Bestwall Mfg. Co. v. United States Gypsum Co.
| Decision Date | 18 April 1923 |
| Docket Number | 3170. |
| Citation | 290 F. 798 |
| Parties | BESTWALL MFG. CO. v. UNITED STATES GYPSUM CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lawrence A. Janney, of Chicago, Ill., for petitioner.
W Clyde Jones, of Chicago, Ill., for respondent.
Before BAKER and EVANS, Circuit Judges, and GEIGER, District Judge.
Respondent is the owner of two patents, No. 1,029,328, June 11, 1912 and No. 1,034,746, August 6, 1912, issued on application of Utzman for a method of making plaster board and for the product. In July, 1919, respondent had a decree against petitioner holding that the patents were valid and infringed and on January 4, 1921, the decree was affirmed by this court. Bestwall Mfg. Co. v. United States Gypsum Co., 270 F. 542. Petitioner's answer took direct issue with the allegation of the bill that Utzman was the first and true inventor.
Petitioner seeks to open the decree for the purpose of introducing evidence to the effect that one Brown was really the inventor. From the showing and counter showing we find the following situation: Respondent had plants at Chicago and Grand Rapids. Utzman had been employed by respondent to improve the process and the product. Brown was also in the employ of respondent. While Utzman was at Grand Rapids, Brown, at Chicago, made disclosures to respondent's Chicago superintendent, which he thought should be embodied in a patent application. At respondent's direction, Brown, through respondent's patent solicitors, filed an application. When Utzman returned to Chicago, he claimed to the superintendent that the whole invention, a part of which was in the Brown application, was his. The matter was referred to the solicitors, a firm of high character and standing, and on their investigation and advice the Brown application was abandoned and the Utzman applications were filed and prosecuted to issuance.
1. Petitioner's counsel, who prepared the case for trial, gives his conclusion of law that he used due diligence in looking up evidence to sustain the pleaded defenses. He does not particularize what, if anything, he did to support with proof his answer that Utzman was not the first and true inventor. He seems simply to have accepted as true the allegation of the bill and the prima facie evidence of the patent with respect to the personality of the inventor.
2. The decree of validity and infringement was affirmed on January 4, 1921, and the case was...
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...still be valid, in that non-joinder of a co-inventor would not invalidate the patent, (35 U.S.C. § 256); Bestwall Mfg. Co. v. United States Gypsum Co., 290 F. 798 (C.A.7, 1923)). Plaintiff maintains similarly as to J. C. Sellers and Benjamin B. Blackford, and the fact that a patent applicat......
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