329 F.Supp. 1240 (N.D.Ill. 1971) 170 U.S.P.Q. 239 Marian SHOUP, Plaintiff, v. MARSHALL FIELD & CO., an Illinois corporation, Defendant. No. 69 C 1682. United States District Court, N.D. Illinois, Eastern Division. May 10, 1971
Lloyd L. Zickert, Kinzer, Dorns&sZickert, Chicago, Ill., for plaintiff.
Keith V. Rockey, McDougall, Hersh & Scott, Chicago, Ill., for defendant.
Bruce B. Krost, Woodling, Krost, Granger & Rust, Cleveland, Ohio.
Herbert W. Nichols, Chicago, Ill.
Dallett Hoopes, Waterbury, Conn., of counsel.
MEMORANDUM OPINION AND ORDER
McGARR, District Judge.
This case is a suit by the holder of a patent for a smokeless broiler. The defendant Marshall Field & Company is alleged to have infringed the plaintiff's broiler by sale of a similar smokeless broiler manufactured by the Dominion Company.
The defendant has filed a motion for summary judgment based on four separate grounds of alleged invalidity. In plaintiff's answer, the Dominion broiler covered by patent 3,356,012 is stated to be the infringing device. The defendant's reply directs the court's attention to that patent in comparison with the plaintiff's patent numbered 3,174,863. Thus, the court has before it the plaintiff's patent and patent 3,356,012 which defendant and plaintiff agree describes the accused Dominion broiler. This unusual simplification of the issues makes possible a comparison of the plaintiff's patent and the accused device at the pleading stage, with no further evidence.
The plaintiff's patent concerns a process of preventing smoking and burning of the grease drippings from cooking meat by controlling the relative distances between the grill on which the meat rests, the heating element below it and the pan that catches the grease drippings. These distances are the means for achieving maximum and minimum temperatures of the components involved with the result that grease will neither smoke nor flame upon contact with the high temperature grill nor upon contact with the much lower temperature pan collecting the grease. The Dominion broiler, on the other hand, traps the grease through a slitted reflective baffle plate which directs the grease to a pan below in a manner designed to shield it from the heat generated by the electric grill. This corrugated shield then, rather than mere distance, becomes the means of achieving the low temperature necessary at the grease pan to prevent flaming and smoking.
The plaintiff may or may not have been the first to discover that meat drippings will not flame or smoke above or below certain temperatures. In any event, this discovery is not patentable. What is patentable is the device for achieving the appropriate temperatures at appropriate locations in an electric broiler to eliminate flaming and smoking in the meat broiling process. A comparison of the patent sued upon and the patent describing the accused device reveals that they each accomplish this goal in a different way, one by distance and one with a reflective shield. The Shoup patent, therefore, is not infringed by the Dominion broiler.
Therefore, there being no material issue remaining to be resolved, the defendant is entitled to summary judgment. Defendant Marshall Field & Company's motion for summary judgment is hereby granted.