Laufenberg, Inc. v. Goldblatt Bros.
| Decision Date | 16 March 1951 |
| Docket Number | No. 10227.,10227. |
| Citation | 187 F.2d 823 |
| Parties | LAUFENBERG, Inc. v. GOLDBLATT BROS., Inc. |
| Court | U.S. Court of Appeals — Seventh Circuit |
L. B. Mann, Thomas F. McWilliams, Chicago, Ill., for appellant.
Ira Milton Jones, Milwaukee, Wis., Jules L. Brady, Bradford Wiles, Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
In this action plaintiff claimed infringement of three patents owned by it, to wit, Wimmer, No. 1,863,211, Herodes et al., No. 2,180,902, and Laufenberg, No. D-150,306. Before the trial plaintiff withdrew Wimmer and all claims of Herodes except Claim 2. In its answer defendant demanded that reasonable attorney's fees be assessed against the plaintiff. The district court held that Claim 2 of the Herodes patent was not infringed and also held that both Wimmer and Herodes patents were invalid. Upon appeal this court affirmed, 179 F.2d 832 — opinion dated Feb. 10, 1950, holding that the design patent was invalid for want of invention and that the entire Herodes patent was invalid because of plaintiff's failure to file a disclaimer.
The decree of the district court was "that the complaint be, and is hereby dismissed at plaintiff's costs." It did not contain any reference to the allowance of attorney's fees. The mandate of this court provided,
On June 19, 1950, defendant filed a motion in the district court, invoking R.S. § 4921, 35 U.S.C.A. § 70, that it be awarded reasonable attorney's fees. On the hearing defendant filed affidavits showing it had incurred attorney's fees in excess of $8,000 in defending itself against plaintiff's charges. The district court said, in part:
Although the court did not make a formal finding of lack of good faith on plaintiff's part, in a colloquy the trial judge referred to this action as a flimsy patent suit, and stated he would allow attorney's fees if he had the jurisdiction to do so.
The statute, R.S. § 4921, 35 U.S.C.A. § 70, reads in part: "* * * The court may in its discretion award reasonable attorney's fees to the prevailing party upon the entry of judgment on any patent case."
The defendant's answer raised the issue whether attorney's fees should be awarded in this case. The court did not make such an award, nor was there any reservation in the judgment for the court to make such an award or to fix the amount thereof at a later date. Defendant did not attempt to cross-appeal or otherwise object by reason of the court's failure to award attorney's fees.
Defendant argues that the statutory provision that a court may award reasonable attorney's fees "upon the entry of judgment" means something different than at the time of the entry of judgment or simultaneously with the entry of judgment, and to support its position cites one district court case, Juniper Mills, Inc., v. J. W. Landenberger & Co., D.C., 6 F.R.D. 463.
An award of attorney's fees under R.S. § 4921 is not the usual or customary procedure in a patent suit. Such an award is not a matter which follows as of course from the decision of the suit, as in the case of ordinary costs. This court has held that such fees are not to be allowed as a matter of course to the prevailing party in the usual patent suit. Blanc v. Spartan Tool Co., 7 Cir., 178 F.2d 104, 105. Other courts have said that such fees may be awarded to prevent gross injustice, Lincoln Electric Co. v. Linde Air Products Co., D.C., 74 F.Supp. 293, 294, and that the statute should be invoked only where vexatious or unjustified litigation is shown, Phillips Petroleum Co. v. Esso Standard Oil Co., D.C., 91 F.Supp. 215.
The plaintiff had obtained title to the two mechanical patents in suit by purchase from their previous owners. There had not been...
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