H. C. Baxter & Bro. v. Great Atlantic & Pacific Tea Co. (236 F. Supp. 601, 1964)

GIGNOUX, District Judge.

This is an action for infringement of United States Letters Patent No. 2,498,-024, entitled “Prefrying Treatment of Potatoes,” issued on February 21, 1950, to John L. Baxter of Brunswick, Maine, upon application Serial No. 689,205 filed on August 8, 1946. The action was instituted on December 26, 1962, by the then owner of the patent, H. C. Baxter & Bro. Subsequently, on January 7, 1963, H. C. Baxter & Bro. assigned to General Foods Corporation an undivided 13% interest in the patent, and on February 14, 1964, General Foods was joined as a party plaintiff. Plaintiffs rely only upon claims 1, 6 and 7 of the patent. In its answer, defendant asserts the customary defenses of invalidity and non-infringement. Defendant also counterclaims for a declaratory judgment that the patent is invalid and not infringed by it, and for a reasonable attorneys’ fee and its costs. Plaintiffs seek an accounting, and both parties request appropriate injunctive relief.

As described in the patent specifications, the claimed invention “relates to the treatment of raw or cooked potato particles and particularly to such particles in ’the form of strips for French frying, in order to secure a desired and substantially uniform change in their color when they have been suitably cooked by frying.” (Pat. Col. 1, lines 1-6). The specifications recite that in the frying of potatoes on a commercial basis, it is important that they be suitably browned when fried; and whether suitable browning can be attained depends on their sugar content. (Pat. Col. 1, lines 7-11). Where the sugar content of the potatoes is low, as is the case when the potatoes are freshly dug, the potato particles do not change color sufficiently when cooked by frying. On the other hand, if the sugar content of the potatoes is high, the particles when suitably fried are too dark because of the caramelization of the sugar. (Pat. Col. 1, lines 12-26). While the sugar content of potatoes may be governed to some extent through a control of storage temperatures, the expense of controlling storage conditions is substantial.