Bullock Elec. & Mfg. Co. v. Westinghouse Elec. & Mfg. Co.

• Citation: 129 F. 105
• Decision Date: 08 March 1904
• Docket Number: 1,242.
• Parties: BULLOCK ELECTRIC & MFG. CO. v. WESTINGHOUSE ELECTRIC & MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

129 F. 105

BULLOCK ELECTRIC & MFG. CO. v. WESTINGHOUSE ELECTRIC & MFG. CO.

No. 1,242.

United States Court of Appeals, Sixth Circuit.

March 8, 1904

Arthur Stem, George Heidman, and Clarence E. Mehlhope, for plaintiff in error.

Frederic H. Betts, Thomas B. Kerr, and C. Hammond Avery, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

1. The willful violation of an injunction by a party to the cause is a contempt of court constituting a specific criminal offense. Ex parte Kearney, 7 Wheat. 38, 42, 5 L.Ed. 391; Crosby Case 3 Wilson, 188; New Orleans v. Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354; Hayes v. Fischer, 102 U.S. 121, 26 L.Ed. 95; 4 Ency.Pl.& Pr. 766 et seq.

It is immaterial to consider the distinction sometimes noticed between criminal and civil contempts, inasmuch as both kinds involve the vindication of the authority of the court whether the remedy incidentally inure to the benefit of a party or not. Cyclo. Law & Proc. 6 et seq.

The proceeding to punish for a contempt is in its nature a criminal proceeding, whether the result be partially remediable or not, and the same rules prevail which govern in the trial of indictments, the defendant being entitled to the benefit of any reasonable doubt. Accumulator Co. v Consolidated Electric Co. (C.C.) 53 F. 793; In re Acker (C.C.) 66 F. 291; Harwell v. State, 10 Lea, 544; 4 Ency.Pl.& Pr. 768 et seq.; U.S. v. Jose (C.C.) 63 F. 951.

Although the contempt consist in the violation of an injunction granted by a court of equity, the proceeding for its punishment 'is a new and distinct proceeding, and is quite independent of the equities of the case on which the decree is founded,' and 'an appeal is not an appropriate remedy for obtaining a review. ' City of Frankfort v. Deposit Bank of Frankfort (decided at February session of this court) 127 F. 812; New Orleans v. Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354; In re Chetwood, 165 U.S. 443, 17 Sup.Ct. 385, 41 L.Ed. 782.

Is it reviewable by a writ of error? A contempt proceeding is classified as a misdemeanor and not as a felony. In re Acker (C.C.) 66 F. 291. Misdemeanors are reviewable by this court upon writ of error by virtue of the broad appellate powers conferred by the act of March 3, 1891, c. 517, 26 Stat. 826 (U.S. Comp. St. 1901, p. 547), establishing Circuit Courts of Appeal, and defining and regulating the appellate powers of United States courts. If, therefore, the imposition of the fine complained of 'was a judgment in a criminal case' as it is defined to be in New Orleans v. Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354, it was a judgment in a misdemeanor case; for contempts are universally classified as misdemeanors, and not felonies. In re Acker (C.C.) 66 F. 291. If a judgment in a misdemeanor case, it is reviewable upon writ of error by this court. This conclusion was reached by the Circuit Court of Appeals for the Second Circuit in Gould v. Sessions, 67 F. 163, 14 C.C.A. 366. But in Nassau Electric R. Co. v. Sprague Electric Co., 95 F. 415, 37 C.C.A. 146, and Christensen Engineering Co. v. Westinghouse Air-Brake Company (decided Feb. 15, 1904) 129 F. 96, writs of error were dismissed upon the authority of In re Debs, 158 U.S. 564, 573, 15 Sup.Ct. 900, 39 L.Ed. 1092.

In the statement of the Debs Case, at page 573, 158 U.S., and page 903, 15 Sup.Ct., 39 L.Ed. 1092, it is stated that the defendants in that case had 'applied to this court for a writ of error, and also one of habeas corpus. The former was denied, on the ground that the order of the Circuit Court was not a final judgment or decree. ' The only report of the decision on the writ of error is found in 159 U.S. 251, 15 Sup.Ct. 1039, where the statement is, 'Petition denied.'

The Supreme Court had no jurisdiction in respect of writs of error in misdemeanor cases, and the writ of error upon this ground was necessarily denied. The reporter's statement that it was denied because the order 'was not a final judgment or decree' is doubtless an error. Certainly we do not feel justified in departing from the well-settled doctrine, so often enunciated in former cases, in respect of the distinctness of a judgment imposing a fine for a contempt from the case in which the disobeyed order was made, upon so slender an authority. If the judgment, as in this case, was in fact unconditional and absolute, so that nothing remained but to execute it, it was in every sense a final judgment.

The claim that a defendant in such circumstances must await the final result of the cause in which the injunction was granted before he can have the judgment inflicting fine or imprisonment reviewed upon the theory that the judgment is not final is absolutely unsupportable. If it be an independent and distinct proceeding from the residue of the case, it will be no more final after that case has reached a final decree than when the fine was imposed. To say that he may pay his fine or endure his imprisonment and review the legality of the matter at some indefinite time in the future is to deny, in effect, the right of review at all. The motion to dismiss the writ is denied.

Was the defendant, on the conceded facts of the case, guilty of contempt as matter of law? Upon this writ of error no question as to whether the injunction was rightly or wrongly, providently or improvidently, issued can arise. The court confessedly had jurisdiction of the parties and of the subject-matter, and the bill of exceptions recites that the temporary injunction was issued upon bill, answer, exhibit, affidavits, 'and upon the agreement of the defendant.'

Neither is the result to turn upon any question of conflicting fact, for it is not the province of a reviewing tribunal to weigh the facts upon a writ of error.

The claims which defendant was enjoined from infringing were the first and third of patent No. 381,968, granted to Nikola Tesla, May 1, 1888, and read as follows:

(1) 'The combination, with a motor containing separate or independent circuits on the armature or field magnet, or both, of an alternating current generator containing induced circuits connected independently to corresponding circuits in the motor, whereby a rotation of the generator produces a progressive shifting of the poles of the motor, as herein described.'

(3) 'The combination with a motor having an annular or ring-shaped field magnet and a cylindrical or equivalent armature, and independent coils on the field magnet or armature, or both, of an alternating current generator having correspondingly independent coils and circuits including the generator coils and corresponding motor coils, in such manner that the rotation of the generator causes a progressive shifting of the poles of the motor in the manner set forth.

The first, second, and third claims of patent No. 382,279, granted May 1, 1888, to Nikola Tesla, and are in these words:

(1) 'The combination, with a motor containing independent inducing or energizing circuits and closed induced circuits, of an alternating circuit generator having induced or generating circuits, corresponding to and connected with the energizing circuits of the motor, as set forth.'

(2) 'An electro-magnet motor having its field magnets wound with independent coils and its armature with independent closed coils, in combination with a source of alternating currents connected to the field coils, in combination with a source of alternating currents connected to the field coils and capable of progressively shifting the poles of the field magnet, as set forth.

(3) 'A motor constructed with an annular field magnet wound with closed coils, in combination with a source of alternating currents connected with the field magnet coils, and acting to progressively shift or rotate the poles of the field as herein set forth.'

And the single claim of patent No. 382,280, granted May 1, 1888, to the same patentee, which reads as follows:

'The method herein described of electrically transmitting power, which consists in producing a continuously progressive shifting of the polarities of either or both elements (the armature or field magnet or magnets) of a motor by developing alternating currents in independent circuits, including the magnetizing coils of either or both elements, as herein set forth.'

Confessedly the five claims of the first two patents are combination claims. The single claim of the third patent is not a mechanical claim, but a claim for a method of electrically transmitting power. A motor constructed according to the specifications of the patent is one of the elements in each of the combination claims, and the evidence tended to show that such a motor must operate by the method of the third patent.

The plaintiff in error was adjudged to be in contempt because, pending the injunction, it made and shipped to a customer in Canada the motor of the patent, with the expectation and intent that it would be there used in the devices of the combination claims and in the practice of the method patent. Was this, as matter of law, a contempt of the authority of the court?

The injunction forbid 'the making, using, or selling of any apparatus embodying the inventions recited or specified' in the claims of the three patents heretofore set out. The monopoly of a patent extends to the making or selling, as well as the using, of the patented device within the United States. Adams v. Burks, 17 Wall. 453, 456, 21 L.Ed. 700; Heaton-Peninsular Button Fastener Co. v. Eureka Specialty Co., 77 F. 288, 291, 25 C.C.A. 267, 35 L.R.A. 728; Dorsey Rake Co. v. Bradley M. Co., 12 Blatchf. 202, Fed. Cas. No. 4,015.

While it is true that the monopoly of the plaintiff's patents did not...