LIVESAY INDUSTRIES v. LIVESAY WINDOW COMPANY

• Citation: 256 F.2d 1
• Decision Date: 28 July 1958
• Docket Number: No. 16759.,16759.
• Parties: LIVESAY INDUSTRIES, Inc. and Everett G. Livesay Window Company, Inc., Appellants. v. LIVESAY WINDOW COMPANY, Inc., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

256 F.2d 1 (1958)

LIVESAY INDUSTRIES, Inc. and Everett G. Livesay Window Company, Inc., Appellants. v. LIVESAY WINDOW COMPANY, Inc., Appellee.

No. 16759.

United States Court of Appeals Fifth Circuit.

June 24, 1958.

Rehearing Denied July 28, 1958.

J. M. Flowers, Henry M. Sinclair, Don G. Nicholson, Miami, Fla., for appellant.

Ralph L. Chappell, New York City, Hollis Rinehart, Jr., William W. Gibbs, Walter Humkey, Miami, Fla., Kenyon & Kenyon, Fowler, White, Gillen, Yancey & Humkey, Rinehart & Gibbs, Miami, Fla., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

The background against which this case arose may be found in two previous decisions of this Court: Livesay Industries, Inc., v. Livesay Window Co., Inc., 5 Cir., 1953, 202 F.2d 378, and Livesay Window Co., Inc., v. Livesay Industries, Inc., 5 Cir., 1958, 251 F.2d 469. Very briefly, the appellants, one of which was the owner and the other the licensee of a patent on a precast monolithic concrete window frame with Venetian blind guides, brought suit in 1949 against appellee Livesay Window Co., Inc. for patent infringement. The suit resulted in a decree for the plaintiff on October 8, 1951. This Court, in the 1953 decision cited above, affirmed that judgment with respect to the finding of infringement and reversed in part so that there might be an accounting as to the money damages resulting from the infringement. The accounting proceedings resulted in a judgment which was affirmed by this Court in 251 F.2d 469. Meanwhile, in 1952, appellants filed a petition for contempt against appellee Livesay Window Co., Inc., and one L. F. Bjorkman, alleging that the 1951 decree's injunction against infringement had been violated. At the conclusion of the plaintiff's case, a motion to dismiss was granted for failure to make out a prima facie case. No appeal was perfected from this order, which was entered in 1952. In the accounting proceedings mentioned above, the district court declined to allow any award for damages from infringement alleged to have occurred subsequent to the 1951 decree, on the ground that recovery of such damages would more appropriately form the subject of another action, such as one for contempt. No appeal was taken from this holding. There followed the case now being reviewed in which the appellants in 1956 filed a petition for a rule to show cause why Livesay Window Co., Inc., certain corporations alleged to have succeeded to that company's assets and business, and certain officers and directors of all the corporations named, should not be held in contempt for violation of the injunctive portion of the 1951 decree. The life of the patent had run by this time, and it was agreed that the primary purpose of the petition was to recover damages for the period between October 8, 1951, the effective date of the decree, and the expiration of the patent monopoly.

Upon the conclusion of the petitioner's case, the district court concluded that the evidence did not show a violation of the injunction and granted a motion to discharge the rule. Several questions have been raised on appeal, but only one will be considered because our resolution of it makes unnecessary a determination of the others. This question is whether or not the record evidence sustains the district court's determination that the injunction was not violated.

The pertinent portion of the decree of October 8, 1951, reads as follows:

"That the defendant, Livesay Window Company, Inc., a Florida corporation, its officers, employees, servants, workmen, agents, associates, attorneys, and all persons acting in conjunction with or under the control of said defendant be, and the same hereby are permanently restrained and enjoined from infringing upon United States Letters Patent No. 2,166,870, granted July 18, 1939, to Everett Gray Livesay, by making, causing to be made, using, selling, or offering for sale, any precast monolithic concrete window frame as exemplified by Defendant\'s Exhibit `A\' in evidence, or by making, causing to be made, using, selling, or offering for sale, any precast monolithic concrete window frame, with the knowledge, purpose, and intent, that it shall be used in the combination which will infringe the said patent. But nothing in this decree shall prevent the Defendant from making, causing to be made, using, selling, or offering for sale, any precast monolithic concrete window frame as constructed and exemplified by Defendant\'s Exhibit `B\' in evidence."

The "Exhibit `A' frame" and its relation to the patented frame have been described in the opinion reported in 251 F.2d 469, 470. The "Exhibit `B' frame" is essentially identical with the Exhibit A frame, except that it has no pintles or other devices to aid in installation...