Schilling v. Schwitzer-Cummins Co., No. 8412.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GRONER, Justice, MILLER and EDGERTON, Associate Justices
• Citation: 142 F.2d 82,79 US App. DC 20
• Decision Date: 31 March 1944
• Docket Number: No. 8412.
• Parties: SCHILLING et al. v. SCHWITZER-CUMMINS CO.

79 US App. DC 20, 142 F.2d 82 (1944)

SCHILLING et al.
v.
SCHWITZER-CUMMINS CO.

No. 8412.

United States Court of Appeals District of Columbia.

Decided March 31, 1944.

Mr. Arthur Raisch, of Detroit, Mich., member of the bar of the Supreme Court of the State of Michigan, pro hac vice, by special leave of Court, with whom Messrs. Stuart C. Barnes, of Detroit, Mich., and John G. Sbarbaro, of Washington, D. C., were on the brief, for appellants.

Mr. Ralph G. Lockwood, of Washington, D. C., with whom Mr. Dwight B. Galt, of Washington, D. C., was on the brief, for appellee.

Before GRONER, Chief Justice, MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

This appeal arises out of a Section 4915 proceeding in the District Court which, in turn, followed an interference proceeding in the Patent Office. Invention is conceded; the improvement being an automatic seal, a self-contained assembly which can be handled and put in place as a unit, intended primarily for water pumps used on automobiles. Both the Patent Office and the District Court decided in favor of appellee. Specifically, the court found: "5. The invention in issue relates to a fluid seal generally used to seal the water pump shaft in water cooled motors, including a self-contained non-exploding sealing unit,

142 F.2d 83

as set forth and particularly described and claimed in plaintiff's application, claims 19 to 22, inclusive. 6. The defendant-patentee, Schwitzer-Cummins Company, has established possession of the invention in issue, as having been invented by its assignor, Kurt A. Beier, on or before November 6, 1935, and its disclosure to plaintiffs by the drawing in evidence as Defendant's Exhibit N and the letter of transmittal thereof to the plaintiffs dated November 6, 1935. 7. The earliest date that plaintiffs have established as their being in possession of the invention in issue and as the invention of Robert Schilling, is November 26, 1935. 8. Plaintiffs have failed to establish that they first disclosed the invention in issue to defendant, Schwitzer-Cummins Company, or its assignor, Kurt A. Beier, the first disclosure of one of said parties to the other being established as the disclosure of defendant, Schwitzer-Cummins Company, to plaintiffs by its letter dated November 6, 1935, transmitting the drawing, Defendant's Exhibit N. 9. Plaintiffs' successful tests of the seals produced by defendant, Schwitzer-Cummins Company, according to the said Defendant's Exhibit N, constituted a reduction to practice inuring to the benefit of said defendant's assignor Beier. 10. The plaintiff-applicant Schilling was not the true, original and first inventor or discoverer of the fluid seal as defined by his said claims here in issue, having failed to establish his invention thereof as being prior to that of the said defendant's assignor Beier."

In its preliminary memorandum opinion the trial court found the facts to be "substantially as claimed by the defendant * * *" and directed counsel to draft findings. Appellants contend this is not a commendable procedure; that the findings subsequently made are entitled to no weight; and, consequently, that the case should be considered by this court, on the evidence, de novo. Assuming the correctness of the premise, the conclusion does not follow. In such a situation as that of the present case, if adequate findings had not been made, the proper procedure would be to remand the case to the trial court and direct that new findings be made.¹ It is not the function of an appellate court to assume the powers of the trial court; which it would do, necessarily, if it tried, de novo, such a case as the present.²

However, the premise assumed by appellants is incorrect. Whatever may be the most commendable method of preparing findings — whether by a judge alone, or with the assistance of his court reporter, his law clerk and his secretary, or from a draft submitted by counsel — may well depend upon the case, the judge, and facilities available to him.³ If inadequate findings result from improper reliance upon drafts prepared by counsel — or from any other cause — it is the result and not the source that is objectionable.⁴ It is no more appropriate to tell a trial judge he must refrain from using or requiring the assistance of able counsel,⁵ in preparing his findings,

142 F.2d 84

than it would be to tell an appellate judge he must write his opinions without the aid of briefs and oral argument. What the law requires in this respect is that the findings as made, shall be those of the trial judge himself.⁶ The ultimate test as to the adequacy of findings will always be whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision,⁷ and whether they are supported by the evidence.⁸ To the extent that they are, in addition, concisely stated, nonargumentative in form, free from conclusions of law⁹ and from the redundancy so frequently found in pleadings, they will be more useful to all concerned.¹⁰ While counsel may be disappointed that findings do not discuss propositions sincerely contended for, that, alone, does not make them inadequate or suggest that such propositions were not...