# Petition for Writ of Certiorari — Nugey v. Oliver Manufacturing Supply Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1317%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 375 U.S. 951 ## Text MAXIMILIAN: Bante, \ L. Warton Baper. As : ae, Co net a ‘ ee ae iP Lopem APPEAL PaesS, INn¢., 41 VESES, STREET. New York, N. ¥. W Orth 2-0689 = * ~ ae = Mann rr. uA C4 PRK. o> ° 2 be + - INDEX : 2 a nt ~ a | PAGE : Citation of Opinions Below csesre707°""" eee ren ray e iG O, ee Jurisdietion .---- oo a vawees seoes Je cum peneee® 1 : , ot / , : "s | 7 Facts’ ..+++*: veecagee*g? bs see eoaeee res oce¥ee yon z i Argument Relied on for Reliance of Writ ..teeeee 3 Cone]usion «++ eee => een * APPENDIX? Ni : . Opinion ‘of United States Court of Appeals for — the Third £ ireuit By gwaesaee ere fe} | - Judgment of the’ ‘United States Court of Ap- pr eae peals for the Third Cireuit ...eere 17 Judgment, of the Court of kppenls for the. a or Third Cirenit Denying Potions” *s Peti- SF ips eee on tor Rehearing .. ey Se a ied 18.- CASES CITED Atlantic & pit ‘fie Tea Co. v. Supermarket Equip- ; ment Corp. 340.0. S. 4 inane uuereass* a “Copense- Mfg. Co. ¥: American Photocopy Equip- ment Company. ‘ogg Fed. (2nd) TTD cedecvere ; Dd o Se Se ee ee ay oe de es eg paar Glus v. Brooklyn Eastern District Terminal, : 309 : ae i Eee eeegieeawiaaes mcteke 7 ‘ Graver Tank & Mfg. Co. v. Linde Air Products: a IE ois sr asvegesssage eas 6 Gross v. J. F. “D. Mfg..Co., Ine., 314 roe (2nd) 196 Me Leiter Minerals, Ine. v. U.'S., 352 U. s. 220°... oe Morales v. City of Galveston, 370 U.S. 165 “ ae ae 7 Porte rev. "Aetna Casualty: & Surety Co., 370 U S. ics Vata ravens sas eee bes sesceeeeees 7 | boalibwenene Sugar & Molasses Co. ‘v. Riv er Ter- minals Corp., 360 uv. S.:411 ..s... iionaeeegus ees Turnbow v. C. LR, 368 U, 8 887 «0, SEO 7 U. S:'v. Uniop: Pacific Railroad: Co... 353 U. | 112° 7 | .STATUTES CITED ee A CU alas cece ie Oe OF :.):.:..... Rie AUR ree e. ° } IN THE Supreme Court uf the Huited Stats -OctosrR _— 1963 — o—_-—_—__——_-- — . AntHony L. Nucey, ; .. Petitioner, vs. " 4y? le Or VER — FACTURING “Suppiy Co, a corporation of New Jersey, and Mamie PE LLEGRINO, Executrix of. the Estate of Patsy PELLEGRINO, ern eter P) ° ae a — ee : D 2 # = ? x Respondents. wt atl ~ & ; —. $$$ -— ; . Fa PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR’ = ' eee _ tioner. hantil - July 19.. 1963 to file his Petition ‘for. Re/ Hearing. Said Petition for Re- Hearing was duly filed and: on August 5: 1965 the: Unitéd States Court of Ape peals denied petitioner’s . Petition. - The instant: Petitian for a Writ of Certioral is filed within ninety (90) days ’ from the date of the | ys foresaid denial ot suid Petition for Re- ‘Hearing. ; Facts — . =! : * z . Pet Stioner Anthony L. Nucey, having ee forty (40) years” experience | im _professional el pyincering develop- ment ihelndims oil. refineries. food gulants. clay plants and * beverage plants, a. licensed professional engineer im the States of - Connectiett, New Norky New Jersey,” ~Pennsy!- «Vania, North 4 Carolina “and - 10, tho slewctopet of a num: her of products including enzsare products, cinder blocks, ceramic ware, dries. and the like. and the «| holier ol “Lapproximately ten (10) issued United . States patents, developed a novel apparatits ‘for the guring’ of cinder blocks (Joint APE ndix Page 9a). ? This novel ‘apparatus was sommunicated by Nugey to the defendant: -Pellegrino who was subst! antially the sole. owner of the corporate defendant. De foadant Pellegrive, on information and’ belief, had been conv icted Of. criminal prcome tax ev asion during the course of this action (Joint . . 3 . P ‘ a o>. at ‘ F . a oo 3 = ; Appendix Page 21a). After communication of the afore- ‘said invention by Nugey to Pellegrino,. Pellegrino manu- ;) factured an estimated: seventy-five million (75,000,000): ‘einder blocks utilizing Nugey’s apparatus and. obtained a profit estimated at SeVen Million Five Hundred Thou- sand Dollars ($7, 200,000.00) (Joint Appendix Page 127a). Nugey patented the apparatus involved which is disclosed in-the patent in suit. 4 oe . Upon defendant's failure to compensate Nugey. for the use of his patented invention ‘Nugey brought the instant . -action.. The District Court found the patent jnvakd as: anticipated ‘by a combination of prior art, references, the Court of Appeals affirmed, and this. Petition for a Writ of Certiorari has been. filed in this Court to review the ‘ determination below. eee ee ee ay 7 Argument Relied on for Reliance of Writ The. instant application brings ur a question which. is pelieved to be of substantial and controlling importance. Pursuant . to the ‘coustitutional provision Congress has: the right to grant patents to inveptors for their inver- tions and discoveries.- In. 1952 the varjous - patent laws were codified in 35 UL S.C. and, since it is admitted by the Opinions below that the precise etrueture utilized by ‘ Nugey- is not found in a single reference, reliance for the determination of invalidity below must be; found ‘in 35 U.S.C. 103. This section reads as follow8:, x : &@ ‘Sy “+A patent may not ‘be obtained though the in- Ce kention is ‘not identically disclosed or deseribed as set forth in 102 of this Title, where the differ- ences between the anbject matter songht to be patented) and the prior wrt are sich that the sith- ject. matter as a whole would have heen obvious, at ag s ? oN c The 4° the time the tevenition was made‘to a ‘person hay- ing: owlinary skilljin the art to which said subject - “matter pertains. Patentability shall not be nega-— tived by the manuers in which the invention. was made.’’, , 8 "ti. reviser’s notes in connection with tis section state the following “itificant clause: : basis for the addition at a later: lime of some: eri- +) . This Court has not seen “fit. to. ere ant. a Petition for a. Writ ‘of Certiorarl in‘any pate nt-caee since the promulga. tion ‘ef the’ Pateu Act of 71992... Determinations cqneern- | jetta * “This paragraph ix added with the viéw ° that an explicit statement in the statute may have some stabilizing effect, and. also to serve ‘as a teria which may be worked out. we oF. mg. the standards of. Invention required in order to sup- “port a valid patent haye- been conspicuously -absent.- As a result’ patent litigation Has degenerated into’ ‘the law of the, jungle’. For example, in the instant case the . Distriet Judge, in*invalidating the patent in suit as coti- ~ stituting what, in Ais opinion, constituted an unpatentalte -- aggregation | of prior structures chad this to say (Joint Appents;: p. 147a): , 3 | “Well, [ envisaze. that three Judges -in. Phila- delphia would be harassed to try to upset my find- ‘ings; Tf they: vdo they: will, be siliv, if they dongt they will be very wise. But i think that they mipst be given credit * figr having definite perceptiveness of knowing what things are about and ‘where coun- sel have gone asttaty.’ The JF, a - al . Second Cirenit, Court of Appeals, in Gross vv. D. Mig. Cb., Ine. dA Ped. (2nd) 196 summarily - \ Site ie a) Pest 2 ta et Ou : aeversed a determination of the District . Judge holding a mtent valid and infringed with the summary: statement that the legal standards for patentability were not com- || “plied with. On the other hand the Seventh Cireuit- Court of Appéails in Copease Miq. Co. v. American. Photoc opy Equipment Company, 2G8 Fed. (2nd) 772 (777), in. sum- J amarily reversing a determination of .the: Distiiet “Coust holding a certain upton iiivalid had this’ to say:” \ co. eh * A in’ every patent casé, there is here a presumption that “the patent in suit is valid. .The ! . ‘ burde is of establishimg irvail: dity rests on defend- e 4 ant * > The presumption iY not -an idle westiire *“ * * Ld is not to be ov erthrewn exe ept by iloar ‘and cogent evidence. * * * ” is 2s ? fe - : v tues a a Thus the state. of patent law the United States borders on chaos.” Since no. de sikas standards, exist, for “the de! lermination of the preseuce or. absence of, invention ell patentee not only. must invent, Hew subject matter, ‘at- tempt to intérest others in its exploitation, run all ‘the risks of atnew business, and-add to the subject matter of ° vserul knowledge doat then, after doing al] af thix and - seeing his efforts erowned: with - “secesst becomes involved Mm expensive, costly and lengthy: pateit. litigation. - : Simi- farly -a-busitiesstian devisjug a new product cannot be certain that.the fruits 6f Iss laber well hot be unlawtolly “appropriated hy a competitor until litigatiol is termi-° “nated. — ‘ ° . it ~ ; ‘ 7 = . .-- respectfuily +sabriitted to this ‘Court- that “if the standards of myention -_ ed by the Distriet Judge and the Court of | Appeals i inthe ynstant case were, to be ‘the iaw then no mpchanical or machine patent of any type Would be valid. Any machine or mechanical device must. ° e . * ay . be. of neees=ity, a combination of levers, chambers, gears, - 7 : Pd . 2 . a 6 * ie Be seams and linkages. In any machine thie components thereof will be Yound’ separately in_ the prior art. For example the steam engine wtilized the well- known, force of. a vapor against a piston whieh Uroveca driven member by linkages, “By the standards applied in the instant ease Jamies W att would have made no invention. tel Petitioner. wishes to strone® urge to this Court that ‘he scientific preeminence of ihe Uirited. St nies has heen dropping by reason of the facet that an- inventor is, no longwet given atfoquate protection by the Courts. Contrast. the positions of the “plainti ff and the indi: vidual defendant in this ditigation. If present standards ppited: by some Courts are toscont iufie gots anventorship , ‘in this country will hecem: a ton art? This Court has spoken concerning the standards to be applied in connection with patentable Invertion in two (2) _ cases recently whieh are- Graver —— dd Mia Conv. Linde fir Products Co., 236 US. 271 (275), where the Court, in finding that a certain keen fiux contained the ele- nients of invention held_as follows: . e . - “ this action against defendants, Oliver Manufacturing Sup ply Com- pany and Patsy. Pellegrino, alleging infringeme nt oof United States, Patent 2.575462, which describes an ap paratus for curing building blocks. Deterdants raised. the ‘defenses of invalidity and non-infringement. Claim of invalidity was based upon want ef invention over: prior grt and non- infringement wpon a ficense- that plaintiff had eranted defendants and ‘defendants’ po rights therein. Jueisdivtion is founded pon TSC. 6 15n8, Tliis appeal is from the district court's determination of invalidity based upen a finding that the prior art is replete with anticipation ot the. Various chums of the pat- ent in sut. During the pe riod 1958-4953, defendant Pell Berio had engaged In the manatactire A cinder and cement buile ling blocks. in’ Rahway. New. Jersey, and thereafter in’ Pert Nath. . ‘ : . ‘ ’ al Reading. Both plants were mnider the ownership of; de-” - fendant Oliver Maiiutacturing Supply Company, a corpo- ‘ation of thes State. of” Now Jersey in which Pellegrino ‘] president and prime ipark ste Aol ter, Suilding blocks ane ieohdad to form and -size.. froin’ batches-of material consisting primarily of water mixtures of sand, cement, and cinders. The blocks are cured by sub- jection to a dived: ation process “tollowed by earbonation. Normal. caring. process involves presetting the molded blocks for a periad af two-wud-achalf hours, then stowly raising the,temperature over a two-hour period to schon mately 190° bP "The bloeks are then subjected to a hydra- ‘turing precess War revised so as to feathre three separate 5 tion process for five hours at this temperature, after which the blocks are dried out to a prescribed moisture content. Because hydration is not completed in the five-hour period, — the process must be continued for a much longer. period before the block develops fyll strength. This is usually acComplisheds by storing the blocks in the open “air for from two to four weeks, with carbonation taking place at a’slow rate. While ¢arlonation would be most effective if-started atter the blocks are completely hydrated, this . cannot be accomplished beeanse hvelration continues for ¢ long period of time With the development of more ‘and more strength. ‘The carbon dioxide absorbed during car- honation under ngrmal conditions comes trom the atnros- phere ee ‘ Thronghout ‘the vears efforts had been made to dewise | nreans and methods for fspecding the enring. of synthetic’ bnilding materials and redneing the cost ef production. ¢ Phe nse of high early strength ‘cement té effect a quicker setting in the block and ‘of caleinm chlor ide to dry the. water’ ont’ faster? were commen omothorls and were used hy defendants long he an ph: untiff Nugey joined thém in 1945. - Plaintiff was a consulting engineer and. althongh without prior “experience in the building block: industry, he interested himself in an attempt to devise apnaratis and discover’ chemicals that would enable defendants to” develop a quicker and more, economic curing process, At “plaintiff: Nugey" s direction, ‘defendants? ~ manufae- ‘nt coordina ited phases: J 2 1 M& reaction unit consisting .of wa heater of suffteient. capacity for discharging thie products of combristion cinte a curing eheamber and to maintain e the aptimum temperature for euring. 20 A recireglating. or diet System. to accomplish (a) cireniation of the products of combustion frem 10 the reaction nnit to the curing chamber and hack - to the reaction unit; ‘(b) exhaustion of the super: | saturated air ‘from, jhe curing chamber and -ad~ mission ‘of fresh air at the same time; (¢) regaila- tion of the temperature, moisture and carbon di- oxide. content of the air passing through the cur- ing chamber. , 8, A. balanced equveyor system for the purpose of moving blocks throaeh and removing them from the chamber affer the optimum euring period. , On February 9, 1947, plaintiff: Nugey’s assignee, Dri- Fast Process Corportion, filed suit im the New Jersey Chancery ourt against Oliver and Pellegrino, alleging that Nugey had, on or about September 26, 1949, granted defendant Pellegrino the. exclusive right to use’ secret processes Nugey had developed, and defendant had. failed -to pay the agreed royalties for such use, On February -16, 1949, Nugey made application for a patent for an “ apparatus for euring building bloek. - Shortly thereafter, on October 18, 1949, the state court litigation was ter- minated.-by entry of consent judgment in which was incorporated by reference an agreement entered into by ‘the parties on October 15, 1949, wherein Nugey and yssignee granted to defendants Pellegrino and Oliver a license for, the use of. the “process Nugey had purportedly conceived in September 194. On November 20, 1991, the Patent Office granted to Nugey fie patent now in suit. The Nugey patent ‘consist: essentially of a continnous serpentine kiln composed of “parallel straight, sections ee . - @& . > jomed. by cirentar seetiens at. their ends, such that the two: open ends of the kiln are At the same end of the apparatus and relatively close to each other. The blocks to be cured ate transported through the kiln by a con- veyor. The conveyor consists of straight seetions within a the Pat&mt Office disallowed such a cham as being anticigated. by the . perfor art. ee ree! Be ae a each straight. section of the kiln, and separate curved | sections within the curved sections of the kiln so. that the blocks move on a continnons path through ‘the kiln.’ ~The conveyor receives the blocks to be cured direetly from the ‘bloek-forming press. .The apparatus is designed so there is a continuous tlow ‘of blocks through the kiln at a speed equal to that ‘of the output of the block-forming press. At the outlet end of the kiln the blocks ate yn, loaded from the trays which: éarried. them through the ‘kiln and the “empty trays are transported by the con- veyor back to the forming press for reloading. The blocks are enred by hot ruses being passed ‘over them. These het gases are einerated by combustion and are circulated by awfan so that the flow of gases through the kiln is in-a ‘direction opposite that of the movement of ‘the blocks, The patent specifieations disclose the prod- nets of combustion entering at’the outlet end of the kiln, Wand being withdrawn from the kiln at the inlet end. The patent apparatus has a provision for either discharging the gases to the air or recirculating them through the combustion equipment and back again through the kiln. The patent also provides for introducing fresh air into = -s4-" . es ’ e ——o- aD fhe combustion. equipment erther alone or tn a muaxture with the gases exhausted from the kiln: The hasie design of subject patent is clearly anticipated by Lang, patent 1.663.209 , (1928), wherein there. is dis- closed a+ serpentine kiln with parallel straight ‘sections joined by eurved sections. Lang provides for a continu- ous conveyor within the kilt, said conveyor receiving the bricks to be treated from an _antomatic ‘prick-forming machine, carryiug them through the kiln and discharging While it might seem lovigal ‘to Use a continuous one-piece CONVEVOr 1 12 them at.the exit of the kiln, with the conveyor returning to the brick-forming macliine to receive mores bricks to. he treated. Both Lang and the: subject . patent, employ the feature of a kiln taking the continuous output of: a machine forming, the products to be treated. Lang. also. employs the use of products of combustion to treat the . products being eured and the patent suggests the use of pa “counter current of. the gases. Subject patent contains several features not found in ; the Lang patent. These are: * 1. Use of a counter eurrent of the.g@ases by ‘in- » troducing them inte the outlet end-of the kilr and - withdrawing them from the inlet end ‘of the kiln. 2. Use of a systeni of valves whereby the air « entering the reaction ‘mit can be varied between vse of outside air, ase of the ‘gas withdrawn sapees ‘the kiln, or a combination of the two. SS ieee J ea cr ee ower ‘i sieeliabie the gases throwxhout the unit AS ‘4. Use of a separate reaction unit to generate “the mesons of combustion used to cure the blocks. '5. Use of, a seetionalized rather than a. continu. ogs conveyor, although the fanetion of both con: | veyvors Is the same. © hea RRs e ts eet Four of these element* ate. found present im other patents granted prior to the one in suit. ae - I The use of a counter current flow ef gas is found in several patents, inclitding Nimmo patent 444,153 (1891) whic h discloses a kiln for Kak ing and barning erncibles in ‘which‘there is a single Contintons conve vor. meving the ‘objects In a confter current to the flow -of the products ‘of - combustion, The Lang patent also suggests ‘the use of counter eurrent, but. this does not take place throughout ” the. whole unit, whijJe the Harrison patent 1,916,949 (1933). shows: the . use of a conveyor with a current of carbon ‘dioxide in contitinous cireulation and counter to the flow of the material being treated, " ' ° al Le TT. Colbert) patent. 1.697596 (1929) describes an ap. paratns for dPing coramc ware. Through a system of ducts. air is heated in a furnace, then passes through a ‘fan which poshes it through the ducts to the dryimg tu. nel. There issa-provasion at the fan for mixing outside air with the air heated by ‘the furnace. Upon ex Xiting, _ from. the tunnel, the heated.air traveis through another justmient of the dampers, the, heated Rir may be redircu- lated throngh the fan or exhqusted inte, the atinosjhere, system of duets controlled hy dampers, By mpi ade “Gebniich pateut 1.061.145 (1954) provides for wl “oven which is-lieated by conveetion. The heating unit is next - to the oven and the wir Which is heated. is ¢ ‘eulated mA hy ss -a fan from the. heating unit, through the sven, and. back / - again throvgh the heabert 2 a é ‘ i This cause canie on to be heard on the feeord from the United States District Court for the District of New Jer-* -sey and was argued by counsel On consideration whereof, it is tow here grdered and adjudged by this Court.that the judgment of the said Tis- trict Court filed June 19, 1961 in this case be. and “the same is. hereby affirmed, with costs. oan Attest: ‘ ; Ia O. CRESKOFF pee 1, - Clerk ~ +o Received .& Filed ° are Jun 19 1963: : Iba O. Creskorr, Clerk 18°. = ° a. ° ° Judgment of the Court of ‘ener for the:Third Cireuit - ¥ Ina O. Crrskorr, Denying Petitioner’s Petition for Rehearing UNITED STATES COURT, OF. APPEALS For: THE Piriep “Circuit No. 13.727 | 4. a _ ad Astuony Le Nvgey, Ouiver MaNnvracturInG Suppiy Co., a Corporation of New Jersey, and Mamie ‘PELLEGRINO, Exeenirix of the Estate of Patsy, PELI EGRINO. 4y 1) Scr Petition ror REHEARING Present: . McLarenurs, Starry, Hastie, Forman and Sith, _ Cirenit Judges, and ,Laxe, District Judge After, due eonsideration the petition for ‘rehearing in the above- entitled case -is hereby denied. Dated: August 5, 1962 By’ the Court e | ‘STALEY ° wo Cireuit Judge Received & Filed _ . Aug. 5 1963 _ * oe Clerk . ew : . cacy ite _ Appellant, a) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1317%3A2. Public record. Not legal advice.