Twyman v. Radiant Glass Co.

• Decision Date: 01 February 1932
• Docket Number: No. 9118.,9118.
• Citation: 56 F.2d 119
• Parties: TWYMAN v. RADIANT GLASS CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F.2d 119 (1932)

TWYMAN v. RADIANT GLASS CO.

No. 9118.

Circuit Court of Appeals, Eighth Circuit.

February 1, 1932.

Franklin H. Griggs, of Tulsa, Okl. (Frederick W. Bailey and Karl Greenhaw, of Fayetteville, Ark., on the brief), for appellant.

Edwin E. Huffman, of St. Louis, Mo. (Daily & Woods, of Ft. Smith, Ark., on the brief), for appellee.

Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a decree dismissing a suit for infringement of letters patent No. 1,494,042, for a mold for glass cylinders. The purpose of the alleged invention, as described in the specifications of the patent, is: "The provision of such a mold that comprises a pair of semicircular half sections hingedly joined together, one of said half sections adapted to be opened and closed in a novel, simple and expeditious manner for permitting of the positioning of the lump of semi-molten glass therein as well as for permitting of the easy removal of the blown cylinder therefrom."

While the application as filed embodied five claims, all claims except one were rejected by the patent office, and the rejected claims were canceled without appeal. The single claim of the patent as allowed is as follows: "A mold of the class described, a pair of semi-cylindrical half sections hingedly joined together, means for opening and closing one of said half sections with respect to the other, means for anchoring the other of said half sections to a support, a platform spaced beneath said mold and a removable plate adapted to be positioned between said mold and said platform."

The claim as allowed differs from the rejected and canceled claims only in that it adds the elements: "A platform spaced beneath said mold and a removable plate adapted to be positioned between said mold and said platform."

The court below found that the device manufactured and sold by the appellee was in public use for more than two years prior to the date of appellant's application for patent. If this finding is supported by the testimony, the decree of dismissal was proper, whether there was infringement, or whether the patent was otherwise valid or not. USCA title 35, § 31; Brush v. Condit, 132 U. S. 48, 10 S. Ct. 1, 33 L. Ed. 251; Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 249, 8 S. Ct. 122, 31 L. Ed. 141; Andrews v. Hovey, 124 U. S. 694, 8 S. Ct. 676, 31 L. Ed. 557; Manning v. Cape Ann Isinglass, etc., Co., 108 U. S. 462, 2 S. Ct. 860, 27 L. Ed. 793; Allinson Mfg. Co. v. Ideal Filter Co. (C. C. A.) 21 F.(2d) 22; Wailes Dove-Hermiston Corp. v. Oklahoma Contracting Co. (D. C.) 48 F.(2d) 901; Waterloo Register Co. v. Atherton (C. C. A.) 38 F.(2d) 75.

The parties will be referred to as they appeared in the lower court.

The burden of proving a defense of this kind was on defendant. In the first instance, at least, the trial court had the duty of determining whether or not this defense had been established, and this court will not disturb a finding of the lower court, unless it can be said that the testimony is legally insufficient as a matter of law to establish the defense with the certainty required. The patent in suit was not applied for until June 8, 1923. As early as December 2, 1920, defendant was soliciting the business of making glass cylinders for filling station pump equipment. It shipped a sample cylinder to Clear Vision Pump Company, Wichita, Kan., January 11, 1921. On February 5, 1921, it sold two hundred molded glass cylinders and made various other sales in that month and in the months of March and April. In fact, prior use of defendant's device was abundantly proved by practically undisputed evidence. The accused device used as an exhibit in this case was made in the spring of 1921. Counsel for plaintiff, in their brief, say: "There cannot be any question that the shipment of June 8, 1921, of which the plaintiff, of course, was in blissful ignorance, was still subject to experimental consideration and could not have been such a `public use' in an experimental state of the development of the art as would defeat the validity of the patent in question."

A Mr. Carney testified that the Clear...