Flick-Reedy Corp. v. Hydro-Line Manufacturing Co., 14804
| Decision Date | 10 November 1965 |
| Docket Number | No. 14804,14805.,14804 |
| Citation | 351 F.2d 546 |
| Parties | FLICK-REEDY CORPORATION, Plaintiff-Appellant, v. HYDRO-LINE MANUFACTURING COMPANY, Defendant-Appellee. FLICK-REEDY CORPORATION, Plaintiff-Appellee, v. HYDRO-LINE MANUFACTURING COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald L. Welsh, Malcolm S. Bradway, Chicago, Ill., for Hydro-Line Mfg. Co.
William R. McNair, James C. Wood, Lloyd W. Mason, Chicago, Ill., for Flick-Reedy Corp.
Before CASTLE and KILEY, Circuit Judges, and MERCER, District Judge.
Plaintiff, Flick-Reedy Corporation, sued Hydro-Line Manufacturing Company for infringement of United States Patents No. 2,798,777 and No. 2,842,284, and its registered copyright A-338557. The district court, in findings of fact and conclusions of law reported at 241 F. Supp. 127 (N.D.Ill.1964), decided in favor of Flick-Reedy with respect to Patent No. 2,798,777 and in favor of Hydro-Line with respect to Patent No. 2,842,284 and the copright. Flick-Reedy has appealed in case No. 14804 and Hydro-Line in case No. 14805.
Hydro-Line and Flick-Reedy are competitors in the manufacture and sale of precision, machine tool grade, air and hydraulic piston and cylinder devices, known in the trade as cylinders. The patents in suit, owned by Flick-Reedy, were a sealing arrangement to improve the pressure capacity of hydraulic cylinders by virtue of preventing the escape of fluid from the cylinders (2,842,284), and a device for mounting cylinders rigidly to a base in order to maintain accurate thrust of the piston in the cylinder (2,798,777). The copyright covered a trade booklet.
The issue involved pages 20 and 22 of the 32-page booklet "Hydraulic Cylinders," copyrighted in 1958 and first published on April 14, 1958, which Flick-Reedy charges was infringed by pages 9 and 10 of a similar publication of Hydro-Line. These booklets were distributed without cost to users of cylinders, providing useful information while at the same time keeping the manufacturer's name and products before the user. The pages in question contain mathematical data and formulae with explanations for their use in determining proper sizes of piston rods under various conditions and in determining acceleration and deceleration distances.
The district court concluded that the copyright was invalid and unenforceable because the copyrighted material was a revision of uncopyrighted material published previously by plaintiff and thus in the public domain; that Hydro-Line had not infringed the copyright because it had not substantially copied the Flick-Reedy material, but had arrived at its own version independently; and that there was no infringement "because it has not been shown that defendant's publication and distribution of its free sales bulletin will in any way diminish or detract from the sale of the plaintiff's bulletin, which is disrtibuted without charge to the trade. * * *" We think the district court erred in applying the law and in certain of the findings of fact on which its conclusions and the decree of invalidity rested.
In the first place, "abridgments, adaptations, arrangements * * * or works republished with new matter * * *" are subject to copyright by the very terms of the Act, 17 U.S.C. § 7; and the court erred in precluding infringement for the reason that some of the material was already in the public domain. The arrangement, expression and manner of presentation of the copyrighted pages, however, was not in the public domain. Secondly, the question is not whether the computations in the Hydro-Line charts were independently arrived at, but whether the Flick-Reedy expression and presentation of the computations, formulae and explanations were copied by Hydro-Line. On this question we think the district court clearly erred.
In Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (1st Cir. 1905), footnoted by the Supreme Court in Mazer v. Stein, 347 U.S. 201, at 218, 74 S.Ct. 460, 98 L.Ed. 630 (1954), several general rules of copyright law are set forth, at pages 542-43, which are pertinent here. Applying the rules stated there to the issue before us, we see that Hydro-Line had the same purpose in compiling and publishing its material as Flick-Reedy had, and that it did not merely use the latter's work as a starting point for further development of the ideas expressed. It had no right to avail itself of Flick-Reedy's labor, in rearranging and reexpressing the material, to save itself work or trouble, nor to use its bulletin to interfere seriously with Flick-Reedy's gainful use of its bulletin for prestige and trade in the cylinder market. The question of infringement is whether Hydro-Line's arrangement and expression is its own, so as to make its use fair to Flick-Reedy.1
The district court did not include in its findings the testimony of Hydro-Line's vice-president that he had a copy of Flick-Reedy's bulletin before him in preparing the accused pages and that this copy was sent along with other "layout material" to Hydro-Line's advertising agency, which did the final preparation of the accused bulletin. The witness testified that this was done to avoid duplication.
We have compared the corresponding pages of the publications: The lines blocking out the charts and the illustrations are red in the accused pages, and in Flick-Reedy's they are black, with red shading in alternate columns. There are differences in the wording of titles of parts of pages or in the location of titles, e. g., on Flick-Reedy's page 20 the head title is "Aids for Preventing Bearing Wear and Column Failures," and the corresponding title on Hydro-Line's page 9 is "How to Determine if Oversize Rod is Needed." But in the lower left hand corner of page 9 is the heading "Information for Avoiding Excessive Bearing Wear." In the right hand column of both pages 9 and 20 are set forth the steps required "to determine if an oversize piston rod is required * * *" (page 9); and "to determine minimum piston rod diameter on push stroke cylinders" (page 20). The left hand side of each page is devoted to illustrations of various types of cylinders with the values of "L" in the formula indicated and information on avoidance of excessive bearing wear by the use of stop tubes. The right hand side of each page contains the steps for determining required piston rod diameters, and in the bottom right hand corner of each page is a table showing rod diameters for various thrusts and rod lengths.
Both Flick-Reedy's page 22 and Hydro-Line's page 10 contain on the left half of each page large, practically identical numerical charts titled "Information on Forces Required for Acceleration and Deceleration" (page 10) and "Table for Quickly and Easily Determining Distances and Forces Required to Start and Stop Cylinder Piston Travel When Loads and Speeds are Known" (page 22). In this instance again Hydro-Line's chart is blocked out in red lines, with Flick-Reedy's in black with the two left hand columns of figures shaded in grey and the other alternate columns shaded in red. The right hand portion of each page is taken up with formulae and explanations and examples for their use in connection with the chart in determining acceleration and deceleration values.
Flick-Reedy's certificate of registration is prima facie evidence of the validity of its copyright and Hydro-Line had the burden of overcoming this presumption of validity. 17 U.S.C. § 209; Wihtol v. Wells, 231 F.2d 550, 553 (7th Cir. 1956). The district court erred in holding that this burden was met by showing that some of the computations and formulae in Flick-Reedy's bulletin were in the public domain, for the copyright was valid as a revision and new arrangement of such material.
From an examination of the exhibits and the testimony we also conclude that the district court clearly erred in finding no infringement and no substantial copying of the two pages of Flick-Reedy's bulletin in question by Hydro-Line.
The district court erred also in finding that there was no showing that Hydro-Line's publication and distribution of its free sales bulletin will in any way detract from the value of Flick-Reedy's bulletin. The number of pages charged to be infringed is small (only two of thirty-two), but the evidence showed that these were the most important pages from the standpoint of keeping the bulletin in front of potential customers. The major part of each bulletin is given over to advertisements, performance charts and other data pertinent to the manufacturer's products. On the pages in question, however, appears information useful generally to users of cylinders. One of the chief purposes of distributing this information is to keep the advertising before the users. A particular presentation of the information which will cause a user to consult the bulletin can therefore be of substantial value to the manufacturer who distributes the bulletin.
We reverse the judgment of the district court insofar as it holds the copyright on Flick-Reedy's pages 20 and 22 invalid and not infringed, and we remand for further proceedings with respect to the relief prayed for.
The district court's findings of fact 7 through 15, reported at 241 F.Supp. 127, 130-32, and which we adopt, describe the plaintiff's patented seal for use in preventing leakage between the end of a cylinder tube and the head. The findings of fact and the...
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