
    ROPAT CORPORATION, Plaintiff, v. McGRAW-EDISON CO., and Marshall Field & Co., Defendants.
    Civ. A. Nos. 74 C 3459, 74 C 205.
    United States District Court, N. D. Illinois, E. D.
    May 5, 1975.
    
      Richard R. Trexler, Olson, Trexler, Wolters, Bushnell & Fosse, Ltd., Chicago, Ill., for plaintiff.
    James Van Santen, Hill, Gross, Simpson, Van Santen, Steadman, Chiara & Simpson, Chicago, Ill., for McGraw Edison.
    Clarence J. Fleming, McDougall, Hersh & Scott, Chicago, Ill., for Marshall Field.
   MEMORANDUM OPINION AND ORDER

McLAREN, District Judge.

This matter is before the Court on the motion of the defendant, Marshall Field & Co., for summary judgment. For the reasons set forth below, the motion will be granted.

This action involves alleged infringement of U.S. Letters Patent No. 3,611,910 (’910), a corn popper. (For a complete discussion of the patent, see this Court’s prior opinion, Ropat Corp. v. West Bend Co., 382 F.Supp. 1030 (N.D.Ill. [Ropat I] 1974). The defendant claims that the utility ’910 patent is invalid because of double patenting, created by the prior award of Design Patent No. 206,674 (’674) to the same inventor four years prior to issuance of the ’910 patent. (Both patents are set forth in the appendix.) The ’674 patent was issued to the same inventor and was assigned, along with the ’910 patent, to the plaintiff.

The first issue is the appropriateness of summary judgment. The Court believes that the standards it set forth in Ropat I, at 1033-34, are applicable here. The devices are simple and there are no real factual disputes. Further, the parties have not challenged the Court’s ability to determine the issues at this stage. It is now necessary to briefly discuss the two patents.

The ’674 patent shows the design for a corn popper. The ’910 patent describes a corn popper which operates in a particular manner. See Ropat I, supra at 1031-33. Figure 1 of both patents describes devices identical in appearance. Figure 3 of both patents shows the exact same view from the top, and Figure 4 shows a side view. See Appendices A and B. The ’674 patent was not cited by the examiner in the ’910 patent.

Under the judicially-created doctrine of double patenting, a prior design patent can invalidate a later-issued utility patent. See Application of Thorington, 418 F.2d 528 (CCPA 1969). The doctrine was created to prevent the extension, beyond its lawful limits, of the patent monopoly. The doctrine further recognizes that double patenting can be of the “same invention” type or “obviousness” type. Id.

Under the “same invention” test, it is necessary that the features producing the novel aesthetic effect in the design patent are the same which produce the novel structure in the utility. In re Dubois, 262 F.2d 88, 90 (CCPA 1958). The “obviousness” test requires that to sustain the patent, any differences must be patentable, or non-obvious.

In the instant case, it is evident that the same invention is involved. To counter this plaintiff makes several contentions. First, it relies on the presumption of validity. However, since the ’674 patent was not cited by the examiner, and plaintiff has provided no evidence from the file wrapper history, the presumption is necessarily weakened. See Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., 372 F.Supp. 88, 91-92 (E.D.N.Y.1974).

Plaintiff next makes reference to the claims of the utility patent and attempts to prové that certain elements are not present in the design patent. Plaintiff refers to the fact that a pan to hold the corn is not present, or a heating means, or that the volume of the pan is less than that of a full charge of popped corn or the dome. These elements are not significant however, since the design patent deals with a corn popper, which requires a heating means and requires that the popped corn be placed somewhere. From Figure 1 of the ’674 patent it is evident that the corn is placed inside the base, since the drawing shows that the dome is removable.

The final major point raised by plaintiff is crucial to the Court’s determination. The important element of the invention is that the popper can be inverted, the base removed and the corn served in the dome. Plaintiff asserts that nowhere in the design patent is this disclosed.

However, if one looks at the design patent one finds that this important feature is disclosed. One need only ask: How do you get the popcorn out after it is popped?” to realize that this can only be accomplished by inverting the popper and removing the corn in the dome. This is evident from the method in which the dome is removed and in the flat construction of the top of the dome. In more legal terms, the utility patent invention is inherent in the design of the design patent. This being the case, the two inventions are identical. See In re Thorington, supra.

Nor can plaintiff find solace in cases such as In re Swett, 451 F.2d 631 (CCPA 1971); In re Dubois, supra; Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., supra; or Regent Jack Mfg. Co. v. United States, 292 F.2d 868 (CCPA 1961). In each of those cases the utility patent was not interrelated to the design but was susceptible of many different appearances, which were often documented in the utility patent itself. In the instant case it is clear that the inventions are the same and even if there were alternative appearances available, they would at best be mere equivalents and obvious changes. The utility patent here depends on its design to create invention.

The foregoing analysis applies to all of the claims of the ’910 in issue. This being so, there is double patenting, which requires a finding that the claims in issue of the second patent, the ’910, are invalid. Accordingly, the motion for summary judgment is granted. Defendant will file a proposed judgment order within ten (10) days of the date of this opinion.

It is so ordered.

PATENTED OCT 12 1971 3.611.910

3,611 ,910

1

CORNPOFPER

This invention relates to an apparatus for popping and serving corn.

The apparatus of this invention comprises a base and a dome separable from the bate. The base comprises a thcr- 5 mally conductive pan, heating means for heating the pan and support means for supporting the pan. The dome fits on top of the base, covering the pan when in position sod providing an enclosed space in which to pop com and in which to accumulate the popped com. Subsequently, it can function as a serv- K ing bowl for the popped corn. Preferably, the dome is at least translucent so that accumulation of popped com can be at least partially viewed. Preferably the base and dome comprise means for establishing and maintaining the dome in position on the bese during the com popping operation. *'

The apparatus of this invention it used generally by placing popcorn kernels and cooking oil on the pan, seating the dome in position on the base and activating the heating means. When the pan and kernels reach com popping temperature, kernels commence to pop within the confinca of the dome. ^ When popping of the com kernels Is completed, the heating means arc deactivated, the com popper is inverted so that the dome supports it, and the base is removed from the dome, thereby presenting a bow! of popped com.

Because of this flip or inversion feature of the invention, the 25 dome can be regarded as a bowl, and the base can be regarded as a cover for the bow] with the pan being considered the lid. This invention is further illustrated by the drawing which is a materia] part of these disclosures.

In the drawing:

F7G. 1 is a front elevation of & preferred, specific embodiment of the corn popper of this invention with a portion of the exterior structure removed to reveal interior structure;

FIG. 2 is a back view of the specific embodiment of FIG. 1 ^ in inverted position with the base or cover removed from the dome or bowl, and with the dome or bowl turned relative to the base to enable the base to be lifted therefrom, and further showing popped com in the bow!;

FIG. 3 is a plan view of the specific com popper ofFIG. I, but turned 90°; FIG. 4 is a sectional view of the com popper of FIG. I, which view has been taken as indicated by the sectioning plane 4 — 4 in FIG. 3; and

FIG. 5 is a bottom view of the pan and healing means of the base of the com popper of FIGS. 1-4 without the support 45 means and with portions of the heating means structure removed to reveal otherwise hidden structure. More specifically, FIGS. 1-4 disclose a com popper 10 according to this invention. The com popper comprises a base or cover member 12 and adorne or bowl member 14. 50

The base or cover member 12 comprises a pan or lid member 16, a heating element assembly 18, support means comprising a housing 20 with legs 22, and handles 24.

The pan or lid member 16 comprises a preferably round, thermally conductive plate 26 with a preferably annular, axi- 55 ally outwardly extending wall 23 (see FIG. 4). At the axially outer end of the annular wall 28 is a radially outwardly extending preferably annular shelf or rim 30 having at its radially outer margin an axially outwardly extending, preferably annular, centering flange 32. On the axially inner aide of the pan 60 16, that is, of the plate 26, and fastened thereto is the heating clement assembly 18.

The heating element assembly 18 in the embodiment shown (see FIGS. 4 and 5) is of conventional construction. It comprises a helical heating element 34, a thermostatic switch 36 65 and a pair of electrical inlet prongs 38 with insulated wiring connecting the prong?, the heating element and the thermostatic switch in series.

The housing 20 comprises a shell preferably generally scmiellipfoidal in shape (FIG..4) with a preferably round rim. 70 In the region of the rim the shell has on aperture 40 for receiving a female socket plug of on electrical line cord, and diametrically disposed to the aperture 40 a peep hole in which is seated in a clip mounting in line with a portion of the heating element 34 a viewing glass 42. The legs 22 arc fastened to the 75

2 shell so that when the shell is tupportexi by them on a horizontal surface, the rim of the shell is generally horizontal

The handles 24, which in the embodiment shown are two in number, arc diametrically disposed at the rim of the shell of the housing 20 ami arc fastened thereto as well as to the pan 16. Each handle 24 has a retainer portion 44, (see FIG. 1) which overlaps the shelf or rim 30 of the pan 16 when the pan is in position, but which portion <4 is rpneed from the rim 30.

The dome or bowl 14 preferably is transparent and can l withstand sudden and severe temperature changes. It comprises at its rim radially outwardly extending, circumferentially spaced flanges 46 (See FIGS. 3 and 2). The circumferential spacing between the flanges is greater than the maximum circumferential dimension of the overlapping, retainer ' portion 44 of each handle 2/4 of the base 12.

To use the com popper 10, the base 12 is placed with the legs 22 on a suitable surface and the pan 16 facing upwardly. With the dome 14 removed, popcorn kernels and cooking oil are placed into the pan 16. The dome 14 is then placed on top 1 of the pan 16 and turned so as to place flanges 46 under the overlapping portions 44 of the handles 24 as in FIGS. 1 and 3. A female plug of a line cord connected to a suitable source of electrical current is brought into engagement with the prongs 38, whereupon the heating element 34 commences to emit heat and a red glow which can be seen through the viewing glass 42. Heat emitted from the heating element 34 is conducted by the plate 26 to the cooking oil and popcorn kernels. In a short period of time the kernels pop. When the popping of the com kernels ceases, the heating clement is deactivated as by removing the female socket plug of the line cord from the prongs 38. The com popper 10 is then inverted so that it rests on the dome 14, now a bowl. The popped com falls away from the pan 16, thereby preventing popped com from becoming burned by heat which might still be in the pan 16. The base 12, now a cover, is then rotated relative to the bowl 14 so as to move flanges 46 away from the overlapping portions 44 of the handles 24, and the cover 12 is removed from the bov/1 14 as in FIG. 2. The bowl 14 can then be used for serving the popped com.

Thus there is provided a com popper.

A feature of advantage of the com popper of this invention is that upon completion of corn popping the popcorn can be immediately removed from contact with the pan 16 and thereby prevent burning of the popped com.

Another feature of advantage of the com popper of this invention in its preferred embodiment is that the com popping process can be observed from beginning to end.

Other features, advantages and specific embodiments of this invention will be readily apparent to those in the exercise of ordinary skill in the art upon reading the foregoing disclosures. These specific embodiments are within the scope of the claimed subject matter unless otherwise indicated. Also, while a-specific embodiment of this invention has been described in considerable detail, variations and modifications of this specific embodiment can be effected without departing from the spirit and scope of the invention ns disclosed and claimed.

What ix claimed is:

1. Lid means for a com popper comprising said lid means and bowl means comprising a bowl with a round rim having radially outwardly extending, circumferentially spaced flanges, said lid means comprising;

a. a generally round, thermally conductive plate with annular, peripheral, radially outwardly extending shelf with annular, peripheral, axially outwardly extending centering flange means, said bowl means with said flanges being receivable on sAid shelf within said centering flange means in such a manner that the rim of said bowl us well os said flanges thereon fit within said plate centering flange means;
b. peripherally spaced, radially inwardly extending bowl retainer means that overlap Raid flanges of said bowl means when said bowl is in position with the nm thereof adjacent said shelf of said lid mums;
c. electrical hearing element m^ans for said plate; and

3,611,910

3

d. housing meant about the axially inner side of said plate, said housing means comprising support means for said lid means when inverted with said bowl means on top of said lid means.
2. A corn popper comprising: 5
a. abase;
b. means for supporting said base in popping position on a fíat surface;
c. a pan arranged in said base for containing unpopped kernels of popcorn, when said baas is in said popping posi- 10 tion;
d. heating means arranged in sold base for heating said pan to pop said kernels;
c. s ringle piece dome separably supported on said base over said pan when said base is in said popping position; 15
f. the inside volume of said pan being substantially less than the volume of a full charge of popped com for said popper;
g. the inside volume of said dome being several times the inside volume of said pan so that said popped com rises into 20 said dome; and
h. the uppermost surface of said dome in said popping position being formed with at least three substantially spaced points lying approximately in a plane parallel with said flat surface to that said dome stably supports itself and 25 said base on a flat surface in a position inverted from said popping position for removal of said bese from said dome and serving of said popped com in said dome.

3. The com popper of claim 2 including means for interlocking said base and said dome removably together. 30

4. The com poppci of claim 3 wherein to provide said interlocking means said dome is formed with a round rim having

4 radially outward extending, circumferentially spaced flanges, and said base has a shelf for supporting said flanges and radially inwardly extending dome retainer means ihut arc spaced from said shelf by about the thickness of said flanges and are narrower than the space between said flange*.

5. The com popper of claim 4 wherein said base includes a pair of handles having portions arranged to extend radially inward to form said dome retainer means.

6. Tlve corn popper of claim 3 wherein said interlocking means comprises handles on said base.

7. The com,popper of claim 2 wherein said uppermost surface of said dome is substantially flat.

8. The corn popper of claim 2 including handles arranged for inverting said base and said dome togetJicr.

9. A com popper comprising a shallow cooking vessel for receiving popping com and cooking oil in which said com is popped, electric heating means mounted in heat exchange relation with the exterior of said vessel, housing and stand means for supporting said vessel in an upright position, said housing insulating said heating means from a surface on which said popper Is supported, an enlarged cover for said vessel having a mouth defined by the downwardly extending walls thereof, said cover being supported with said mouth superimposed over said vessel, said cover having a volume substantially greater than the volume of said vessel, and handle means for retaining said vessel and cover m assembled relation and for inverting said vey.se! and cover as a unit, said cover having a stand permitting it to rest in an inverted position whereby the cover serves as a container and the vessel serves as a cover.

35

40

45

50

55

60

65

70

75

United States Patent Office

Des. 206,674

Patented Jan. 10, 1967

206,674

CORN POPPER

John S, Hughes, East Rochester, and Douglas R. Clcmlnsliaw, Syracuse, N.Y., assignors to Robeson Cutlery Co., Inc., Perry, N.Y., a corporation of New York

Filed Nov. 8,1»65, Ser. No. 88,035

Term of patent 14 years

(Cl. D44 — 1)

FIG. 1 is a front elevational view of a corn popper showing our new design;

FIG. 2 is an assembled view thereof, in elevation, taken from the right of FIG. 1;

FIG. 3 is a top view thereof; and

FIG. 4 is a bottom view thereof.

We claim:

The ornamental design for a corn popper, substantially as shown.

References Cited by the Examiner

UNITED STATES PATENTS

D. 176,310 12/1955 Conlin ct nl.......D83 — 1 XR

D. 180,880 8/1957 Moore...............D55 — 1

2,668,993 2/1954 Hair.

JOEL STEARMAN, Primary Examiner. 
      
      . This case is one of several consolidated cases involving the same patent. The defendant in 74 C 205, McGraw Edison Co., has joined in this motion.
     
      
      . The ’910 patent was filed on January 17, 1966, and granted on October 12, 1971. The ’674 patent was filed on November 8, 1965 and was granted a patent term of 14 years on January 10,1967.
     