Petition for Writ of Certiorari — Hazel-Atlas Glass Co. v. Hartford-Empire Co.

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CHARLES ELMORE « Svat

ote tse

_IN THE

Supreme Court of the Unit

OcTOBER TERM, 1943.

“X08 98 :

=]

=

HAZEL-ATLAS GLASS COMPAN y,

: Petitioner,

VS.

HARTFORD. -EMPIRE COMPANY, -

_ Respondent,

PETITION FOR A WRIT OF .CERTIORARI TO THE

CIRCUIT COURT OF APPEALS FOR THE ‘THIRD

CIRCUIT, AND SUPPORTING BRIEF

* STEPHEN H. PHILBIN, |

Henry R. AsHTON, .

Counsel for Petitioner.

SEPTEMBER, 1943.

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\ Senter ech eeewe ss ee ee eee Lea

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, : PAGE

Perition 3 FOR Wait OF CERTIORARI: ;

‘Summary Statement. of the Matter Involved. . PETS Aig

Questions Presented .... reves esc e lee eee esas.” 12

‘Reasons Relied Upon for the Granting ofa Writ of

Certiorari Keene deeb hataeasas a errr eee 13

BRIEF IN SUPPORT OF PETITION :

Opinions of the Court Below ........ wane’ see eS

Jurisdiction « .. eres. eee eretseccess 1S

era cease da nena eeeenns ee |

Specification of Errors........... fac heres oe

Summary of Asgument.-. eadaas nee rn Perr eT eee ey

Argument Siw SOsIbs aa kig da akinesGhenaes 17

Point I—There is a conflict between decisions of

“circuit courts of appeals . eh ere Seen ee ee 17

Point II—There is a conflict with decisions of this -

SUE pens 6 Say bo acean Aen Ne rps ere elcte

Point I1]—Whether or not circuit courts of appeals

have the power to remedy frauds practised on

them .by setting aside-their former decisions; ;

when there has been no fraud in the court below,

is a jurisdictional question of great. importance '’

to the administration of justice that should be _

settled by this Court............. neces a

Point IV—The decision below, on a matter ‘it great

public importance, was wrong and constituted

palpable error apparent on the face of the opinion. 23

24

Pm Tet

Rete NN

ape ate Nn oe cute omens

1 pm ae

A ee eee

tine aa sri tach assent wo Lis ans

a:

a ee ie PAGE

Aguilar v. Standard Oil, 318 U. S. 724, 726 insta ee

Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315. ° 16

_ Art Metal cases, 107 Fed. 2d 940, 944....2.......:17,18 |

- Brady v. Beams, 10 Cir., 132 F. 2d 985, a ae

De Forest Radio Ce. ¥. General E Electric, 283 ree

; 664 ens ek aes Poe a eee reeee Sauce kan scien 16

| Exhibit Supply Co. v. Ace Patents Corp, 315-U. S..

Ms oe ak een hae eae knee Keke lene

Forsyth v. Hammond, 166 U. S. 506, Be co 24

Hartford ¥-Coe (1936), C. C. P. A., 87 F. 2d 741.. 23 |

_ Hartford v. Hasel, 58 U/S. P. Q: 348, $55 3s... FS,

_. Hartford.v. Hazel, 39 be 11: sh. ee ee ee

Hartford v. Hazel, 59 F, 2d 399, 401, 403, 404, 406,

ee GS cc we as ch ces caigedes suns 2,5, 6,7

Hartford v. Shawkee, 58 U\S. P. Q. 62... es %

McCandless v. United States, 298 U. S. 342 . maa Se 24 -

Marshall v. Holmes, 141 U. S. 589, 601 ........ 18, 20, 21 -

"Muncie Gear Works v.. Outboard Marine & Mio. Co.,

ee. Rr rr re rere re Tae duanis

Park v. Park, +S Cir., (23 F. (2 8» aero 19

Powers-Kennedy Contracting Corp. v. C oncrete Mix-

ing, etc., Co., 282 U.S, 175, BO cai sadvcevancs Ss

Publicker v. Shallcross, 3 Cir., 106 F. 2d 949, 951. .19, 20

Raymond v. Wickersham; CCPA., 129 F. 2d 522, 526 19.

“iii |

| PAGE

Reynolds v. United States, 292 U. S. 443, 446, 447. .16, 24

____ Saranac-- Automatic Mach. Corp. v. Wirebounds .

Patent Co., BBe U.S. 704, FOS onc cesese geccesee Ae.

_ Shawkee v. Hartford, 68 F. 2d 726....... sates pee iuee

Shawkee v. Hartford, 73 F.2d 1013 .......0...... 12

Shawkee v. Hartford, i A a, a

Sola Electric ‘Co. v. Jefferson Electrig Co., 317 U.S.

173 sb eeeeee SE ESEEVELELILT LET ‘16.

~ Southern Raikway Co. v. Walters, 284 U. ‘SS. 190... .16, 24

Southland Gasolene v. Bayley, ge | rere 16 -

— A tlantic ¢ oast Line R. c 0., 290 U. “a |

- $22, 326 .:....... SUALULE MARA WN brah Ree meea 24 ~

Uz a. Industrial Chemicals v. Carbide and Carbon |

_ Chemicals, 315 U. S. 668, 669 2.2.2.2... 50.0005 15

United States v. er Oil Co., et al., 310 '

a Oe OEE ee errr rr rere ee 16

U.S. v. Throckmorton, 98 U. S. 61, 64, 65, 66 ..18, 19,21

Ward v. Ward, 2 Cir., 149 Fed. 204.........0..206 (8.

Williams Mfg. Co. v. United Shoe Machinery, 316 \

os O.....3 ae ene ruayiereaeneas 16

STATUTE CITED

Sec.’240(a), judicial Code, 28 1 U.S. £., Sec. 347, as.

amended ACR atc ae Lee cae ae cama ices ‘15

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.

-

F

’

IN THE - typ

ae

Supreme Court 1 uf the Anited States. :

_Ocroser ‘ERM, 1943.

— 4

_ No.

HazeL-ATLAS. ‘GLASS Company, ;

’ Petisioner,

US.

Hartrorp-Empie CoMPANY, ~~

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE’

_ CIRCUIT COURT OF APPEALS FOR :-

THE THIRD. CIRCUIT

To the Honorable the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Hazel-Atlas Glass Company’ respectfully petitions for a

writ of certiorai dirécted to the circuit court of appeals for

_ the third circuit, to review a judgment of that court entered __

on June 30, 1943 (R. 266). The opinion of the court,

filed on the same day, by Cireuit Judge Jones, Circuit. Judge

.. Maris‘concurring; and a dissenting opinion by Circuit Judge °

: Biggs, are in the record (R. 240, 251), and are. —

ares S. P. Q. 348, 355.

_ . iF. 2d 111 (per Judge Gibson), ‘The third tircuit court of . -

2)

A transcript of the record in the case, including t the pro-

ceedings i in said court, i$ furnished herewith i in accordance |

with Rule 38.of this Court. :

A petition for a writ of certiorari to the same court will

_ be filed within a few days i in the companion case of Hart-

ford-Empire Company v. Shawkee | Sc cenit Com- .

pany et al. (infra, p. 11).

Summary Statement of the Matter iis

The judgment here sought to be reviewed is a judgment - 7

by the third circuit court of appeals, denying a petition to”

that court to vacate a°1932 decision by that court, because

_of fraud practiged on it. - Petitioner here was the defend-

_ ant in a suit brought 1 in the district court for the western

district of Pennsylvania by the respondent, Hartford-

Empire Company (hereinafter called Hartford Company

or Hartford) for alleged infringement of a Peiler -patent

1,655,391, owned. by respondent. Hartford claimed that

the patent covered ‘certain machines,: called feeders, used

by petitioner (hereinafter called Hazel or the Hazel Com-

pany ) in manufacturing glass containers, such | as , glass

bottles.

The district court decided for defendant on the ground

that the patent was not infringed, Hartford v.. Hazel, 39

appeals on May 5, 1932 reversed, deciding for’ Hartford

‘and finding the patent valid and infringed, Hartford v.

' -Haszel, 59 F. 2d 399, Circuit Judge Buffington writing the

opinion, Circuit Judge Davis concurring, and Circuit Judge

Woolley dissenting with opinion.

_ *The opinion of Judge Buffington shows on its face that

“it was greatly influenced by a published article.of one _

Clarke, in overruling the finding of the trial judge, which

was that the earlier patents and work by others, testified to

by witnesses whom he saw and heard, limited the scope

of the patent so that the Hazel feeders did not infringe.

This article had appeared in the principal magazine,of the

-. glass industry, and purported to have been written by the

president-of a glassworkers union, who made Various state-

thents concerning: the nature and operation of machines.

The facts concerning this article were first revealed in

the summer of 1941, by the government then introducing,

at the trial of the Glass antitrust suit in Toledo, letters ©

between the Hartford ‘and’ Owens* companies, which

were obtained from their ,confidential files by the govern-

ment, and by the testimony at that trial.of Hatch and Nay-

~ lor, employees of those companies, whom: the government

_ subpoenaed and examined. ° Those proofs showed:

On December 11, 1925 a Hartford lawyer wrote to a.

lawyer. for the Owens company, which was then associated

_ with Hartford in the latter’s patent matters, suggesting the

' writing of an article ‘concerning the “plunger gob feedirig

- system” and that “the importance of this matter lies in the

fat the that. we must soon make a record before the Patent

Office in connection with the principal: Steimer.case and also.

"in our Peiler plunger case, where we hope to obtain claims,

. -- Covering the broad ideas of keeping suspended mold charges

shaped by the action. of a plunger’+ (R: 57). The Peiler

case. was the .application for the patent in question,

which at that time had been rejected ‘by the patent office.

This was approved by the Owens people, and, as appears

*Owens. Bottle Company, ioe Oweéns’ Illinois Glass Com-_

pany. -

_tEmphasis ours throughout:

«

ee

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* 4

° * 2 ©

: ‘

from the May 25, 1926 letter of an Owens lawyer (R.

_ ©), Hatch, a Hartford patent attorney, wfote the article

“with the idea of getting it printel under the name of some

- apparently unprejudiced authority, and then calling the

attention of the Patent Office Examiner to the article as pub-

lished, in the belief that the Examiner will thereby be. in-

~ fluenced to a more favorable consideration 6f Hartford's

Hartford in securing these broad claims, and therefore in-

directly interested in having the article published”. Hatch

first asked the president of the Glass Blowers Association,

Maloney, to father the article, and when he réfused, got

Clarke, the ident of the other glass workers union, the -

_ American Fiint Glass Workers Union, to do so (R. 60).

Thi article was published under Clarke's’ namie in the

National Glass Budget of July 17, 1926, this being the

trade magazine for the glass industry, and was then sub- --

mitted to the patent: office, where the patent claims were

"under rejection (R: 60). oe ne, Cee ee EP iat

lowed, the patent issuing. = .

At the trial-in the-district court in 1929 of the. patent

suit against Hazel, thé’ Clarke article was not offered in -

evidence by Hartford, nor was there any mention of it

made during that trial, in testimony or briefs.. However,

the voluminous 745 page patent office history of the patent

was introdttced in evidence as an/ exhibit, and the article

was one of the numerous papers jin that exhibit, which also —

inciuded other ex parte sta ts in books, articles and

affidavits. There never was in the trial court any attempt

by Hartford to’ rely upon the Clarke article, nor even any

- mention of it. The trial judge decided against Hartford, -

cnt

a. ©

nesses before him.

But on appeal, Hatford referred to

{tte towed ia te to he xing —yeet

"in its brief, quoting ‘from it, with the hoped for result of,

goleening Gie stints of ot Test a’ majority of the court, 00

that the evidence in the record and the findings Of the dis-

trict court were rejected <aipeabecaaren tary" coma

_ Statements of union officials. -

The eptafen of Jotge Dufininen ail (59 F, 24 $99):

*. “As we head indicated, the labor organizations

- were vitally intefested’ in the supplanting of hand

Jook to the proceedings of their several organiza-

tions to find what machine blowérs were of practi-

cal working capacity and ones which they regarded

as supplanting king blowing. We can therefore.

and do, rely on their opinion in‘ that regard, for

successful machine. blowers largely spelled ending

of the supremacy of lung ing.’ In an- article

oy by the president of one of these unions, he —

said:” (p. =) e,

° tt is interesting to, note that in Gis teneantien seat

- the trade, these labor organizations of practical

workmen, recognized the’ fact * * * In that respect

the article already quoted” (p. 403)

“When the change was made, its significance was

at once recognized by the glass workers in words

which were used by one president of the Glass

| ete“ Union and. repeated by" enother fas fol-

2” (p. —)

aad —

. &

by mechanital blowers, and we naturally ~ .

.

oe -— die ee

.

>

s*

7 matter of this suit.” (p. 404) ©

blowing art here involved, we regard Owens and

Brooke as the only devices which caused any con-

-“The periodic, separated, individualized mold forms

' process and its contrast with the continuous feed

_ Stream of the earlier art are described by the union

“In point of fact, the arene operators who

. worth.and alleged pertinhence.is based on fiction with-

“And-where an art, eager for relief, found in these ’

. moribund patents nothing to meet that suggested

~ judgment, attitude, and conduct of the glass trade

6

_. “We shall later see that in these few words. this

practical. glass blower official summarized the novel

characteristics of the machine which is the subject-

“In the siento work of that part of the glass- :

cern to the Glass Blowers’ Union, Whatever steps

other inventors took, tertain it‘is they had no effect

so far. as supplanting hand hlowing’ by machine

blowing.” (p..406). | |

or gobs discharged by this current-intercepted

official just referred to * * *" (p. 407.).

were threatened with annihilation by the Owens

device, found nothing in’ this. swarm of alleged

patent anticipations to relieve them,.and the labor |

conventions asserted; as they did, that none of these .

alleged prior devices had any effect. We may safely

assume these futile devices did not enter into the

situation then and should not now, becatise their”

out support of fact.” (p. 412).

solution, it is safer to rely evidentially on the then

. rather than on the post litem testimony of experts,

the contentions of infringers, and the theoretical

_ construction that often tempts courts to create out

’ of lifeless patents an ‘imaginary machine on paper

which a working art could not do in steel” (p. 413).*

Upon the opinion coming down, the Hazel Company ei- |

deavored to obtain proof that the Hartford Company was

responsible for the article. Hazel had been told in 1929 by. |

‘the Woods,’ Cincinnati law yers, that Clarke in 1926 and

Hatchgn 1928 had separately said to them that Hatch had

written the article, but’ this: was purely hearsay, and,

further, there was no suggestion that the Hartford and -

Owens concerns had authorized this action ta influence the

patent office. However, the Hazel Company employed a

McCarthy firm of investigators, McCarthy immediately

communicating with the Woods, Maloney who was the first -

‘labor official whom Hatch asked to sponsor the article, and -

then Clarke. But he did not sce Clarke until after Hatch

had gone to Toledo and seen Clarke on May 10. On May 13;

_ when the Hazel inv estigator did see Clarke in Toledo, the

latter insisted that he, not: Hatch; had written the.article,

and when confronted with Wood’s letter that Clarke in .

- 1926 had said the'contrary, declared he had no recollection

- of so saying (R. 32). However, Clarke did say he had

some records which he would show McCarthy at the next

_ interview. On the same day, and undoubtedly after this

‘interview, Clarke telephoned to Naylor of the Owens Com-

pany, who telephoned to Hatch. (R. 61,.62), and when on

May 24th McCarthy again saw Clarke, the latter refused

to produce the records, refused to. “sign any statement at

*The majority ‘of the court below shoes that the Clarke -

article was not material to the decision (R. 240), but Judge Biggs ae

show ' aad _* this is not so (R. 255- 260). ,

e

8

the present time regarding the circufMmstances under which

the article was written”, and said he had “worked on that

article for seven weeks before.1 signed it in Philadelphia” .

and “I wrote that arti¢le in the interest of the general pub-

lic” (R. 34, 35). On July 22nd Hatch paid Clarke $500,

and on August 11th paid him $7,500, both payments being

by cash and’ not by check (Hatch, R. 55, 56, iid and

Clarke told Hatch,

“he felt. that we were sinter a certain itieeen: to

him on account of the work that he had done in

connection with this Clarke article, and ether things;

‘he had been bothered somewhat a is ema

(Hatch, R. 53). —-

‘The payment was in 1932, six years after the article

appeared in a 1926 isstie of the National Glass Budget. °

The majority opinion (R. 244) ‘says that the Hazel

investigator did not interview Hatch, the Hartford patent ©

attorney, to see if he would contradict Clarke, but this

would have been a vain task, as Hatch was then and is

still in Hartford’s employ, and both. still insist that it was

Clarke’s article except for a few unimportant details.

Hazel in 1932 had only the oral statements of the Woods -

as to what they remembered had been told them in. 1926

and 1928, and that Hatch had transmitted the article to

the magazine for publication. This was plainly insufficient,

especially on. a motion for rehearing after the thorough

consideratiog which had been given to the case by the threé

- judges, as evidenced by the majority and the dissenting

opinions. In Ward v. Ward, 2, Cit., 149 Fed. 204, a motion

' to stay a mandate was denied “if for-no other reason be-

_ cause the alleged newly discov ered evidencé is merely hear-

say testimony, and would-be inadmissible if objected to, and

"9

entitled to no weight if received without objection”. The...

minds.of the judges had been poisoned, as shown by ‘what: ;

later transpired in the Shawkee case, where the Shawkee

defendants petitioned the same court for rehearing on the . .

ground that the Clarke article had been instigated and pub-

lished by Hartford (infra, p. 12).

Faced with this situation, Hazel decided to make the

' best terms it could with Hartford, entered into a July 1932

license agreement with it, and on August 2, 1932, a decree ’

was entered: in the district court: in accordance. with Judge

Buffington’s opinion. |

In the summer of 1941, the trial uf the G lass antitrust

‘case in Toledo, which case is now on appeal to this: Court,

disclosed for the first time to Hazel the newly discovered ~

evidence here relied upon, and on November 19, 1941,

Hazel filed a petition in the court of appeals for leave

to file a bill of review in the district court, that-its decree

might be vacated, on the ground of newly discovered evi-

dence of material fraud. a

Acting upon the Hazel petition, the third circuit court

of appeals on December. 29,. 1941 filed an opinion stating

(R. 169):

“In view of the fact that it ts alleged that fraud

was practiced upon this court rather than upon the

court below, this court will adopt the practice fol- .

lowed by the. Circuit Court of Appeals for the Sec- -

ond Circuit in the companion case of Art Metal .

Works, Inc. v. Abraham & Straus, Inc:, 107 F.

(2nd) 940 and 944, certiorari denied 308 U: S. 621,

and itself pass upon the question of whether the

mandates of this court should’ be recalled and the —

cases reopened. Accordingly the prayers of the peti-

10

tions as —— are denied but leave: is granted to

the petitioners to amend the prayers. and to’ petition

‘this court to set aside the judgments heretofore. en-

tered in this court, on the ground of-fraud.— The

-plaintiff-appellant will then reply to the petitions-for

review as amended and the questions involved will

be heard and determined’ by this scat

On January 6, 1942: Hazel filed an ni amendubent to its

petition, in accordance with the above suggestion, as fol- :

lows (R. 173): 7 |

mea ‘That this Court, on the ground of fraud,

_ vacate, set aside and annul its decision and decree

‘entered on or about May 6, 1932, reversing the de-

cree of the district court for the western district of

Pennsylvania ; recall the mandate.issued pursuant to

said decision and decree, and vacate, annul and set

aside all proce¢dings had pursuant to said mandate,

including the entry of the final decree filed in said

district court on or about August 2, 1932; reinstate

the decree of said district court entered on or about

March 31, 1930; and restore this cause to the. docket

of this Court for reargument upon the original

briefs filed herein or upon such supplemental briefs ~

: as the parties may wish to file, and fix the time for

* the filing of such briefs and reargument.

“2. For oleh ‘other and further relief as may

be just, including such relief and leave as may be

appropriate to take proceedings in this Court or in.

said district court for setting aside and vacating on

the ground of fraud said decision and decree of this

Court, and the proceedings had and decree entered

in the district court pursuant to the mandate of this

Court issued on its said: decision-and decree”.

ie ee 11

Thereafter the | court of ee heard- the matter on

the: petition as amended, and on June 30, 1943 made the.

Fassia msn

__ decision. here complai $<

As appears from the: opinion of the court sale, there |

was a similar proceeding brought by. the Shawkee Manu-

facturing Company, and others, based on the same grounds,

_.and which the court also decided in favor of Hartford; on

‘the same grounds that the court decided against Hazel, 1.e.,

lack of power to grant the requested relief, immateriality

of the fraud (found by both opinions to have been practised

by Hartford), and laches. The Shawkee defendants also

are petitioning this Court for a writ of certiorari, and the

questions. presented by that petition are the same.as the one

here presented with respect to the power of the court below

and the materiality. of the fraud, and similar as to laches.

The majority of the court held that a court of appeals

‘is without power to remedy a fraud practised’on it, after

the term las expired. The reasons why this is not so are

stated in the dissentiag opinion of Judge Biggs.

The materiality of the fraud depended upon whether |

the fraud affected the decis! ion of the court, and the evi-

dence 6n that point consisted .of the opinion of Judge Buf-

fington, which ‘seemed to Judge Biggs, as it does to us, to

establish the materiality, although the sss ain of thecourt

below thought it did not.

As for laches against Hazel, the original deitatins by ee

the court of appeals in favor of Hartford and against Hazel

was in May,-1932, at which time’ Hazel believed, on. the

- basis of some hearsay, that Hartford had written the

Clarke article, but had no proof sufficient for the granting |

ofa rehearing hor. a reasonable prospect of getting any, - j

especially as all the evidence was in the camp of the enemy.

' Shawkee was in substantially the same position'as Hazel.

: on the basis of that court’s decision in the ‘Hazel case.

_then denied Shawkee’s petition for certiorari; 292 U. S._

640; and after further proceedings in‘ the case, Shawkee

peals was filed about the same time as’ the Hazel petition,

12

The suit against it was also in the third circuit, being filed

in 1933, and was.decided by the court of appeals on Janu-.

ary 11, 1943, Shawkee v. Hartford, 68 F. 2d 726, largely.

Shawkee ‘prior ‘to such decision was advised that Hartford

was responsible for the Clarke article, but had no more

proof than Hazel had had. However, Shawkee presented

this, and other matters, to the court of appeals: in a petition |

for rehearing which was denied, 73 F. 2d 1013; this ‘Court

also took a license from Hartford. Like Hazel, Shawkee

had-no knowledge of the proofs introduced by the govern-

ment in. the trial of the antitrust suit before they were in-

troduced. |

The Shawkee petition to the third circuit court of ap-

and the proceedings and results i in the Shawkee and Hazel

proceedings. in the court below, as~ to which the present

petitions by Shawkee and Hazel are directed, have been the

| iii Presented.

1. Did the court of’ appeals for the. third circuit —_ !

us the power to remedy a fraud practiced upon it, after the

: term of court, in which the cecmion abtained by fraud 1 was

made, had expired? aN. ‘

2. Whether the fraud practiced tipon that court was

| material to_its seamneaee!

cr ]

13

3. Was ii laches by petitioner in icine to that

court the evidence which established the fraud, which

should have prevented the court from setting aside its for-

* mer decision in favor of Hartford that the patent was valid

and of broad scope? )

Rensons Reied Upon for the Granting of « Writ of

é 0 Certiorari.

oo

1. The insti of the circuit court of appeals for the :

-third circuit, that a court of appeals lacks the power to cor-

rect its decision. obtained by fraud practised on ii, after the .

term of court, in which the decision was made, had expired,

is in conflict with decisions of the second circuit court of

—

2. The third circuit court of appeals has decided an im-

portant question, concerning the power of gircuit courts of

appeals to remedy frauds practised on them, in a way which

is in conflict with the applicable decisions of this Court.

.3. The question of whether or not circuit courts of ©

appeals have such power to remedy frauds practised on

them, when there has been no fraud in the court below,

is 4 jurisdictional question of great importance to the ad-

ministration of justice that should be settled by this Court.

4. The decision by the court below in refusing to re-

examine and’ decide ‘the validity and scope of the alleged

inventive work by Peiler, which was a matter of great

public importance, was wrong, constituted palpable error

- apparent on the facé of the-opirtion below, and should be -

. corrected. .

WHEREFORE, your petitioner respectfully prays that a

_ writ of certiorari be issued’ under the seal of this Court

- - .

° FS

directed to the United States Circuit Court of Appeals for

the Third Circuit, commanding said.Court to certify and

send go this Court, on a day to be Wesignated, a full and. °

complete transcript of. the record ‘and all proceedings of

the Circuit Court of Appeals had in this case, to the end

that this cause may be reviewed and determined by this

Court; that the judgment of the Circuit Court of Appeals

be reversed ; and that. petitioner be granted such other and

further relief as amy seem Proper.

—— H. Pune,

Henry R. AsHTOon, - ;

OC? inh Counsel for Petitioner.

September, 1943. -

mee FOREN Ra Wao SOO ee

15

IN THE

3 SUPREME COURT OF THE UN ITED STATES ©

’ Hazet-AtLas GLass CoMPANY; ee

2 Petitioner,

vs.

Hartrorp-EMPIRE CoMPANY,

Pusan Respondent.

BRIEF IN SUPPORT OF PETITION § 8 —«»_—

y

Opinions of the Court Below.

The opinion of the circuit court of appeals for the

third circuit, and dissenting opinion, are in-the record

_ (R. 240, 251), and are unofficially — in 58 U. ae

P. Q. 348, 355.

The date of the judginent is Tune 30, 1943 (R, 266).- |

_ The statute under which jurisdiction. is invoked is Section

. 240(a) of the Judicial Code, 28 U. S. C., Section 347, as

amended. | .

Cases believed to sustain ‘he jurisdiction are Powers.

Kennedy Contracting Corp. v. Concrete Mixing, etc., Co.,

282 U. S. 175, 176; Saranac Automatic Mach. Corp. v.

Wirebounds Patent Co., 282 U. S. 704, 705; U. S. Indus-

16.

trial Chemicals v. Carbide « and Carbon Chemicals, 315 U.S.

_ 668, 669; Southland Gasolene v. Bayley,319 U. S. 44;

and Aguilar v. Standard Oil, 318 U. S. 724, 726, where .

there were conflicts of decisions. Also, this Court has

granted certiorari where there was no conflict, but the .

questions presented were important, De Forest: Radio Co.

_ v. General Electric, 283 U. S. 664; Muncie Gear Works v.

Outboard Marine & Mfg. Co., 315 U. S. 759; Williams.

Mfg. Co. v. United Shoe Machinery, 316 U. S. 364; Sola

Electric Co. Jefferson Electric Go., 317 U. S. 173; Rey-

nolds v. United States, 292 U. S. 443; Southern Railway '

Co. -v. Walters, 284 U. S. 190; Armstrong Co. v. Nu- -

Enamel Corp., 305 U: S. 315; United States v: Socony-

Vacuum Oil Co., et al., 310 U. S. 150; Exhibit Supply Co.

Vv. Ace Patents Corp., 315 U. S..126, ete.

Statement.

_ The facts, so far | as this application i is concerned, are

sufficiently stated in the eee ‘

| Specification of Errors.

~ The errors which petitioner will urge, if-a writ of cer-

tiorari is granted, are.that the majority of the circuit court

of appeals for the third ‘circuit erred in holding: ,

1. That the court of appeals for the third ‘circuit did

not, -have the power to remedy a fraud practised upon it

after the term of court, in which the decision obtaitied by

the fraud was made, had expired. - ae

2. That the fraudulent Clarke article upon which that

-* court relied was not material-to its decision.

17.

3. That there was laches by petitiones in presenting

-to that court’ the evidence which established the fraud, and

that such laches prevented the court from setting aside its

former decision in favor of Hartford that the patent was

valid and of broad scope.

Summary of Argument.

The points of argument follow the reasons relied upon

for the allowance of the writ.

Argument.

« .The merits of this case are presented in the majority

| and dissenting opinions, and. also in the petition! (supra,

* pp. 2 to 12). : ,

‘ POINT I

: There i isa a conflict between decisions of circuit courts of

appeals. :

The conflict between the. dieslehone of the circuit court

of appeals for the third circuit and the secOnd circuit is

direct and:complete. The second circuit court of appeals |

held that a court of appeals had power to correct its errone-

| ous ‘decision, obtained by fraud, after the expiration of the

term during which the decision was rendered.

The sécond circuit court of appeals in the 4rt Metal

cases, 107 F. 2d 940. and 944, considered in 1939 attacks

‘upon their prior judgments entered in 1934, which was

long after the terms in which the judgments were made

had expired, and set them aside on the ground of newly

discovered evidence of fraud practised upon the court.

* \V

\

—

In’ that case, the fraud consisted’ of one of thé partics

biasing one of the three judges, so that the hearing .and

decision were not fair. The orders entered by the court

‘in 1939 setting aside the former judgments and restoring

ae ca ae ee ‘ete., are in the

record (R. 175, 177). The only. difference between the

Art Metal cases and the present case is. the immaterial

one that.in the Art Metal cases one of the judges-was a

» conscious party to the fraud, whereas in the present ease

_. the two judges prejudiced by the fraud were unconscious —

‘of it. However, the prejudicial effect of the fraud was the

same, Viz., to prevent a fair hearing. Thus the decisions

are substantially re

18

There is a conflict with decisions of this Court. _

The decision of the third circuit court of appeals is®

in conflict with U. S. v. Throckmorton, 98 U. S. 61, and

Marshall v- Holmes, 141-U. S. 589, which decided that a”

judgment obtained by fraud may be set aside after the

- term in which the judgment was entered has expired.

In the Throckmorton case, the bill to set aside a decree

obtained by fraud was filed more than 20 years after the

decree was rendered. This Court said “There is no ques-

tion of the general doctrine that fraud vitiates the most

solemn contracts, documents, and even en : (p. 64),

and that such a-bill will lie

“in cases where by reason of something -don® by

the successful party to a-suit, there was in fact no.

adversary trial or decision of the isstie in the case.

Where the unsuccessful party has been prevented.

- J

titan sabia Seph tte can, by uel x ecig’:

tion practisc > on high by ‘hie oqpenent, otc.. relief

has been granted” (pp. 65, 66).

The ground for this is

=" Wnt te canie Sagat gaiitert, Goal} igen the

: party seeking relief against the judgment or decree,

-that party has been’ prevented from presenting all

his case to the court. =e

“On the other hand, the doctrine is ‘equally welt

settled that the court will not set aside a judgment ;

because it was founded on a fraudulent instrument, .

or perjured evidence, or for any matter which Wwas

ae eee:

‘ mee, &- is)

The fraud “practised directly upon the past?” has come

to be called “extrinsic” fraud, and the second kind 6f fraud ”

* “intrinsic”. The distingtion is nice, and its soundness has

_ been questioned in textbboks and by the courts. Publicker

-v. Shallcross, 3 Cir., 106° F. 2d 949, 951; Purk V. Park,

5 Cir., 123 F. 2d 370, 372; Raymond v. Wickersham, ;

_ CCPA., 129 F. 24 522, 526; Brady x. Beams, 10 Cir., 132

F. 2d 985, ‘986. In this last decision, the court said that the

line of distinction between intrinsic and extrinsic fraud—

ed

“is sometimes indistinct and difficult to draw; dia-*

lectic niceties have sometimes been used in an effort

to blueprint it; and tenuous differences have occa-

sionally been sketched. Broadly stated, fratid’prac-

ticed by a successful litigant which prevents his un-

successful adversary from fully exhibiting his ase,

such as wrongfully preventing him or bis; matefial

witnesses from attending the trial, inducing his

attorney to professional delinquency or infidelity in

r

ig.

- ° .

e

-

.

#

connection ‘with the case, or some other similar act,

unmixed with fault or negligence on the part of

the losing party, constitutes extrinsic or collateral

fraud; and the introduction of perjured ‘testimony

or forged documents, or other cognate matter, which

is actually considered in the judgment constitutes

intrinsic fraud. United States v. Throckmorton,

_ supra; Vance v. Burbank, 101 U.S = 25 L. Ed.

929.” dine :

Marshall v. Sahin, 141 U. S. 589, appears to over-

_tule the. Throckmorton decision, because the fraud in the

Marshall. case was “intrinsic”, consisting of “false testi-

mony and forged documents” (pp. 590, 592). The suit

was to set aside a judgment, because of such fraud, and

was filed in a Louisiana state’ court, after. the term had -

expired. The plaintiff petitioned for removal to the federal

court; which was denied and the decision was against the

plaintiff, a writ of error being then -prosecuted to this

_ Court. It was said by this Court (p. 601) ‘that the trial

~ court might grant relief

“by reason of the-fact, distinctly alleged, that some’

of the necessary proof establishing the’ forgery of

the letter was discovered after the judgments at law

were rendered, arid after the ‘egal delays within

which new trials’ could have been ‘obtained, ‘and

‘could not have been discovered’ by her sooner.”

The. inconsistency between this decision and that in

_ © the Throckmorton case is pointed out in Publicker-v. S hall-

cross, 3 Cir., 106 F. 2d 949, 951.

“-* However, whether there be a substantial and workable

* difference between “intrinsic” and “extrinsic” fraud, there

was extrinsic fraud in the present case,

21

In the present case, the fraud was “extrinsic”, because

Hazel was prevented “from exhibiting fully” (Throck-

morton opinion, supra) its case. The fraudulent Clarke |

article was not considered in the judgment of the district

court, and, indeed was not before that court as evidence.

Hartford introduced the Clarke article into the trial against

Hazel as an apparently imnocent part of the voluminous:

patent office history of the Peiler patent, but did not offer

the article itself nor make any mention’ of it in the trial

court. There was nothing for Hazel to meet at the trial.

By this action on the part of Hartford, Hazel could not

_ attack the Clarke article in the court of appeals when

Hartford there for the first-time called attention’ to and

relied upon it, on any ground other than its incompetency:

as proof of the truth.. After. the apparently innocent and

disinterested article’ had been read by Judges Buffington

and Davis, whose minds it poisoned, naturally they ignored

the technical although sound argument by Hazel that it was

‘incompetent. Fa

In addition, Hazel was prevented, after eli Buffing-

ton’s opinion appeared on May Sth, from obtaining proof

that Hatch of the Hartford Company, ‘and not Clarke,

had written the Gcaeiee article, by Hartford getting. first to:

Clarke.

So, even if the Throckmorton tule be applied, instead

of the Marshall v. Holmes statement, the court “below

should have set aside the fraudulently obtained decision,

and its failure to do so was in conflict with both.

oe

. ..

P .

» |: 22.

* ..

POINT lll

Whether or not circuit courts of appeals have the power

to remedy frauds practised on them by setting aside their

former decisions, when there has been no fraud in the

court below, is a jurisdictional question of great ‘impor-

tance to the administration of justice that should be settled |

tal this Court. :

_ This question has never been decided by this court and

its importance to the orderly administration of justice is

apparent. ;

Where, as here, binud 1s 3 practised on a circuit court

- of appeals, and there has been no fraud in the court —

below, it is clear that the aggrieved party is deprived of a _

fair hearing unless the court of appeals has the power and

jurisdiction to inquire into the fraud. mi

As stated by Judge Biggs, in the dissenting opinion

below:

“The significarit fact is that: the fraud was worked

upon a appellate tribunals” (R. 253). |

And:

“Fhe fraud is one which was worked, as I have

stated, upon-our appellate jurisdiction. It came

within the ambit of this court: on appeal. That

fraud-can be relieved.of only by the exercise of our |

appellate jurisdiction precisely ‘as the fraud worked

upon the Court of Appeals for the Second Circuit

can be ¢ured only by that tribunal. If we do not

exercise our-jurisdiction the petitioners will be with-’

out relief from the fraud practiced upon this court.

If fraud effected our decree at No. 4414, this court

, as a matter of justice should grant rehéarings both

at No. 4414 and at No. 5203” (R. 255).

:

os

POINT IV

The decision below, on a matter of great public im-

portance, was wrong and constituted palpable error ap-

‘parent on the face of the opinion. .

The 1932 decision’ of the-circuit court of appeals held

that Peiler, the Hartford patentee, had made great, revo-

lutionary inventions in the glass industry, and sustained

his patent which was before* it in the-suit as being valid

and entitl¢d to a broad scope. This judicial appraisal of |

_ what Peildr had done was of great importance, not only to

the litigants, but also to the public generally, because thereby

the Hartford patent rights: were strengthened for use®

against other manufacturers or users of the kinds of ma-

chines complained of. And this extended not only to the

‘ particular Peiler patent betcre the court, but: also to other

Peiler patents. In Hartford. v. Coe (1936) C. C. P. A., 87

F. 2d 741, a Peiler application for patent was allowed, of the

same general nature as the patent here involved, the circuit

court of appeals for the district of Columbia citing with

approval Judge Buffington’s opinion, especially that part

'.in which he quotes the words of “the union official” (p.

743). Thereby, the Hartford Company obtained the issue

in 1937 of a patent on a Peiler application filed in 1914, and

which patent is even broader than the Peiler patent here

in question.

As gan in the dissenting opinion below by Judge Biggs

- ( R. 265):

“there is a vduty to protect the public from an unwar-

ranted monopoly imposed by a patent. Quite aside .

from this, however, we have the duty to preserve -

the integrity of our appellate jurisdiction against

fraud. ..As I see the facts, action’ upon that duty is

clearly imposed upon its by the petitions at. bar.”

24

To hold, as did the court below, in a matter of such

public importance, that it was without ypower to remedy

a fraud practised upon it constitutes error apparent on the

face of the opinion below.

| The certiorari jurisdiction of: this eourt is- “coextensive

with all possible necessities”, Forsyth v. Hammond, 166 °

U. S.- 506, 514, and the ‘eiaiilaats establish the propriety

of the issuance of the writ where the, decision of the circuit’

court of appeals is untenable on its face. See Reynolds v. -

United States, 292 U. S. 443, 446,447; Southern Railway

Co. v. Walters, 284 U. S. 190; Stringfellow v. Atlantic

. Coast Line R. Co., 290 UW: S. 322,-326; McCandless v.

| United States, 298 U, S. 342. And the use of certiorari

jurisdiction to correct error of this, character is recognized

by.the rules of this Court (Rule 38, par. 5(b)). It is

founded upon the fact that it is in the interests of the law,

not merely the interests of the parties, that decisions of

_ lower federal. courts shall not be permitted to stand un-

corrected where there is-on the very face of the opinion

written to support the — the — that i in law

the judgment is wrong. ,

In the interests of due administration of justice the

patently erroneous decision of the court below should not

be: permitted to stand. :

,

Summary |

The opinions below show plainly that’the majority of

the court of appeals were W NTOng. with respect to their.

conclusions.

A court has inherent pow er to vindicate ‘nit protect its

existence and powers, and. where’a fraud upon it resulted’

. ina decision of importance not only to the parties, but to

Vv

y

the public generally, as is trué of patent eases, the court

has power to set aside the fraudulently obtained judgment

at any time thereafter.

The fraudulent Clarke article poisoned the inlets of

Judges Buffington and Davis, with the intended result that

they disregarded the findings of the trial court’ that the

_ prior art so limited the Peiler patent that it was not in-

fringed. This plainly appears from a reading of Judge

Buffington’ S opinion, as pointed out in the dissenting

| opinion below of Judge Biggs. — 2

There was no laches on the part of either Hasit or of -

_ Shawkee, because, although they suspected and believed |

that Hartford was the author of the article, and Shawkee

even so represented to the coitrt of appeals in its case,

neither Hazel nor Shawkee had any proofs to such effect

until they were brought. out in the government antitrust

. suit in Toledo, three months ‘before Hazel and Shawkee

filed their respective petitions in the court beléavs . As stated

by-Judge Biggs in the dissenting opinion below:

.. “Knowing that something is the fact and possessing

the ability to prove it are two very different things”

(R. 261). ;

The petition for a writ of certiorari to the circuit court

of appeals for the third circuit should be granted.

ag Respectfully submitted,

STEPHEN H. PHILBIN,

Henry R. ASHTON, ©

Counsel for Petitioner.

September, 1943.