Doherty Research Co. v. Universal Oil Products Co., 6820.
| Decision Date | 09 November 1939 |
| Docket Number | No. 6820.,6820. |
| Citation | 107 F.2d 548 |
| Parties | DOHERTY RESEARCH CO. v. UNIVERSAL OIL PRODUCTS CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Dean S. Edmonds, of New York City, and Lincoln B. Smith, of Chicago, Ill., for appellant.
Alexander F. Reichmann, of Chicago, Ill., William F. Hall, of Washington, D. C., and Lee J. Gary, of Chicago, Ill., for appellee.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
Plaintiff brought this suit to enjoin infringements of patents by it allegedly owned and to recover damages for past infringements.
Defendant denied plaintiff's title to the patents and pleaded res adjudicata of this title issue.
The defense of res adjudicata was predicated upon the outcome of a suit on the same patents instituted by plaintiff in the United States District Court of Kansas, against another alleged infringer, towit, the Vickers Petroleum Company. There the defense of no title in plaintiff was interposed and sustained. This decree was, on appeal, affirmed. Doherty Research Co. v. Vickers Pet. Co., 10 Cir., 80 F.2d 809.
Defendant asserts that it defended the Kansas suit, controlled the litigation, and its action, in so doing, was fully known to the plaintiff.
Defeated in the Kansas litigation, plaintiff pushed the instant suit brought in a different jurisdiction and again asserts its title to the patents. Avoidance of the defense of res adjudicata turns upon the existence or absence of proof of plaintiff's knowledge that the Kansas litigation was conducted and controlled by defendant herein. The fact was admittedly established that defendant herein hired and paid counsel and conducted and controlled the defense in the Kansas litigation. Did plaintiff have knowledge of such fact? That is the question dispositive of this appeal.
With admirable clarity, the District Court analyzed the legal question and the factual issues which controlled it. The court found as a fact, and gave numerous reasons for its finding, that plaintiff knew defendant supplied the counsel and controlled the defense in the Kansas litigation.
Plaintiff assails this finding and argues rather persuasively that defendant did not reveal its identity as a director of the Kansas litigation or that it footed the sizeable bills which the counsel presented for legal services and costs. It points rather tellingly to defendant's pleading in the Kansas case which it argues is a solemn, deliberate statement to the effect that the defendant herein was not in the Kansas litigation. Therein, defendant who now asserts it represented Vickers, asserted:
"Vickers denied that it was `being aided, abetted and encouraged in such alleged infringement by the Universal Oil Products Company in its operation of so-called "Dubbs Units."'"
On the other hand, there is well nigh conclusive evidence that plaintiff, notwithstanding defendant's statement, did know of defendant's conduct of the Kansas litigation, for it wrote a letter while the litigation was pending, the inferences of which are hardly avoidable.
Moreover, the local counsel for defendant in the Kansas litigation wrote plaintiff's counsel when the suit was begun, as follows:
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