Mueller v. Wolfinger, Civil Action No. 544.

• Decision Date: 01 May 1946
• Docket Number: Civil Action No. 544.
• Citation: 68 F. Supp. 485
• Parties: MUELLER et al. v. WOLFINGER.
• Court: U.S. District Court — Southern District of Ohio

68 F. Supp. 485

MUELLER et al. v. WOLFINGER.

Civil Action No. 544.

District Court, S. D. Ohio, W. D.

May 1, 1946.

F. O. Richey and H. F. McNenny, of Richey & Watts, all of Cleveland, Ohio, and Joseph D. Chamberlain, of Dayton, Ohio, for plaintiffs.

Warren H. F. Schmieding, of Columbus, Ohio, and Tom J. E. Walker, of Dayton Ohio, for defendants.

NEVIN, District Judge.

This is a patent suit. Plaintiffs filed their complaint in this Court on October 9, 1945. At that time the only defendant named was Robert F. Wolfinger, d.b.a. Superior Manufacturing Company, at Delaware, Ohio.

On November 28, 1945, Ray H. Peak filed a petition for leave to intervene as joint defendant.

In his petition, Ray H. Peak alleges that he has an interest in this litigation. With and in support of the petition of Ray H. Peak, an affidavit of defendant Robert F. Wolfinger was filed on November 28, 1945.

From these documents, it appears that Ray H. Peak, a resident of Delaware, Ohio, and doing business there as Superior Manufacturing Company, manufactures the devices referred to in the bill of complaint, which devices are sold by defendant Wolfinger, as exclusive Sales Agent under an agreement, a copy of which is attached to defendant Wolfinger's affidavit and marked Exhibit A. It further appears that while Wolfinger and Peak are not partners, it is agreed between them that each is individually entitled "to do business as the Superior Manufacturing Company," Wolfinger "selling Superior Poultry Picking Machines, manufactured by Peak and Peak manufacturing said machines."

By stipulation of the parties filed on December 5, 1945, and with the approval of the Court, the petition of Ray H. Peak was granted and he was made and now is a defendant herein, "nunc pro tunc as of the filing of the Bill of Complaint."

The defendants of record now, therefore, are Robert F. Wolfinger, d.b.a. Superior Manufacturing Company, and Ray H. Peak, d.b.a. Superior Manufacturing Company.

In their complaint, plaintiffs charge defendants with infringement and contributing to the infringement of patent No. 2,300,157, issued October 27, 1942, to George R. Hunt for "feather-picking apparatus for fowls and the like."

On December 4, 1945, defendants filed their answer denying infringement and alleging invalidity of Hunt patent No. 2,300-157 for the reasons set forth in their answer. With their answer defendants also filed a counter claim. On January 25, 1946, plaintiffs filed their reply to this counter claim.

On October 9, 1945, simultaneously with the filing of their bill of complaint, plaintiffs also filed a motion for preliminary injunction. With and in support of that motion they filed two affidavits, together with certain exhibits attached to each of the affidavits respectively. One affidavit is by Conrad B. Mueller (a plaintiff herein), and the other by H. F. McNenny. The cause is now before the Court on this motion for preliminary injunction.

On October 7, 1943, plaintiffs, in the instant action, filed (as plaintiffs therein) suit in this Court, said suit being Civil Action No. 279 on the docket of this Court. In that action, the defendants were Harold C. Campbell; H. D. Thomas, d.b.a. The Thomas Company, and William E. Ginovan, d.b.a. Ginovan Poultry Market. Defendants in that cause (Civil No. 279) were charged with infringement of Hunt patent No. 2,300,157, and particularly claims 2, 3, 7, 10, 12, 14, 16, 17 and 19 thereof. The patent contains 19 claims.

On June 23, 1945, 68 F.Supp. 464 this Court rendered a decision and thereafter, on July 30, 1945, based upon that decision, a judgment was entered in cause No. 279, adjudging claims 2, 3, 7, 10, 12, 14, 17 and 19 of Hunt patent No. 2,300,157 good and valid in law. (Claim 16 was adjudged invalid.)

It was further adjudged that each of the defendants in that action, H. C. Campbell; H. D. Thomas and William E. Ginovan, respecively, had, by making, selling and using the device complained of in Cause No. 279, infringed each of the claims just referred to in issue and there held to be valid.

A permanent injunction, enjoining the defendants in Civil Action No. 279, from further infringement, was granted. Both plaintiffs and defendants in that action have given notice of an appeal to the United States Circuit Court of Appeals for this (Sixth) Circuit.

In a bill of particulars filed herein on November 26, 1945 (on motion of defendants), plaintiffs assert that on the present motion for preliminary injunction they will rely on the same claims of the Hunt patent heretofore (in Cause No. 279) held valid, to-wit, claims 2, 3, 7, 10, 12, 14, 17 and 19.

Extensive briefs have been filed in support of and contra the motion now under consideration, and on December 11, 1945, counsel for the respective parties argued the motion orally.

Defendants, in the affidavit of defendant Wolfinger and in the briefs of their counsel, urge that if a motion for preliminary injunction should be granted they "will be damaged irreparably." Plaintiffs, on the other hand, maintain that if the motion is denied they will suffer irreparable loss and damage.

Plaintiffs say (Br.Pp. 26, 27) that the whole of the record, including the affidavits on file, shows the following picture: (That) "Campbell saw the Hunt machine at Marion, Ohio, in 1939, went home, copied it, filed his false affidavit in the Patent Office (See record and Decision in Cause No. 279), made the Ashley machine, then made the Peerless machine for Thomas employing first the construction shown in the Campbell patent held to infringe in the main cause, and then the machine shown in the Campbell and Thomas patent No. 2,376,120 and illustrated and described in the numerous advertisements of Campbell and Thomas, relied upon by us on the Rules to Show Cause. After selling the machine with the finger having the hollow in the end, as illustrated in Plaintiffs' Exhibit 2 in the Superior cause, Superior shifted over to the machine with the finger illustrated in the Campbell and Thomas patent No. 2,376,120 and in the advertisements relied upon in the Motion to Show Cause and illustrated in the drawings in the back of our Main Brief on the Motion to Show Cause. Peak made this machine and sold it to Wolfinger, who in turn sold it to Campbell, who in turn sold it to the trade as the `Peerless' machine illustrated in Plaintiffs' Exhibit 4. Peak, who calls himself Superior, then made the machine with the oval finger illustrated in Plaintiffs' Exhibit 3 in the Superior cause and illustrated in the drawing in the back of our Main Brief on the Motion for a Preliminary Injunction in the Superior cause and of the general construction illustrated in Plaintiffs' Exhibit 6 concerning which Corey testified in the main cause. This machine was sold to Wolfinger who also calls himself Superior, who sold it to the trade. Geographically, all of these parties are located together. As a result of all this it can be seen that all the defendants in both of these causes have been working together and that all have acquired their information originally from Hunt. Whether it can be technically said that these people are in privity or not is unimportant for, in fact, they are insofar as taking the Hunt invention is concerned. * * * The defendants in the instant cause are linked up with the defendants in the former cause to such an extent that the whole set up might be said to be a conspiracy to appropriate the Hunt invention notwithstanding the former litigation and the decision therein. To permit the infringement to continue would have that effect and will cause serious and irreparable injury to the patentees especially since notoriously the type of people who are practicing these infringements, headed by Campbell, are the type who are too often successful in concealing the profits and gains which they realize from the infringement."

At the oral argument, based on the previous decision and...