Guiberson Corporation v. Equipment Engineers

• Decision Date: 01 April 1958
• Docket Number: No. 16428.,16428.
• Citation: 252 F.2d 431
• Parties: The GUIBERSON CORPORATION, Appellant and Cross-Appellee, v. EQUIPMENT ENGINEERS, Inc., Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 431 (1958)

The GUIBERSON CORPORATION, Appellant and Cross-Appellee, v. EQUIPMENT ENGINEERS, Inc., Appellee and Cross-Appellant.

No. 16428.

United States Court of Appeals Fifth Circuit.

February 25, 1958.

Rehearing Denied April 1, 1958.

S. Austin Wier, Dallas, Tex., Turner, Rodgers, Winn, Scurlock & Terry, Howard E. Moore, George S. Terry, Dallas, Tex. Nathaniel Ely, Dallas, Tex., of counsel, for appellant.

Wentworth T. Durant, Joseph H. Schley, Peter A. Schley, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Coming up on an appeal and a so-called cross-appeal by defendant, what is in question here is the correctness of a judgment in a patent infringement suit,¹ which, finding the patent valid but not infringed, denied plaintiff's plea for injunction and damages and dismissed the suit.

Plaintiff, moving to dismiss the cross-appeal as belatedly filed, insists that the sole question for our review is whether the products sold and manufactured by defendant infringe, while the defendant, with equal vigor, insists that both infringement and validity, indeed all questions which bear on the judgment of dismissal, are here for our decision.

We agree with appellant that the district judge was without authority to extend defendant's time for filing its appeal and that filed too late, the so-called cross-appeal was ineffective as an appeal. Lejeune v. Midwestern Ins. Co. of Oklahoma City, Okl., 5 Cir., 197 F.2d 149; Southern States Equipment Corp. v. USCO Power Equipment Corp., 5 Cir., 209 F.2d 111; Howard v. Local 74, 7 Cir., 208 F.2d 930; Deena Products Co. v. United Brick & Clay Workers, 6 Cir., 195 F.2d 612.

We, however, agree with appellee that the question of the validity of the patent is before us not because of the so-called cross-appeal but because plaintiff's appeal from the decision dismissing its suit brought the whole record up and all questions going to the correctness of the judgment are properly before us. Commercial Nat. Bank of Shreveport v. Parsons, 5 Cir., 144 F.2d 231, and cases cited, including United States v. American Ry. Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087, quoted from therein.

This is particularly true of appeals in patent cases² since in such cases, of the two questions, validity and infringement, validity has the greater public importance.

While we have thus been at pains to make clear our jurisdiction to consider the contention and argument of appellee that the patent is invalid, we have not done so because we are in any doubt whether Losey made a real contribution to the art, or that the patent granted him therefor is valid. On the contrary, we are convinced, as much by appellee's undisguised imitation if not adoption of Losey's improvements as by the record showing of the prior art and the thorough going proceedings and actions in the patent office, culminating in the decision of the Court of Customs and Patent Appeals, that Losey made a real improvement and advance, entitling him to patent recognition and protection.

Rejecting appellee's contention that the very fact that there were two appeals requires that the patent should be scrutinized rather more closely than would otherwise be the case, we agree with appellant that the presumption of validity, which under the language of the statute attends the grant of a patent and places the burden on the defendant to establish its invalidity, Cameron Iron Works v. Stekoll, 5 Cir., 242 F.2d 17, is greatly strengthened in this case by the well considered judgment and opinion of the Court of Customs and Patent Appeals.³ Without, therefore, further laboring the matter here, we refer with approval to and adopt the decision in that case, both as to its discussion of the patent claims and its judgment thereon.

We turn then to the issue most vigorously argued by appellant and appellee, whether the finding of non-infringement should be set aside, to note that as is usual in cases of this kind, the appellee puts forward, as the first line of defense against the attack on the judgment, that a finding of non-infringement is a finding of fact and as any other finding it may not be set aside unless clearly erroneous.

Agreeing that the finding of infringement in patent cases is normally regarded as a question of fact, appellant insists that if so considered here it was clearly erroneous. However, citing Cameron Iron Works v. Stekoll, 5 Cir., 242 F.2d 17 and Stewart-Warner Corp. v. Lone Star Gas Co., 5 Cir., 195 F.2d 645, it convincingly argues to us that under the undisputed evidence, oral, documentary and physical, it represented in this case not a finding of fact but a conclusion of law.

Noting the absence from the court's brief oral opinion of anything that could be called a finding of fact in support of his conclusion that there was no infringement and the presence there of the erroneous legal views, among them that, whether defendant did or did not intend to infringe was material, appellant insists that the testimony as a whole, including the documents and physical evidence, requires a contrary finding of fact to that made by the district judge, and the finding of non-infringement may not stand.

Looking at the record as we may and must, as one made largely on undisputed evidence, it seems to us that appellee's arguments on non-infringement are no better than, but in effect present merely slightly different variants of, its arguments on patentability. These arguments seeking to confine appellant's patent within the precise form of its presently used device turn from time to time from this line to argue that if the patent claims are subject to a construction which saves them from the defense of anticipation, then, by the same token, they must be so narrowly confined as to afford plaintiff no real protection. Thus the gist, the whole thrust, of appellee's argument seems to be an attempt to impale the plaintiff on the horns of an inescapable dilemma.

Arguing that the patent is a combination patent which, following closely the teachings of older patents, is either...