# Petition for Writ of Certiorari — Hazel-Atlas Glass Co. v. Hartford-Empire Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0011%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1944 - **Citation:** 322 U.S. 238 ## Text FILE Cory 4 : Bagh 2y 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. a = a — 44“ \ Senter ech eeewe ss ee ee eee Lea , or , : 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 | - $22, 326 .:....... SUALULE MARA WN brah Ree meea 24 ~ Uz a. Industrial Chemicals v. Carbide and Carbon | _ Chemicals, 315 U. S. 668, 669 2.2.2.2... 50.0005 15 United States v. er Oil Co., et al., 310 ' a Oe OEE ee errr rr rere ee 16 U.S. v. Throckmorton, 98 U. S. 61, 64, 65, 66 ..18, 19,21 Ward v. Ward, 2 Cir., 149 Fed. 204.........0..206 (8. Williams Mfg. Co. v. United Shoe Machinery, 316 \ os O.....3 ae ene ruayiereaeneas 16 STATUTE CITED Sec.’240(a), judicial Code, 28 1 U.S. £., Sec. 347, as. amended ACR atc ae Lee cae ae cama ices ‘15 ~~ -/ - . - F ’ IN THE - typ ae Supreme Court 1 uf the Anited States. : _Ocroser ‘ERM, 1943. — 4 _ No. HazeL-ATLAS. ‘GLASS Company, ; ’ Petisioner, US. Hartrorp-Empie CoMPANY, ~~ Respondent. PETITION FOR WRIT OF CERTIORARI TO THE’ _ CIRCUIT COURT OF APPEALS FOR :- THE THIRD. CIRCUIT To the Honorable the Chief Justice and Associate Jus- tices of the Supreme Court of the United States: Hazel-Atlas Glass Company’ respectfully petitions for a writ of certiorai dirécted to the circuit court of appeals for _ the third circuit, to review a judgment of that court entered __ on June 30, 1943 (R. 266). The opinion of the court, filed on the same day, by Cireuit Judge Jones, Circuit. Judge .. Maris‘concurring; and a dissenting opinion by Circuit Judge ° : Biggs, are in the record (R. 240, 251), and are. — ares S. P. Q. 348, 355. _ . iF. 2d 111 (per Judge Gibson), ‘The third tircuit court of . - 2) A transcript of the record in the case, including t the pro- ceedings i in said court, i$ 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 Ew * 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 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 $ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0011%3A02. Public record. Not legal advice.