SPEE-FLO MANUFACTURING CORP. v. Braniff Airways, Inc.
| Decision Date | 23 July 1970 |
| Docket Number | No. 27718.,27718. |
| Citation | 430 F.2d 74,166 USPQ 371 |
| Parties | The SPEE-FLO MANUFACTURING CORPORATION, Plaintiff-Appellee-Cross Appellant, v. BRANIFF AIRWAYS, INCORPORATED and Southwest Air Equipment, Incorporated, Defendants-Appellants-Cross Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Howard E. Moore, W. B. West, III, Walter J. Jagmin, Clark, West, Keller, Sanders & Ginsberg, Dallas, Tex., for defendants-appellants cross-appellees.
Harold F. McNenny, Cleveland, Ohio, Edward C. Hutcheson, Houston, Tex., Richard R. Lee, Jr., Dallas, Tex., McNenny, Farrington, Pearne & Gordon, Cleveland, Ohio, Ritchie, Ritchie & Crosland, Dallas, Tex., for plaintiff-appellee cross-appellant.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
In this patent case we are confronted with the usual multiplicity of contentions by both sides which basically can be reduced to the loser's hope that if we review the evidence that was before the district court we will somehow come up with a different conclusion and defeat will change to victory. The hope is usually faint because of its basic fallacy that we retry cases. We do not — we only review them. And patent cases are no exception. Spee-Flo sued for infringement of two of its patents: No. 3,000,576 which patents an air-less spray paint gun, and No. 3,018,968 which covers a recirculating paint heater. The defendants defend on the bases of invalidity of Spee-Flo's patents for anticipation and obviousness, and non-infringement. The district court held both patents valid and infringed, however one of the paint guns which was charged to infringe No. 3,000,576 was held not to infringe. The defendants appeal in general, and Spee-Flo cross-appeals on the holding of non-infringement. Upon an examination of the record, we find the district court's findings to be supported by the evidence and its conclusions correct as a matter of law, consequently we affirm on both direct and cross-appeal.
The district judge made extensive — and hitherto unpublished — findings of fact and conclusions of law which we append to this opinion.
As can readily be seen from the district court's findings and conclusions, this patent is no newcomer to this court. We have twice previously upheld its validity.1 In order to prevail here, the defendants have the unenviable task of persuading us that they have discovered pertinent prior art not previously considered by the Patent Office, two district judges and two panels of this Court. Defendants have not discharged this heavy burden. The additional prior art advanced by defendants to prove anticipation or indicate obviousness did not convince the district judge. These findings of the content of the prior art and the advances over it wrought by the patented invention are questions of fact which the district judge is far better to determine than we. See Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); and such findings are clearly protected by the strictures of Rule 52(a), Fed.R.Civ.P.; see Metal Arts Co. v. Fuller Co., 389 F.2d 319 (5th Cir. 1968). We cannot say that the district judge was in error at all, let alone clearly erroneous, in these findings. We therefore affirm the conclusion that Patent No. 3,000,576 was valid and infringed.
The district judge did, however, find that the so-called LV nozzle used by defendants did not infringe Spee-Flo's patent. We have previously stated that "infringement exists only when the accused device and the teachings of the patent in suit are substantially identical in structure, mode of operation and results accomplished." Stewart-Warner Corp. v. Lone Star Gas Co., 195 F.2d 645 (5th Cir. 1952) at 648. The district judge found that the LV nozzle "differs in kind * * * in structure, function and mode of operation" from the patent in suit. It is evident from the very thorough findings and conclusions written by the district judge that she had an excellent grasp of the case at bar. Upon reviewing the record before us, we are again unable to say that she was clearly erroneous in holding the LV nozzle did not infringe Spee-Flo's patent, so we must also affirm her holding on this point which is raised here on cross-appeal.
Although Patent 3,000,576 is making its third appearance in this court, Patent 3,018,968 — the other patent in suit — is a debutante. Patent 3,018,968 discloses claims for a system to heat and circulate and recirculate heated paint to a spray gun — whether the gun is operating or not. The system employs a single piston, double action pump instead of two pumps or a double piston pump — both of which had previously been used in such system. The principal difficulty solved by the single piston, double action pump was to prevent heated paint from mixing with unheated paint. The significance of the invention in suit and its method of operation are stated in the findings and conclusions of the district court.
Suffice it to say that based upon severely contradictory evidence, the district judge made the requisite findings of fact upon which it was proper to conclude that the '968 patent was both valid and infringed. We consequently affirm.
AFFIRMED on both direct and cross-appeals and REMANDED for an accounting.
APPENDIX
FINDINGS OF FACT
1. This is an action for infringement of U. S. Patent 3,000,576 for a "Spray Gun" and of U. S. Patent 3,018,968 for a "Closed System Recirculating Assembly". Both patents relate to applying finishing materials — paint, varnish, lacquer and the like — by spraying as distinguished from brushing. The complaint charges defendant, SOUTHWEST AIR EQUIPMENT, INCORPORATED with infringement by selling spray guns and equipment covered by the Letters Patent, and the defendant BRANIFF AIRWAYS, INCORPORATED by using spray guns covered by the Letters Patent and sold to it by SOUTHWEST AIR EQUIPMENT. Defendants deny the validity of the patents and infringement, and have filed counter claims, seeking a declaratory judgment that the patents are invalid and not infringed by defendants, alleging creation of a monopoly, estoppel from maintaining the action, and bad faith. Plaintiff and defendants both pray for injunctive relief and compensatory damages. Defendants in addition pray for punitive damages.
2. The jurisdiction of this Court is predicated upon the fact that this is an action arising under the Patent Laws of the United States.
3. The Plaintiff is a corporation organized under the laws of the State of Texas and has a place of business in Houston, Texas.
4. The Defendant, SOUTHWEST AIR EQUIPMENT, INC., is a corporation organized under the laws of the State of Texas and has a place of business in Fort Worth, Texas.
5. The Defendant, BRANIFF AIRWAYS, INC., is a corporation organized under the laws of Nevada and has a place of business in Dallas, Texas.
6. U. S. Patent 3,000,576 was issued on September 19, 1961 to Gustave S. Levey and Stanton F. Harvey, and is now owned by the Plaintiff.
7. Claims 1 to 6, inclusive, and 8 of said Letters Patent No. 3,000,576 have been held to be valid and infringed by the United States District Court for the Southern District of Texas in Spee-Flo Manufacturing Corporation v. Gray Company, Inc., 237 F.Supp. 616, affirmed by the United States Court of Appeals for the Fifth Circuit, 361 F.2d 489, and have been held valid and infringed by the United States District Court for the Southern District of Texas in Spee-Flo Manufacturing Corporation v. Binks Manufacturing Company, 264 F.Supp. 542, affirmed per curiam by the United States Court of Appeals for the Fifth Circuit, 392 F.2d 585.
8. The broad advance in the art achieved by the invention of Patent No. 3,000,576 was described by Judge Connally, 237 F.Supp. 616, beginning with the words "Spray painting has long been known —" on page 617 and ending with the sentence, "The disadvantages of the air spray system were eliminated." on page 618. The findings here referred to are adopted by this Court.
9. This Court likewise adopts the Findings of Judge Connally describing the invention, beginning on page 618 of his Opinion, with the words: "In all airless spray painting" and ending with the sentence "By reason of the fact that the reduction of pressure was accomplished at the site of the pre-orifice, etc." on page 619.
10. The findings on page 619 describing the Claims and beginning with the words, "Claims 1, 2 and 8 include the pre-orifice" etc. to the end of the paragraph are likewise adopted by this Court.
11. The Plaintiff's new H-gun embodying the pre-orifice met with immediate commercial success. There was testimony from customers that the results of spraying with the H-gun were very satisfactory, the disadvantages of the old airless guns were eliminated, and there was a 20% savings in materials.
12. As prior art anticipating Patent No. 3,000,576, Defendants relied on the following patents:
13. Many of the orifice arrangements of the prior patents were made with respect to devices which were not for the use of liquid paint. There is no proof that, in any instance, there was an appreciation of the fact that there was an optimum proportion to be sought between the size of the pre-orifice and the size of the nozzle opening, as is claimed in the patent in suit. Prior...
To continue reading
Request your trial
-
Harrington Manufacturing Co. v. White
...convincing evidence to the contrary, the law presumes that the Patent Office correctly issued the patents. Spee-Flo Mfg. Corp. v. Braniff Airways, Inc., 430 F.2d 74 (5th Cir. 1970); Stamicarbon N. V. v. Escambia Chemical Corp., 430 F.2d 920 (5th Cir. 1970); Hunt Industries, Inc. v. Fibra Bo......
-
Hughes Tool Co. v. Ingersoll-Rand Co.
...of anticipation of Kelly by Brown can be said to be plainly erroneous under Fed. R.Civ.P. 52(a). See Spec-Flo Mfg. Corp. v. Braniff Airways, Inc., 430 F.2d 74 (5th Cir. July 23, 1970). As to Brown, the District Court The most pertinent reference, however, is No. 2,725,216 to Brown. This pat......
-
LOCAL 82, UP, F. & AW v. United States Cold Storage Corp.
... ... and the nominee of Mercantile Refrigerated Warehouses, Inc. ("Mercantile"), simultaneously executed a real estate sale ... ...