Wahl v. Carrier Manufacturing Co.
Decision Date | 20 March 1972 |
Docket Number | No. 18324.,18324. |
Citation | 452 F.2d 96 |
Parties | Eugene A. WAHL and Vibra Screw Feeders, Inc., Plaintiffs-Appellants, v. CARRIER MANUFACTURING CO., Inc., Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Richard C. O'Connor, New Albany, Ind., Stanton T. Lawrence, Jr., New York City, Orbison Rudy & O'Connor, New Albany, Ind., for plaintiffs-appellants; Pennie, Edmonds, Morton, Taylor & Adams, Charles J. Brown, Charles E. McKenney, New York City, of counsel.
Thomas F. McWilliams, Mann, Brown, McWilliams & Bradway, Chicago, Ill., for defendant-appellee.
Before MAJOR, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.
Certiorari Denied March 20, 1972. See 92 S.Ct. 1255.
This is an appeal from a judgment entered November 13, 1969, by Judge William E. Steckler, holding all four claims of United States Patent No. 3,173,583, entitled "Bin Activator," invalid, and dismissing plaintiffs' charge of infringement. Eugene A. Wahl (Wahl) is the owner of the patent and Vibra Screw Feeders, Inc. (Vibra Screw) is his exclusive licensee. The latter is a New Jersey corporation, and defendant Carrier Manufacturing Co., Inc. (now by change of name, Carman Industries, Inc.) is a Kentucky corporation having its principal place of business at Jeffersonville, Indiana.
After disposal of numerous discovery proceedings, the case came on for trial before the court without a jury on November 6, 1967, and continued on November 7, 8, 9, 10, 11, 13 and 14. On the last date and at the conclusion of defendant's presentation, the case, on plaintiffs' request, was continued to August 19, 1968, on which date plaintiffs introduced testimony purportedly for the purpose of rebutting the case made by defendant. As might be expected after a trial of such length, the record is voluminous. (The transcript covers some 1300 pages, and the appendix filed in this court more than 600 pages.) In addition, many physical exhibits were introduced, including the patent in suit, numerous prior art patents and many drawings, diagrams, pictures, etc., all explained by expert witnesses as an aid to the court in its evaluation of the contentions advanced by the parties.
The prior art relied upon by defendant to anticipate and invalidate the patent in suit was (1) the Heavy Duty Feeder made and sold by plaintiffs for several years prior to the Wahl application filing date; (2) the Vibra-Portioner1 which was at one time made and sold by defendant, and (3) the Musschoot Patent No. 3,083,811. The court found that the patent in suit was anticipated by each of these prior art citations, none of which was cited in the Patent Office and all of which were found to be more pertinent than that which was cited.
The court also found that the subject matter sought to be patented by Wahl, in view of the prior art, would have been obvious at the time the invention was made, to a person having ordinary skill in the art to which the subject matter pertains, and was, therefore, invalid under Title 35 U.S.C.A. Sec. 103.
The court in its findings 6, 7 and 8 describes the nature of the Wahl invention and sets forth the claims involved. Inasmuch as there is no dispute as to the propriety of these findings, we adopt them:
Also it is stated:
`An object of this invention is the provision of improved apparatus for use with a storage bin, or hopper, to promote a positive discharge of the contained material through the hopper discharge opening.\' (PX-1, Col. 1, lines 43 to 46).
In the patent it is also stated:
Plaintiffs on brief state the contested issues as follows:
It appears to us that issue I is stated in a rather novel manner. However stated, we think the ultimate issue is whether the court's findings of fact are clearly erroneous. Rule 52(a) of the Federal Rules of Civil Procedure provides in part:
"Findings of Fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
The two principal witnesses were Wahl, the patentee, who testified at length in explaining his patent and his invention, or what he thought he had invented, and Don A. Fischer, an expert witness for defendant. We think it fair to state that a reading of the testimony of these two witnesses reveals that Wahl had much practical experience in the manufacture and development of apparatus designed to facilitate the withdrawal of material from storage bins. It is conceded, however, that he was not an expert...
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