Bassick Mfg. Co. v. Adams Grease Gun Corporation
| Decision Date | 01 December 1931 |
| Docket Number | 143.,No. 142,142 |
| Citation | 54 F.2d 285 |
| Parties | BASSICK MFG. CO. v. ADAMS GREASE GUN CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Lynn A. Williams, of Chicago, Ill. (Stephen H. Philbin and Fish, Richardson & Neave, all of New York City, and Williams, Bradbury, McCaleb & Hinkle, of Chicago, Ill., of counsel), for plaintiff.
Alfred W. Kiddle, Wylie C. Margeson, and Henry T. Hornidge, all of New York City, for defendant.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Upon petition for rehearing with respect to claims 14 and 15 of Gullborg patent, No. 1,307,734, Adams Grease Gun Corporation has insisted that purchasers from the plaintiff of Alemite pin fittings, separately patented under Gullborg patent, No. 1,307,733, have an implied license to use them in the only way possible, namely, in the patented combination, and that the seller is estopped to assert the contrary and to charge defendant with contributory infringement by furnishing grease gun and coupler for such use.
The defense of implied license or estoppel was not pleaded below, nor was it mentioned in the defendant's brief upon appeal. It might, indeed, be now disposed of upon the principle that it is too late to present a question for the first time on a petition for rehearing. Independent Wireless Co. v. Radio Corp., 270 U. S. 84, 46 S. Ct. 224, 70 L. Ed. 481; Merriman v. Chicago & E. I. R. Co., 66 F. 663, 664 (C. C. A. 7); A. F. Withrow Lumber Co. v. Glasgow Inv. Co., 106 F. 363, 364 (C. C. A. 4); Hull v. Burr, 207 F. 543, 544 (C. C. A. 1).
Had the issue been framed and tried in the court below, no doubt the evidence as to the plaintiff's method of selling would have been more clear. As it is, counsel are in dispute as to just what the record shows on this subject. The method of selling appears to be to supply automobile manufacturers and dealers with a stock of fittings, guns, and couplers, separately priced, and to let them equip the cars, putting on as many fittings as may be necessary and adding a gun and coupler. The various parts are also sold separately for replacements. We find no evidence that defendant has ever sold its gun and snap-on coupler to any one for use in conjunction with Alemite pin fittings which had been purchased independently of an Alemite gun and coupler. As we held in General Electric Co. v. Continental Lamp Works, 280 F. 846, the defendant has the burden of proof to establish an implied license, and, if we were now to consider the question, despite its belated presentation, we should hold that that burden had not been carried.
We adhere to our former opinion.
On Motion to Recall and Modify Mandate.
After the mandate of this court had gone down, Adams Grease Gun Corporation (hereafter referred to as the defendant) moved that the mandate be recalled and amended to allow the defendant to apply to the District Court for permission to amend its answer by including therein the defense of implied license or estoppel and to reopen the proofs to take newly discovered evidence to establish such defense. The evidence, it is alleged, will show that,...
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...the burden of proving the establishment of an implied license falls upon the defendant. Bassick Manufacturing Co. v. Adams Grease Gun Corp., 54 F.2d 285, 286, 12 USPQ 78, 79 (2d Cir.1931). The evidence provided by Bolser to meet this burden fails in at least two First, no license can be imp......
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