Maulsby v. Conzevoy
| Decision Date | 02 June 1947 |
| Docket Number | No. 11183.,11183. |
| Parties | MAULSBY v. CONZEVOY. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Fred H. Miller, of Los Angeles, Cal., for appellant.
Charles M. Fryer, Harold I. Johnson, and A. W. Boyken, all of San Francisco, Cal., and John Flam, of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS and ORR, Circuit Judges.
Appellant brought an action against appellee for infringement of claims 1-5 of patent No. 1,875,077.1 Appellee filed an answer and two amended answers. His defenses were that the claims were invalid, and that, if valid, they were not infringed. The case was tried by the court without a jury. The court held the claims invalid and entered judgment dismissing the action. From that judgment this appeal is prosecuted.
The patent was applied for on October 21, 1930, and was issued on August 30, 1932. The specification states: "This invention relates to a method of and means for applying backing fabrics to silk linings, and it has reference particularly to a novel method of attaching backing fabrics, such as fleeced cotton, to silk linings of that character used in the interior decoration of caskets and the like." Claims 1-5 read as follows:
Appellee alleged, in substance and effect, that the methods described in the claims were not new, and that therefore the claims were invalid for lack of novelty. The question thus presented was one of fact.2
Appellee alleged, in substance and effect, that the methods described in the claims did not involve invention, but were merely the product of ordinary skill, and that therefore the claims were invalid for lack of invention. The question thus presented was one of fact.3
On both questions — the question of novelty and the question of invention — the evidence was conflicting. Resolving the conflicts in favor of appellee, the court found that the methods were not new, that they did not involve invention, and that therefore the claims were invalid for lack of novelty and for lack of invention. These findings are supported by substantial evidence, are not clearly erroneous and should not be disturbed.4
The second amended answer contained a counterclaim for declaratory relief.5 Appellant says that the trial court erred in permitting the counterclaim to be filed. In that court, however, no objection to such filing appears to have been made, nor does it appear that any valid objection could have been made.6 No relief was granted on the counterclaim. Instead, the counterclaim was dismissed. Obviously, appellant was not prejudiced by its filing.
Appellant filed a reply to the counterclaim. The reply alleged on information and belief, that persons other than appellee had contributed to the defense of the action and were actively participating in such defense; alleged that...
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