Citations
- 168 F.2d 778
Full opinion text
PARKER, Circuit Judge.
This is an appeal by plaintiff in a patent infringement suit. Plaintiff is the owner of re-issue patent No. 22,221, covering an air conditioned tobacco curing barn, issued to one Reuben E. Mayo who was the holder of original patent No. 2,090,633 dealing with the same subject matter. Defendant C. L. Hardy is alleged to infringe the reissue patent by the operation of tobacco curing barns embodying the Mayo invention; and he and the other defendants are alleged to be guilty of contributory infringement in the manufacture and sale of tobacco curing equipment embodying the substance of the Mayo invention and sold for use in tobáceo curing bams in such way as to complete a combination constituting an infringement. Defendants deny that the re-issue patent involves patentable invention over the prior art and say, in addition, that it is invalid because not embodying the same invention as the origiinal patent, because of laches in making application for the re-issue and because’ its claims are said to be no more than claims that were abandoned in the course of the application for'the original patent. They deny infringement, also, contending that their device differs from that of plaintiff’s patent, which they say should be strictly construed and limited, and that the doctrine of contributory infringement cannot be predicated of their manufacture and sale of tobacco curing equipment. The District Judge held with defendants on these contentions and dismissed the suit.
Invention and Prior Art
For many years it has been customary to cure tobacco by hanging it in barns and then heating the barns. Until recent years the heating was accomplished by means of wood or coal fires in a chamber from which flues carried the hot gases of the fire to a chimney in the opposite end of the barn. The air within the barn was heated by the flues, and the heated air, rising through the tobacco, dried and cured it. Air was admitted through the walls of the barn near the floor, and, after being heated and passed through the tobacco, was allowed to escape through a ventilator in the roof. In the 1930s, as wood became scarce in the tobacco growing section of the Carolinas and Virginia, attempts were made to heat tobacco barns by the use of oil as a fuel; and the Mayo patent was directed to the use of oil for this purpose in the conventional type of tobacco barns. It unquestionably solved the problems presented in a way so satisfactory that it entered into immediate use and the manufacture of the heating devices of the patent enjoyed wide commercial success. Fifteen thousand of these devices were sold within the course of a few years for around a million and a half dollars.
The patent in suit is for a combination of the typical ventilated top tobacco barn, old in the art, with a heating device consisting of open flame oil burners covered by a hood, and with a pipe to deliver fresh air from outside the barn under the hood and over the open flame burners, so that it will be heated and mingle with the products