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SCHNELL v. ALLBRIGHT-NELL COMPANY

November 13, 1963

CARL SCHNELL AND THE GRIFFITH LABORATORIES, INC., AN ILLINOIS CORPORATION, PLAINTIFFS,
v.
THE ALLBRIGHT-NELL COMPANY, AN ILLINOIS CORPORATION, AND PETER ECKRICH AND SONS, INC., AN INDIANA CORPORATION, DEFENDANTS.



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

The Parties.

1. Plaintiff, Carl Schnell (referred to hereafter as "Schnell"), is a citizen of Germany, residing at Winterbach near Schorndorf, Germany. Plaintiff, The Griffith Laboratories, Inc. (referred to hereafter as "Griffith"), is an Illinois corporation, having its principal office and place of business in the City of Chicago, Illinois. Defendant, The Allbright-Nell Company (referred to hereafter as "Allbright-Nell" or "Anco"), is a corporation of the State of Illinois, having its principal office and place of business in the City of Chicago, Illinois. Defendant, Peter Eckrich and Sons, Inc. (referred to hereafter as "Eckrich"), is an Indiana corporation having its principal office and place of business in the City of Fort Wayne, Indiana.

PX-87.

Ownership of Patents in Suit.

2. Plaintiffs are and since the respective dates of issuance have continuously been joint owners of United States Letters Patents 2,840,318, 2,906,310, 2,934,120, 2,934,121, and 3,044,514, and United States Letters Reissue Patents 24,683 and 24,764, and all rights of recovery for all infringements thereof. All of these patents were duly and legally issued on inventions made by Carl Schnell. With the exception of Reissue Patent 24,683, these patents relate to comminuting machines that emulsify meat products. These machines are widely used by sausage manufacturers to produce new and improved meat products. Reissue Patent 24,683 relates to methods for emulsifying meat products, which methods are also widely used by sausage manufacturers.

PX-87.

The Actions.

3. Plaintiffs, Schnell and Griffith, brought the following patent infringement actions against defendant, Eckrich, in the United States District Court for the Northern District of Indiana, Fort Wayne Division:

  C.A. 1128, filed 2/13/59, involving U.S. Letters
    Patents 2,840,318 and 2,842,177;
  C.A. 1184, filed 9/30/59, involving U.S. Letters
    Patent 2,906,310;
  C.A. 1211, filed 2/8/60, involving U.S. Letters
    Reissue Patent 24,764 (a reissue of Patent
    2,842,177); and
  C.A. 1229, filed 4/26/60, involving U.S. Letters
    Patents 2,934,120 and 2,934,121.

PX-88, PX-89.

4. On January 14, 1960, defendant, Allbright-Nell, brought a declaratory judgment action against plaintiffs, Schnell and Griffith, in the United States District Court for the Northern District of Illinois, Eastern Division, involving U.S. Letters Reissue Patent 24,683 (a reissue of U.S. Letters Patent 2,836,825) and U.S. Letters Reissue Patent 24,764 (a reissue of U.S. Letters Patent 2,842,177). This action was identified as Civil Action No. 60-C-62.

PX-88, PX-89.

5. On November 21, 1961, plaintiffs brought the above-entitled Civil Action No. 61-C-1979 against defendants alleging infringement of each of U.S. Letters Patents 2,840,318, 2,906,310, 2,934,120 and 2,934,121, and U.S. Letters Reissue Patents 24,683 and 24,764.

PX-89.

6. Civil Actions Nos. 60-C-62 and 61-C-1979 were consolidated, after which plaintiffs and defendant, Eckrich, stipulated for the dismissal, without prejudice, of the patent infringement suits in the Northern District of Indiana, referred to in Finding 3, above. This stipulation provides:

    (a) The dismissal shall not give rise to the
  defense of estoppel or laches or statute of
  limitations with respect to the causes of actions set
  forth in the complaints in Civil Actions Nos. 60-C-62
  and 61-C-1979, unless such defenses would have been
  available without such dismissal; and
    (b) The dismissal shall not be considered a
  voluntary dismissal under Rule 41(a) of the Federal
  Rules of Civil Procedure.

PX-89.

7. The original complaint in Civil Action No. 61-C-1979 was revised by an order of this Court, dated July 17, 1962. The revised complaint brought into suit plaintiffs' U.S. Letters Patent 3,044,514, issued on July 17, 1962.

Claims in Suit.

8. Plaintiffs asserted that defendants, or either of them, infringe the following patents (PX-2), including the claims identified with respect thereto:

   Patent 2,840,318:  Claim 2;
   Patent 2,906,310:  Claims 1-8;
   Patent 2,934,120:  Claims 1 and 2;
   Patent 2,934,121:  Claims 1-24;
   Re. Patent 24,764: Claims 1-3 and 5-15;
   Patent 3,044,514:  Claims 1-15, 17
     and 18; and,
   Re. Patent 24,683: Claims 1-16.

Sausage Industry.

9. The sausage industry is based on the utilization of the portions of the carcasses of cattle or hogs which cannot be used as steaks or hams or pork chops. This material is known in the industry as trimmings, and is the portion of the carcass that is left over when the prime cuts are removed. Many types of trimmings contain gristle and/or hard meat (e.g., rinds and offal materials) which nonetheless have high protein or nutritional value when suitably cut.

Cypser 47, 48, 53, 54; Swanson 90, 91, 94-98, 107-110; PX-7; Turner 147-150, 165; PX-82.

10. Sausage emulsions were produced almost entirely by use of machines like the Silent Cutter, or chopper as it was more often referred to. These machines were large, bulky and relatively slow, and they did not produce the quality of emulsion now available, nor did they permit the use of many nutritious portions of the carcass which could not be adequately subdivided in them.

Swanson 80-87; Cypser 47, 48, 53.

11. The Silent Cutter was a standard piece of equipment that was used by commercial sausage kitchens for many years before Schnell discovered a meat comminuting machine. It comprised a doughnut-shaped bowl that turned in a horizontal plane and a cutting zone with a series of vertically rotating blades. The mass of meat in the doughnut-shaped bowl was forced continuously into these vertically acting cutting blades. This reduced the particle size of the meat and fat products and, with the addition of moisture that was added to the mix, made a blend. The Silent Cutter caused a high temperature rise of the meat in a short period of time. This was extremely undesirable because a high temperature rise caused a marked variation in the product which in turn affected the salability of the product. Further this machine required a batch operation. The cutting blades had to be continuously kept in a sharp condition for efficient operation and the knives presented considerable danger to the operator.

Swanson 102-104; PX-5; Turner 116-117, 152-154; Cypser 76; PX-4.

Cypser 53.

13. Colloid mills were also used, to a limited extent, to comminute meat. These, too, produced a high temperature rise of the meat. Further, their tearing action produced an undesirably stringy product.

Swanson 86-88.

14. Commercial sausage kitchens used a grinder, followed by a chopper (e.g., Silent Cutter), followed by stuffing means and then treatment in a smoke house. The grinder was used to break down the large pieces of meat product into a size suitable for further blending and cutting in the chopper, where moisture and seasoning were added.

Cypser 46; Swanson 82; PX-4; PX-8; DX-92.

15. This finished emulsion then went to stuffing apparatus which placed it into casings of a size suitable for frankfurters or bologna and from there the meat was further cooked or smoked in the smoke house to produce the finished sausage.

Cypser 46; Swanson 82; PX-4; PX-8.

Schnell's Discoveries.

16. Schnell discovered that he could cut rinds and offal materials in his early meat comminuting machines in the raw, uncooked state and still be able to produce a better emulsion than had been previously obtained with these materials in other equipment.

DX-271A, pages 14, 30, 31; DX-271B, pages 136, 145; DX-271C, page 210.

17. He found that he could emulsify nutritious trimmings, including hard particles, that previously could not be used. However, with some meat products it was necessary to exert pressure upon the meat in the hopper in order to force the meat down to the rotary knives.

Turner 151, 152.

18. Later, Mr. Schnell made a further discovery of great consequence. He was the first to discover and teach that when meat ingredients were combined in a hydraulic column and propelled by a rotating knife against a perforate valve plate so that most of the material propelled to the plate would not pass through it but would be diverted back for recutting and remixing, one got an entirely new result.

Schnell 1666-70; DX-271A, page 39; DX-271F, pages 500, 501.

19. Schnell was the first to discover and teach that this action of the plate made it possible to get better cutting, better distribution and greater output in spite of the fact that the hydraulic column put a tremendous drag on the motor and required a larger motor which caused more heat. The greatly increased output more than compensated for the extra heat produced by the large motor so that there was a lower temperature rise in the product.

Schnell 166-70; DX-271A, page 39; DX-271F, pages 500, 501; Turner 162.

20. The rate of comminution depends upon the toughness of the meat, the fluidity of the mixture and many other factors. But even with the toughest meat, the capacity of Schnell's sealed emulsifier is almost incredible. Eckrich's records show many instances of treatment of well over 500 pounds of meat per minute. With conventional high grade sausage emulsions, comminuting 200 or 300 pounds per minute is now standard with plaintiffs' and defendants' emulsifiers. The machine introduced a new problem to the industry, namely, trying to supply the machine with an adequate rate of feed material which became necessary due to the markedly increased rate of comminution. This led to automation of the industry.

Turner 162; Swanson 100-102; Cypser 52; PX-92A and C-R; PX-94A-H.

21. The reason why the comminuting of material like meat is so greatly improved with the hydraulic column is theoretical in that one cannot watch what happens to an individual particle of meat. One can observe only the result in greater capacity, greater load on the motor, improved emulsification and a limited temperature increase.

Fishleigh 2790, 2810; Schmidt 3564; Turner 160-162; Swanson 100-102; Cypser 52.

22. With the hydraulic column, the pressure of the atmosphere is employed to maintain continuity of meat material in the emulsifier. The 14.7 pounds per square inch pressure of the atmosphere assures that the movement of one particle away from the knife, after being hit, pulls at least another particle into cutting position.

Schoenherr 3848-3850; Turner 442.

23. The hydraulic column is essential for most commercial operations as now practiced. The power requirements are several times greater when the hydraulic column exists, but the feeding of meat is difficult without the hydraulic column. In fact, introducing a few bubbles of air in the entrance of the comminuting chamber will normally stop any feeding of meat or at least slow it down to a point where overheating results.

Turner 160-162, 3742-3743; Cypser 71; Schnell 1666-70; DX-271A, page 39; DX-271F, pages 500-501.

24. In developing his emulsifier, Schnell discovered that certain other structures in the emulsifier afforded added advantages in comminuting meat products. Included in such structures are the particular shape of the propelling knife, the circulating surfaces that cooperate with the knife and perforate plate, and obstructing means.

DX-271A, pages 18, 19; DX-271B, page 149; DX-271C, pages 225, 233, 234.

Schnell's Discoveries Revolutionized the Sausage Industry.

25. The Schnell emulsifier revolutionized the sausage processing industry and permitted, for the first time, the sausage manufacturers to produce sausage in a continuous manner rather than in their previous batch-wise operations wherein the meat had to be manually conveyed from the grinder to the chopper and from the chopper to the stuffer. The Schnell emulsifier enabled sausage manufacturers to feed their emulsion through pipes directly into the pump-type stuffer without any handling. Manual handling of the meat was obviated and sanitation was thus improved.

Turner 162; Swanson 100-102; Cypser 52; PX-4.

26. In addition, the Schnell emulsifier enabled the sausage manufacturers to produce a better meat product, enabled them to produce this superior product at a lower per pound operating cost and displaced space-consuming and more expensive equipment. More specifically, the Schnell emulsifier:

    (a) Permits the utilization of highly nutritious
  animal products not heretofore usable in sausage,
  thereby lowering the cost of the sausage;
    (b) Produces a finer and more uniform emulsified
  product than the meat industry was able to obtain
  with existing equipment;
    (c) Produces a more presentable and salable
  product; that is, a product that looks better to the
  average customer and a product that is more uniform
  in taste and consistency;
    (d) Provides better utilization of equipment
  already existing in sausage kitchens. Sausage
  kitchens can now produce more in terms of pounds of
  product per hour than through their grinder and/or
  chopper;
    (e) Provides savings in labor because it turns out
  more pounds of meat

  product per hour with the same or fewer man-hours;
    (f) Provides savings in floor space. The upright
  model of the emulsifier occupies much less floor
  space than the chopper, which could be eliminated;
  and,
    (g) Reduces the need for the highly skilled
  personnel that was previously required. Prior to
  Schnell, chopping of sausage products was a highly
  skilled operation. The sausage maker who operated the
  chopper was a highly paid individual who had
  developed a special skill in knowing when chopping
  should be stopped.

Cypser 46-54, 57, 62; Swanson 90, 94-102, 107-110; Turner 162, 163-174; PX-4; PX-9.

Introduction of Emulsifiers in the United States.

27. During the period of from 1956 to the present time, the Schnell machines have been made by Schnell for Griffith and they have been sold in the U.S. by Griffith under the name "Mince Master" machines. These machines substantially correspond with the structures shown in various Schnell patents in suit.

Griffith 535; Turner 216-284; DX-271B, pages 102-106; PX-1; PX-10; PX-79; PX-81.

28. After Griffith's "Mince Master" machines were introduced and first sold in the U.S., Allbright-Nell first made and sold in the U.S. a copy of the "Mince Master" machine. This copy was later identified as the Anco "Emulsitator" machine.

R. 654, 690-691; PX-37.

29. Emulsifier such as Griffith's "Mince Master" machines and Allbright-Nell's Anco "Emulsitator" machines produce a smooth, uniform emulsion which was not obtainable under the old methods or with the old equipment, in addition to being able to emulsify materials which could not be used in the past.

Cypser 56, 57, 66, 70; Turner 163-174; PX-9.

30. In the very few years in which the emulsifiers have been available in this country, the commercial sausage industry now relies greatly upon this type of machine.

Cyprus 48, 49, 59; Turner 357-359; R. 690; PX-84.

31. Sausage manufacturers have bought "Mince Master" machines and "Emulsitator" machines because their customers would no longer accept the type of product they formerly made.

Swanson 92, 99; Cypser 55, 56; Turner 357-359; R. 690; PX-84.

32. In some instances, sausage manufacturers continue to handle their meat products through both the grinder and the chopper, and then through either a Griffith "Mince Master" machine or Anco "Emulsitator" machine. Even with this procedure, they are able to shorten both the grinding and chopping operations and obtain a savings in labor.

Swanson 100, 101; Cypser 52; PX-4; PX-9.

33. Important savings are obtained with the use of the Griffith "Mince Master" emulsifiers and Anco "Emulsitator" emulsifiers.

Cypser 48-52; Swanson 94-98; PX-7.

34. The use of Griffith "Mince Master" machines at Armour and Company, a company that makes a minimum of 2,000,000 pounds of frankfurters and bologna per week, was an important factor in converting within an eighteen month period a loss of $2,000,000 to a profit of $4,000,000 in the sausage department.

Cypser 48, 50, 51.

35. Armour spent three-quarters of a million dollars purchasing "Mince Master" machines and providing necessary installations such as electrical wiring that was not previously available. The "Mince Master" machines were credited with saving Armour one million dollars during this period. Armour also uses Anco "Emulsitator" machines for the same purpose as its "Mince Master" machines.

Cypser 51, 52, 55, 56.

36. The ability to employ nutritious meat products not heretofore usable in sausage emulsion enabled John Morrell and Company, a manufacturer of meat products, to save as much as 4¢ per pound of sausage.

Swanson 94-98; PX-7.

History of the "Mince Master" and "Emulsitator" Machines.

37. Schnell used in 1954 a comminuting machine with a knife that rotated upon a perforate plate. This machine was used for comminuting pork rinds. In the Spring of 1955, Schnell ordered Huth seals for his meat emulsifier and used them in his emulsifiers before September of 1955. He found, before July, 1955, that if he covered the exhaust with his hand, he could obtain a hydraulic column which, however, overloaded the motor but greatly increased output. Since German requirements did not call for larger output and the Huth seals were not satisfactory for general use, Schnell put the matter aside until he obtained rubber Goetz seals (DX-9) commencing in January, 1956. At that time he also received a request for larger motors from Griffith's representative, Mr. Young.

Schnell 1485-88, 1490, 1646-49, 1666-70; DX-271A, pages 14, 30,
    31, 36-38; DX-271B, pages 136, 145; DX-271F, pages 500, 501;
    PX-125 and -125A; PX-126 and -126A; PX-127 and -127A;
    Furthmuller 1705-07.

38. Mr. Carroll L. Griffith, president of the plaintiff, Griffith Laboratories, first learned of the Schnell emulsifier in January of 1956 from a Griffith salesman, Mr. Young, who was in Germany.

Griffith 524, 525.

39. Griffith first ordered a Schnell emulsifier in January of 1956 and it (PX-81) arrived in this country at the end of April of 1956. It was powered with an electric motor that was rated at 25 horsepower on 60 cycle current and turned at 3600 r.p.m. The drive shaft for the knife was not sealed to prevent ingress of air into the machine during operation.

Turner 120-22, 146; Griffith 524, 525; R. 674.

40. The first Schnell machine (PX-81) that was received by Griffith was sent to Coronet Packing Company (hereafter referred to as "Coronet") in Chicago for the purpose of testing and demonstrating the machine. This particular machine will hereafter be referred to as the "Coronet machine."

Turner 154; Griffith 525, 526; R. 674.

41. The Coronet machine (PX-81) was demonstrated by Griffith at Coronet during the National Independent Meat Packer's Association convention in Chicago during May of 1956.

Turner 154, 155; Griffith 525, 526; Swanson 90, 91; R. 674.

42. The Coronet machine (PX-81) did not produce a hydraulic column; however, it did produce an outstanding emulsion compared to anything then available, particularly with respect to materials such as pig skins and offal meat material.

Turner 146; Swanson 90; R. 674.

43. A slushy mix of skins and ice was fed into the machine (PX-81) at Coronet during May of 1956. An emulsion was produced that had a consistency resembling ordinary cold cream. Mr. Swanson, then with the John Morrell Company, described the skins as having been made "* * * into smooth, creamy emulsion that heretofore hadn't been possible to do."

Turner 148-50; Swanson 91.

44. When a bologna or frankfurter mix was fed into this Schnell machine (PX-81), the material had to be pushed down through the hopper to the knife and there was a considerable temperature rise, although the emulsion had a very fine texture.

Turner 151, 152.

45. While this Schnell machine (PX-81) was at Coronet, it was discovered by Griffith that the motor was overloaded.

Turner 155.

46. During May of 1956, Griffith requested from Schnell an emulsifier having greater horsepower. Schnell confirmed this order the same month. Long before this time, Schnell had used a seal about the drive shaft of his high speed meat emulsifiers.

Turner 155-156; Schnell 1484; Bihler 1461, 1469, 1470, 1546; Furthmuller 1722; PX-144 and -144A.

47. In September of 1956 Griffith received from Schnell a "Mince Master" machine with a more powerful motor and a seal. It was sent by Griffith to Saratoga Meat Products Company (hereafter referred to as "Saratoga") in Chicago for test and demonstration purposes. Ammeter readings showed that the machine was operating at between 75-80 horsepower, although it was previously thought by Griffith that a 35 horsepower motor would be adequate.

Turner 154, 156-160; Griffith 529; R. 674.

48. During the American Meat Institute convention that was held in Chicago in September of 1956, Griffith displayed the "Mince Master" emulsifier and demonstrated this sealed machine at Saratoga.

Turner 157; R. 674.

49. A "Cutfix" meat emulsifier of Robert Friess K.G. (hereafter referred to as "Friess"), of Germany, was shown for the first time in this country at that convention. It was a copy of a Schnell emulsifier.

Griffith 526, 527; DX-271F, page 432; PX-65; PX-67; PX-80.

50. Allbright-Nell, a manufacturer of equipment used by the meat industry, saw the "Mince Master" emulsifier during the American Meat Institute convention in the Fall of 1956.

R. 570.

51. About September, 1956, Mr. Carroll L. Griffith, president of Griffith, received a telephone call from Mr. Norman Allbright, president of Allbright-Nell. Mr. Allbright asked if it were possible for Allbright-Nell to enter into an arrangement whereby Schnell's "Mince Master" machine might be built in the Allbright-Nell plant. Mr. Griffith explained that this was not possible because Griffith Laboratories was Schnell's U.S. agent and that Schnell had manufacturing facilities in Germany and wanted to build the emulsifiers there.

Griffith 529, 530; R. 565.

52. Allbright-Nell sought and obtained from Friess a "Cutfix" meat comminuting emulsifier in January of 1957. This machine was a copy of a Schnell emulsifier.

DX-271F, page 432; R. 190, 566, 674, 675; PX-65; PX-67; PX-78;
    PX-80; Photograph A of PX-17.

53. In January of 1957, Allbright-Nell started to duplicate the "Cutfix" machine. Allbright-Nell made castings from it and built an Americanized version (PX-68, Photograph B of PX-17) from these castings.

R. 190, 191, 567, 573, 591, 675; PX-65; PX-67; PX-68; Photograph B of PX-17.

54. In describing this copying, Mr. Ralph W. Illsley, chief engineer for Allbright-Nell, testified on page 19 of his deposition:

    "A. * * * We found that the German fabrication was
  a problem for the maintenance people and we elected
  to construct a machine on American standards with
  American bolts and nuts and screws and things of that
  kind which a mechanic would replace in the field. The
  Germans came in with all metric system parts

  which were absolutely not interchangeable.
    "Q. You say, `We decided this.' Was that decision
  one that you made or did somebody else participate in
  it?

"A. It was our management group.

"Q. Who was the management group at that time?

    "A. Mr. Allbright, Mr. Norman Allbright, Mr. John
  Allbright.

"Q. And yourself?

"A. Yes."

R. 591, 592.

55. On page 20 of his deposition, Mr. Illsley added:

    "Q. Now after this decision to rebuild on American
  standards was made, did you rebuild?
    "A. Yes. We took the German machine, part for part,
  and made new parts similar, but to American
  standards, and installed them. We also found the
  German motors to be troublesome and we installed new
  American Motors."

R. 592, 593.

56. Mr. Carroll L. Griffith warned Mr. Norman Allbright that Griffith Laboratories and Schnell expected to be granted patents in the U.S. and that Schnell was defending his European patents and would likewise defend his U.S. patents. This was confirmed by Mr. Griffith's letter of March 22, 1957.

Griffith 532, 533; PX-40.

57. Representatives of Friess told Allbright-Nell in February of 1957 that Friess wanted Allbright-Nell to be the U.S. "Cutfix" representative. In May of 1957, Mr. Allbright told Friess that in the light of Schnell's patent position, Allbright-Nell would not enter into an agreement with Friess, but said nothing about Allbright-Nell's copying of the "Cutfix" machine.

R. 565, 675.

58. During May of 1957, Eckrich, a sausage manufacturer, and Allbright-Nell orally agreed to cooperate in constructing and testing an emulsifier for meat.

R. 676.

59. On June 13, 1957, an Americanized "Cutfix" machine having a larger hopper and larger American motor was sent by Allbright-Nell to Eckrich. This machine was a copy of a Schnell emulsifier.

R. 191, 676; PX-68; Photograph B of PX-17.

60. Mr. Nicholas H. Nusbaum of Eckrich said that after seeing the "Mince Master" machine at Saratoga, he liked it and thought that the Americanized version was "almost identical" to the "Mince Master" machine, however, "built to American standards." This view was shared by others at Eckrich and is readily evident upon comparison of the machines.

R. 613; PX-41; PX-73; PX-103.

61. During the Fall of 1957 and thereafter, defendants agreed and conspired together:

(a) To modify further the Americanized "Cutfix" machine (PX-68,
    Photograph B of PX-17) and have the modified machine operate
    like the "Mince Master" emulsifier that was displayed by
    Griffith during the American Meat Institute convention in
    September of 1956;
(b) To procure from Griffith a "Mince Master" emulsifier made by
    Schnell and sold in the U.S. by Griffith;
(c) To carry out tests with a "Mince Master" emulsifier at
    Eckrich;
(d) To use the "Mince Master" emulsifier and spare parts for
    testing and providing a standard for copying purposes and for
    comparing and finalizing their copies; and,
(e) To market an emulsifier resembling the "Mince Master"
    emulsifier for the general public, regardless of any

    U.S. patents issued to Schnell or owned by plaintiffs, or
    either of them.
  (a) R. 613, 614, 622, 624, 628-34, 636-41, 649, 650;
    PX-43; PX-44; PX-48; PX-52A; PX-52B; PX-53; PX-92A
    and C-R; PX-94A-H; PX-99; PX-100; PX-101; PX-104;
    PX-105; PX-107; PX-108; PX-109; PX-110; PX-112;
    PX-113; PX-117.
  (b) R. 631, 632, 637, 639; PX-97; PX-98; PX-102;
    PX-103; PX-104; PX-107; PX-111.
  (c) R. 615, 631, 641, 642; Sondej 3291, 3320; Schmidt
    3528-29; PX-103.
  (d) R. 641-43, 645-50; Sondej 3287-89, 3291, 3320;
    Schmidt 3514-15, 3528-29; PX-49; PX-50; PX-51A;
    PX-51B; PX-53; PX-92A and C-R; PX-94A-H; PX-115;
    PX-116.
  (e) R. 616, 637, 645, 659-62; PX-41; PX-45; PX-47;
    PX-115.

62. During this period, Allbright-Nell was given free access to emulsifiers and parts being built or tested at or by Eckrich. Plaintiffs had no such free access.

Sondej 3247, 3287-3291; Schmidt 3511, 3512; R. 616-617; DX-174; DX-175; DX-181A.

63. The oral agreement of May, 1957 between Allbright-Nell and Eckrich was in effect until March 10, 1959, at which time Eckrich and Allbright-Nell entered into a written agreement. The written agreement confirmed previous oral agreements for cooperation in the construction and testing of emulsifiers. Allbright-Nell also agreed to defend Eckrich against patent infringement suits by plaintiffs, or either of them.

R. 662-665, 676, 677; PX-54.

64. On September 21, 1957, during the American Meat Institute convention at the Palmer House Hotel in Chicago, Mr. Norman Allbright and Mr. Ralph W. Illsley of Allbright-Nell and Mr. Chester W. Schmidt and Mr. Henry Eckrich of Eckrich, met at the Palmer House and, at that time, planned to place an Americanized "Cutfix" machine on its side or in a horizontal position.

R. 676, 677.

65. Eckrich ordered from Griffith a sealed "Mince Master" machine during the Summer of 1957 and received one on November 15, 1957. It was demonstrated at Eckrich during December of 1957. It revolutionized Eckrich's processing procedure. It enabled Eckrich to produce more and better meat emulsions than it ever obtained before. This "Mince Master" machine has been used extensively by Eckrich to emulsify for sale many hundreds of thousands of pounds of meat material, and was used by Eckrich as a standard for Allbright-Nell's and/or Eckrich's copies of the "Mince Master" machine.

R. 621, 622, 631, 632, 637, 639; Schmidt 3523-3529; Sondej
    3287-3291; PX-10; PX-92A and C-R; PX-94A-H; PX-97; PX-98;
    PX-102; PX-103; PX-104; PX-107.

66. Eckrich made a horizontal emulsifier for making sausage during October-November of 1957 and it was tested by Eckrich during December of 1957.

R. 676, 677; Sondej 3278.

67. Eckrich received a second sealed "Mince Master" emulsifier from Griffith in April of 1958. This machine was designated by Eckrich as a stand-by machine for the first "Mince Master" machine to assure Eckrich that it would always have ...


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