Meikle v. Timken-Detroit Axle Co.

• Decision Date: 15 April 1942
• Docket Number: No. 6653.,6653.
• Citation: 44 F. Supp. 460
• Parties: MEIKLE v. TIMKEN-DETROIT AXLE CO.
• Court: U.S. District Court — Western District of Michigan

44 F. Supp. 460

MEIKLE v. TIMKEN-DETROIT AXLE CO.

No. 6653.

District Court, E. D. Michigan, S. D.

April 15, 1942.

Arthur M. Smith and A. E. Wilson, of Gray & Smith, both of Detroit, Mich., for plaintiff.

William A. Strauch, James A. Hoffman, and James E. Nolan, of Strauch & Hoffman, all of Washington, D. C., and John E. Gallagher, of Detroit, Mich., for defendant.

TUTTLE, District Judge.

This is an action by George Stanley Meikle of West Lafayette, Indiana, against The Timken-Detroit Axle Company of Detroit, Michigan, for infringement of U. S. Reissue Letters Patent No. 20,939 of December 6, 1938, and U. S. Letters Patent No. 1,977,521 of October 16, 1934, both issued to the plaintiff as patentee.

The present suit was instituted by the plaintiff, George Stanley Meikle, against The Timken Silent Automatic Company, for which party The Timken-Detroit Axle Company has been substituted.

The action is for infringement of U. S. Letters Patent Re. 20,939, issued December 6, 1938, and U. S. Letters Patent No. 1,977,521, issued October 16, 1934. Plaintiff is the patentee in both patents, which relate to apparatus for producing combustion. Infringement was charged of oil burner structures manufactured by defendant and identified in this litigation as Plaintiff's Exhibits "A" to "M", inclusive. Defendant has filed an answer and counterclaim. Issue has been joined as to the allegations of validity and infringement of plaintiff's patents and of defendant's counterclaim.

The parties to this litigation, proceeding in accordance with the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, had developed, by extensive demands for admissions of facts, and responses thereto, under Rule 36, and by interrogatories under Rule 33 and particulars under Rule 12(e), such a complete record on the controverted issues of validity and infringement that this case was submitted to the court and heard on motions for summary judgment filed by both parties (under Rule 56). The decision of these controverted issues was greatly facilitated by this procedure. All of the pertinent facts were before the court on this record which had been made by the parties and upon which their motions for summary judgment were based. It was unnecessary to call witnesses or take testimony in open court bearing on these issues. Since both parties had presented motions for summary judgment, the court under the broad provisions of Rule 16 may treat such motions as a pre-trial procedure and dispose of all issues upon which the parties have developed their record under Rules 12(e), 33 and 36. Issues upon which the record is not fully developed at the time of hearing such motions may be tried separately under an appropriate order under Rule 42. Where, however, the court finds that disputed matters of fact are involved, and the parties are unable to develop a record upon which the court can decide such issues, motions for summary judgment cannot be looked upon with favor. Refractolite Corp. v. Prismo Holding Corp., D.C., 25 F.Supp. 965; Clair et al. v. Sears, Roebuck & Co., D.C., 34 F.Supp. 559; Charles Blum Advertising Co. v. L. & C. Mayers Co., Inc., D.C., 25 F.Supp. 934; Van Wormer v. Champion Paper & Fibre Co., D.C., 28 F. Supp. 813.

Where, however, as in the present case, the facts relied upon by each party pertaining to the construction and operation of the devices of the patents in suit, of defendant's structures alleged to infringe, and of the construction and operation of the prior art references, have been developed by the parties under the appropriate Rules of Civil Procedure, the course adopted in this litigation should be encouraged. On such a record, the court can consider and decide such factual issues with a substantial saving of time, expense and effort. Having determined these factual issues, the court can decide the legal issues arising therefrom.

The record has not been developed by the parties on the issue of defendant's counterclaim. The issues of defendant's counterclaim are, therefore, separated under the provisions of Rule 42 of the Federal Rules of Civil Procedure and the present opinion is rendered only on the issues of the validity and infringement of plaintiff's patents.

This court's detailed findings of fact and conclusions of law under Rule 52, reached as a result of inquiry and careful consideration of the numerous exhibits presented at the hearing, and of the full explanations of the patents in suit, prior art, and the accused structure, and of full argument by counsel at the hearing, together with the detailed statement of the material to be included in the record for such further procedure as may be taken, are set forth in an order entered under the provisions of Rule 42(b). It was unnecessary to have any part of the hearing reported, or to take testimony of any witnesses under oath, although the court was prepared to do so at any time during the procedure at the request of either party. In addition, illustrative exhibits of the accused structures were introduced by agreement of counsel, and by stipulations entered, as exhibits.

The results of the procedure in this action, involving complicated history and facts and highly technical patent matters, convinces this court that determination of many causes, even though highly technical, can be expedited materially, and the costs to litigants, as well as the burden on the courts of lengthy trials, materially reduced by summary procedure of the type adopted in this cause. The satisfactory results in this cause, in which the actual trial time of the court in disposing of the issues of validity and infringement did not exceed four days, it is appreciated, were due largely to the frank cooperation and fairness of counsel for both parties. However, even with recalcitrant counsel, the rules of civil procedure give the courts ample power to call for a pre-trial hearing under Rule 16, and to force an explanation of the issues, including in patent suits the prior art, the patents in suit, the accused structures, and defenses based on the file wrapper. In this way, the court, even if it cannot dispose of all the issues, will in most cases be able to dispose of some of them.

Having dealt with the procedure, the essential facts and the numerous issues of this particular cause will now be taken up.

The patents in suit were issued after a great deal of prosecution in the Patent Office and the Meikle patent No. 1,977,521 was the subject matter of the decision of the Court of Customs and Patent Appeals in Ex parte Alden & Powers, 81 F.2d 875, 23 C.C.P.A., Patents, 931.

The patents in suit relate to fuel oil burners. The burner structures are designed to mix fuel oil and air to provide a combustible mixture which is burned to heat the combustion chamber of a furnace. In the patents in suit this combustible mixture is formed as a result of the rotation of the burner head. The fuel oil is supplied thereto by means of rotary pick tubes in patent No. 1,977,521 and in two of the forms of patent Re. 20,939. In the form of structure shown in Fig. 1 of patent Re. 20,939, the patentee provided a stationary or fixed oil feeding tube which he says was designed to provide a "spray or jet" of the hydrocarbon fuel which was to be discharged into tubular passages from which was discharged a spray or jet containing fuel oil which was to be further mixed with air in the breaker head.

It seems clear that the patentee intended to form jets or streams of a combustible mixture within the rotating heads of the structures of both patents in suit. The amount of air which is mixed with the fuel oil is the determining factor as to whether or not the mixture is a combustible mixture. In all of the forms of apparatus suggested by the patentee, a sufficient amount of air is mixed with the fuel so that the mixture which is projected from the burner head is a "combustible mixture" as this term is used by the patentee.

In patent No. 1,977,521, the mixture of entrained air and oil which passes upwardly through the pick tubes from the oil reservoir is probably a less "combustible mixture" than is the mixture of fuel oil and air which is projected from the rotating member shown in Fig. 1 of patent Re. 20,939.

In patent Re. 20,939 the combustible mixture is projected at such a velocity from the burner head that ignition of the mixture will occur at a distance from the head and at a point adjacent the walls of the combustion chamber. Such burners are known as "wall flame" burners.

Now taking up the prior art, rotary oil burners have been known for many years, as shown by U. S. Patents to Gibbs No. 752,900, issued February 23, 1904, Lucas No. 957,976, issued May 17, 1910, and Fesler No. 1,026,663, issued May 1, 1912. These early burners were all of the so-called "torch-type". They atomized the fuel and mixed it with air to form a combustible mixture at the head. The resulting flame burned above the burner head in a swirling, torch-like flame.

Two ways of getting oil up to the rotary head and mixing it with air to form a combustible mixture were used in these early burners. In the patent to Gibbs, the oil was drawn from a well by the centrifugal force of the rotating head and thrown out horizontally through tubes. Fan blades on the rotating head supply the air forming the combustible mixture. In the patents to Lucas and Fesler, the oil is fed from stationary feed pipes into rotating cups in the heads, and from the cups by centrifugal force out through tubes or passages. These old methods of feeding and distributing the oil are used by defendant and its predecessors in the eleven accused models of burners in suit except the Silent Automatic Model A burner. Neither of these old methods used by plaintiff is disclosed in the patents in suit.

A typical claim of patent No. 1,977,521 is claim 5, which reads as follows: "5. In an oil burner, a motor driven rotatable head, fuel distributor tubes projecting...