Wadsworth Elec. Mfg. Co. v. WESTINGHOUSE E. & MFG. CO.
| Decision Date | 29 June 1934 |
| Docket Number | No. 6524.,6524. |
| Citation | 71 F.2d 850 |
| Parties | WADSWORTH ELECTRIC MFG. CO., Inc., v. WESTINGHOUSE ELECTRIC & MFG. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Walter F. Murray, of Cincinnati, Ohio (Frank L. Zugelter, of Cincinnati, Ohio, on the brief), for appellant.
T. J. Byrne, of New York City (Drury W. Cooper and Victor S. Beam, both of New York City, and Walter M. Shohl, of Cincinnati, Ohio, on the brief), for appellee.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
The cause is for the third time before this court, and involves certain claims of Kries patent, No. 1,224,880, for a fuse and switch box. Under the style Westinghouse Electric & Manufacturing Company v. Wadsworth Electric Manufacturing Company, 36 F.(2d) 319, we held claims 1, 2, and 10 of the patent valid and infringed, and reversed the District Court's decree denying the plaintiff below an interlocutory injunction and accounting. Thereafter we granted rehearing and took briefs solely upon one question in the case, and upon such rehearing our original conclusion was reaffirmed, 51 F.(2d) 447, and a mandate directed to be issued in accordance with the original opinion. Certiorari was denied, 284 U. S. 650, 52 S. Ct. 30, 76 L. Ed. 552. In compliance with our mandate the District Court entered a decree holding claims 1, 2, and 10 valid and infringed, and issued a writ of injunction restraining the defendant from making, using, or selling switch boxes embodying the inventions covered by the claims. Later the plaintiff moved in the District Court to punish the defendant for civil contempt in violating the writ of injunction. The issues thereon were decided against the defendant, it was held guilty of contempt, and an order entered enjoining further infringement, granting further accounting, and directing the defendant to pay to the plaintiff the sum of $1,500 for counsel fees and expenses. From that order this appeal is taken.
The contempt proceedings involve defendant's modified switches Nos. 1451 and 1843. While denying that these structures infringe the patent claims or violate the injunction, the defendant seeks also a reversal of our original holding of validity, first on the ground that our original construction of the Kries patent was erroneous under the rule later announced by the Supreme Court in Permutit Co. v. Graver, 284 U. S. 52, 52 S. Ct. 53, 76 L. Ed. 163, and, second, on the ground that we erred in the decision on rehearing as to the bearing of the facts in the Wadsworth-Kries interference upon the validity of the patent.
The justification for urging reconsideration of validity on the basis of the Permutit Case is said to arise from the following circumstances: After the Supreme Court had announced its opinion in Permutit v. Graver, supra, reversing our decision upon the validity of the Gans patent in Permutit Co. v. Wadham, 13 F.(2d) 454, the defendants sought leave of this court to petition the District Court for a rehearing because of errors of law in the opinion of this court shown by the decision of the Supreme Court after our mandate was issued. In the order denying the petition we said: "It appearing that the question upon which the appellee seeks a rehearing in the District Court is one that may be presented to the District Court on the final hearing of this cause, so far as it is necessary to preserve it for consideration by this court, and that it may be presented to this court on appeal from any final decree against the appellee in the District Court. * * *" It is therefore argued that, since the contempt order is a final decree, the question of validity in the light of the Permutit decision is now open to the defendant on its appeal therefrom. In seeking reconsideration of the bearing of the facts in the Wadsworth-Kries interference upon validity, however, no justification is made or even suggested.
The defendant's contention has the virtue of novelty, if none other. What the court had in mind in its reference to the final hearing was, of course, the hearing that finally disposed of the question of validity in the District Court, and the suggestion that that question might be presented on appeal from any final decree was necessarily with reference to such final decree as disposed of the case below. The question of validity being urged in the petition, the phrase "any final decree" was clearly not intended to apply to a decree which did not...
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