Sommer v. Rotary Lift Co.

• Decision Date: 06 September 1933
• Docket Number: No. 6847.,6847.
• Citation: 66 F.2d 809
• Parties: SOMMER v. ROTARY LIFT CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F.2d 809 (1933)

SOMMER v. ROTARY LIFT CO. et al.

No. 6847.

Circuit Court of Appeals, Ninth Circuit.

September 6, 1933.

Raymond Ives Blakeslee and Kelly L. Taulbee, both of Los Angeles, Cal., for appellant.

Lynn A. Williams, of Chicago, Ill., and Chas. M. Fryer and Alfred C. Aurich, both of San Francisco, Cal., for appellees.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from a preliminary injunction in a patent infringement suit. The appellee Peter J. Lunati is the patentee of a lifting device for motor vehicles, and the Rotary Lift Company is a licensee under this patent.

It appears from the complaint that the validity of this patent had been litigated in the District Court of the United States for the Western District of Tennessee, in which case a final decree had been entered November 18, 1929. The appellant opposed the motion for preliminary injunction on the ground that the patent was invalid for the reason that no invention was involved in the hydraulic lifting device which was covered by the patent and upon the ground that there was no infringement of the patent even if valid because of the fact that defendant's hydraulic lifting device differed from the patented device and was the result of a teaching of the prior art rather than of any combination of elements such as were described in Lunati's patent. It is clearly recognized by the parties, and well established by the decisions, that the question for the appellate court to consider in an appeal from a preliminary injunction is solely that of whether or not, under the circumstances, the trial court has exercised sound discretion in granting the preliminary injunction. It has been held by the Supreme Court, in Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 495, 20 S. Ct. 708. 44 L. Ed. 856, that upon an appeal from a preliminary injunction the appellate court being satisfied that there was no invention had power to order a dismissal of the bill. This, of course, should rarely be done. The appellant, by his affidavits in opposition to the issuance of the preliminary injunction sought to have the court adjudicate the invalidity of the patent, or, at any rate, to impress the court that the validity of the patent was doubtful. He now seeks on this appeal an adjudication that the patent is invalid. The question thus advanced is whether the application of an hydraulic lift to the raising of an automobile sufficiently high to service its under parts is an invention or merely an application of well known principles utilized daily in hydraulic elevators for decades.

The record presented by the appellant consists of two volumes containing in all 1,062 pages. It is inexcusably long and no effort has been made to comply with Rule No. 75, subd. B, with relation to preparation of statement on appeal. In the præcipe for appeal we find, among other things indicated, a "Reporters' transcript of proceedings on motion for preliminary injunction and all proceedings on all other motions, hearings and matters reported, and of which transcript was prepared, to go up as physical exhibits." This portion of the præcipe was objected to by the appellee on the ground that "these proceedings are sought to be brought before the Circuit Court of Appeals in the form of physical exhibits whereas, in the light of the assignments of error made in this cause it is indispensable that those documents be incorporated in the printed record." The objections were heard by the trial judge, whereupon the following order was made:

"The court orders that the objections of the plaintiff are sustained with the privilege granted to the defendant, if so advised, to include as a part of the printed record on appeal the reporter's transcript of proceedings on motion for preliminary injunction and all proceedings on all other motions, hearings and matters reported and of which a transcript was prepared. * * *

"The objections of the defendant to the plaintiff-appellees' præcipe on appeal are sustained except as to objection No. 25 and as to that objection the same is...