Toledo Metal Wheel Co. v. Foyer Bros. & Co.
| Decision Date | 06 April 1915 |
| Docket Number | 2564. |
| Citation | 223 F. 350 |
| Parties | TOLEDO METAL WHEEL CO. v. FOYER BROS. & CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. S Dodge, Jr., of Chicago, Ill., for appellant.
Almon Hall, of Toledo, Ohio, for appellee.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
This was a suit to enjoin alleged infringement of a patent, and issue was joined through answer and replication. The appellee (plaintiff) offered evidence to support the allegations of the bill, and thereupon the appellant (defendant) moved to dismiss the cause on the ground that plaintiff's proofs did not make a prima facie case. The motion was denied, and defendant, declining to introduce proofs in defense, prayed final hearing. Decree was entered finding infringement and granting the usual injunction, reference, and accounting, and the decree contained other features, which will be considered later. [1] The controlling question arising upon the appeal is, whether plaintiff's evidence establishes a prima facie case
The patent in suit was granted September 7, 1909, numbered 933,079, to Otto Kurz, assignor to Melvin J. Foyer, for certain improvements in folding perambulators. The perambulators are collapsible vehicles adapted to the convenient transportation of children. The collapsible feature is designed for folding the vehicle into small compass so that it may be easily carried transported, or stored. October 30, 1909, Foyer filed his bill, January 3, 1910, the defendant answered, and on the 27th of that month the replication was filed. The issues presented were not unusual. The infringement charged was that:
'After the issuing of the letters patent * * * and before the commencement of this suit,' defendant 'did, without the license * * * of your orator, and in violation of his rights and in infringement of the aforesaid letters patent, and particularly claims 2, 3, 4, 5, 6, 7, 8, and 12 thereof, * * * make, construct use and vend to others to be used vehicles made according to * * * said invention and that it still continues so to do, and that it is threatening to make the aforesaid vehicles in large quantities and to supply the market therewith, and to sell the same.'
November 13, 1909, and before any of the evidence was adduced, a corporation was organized under the laws of Ohio, in the name of the Foyer Bros. & Co.; and on the 29th of that month Foyer assigned the patent to this corporation, and the assignment was recorded in the Patent Office April 8, 1910. July 5, 1910, the company filed an intervening petition in the cause, setting up its incorporation and alleging that it was engaged in the business of manufacturing and selling perambulators, 'commonly called 'go-carts' or 'baby carriages,' ' reciting the facts before indicated, and adopting as part of the petition the allegations of the bill previously filed by Melvin J. Foyer, as stated; it prayed to be permitted to prosecute the cause; that defendant be required to appear and answer though not under oath; that petitioner be granted the same relief prayed by Foyer, 'and for such other and further equitable relief as your petitioner may be entitled to in the premises. ' Defendant appeared and answered, and issue was joined.
The taking of evidence was begun February 21, 1911. The plaintiff offered certified copies of the articles of incorporation of the Foyer Bros. & Co., of the letters patent, and of Foyer's assignment of the patent (which is in due form) to the corporation, as such assignment appears of record in the Patent Office. Foyer testified that he signed the original of this instrument, and that he is president and general manager of the company. Concededly, as early as September 21, 1909, defendant received a letter from Foyer's counsel, stating, among other things, that Foyer had learned that defendant was 'making and selling folding perambulators which infringe the patent of September 7, 1909, No. 933,079,' and notifying defendant 'to cease this infringement.' Defendant's president had stamped the letter as 'Answered,' but he did not find the answer. An important catalogue was introduced through a witness, Mr. Silverman, who testified:
His firm (the Kobacker Furniture Company of Toledo) was a dealer in go-carts manufactured by defendant. This catalogue bears on the outside of the first sheet of its cover, near the top, the following: 'The 'Favorite' Automatic Collapsible Go-carts,' near thebottom, 'The Toledo Metal Wheel Co., Toledo, Ohio,' and the second sheet of the cover contains on the inside, 'The 'Favorite' Line of Go-carts, Children's Carriages, etc., for 1909. ' On page 3, pictures of a go-cart, both in open and folded forms, called alike 'No. 'B"' and 'Special 'B,"' appear; and on page 4, pictures, in similar forms, of 'No. 'C"""' are found. The catalogue also contains a stamped statement over the printed signature of defendant, with its address:
A full-sized sample of each of these particular types of perambulator was offered in evidence and produced in court. There is stenciled on the bottom of one, 'Spec. B,' on the other, 'C,' and on each is fastened an oval metal plate, which is stamped on the upper portion thus, 'The Toledo Metal Wheel Co.,' on the lower portion, 'Toledo, Ohio,' and between these, 'Favorite.'
Plaintiff called a mechanical expert, Alexander S. Stuart, who described the patented device in detail, and with respect to each of the claims in suit. Having his attention called to 'a folding perambulator or collapsible go-cart, upon the back of which is fastened a metal plate having stamped thereon the following: 'The Toledo Metal Wheel Co., Toledo, Ohio, The Favorite''-- and being asked whether that device was described in the specification of the patent and in the several claims in suit, he summed up quite an extended answer, thus:
'In said Favorite perambulator I find each and all of the elements included in and called for by each of the said claims of the patent numbered 2, 3, 4, 5, 6, 7, 8, and 12, and each of said elements as embodied in the Favorite perambulator has the characteristics of and functions similar to the corresponding elements called for and embodied in the said claims.'
And in the course of his cross-examination he further stated:
Although the witness was subjected to long and severe cross-examination, we do not see that his conclusions or the reasons given in their support, in his direct testimony, were materially affected.
Still it is contended that the foregoing is not enough to connect defendant with either the manufacture or sale of any of the perambulators described in the catalogue or with the effect of the testimony of the expert, and especially as respects the time intervening between the issue of the patent in suit and the filing of the original bill in 1909-- a period of 53 days. Additional evidence, however, appears in the record. Plaintiff called Mr. Southard, the president and general manager of the defendant, as a witness to testify by deposition, whose course on the witness stand is sufficiently shown below:
Several questions were put to the witness for the purpose of eliciting answers touching defendant's manufacture of carts of this kind, one of which upon advice of counsel the witness refused to answer, and the others he answered thus:
' (Witness declined to answer.)
The witness' attention being directed to the metal plate fastened to the exhibit 'Defendant's Cart No. 2,' which is stamped 'The Toledo Metal Wheel Company, Toledo, Ohio, Favorite,' he testified:
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