Reese v. Elkhart Welding and Boiler Works, Inc.

• Decision Date: 16 August 1971
• Docket Number: No. 18292.,18292.
• Citation: 447 F.2d 517
• Parties: Terrell J. REESE and Reese Products, Inc., Plaintiffs-Appellees, v. ELKHART WELDING AND BOILER WORKS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

447 F.2d 517 (1971)

Terrell J. REESE and Reese Products, Inc., Plaintiffs-Appellees, v. ELKHART WELDING AND BOILER WORKS, INC., Defendant-Appellant.

No. 18292.

United States Court of Appeals, Seventh Circuit.

August 16, 1971.

COPYRIGHT MATERIAL OMITTED

Raymond C. Nordhaus, Chicago, Ill., Marmaduke A. Hobbs, South Bend, Ind., for defendant-appellant; John A. Dienner, Chicago, Ill., of counsel.

Eugene C. Knoblock, James D. Hall, South Bend, Ind., for plaintiffs-appellees.

Before HASTINGS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

Without our resorting to judicial notice, we cannot be unaware that the average automobilist, who for the first time has hitched a trailer to his vehicle and has naively opined that the operational pattern of the dual assembly would not differ from that of a single conveyance, must have come to the conclusion that some sort of a poltergeist had selected him as a target. The vagaries of the ensuing action are no less real even though attributable to elementary laws of physics pertaining to aligned and attached moving bodies.

Harold J. Reese, plaintiff herein, essayed at the elimination of one of the problems besetting the motorist, i. e., the elimination of side-sway under certain operational conditions on the part of the drawn trailer, with the result that on July 13, 1965 he was granted by the United States Patent Office patent 3,194,584. Subsequently, Reese assigned the patent to Reese Products, Inc., also plaintiff herein, who had theretofore been the exclusive licensee of the patent. Because of the identity of interest, the plaintiffs will hereafter collectively be referred to as "Reese." The patent appeal is from a judgment of the district court finding the patent valid as to claims 5, 7 and 9,¹ and infringed directly and contributorily by Elkhart Welding and Boiler Works, Inc. (Elkhart). Elkhart, loading both barrels of its appellate gun, denies both validity and infringement.

The progress of the litigation in the district court was marked by the due deliberation which seems to be characteristic of patent infringement cases. However, in considering hereinafter the impact of Rule 52(a), Fed.R.Civ.P., we will not be unmindful that the district judge was afforded ample time for careful consideration of the issues which were exhaustively presented in trial and post-trial briefs and that he obviously advantaged himself of that opportunity.

The complaint was filed on March 29, 1966, and the case was put at issue shortly thereafter by the defendant's answer and counterclaim and the plaintiff's reply. Intervening discovery procedures occurred and the case was tried for five days in May of 1968. On March 6, 1969, Judge Grant announced from the bench that he had had a rather firm notion of what the weight of the evidence was at the time the case was tried and that a study of the post-trial briefs had confirmed his earlier opinion. He then followed with an analysis of the issues leading to a determination of validity and infringement and he advised the plaintiff to submit proposed findings of fact and conclusions of law in accordance therewith.

The proposed findings and conclusions were submitted in due course and defendant filed written objections thereto, which, after consideration by the court, were in effect overruled when the court on November 25, 1969 adopted and entered the proposed findings of fact and conclusions of law. Judgment was entered accordingly on December 19, 1969.

While a passage of approximately three and a half years from complaint to judgment is noted, an examination of the record indicates that this in substantial part was due to the careful attention to the complex issues by both counsel for the parties and the judge.

Elkhart vestibularly complains that the district judge wrote no opinion and prepared no findings but adopted the findings and conclusions prepared and submitted by Reese. While this procedure has been criticized, United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-657 n. 4, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), such practice is certainly within the trial court's discretion and indeed can be of considerable assistance to a trial court in a case where the evidence is highly technical, Heterochemical Corp. v. United States Rubber Co., 368 F.2d 169, 172 (7th Cir. 1966). We are not persuaded by Elkhart's brief and oral argument, nor by the record itself, that there has been any abuse of discretion in the case now before us.²

Another threshold contention advanced by Elkhart concerns the extent to which and the light in which we might examine and evaluate the evidence submitted below. Elkhart argues that particularly when findings and conclusions are based wholly or largely upon a consideration of documents and physical exhibits, the court of appeals has the right to interpret such evidence for itself and is as equally competent as the trial court to do so. Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227, 1229 (7th Cir. 1969).

In the case before us, while there were numerous exhibits introduced into evidence, there was also substantial testimony by witnesses in connection with these exhibits. Here, then, we are limited in our review of the findings of fact to a determination of whether or not they are clearly erroneous. This rule is well established and was clearly stated by Judge Castle in Wahl v. Carrier Manufacturing Co., 358 F.2d 1, 3 (7th Cir. 1966), where he said:

"Therefore, insofar as the detailed findings of the court, upon which it predicates its conclusions of validity and infringement, concern factual issues such as the use made of prior art, the nature of the improvement made over prior art, and the characteristics and operational functions of the patented structure and the accused apparatus, Rule 52(a) of the Federal Rules of Civil Procedure (28 U.S.C.A.) applies. The court heard the testimony of expert witnesses in connection with these matters and witnessed the demonstration of the physical exhibits, including the operation of the accused apparatus. The scope of our review of such findings is therefore limited to a determination of whether or not they are `clearly erroneous\'. Armour & Co. v. Wilson & Co., 7 Cir., 274 F.2d 143, 151-157; Minnesota Mining and Mfg. Co. v. Technical Tape Corp., 7 Cir., 309 F.2d 55, 57; Aerosol Research Company v. Scovill Manufacturing Co., 7 Cir., 334 F.2d 751, 753. If they find support in the evidence we are bound thereby and there remains but the question of whether the court applied the correct legal criteria in reaching the ultimate conclusions it did."

This rule is in contrast to that applicable where the evidence is entirely documentary, with physical exhibits. See, Nasco, Inc. v. Vision-Wrap, Inc., 352 F. 2d 905, 908 (7th Cir. 1965), again written by Judge Castle.

We must make allowance for the advantages possessed by the trial court in appraising the significance of conflicting testimony and reverse only "clearly erroneous" findings. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672 (1949).

Departing at this point from the naive motorist's simplistic concept that a trailer hitch is merely a socket on a bar which fastens over a ball on the posterior of his automobile, we must embark to some extent on the technical nomenclature apparently implicit in all patent cases.

As an initial matter, we note the state of the art prior to the development of the patent in controversy as established by the evidence.

Both Reese and Elkhart have been engaged for some years in the business of manufacturing and selling trailer hitches. Earlier models are not now produced but in 1957 Reese commenced production of a spring bar type hitch known as the Bar-Level hitch. This hitch transfers a part of the load of a trailer to the front wheels of the towing vehicle.

The Bar-Level hitch consists of a ball mount fixedly carried by and projecting from the rear of the frame of a towing vehicle and carrying a hitch ball to which a trailer is pivotally connected by means of a coupler carried by a projecting tongue and A-frame at the front of the trailer. The ball mount has a pair of oppositely laterally projecting portions at each of which is pivoted a trunnion carried by the forward end of each of a pair of elongated spring bars. The spring bars extend along opposite sides of the tongue of the trailer and are suspended at their rear free ends by means of chains which are anchored to the trailer tongue at brackets positioned rearwardly of the hitch ball and coupler. By proper positioning of the chains, the spring bars are flexed upwardly and thereby tensioned to cause a part of the weight at the front of the trailer to be transmitted to the frame of the towing vehicle in a manner to ensure that it is transmitted and distributed to both the front steering wheels and the rear wheels of the towing vehicle.

This particular hitch was the basis of a patent issued to Reese on September 13, 1960, 2,952,475 (Reese Patent I).

It has been necessary to describe the apparatus and function of Reese Patent I because of the contention, inter alia, of Elkhart that the patent in question, Reese II, is in effect merely a variation of and no invention over Reese I.

Elkhart has produced for a number of years a hitch known as the Bock Bar-Equalizing hitch whose basic construction, apart from minor details of construction, is similar to plaintiff's Bar-Level hitch. Elkhart's Bar-Equalizing hitch was produced by that company under license from Reese.

While hitches of the type just described were accepted and widely used, it was recognized in the art that problems nevertheless existed. A particular problem was that of side-sway resulting from side winds or from passing trucks or buses, especially during high speed travel. Terrell Reese's conception of the invention of the hitch involved in Reese Patent II commenced in 1962 and was...