Gatch Wire Goods Co. v. WA Laidlaw Wire Co.
Decision Date | 11 December 1939 |
Docket Number | No. 6892.,6892. |
Citation | 108 F.2d 433 |
Parties | GATCH WIRE GOODS CO. v. W. A. LAIDLAW WIRE CO. et al. |
Court | U.S. Court of Appeals — Seventh Circuit |
E. D. McLaughlin, of Peoria, Ill., Clarence F. Poole, of Chicago, Ill., and Robert Watson, of Washington, D. C., for appellant.
Burnett M. Chiperfield, of Canton, Ill., and Robert J. Clendenin and Theodore C. Baer, both of Peoria, Ill., for appellees.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
This appeal assails the decree which dismissed a patent infringement suit on the ground that the patent on its face did not disclose patentable invention and was invalid. The patent covers an improvement in a fly swatter, the improvement consisting in the use of a rubberized fabric frame.
The decree having been entered on a motion to dismiss, no evidence was introduced. Attached however to the defendant's motion to dismiss the amended complaint was an affidavit of its president, and a certified copy of a prior patent to defendant Wasson, No. 1,939,838. Plaintiff made profert of the patent in suit, No. 2,068,211, to Wasson. Also attached to defendant's affidavit was the file wrapper of the instant patent.
Co-defendant Wasson was the inventor of the fly swatter covered by the patent. He made the discovery while in the employ of plaintiff, and executed an assignment of his discovery to plaintiff, who recorded it. To plaintiff was issued the patent.
Plaintiff asserts an estoppel to challenge the validity of the patent against both defendants. Estoppel against Wasson is based on his application for the patent in suit and the assignment by him of his application to plaintiff. As against the defendant Wire Company, asserted estoppel is based on the relation of Wasson and the Wire Company which made the infringing swatter.
The District Court filed a careful, able, and informative opinion wherein it discussed both the propriety of attaching patents as exhibits to a motion to dismiss, and the dismissing of a patent suit because the patent was void on its face, for want of invention. The court considered the differences between the fly swatter covered by the instant patent, and the fly swatter disclosed in the prior patent to Wasson, and concluded that the changes were mere substitution of materials, and the substituted material was old and well known and its quality of durability widely recognized. In other words, it took judicial notice of the prior art, and properties of rubberized materials.
Want of invention so apparent on the face of the patent as to demand the court's dismissal of a complaint based thereon, even before an answer or hearing on the merits, has on many occasions provoked discussion by courts, with the conclusion that the court's inclination to hold the patent so lacking in invention is generally overcome by the presumption of validity which attends the issuance of every patent. The predominating conclusion seems to be against dismissal, save in unusual cases without opportunity for a hearing on the merits.1
However, as early as 1875, the Court, in the case of Brown v. Piper, 91 U.S. 37, 44, 23 L.Ed. 200, held a patent for preserving articles in a closed chamber surrounded by freezing mixture, to be "void on its face and that the court might have stopped short at that instrument and, without looking beyond it into the answers and testimony, sua sponte, * * * have adjudged in favor of the defendant."
Again, in Terhune v. Phillips, 99 U.S. 592, 593, 25 L.Ed. 293, in passing upon a patent for a metallic corner for showcases, the court said:
While this court has upheld a dismissal of a patent suit because the patent was void on its face (Damrow Bros. Co. v. Stoelting Bros. Co., 7 Cir., 295 F. 492; De Vry Corp. v. Acme Motion Picture Co., 7 Cir., 262 F. 970; Lange v. McGuin, 7 Cir., 177 F. 219), the views expressed by Judge Alschuler for the court in Wright v. Wisconsin Lime Co., 7 Cir., 239 F. 534, 535, seem to point to the safe and sane course to be followed where the motion to dismiss necessitates the overthrow of the presumption of validity which arose from the grant of a patent. In that case the court said:
* * * * * * * * * * * * * * *
See also Lange v. McGuin et al., 7 Cir., 177 F. 219, and Krell Auto Piano Co. v. Story & Clark Co., 7 Cir., 207 F. 946.
The recent decision of the court in Mumm v. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 676, 81 L.Ed. 983, while not denying the court's right to dismiss a suit based upon a patent alleged to be void on its face, limits somewhat the field of operation of such practice. There, the court commenting on a matter of pleading, said:
If the burden on the defendant to overthrow the presumption of validity "is a heavy one," it follows that courts should be slow to hold any patent which has been duly issued, void on its face.
Counsel are unable to agree not only as to the permissive use of the patent...
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