Harlan F. Stone

“ We think it plain that at the time these documents were filed the essential elements for hatching eggs in staged incubation, as they were later claimed in the Smith patent, were known to Hastings, and that he was familiar with a structure capable of employing that method. They afford convincing corroboration of the oral testimony that the incubator in use in Brooklyn immediately preceding the filing of the application, and both incubators in use during its pendency, employed the method of the Smith claim. ”

“ From that point it passed into a passageway directly above the stacks of egg trays, thence downward through the trays to a passage beneath them, through which the current was returned to the fan in continuous circulation. A number of other witnesses, having no connection with the Hastings enterprise, including three called by petitioner, saw the incubator in operation and corroborate the testimony as to its main features; the presence within the incubator of thousands of eggs, placed in stacks or trays, hatched by the circulation through them of a fan-propelled heated current of air. ”

“ The air movement maintained will always be sufficiently brisk, however, to prevent an uneveness (sic) of temperature in different parts of the room.' The reference to an incubator in continuous operation, for deliveries once or twice a week, and to temperature regulation of the egg chamber by a propelled current of heated air, moving at a velocity sufficient to maintain an even temperature, shows that Hastings had the conception of staged incubation long before he built the Brooklyn incubator. ”

“ The hatches of the eggs furnished by some customers were failures. Others were successful. One of petitioner's witnesses testified that the hatches never exceeded 50 per cent. Lieber estimated that 50 per cent. was the average, with some people getting none and others getting 80 per cent. Hastings, who in the Canadian suit testified that the average was 40 per cent., stated that some settings ran up to 70 per cent. There is no testimony of any mechanical failure of the incubator after the initial trials of it, as a result of which an electric blower was substituted for the fan of lesser power. ”

“ Each stack, having a capacity of 5,000 eggs, was placed in a separate compartment. There was a corridor in front of the trays, giving access to the stacks, which, in operation, were closed on the corridor side by removable shutters. A motor-driven fan, placed at one end of the incubator, propelled a current of air over a moisture pan, thence through a passage at the back of the egg trays into contact with a heating pipe under thermostatic control. ”

“ De Galard de Brassac de Bearn v. Safe Deposit & Trust Co., 233 U.S. 24, 32, 34 S.Ct. 584, 58 L.Ed. 833; West Ohio Gas Co. v. Public Utilities Commission of Ohio (No. 1) , 294 U.S. 63, 70, 71, 55 S.Ct. ”