Josserand v. Taylor

• Decision Date: 04 November 1946
• Docket Number: Patent Appeal No. 4745.
• Citation: 159 F.2d 249
• Parties: JOSSERAND v. TAYLOR.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

159 F.2d 249 (1946)

JOSSERAND v. TAYLOR.

Patent Appeal No. 4745.

Court of Customs and Patent Appeals.

November 4, 1946.

Lester B. Clark, of Houston, Tex., for appellant.

Leonard L. Kalish, of Philadelphia, Pa. (Paul & Paul, of Philadelphia, Pa., of counsel), for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON. and O'CONNELL, Associate Judges.

HATFIELD, Associate Judge.

This is a petition by appellee (Taylor) to reopen the interference between the parties Louis P. Josserand and Samuel Herbert Taylor, Jr., 138 F.2d 58, 31 C.C.P.A. (Patents) 709, in this court, or for leave to apply to the proper tribunal of the Patent Office to reopen it, or that the court authorize the proper Patent Office tribunal to reopen it, and that the court grant such other relief as it may deem proper.

The petition, although not so denominated, is in effect a bill of review or an application for leave to file a bill of review in the Patent Office, it being claimed that the party Josserand perpetrated a fraud upon this court in the interference proceeding in which priority of the invention, defined by the count in issue, was awarded to him.

It is the contention of counsel for appellee that the party Josserand, in a public-use proceeding, "confessed fraud in inducing and obtaining the award-of-priority" and repudiated his testimony and that of his witnesses in the interference proceeding "upon which testimony he fraudulently induced this court's award-of-priority to him." It is further contended that Josserand and his witnesses who testified that the elements called for by the count were present in the Galveston theater, committed perjury; that Josserand had nothing whatsoever to do with the Galveston drive-in theater but "merely assimilated or `annexed' this 1934-Galveston drive-in theater for his purposes in the interference, seven years after the event, by adroitly manufactured evidence; as part of his scheme to steal an invention about which he knew nothing until it was disclosed to him by Taylor's licensee, W. W. Smith and by Taylor's sub-licensee, Robert E. Power, in Los Angeles on October 21, 1939 (one week before Josserand filed his application-in-interference)." It is alleged, also, in appellee's petition that Josserand's confession of fraud is disclosed in his answer in the public-use proceedings, his brief filed therein, and his testimony and that of his witnesses; that it appears therefrom that the theater constructed on the beach at Galveston was merely an experiment; that it was not completed; that the construction was not a reduction to practice of the drive-in theater defined by the count in interference; that in his testimony appellee stated among other things that "The theater itself was a whole lot more on paper and testimony than it ever was on the sands of the beach of Galveston at that time. Verbally it appears to much better advantage than it did on the beach"; and that in Josserand's brief it is stated that "Each, Mrs. Howard, Josserand and Emenhiser testified as to the experimental nature of the theater and its operation, and their testimony is not consistent with the testimony of the interference record." (It may be stated at this point that in the oral argument in this court, counsel for appellant stated that the word "not" in the foregoing quotation was a typographical error and that he had no intention of stating that the evidence in the public-use proceeding was inconsistent with the evidence in the interference.)

It is further stated in appellee's petition that, because of the repudiation by Josserand of his testimony and that of his witnesses in the interference case, appellee Taylor "had no alternative but to examine a sufficiently large number of disinterested and reputable persons of recognized standing in their community (Galveston) who had either had actual connection with the 1934-Galveston drive-in theater or had personally observed its construction and structure so as to resolve, beyond peradventure," that although there was a public use of a drive-in theater, there were no inclined drive-over ramps or inclined parking ramps in appellant's drive-in theater as called for by the count involved in the interference; but that on the contrary, the car-parking area in the 1934 Galveston drive-in theater "was nothing more than flat beach surface with the natural down-incline towards the water's edge."

The count in the interference reads:

"In a drive-in theater a plurality of inclined parking ramps for elevating the front ends of automobiles parked in said theater, a plurality of inclined drive-over ramps merging with the higher portions of said parking ramps, and a plurality of driveways, each of said driveways merging with the lower portion of one of said drive-over ramps on one side thereof and with the lower portion of one of said parking ramps on the other side thereof."

It is true that in his testimony in the public-use proceeding, appellant Josserand stated "The theater itself was a whole lot more on paper and testimony than it ever was on the sands of the beach of Galveston at that time" and that "Verbally it appears to much better advantage than it did on the beach." Nevertheless, appellant stated over and over again in his testimony that the invention defined by the quoted count was constructed on the beach at Galveston, and each of his witnesses who testified in that proceeding corroborated his testimony in that regard.

It is also true that appellant and each of his witnesses in the public-use proceeding testified that the theater was not completed at the time of its destruction by a storm (the destruction of which was explained in our decision in the interference proceeding) and that the operation of his drive-in theater was experimental in character. It is apparent from the record that in testifying that the theater was not complete at the time of its destruction, each of the witnesses intended to be understood as saying that the drive-over ramps and other elements of the invention, as defined by the count in issue, were not extended to cover the complete area of the theater grounds.

So far as the experimental nature of the Galveston drive-in theater is concerned, it may be stated that prior to the construction of that theater, the party Josserand and the witness A. H. Emenhiser, who was in charge of the construction, had attempted to lease some property from the witness T. D. Dunn, Jr., of Houston, Texas, for the purpose of constructing a drive-in theater thereon; that the witness Dunn was somewhat skeptical of the success of such a theater; and that for that reason, and because of the comparative difference in the cost of constructing a temporary theater on the beach and a permanent structure on the Dunn property, it was decided that a so-called "experimental theater" should be constructed on the beach at Galveston. (It appears that it would cost approximately $1,500 to construct a temporary drive-in theater on the beach, whereas the cost of constructing a permanent one on the property of Mr. Dunn would be approximately $30,000.)

The features of the Josserand theater, which have been referred to as experimental, were, namely, (1) to determine whether the public would be interested in a drive-in theater, and (2) to build the necessary driveways, inclined parking ramps, and inclined drive-over ramps, as called for by the count in interference, so that all persons seated in automobiles located in all parts of the theater could, without difficulty, see the picture being shown. It may be said in this connection that in his preliminary statement in the interference proceeding the party Josserand referred to the fact that he had experimented with the so-called Galveston drive-in theater, and the court referred to that fact in its decision.

Obviously, no one would seriously contend that a permanent theater, having inclined parking ramps for elevating the front ends of automobiles, together with the other elements called for by the count in the interference, would be constructed by any sensible person on the sands of a beach. Nevertheless, it appeared from the evidence in the interference proceeding and from the testimony of the party Josserand and his witnesses in the public-use proceeding that a drive-in theater, conforming to the count in issue, was constructed and successfully, although temporarily, operated on the beach at Galveston.

In order to establish that the party Josserand's drive-in theater at Galveston was not constructed in conformity with the count in the interference, and that appellant and his witnesses perpetrated a fraud upon this court by committing perjury in that proceeding, appellee introduced in the public-use proceeding the testimony of approximately fifteen witnesses. Many of those witnesses, who were interrogated regarding the elements called for by the count involved in the interference and who testified some ten years subsequent to the construction of the theater in question, stated that there were no inclined parking ramps, as called for by the count, or that they did not see such inclined parking ramps in the theater. So far as appears from the record, all of those witnesses were available and could have been called to testify in the interference proceeding. Why they were not called is not explained.

The presence of the elements called for by the count in issue in appellant's drive-in theater on the beach at Galveston, Texas, and the reduction to practice of the invention, were fully tried and decided by this court, at a former term, in our decision in the interference proceeding, in which proceeding the sufficiency of the evidence and the credibility of appellant's witnesses were fully considered and determined.

It has repeatedly been held by the Supreme Court and by the Circuit Courts of Appeals that relief may be obtained in equity by a bill of review only in the event that a final judgment or decree rendered at a...