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March 31, 1961


The opinion of the court was delivered by: Miner, District Judge.

This matter having been fully tried before the Court, and the Court having read the pleadings filed herein by the respective parties, and the Court having heard and examined all the testimony, documents and exhibits presented by the respective parties and admitted into evidence, and the Court having read, heard and considered the briefs, memoranda and oral arguments submitted by counsel in support of their respective positions, and the Court being fully advised, the Court hereby enters its Findings of Fact and Conclusions of Law as follows:

Findings of Fact.

I. The Parties, The Pleadings, and Preliminary Matters.

1. North Star Ice Equipment Company is a Washington corporation with its principal place of business in Seattle, Washington, and is engaged in the manufacture and sale of North Star Ice Makers for the production of ice in flake form.

2. Defendant, Akshun Manufacturing Company, is an Illinois corporation with an office in Chicago, Illinois, and is a patent holding company. Co-defendant, Kent Industries, Inc., is an Illinois corporation now involved in a proceeding in this Court under Chapter 11 of the Federal Bankruptcy Law, 11 U.S.C.A. § 701 et seq., and is a licensee of Akshun Manufacturing Company under its patents here in suit.

3. This suit was instituted by North Star for a declaratory judgment that Akshun's patent 2,659,212 is invalid and not infringed by North Star's ice removal tool, method of removing ice and ice machine combination, and that Akshun's patent 2,683,357 is invalid and not infringed by North Star's ice machine overflow trough. Plaintiff further seeks to restrain defendants from suing, threatening to sue, or sending threats of suits or notices to plaintiff and customers or prospective customers of plaintiff charging infringement of the said patents. Finally, plaintiff requests damages allegedly sustained by reason of the said threats of suit.

4. Defendant Kent filed a counterclaim seeking to restrain plaintiff North Star from threatening purchasers and prospective purchasers of this defendants' machines with suit for infringement of plaintiff's patent 2,735,275, and for damages. On the first day of trial, the court granted this defendant leave to amend its prayer for injunction to refer to the specific number of this patent.

5. Akshun Manufacturing Company on February 14, 1957, filed suit in the Northern District of Wisconsin against Tillman Produce Company, Civil Action 2918, charging infringement of patents 2,659,212 and 2,683,357 by Tillman's use of an ice making machine manufactured by North Star Ice Equipment Company.

6. A bona fide controversy exists between the parties.

II. Lees Patent 2,659,212 In Suit

A. The Scope and Limitations of the Patent

7. On September 8, 1950, application for patent 2,659,212, naming Gerald M. Lees as inventor, was filed in the Patent Office. The application disclosed and claimed a particular knife for removing a thin sheet of ice in flakes from the freezing surface on the inside of an upright drum-type ice making machine. The knives are carried on an arm revolving slowly around the freezing surface. Each knife has a horizontal leading portion with an edge adapted to score and form a groove in the ice. A plurality of knives, one above the other, are present to score the ice into a plurality of parallel spaced grooves. Each knife also has a trailing portion riding in the groove previously formed by the leading portion. The trailing portion is tilted downwardly at an angle to the direction of movement to force the scored ice downwardly, breaking the bond between the ice and the freezing surface and thus completing the ice removal process.

8. The file wrapper of the Lees patent shows that the application filed in the Patent Office on September 8, 1950, contained eleven claims. Claims 1, 2 and 3 claimed ice removal knives, describing the leading portion with its scoring or groove-forming function and the trailing portion with its angle to direction of movement to force the ice downward. Claims 4 and 5 of the original application were directed to the method of removing ice from a surface to which it is frozen by initially scoring the ice followed by the forcing of the ice downward by pressure applied to the ice along the score lines or grooves. Claims 6, 7 and 8 were directed to combinations of elements constituting flake ice making machines, including ice removal blades. Claims 9, 10 and 11 claimed mechanisms for scoring and flexing ice.

On July 19, 1951, as shown by the file wrapper, Lees added a new claim 13 to his application for patent 2,659,212. Claim 13 was broader than the original claims in that it omitted the leading part of the blade and its scoring or groove-forming function. Claim 13 claimed only the trailing part of the knife which is at an angle to the direction of movement of the knives, and would, had it been allowed, read on wedge-type one-part ice removal tools.

10. On February 11, 1953, new claims 14, 15, 16 and 17 were rejected as unpatentable over the Taylor patent disclosure, and combination claims 18, 19, 20 and 21 were allowed. The combination claims describe the machines for making flake ice in general terms, but describe the blades which are part of the respective ...

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