Hautau v. Kearney & Trecker Corporation

• Citation: 191 F. Supp. 430
• Decision Date: 10 February 1961
• Docket Number: Civ. No. 19873.
• Parties: Llewellyn A. HAUTAU and Charles F. Hautau, Plaintiffs, v. KEARNEY & TRECKER CORPORATION, a Wisconsin corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

191 F. Supp. 430

Llewellyn A. HAUTAU and Charles F. Hautau, Plaintiffs, v. KEARNEY & TRECKER CORPORATION, a Wisconsin corporation, Defendant.

Civ. No. 19873.

United States District Court E. D. Michigan, S. D.

February 10, 1961.

Colman, Nord & Krass, Southfield, Mich., for plaintiffs.

Dickinson, Wright, McKean & Cudlip, Detroit, Mich., Quarles, Herriott & Clemons, Milwaukee, Wis., of counsel, for defendant.

KAESS, District Judge.

On June 2, 1954 the plaintiffs jointly made application to the United States Patent Office for a letter patent on a "Mechanical Loader and Unloader for Production Machines", which was granted a year later (on June 28, 1955) as patent No. 2,711,817. This patent infringement case is based on defendant's "Milwaukee-Matic", which allegedly embodies the invention in the above patent.

After several depositions and interrogatories, defendant filed a motion for summary judgment with supporting affidavits, pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Defendant alleges the patent is invalid because the plaintiffs did not comply with 35 U.S.C. § 102(b), in that the invention was in public use or on sale more than one year prior to the date of application for patent.

The basic function of the summary judgment is, of course, to avoid a useless trial. If there is no genuine issue of fact concerning the above charge by the defendant, the court may then determine if defendant is entitled to a judgment as a matter of law. See Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 2 Cir., 1956, 233 F.2d 9.

The following are the facts as outlined by the defendant. Charles F. Hautau first sketched this invention at the Purchasing Department of the Ford Motor Company during the fall or winter of 1949. On July 27, 1950 Ford issued a purchase order to Aviation Tool and Gauge Company, Detroit, for purchase of a machine which incorporated in part this invention. Plaintiffs' firm designed the entire machine, for which Aviation Tool and Gauge Company was to pay them. Actual construction of the machine was eventually farmed out to Turner Bros., Ferndale, Michigan. During the construction of the machine, plaintiffs performed engineering and advisory services and took motion pictures of the operation of the completed machine.

The entire machine was released on January 22, 1952 for delivery, which was completed April 3, 1952, to the Ford plant at Cleveland, Ohio. Restrictions were at no time imposed upon anyone concerning the operation of the machine.

After the Ford machine was put into production (at least as early as October 1952) many difficulties were encountered, which, however, did not include the device embodying plaintiffs' invention. After limited use for two years, during which time plaintiffs' firm maintained contact for service consultation only, Ford withdrew it from production in November, 1954, and it was thereafter scrapped.

The purchase price at delivery ($47,948) was fully paid on April 25, 1952. However an additional sum of $8,694 was paid by Ford on November 10, 1954 as an "equitable price adjustment", reflecting changes made in the machine during its construction period.

Based on the above facts, defendant claims that the invention was in public use and on sale prior to June 1, 1953, a year before the patent application, and the existence of either of those conditions would necessitate the invalidity of the patent.

Plaintiffs' basic position is that summary judgment cannot be considered since there exists an issue of fact as to whether the device on the Ford machine embodied the identical and complete invention. The preamble of claim 6 of the patent, chiefly relied upon by the plaintiffs, characterizes the invention as a "loading and unloading mechanism for production machines" (emphasis added). It is true that there is evidence that the device in the Ford machine was used only to unload articles. However, defendant argues that even if we consider this introductory phrase as being of patentable import, the device on the Ford machine, by its nature, could load with the same procedure as unloading. Movies, which were taken by plaintiffs of the Ford machine, were shown to illustrate this. If nothing more were available, perhaps there would be a genuine issue of fact. However, answers by both plaintiffs, who are the co-inventors, in their depositions conclusively determine that the complete invention was embodied in the Ford machine. Charles F. Hautau was...