Van Wormer v. Champion Paper & Fibre Co.

• Decision Date: 14 August 1939
• Docket Number: No. 1004.,1004.
• Citation: 28 F. Supp. 813
• Parties: VAN WORMER v. CHAMPION PAPER & FIBRE CO.
• Court: U.S. District Court — Southern District of Ohio

28 F. Supp. 813

VAN WORMER v. CHAMPION PAPER & FIBRE CO.

No. 1004.

District Court, S. D. Ohio, W. D.

August 14, 1939.

Walter F. Murray, of Murray, Sackhoff & Paddack, of Cincinnati, Ohio, for plaintiff.

Marston Allen, of Allen & Allen, of Cincinnati, Ohio, for defendant.

NEVIN, District Judge.

This is a suit in equity brought under the patent laws of the United States. The pleadings consist of plaintiff's amended bill of complaint filed March 17, 1937, and defendant's answer thereto filed April 30, 1937, as amended January 12, 1938.

The patent in suit is No. 1,947,748 granted February 20, 1934, to George Van Wormer, Hamilton, Ohio, plaintiff herein, for "Paper Cleaning Machine". Plaintiff alleges (and defendant denies) that he is the sole owner of the letters patent.

In his amended bill he charges defendant with infringement and prays for an injunction and an accounting. In its answer, defendant denies infringement and claims that the patent is invalid for the reasons set forth in its answer, as amended.

On February 23, 1939, defendant, through its counsel, Messrs. Allen & Allen, filed a "Motion for Summary Judgment in favor Defendant". That motion reads as follows. "Now comes the Defendant, by its attorneys, and presents to the Court the affidavit of Marston Allen together with the exhibits attached thereto, and respectfully submits to the Court that on the affidavit, the depositions and the pleadings, no infringement of Plaintiff's patent in suit exists as charged in the Bill of Complaint, and it therefore asks that a summary judgment be entered in the above cause in favor of the Defendant and in conformity with Rule 56 of the Rules of Civil Procedure 28 U.S.C.A. following section 723c."

At the same time the foregoing motion was filed the affidavit of Mr. Allen, therein referred to, was also filed.

The cause is now before the court on the foregoing motion, the pleadings, the affidavit of Mr. Allen and the documents referred to therein. On March 4, 1939, counsel for the respective parties presented their oral arguments to the court for and against the motion. These arguments were reported and thereafter transcribed.

The patent in suit contains 3 claims. In response to an inquiry by the court, counsel for defendant stated that all 3 claims are in issue "so far as this motion is concerned". However, as appears in the same record, counsel for defendant made the following statements with respect to the claims: "Mr. Murray: Your Honor, I think that claim 1 is the claim that I will rely on at the final hearing, and I will address my remarks, when I have a chance to say something, to that proposition. * * * At this time I am not willing to say that when we have before the court a full description of defendant's machines I may not rely upon claims other than claim 1, but for the purpose of the argument now I will rely on claim 1 as being infringed by both of the defendant's devices."

It is agreed that the question of validity is not before the court on the present motion. In their brief counsel for defendant say: "The record before the Court is not complete on the point of validity, the motion does not bring this point to the attention of the Court." That counsel for plaintiff agree with this view is shown by the following in the Record:

"The Court: I mean the question of the validity of this patent I understand is not before the court now.

"Mr. Murray: No. But the question is, on infringement, what is the essence of Van Wormer's invention, and that is the reason I am referring to that, Your Honor, to say that the essence of the Van Wormer invention is the utilization of brushes of hog bristle rotating in the same...