Collins v. Owen

• Citation: 310 F.2d 884
• Decision Date: 18 January 1963
• Docket Number: No. 16993.,16993.
• Parties: Robert A. COLLINS and Pigloo Corporation, an Iowa Corporation, Appellants, v. Foster OWEN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.2d 884 (1962)

Robert A. COLLINS and Pigloo Corporation, an Iowa Corporation, Appellants, v. Foster OWEN, Appellee.

No. 16993.

United States Court of Appeals Eighth Circuit.

December 19, 1962.

Rehearing Denied January 18, 1963.

Fred A. Ontjes, Mason City, Iowa, for appellants.

Charles L. Lovercheck, Erie, Pa., for appellee.

Before SANBORN and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

SANBORN, Circuit Judge.

This is an action brought by the appellants against the appellee for infringement of United States Letters Patent No. 2,740,379 for a farrowing pen. The patent was applied for by Robert A. Collins on August 20, 1954, and was issued to him on April 3, 1956. The Pigloo Corporation is his assignee. The questions raised by the pleadings were those usual in such cases, including the validity of the patent. The case was tried to Judge Graven, of the Northern District of Iowa, without a jury. He determined that the patent was invalid for lack of invention because of two New Zealand publications in which the invention was "described * * * more than one year prior to the date of the application for patent in the United States." 35 U.S.C. § 102(b).¹ Judgment was entered dismissing the plaintiffs' complaint and denying the defendant any attorney fees. The plaintiffs have appealed, asserting that the judgment is clearly wrong. The defendant has cross-appealed, claiming that the court erred in failing to award him attorney fees. The cross-appeal is No. 16,998.

Judge Graven, in his Findings of Fact, Conclusions of Law, and Order for Judgment, which cover more than 40 pages of the record on appeal, and are reported in 199 F.Supp. 61-78, has stated in great detail the circumstances which gave rise to this action, the facts relating to the issues presented, what he conceived to be the applicable law, and the basis for his determination that the patent in suit was invalid for lack of invention over the prior art because of the two New Zealand publications.

We do not propose to repeat, rephrase or enlarge upon what has been said by the trial judge in his exhaustive findings and conclusions. They contain a complete description of the Collins farrowing pen, which is called a "pigloo"; a statement in full of the claims of the patent; a sufficient biography of Collins; and the complete text of the publications claimed by the defendant to have described the patent in suit with adequate particularity more than a year before Collins applied for his patent.

The plaintiffs assert that the court erred in admitting the publications in evidence, and also erred in failing to exclude other items of evidence objected to as incompetent. The plaintiffs seem to have overlooked the fact that this was a nonjury case in which the trial court was free, within broad limits, to permit the parties to introduce any evidence which they regarded as relevant. We repeat what was said in Builders Steel Co. v. Commissioner of Internal Revenue, 8 Cir., 179 F.2d 377, at page 379:

"In the trial of a nonjury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not. An appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. * * *"

We shall confine ourselves to the question whether the court erred in finding that the two New Zealand publications adequately "described" the invention of Collins. The first description was published in The New Zealand Farmer of January 1, 1953, and disclosed a circular or cylindrical farrowing pen or house with substantially the same features and designed for the same purpose and to accomplish the same object as the Collins pen. The second publication was in the New Zealand Dairy Exporter of February 2, 1953, which described the same farrowing pen previously described in The New Zealand Farmer. It was referred to as "The Ruakura `Round House'" developed at the Ruakura Animal research Station in New Zealand. There can be no doubt that each of the New Zealand publications was a "publication" within the meaning of 35 U.S. C. § 102(b). The debatable question the trial court was called upon to decide was whether what Collins claimed to have invented had been described in these publications with sufficient particularity to constitute anticipation under § 102 (b).

The trial judge found (pages 64-65 of 199 F.Supp.):

"Prior to January 1, 1953, the Ruakura Animal Research Station in New Zealand had been engaged in research as to farrowing pens. Mr. D. M. Smith, research officer in pig husbandry of that station, had to do with that research. The January 1, 1953, issue of the New Zealand Farmer carried an article about a circular individual farrowing pen that had been developed as a result of the research. The February 2, 1953, issue of the New Zealand Dairy Exporter carried a similar account. Both the New Zealand Farmer and the New Zealand Dairy Exporter were bona fide papers printed and published in New Zealand. The issues of those papers introduced into evidence are authentic issues of those papers. In January, 1954, Mr. D. M. Smith, the research officer referred to, was at the College of Agriculture at the University of Minnesota. Robert A. Collins came to that college in January, 1954, to consult with a Dr. Winter. Dr. Winter introduced him to Mr. D. M. Smith. Mr. Collins discussed with Mr. Smith the matter of round hog houses. Mr. Smith told Mr. Collins that he was working on a round hog house but that it was not functioning at the time."

The trial judge also found (pages 77-78 of 199 F.Supp.):

"* * * The two New Zealand publications disclose and show a circular farrowing pen designed for the use of one farrowing sow which is approximately 8 feet in diameter and from 3 feet to 3 feet 6 inches in height with an entrance into it. They disclose that pen has a hinged flat roof and an inwardly sloping floor. They disclose an inner circular

...