Steele v. Wean, 5745.

• Decision Date: 12 February 1941
• Docket Number: No. 5745.,5745.
• Parties: STEELE v. WEAN et al.
• Court: U.S. District Court — Northern District of Ohio

37 F. Supp. 839

STEELE v. WEAN et al.

No. 5745.

District Court, N. D. Ohio, E. D.

February 12, 1941.

Osborne Mitchell (of Mitchell & Mitchell), of Youngstown, Ohio, and Archworth Martin, of Pittsburgh, Pa., for plaintiff.

H. H. Hoppe, of Warren, Ohio, and Stebbins, Blenko & Parmelee, of Pittsburgh, Pa. (Walter J. Blenko, of Pittsburgh, Pa., of counsel), for defendants.

WILKIN, District Judge.

This cause is instituted in accordance with the provisions of 35 U.S.C.A. § 66, and asks for summary judgment by virtue of the Declaratory Judgment Act, Section 400, Title 28 U.S.C., 28 U.S.C.A. § 400. An answer was filed, admitting the patents but denying other essential averments of the bill of complaint. A motion for summary judgment was then filed, and the case submitted upon the pleadings, the patents in dispute, file wrappers and contents, the bill of particulars, answers to interrogatories, and depositions.

The issue as to interference between the plaintiff's patents and the defendants' patent is clearly made, and the patents and proof before the court are sufficient to permit determination of that issue.

The evidence and the briefs discuss other questions, but it is not necessary for the court to consider now matters extraneous to the issue of interference. For instance, the plaintiff makes charges and offers evidence regarding the commercial structures of the defendants. Such charges and evidence would be pertinent in a case of infringement, but they have no application to an issue raised under 35 U.S.C.A. § 66, except in so far as such structures illustrate or demonstrate the patent. Furthermore, there is evidence and extensive discussion as to the invalidity of the patents. But, in view of the pleadings and the narrow issue raised by the motion for summary judgment, the court considers it improper to determine the question of validity at this time. The broader issues between the bill of complaint and the answer require further hearing in order to warrant determination of the validity of the patents.

As to the simple issue of interference, however, the court finds in favor of the defendants and overrules the motion for summary judgment upon the ground that the claims of the defendants' patent No. 1,871,102 are not in interference with the claims of the plaintiff's patent No. 1,532,607 or the reissue patent No. 18,551.

The plaintiff relies upon claims 1, 2, and 3 of the reissue patent, and they are the exact claims of the original patent, so that for the purposes of this case we need refer only to the reissue patent. The plaintiff asks the court to construe those claims so as to cover (1) plaintiff's alleged discovery of means by which rolls could be used continuously at high temperature, (2) the complete mechanization of the sheet rolling process, (3) the practice of conveying bars and sheets between mill and furnace without touching the floor, and (4) the elimination of the run-over pass. If the plaintiff's claims could be given as broad an interpretation as that, the defendants' patent would be in interference. But the language of the three claims relied on by the plaintiff does not warrant an interpretation so broad. Moreover, it is questionable whether claims broad enough to cover complete mechanization and conveyance of sheets and bars above the floor would have been allowed at all, or would have been valid if allowed. The claim as to elimination of the run-over pass was clearly anticipated by prior art. The plaintiff had himself permitted public use of his original contribution as to that practice and also as to the practice of continuous use of mills at high temperature.

The state of the art, as shown by prior patents offered in evidence, the practices in the industry, as shown by...