Beyer Co. v. Fleischmann Co.

• Decision Date: 11 November 1926
• Docket Number: No. 4585.,4585.
• Citation: 15 F.2d 465
• Parties: BEYER CO. et al. v. FLEISCHMANN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.2d 465 (1926)

BEYER CO. et al. v. FLEISCHMANN CO.

No. 4585.

Circuit Court of Appeals, Sixth Circuit.

November 11, 1926.

Donald M. Carter, of Chicago, Ill. (Parker & Carter, of Chicago, Ill., and Day & Day, of Cleveland, Ohio, on the brief), for appellants.

Berkeley W. Henderson, of Cleveland, Ohio (Baker, Hostetler & Sidlo, of Cleveland, Ohio, and Mayer, Warfield & Watson, Frederic P. Warfield, and Leonard A. Watson, all of New York City, on the brief), for appellee.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

This suit in equity charges defendants (appellants here) with infringement of letters patent Nos. 1,148,328 and 1,151,526. The patents relate to a process for the manufacture of bread. The infringement was alleged to have resulted from the manufacture and sale of a yeast food used in the making of bread. The bill sets up as ground for the relief sought, among others, the proceedings in Ward Baking Co. v. Hazleton Baking Co. (D. C.) 292 F. 202, wherein the two patents were adjudged valid, and alleges that the plaintiff herein was the plaintiff in that case, and that defendants herein were the real parties defendant in interest in that case. The proceedings and judgment in that case were pleaded in bar of defendants' right to question the validity of the patents. By joint answer defendants put in issue that plea of adjudication, and also denied the other averments of the bill, presenting the questions: First, as to whether defendants were in such privity with the Hazleton Baking Co. Case as to make the judgment in that case binding upon them; and, second, if so, whether there was equivalency in the legal sense between the process involved in that case and defendants' present process, or from a broader consideration, whether the later process is an infringement on the claims of the patents. Upon both issues the trial court found for the plaintiff.

At the hearing on the first of these questions the defendants introduced no evidence, but plaintiff introduced certified copies of the proceedings and judgment in the former case. They showed that the main defense was anticipation by long-continued prior use by David Beyer, the owner of the Beyer Company; that in the opening statement in that case it was said by counsel for plaintiff, and not denied, that his understanding was that the defense was being conducted by the Beyer Company; that Beyer was present throughout the trial and testified for defendant; that counsel for defendant, who was originally counsel for defendants in this case, in stating the case for the defense, among other things said: "There is nothing inventive in the process which they claim under the first patent. It is not new. We have used this since 1898. When I say `we,' I speak of the Beyer Company. We have used calcium salts, ammonium salts, and bromates, and stand ready to prove it, separately and in combination with other chemical compounds, since 1898;" that the trial judge in an opinion said: "In fact, the Beyer Company has been present at the trial and assisted in the defense against the charge of infringement; hence the essential question remaining is whether the use of Beyer's yeast food makes defendant liable to plaintiff's charge;" that an interlocutory decree was entered sustaining the validity of the patents, and before the final judgment of like effect was rendered on August 29, 1924, an order was entered substituting the Fleischmann Company as plaintiff for the Ward Baking Company.

The general rule is that one who prosecutes or defends a suit in the name of another, to establish or protect some interest of his own, or who openly assists in an action in aid of some such interest, to the knowledge of the opposing party, is as much bound by the judgment as he would be if he had been a party of record. Penfield v. Potts & Co. (6 C. C. A.) 126 F. 475, 61 C. C. A. 351; Greenwich Ins. Co. v. Friedman Co. (6 C. C. A.) 142 F. 944, 74 C. C. A. 114; Foote v. Parson, etc. (6 C. C. A.) 196 F. 951, 118 C. C. A. 105; Southern Pacific R. Co. v. United States, 168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. 355; Souffront v. La Compagnie Des...