Ag Pro, Inc. v. Sakraida
| Decision Date | 24 April 1975 |
| Docket Number | No. 74-1712,74-1712 |
| Citation | 512 F.2d 141 |
| Parties | AG PRO, INC., Plaintiff-Appellant, v. Bernard A. SAKRAIDA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank H. Hunter, El Paso, Tex., J. Pierre Kolisch, Portland, Or., for plaintiff-appellant.
J. F. Hulse, Stephen B. Tatem, Jr., El Paso, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.
Today marks the third appellate appearance of this claim for infringement of a patented dairy barn flushing system. This suit for infringement of patent 3,223,070 was originally brought by Ag Pro, Inc., in 1968. A summary judgment on defendant Sakraida's motion provoked the first appeal. This court reversed and remanded for trial on the merits. 1 The second appellate go-around was an appeal from an adjudication of patent invalidity. We again reversed, but this time remanded specially for a trial court resolution of the defendant's appellate court motion for a new trial under Fed.R.Civ.P. 60(b)(2) based on newly discovered evidence of patent invalidity. 2 The district court granted the motion. Because in our view, the record on the motion establishes that defendant failed to exercise due diligence to discover the new evidence prior to entry of the former judgment, we once more reverse.
Our mandate in Ag Pro II directed the district court to enter a judgment holding the patent valid, hold a hearing on and determine Sakraida's Rule 60(b) (2) motion and, without more, certify the motion hearing record to this court. These functions have been duly accomplished, and the matter is back with the record of those supplemental proceedings. At the conclusion of its hearing the district court found that the new evidence adduced by Sakraida standing alone would produce a different result, that Sakraida had exercised due diligence and could not have discovered the evidence in time to move for a new trial under Fed.R.Civ.P. 59(b).
The patent in suit relates to a dairy barn flushing system. It involves the construction of slightly sloping barn floors which incorporate a means for storing and quickly releasing a volume of water on the floor. When the floor is flooded, it is cleansed of manure and debris without hand labor. In Ag Pro II we found that this system met the requirements of novelty, usefulness, and nonobviousness to qualify as a valid patent.
Sakraida's newly discovered evidence consists of alleged prior art which would purportedly invalidate the patent. At the hearing below Sakraida testified that purely by chance he met Hubert Meyer the owner of Mission Dairy after the time he could have moved for a new trial under Rule 59(b) had expired. After learning of Sakraida's litigation, Meyer told Sakraida that Meyer's Mission Dairy contained a flushing system which was substantially identical to the patented system. Meyer also furnished Sakraida at that time with the names of other persons who could testify to the state of the art in water flush systems. Sakraida testified that this was the first time he had full knowledge of these facts. However, the evidence clearly establishes that prior to the original trial Sakraida was aware that Mission Dairy was using a flushing system that was a possible source of prior art. In addition, Sakraida had requested W. C. Fairbank, an agricultural expert, to advise him on the state of the art. Fairbank testified that he told Sakraida or his attorney sometime before October, 1969 of the existence of the Mission Dairy and its possible importance. It is without dispute that Sakraida considered the Mission Dairy information important enough to request an associate, Aubrey Wisdom, to visit the Mission Dairy to examine the flushing system. Wisdom went to the dairy on Sakraida's behalf and asked to see the system. The manager of Mission Dairy stated to Wisdom that he did not want to get involved, and that he did not think it was right for him to show Wisdom the flushing system. It is further undisputed that at that same time Mission Dairy was open to the general public. Meyer testified that he had asked the manager not to answer questions about the equipment, but that access to visit the dairy was never denied anyone. After learning of Wisdom's rebuff, Sakraida abandoned further inquiry as to the Mission Dairy flushing system until his post-trial chance encounter with Meyer.
Sakraida contends that these facts demonstrate that he made a good faith effort to inquire into the facts surrounding Mission Dairy. He claims that the information given to him about this installation was based on rumor and hearsay, and that he could not pursue every possible lead to sources of prior art. The problem for Sakraida's contention is the high standard of proof required to substantiate Rule 60(b)(2) relief.
A motion for a new trial under Fed.R.Civ.P. 60(b)(2) is an extraordinary motion, and the requirements of the rule must be strictly met. Strauss v. United...
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