Black, Sivalls & Bryson, Inc. v. National Tank Company
Decision Date | 09 August 1971 |
Docket Number | No. 620-70,621-70.,620-70 |
Citation | 445 F.2d 922 |
Parties | BLACK, SIVALLS & BRYSON, INC., Plaintiff-Appellant and Cross-Appellee, v. NATIONAL TANK COMPANY, a division of Combustion Engineering, Inc., a corporation, Defendant-Appellee and Cross-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Jerry J. Dunlap and C. Clark Dougherty, Jr., Oklahoma City, Okl., Dunlap, Laney, Hessin & Dougherty, Oklahoma City, Okl., on the brief, for plaintiff-appellant and cross-appellee.
Frank B. Pugsley, Ronald L. Palmer, Houston, Tex., Baker & Botts, Houston, Tex., on the brief, and Arthur L. Wade, Tulsa, Okl., for defendant-appellee and cross-appellant.
Before SETH, McWILLIAMS and DOYLE, Circuit Judges.
This is a case involving the validity and infringement of a patent in which the trial court granted the defendant's motion for summary judgment. Plaintiff seeks a reversal and remand for trial.
Plaintiff-appellant instituted this action in the Western District of Oklahoma alleging ownership of United States Letters Patent No. 2,993,479 entitled "Fluid Heaters" and called the Thurley patent. The complaint sought an injunction and damages for patent infringement and unfair competition.1 The cause was transferred to the Northern District of Oklahoma and judgment was rendered for the defendant.
The defendant-appellee filed an answer denying validity and infringement and a counterclaim seeking a declaratory judgment that the Thurley patent was invalid and not infringed.
Following limited discovery the defendant-appellee moved for summary judgment that its National C.H.F. heater, the accused device, "does not infringe the patent in question as a matter of law and, further, that the Thurley patent is invalid as a matter of law."
The following papers were submitted in support of the motion:
1. Three discovery depositions of plaintiff's witnesses taken by defendant.
2. The construction drawings of the C.H.F. heater.
3. The Burrus patent (this is the defendant's patent, there being some contention on the part of defendant that the accused device is in accordance with this patent which was issued subsequent to the patent in suit).
4. The Thurley patent (patent in suit) together with the file wrapper.
5. The prior art patents considered and referred to by the examiner in considering plaintiff's application for the patent in suit.
The sole inquiry on this appeal is whether there are genuine issues of material fact, whereby the case should have been tried rather than disposed of on a summary basis. We are of the opinion that there are genuine issues of material fact and that the trial court erred in deciding the case on motion for summary judgment.
Although there is some suggestion that the plaintiff joined in the submission of the case on summary judgment, there is no indication that it did so. No such motion was filed on behalf of plaintiff, and we are told that plaintiff filed an affidavit of its expert only after it was told that the court intended to dispose of the case on summary judgment.
The affidavit of McMinn, plaintiff's expert, was excluded from consideration on the ground that it was conclusory; that it lacked facts.
The Thurley patent discloses and claims a heater which is said to be particularly useful in the oil, chemical and other industries for heating various types of fluids. The device comprises a wall structure or housing which forms what the patent calls a "furnace space" which contains a plurality of tubes through which the fluid which is to be heated passes. These tubes are spaced from the wall structure and from each other so as to allow the free flow of gas around the tubes. The third element consists of a plurality of short flame, high intensity combustion burner means having combustion chambers in which substantially complete fuel combustion takes place. The combustion chambers are substantially shielded from the furnace space and positioned adjacent to one surface of the wall structure "defining said furnace space." Claim 1 also requires that the high velocity jets from the high intensity burner means cause circulation of combustion gases around the tubes. The jets are the sole means for transferring heat to said tubes.
It would appear that the object which is sought to be achieved is that of uniform circulation of the combustion gases around the tubes through which the liquid to be heated flows. Even heating is sought to be achieved, and excessive oxidization and fouling of the tubes, together with tube failure, is said to be prevented. Complete occupation of the space within the furnace by the combustion gas is said to exclude air and to prevent explosion.
Judging from the descriptions in the briefs, and in the Burrus patent, the National C.H.F. heater employs a plurality of tubes through which the liquid to be heated flows. The heat source is a single long flame type burner which is mounted alongside the housing. It communicates with an elongated combustion chamber in which gas supplied to the burner is comletely burned and no flame issues from the combustion chamber. Circulation is achieved rather than from high velocity jets (as in the Thurley patent) by means of a blower which is detached from the burner. The heat source would appear to be the combustion gases. Thus, there are structural differences consisting in the main of a single burner rather than more than one together with a different method of circulating the combustion gases.
Ordinarily, at least, the question of infringement is a question of fact to be resolved by the trier of the facts in the light of all of the evidence.
Thus, in McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965), this Court said:
However, the Court also stated that this is not conclusive since infringement is not a mere matter of words. Rather, the test is whether the accused device and the device covered by the patent do the same work in substantially the same way to accomplish substantially the same result. The Court went on to say:
To continue reading
Request your trial-
Cody v. Aktiebolaget Flymo, 23575.
...to draw reasonable inferences among conflicting ones if any material issue of fact is tendered. See Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971). The confining of judgments within such limits seems to me to be an enhancement of the judicial process r......
-
TECHNOGRAPH PRINTED CIR., LTD. v. Martin-Marietta Corp.
...S.Ct. 1191, 31 L.Ed.2d 248 (1972); Grantham v. McGraw-Edison Co., 444 F.2d 210, 216 (7th Cir. 1971); Black, Sivalls & Bryson, Inc. v. National Tank Co., 445 F.2d 922, 926 (10th Cir. 1971); Woodstream Corp. v. Herter's, Inc., 446 F.2d 1143, 1149 (8th Cir. 1971); Boutell v. Volk, 449 F.2d 673......
-
Price v. Lake Sales Supply R. M., Inc.
...it is accepted. As far as we were able to ascertain, this circuit follows this latter approach. See Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971). The leading case for this proposition from our Circuit is Eimco Corporation v. Peterson Filters and Engi......
-
Palumbo v. Don-Joy Co.
... ... (Palumbo), the patentee and his company, seek review of a grant of summary judgment of ... See D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1573, 225 USPQ ... in the patent with one that was." Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S ... unclear prosecution history); and Black, Sivalls & Bryson, Inc. v. National Tank Co., 445 ... ...