Reply Brief — Triangle Conduit & Cable Co. v. National Electric Products Corp.

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IN THE

Supreme Court of the United States

October Term, 1943

No. 399

VERIO APE MO TIO BL ENN Se nen

TRIANGLE Conputr & Case Co., INc.,

Petitioner, Fs

US,

NarionaAL Kiectrric Propucts Corroration

’

Respondent.

EE

REPLY BRIEF FOR PETITIONER IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI.

SamvueE. E. Darsy, Jr.,

Counsel for Petitioner.

Fioyp H. Crews,

Of Counsel.

IN THE

Supreme Court of the United States

October Term, 1943

No. 399

TrrancLE Conpurr & Caste Co., Inc.,

Petitioner,

US.

NationaL Evectric Propucts Corporation,

Respondent.

REPLY BRIEF FOR PETITIONER IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI.

The burden of the petition is not abstract, as stated by

respondent’s brief in opposition, but is concrete. It is

directed against respondent’s actions in this case. The peti-

tion is based upon the fact that a patent owner—respondent

—has in this case harassed an honest manufacturer—peti-

tioner—by misuse of its worthless patents as instruments

of business aggression through abuse of legal processes, to

coerce petitioner’s two largest customers into dealing with

respondent to the exclusion of petitioner.

The hollow mockery of respondent’s pious pretention is

nowhere more manifest than in its statement on page 5 of

its brief that:

‘Tt seems to us therefore that the most important

thing in this whole situation is to bring an end to

interlocutory proceedings and to proceed to trial.’’

iii LINE INSET IP RASH STINE ELSTON TONY IT NAEP

2

If there had been any sincerity in respondent’s desire

to obtain adjudication of the validity of its patents and the

charge of infringement thereof by petitioner’s products, it

would have heeded the compulsion of Rule 13(a) of the

Rules of Civil Procedure, and in prompt response to the

declaratory judgment complaint filed by petitioner in this

cause on January 16, 1941, counterclaimed for infringement

of its patents. Thereby, had respondent really wanted it,

there would have been obtained a trial and adjudication

nearly three years ago. Instead, respondent has prolonged

this litigation through extensive and unwarranted inter-

locutory proceedings, both here and in Michigan, in order

to hold its continuing threat over petitioner’s customer,

Sears. No business relations can withstand forever an un-

adjudicated charge of illegality; constant dripping wears

away the hardest stone. And yet, in its brief, respondent

has the temerity to represent its successful efforts to delay

the trial of this cause as beneficial to Sears! And to peti-

tioner!! And infers that petitioner is responsible for the

delay!!!

Respondent’s assertions that it has not harassed peti-

tioner or threatened petitioner’s customers are hypocritical,

to say the least. It supports these assertions with quota-

tion from the earlier District Court opinion which was re-

versed, undoubtedly because of the flatly erroneous state-

ment of the District Court that ‘‘Defendant has made no

threats. There is no evidence of harassment.’’ As was

shown on the face of the record before the Court of Ap-

peals, respondent not only actually made threats against

petitioner’s two largest customers—Sears and M. B. Austin

—respondent thereafter actually attempted, by personal |

solicitation by its patent counsel, to induce Sears to cease

being a customer of petitioner and switch its business to

respondent. Sears’ attorney, Mr. Frank Marks, wrote:

’

:

LOR ROMA CAI oD Ree net

3

‘‘You may be interested to know that Mr. Hoxie

of Pennie, Davis, Marvin & Edmonds, personally

called on the writer a week or so ago. He mentioned

the Triangle Conduit & Cable suit and stated that,

nevertheless, his client would probably file suit

against Sears, Roebuck & Co. He inquired as to

whether or not Sears would make a definite decision

in the matter, and I received the impression that the

purpose of his visit was to influence Sears either to

obtain a license or to modify its dealings with your

client.’? * (Emphasis ours.)

It is true, as respondent asserts (Brief, p. 10), that

‘Petitioner continues to sell Sears, Roebuck’’, but that is

solely because respondent thus far has been unsuccessful in

its deliberate and brazen harassment and attempted intimi-

dation.

The record of the earlier case further shows (p. 34) by

affidavit of respondent’s counsel that respondent’s attorneys

are under ‘‘unqualified’’ instructions to start suit against

M. B. Austin. In the teeth of this affidavit, respondent

makes the statement on page 9 of its brief:

‘‘Further, there is no circumstance in the present

case to suggest the possibility that respondent will

* Mr. Marks’ letter, in its entirety, is reproduced on page 24 of

the Transcript of Record before this Court in Case No. 1078, October

Term 1941. The record filed with the present petition necessarily was

limited to the printed record in the Court of Appeals below. By the

rules of that Court only the portions of the record counsel desired the

Court of Appeals to read are printed as an appendix to the briefs (see

Rule 26(2)(e) of the rules of the United States Circuit Court of

Appeals for the Third Circuit). Under these circumstances, the

necessity as well as the propriety of referring this Court to the record

in Case No. 1078 at the October Term 1941 is recognized by respon-

dent in the footnote appearing on pages 4 and 5 of its brief. The

record in that case was before this Court on petition for writ of cer-

tiorari by respondent, which was denied by this Court.

“

bring any additional actions against customers of

petitioner.”’

Respondent couples with its assertion of no threat of

multiplicity of suits the assertion that its conduct is proper

because Sears is large. If petitioner does 95% of its busi-

ness with two customers, then harassment of those two is

more serious than the harassment of ninety-five customers,

each doing 1% of the business. The loss of two large cus-

tomers, under such circumstances, may be catastrophic; the

loss of two small ones negligible. It is obvious that it is not

the number of suits that supplies the yardstick for measur-

ing ‘‘multiplicity”’.

Conclusion.

This Court has the power and the duty to prevent abuse

of legal process. The facts of this case are plain. The

questions here presented can arise only in interlocutory pro-

ceedings such as the present, because if undecided at this

stage they cannot arise later. Action by this Court is there-

fore necessary now, and is most earnestly urged.

Respectfully submitted,

SamvuE. E. Darsy, Jr.,

Counsel for Petitioner.

Fioyp H. Crews,

Of Counsel.

[3177]

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