Smith v. Sinclair Refining Company
| Decision Date | 07 July 1958 |
| Docket Number | Docket 24679.,No. 68,68 |
| Citation | 118 USPQ 183,257 F.2d 328 |
| Parties | William Alvah SMITH, Plaintiff-Appellant, v. SINCLAIR REFINING COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
George A. Smith, Philadelphia, Pa. (Harold I. Popp, Buffalo, N. Y., Edward Paul Smith, Philadelphia, Pa., on the brief), for plaintiff-appellant.
Roger T. McLean, New York City (Curt von Boetticher, Jr., New York City, Clayton M. Smith, Buffalo, N. Y., on the brief), for defendant-appellee.
Before MEDINA, WATERMAN and MOORE, Circuit Judges.
Plaintiff brought this action on May 4, 1955 for the infringement of patent 2,247,926 issued to him on July 1, 1941. The defendant, amongst other defenses, pleaded laches. Thereafter a separate trial on the issue of laches was held and resulted in a judgment in defendant's favor dismissing the complaint on the merits. Comprehensive findings of fact and conclusions of law were made by the trial court.
Plaintiff filed an application for a patent on February 27, 1930. Plaintiff's application was involved in an interference with an application of John Walsko filed August 1, 1931, the interference lasting from September 22, 1933 until February 27, 1939. The defendant, from 1934 until the time suit was commenced, was allegedly using the process described in the Walsko application in connection with the refining of oil by a nitrobenzene-acid process. The interference proceedings resulted in an award by the Examiner of Interferences to the plaintiff, which award was affirmed by the Board of Appeals and the Court of Customs and Patent Appeals. During the course of the interference proceedings the defendant had made an offer to acquire plaintiff's rights on his side of the interference. To this end there had been a conference between a representative of defendant, plaintiff, and plaintiff's attorney. Defendant's representative stated that "we considered the Smith application at the time more or less of a nuisance value to us." Plaintiff's attorney took issue with this statement claiming that "if we prevail in the interference we will control treatment of lubricating oil with nitrobenzene and sulphuric acid and control the process at Wellsville the location of defendant's plant." Thus it is clear that during the period of the interference plaintiff was aware that the process for which he was seeking a patent was also the process being used by the defendant.
Shortly after plaintiff's patent was granted, on July 1, 1941, plaintiff's attorney, on August 19, 1941, wrote to defendant informing it of the issuance of plaintiff's patent and enclosed a copy of the patent. He advised defendant that (Exh. D). On the same day the attorney wrote to the same representative of the defendant with whom he had been previously conferring advising him of the issuance of plaintiff's patent and stating that "we are giving formal notice to the company, so that any further use of the nitro benzene and sulphuric acid in your treating process or of any other benzene, will be with full knowledge of the existence of this patent and will not be through inadvertence" (Exh. C).
During the five and one-half years of the interference proceedings plaintiff had an opportunity to become aware of the process defendant was using. In fact plaintiff admitted that, upon information he had obtained from the interference proceedings, he believed that defendant was infringing his patent. Furthermore, the process used by defendant was described in trade journals between 1938 and 1949. These journals were available to plaintiff. Plaintiff's allegation of infringement "for a long time past" was based upon "what I read." From this reading plaintiff concluded that "it is...
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