
    BUCKEYE INCUBATOR CO. et al., v. PETERSIME et al.
    Circuit Court of Appeals, Sixth Circuit.
    June 10, 1927.
    No. 4797.
    Patents <§=>328 — 1,262,860, claims I, 2, 3, covering egg-hatching method and apparatus, held not infringed.
    Smith patent, No. 1,262,860, claims 1, 2, 3, covering method of hatching eggs and apparatus for practicing it, held not infringed.
    Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hick-enlooper, Judge.
    Patent infringement suit by the Buckeye Incubator Company and another, against Ira M. Petersime and another. Decree for defendants, and plaintiffs appeal.
    Affirmed.
    Border Bowman, of New York City, and Charles E. Brock, of Cleveland, Ohio (Sta-ley & Bowman, of Springfield, Ohio, on the brief),'for appellant Buckeye Incubator Co.
    H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio (G. O. Farquharson, of Cleveland, Ohio, on the brief), for appellee Petersime.
    Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
   MOORMAN, Circuit Judge.

The decree below dismissed a bill for infringement of United States letters patent 1,262,860, to Samuel B. Smith, covering a hatching method for eggs and an apparatus for practicing it. The validity of the patent has been sustained in Buckeye Incubator Co. v. Wolf (D. C.) 291 F. 253, affirmed (6 C. C. A.) 296 F. 680, and in Buckeye Incubator Co. v. Cooley (3 C. C. A.) 17 F.(2d) 453. The process and device used by Smith are fully described in the opinion in the Wolfe Case. There is no new art in this case which, upon a reconsideration of validity, would control the conclusion reached by the court in that case. Claims 1, 2 and 3, set out in the margin, are involved. They are method or process claims.

In the advanced stage of incubation, eggs generate and emit heat. They also require more oxygen than eggs in the earlier stages. Proper incubation must take into account the disposition or diffusion of this emitted heat, the carrying off of the carbon dioxide also emitted from the further advanced eggs, and the supplying of the additionally needed oxygen to those eggs, without undue loss of the requisite moisture and uniformity of temperature. Smith claims that his invention covers any process of applying heated air to eggs at different stages of incubation, whereby these essential steps are effected. His apparatus consists of a box divided into three compartments, one of which is a corridor separating the side compartments in' which there are trays of eggs. The heated air is taken in from the top of the corridor, and is driven in a defined course by fans traveling at the rate of about 1,700 revolutions a minute to the bottom of the corridor, where it is mushroomed against the floor and escapes under the partitions into the compartments on either side, and then ascends (first, through the trays of eggs in the more advanced stage of incubation) to the top of the corridor through openings at the top of the partitions, part of it passing out of the box through openings over the sides of the compartments.

The Petersime device is an open box without partitions, in. which there are egg trays of different sizes arranged in a drum. The heated air is taken in at the bottom of the cabinet and rises primarily because it is heated. There are inlets for air at the bottom and outlets at the top. The air in the drum is agitated by a slow-moving stirrer, but there is no defined current created "by the agitation, that drives the air first upon the eggs in the more advanced stage of incubation, although it is admittedly so mixed that the heat units from those eggs are diffused throughout the entire drum. There is a thorough mixing of the air, but no application of defined currents.

As we have seen, the apparatus of Smith discloses a defined current of air driven first over the warmer eggs. His process claims may nevertheless be sustained upon a broader ground than exemplified in the device, if their language justifies such interpretation. Claim 1 calls for the application of “a current of heated air, said current being created by means other than variations of temperature, * * * whereby * * * units of heat will be carried from eggs in the more advanced stage of incubation to those in a less advanced stage.” Claim 2 calls for a "power-driven current of heated air in an adjacent chamber, * * * said current being of sufficient velocity to circulate, * * * whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage.” Claim 3 is even more restricted, calling for “a vertically directed current of heated air in an adjacent chamber, * * * said current being created by mechanically moving means, * * • whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage. • * * *” It is thus to be seen that all of the claims call for a current of heated air, limited in claims 2 and 3 to “power-driven” and “vertically directed.” The question is whether the broader phrase of claim 1, “applying a current of heated air,” includes the agitation of .air, not in defined currents, but so that it will produce a diffusion of heat units resulting in uniformity of temperature.

Looking to the language of the claims, as indeed to the device that Smith uses, it would seem that he had in mind a process by which the warm air taken into the corridor would be currently directed, so as to strike firs't the eggs in the more advanced incubation, take to them the additionally needed oxygen, and carry the heat units therefrom to other parts of the two compartments, thus effecting, in part, at least, a uniformity of temperature throughout the egg chambers. This interpre- ■’ tation, we think, is borne out by the specifications. They refer to a “forced circulation of hot air,” to subjecting the eggs to a “column of air,” to moving the eggs to a different position “with reference to the forced circulation of hot air,” to forcing the air “to pass between the different eggs” which will in effect “act as a cooling medium” for the more advanced eggs, all of which contemplate a defined current of air by which certain eggs may be cooled and given the additionally needed oxygen, and others may be warmed by the heat units which the current carries from the more advanced eggs. The file wrapper history of Smith’s patent tends to support the same conclusion. This conception of a current of air driven in a definite or predetermined direction is different, we think, from the Petersime process, by which diffusion of heat units and uniformity of temperature is obtained by the slow stirring or agitation of the air in the egg chamber.

Judgment affirmed. 
      
       1. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture, and applying a current of heated air, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse, and maintain the air throughout the chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved, and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.
      2. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture, and applying a power-driven current of heated air in an adjacent chamber through openings into the egg chamber, said current being of sufficient velocity to circulate, diffuse, and maintain the air throughout the egg chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved, and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.
      3. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture, and applying a vertically directed current of heated air in an adjacent chamber to circulate in said egg chamber through upper and lower openings between said chambers, said current being created by mechanically moving means of such velocity as to diffuse and maintain the air throughout the egg chamber at substantially the same .temperature, whereby the. air will be vitalized, the moisture conserved, and the-units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage for the purpose specified.
     