
    CONSOLIDATED PACKAGING MACHINERY CORPORATION v. GENERAL MILLS, Inc.
    Civil No. 66.
    District Court, D. Delaware.
    Dec. 12, 1940.
    Alexander C. Neave, John Vaughan Groner, and Robert B. Whittredge (of Fish, Richardson & Neave), all of New York City, and Herbert L. Cohen, of Wilmington, Del., for plaintiff.
    Arthur R. Wylie, of Minneapolis, Minn., Horace Dawson (of Dawson, Ooms & Booth), of Chicago, 111., and Ayres J. Stockly (of Hastings, Stockly & Layton), of Wilmington, Del., for defendant.
   NIELDS, District Judge.

This is a suit under the Declaratory Judgments Act, 28 U.S.C.A. § 400, to have defendant’s patents declared void. Those patents are Anderson No. 1,772,824; Anderson No. 1,984,049; and Anderson No. 2,083,417. In its answer defendant, by way of counterclaim, alleges that plaintiff has infringed the exclusive rights of defendant in each of these patents.

■ Plaintiff moves for a summary judgment in its favor under Rule 56(a) and (b), 28 U.S.C.A. following section 723c, with respect to claims 1, 2, 3 and 23 of the second Anderson patent and claims 1, 2, 3, 4, 5, 8 and 11 of the third Anderson patent, on the ground that they are invalid on their face. Plaintiff omits from its motion all claims of the first Anderson patent and claim 7 of the third patent. As to those claims a trial must be had.

It is an accepted rule that claims covering important inventions should not be struck down by summary judgment when, as here, a full hearing must be accorded on two of the three patents in suit, all relating to the same subject matter. On the trial of the case the court will have an opportunity to study the machines and hear them discussed by experts. It can then determine the true functions of the various parts and their improvements in achieving the results claimed.

The motion must be denied.  