Petition — Taylor Industries, Inc. v. Panduit Corp.

i Fi oe Q

JUL 18 WV

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IN THE " welll:

Supreme Court of the United Siates

OCTOBER TERM, 1977

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gy-92

TAYLOR INDUSTRIES, INC.,

Petitioner,

v.

PANDUIT CORPORATION,

Respondent. |

—_*

oa

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

Lp.

vv

JOHN A. ARTZ

Attorney for Petitioner

1500 North Woodward Avenue

Birmingham, Michigan 48011

Of Counsel

JOHN A. BLAIR

LYMAN R. LYON

HARNESS, DICKEY & PIERCE

1500 North Woodward Avenue

Birmingham, Michigan 48011

"ieterstate Beiel 6 Record Co.. 1615 Michigan 48216

962-8745

5

rl A

;

TABLE OF CONTENTS

Page

I. SS eh gi de De Ue a ale we ss l

Sh. Se. Rae he CbeGReNadibcsueesedcdccececes 2

III. Questions Presented for Review ................. 2

IV. Constitutional Provisions and Federal Statutes

DEE SG Sebd eh ecebee luce ccnsees doves cic 3

A. Constitutional Provisions .................. 3

eT ae a a 3

Vv EEE os oven tuscece sete neuctevic 5

VI. Reasons for Granting the Petition ................ 8

en BR a ee eee 5

B. Course of Proceedings and Disposition Below 5

C. Statement of Pertinent Facts ............... 6

VI. Reasons for Granting the Petition ................ ®

Ne ee teens 8

B. Second and Third Questions ............... 8

Vil. Argument as to the First Question ............... 9

VIII. Argument as to the Second and Third Questions .. 12

EE ea Te Oe Pe ee 16

Court of Appeals’ Order — April 19, 1977 ........ 17

District Court’s Preliminary Injunction — August

£8, WR sv ccccscccvescstncsdduneeacensnenneanal 18

Judge Fox’s Ruling From Bench — August 4, 1976 21

Motion for Preliminary Injunction — March 31,

POTD ccncccccenciteceudncedivetsceasenn 26

Compiniat — Boag 85, S5GD on cvcckesictaspuvanes 27

Affidavit of Phillip W. Taylor — September 1,

DOUG. . veer yevecsciccseicesesuceiensineneen 30

Summary of Pertinent Portions of Transcript of

Amaat 4, FS TERMED os cccccctvtvecsquuhesesas 33

Comparison of Claim 5 of Patent in Suit with Prior

Art Western Electric Fanning Strip .............. 35

Panduit Brochure Showing its Patented Fanning

GUD on cvccscedéctcastbucunecesns anpenennel 36

“**

TABLE OF AUTHORITIES

Cases: Page

Gamewell Fire Alarm Telegraph Co. v. Star Electric

is Es MEME ccccccccccccceeus 15

Garlock, Inc. v. United Seal, Inc., 404 F. 2d 256 (6th

NE LEIS LO SE 13

George Cutter Co. v. Metropolitan Electric Mfg. Co..,

MD Cols cot cecdcececceceeees 9.10

Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423,

39 L.Ed.2d 435, 94 S.Ct. 1113 (1974) .............. 13

Hieger v. Ford Motor Co., 516 F.2d 1324 (6th Cir.

ES ASS TE 10,15

Mercoid Corp. v. Mid-Continent Investment Co., 320

U.S. 661, 88 L.Ed. 376 (1944) .................... 10

National Electric Products Corp. v. Grossman, 70 F.2d

Den cc ce eanbechccsecseccs 9

Nuclear-Chicago Corp. v. Nuclear Data, Inc., 173

U.S.P.Q. 326 (N.D. Iil. 1971), rev'd, 465 F.2d 428

a in cc cccdhbcbeesacpeevcéetees 14

Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 298

F.Supp. 435 (W.D. Mich. 1969), aff'd., 430 F.2d 221

EE a 7,8,11

iV

Page

Philips Electronic & Pharmaceutical Industries Corp.,

v. Thermal & Electronics Industries, Inc., 450 F.2d

CORSE Ga STD. on ns tudkcasKulhest eet diweiteesse 10

Uniroyal, Inc. v. Daly-Herring Co., 294 F.Supp. 754

GRAS e. TE cacsacvibeecdel sedusvcddndisstss 15

United Nickel Co. v. New Home Sewing Machine Co..,

So F, PPOs GEE GN OMe secsucecdpec case 14

Constitution of the United States:

Article I, Section 8, Clauses 3 and 8 ................. 3

Statutes:

Patent Act of 1952

Fe SE nec ekenckswedeussenensensdanetnenenns 3

RT PPT eee re ee 3,4

SD ls GE Cadeccuccdcdevctcess cqawesttecheigne 4

PO aha nee cb dv kc. ve kécctececheedsemabees 4

Jurisdictional Statutes

SD Ses ME, Raosescavacecedancodbencntaeneebees 5

Se Se GENE Sc abbdebvacnadcbdnbed pss eeneekousel 2,4

ep CD % ncedadscdencdtQesncdeasceaeedees 5

Treatises:

11 Wright & Miller, Federal Practice and Procedure:

See ae, GPS in hicedosceeccigvaddesdetes 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. *e 28© @

a.

._s

TAYLOR INDUSTRIES, INC.,

Petitioner,

v.

PANDUIT CORPORATION,

Respondent.

= =

a

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

.

A

Now comes petitioner Taylor Industries, Inc.

(hereinafter Taylor) and prays that this Court review a

judgment of The United States Court of Appeals for the

Sixth Circuit, affirming a judgment of the United States

District Court for the Eastern District of Michigan.

I. OPINIONS BELOW

The opinions of the courts below have not yet been

reported but are appended hereto.

Il. JURISDICTION

The judgment of the Court of Appeals of the Sixth

Circuit sought to be reviewed was filed April 19, 1977.

No order respecting a rehearing or an extension of tirfle

within which to petition for certiorari has been filed.

Jurisdiction to review said judgment by writ of

certiorari is conferred by 28 USC 1254 (1).

Ill. QUESTIONS PRESENTED FOR REVIEW

A. First Question

Whether a preliminary injunction can be granted in a

patent infringement action without a consideration of

prior art cited by the accused party which invalidates the

patent in suit.

B. Second Question

Whether a preliminary injunction can be granted in a

patent infringement action without any evidence on or a

consideration of irreparable harm or any of the other

necessary equitable considerations.

C. Third Question

Whether a preliminary injunction can be granted seven

years after an action was commenced without there being

any change in the situation between the parties during

that period of time.

IV. CONSTITUTIONAL PROVISIONS AND

FEDERAL STATUTES INVOLVED

A. Constitutional Provisions

Article 1, Section 8. ‘‘The Congress shall have

Power * * *

(Clause 3) ‘‘To regulate Commerce with foreign

Nations, and among the several States, and with the

Indian Tribes; * * *

(Clause 8) ‘‘To promote the Progress of Science and

useful Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writings

and Discoveries; * * *”’

B. Statutes

(1) Pertinent Portions of the Patent Act of 1952.

35 USC 101:

‘“‘Whoever invents or discovers any new and useful

process, machine, manufacture, or composition of matter,

or any new and useful improvement thereof, may obtain

a patent therefor, subject to the conditions and

requirements of this title”’

35 USC 102(b):

‘*A person shall be entitled to a patent unless—

* * ke KK K *

4

‘(b) the invention was patented or described in a

printed publication in this or a foreign country or in

public use or on sale in this country, more than one year

prior to the date of the application for patent in the

United States, or...”

35 USC 103:

‘‘A patent may not be obtained though the invention is

not identically disclosed or described as set forth in

section 102 of this title, if the differences between the

subject matter sought to be patented and the prior art are

such that the subject matter as a whole would have been

obvious at the time the invention was made to a person

having ordinary skill in the art to which said subject

matter pertains. Patentability shall not be negatived by

the manner in which the invention was made.”’

35 USC 283:

‘*‘The several courts having jurisdiction of cases under

this title may grant injunctions in accordance with the

principles of equity to prevent the violation of any right

secured by patent, on such terms as the court deems

reasonable.”’

(2) Jurisdictional Statutes:

28 USC 12541):

‘*Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

‘(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;* * *”

28 USC 1338):

‘‘Patents, copyrights, trade-marks, and unfair

competition.

(a) The district courts shall have original jurisdiction

of any civil action arising under any Act of Congress

relating to patents, copyrights and trade-marks. Such

jurisdiction shall be exclusive of the courts of the states

in patent and copyright cases. * * *”’

1S USC 1121:

‘The district and territorial courts of the United States

shall have original jurisdiction and the courts of appeal of

the United States shall have appellate jurisdiction, of all

actions arising under this chapter, without regard to the

amount in controversy or to diversity or lack of diversity

of the citizienship of the parties.”’ |

V. STATEMENT OF THE CASE

A. Nature of the Case

This is an action for patent infringement under the

Patent Act, Title 35, United States Code. One claim of

one United States patent is involved, claim 5 of Walch

Patent 3,024,301 for ‘*Wiring Grille’. The patent is

owned by Panduit Corporation (hereinafter Panduit) and |

Taylor makes four types of accused wiring ducts.

B. Course of Proceedings and Disposition Below

The present action was commenced on May 15, 1969

(Appendix 5). On March 31, 1976, almost seven years

6

after the suit was filed, Panduit brought a motion for a

preliminary injunction to enjoin Taylor’s manufacture and

sale of the accused products (Appendix 4). On August 4,

1976, that motion was granted by District Judge Noel P.

Fox, and a preliminary injunction was issued on August

11, 1976 (Appendix 2,3). An appeal of the preliminary

injunction was made to the Court of Appeals for the

Sixth Circuit. In a summary opinion and order dated

April 19, 1977, the Court of Appeals affirmed the granting

of the preliminary injunction (Appendix 1).

C. Statement of Pertinent Facts

Panduit is a Delaware corporation having its principal

office and place of business in Tinley Park, Illinois.

Taylor is a Michigan corporation having its principal

place of business in Marble Falls, Texas.

This action was commenced in May, 1969, when

Panduit filed a Complaint against Taylor for patent

infringement (Appendix 5). The Walch patent in suit,

U.S. No. 3,024,301, issued on March 6, 1962 from an

application filed on October 5, 1955. In 1972, Panduit

filed an Amended Complaint which limited its allegation

of infringement to a single claim (claim 5) of the Walch

patent. All of Taylor’s responsive pleadings in the case

denied Panduit’s allegations and further positively

averred that the patent in suit was invalid and not

infringed.

Both Panduit and Taylor make wiring ducts for use by

the electronics industry and in machine tools and are

direct competitors in the marketplace. Taylor makes four

7

types of ducts which are alleged to infringe the patent in

suit. Taylor started manufacturing and marketing two of

these types of wiring ducts in the mid-1950’s and began

manufacturing and selling the other two types in early

1969.

The Walch patent in suit was enforced earlier against a

party completely unrelated to Taylor: Panduit Corp v.

Stahlin Bros. Fibre Works, Inc., 298 F. Supp. 435 (W.D.

Mich. 1969), affd., 430 F.2d 221 (6th Cir. 1970)

hereinafter the ‘‘Stahlin Bros.’’ case).

Taylor and Panduit actively. engaged in discovery

efforts throughout the period from 1969 to 1976. Through

its efforts, Taylor turned up a number of prior art

references which were more pertinent than the references

relied upon in the earlier Stahlin Bros. case and which

invalidate the Walch patent.

On March 22, 1976, almost seven years after the suit

was filed, Panduit brought a motion for a preliminary

injunction (Appendix 4). On August 4, 1976, an oral

hearing was held on that motion after which Judge Fox

— orally from the Bench — granted the relief requested

(Appendix 3).

At the hearing, the only evidence presented by Panduit

related to the issue of infringement. No evidence was

presented relative to the validity issue, nor to any of the

factors which must be reviewed in ruling on a motion for

preliminary injunction, such as irreparable harm and

maintenance of the status quo. As to the patent issues,

the District Court treated the validity issue as stare

decises in view of the earlier Stahlin Bros. case and

8

refused to let Taylor introduce any evidence thereon,

including the prior art that Taylor had discovered and

that was not presented or considered in the Stahlin Bros.

case (Appendix 7). In one instance, Judge Fox held that

the decision in the Stahlin Bros. case was ‘‘res judicata’’

against Taylor.

As a result of its decision, the District Court, on

August 11, 1976, issued a Preliminary Injunction Order

which enjoined Taylor from further manufacture and sale

of all of the accused wiring ducts, as well as any

‘‘colorable imitation or equivalent thereof’’ (Appendix 2).

A timely appeal was made to the Sixth Circuit Court of

Appeals and that Court, on April 19, 1977, affirmed the

decision of the Lower Court (Appendix 1).

VI. REASONS FOR GRANTING THE PETITION

A. First Question

1. The decisions below conflict with the federal policy

enunciated by decisions of this Court against enforcement

of invalid patent monopolies.

2. Notwithstanding a previous holding of validity of a

patent, a preliminary injunction should not be granted

against a new party without a consideration of all new

invalidity defenses.

3. The question is one of importance and is fraught

with public interest.

B. Second and Third Questions

1. The decisions of the courts below are erroneous

and conflict with Section 283 of the Patent Act which

requires that injunctions be granted in patent cases only

‘“*in accordance with the principles of equity.”’

VII. ARGUMENT AS TO THE FIRST QUESTION

Whether a preliminary injunction can be granted in a

patent infringement action without a consideration of

prior art cited by the accused party which invalidates the

patent in suit.

The courts below concluded that because the patent in

suit had been held valid in a prior suit against another

party, it was unnecessary to consider any new evidence

of invalidity offered by Taylor before issuing a

preliminary injunction. This was clearly erroneous.

It is well established that in considering motions for

preliminary injunctions, prior validity adjudications carry

little if any weight in the face of more pertinent prior art

that was not considered in the prior litigation. National

Electric Products Corp. v. Grossman, 70 F.2d 257, 258

(2d Cir. 1934), George Cutter Co. v. Metropolitan

Electric Mfg. Co., 275 F.158, 164 (2d Cir. 1921). As

stated in Metropolitan Electric:

‘*But where a preliminary injunction is sought,

the burden is upon the plaintiff to establish a

prima facie case free from reasonable doubt. The

presumption flowing from the grant of the patent

alone does not entitle the inventor to his

preliminary injunction.

The appellee recognizes this rule, but relies

upon 224 Fed. 717, 140 C.C.A. 257, as its support.

However, the decision in this case did not prevent

the appellant setting up such new matters as it has

done here. A prior adjudication is not a finality. It

is limited to the relativity to the decision and facts

in the prior case. A prior decision does not prevail

in a subsequent case where the facts are different

10

from those in the prior case or in addition to

those of the prior case in respect of matters that

establish a new state of facts. Cons. Valve Co. v.

Safety Valve Co. 113, U.S. 157, 5 Sup. Ct. 513,

28 L.Ed. 939; Paul Steam System Co. v. Paul

(C.C.) 129 Fed. 757; Hall Signal Co. v. Genl. Ry.

Signal Co., 153 Fed. 907, 82 C.C.A. 653.

(Emphasis Added.)

See also, Philips Electronic & Pharmaceutical Industries

Corp. v. Thermal & Electronics Industries, Inc., 450 F.2d

1164 (3rd Cir. 1971), in which the Third Circuit Court of

Appeals said, at page 1176:

‘‘(W]here relevant prior art was not before the

court [upholding the validity of the patent], its

decision has little precedential value. Judge Shaw

was not bound to follow the Massachusetts court,

not only because the parties were not the same,

but also in the light of new and _ persuasive

evidence regarding the prior art.”’

Thus, where new prior art is cited, it is erroneous to

issue a preliminary injunction without a finding that the

new prior art is no more pertinent than that previously

considered.

To issue a preliminary injunction without considering

newly cited prior art also violates the well established

principle that the public interest in striking down invalid

patents overrides the private interests of litigants.

Mercoid Corp. v. Mid-Continent Investment Co., 320

U.S. 661, 665, 670, 88 L.Ed. 376 (1944), Hieger v. Ford

Motor Co., 516 F.2d 1324, 1327 (6th Cir. 1975).

Several of Taylor’s newly cited prior art references

standing alone invalidate the patent in suit. If this prior

art had been considered in either the Patent Office or the

Stahlin Bros. case, the Walch patent would never have

been issued or upheld. For example, the “prior art

Western Electric fanning strip looks and functions exactly

the same as the wiring wall called for by Walch claims. It

was not considered either by the Patent Office or in the

Stahlin Bros. case. An analysis of Walch’s claim 5

showing its complete anticipation by the Western Electric

plastic fanning strip is attached hereto (Appendix 8).

Moreover, Panduit has tacitly admitted that the Western

Electric fanning strips are covered by the Walch patent

as evidenced by Panduit’s marking of its own same

fanning strips with the number of the Walch patent, and

by Panduit’s own published brochure illustrating and

describing its fanning strip as ‘‘patented’’ (Appendix 9).

The fanning strip by Western Electric alone is

sufficient for a finding that the only claim in suit of the

Walch patent is invalid. Thus, if the Courts below had

not treated the earlier Stahlin Bros. case as controlling,

but instead had reviewed the prior art that Taylor

repeatedly attempted to put before them, there would

have been no basis for issuing the preliminary injunction.

Taylor Has Been Denied Due Process

As a result of a summary proceeding in which the

Stahlin Bros. case against an unrelated company was

erroneously treated as controlling and in which proper

legal standards were neither taken into account nor

applied, Taylor has been forced to terminaie sales of

approximately sixty percent (60%) of its product line.

Delay incident to design and retooling of a new product

line inherently entails loss of customers as well as loss of

substantial goodwill and reputation in the marketplace.

12

Although there has not been a full and fair hearing nor a

trial on the merits of this case, Taylor has been put into

the position of a losing party with all of the harmful and

prejudicial implications and effects which go along with

that position.

Panduit has now forced its only competitor out of the

market and has secured an improper and unwarranted

monopoly allowing it to rise its prices substantially —

which it has done to the detriment of the public.

Also, the preliminary injunction now in force enjoins

Taylor from making the accused products specifically in

suit, as well as ‘“‘any colorable imitation or equivalent

thereof." This puts Taylor in a very tenuous and

prejudicial position; any equivalent or generally similar

wiring it makes in the future will be subject to a charge of

contempt — whether it actually infringes the patent in

suit or not.

Further, notwithstanding prior art patents which

anticipate the patent in suit, Taylor is also put in the

absurd position of being subject to contempt proceedings

if it makes a product in accordance with any of these

nrior art patents and that product is an equivalent of its

‘ormer product.

VIII. ARGUMENT AS TO THE SECOND

AND THIRD QUESTIONS

Whether a preliminary injunction can be granted in a

patent infringement action without any evidence on or a

consideration of irreparable harm or any of the other

necessary equitable considerations.

Whether a preliminary injunction can be granted seven

years after an action was commenced without there being

any change in the situation between the parties during

that period of time.

a

13

Preliminary injunctions are extraordinary and drastic

remedies which are to be granted only where the need is

Clearly shown. Because of the seriousness of such

relief, certain standards and tests have been developed

which are universally taken into account before such

drastic relief is granted. Section 283 of the Patent Act

incorporates these standards as it requires that

injunctions in patent cases be granted only ‘‘in

accordance with principles of equity.’’ The courts below

failed to follow the proper and requisite standards and

erroneously issued the preliminary injunction against

Taylor.

The equitable considerations which must be reviewed

in ruling on a motion for preliminary injunction are set

forth in numerous sources. Garlock, Inc. v. United Seal,

Inc., 404 F.2d 256, 257 (6th Cir. 1968), Granny Goose

Foods, Inc. v. Teamsters, 415 U.S. 423, 441, 39 L.Ed.2d

435, 94 S. Ct. 1113 (1974), and //] Wright & Miller,

Federal Practice and Procedure: Civil 2948, pp. 430-431.

These considerations are:

(1) Possible irreparable harm to the plaintiff if the

injunction is not granted;

(2) Injury to the defendant if the injunction is granted;

(3) Balance of the equities and rights of the parties;

(4) Ability of the defendant to compensate the

plaintiff in money damages;

(5) Probability of success at trial on the merits;

(6) Maintenance of the status quo; and

(7) The public interest.

14

If these considerations had been reviewed, they

overwhelmingly would have led to the denial of Panduit’s

motion. For example, there was no evidence submitted or

a finding made by the courts below that a preliminary

injunction was necessary to prevent irreparable injury to

Panduit. In fact, Panduit did not even bring its motion

until seven years after filing this suit and this conclusively

shows that it could not have been suffering irreparable

injury. United Nickel Co. v. New Home Sewing Machine

Co., 17 F. 528 (S.D.N.Y. 1883). Moreover, Taylor's

ability to compensate Panduit in money damages

precludes a finding of irreparable injury. Preliminary

injunctions cannot be granted if the movant can secure

adequate rectification of his grievance by an award of

damages. Nuclear-Chicago Corp. v. Nuclear Data, Inc.,

173 U.S.P.Q. 326 (N.D. Ill. 1971), rev'd, 465 F.2d 428

(7th Cir. 1972).

Preliminary injunctions also are not to be granted

where they would upset the status quo. In direct conflict

to these principles, the decisions of the courts in this case

completely upset the status quo by eliminating Taylor

from over fifteen years of competition in the product

lines in question.

On the other side of the coin, a preliminary injunction

would cause substantial and irreparable damage to

Taylor. This is brought out in the affidavit of Phillip W.

Taylor, President of Taylor (Appendix 6). Taylor would

be forced to partially close its plant and lay off the

majority of its employees while expensive new tooling

was obtained and installed. It also would have to

warehouse its present inventory of accused wiring ducts

or scrap and recycle it. Taylor further would lose a

substantial part of its business in wiring ducts and also

15

lose the goodwill of many of its customers. Such

irreparable harm to Taylor by itself fully justifies the

reversal of the preliminary injunction. Uniroyal, Inc. v.

Daly-Herring Co., 294 F. Supp. 754, 759 (E.D.N.C.

1968), Gamewell Fire Alarm Telegraph Co. v. Star

Electric Co., 199 F. 185, 186-187 (N.D.N.Y. 1912).

In this appeal, Panduit has taken the position that the

term of the Walch patent is due to expire in a few years

and that it has never had the chance to monopolize the

marketplace. This is a fanciful argument and does not

constitute sufficient ground for granting of the

preliminary injunction. Gamewell Fire Alarm Telegraph

Co. v. Star Electric Co., 199 F. 185 (N.D.N.Y. 1912).

Panduit’s right to exclude all of its competitors and

monopolize the marketplace is simply not a basis on

which a preliminary injunction can be based —

particularly since its patent is invalid in view of Taylor’s

newly cited prior art. Moreover, Panduit’s interests are

far outweighed by the interests of the public in striking

down invalid patents. As stated in Hieger v. Ford Motor

Co., 516 F.2d 1324, 1327 (6th Cir. 1975):

‘““[Ajn invalid patent is a blight on ‘the

important public interest in permitting full and free

competition in the use of ideas which are in reality

a part of the public domain’, Lear, Inc. v. Adkins,

395 U.S. 653, 670 (1969).”’

If Panduit’s position were given any credence, it would

cause patent owners to delay as long as possible (in order

to make the harm more and more “‘irreparable’’) before

moving for injunctive relief. This is directly contrary to

long settled equitable principles, particularly those

relating to the doctrine of laches which penalizes litigants

who have waited too long to take action.

16

IX. CONCLUSION

It is submitted that few cases have resulted in the

forcing of a defendant into a corner — as has been done

to Taylor in this case — without the benefit of a full and

fair consideration of the legal and equitable rights of the

parties. Taylor has been denied due process and Panduit

has been given an unwarranted monopoly in the

marketplace. Granting of certiorari is necessary to

prevent manifest injustice.

July 15, 1977

JOHN A. ARTZ

1500 North Woodward Avenue

Birmingham, Michigan 48011

(313) 642-7000

Attorney for Petitioner

Of Counsel

JOHN A. BLAIR

LYMAN R. LYON

HARNESS, DICKEY & PIERCE

1500 North Woodward Avenue

Birmingham, Michigan 48011

(313) 642-7000

APPENDIX

17

APPENDIX 1

ORDER

(Panduit Corporation, Plaintiff-Apellee

v.

Taylor Industries, Inc., Defendant-Appellant)

(United States Court of Appeals

For the Sixth Circuit)

(Filed April 19, 1977)

Before: Phillips, Chief Judge; Peck, Circuit Judge, and

Green, District Judge.*

This appeal, perfected from an order of the district

court dated August 11, 1976, issuing a _ preliminary

injunction has been submitted on the record on appeal

and on the briefs and oral arguments of counsel. Being

fully advised in the premises, the Court concludes that

the district court did not abuse its discretion in entering

said order, and therefore,

It Is Ordered that the order of the district court issuing

a preliminary injunction be and it hereby is affirmed; and

it is further ordered that the order of this Court dated

September 10, 1976, staying the preliminary injunction be

and it hereby is vacated.

Entered By Order Of The Court

/s/ John P. Hehman

Clerk of Court

* Honorable Ben C. Green, Senior Judge, United States District

Court for the Northern District of Ohio, sitting by designation.

18

APPENDIX 2

PRELIMINARY INJUNCTION

(United States of America

In the District Court of the United States

For the Eastern District of Michigan)

(Filed August 11, 1976)

Pursuant to the decision of this court, rendered August

4, 1976, due notice having been given and the court being

apprised in the premises hereof:

It Is Ordered, Adjudged And Decreed that a

preliminary injunction be and the same is hereby granted.

As used herein the term “‘infringing product’’ means

any product covered by claim 5 or the United States

Letters Patent No. 3,024,301, any colorable imitation or

equivalent thereof, and in particular but without limiting

the foregoing, the products identified in the captioned

case as defendant’s Type *‘O’’, ‘‘OA’’ (presently referred

to by defendant in its catalog as ‘“‘Open Slot’’), ‘‘W’’, and

‘‘WA”’ (presently referred to by defendant in its catalog

as ‘‘Closed Slot’’) wiring ducts.

It Is Further Ordered, Adjudged And Decreed that an

immediate, preliminary injunction, to take effect

immediately, is hereby issued against defendant, its

divisions, subsidiaries, related companies, directors,

officers, agents, servants, employees, attorneys,

successors and assigns, and all those in active concert or

participation with them, herein called defendant, as

follows:

19

1. Defendant is enjoined from:

(a) Making. having made, selling, using, offering

for sale or leasing any infringing product, or from

soliciting orders in any manner from customers, potential

customers, or others for any infringing product.

(b) From utilizing, selling, assigning, licensing,

lending, leasing, renting or otherwise transferring to

another, any tools or dies especially adapted for

producing infringing products, located in any of the

facilities of the defendant, or located elsewhere and under

the control or direction of defendant.

(c) From using any past, current or future

literature, price sheets or promotional material in

possession of defendant which illustrates or refers in any

manner to any infringing product or any infringing

product manufactured, sold or offered for sale by

defendant in the past.

(d) From accepting or completing any agreement,

contract or order, either existing or future and whether

solicited or unsolicited, from any person, firm or

corporation which identifies the product or products to be

supplied thereunder as an infringing product or which

requires, calls for or threatens to require or call for, the

making and/or selling of any infringing product.

(e) From packaging to fill orders, from filling

orders, from shipping in accordance with orders, or in

any manner whatsoever completing any orders heretofore

or hereafter submitted to the defendant for any infringing

product.

(f) From referring existing or future orders,

contracts, agreements, or work, contracts, leads.

20

customers, potential customers or others requesting

supply of or information about an infringing product to

another person, firm, or corporation, except plaintiff, for

the purpose of having infringing products supplied by

others.

(g) From assisting, directly or indirectly, any

Other party in the infringement of claim 5 of United

States Letters Patent No. 3,024,301.

III. The defendant shall immediately notify all sales

personnel, sales representatives, distributors, and dealers

of defendant that such sales personnel, sales

representatives, disributors and dealers cannot:

(a) Solicit, accept, complete or fill any orders for

any of defendant’s infringing products, and

(b) Cannot use any of defendant’s literature,

price sheets or other promotional material, showing,

describing or referring to defendant's infringing products.

III. The defendant shall recall all literature, price

sheets, or other promotional material, illustrating,

describing, or referring to any of defendant’s infringing

products, from its personnel, distributors, sales

representatives, and dealers and shall recall all infringing

products, from the possession or control of customers,

sales representatives, distributors or dealers, the title to

which infringing products and literature has not passed

from defendant.

So Ordered.

Dated: August 11, 1976.

/s/ Noel P. Fox

Chief District Judge

21

APPENDIX 3

COURT’S OPINION FROM THE BENCH

(In the United States District Court

For the Eastern District of Michigan

Southern Division)

(Filed August 4, 1976)

Before the The Honorable Noel P. Fox, U.S. District

Judge, Western District of Michigan

Preliminary Injunction Proceedings, Federal Court,

Detroit, Michigan, Wednesday, August 4, 1976

Appearances: Petherbridge, Lindgren & Gilhooly.

Chartered, by Roy E. Petherbridge, Esq., 53 West

Jackson Boulevard, Chicago, Illinois 60604, and Charles

R. Wentzel, Esq., Patent Counsel, Panduit Corp., 17301

Ridgeland Avenue, Tinley Park, Illinois 60477, on behalf

of the Plaintiff; Hauke & Patalidis, by Claude A.

Patalidis, Esq., and Allard A. Braddock, Esq., 26400

Southfield Road, Lathrup Village. Michigan 48076, on

behalf of the Defendant.

The Court: Plaintiff moves for a_ preliminary

injunction against further infringement by the Defendant

upon Plaintiff's patent.

To obtain a preliminary injunction, Plaintiff need show

that there was a prior adjudication in favor of the validity

of the patent which has a scope sufficient to include the

accused constructions. Gordon Johnson Company versus

Hunt, 109 Fed. Supp. 571 (Northern District of Ohio

1952). That here has been a full, complete adjudication in

favor of the validity of the patent before the Court cannot

22

be denied. Panduit Corporation versus Stahlin Brothers

Fibre Works, Inc., 298 Fed. Supp. 435 (Western District

of Michigan, 1969); affirmed 430 Fed. 2nd 221 (Sixth

Circuit, 1970.)

The Defendant Stahlin Brothers was later found in

contempt because its modified structure was the

equivalent of the original in its relation to the patent in

the earlier suit. Panduit versus Stahlin Brothers, 338 Fed.

Supp. 1240 (Western District of Michigan, 1972); and

affirmed 476 Fed. 2nd 1286 from the Sixth Circuit in

1973.

Therefore, Plaintiff need show only that the

Defendant’s construction is within the scope of the patent

held valid in the above cases.

I have already ruled on the question of laches, and I

incorporate my ruling earlier today in that regard from

the bench opinion.

The reasoning of this Court in the earlier contempt

proceedings against Stahlin Brothers is helpful.

In considering whether the structures in question are

within the scope of the patent previously adjudicated

valid, the Court must necessarily read the claim in the

light of the decision finding the claim valid.

In the earlier contempt proceeding, it was found that

the Walch patent, which is here in question, U.S. Patent

Number 3,024,301, was designed to achieve the following

functions or results:

A) Easy insertion of wires in the duct.

B) Prevention of accidental removal of wires from the

duct.

23

C) Provision of maximum useful space for bringing

wires from the duct.

And, D) Facilitation of intentional removal of wires

from the duct. 338 F. Supp. at 1243.

Claim 5 of Walch patent was also reproduced in the

opinion of 338 F. Supp. 1243.

Plaintiff herein asserts that Claim 5 of the Walch patent

reads literally on Defendant's type OA and type WA

ducts or that the structures achieve the functions or

results of the Walch patent as above stated.

Defendant claims that that part of Claim 5 which reads,

quote, ‘‘and defining substantially parallel edges on

longitudinally spaced fingers,"’ does not read on the

Taylor Type OA and Type WA ducts.

This Court presently holds that the finger edges of the

Taylor Type OA duct are substantially parallel within the

meaning of the Walch patent.

The finger edges are not mathematically parallel. Claim

5, however, requires only substantial parallelism.

The word ‘‘substantial’’ is derived from the word

‘‘substance’’ and means “‘consisting of, relating to,

sharing the nature of, or constituting substance: existing

as or in substance.’’ Webster’s Third New International

Dictionary (1963).

In substance, the finger edges of the Type OA duct are

parallel. They are certainly parallel enough to define,

quote, ‘‘longitudinally spaced substantially parallel slits.”’

The edges clearly define, quote, ‘‘fingers,”’ which

achieve the functional results of the Walch patent, and

therefore are substantially parallel.

24

In the words of Claim 5, the fingers of the Type OA

duct are narrow at ‘‘the outer ends of the slits and

provide restricted passages for the wires between the

finger ends and thereby prevent accidental removal of the

wires in between the fingers,’ and ‘‘said fingers are

flexible to permit their deflection and provide wider

finger spacing at the free ends to facilitate positioning and

removal of wires between said fingers.”

In this Court’s original opinion, it stated: *“‘But even

with the words of the claim read precisely on Defendant's

product, that is not quite ‘the end of it.’ Infringement is

not a mere matter of words. General Electric Company

versus Allis-Chalmers Company, 178 Fed. 273, 276, the

Third Circuit, I guess it is — (Third Circuit, 1910);

Westinghouse versus Boyden Power Break Company, 170

U.S. 537, 18 S. Ct. 707, 42 Lawyers Edition 1136 (1898);

Linde Air Products Company versus Morse Dry Dock

and Repair Company, 246 Fed. 834, 838 (Second Circuit,

1917).

“The question of infringement involves considerations

of practical utility and substantial identity, and therefore

must be quantitative as well as qualitative.’ Goodyear

Shoe Machine Company versus Spaulding, 101 F. 990,

994 (C.C. 1900).

‘The doctrine of equivalents has been used to extend

the protection of the patent to an equivalent which

‘performs substantially the same function in substantially

the same way to obtain the same result.’ Graver Tank and

Manufacturing Company versus Linde Air Products

Company, supra (339 U.S. 605) at 608, (70 S. Ct. 854, 94

Lawyers Edition 1097) 298 Fed. Supp. at 448.

‘Unquestionably the Type OA duct is the equivalent of

Claim 5, of the Walch patent. It accomplishes the same

function or result through the use of substantially the

a

_———— ewe 2-5" ane «een

25

same mechanism — the only possibie point of contention

being the slope of finger edges. The Type OA duct

accomplishes all four of the functional advantages of the

Walch patent set forth above. It does so by a device in

all respects identical to the device described in Claim 5.”

This Court is presently of the opinion the Type OA

duct is the equivalent of the Walch device and, hence, is

within the scope of the Plaintiff's patent.

Taylor also claims that its Type WA duct is not within

the scope of the Walch patent. This WA Type duct is

identical to the Type OA duct, except for the fact that

the finger ends are joined rather than open.

Defendant is referred to the earlier decisions of the

Court in Panduit I and Panduit II which found such

closed-slot ducts to be ‘‘direct infringements’’ of the

Walch patent. Supra, 298 Fed. Supp. at 449; Supra, 338

F. Supp. at 1245. Type WA is the equivalent of the

structures there held to infringe and achieves the

functions and results of the Walch patent.

Therefore it presently appears to this Court that the

Taylor OA and Type WA ducts are within the scope of

the patent owned by the Plaintiff and previously

adjudicated valid.

For these stated reasons, I find the preliminary

injunction is now in order.

I will consider this proposed p: euminary injunction and

let each of you, if you have any objections to it, to the

form — to the form, not the substance, or if — I haven't

read it, so I will let you also comment on the substance.

Get this to me within the next five days, if you can, and I

will -.nsider it and make a decision whether — a

decision on how the preliminary injunction should read.

All right.

26

APPENDIX 4

MOTION FOR PRELIMINARY INJUNCTION

UNDER F.R.Civ.P. 65

(In the United States District Court

Eastern District of Michigan, Southern Division)

(Filed March 31, 1976)

Plaintiff, Panduit Corp., by its attorney, hereby moves

this court to issue a preliminary injunction enjoining the

Defendant from making, having made, selling, using, or

offering for sale, any product covered by Claim 5 of U.S.

Patent No. 3,024,301, any colorable imitation or

equivalent thereof, and in particular, but without limiting

the foregoing products identified as Defendant's, Taylor

Industries, Inc.’s, wiring duct types *‘O"’, *‘W’’, ““OA”’,

and *“‘WA”’.

Concurrence for the relief sought was requested from

Counsel for Defendant, Mr. Claude A. Patalidis, who

indicated on March 22, 1976 that the Defendant would

not stipulate to the relief sought.

Plaintiff's supporting memorandum and the Affidavits

of Roy E. Petherbridge and Roy A. Moody are filed

herewith.

In accordance with Rule IX of the United States

District Court for the Eastern District of Michigan, the

date for hearing on the above motion is set for Monday,

May 17, 1976 at 10:00 A.M.

Respectfully submitted:

By: /s/ Roy E. Petherbridge, Esq.

Attorney for Plaintiff

Petherbridge, Lindgren & Gilhooly

Chartered

53 West Jackson Blvd.

Chicago, Illinois 60604

(312) 922-1018

ae

27

APPENDIX 5

COMPLAINT

(In the United States District Court

Eastern District of Michigan

Southern Division)

(Panduit Corporation, Plaintiff v. Taylor Electric, Inc.,

and Taylor Plastic Corporation, Defendants.)

Civil Action No. 32796

Complaint For Infringement

Of United States Letters

Patent No. 3 024 301

(Filed May 15, 1969)

To the Honorable Judge of the United States District

Court, Eastern District of Michigan, Southern Division:

Plaintiff complains of the Defendants and alleges:

(1) That Plaintiff Panduit Corporation, is a Delaware

corporation having its office at 1730! Ridgeland Avenue,

Tinley Park, Illinois.

(2) That Defendants, Taylor Electric, Inc. and Taylor

Plastic Corporation, are corporations duly incorporated in

the State of Michigan and have regular and established

places of business at Fisher Road, Howell, Michigan in

this Southern Division of this Eastern District.

(3) That this is a suit for infringement by Defendants

of United States Letters Patent No. 3 024 301, granted

March 6, 1962 and that Plaintiff is the owner of said

Patent No. 3 024 301. That this action is being

brought under the patent laws of the United States

28

(35 U.S.C. 281) for which original jurisdiction is vested in

the Federal District Courts under 28 U.S.C. 1338(a).

(4) That on or before October 5, 1955, the patentee

Kurt R. Walch did conceive and invent certain

improvements in a ‘‘Wiring Grille’’ and upon that date

applied for a United States Letters Patent covering the

same, said patent having been issued and granted as

aforesaid, on March 6, 1962, under No. 3 024 301: that

Plaintiff, Panduit Corporation, was assigned said patent

prior to its date of grant and has been the owner of said

patent since said grant.

(5) That, since the date of grant of said patent,

Defendants, jointly and severally, have been making,

selling, and have sold and advocated the use of articles

and products responding to and coming within the scope

of the disclosure and claims of the said patent and have

thereby infringed the claims of said patent within this

Southern Division of this Eastern District of Michigan

and elsewhere in the United States, willfully and without

the consent of Plaintiff.

(6) Plaintiff has applied the statutory notice as

required by 35 U.S.C. 287 on all Wiring Grilles

manufactured and sold by it under said patent.

(7) That Defendants, jointly and severally, have made

unlawful gains and profits from such infringement and

Plaintiff, due to Defendants’ unlawful infringement, has

been deprived of rights and profits which would

ee ee. eae Se os

29

otherwise have come to Plaintiff but for such

infringement and has thereby caused Plaintiff irreparable

damages and threatens to continue to cause Plaintiff

additional damages.

Wherefore, Plaintiff demands an injunction against

further infringement by Defendants and those controlled

by Defendants, an accounting for profits and damages, an

award of damages, and an assessment of costs and

attorney’s fees against Defendants, and such other relief

as the Court may deem just.

PRICE, HENEVELD, HUIZENGA

& COOPER

By: /s/ Peter P. Price

Preld Building

2336 Eastern Avenue, S.E.

Grand Rapids, Michigan 49507

(616) 452-6911

Attorneys for Plaintiff

Of Counsel:

Petherbridge, O’ Neill & Lindgren

53 West Jackson Boulevard

Chicago, Illinois 60604

(312) 922-1018

30

APPENDIX 6

AFFIDAVIT OF PHILIP W. TAYLOR

(In the United States District Court

Eastern District of Michigan

Southern Division)

(Filed September 1, 1976)

State of Michigan

County of Oakland—ss.

I, Philip W. Taylor, being duly sworn depose and state

as follows:

1. That I am a citizen of the United States residing at

Burnet, R.R. #1, 112A Texas 78611.

2. That I am the President of Taylor Industries,

Inc., defendant in the above captioned civil action.

3. That Taylor Industries, Inc. has already suffered

and will continue to suffer irreparable damages unless the

oreliminary injunction in date of August 11, 1976 against

said Taylor Industries, Inc., is stayed pending appeal of

the order granting said preliminary injunction. Said

Taylor Industries, Inc., will suffer irreparable injury for

the following reasons:

a. Taylor Industries, Inc. is daily losing sales and the

good will of its customers by being prevented from

delivering orders already accepted and will subject itself

to a multiplicity of law suits for breach of contract;

b. Panduit Corporation is engaged in a crash customer

Stealing campaign and at the same time attempting to

delay the consideration of a stay by asking for an

extension of time in which to brief the court. (see

attached Panduit literature)

Dy me

sh les

31

c. Such loss of sales and of customer good will will

be impossible to recapture even in the event that the

Court’s decree and order granting Plaintiff a preliminary

injunction is revcrsed on appeal;

d. There is a strong likelihood that upon a plenary

trial on the merits with full proofs and admission of

pertinent prior art the patent in suit will be declared

invalid and that Taylor Industries, Inc., will not be

permanently enjoined, in which event Taylor Industries,

Inc., will nevertheless have suffered considerable

irreparable injury as a result of the loss of its customer

good will. Taylor Industries, Inc. is in the position of

being presumed guilty without having been able to

present a defense at trial;

e. Taylor Industries, Inc., will be forced to partially

close its plants and thus to lay off the majority of its

employees while appropriate new tooling is obtained for

the purpose of producing new designs of wiring ducts, the

manufacture and sale of which is not enjoined by said

decree and order in date of August 11, 1976; and

f. Irreparable injury will be caused to Taylor

Industries, Inc., as a result of being forced to warehouse

its present inventory of wiring ducts whose sale has been

preliminarily enjoined or, in the alternative, in scrapping

and recycling such inventory until the preliminary

injunction is lifted by the Court of Appeals for the Sixth

Circuit, or the patent in suit is found invalid on a plenary

trial on full proof or until the expiration of the term of the

patent in suit, March 6, 1979, resulting in a considerable

economic waste which is against public policy at the time

when conservation of energy is of prime importance to

this nation.

32

4. That the consuming public will suffer considerable

injury as a result of Plaintiff, Panduit Corporation, having

been able to eliminate from the industry all products

directly competitive with its own wiring duct and to

remain the sole producer in the United States of so-called

“open Slot’’ wiring ducts after having been successful in

eliminating from the marketplace Stahlin Brothers Fibre

Works, Inc., Jody Manufacturing, Inc., ECP Corporation

and now Taylor Industries, Inc., thus permitting Plaintiff,

Panduit Corporation, to dictate and impose its own prices

to the consuming public.

5. I cannot overemphasize the urgency in this matter

as the lead times for delivery of this product are very

short. Irreparable injury occurred almost immediately

upon our being enjoined and will continue daily until we

will no longer be a viable wiring duct manufacturer even

though we have not had our ‘‘day in court’’.

6. The attached Panduit literature has caused many of

our customers to conclude that we can only supply ducts

with round side holes. Sales are being lost daily because

of this erroneous impression.

Philip W. Taylor

Subscribed and sworn to before me this 28th day of

August, 1976.

/s/ Ruth Heffington

Notary Public Burnet County, Texas

My commission expires June 1, 1977

33

APPENDIX 7

Summary of Pertinent Portions of the

Transcript of the Hearing of August 4, 1976

It is clear from the transcript that the District Judge

refused to consider any prior art, whether it had been

considered in the prior litigation or not. This subject is

discussed in particular at pages 62-68, 102, and 112-116 of

the transcript of the August 4, 1976 Hearing.

When counsel for Taylor sought to introduce in

evidence a specimen of the prior art Taylor duct that was

considered in the Stahlin Bros. case for the purpose of

showing the limited scope of the patent in suit, the

District Judge sustained plaintiff's objection thereto,

saying:

‘The issue is closed. I decided it in the

principal case. That Exhibit was before me in the

principal case. I made the final judgment in it. It

is closed. It is res judicata.’’ (Tr. 62-64)

Next, counsel for defendant sought to introduce

testimony regarding the Davis patent, U.S. No. 667,195

(Tr. 65-68). The District Judge sustained plaintiff's

objection saying (Tr. 68):

‘*Well, I am not prepared and I don’t intend to

retry prior arts in this preliminary injunction

hearing, and any claim or any prior art that was

before me in the original Panduit trial I will not

consider in this preliminary injunctive

proceeding.’’*

* Actually it does not appear from the published decisions that the

Davis patent was considered by the Court. However, it was

considered by the Patent Office in connection with claims other than

patent claim 5, in suit.

34

Later, the Court sustained an objection to an offer of a

model of the Davis patent (Tr. 102) and further sustained

objections to questions regarding it (Tr. 112-116).

At Tr. 102, Taylor’s counsel had marked as exhibits a

copy of Carlson patent, U.S. No. 2,507,886, and a model

of the Carlson device. The Court sustained plaintiff's

objection to this as prior art. (Note: there was no claim

made that this prior art had been considered or that

anything like it had been considered and counsel for

defendant pointed this out to the Court, but to no avail.

Tr. 102-103).

At pages 115-116, the following exchange occurred:

‘*Mr. Patalidis: Oh, I have no desire, your

Honor to retry the Stahlin case all over again. We

have newly discovered prior art that goes to the

heart of the presumption of validity of the Walch

patent, which your Honor will not let us

introduce. And if I understand your Honor’s

ruling, your Honor doesn’t want any evidence to

be introduced into this Court which relates to

prior art. I think I may not have understood your

Honor this morning when you said relates to the

prior art, meaning the prior art that was before the

Court in the Stahlin case, but —

x* * * *

Mr. Patalidis: I think this is very relevant.

The Court: I have already ruled on

propositions of prior art. I am not going to retry

that case at this time. I may consider it on the

principal case.”’

3.

4.

35

APPENDIX 8

Claim 5 of Walch Patent 3,024,301 Compared With

Prior Art Western Electric Fanning Strip

Walch Cluim 5

A wall for supporting and ; ae :

orienting wires comprising:

A side wall

‘ having longitudinally spaced sub-

stantially perallel slits ” i

open at one edge of said wall

and defining substantially

parallel cdges on longitudinal]

spaced fingers

the free ends of suid fingers ~

being enlarged * DEPOSITION

EXHIBIT

to narrow the outer ends of the

slits and provide restricted

passages for the wires Létween

the finger ends and thereby pre- 4

vent accidental removal of the

wires from between the pe

said fingers being flexible to . FANNING STRIP

permit their deflection and pro-

vide wider finger spacing at . y

their free ends to facilitate

positioning and removal of wires

between said fingers

36

APPENDIX 9

Panduit Brochure Illustrating Its Fanning Strip

Covered By Walch Patent 5,024,301.

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BR wall for suprertin9 — HARE

t/. waa + 7 , . :

non sida CC Patenicd Fanning Sirip renmaventiy tsovares

wall eg es e

‘—_ a = -CONRLLI OS INLPROPTI POSITION

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stantially porelicl slits rn me nd teem Se ‘ <=

et nate wot nn he ae

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the free ends of eaid fingers ; Sunes uned's - agp) y+ ames © < eebs Geeta, v0 0 enses-en

being cnlerged : ad 1 eee Rad Es oo aiiss sate + 3

to narrow the outer ents of the 5 heAst. _: 4 fy eee © ee

elit: and provide serteicted ee nl f: en = f7

pessege: for the wires between i of oe vite

the finger ends ond thereby pre- - a. 28 6 Sactindnienranastentinemtieterteseant

vent accidental 1 rovel of the wstai PAEETEF of OFF errs Danmeng Sire, Ct ty preper tength, smepe tn holver

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positioning and removal of wires

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