In re Sylvania Electric Products

• Decision Date: 16 March 1955
• Docket Number: No. 4948 Orig.,4948 Orig.
• Citation: 220 F.2d 423
• Parties: In re SYLVANIA ELECTRIC PRODUCTS Inc., Movant (Petitioner).
• Court: U.S. Court of Appeals — First Circuit

220 F.2d 423 (1955)

In re SYLVANIA ELECTRIC PRODUCTS Inc., Movant (Petitioner).

No. 4948 Orig.

United States Court of Appeals, First Circuit.

March 16, 1955.

Warren F. Farr, Boston, Mass., John Hoxie and J. Albert Hultquist, New York City, and Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., for movant (petitioner).

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

We have before us a motion for leave to file a petition under 28 U.S.C. § 1651 for a writ of mandamus directed to Hon. George C. Sweeney, Chief Judge of the United States District Court for the District of Massachusetts.

In January, 1954, Edwin H. Armstrong filed a complaint in the district court under the patent laws of the United States, charging Sylvania, petitioner herein, with infringement of three separate patents. Armstrong sued as patentee and owner of U. S. Letters Patent No. 1,941,066 and No. 1,941,069, both issued December 26, 1933, and Reissue Patent No. 21,660, reissued December 17, 1940. Since Nos. 1,941,066 and 1,941,069 had expired prior to the filing of the complaint, Armstrong sought only damages for the alleged infringement of these two patents while they were still outstanding. As to Reissue Patent No. 21,660, the complaint sought not only damages for past infringements but also an injunction against future infringements.

Edwin H. Armstrong, the patentee, died on February 1, 1954. On January 11, 1955, his executrix filed in the district court a "Suggestion of Death and Motion for Substitution", in which she moved that she be substituted as party plaintiff in such action. This motion for substitution was opposed by Sylvania, in so far as the complaint was based upon alleged infringement of Nos. 1,941,066 and 1,941,069, upon the contention that claims for damages for infringement of patents that had since expired do not survive the death of the patentee and cannot be prosecuted by his legal representative. Rejecting this contention, Judge Sweeney on February 3, 1955, entered an order allowing said motion for substitution in full.

This order of February 3, 1955, was obviously only interlocutory in character; and petitioner concedes that it did not fall within any of the exceptional categories of interlocutory orders made immediately appealable by 28 U.S.C. § 1292. Nevertheless, we are asked to review this order in a mandamus proceeding, and to issue a writ directing Judge Sweeney (1) to vacate his order entered February 3, 1955, (2) to allow substitution of the executrix only for the purpose of prosecuting the claim for infringement of Reissue Patent No. 21,660, and (3) to deny substitution of said executrix in so far as she seeks to prosecute claims for infringement of the two expired patents. Authority for this extraordinary action circumventing the statutory scheme for appellate review is said to rest on 28 U.S.C. § 1651(a) reading: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

In several recent cases we have done what we could to discourage the loose filing of applications to us under 28 U.S.C. § 1651. In re Chappell & Co., Inc., 1 Cir., 1953, 201 F.2d 343; In re Previn, 1 Cir., 1953, 204 F.2d 417; In re Josephson, 1 Cir., 1954, 218 F.2d 174. In the last-named case we said, 218 F.2d at page 177:

"Contrary to the view which seems to have been occasionally taken, or at least sub silentio assumed, in other courts of appeals, we do not think that 28 U.S.C. § 1651 grants us a general roving commission to supervise the administration of justice in the federal district courts within our circuit, and in particular to review by a writ of mandamus any unappealable order which we believe should be immediately reviewable in the interest of justice."

The Congress, following what it deemed to be a proper policy against allowing piecemeal appellate review, has in general provided, with a few exceptions not now relevant, for judicial review on appeal only of "final decisions" of the district courts. As we pointed out in the Chappell case, supra, 201 F.2d at page 345, "many types of interlocutory rulings by a district court, if erroneous, may require the court of appeals to set at naught a lengthy trial, upon ultimate review of a final decision in the case. Such, for example,...