Chenault v. Nebraska Farm Products

• Decision Date: 15 August 1952
• Citation: 107 F. Supp. 635
• Parties: CHENAULT v. NEBRASKA FARM PRODUCTS, Inc. et al.
• Court: U.S. District Court — District of Nebraska

107 F. Supp. 635

CHENAULT v. NEBRASKA FARM PRODUCTS, Inc. et al.

Civ. A. 303.

United States District Court D. Nebraska, North Platte Division.

August 15, 1952.

Crosby & Crosby, of North Platte, Neb., Thomas E. Scofield, of Kansas City, Mo., and A. W. Geissinger, of Columbus, Ohio, for the plaintiff.

Frank M. Johnson, of Lexington, Neb., and C. Earl Hovey, of Kansas City, Mo., for the defendants, Nebraska Farm Products, Inc., and Ervin Burkholder.

Curtis B. Morsell, Milwaukee, Wis. (Morsell & Morsell, Milwaukee, Wis.), for the defendant, Arnold Dryer Co. DELEHANT, District Judge.

The ruling now announced is made upon a motion of certain defendants for a summary judgment of dismissal as to them of the plaintiff's action. The motion is being denied. And since the action will stand for trial on its merits, the court, observing its invariable practice on like occasions, announces the denial with a minimum of inducing discussion. That course avoids any possible, though unintended, channeling or restriction of evidence and testimony in the eventual final submission of the case.

The plaintiff, the admitted owner of Patent No. 2,069,783 for improvements in a process for the preservation of organic material, with particular orientation to the preservative processing of plant substances, especially alfalfa, as an animal food, brought this action against the original defendants, Farm Products and Burkholder, alleging their infringement of his patent and praying for injunctive relief, an accounting with personal judgment and for costs, including attorneys fees. Those defendants answered, among other things, denying both the validity of the patent and the alleged infringement. Later, by leave, Dryer Company was allowed to intervene and it served and filed an answer substantially similar to that of the original defendants.

Thereafter, the original defendants, also by leave of court, served and filed an amended answer in which they admitted the issuance and ownership of the patent and their infringement of it (if it were valid) prior, but not subsequent, to a designated date substantially later than the institution of this suit, but denied the validity of the patent on four separate grounds: a) its full anticipation by prior patents, Title 35 U.S. C.A. § 31; b) its want of patentable invention over prior art, Title 35 U.S.C.A. § 31; c) unpatentability in consequence of prior use, Title 35 U.S.C.A. § 31; and d) its failure to disclose operable means for the practice of the process covered by it, Title 35 U.S.C.A. § 33.

Still later, and supported by the pleadings, sundry depositions (partly taken in this action, partly in earlier litigation and employed in this case upon stipulation and order), affidavit, and other papers (including file wrapper of the plaintiff's patent and "soft" copies of several earlier patents) the original defendants moved for a summary judgment in their favor under Fed. Rules Civ.Proc. Rule 56(b) and (c), 28 U.S. C.A. Shortly stated, their motion is premised on the position that upon the record thus tendered the invalidity of the plaintiff's patent is conclusively established on all — or in any event, and sufficiently, one or more — of the grounds of invalidity specified in their amended answer; and that, in consequence, there is no longer in the action as against them any genuine issue of material fact and they are entitled to judgment of dismissal as a matter of law. That motion has been ably supported and resisted by typewritten briefs of counsel. Dryer Company has not similarly amended its answer and does not join in the motion for summary judgment.

All presently contending parties, the plaintiff with discernible reluctance, agree that the summary judgment procedure contemplated by Rule 56 may be employed in patent infringement actions. They are not by its language or purpose excepted from its reach. And the rule is applied in them. Davison Chemical Corp. v. Joliet Chemicals Inc., 7 Cir., 179 F.2d 793, certiorari denied 340 U.S. 816, 71 S.Ct. 45, 95 L.Ed. 599; Bridgeport Brass Co. v. Bostwick Laboratories, 2 Cir., 181 F.2d 315; Allen v. Radio Corporation of America, D.C.Del., 47 F.Supp. 244; Juniper Mills Inc. v. J. W. Landenberger & Co., D.C. Pa., 6 F.R.D. 463; Chiplets v. June Dairy Products Co., D.C.N.J., 89 F.Supp. 814.

But the availability of the procedure being vindicated, the stern test for its application must be recalled. The writer hereof recently undertook in Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216 to summarize the prevailing thought on that subject in this language:

"A summary judgment is to be entered in a case if, but only if, the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c) Federal Rules of Civil Procedure. A summary judgment upon motion therefor by a defendant in an action should never be entered except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plaintiff, or demonstrated beyond reasonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. Ramsour Ramsouer v. Midland Valley R. Co., D.C.Ark., 44 F. Supp. 523, reversed on other grounds, 8 Cir., 135 F.2d 101. A summary judgment is an extreme remedy, and, under the rule, should be awarded only when the truth is quite clear. American Insurance Company v. Gentile Brothers Company, 5 Cir., 109 F.2d 732; Shultz v. Manufacturers & Traders Trust Company, D.C.N.Y., 1 F.R.D. 451; Drittel v. Friedman,

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