Leuschner v. Kuther

314 F.2d 71 Alfred LEUSCHNER, an Individual, Doing Business Under the Name and Style of Al's Machine Shop; and Wilbur-Ellis Company, a Corporation, Appellants, v. Max K. KUTHER, an Individual, Appellee. No. 17756. United States Court of Appeals Ninth Circuit. January 29, 1963. 1 Naylor & Neal, James M. Naylor, and Frank A. Neal, San Francisco, Cal., for appellants. 2 Mellin, Hanscom & Hursh, Oscar A. Mellin and Carlisle M. Moore, San Francisco, Cal., for appellee. 3 Before JERTBERG and MERRILL, Circuit Judges, and PENCE, District Judge. 4 PENCE, District Judge. 5 Appellee, Kuther (plaintiff below), was the owner of a patented fish canning machine. All machines manufactured with the authority of the patentee were made solely to pack fish into one-pound size cans, 3 inches in diameter and 4-11/16ths inches high. The four machines involved here, when new, sold for between $8,000 to $10,000, and appellee was paid a royalty of $1,500 per machine. The machines were designed to pack small fish such as sardines, and because of their construction and mode of operation would be useless to pack large fish such as salmon. As the patented machines were manufactured, whole small fish…