Thyssen Plastik Anger KG v. Induplas, Inc., No. 77-1394

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBOWNES
Citation576 F.2d 400
PartiesTHYSSEN PLASTIK ANGER KG, Plaintiff-Appellant, v. INDUPLAS, INC., Defendant-Appellee.
Decision Date30 May 1978
Docket NumberNo. 77-1394

Page 400

576 F.2d 400
200 U.S.P.Q. 197
THYSSEN PLASTIK ANGER KG, Plaintiff-Appellant,
v.
INDUPLAS, INC., Defendant-Appellee.
No. 77-1394.
United States Court of Appeals,
First Circuit.
Argued Feb. 9, 1978.
Decided May 30, 1978.

Daniel H. Kane, New York City, with whom Charles P. Bauer, New York City, Gerald Levy, Parsippany, N. Y., and Kane, Dalsimer, Kane, Sullivan & Kurucz, New York City, were on brief, for plaintiff-appellant.

David S. Abrams, Washington, D. C., with whom Roylance, Abrams, Berdo & Kaul, Washington, D. C., Cesar A. Hernandez-Colon, Ponce, P. R., Donald A. Kaul and Alfred N. Goodman, Washington, D. C., were on brief, for defendant-appellee.

Before CAMPBELL, BOWNES and MOORE, * Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from a summary judgment in favor of defendant-appellee invalidating a patent held by plaintiff-appellant on the grounds that the "best mode" requirement of 35 U.S.C. § 112 was violated.

The critical sentence for a court reviewing a grant of summary judgment is Fed.R.Civ.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The basic issue in all appeals from the granting of summary judgment is whether there is a genuine issue as to any material fact.

In order to determine whether the district court was correct in its ruling, a brief description of the patent involved is necessary. The patent teaches a method for continuously forming extruded pipes or tubes having a uniform outside diameter but with specific lengths of the pipe at predetermined spaced intervals having predetermined increased wall thicknesses. The patent discloses that the pipe is severed and expanded to form sockets at the areas of increased wall thickness so as to provide pressure joints at least as strong as the main pipe. This permits the pipe to be used in high pressure applications without fear of rupturing at the joints. The patent claims that it results in an economy of material as well as a stronger joint than was available prior to the invention.

The crucial part of the invention is the periodic slowing down of the speed at which the length of pipe travels from the extruder to the water bath which is the end of the process. When the pipe is slowed down, the

Page 401

plastic coming out of the extruder builds up on that portion of the pipe then at the extruder; this causes the desired extra thickness. When the pipe resumes its normal speed as it travels through the process, it is formed at regular thickness. The pipe is pulled away from the extruder by two rollers which operate off a set of gears. The inventors obtained the requisite change in the speed of the pipe by adding a "second gear" to the power drive. Defendant's motion for summary judgment was based on the allegation that the use of a "second gear" was the best mode of carrying out the invention and that the patent failed to disclose it. 35 U.S.C. § 112. 1

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14 practice notes
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...not be used as a vehicle for turning an adversary proceeding into a trial by affidavit, see Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); Redman v. Warrener, 516 F.2d 766, 768 (1st Cir.1975), and that the parties are entitled to try the material facts in genu......
  • United Nuclear Corp. v. Cannon, Civ. A. No. 81-0521-S.
    • United States
    • U.S. District Court — District of Rhode Island
    • December 13, 1982
    ...issue is the constitutionality of S. 924. Thus, the case is ripe for summary disposition. Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); and when both parties cross-move on the same legal theory, a court's granting of one party's motion must perforce entail th......
  • Kizas v. Webster, Civ. A. No. 78-983.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 25, 1980
    ...See Perma Research and Development Co. v. Singer, 410 F.2d 572, 578 (2d Cir. 1969); but see Thyssen Plastik Anger KG. Induplas, Inc., 576 F.2d 400 (1st Cir. 1978). To do otherwise "would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." ......
  • Emery v. Merrimack Valley Wood Products, Inc., No. 82-1597
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 28, 1983
    ...Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981); Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 401 (1st Cir.1978). Merrimack, as the party moving for summary judgment, has the burden of affirmatively showing that there is no genuine iss......
  • Request a trial to view additional results
14 cases
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...not be used as a vehicle for turning an adversary proceeding into a trial by affidavit, see Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); Redman v. Warrener, 516 F.2d 766, 768 (1st Cir.1975), and that the parties are entitled to try the material facts in genu......
  • United Nuclear Corp. v. Cannon, Civ. A. No. 81-0521-S.
    • United States
    • U.S. District Court — District of Rhode Island
    • December 13, 1982
    ...issue is the constitutionality of S. 924. Thus, the case is ripe for summary disposition. Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 402 (1st Cir.1978); and when both parties cross-move on the same legal theory, a court's granting of one party's motion must perforce entail th......
  • Kizas v. Webster, Civ. A. No. 78-983.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 25, 1980
    ...See Perma Research and Development Co. v. Singer, 410 F.2d 572, 578 (2d Cir. 1969); but see Thyssen Plastik Anger KG. Induplas, Inc., 576 F.2d 400 (1st Cir. 1978). To do otherwise "would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." ......
  • Emery v. Merrimack Valley Wood Products, Inc., No. 82-1597
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 28, 1983
    ...Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981); Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400, 401 (1st Cir.1978). Merrimack, as the party moving for summary judgment, has the burden of affirmatively showing that there is no genuine iss......
  • Request a trial to view additional results

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