Jacuzzi Bros. v. Berkeley Pump Co.

• Decision Date: 12 September 1951
• Docket Number: No. 12540.,12540.
• Citation: 191 F.2d 632
• Parties: JACUZZI BROS., Inc. v. BERKELEY PUMP CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F.2d 632 (1951)

JACUZZI BROS., Inc. v. BERKELEY PUMP CO. et al.

No. 12540.

United States Court of Appeals Ninth Circuit.

July 23, 1951.

Rehearing Denied September 12, 1951.

Charles O. Bruce, Nathan G. Gray, Berkeley, Cal. (Edward Brosler, Berkeley, Cal., of counsel), for appellant.

Mellin, Hanscom & Hursh, Oscar A. Mellin, LeRoy Hanscom and Jack E. Hursh, San Francisco, Cal., for appellees.

Before STEPHENS and BONE, Circuit Judges, and FEE, District Judge.

JAMES ALGER FEE, District Judge.

Appellants hold two United States patents (Nos. 2,424,285 and 2,344,958) and bring suit for infringement by structures manufactured by defendant. The defendant denied and asked for declaratory judgments of invalidity of both patents.

These patents describe multi-stage centrifugal pumps with low and high pressure discharge openings. Distinct pumping systems are outlined, embodying such pumps and injector assemblies as integral parts thereof. It is represented that these patents cover three pumping systems: Patent 2,424,285 is said to cover Systems A and B. System A unites an injector with a pump unit of the impeller type. The discovery claimed is that a discharge is obtained at low pressure from an intermediate stage of the pump without adversely affecting the rest of the system, which thus may deliver large volumes of water at low pressure. However, a control valve is still required. System B is also embodied in 2,424,285. This device involves a dual purpose pressure system which can smiultaneously supply high pressure low volume requirements of the household and low pressure high volume requirements of irrigation, and additionally provide automatic pump starting from either discharge. System C is claimed in Patent 2,344,958. The discovery here is announced as the creation of an injector type system which is self balancing and inherently stable. It requires no control valve. It is contended to be an improvement from that shown in 2,424,285. The main discovery is said to be "in a pump system employing the injector principle if the injector were supplied from a stage of the pump unit other than those from which the service charge is taken and the flow of water to the injector were favored over flow to service, the pump unit will automatically meet changing requirements * * *," and the pump will not lose its prime.

A characteristic pump system, according to these claims, is divided into two portions, that of the well casing and the pump unit. That portion in the casing has a suction line leading up to the pump, and therein is installed an injector assembly consisting of a venturi tube which receives water both from the well and from a nozzle which is provided with a separate passage connected with the pump by a pressure line. The pump comprises a number of impeller stages disposed above one another for operation in series. Each stage is cased and has an impeller unit of the centrifugal type housed therein, all such units being affixed to a common impeller shaft and adapted to rotate therewith. By virtue of the rotation, a suction is created which assists to draw the water from the well. By the centrifugal force created in each impeller, water is discharged to the next in series, and the velocity of the impeller discharge is transmitted into higher pressure by virtue of guide elements. At an intermediate impeller stage, the water is positively divided, part passing out at low pressure for use, but sufficient volume is forced into the eye of the succeeding impeller. The highest impeller unit receives the output of the next lower in sufficient quantity to keep the operating unit of the injector submerged and, in cases where there is at this point a discharge to service, to keep the operating unit of the injector favored over discharge at all times. The water may be here divided so that a portion goes into a discharge spout while the balance goes into the injector unit and thus assists in raising the pressure in the suction line. In another form, the high level discharge is lacking and all of the water from this stage goes into the injector unit. The patents in question provide one of the intermediate stages with a low pressure discharge spout so that the water is divided at this impeller stage between the discharge spout and the eye of the next impeller. Through these means, as above indicated, there may be a simultaneous discharge of water for use at the first or an intermediate stage in large volume at low pressure and a discharge in small volume at a high pressure, either partly to the injector system and partly for use or altogether into the injector system.

The Court found as to the accused devices:

"That the defendants' accused pumping system is a system which includes a multistage centrifugal pump with the impellers arranged in series on a vertical shaft. An injector assembly is connected to and is supplied from the high-pressure discharge of the last impeller stage of the centrifugal pump. A low-pressure discharge opening is tapped into the first stage so that there may be a simultaneous discharge of water to service or use from the first stage at one pressure and a discharge to the injector from the last stage at a higher pressure.

"In the defendants' accused pumping system the force of gravity accomplishes the division of water between the low-pressure discharge outlet and the next succeeding impeller by arrangement of the eye of the said impeller at an elevation lower than the low-pressure discharge opening so that such impeller eye is always submerged and is fully supplied before water can flow through the low-pressure discharge opening.

"That defendants' accused pumping system does not employ the means of the patents in suit of positively dividing the water between a discharge opening tapping an impeller stage and the eye of the succeeding impeller, but instead arranges the eye of the impeller to be fed at a lower elevation than the discharge opening so that the force of gravity will keep the eye of the impeller submerged although water is discharging through the discharge opening, * * *."

The defendant claims that an accused pump may be described as a multi-stage centrifugal pump having a high pressure discharge from the last stage to the jet, whereby water under influence of the jet is supplied to suction of the centrifugal pump so that water passes through first stage of centrifugal pump, thence into surrounding chamber, whence a portion of the water then discharges at low pressure through low pressure discharge while the remainder passes through the last stage and discharges under high pressure solely to the jet and thus the system is inherently self-balancing in that subsequent stages are maintained submerged in water, flowing by gravity from a chamber into which first stage empties, before passing to low pressure discharge, and therefore no control valve is necessary.

In essence, the claim of defendants was that the accused pumps were developed logically from the prior devices which had been manufactured by them over a number of years and that no invention was involved.

The Court tried the issues and found that the devices accused did in fact accomplish the same results in the same manner and by precisely the same means as those constructed according to the teaching of the patents of plaintiffs. The minor variations were held to be immaterial. This finding of the Court is firmly founded and is not controverted. The Court further found that the teachings of the patents in suit resulted in constructions both novel and useful. There is support in the evidence for these findings, and these are therefore affirmed.

But this leaves open the vital question of whether there is invention.¹ The Trial Court found as a fact, based largely upon an incisive examination of the prior art, that the patents in suit were void for lack of invention. Although it is not expressly stated that this conclusion is based upon evidence establishing the thesis beyond a reasonable doubt, the Trial Court expressed no doubt. And the record shows that such conclusion was supported by substantial evidence. But it is contended that, since the Patent Office and the Trial Court disagreed, we should find the facts de novo. The assumption of such authority by the appellate court would be an usurpation. However, we examine the facts to determine whether the findings of the Trial Judge are clearly erroneous under Rule 52, Federal Rules of Civil Procedure, Title 28 U.S.C.A., and must be set aside.

If there is not firm adherence to such a rule, everything is cast adrift. The trial courts find the facts. If appellate courts exercise no self-restraint, then, after the primary facts are thus found, these same facts are found anew twice over, with varying results. Not only is there no finality, but the findings may change with shifting personnel or on subsequent hearings. Not only finality, but stability is lost.² All is confusion.

But further, a great many of the patents, which were brought to light in this lawsuit and considered by the Trial Court, had not been previously considered by the Patent Office.³ Even one prior art reference, which has not been considered by the Patent Office, may overthrow the presumption of validity,⁴ and, when the most pertinent art⁵ has not been brought to the attention of the administrative body, the presumption is largely dissipated. Such is the case here.

The presumption of validity of administrative grant has been in recent years almost reduced to nullity in patent cases. The justice of the abandonment of this doctrine might be claimed because some absurd results have been reached by administrative bodies.⁶ However, no matter what defects there may be in administrative bodies or courts composed of experts, questions of fact should be settled in the trial tribunal, reversible only because of clear error.

Based upon these guiding considerations, the findings will be examined to discover whether ...