Leishman v. Radio Condenser Co.
| Decision Date | 03 June 1948 |
| Docket Number | No. 11652.,11652. |
| Parties | LEISHMAN v. RADIO CONDENSER CO. et al. RADIO CONDENSER CO. et al. v. LEISHMAN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
LeRoy J. Leishman, in pro. per.
Frederick S. Lyon, Leonard S. Lyon and Leonard S. Lyon, Jr., all of Los Angeles, Cal., and Maxwell James, of New York City, for Radio Condenser Co.
Before MATHEWS, BONE, and ORR, Circuit Judges.
LeRoy J. Leishman owned reissue patent No. 20,827, a reissue of patent No. 2,108,538. Crosley Radio Corporation, hereafter called Crosley, Radio Condenser Company, hereafter called Condenser, and General Instrument Corporation, hereafter called General, manufactured mechanical tuners used in radio receiving sets. Crosley manufactured radio receiving sets containing tuners manufactured by it and sold such sets to Associated Wholesale Electric Company, hereafter called Associated, which sold them to others. Condenser sold tuners manufactured by it to Galvin Manufacturing Corporation, hereafter called Galvin, which manufactured radio receiving sets containing such tuners and sold such sets to The Richards and Conover Company, hereafter called Richards, which sold them to others.
In an action by Leishman against Associated in the District Court of the United States for the Southern District of California, hereafter called the California Court, Leishman alleged that claims 7-11 of the reissue patent were infringed by the Crosley tuners in the sets sold by Associated and prayed for a judgment enjoining such infringement. Associated denied that the claims were so infringed and alleged that they were invalid. The California court held that the claims were invalid and entered a judgment so declaring and dismissing the action.1 On appeal, we held that the claims were not infringed by the Crosley tuners, modified the judgment by striking therefrom the declaration that they were invalid, and affirmed the judgment as thus modified.2 Certiorari to review our decision was denied on December 6, 1943.3
On March 7, 1945, Leishman brought an action against Richards (action No. 2155) in the District Court of the United States for the Western District of Oklahoma, hereafter called the Oklahoma court, alleging that the claims were infringed by the Condenser tuners in the sets sold by Richards and praying for a judgment enjoining such infringement.
Prior to April 20, 1945, Leishman notified Condenser that the claims were infringed by the Condenser tuners and notified General that they were infringed by the General tuners. On April 20, 1945, Condenser and General brought an action against Leishman in the California court, praying for a judgment declaring that the claims were not infringed by the Condenser tuners or the General tuners and enjoining Leishman from asserting that they were so infringed. Leishman filed an answer containing a counterclaim alleging that the claims were infringed by the Condenser tuners and the General tuners and praying for a judgment enjoining such infringement. Condenser and General filed a reply denying that the claims were so infringed. Thereafter, on January 23, 1946, Condenser and General filed a motion for a summary judgment in their favor. The motion was heard and granted. A summary judgment was entered on September 12, 1946. The judgment declared that the claims were not infringed by the Condenser tuners or the General tuners and enjoined Leishman from asserting that they were so infringed and from prosecuting any action in which such infringement was asserted. On motion of Leishman, the judgment was amended on December 18, 1946, by adding thereto the following:
"This judgment shall not be construed to mean that the defendant Leishman is enjoined from proceeding in the case of LeRoy J. Leishman v. The Richards & Conover Company, civil action No. 2155 of the United States District Court for the Western District of Oklahoma, and defendant is not enjoined from proceeding against Galvin Manufacturing Company."4
Leishman has appealed from the amended judgment. Condenser and General have appealed from the above quoted part thereof — the part which was added by amendment.5
Leishman contends that the California court erred in granting the motion for a summary judgment. There is no merit in this contention. The motion was filed, heard and granted pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c, which, as it then existed,6 provided that "A party seeking to recover upon a claim * * * or to obtain a declaratory judgment may, at any time after the pleading in answer thereto has been served, move with or without supporting affidavits for a summary judgment in his favor;" that "The adverse party * * * may serve opposing affidavits;" and that "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Condenser and General were parties seeking relief7 upon a claim — the claim that claims 7-11 of the reissue patent were not infringed by the Condenser tuners or the General tuners — and to obtain a declaratory judgment — a judgment declaring that claims 7-11 were not so infringed. The motion for a summary judgment was filed, with supporting affidavits, after the answer and reply had been filed and served. Leishman filed and served two opposing affidavits — one on February 15, 1946, and one on May 25, 1946. No depositions or admissions were filed. The pleadings, together with the affidavits, showed that there was no genuine issue as to any material fact and that Condenser and General were entitled to a judgment as a matter of law.
It is true that the pleadings, without the affidavits, showed that there was an issue as to a material fact, namely, an issue as to whether the claims were infringed by the Condenser tuners and the General tuners. However, one of the supporting affidavits (that of Samuel S. McKeown) stated, in substance, that the Condenser tuners and the General tuners did not differ materially from the Crosley tuners. The statement was not controverted and hence was accepted by the California court, and is accepted by us, as correct. In view of our decision in the Associated case,8 holding that the claims were not infringed by the Crosley tuners, the California court correctly concluded that, in the case at bar, the issue as to whether the claims were infringed by the Condenser tuners and the General tuners was not a genuine issue.
Leishman contends that the California court erred in following our decision in the...
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