Yavitch v. Seewack
Decision Date | 09 October 1963 |
Docket Number | No. 17573.,17573. |
Citation | 323 F.2d 561 |
Parties | Morris YAVITCH and Gerald Yavitz, Appellants, v. Benjamin SEEWACK, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Fulwider, Mattingly & Huntley, and Francis A. Utecht, Los Angeles, Cal., for appellants.
Herzig & Walsh, and Albert M. Herzig, Los Angeles, Cal., for appellee.
Before BARNES and DUNIWAY, Circuit Judges, and PENCE, District Judge.
This was a suit alleging infringement of United States Letters Patent No. 2,780,303 and Reissue Patent No. Re. 24,690. The defense was (a) lack of notice as to the Reissue Patent; (b) lack of invention; (c) lack of infringement; (d) invalidity for vagueness; (e) invalidity for overclaiming; (f) invalidity because of prior art; (g) file wrapper estoppel; (h) invalidity of the Reissue Patent oath. Defendant also counterclaimed, alleging an antitrust violation by an abuse of an alleged patent monopoly. In an amended answer and counterclaim, defendant claimed the existence of additional prior art (including plaintiffs' earlier Patent No. 2,705,542), and as additional defenses (i) prior use for more than one year, and (j) double patenting, in view of Patent No. 2,705,542.
Appellant called their Patent No. 2,780,303 a "Device for Testing Bath Cabinet Shower Pans for Leakage."
Their earlier Patent No. 2,705,542 had been called a "Shower Drain."
Shower pans placed in homes under construction, in order to comply with many building codes, were required to be leak-proof under actual tests. To test for leaks, the drain holes and drainage plumbing would be stopped or plugged up (usually with temporary plug material, such as rags, or sometimes cement), and the shower pans flooded. If leaks developed, the shower pans would be drained by pulling the plugs, the leak supposedly repaired, and water again placed in the shower pans for another test.
Appellants devised a scheme to avoid reaching with a pair of pliers for the rag plug (a distance of four to six inches, through the standing water), described by appellants as "the dynamite technique" and as "a difficult and time consuming job."
Appellants described the workings of their invention as follows:
Appellants obtained Patent No. 2,705,542 on April 5, 1955, for a shower drain. Nowhere is it alleged that this patent had been infringed. As appellants state, "there is no controversy relative to this patent set forth in any pleading or pre-trial order." Yet the court below found a charge of infringement made by appellants against appellee as to that patent, and found it invalid for lack of invention. ( 8, Tr.p. 76.)
The basis for the suit charging infringement made by appellants against appellee was Defendant's Exhibit A (letter of March 20, 1957), mentioning both Patents No. 2,705,542 and No. 2,780,303. Subsequently a second letter charged infringement only as to No. 2,780,303 (letter of June 5, 1957; Defendant's Exhibit AD). The issue as defined by the pleadings, the pretrial order and the actual trial of the case,...
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...9 Cir., 1955, 225 F.2d 3, 8." Accord: Ceramic Tilers Supply, Inc. v. Tile Council of America, 378 F.2d 283 (9th Cir.); Yavitch v. Seewack, 323 F.2d 561 (9th Cir.); National Lead Co. v. Western Lead Products Co., 291 F.2d 447, 451 (9th Cir.); Hycon Manufacturing Co. v. H. Koch & Sons, 219 F.......