Huszar v. Cincinnati Chemical Works, 10675.
| Decision Date | 03 February 1949 |
| Docket Number | No. 10675.,10675. |
| Citation | 172 F.2d 6 |
| Parties | HUSZAR v. CINCINNATI CHEMICAL WORKS, Inc. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Floyd H. Crews, of New York City (Gatch, Kleinman, Roberts & Kuhn, of Cincinnati, Ohio, Darby & Darby and Floyd H. Crews, all of New York City and A. Harry Crowell, of Washington, D. C., on the brief), for appellant.
Frank Zugelter, of Cincinnati, Ohio (Frank Zugelter, James R. Clark, and Clark & Robinson, all of Cincinnati, Ohio, on the brief), for appellee.
Before SIMONS, ALLEN, and MILLER, Circuit Judges.
The controversy was begun by an action of the appellee for a declaratory judgment seeking to have its rights determined as against the appellant's claims for infringement of three patents covering what is known as a rod mill. The appellant counterclaimed, seeking a declaration of validity for his patents, damages for past and restraint of future infringement. The patents are Huszar 2,367,585, 2,393,245 and 2,394,453, granted respectively January 16, 1945, January 1, 1946 and February 4, 1946. All of them were granted upon divisional applications stemming from an original application, serial No. 424,839, filed December 29, 1941. A decree was entered for the appellee adjudging its mills to be free from any and every claim of the appellant.
We were, at the outset, somewhat concerned about the failure of the district judge to make separate and detailed findings of fact. It would have been better to have done so and our study of the record would have been simplified had we had such findings. An examination of the decree, however, discloses findings of ultimate facts which, upon careful consideration of the record, obviously adjudicate the controlling issues. The court therein declares the several patents invalid because mills of the construction therein shown had been in public use for more than one year before the filing of the application upon which the patents issued; that they are invalid because of fraud of the appellant in executing affidavits to the effect that the disclosed devices had not been in public use for more than one year prior to the filing of the patent applications, and because the alleged inventions were the joint and composite product of various persons so that the appellant was not their sole creator or originator. We think, in view of Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., that we are justified in considering the appeal without remanding the case for more specific findings and so to save delay in adjudication. United States v. Esnault-Pelterie, 303 U.S. 26, 58 S.Ct. 412, 82 L. Ed. 625; Hazeltine v. Crosley, 6 Cir., 130 F.2d 344; Refrigeration Engineering v. York Corp., 9 Cir., 168 F.2d 896.
The appellee for many years had been using grinding and mixing machines for pulverizing and mixing substances used in the manufacture of its product which comprised a revolving drum within which balls or metal bars effected pulverization. In one or more of its mills the grinding chamber was provided with means whereby partly ground material might be accumulated and returned to the grinding chamber for mixing. Mills of this type were concededly old in the art. Sometime in early 1938 the appellee decided to provide itself with additional equipment that would be an improvement upon existing mills, having in mind that a mill might be designed not only for selective return of partially pulverized material into the mixing chamber but also for the discharge of the mixture from the drum during its continued rotation. In 1938 Crane, an assistant engineer of the appellee, was consulted by his chief, Brunskill, as to the feasibility of such unloading device. Crane studied the literature of the art and undertook to make a crude model, in the construction of which he received advice from various persons in the appellee's employ. The original plan was to build a model with openings on the surface of the cylinder which would discharge the material. and some kind of tube to convey it from the inside to an axial position. He wasn't a good enough mechanic for that purpose but did manage to arrange four discharge chambers with baffle plates and a cylindrical pipe, and when the model was tried out with salt and with dextrin it operated. The model was demonstrated to the executives of the appellee and to others, including the appellant. These facts are supported by substantial and cumulative evidence.
The appellant was a draftsman for the appellee. Sometime in July of 1938 he was directed to make drawings for a large scale mill embodying the features of the Crane model. Such drawings were made during August and September, parts for the construction of the model were ordered by the appellant or at his direction, the mill was built, installed and put into operation and proved to be so satisfactory that a number of similar mills were subsequently built, the drawings for all of them being made by the appellant. During all of this time there was no assertion by the appellant that he had made a patentable invention, either during the drafting period or prior thereto; no assertion that he had previously worked out computations for such a mill or had reduced to practice ideas of his own by means of a model, or that the building and operation of the several mills in any manner invaded any right possessed by him. The first intimation that any of the appellee's executives received that the appellant conceived he had invented something, was in 1945 when Washington patent counsel charged the appellee with infringement of the Huszar patents.
Upon issue of the first patent in suit the appellant's attorney communicated with the plaintiff demanding compensation and requesting a conference. The appellant advised the appellee's assistant manager, Brunskill, that according to his computations the appellee had saved at least one-half cent per pound in the production of its dyes by means of the new mills from the time the first mill was put in operation on September 29, 1938, and that the appellant thought he should have one-half to two-thirds of such savings, computed by him to have been upwards of $250,000. Three weeks later, without any further communication to the appellant, the latter was served with the complaint in the cause and immediately discharged. It was not until the trial of the case that the appellee learned that the appellant claimed he had been making studies for the improvement of mills as early as 1934, and that in 1936 he had perfected a working model, the elements of which and their co-operation formed the basis of his designs for the mills built by the appellee and for the patent application subsequently filed in 1941 and the divisional applications filed later at the instance of the patent office. Until it was demonstrated at the trial, the existence of the model was unknown either to the executive officers of the appellee or its engineers. There is corroboration of the appellant's evidence that he had built the model in 1936, although there are some curious contradictions in the story developed by the record with which we are not now concerned.
The principal issue, as we...
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