Mas v. Coca Cola Co.

• Decision Date: 26 July 1952
• Docket Number: No. 6384.,6384.
• Citation: 198 F.2d 380
• Parties: MAS et al. v. COCA COLA CO.
• Court: U.S. Court of Appeals — Fourth Circuit

198 F.2d 380 (1952)

MAS et al. v. COCA COLA CO.

No. 6384.

United States Court of Appeals Fourth Circuit.

Argued July 1, 1952.

Decided July 26, 1952.

George A. Finch, Baltimore, Md., for appellants.

Hilary W. Gans, Baltimore, Md. (Cook, Ruzicka, Veazey & Gans, Baltimore, Md., Spalding, Sibley, Troutman & Kelley, Robert B. Troutman, James M. Sibley, K. Wilson Corder and Richard F. Atwood, all of Atlanta, Ga., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

The defendant Coca Cola Company is the owner of a design patent on a beverage bottle issued on the application of one Kelly filed in the year 1937. On October 15, 1938, plaintiff, George N. Mas, applied for a design patent practically identical with that of Kelly. An interference was declared and in the course of the interference proceedings plaintiff claimed not only priority of conception and reduction to practice but also that he had made disclosure of his design to the Coca Cola Company in advance of the Kelly application. To prove the last contention, he introduced in evidence two letters purporting to be copies of letters written to the Coca Cola Company in his behalf in the year 1934 and three letters purporting to be written by an official of the Coca Cola Company acknowledging receipt of these letters and of a wooden bottle which he claimed to have submitted to the Coca Cola Company as a model of his design. The examiner in the Patent Office went fully into the facts and pointed out that the evidence offered to establish disclosure was entirely untrustworthy. Indeed the fraudulent nature of this evidence was so conclusively established before him that plaintiff expressly abandoned it before the Board of Appeals of the Patent Office. On the basis of the use which he had made of the evidence in the Patent Office, however, plaintiff was indicted in the District Court of the United States for the District of Columbia for filing a false deposition and for uttering forged documents. He was convicted on all counts of the indictment and was sentenced to a term of imprisonment, which was affirmed on appeal. Mas v. United States, 80 U.S.App.D.C. 223, 151 F.2d 32.

Priority with respect to the patent was awarded Kelly by the Board of Appeals in the Patent Office. Plaintiff instituted in the court below a suit under R.S. 4915, 35 U.S.C.A. § 63, to have himself adjudged entitled to the patent. This suit was dismissed on the ground that plaintiff had not come into court with clean hands and the dismissal was affirmed on that ground by this court. Mas v. Coca-Cola Co., 4 Cir., 163 F. 2d 505, 511. In affirming the lower court we said:

"There is nothing here to indicate that the discretion of the court below was not soundly exercised. If the clean hands doctrine is not to be applied to bar a plaintiff who has been guilty of perjury and forgery in an attempt to practice a fraud on the Patent Office, where he comes into court claiming that the Patent Office has wrongfully decided against him the issue with respect to which these were employed, it is hard to imagine a case in which the doctrine would properly be invoked. No court of equity ought to be required to listen to a man whose very presence suggests danger to the administration of justice and whose past conduct affecting the matter in litigation would cast doubt upon the ability of the court to ascertain from him the truth with respect thereto."

The decision of this court was handed down August 20, 1947. On May 25, 1950, plaintiff instituted this action in the court below, filing a complaint, twice amended, in which he attacked the decision of the Board of Appeals in the Patent Office, claimed that he was the first inventor of the patented design and asked damages of the Coca Cola Company on the ground that it had fraudulently appropriated his invention. In this complaint he alleged that his design was conceived and disclosed to the Coca Cola Company in the year 1923 and that the company "had manufactured bottles and used the said unpatented design from April 1923 until August 1937". Defendant...