Thomas & Betts Co. v. ELECTRICAL FITTINGS CORPORATION
| Decision Date | 12 December 1938 |
| Citation | 100 F.2d 403 |
| Parties | THOMAS & BETTS CO. et al. v. ELECTRICAL FITTINGS CORPORATION et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Darby & Darby, of New York City (Samuel E. Darby, Jr., and Floyd H. Crews, both of New York City, of counsel), for defendants-appellants.
Bohleber & Ledbetter, of New York City (William Bohleber and Francis H. Fassett, both of New York City, of counsel), for plaintiffs-appellees.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The plaintiffs brought the usual action in equity against the defendants in the District Court for the Southern District of New York charging infringement of claims 1 and 2 of the United States Patent No. 1,769,947 granted to Fullman.
After hearing, the court held claim 1 of the patent valid but not infringed and claim 2 invalid. A final decree to this effect with a consequent dismissal of the bill of complaint was entered April 27, 1938. The plaintiffs took no appeal from the decree but on June 28, 1938 the defendants filed a petition for appeal and an order allowing their appeal was made by the District Court the same day.
On August 19, 1938, a disclaimer of claim 2 was filed. The defendants, insisting that the plaintiffs unreasonably delayed or neglected to file their disclaimer contrary to the provisions of Sections 4917, 4922, R.S., 35 U.S.C.A. §§ 65, 71, moved to have the cause remanded to the District Court with directions to enter a decree holding the entire patent invalid. The plaintiffs have moved to dismiss the appeal.
The plaintiffs' motion to dismiss the appeal of the defendants is based on the ground that the appeal can raise no questions not already moot because of the fact that the defendants have already been granted in the dismissal of the bill all the relief to which they are entitled. The defendants reply that as claim 1 was held valid they will be deprived in any subsequent litigation of their right to contest its validity since by this decree that will have become res adjudicata and so they are prejudiced by the decree. They have found some support for their claim of right to appeal in Oliver-Sherwood Co. v. Patterson-Ballagh Corporation, 9 Cir., 95 F.2d 70, 71. Perhaps that decision may be somewhat distinguished on the facts but, however that may be, we cannot hold that under this decree the defendants are estopped from contesting again the validity of that claim. The reason is that the validity of claim 1 was in no sense necessary to support the decree dismissing the bill. Indeed, the dismissal of the bill followed notwithstanding the findings on which claim 1 was held valid. Thus it appears that the defendants have already received all the relief they can obtain in this action and they have no right to contend further that it should...
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