly and are brought into adhesive connection with the lower part of the body both on the inner and outer face of the flange against which the lower edge of the bottom is folded back and ironed in order to produce a taut condition in the cup bottom, to eliminate wrinkles in the cup flange, and to effect a secure adhesive connection both on the inside and outside of the bottom flange. Therefore, it requires a different type of machine to make defendant's cup.

The patented machine contemplates the formation of the flanged bottom directly upon and against the smaller end of a tapered mandrel, the flanged bottom being held upon the mandrel by air suction.

Defendant's cup bottoms are produced in a die independent of the mandrel. After the flanged bottom has been produced in its die, a plunger advances the formed bottom and deposits it for temporary storage in a recess within the interior of the mandrel where the flanged bottom rests idly until after the cup body has been formed on the outside surface of the mandrel. There is a complete independence in manufacturing the defendant's cup between the cup body and the previously formed cup bottom.

In the patented machine, the operation of forming the cup body around the mandrel involves and includes the application of the gummed edge portions of the body blanks against, upon and around the rearwardly extending flange in the previously formed cup bottom so that the act of forming the cup body on the mandrel is simultaneous with effecting the adhesive union between the cup body and the upstanding flange of the cup bottom. On the other hand, in the defendant's structure, the flanged bottom, after being produced independently of the mandrel, remains deposited within the storage recess in the mandrel so that it can in no wise participate in the formation of the cup during or in connection with the formation of the cup body as is essntial in the patented machine. After the body had been made and the mandrel carrying the previously formed cup body is brought to another station, the stored flange bottom is pushed out of its recess into contact, the flange extending forwardly, with the previously shaped body.

When in the plaintiff's machine the bottom is formed on the end of the mandrel and the body is secured to it simultaneously and by the same means which form the body, the cup structure as such is completed, but it is still essential that the relation between the cup body and the cup bottom shall in no way be disturbed. It becomes important, therefore, in the plaintiff's machine that the means relied upon for curling the bottom edge of the cup body should be such that they in no way affect the previously shaped bottom.

The claims (76, 77) here sued on, found in the margin*fn1, contemplated cylindrical cups as well as conical cups, but they call for nothing which describes any mechanical instrumentality and only a combination of means followed by functional phrases. No mandrel is mentioned, no mechanism for forming and securing the body around the bottom is referred to, nor what kind of means are mechanically required for curling the bottom edge of the body.

Similar cup products were made by the use of the Luellen patent, No. 1,273,891, of the prior art, consisting of a bottom and a body secured around the bottom, the bottom edge of the body being curled beneath the bottom without affecting the bottom. Mechanism appropriate for making cups of this type if shown in the expired patent No. 1, 365,517 to Luellen & Wessman. In this latter patent, disk bottoms are first made and stacked in a feeding tube so there are "means for forming a bottom." The bottom is placed against the end of a mandrel and then the conical cup body is placed upon the mandrel and around the bottom associated therewith, and thereupon the bottom edge of the body which projects beyond the bottom is curled over without affecting the shaped bottom where a complete cup is formed. Thus it is clear that claims 76 and 77 were anticipated by the old Luellen and Wessman patent.

Moreover, claims 76 and 77, requiring "means for forming and securing a body around the bottom," call for one means only and not for two independent functioning means. In plaintiff's patent the means which form the body are the same means which secure it around the bottom. In the defendant's structure, the means which form the body have nothing whatsoever to do with the means by which the bottom is subsequently and at a different station associated with the completely formed bottom. Thus defendant's ...

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