Reply Brief for the Petitioner — Hazel-Atlas Glass Co. v. Hartford-Empire Co.

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In THE

Supreme Court of the United Ptates

Oc TOBER TERM, 1943.

No. 398

HAZEL-ATLAS GLASS COMPANY,

Petitioner, —

. US.

HARTFORD- arene. COMPANY,

Respondent. -

Ox Writ oF CERTIORART TO THE CIRCUIT COURT OF

APPEALS FOR THE THIRD CIRCUTT.

‘REPLY — FOR PETITIONER ys,

STEPHEN H. PHILBIN,

Henry R. Asiton,

i : ; ~ Counsel for Petitioner.

February, 1944.

‘PAGE

eur Il—The Clarke Article Biased the Court and

Prevented a Fair Hearing on. the Competent Evi-

Dt cétetsesdivesgceaed Oblcodsuabécesbannsss S«

PoINT 11I—The Court Below Erred in Holding There a,

Was Lack of Diligence ..... < Jaasagbiccrarcasesnes 5

Point IV—The Court Below Should Have Set Aside

_ Its Judgment Although the Term i in Which It Was

~Entered Had’ aegis bot. ER, ait ay eee 9.

cia heeaaleendesceesaswdesteiiet ee iF

CASES CITED Z

Densmore v. Scofield, 102 U. S. 375, 378...0.....2. 13 ©

Hartford v. Coe, 87°F. (2d) 741 (Ct. App. D.C.).- 13

Kendall v. Winsor, 62 U. S: 322, 328....... ics scot ae

Marshall v. Holmes, 141 U. S. 589..........2.+- ..9

Merrimack River Sav. BR. v. Clay Center, 219 U. S.

i as oo a a sane da abictanlesle tos 10

Morton Salt v. Suppiger, 314 U. S. 488, 494........ 13.

ToledoCo. v. Computing Co., 261 U. S. 399....... an | ot

U. Sv. Throckmorton, 98 U.S. 61..........0045. 9

4

In. THE

Supreme Court of the Huited States

, OcTosEr: Term, 1943.

‘Hazet- ATLAS GLass ComMPANy,

Petitioner,

a No. 398.

_. HartrorppEMpire Company,

“ ) | Respondent.

REPLY BRIEF FOR PETITIONER ;

. T he’ ‘cloning comments upon Ps eeererd s brief may

-be helpful.

POINT I.

_ THE CLARKE ARTICLE WAS FALSE AND FRAUDU-

LENT.

: 2

Although respondent asserts that the Clarke article was

true (brief, pp. 10, 43) and suggests that it was not fraud-

ulent, but merely a proper “ghost-written article”, the Hart-

ford.employee, Hatch, who wrote it, being referred to as

“a ‘ghost-writer’ ” (brief, p. 45), the facts which establish.

its falsity and fraudulent nature are plain.

. It was false, because it did not tell the true story of the

machines and patents in the glassware industry from 1905

to 1925, as it’ purported to do. It mentioned only one prior ©

patent, “United States Patent to Homer Brooke, No. —

2

723, 983, dated March 31, 1903” (article, R. 170), although

there were many others. According to the Hartford brief -

in the court of appeals, it showed that “the Peiler plunger

feeder”, (the subject of the Hartford patent) commenced

competing in 1917 with the Owens suction machines, and

“broke the Owens Domination” (R. 176, 177), which was

not the fact. Contrary to the article, the true story of the

state of the art, including both the numerous prior patents

and the failures of the Martford Company with its paddle

machines until it finally, years after others, installed in

November 1922 a plunger feeder, is stated in the opinion

of the district court, which was based on the competent

_ evidence in the record, including not only many prior patents

but also the testimony of Peiler, the rival inventors, Miller,

and Howard, and others. 3

The. article was fraudulent, because Hartford wrote

it for the purpose of deceiving the patent office into grant-

ing the Peiler patent, by publishing.it ‘under the name of .

‘some apparently unprejudiced authority” (Carter letter, R.

.42), a labor union official, wno was then represented by

Hartford to’ the patent office as a reluctant witness (file-

wrapper history, V App. Rec. 477). Respondent's brief

here (pp. 16, 17) says that there is no evidence that the.

Clarke article procured the allowance of the patent, and

that the article was not mentioned by the patent office ( peti-

tioner’s main brief did not state otherwise). But ‘although

the attempt to deceive the patent office may have failed,

Hartford did successfully use the article in the court of

appeals in the instant case, by reason of its presence in the

patent office proceedings, to achieve the same fraudulegt

effect it was intended it should have on the patent * office

tribunals.

In the trial of the infringement suit, the plaintiff, Hart-

ford, did not offer the Clarke article in evidence or make

any reference to it. Defendant, Hazel, had nothing : to

answer. The article was merely a part of the ‘voluminous

(754 printed pages) patent office higtory ‘of the patent,

which history was. offered by so la properly re->—

ceived to show what occurred in the patent office. There

was nothing for Hazel to attack. y

| But after the trial court had dec for Hazel, on

appeal the Hartford brief (R. 176) relied upon the Clarke —

article and its chart of production curves as showing that

the “Peiler plunger feeder”, i.c., the feeder of thé patent

before the court, had broken the Owens domination. To

.this the Hazel brief replied that the chart (‘the whole ob-

ject of the article is to make an excuse to get the pro-

duction curves and a few statements in regard to gob

feeding into print”, Carter letter, R. 41), was “‘misleading”’,

that it was false because the plunger feeders of others than

Hartford had produced most of the gob-feed ware, and

that it was “incompetent” (R. 177). | |

Respondent’ s brief here (p. 5) says that the ‘iiatiene

of the Clarke article was “unchallenged prior to the pro-

ceedings before this Court”.. That is not so. The sub.

stance of the article’ was that the invention by Peiler o1

a plunger feeder “broke the Owens domination”, as state‘

in the Hartford appeal brief (R»-176). This was denied

in the trial court by Hazel, which offered competent evi-

dence to the contrary, and, after the trial court so found,

argued the same-evidence in the court of ea in support |

of such findings. ;

Respondent’s brief -here (p pp. 4,17 ) says that the Hazel

_ brief undertakes to present many matters from the Hazel -

4

infringement suit, and te refer to the proceedings therein,

although the record in the Hazel infringement suit is not

~ “before this Court” (p. 17); that “The merits of the patent

infringement: suit age not involved here, for obvious juris-

dictional reasons” (-p. 4); that “The filewrapper [otf the

Peiler : patent] is not in this record” (p.. 16); and. “The

Peiler patent is not in this record” (p. 18). But the pres-

ent proceedings are based’ on a petition by Hazel to the

_ third circuit court of appeals “upon the proceedings hereto-

' fore had” and certain affidavits (R. 5), which proceedings

included, of course, both the prior proceedings in that court

and in the district court. The appeal record,’ including

briefs, have been certified to this Court and are now before

it, the history of the’ Peiler patent andthe patent eal

Volume V. of that record. ie :

The “merits of the patent infringement suit” ‘are in-.

volved here, to the extent that it appears that Hazel had

substantial defenses, and that the competent evidence in:

the case, as considered by Judge Gibson-in the trial court

_ and Judge Woolley in the circuit court of appeals, contra-

dicted the Clarke article and required decision for Hazel.

It is entirely proper for this Court to consider those opin-

ions in connection with the opinion of Judge Buffington, and

the Clarke article, in deciding whether the article truth-

fully pictured the feeder situation, and w hether the article

influenced Judges Buffington and Davis. ;

There was no disagreement in the court Delow as to the

nature of the Clarke article. The’ ‘majority said (R. 219)

“‘sordid as is the story concerning | the genesis of the Clarke |

_ article and the deceptive design and use of its spurious aw

thorship”, and Judge Biggs agreed (R. 230 et seq.).

a

a “% Seat | x, 1 Kaos

' a eal gat i” in ° Pee 3 Ce

_POINT Il

THE CLARKE ARTICLE’ BIASED THE COURT AND >

PREVENTED A FAIR HEARING ON THE COMPETENT

EVIDENCE.

This is dealt ‘with in petitioner’ s main brief (pp. ll-

21).. Respondent’ s brief here (pp. 47-53) says that Judge .

~ Buffington’s “opinion was: not based upon ‘the Clarke ar-

ticle” (pp. 49, 52), referring to other matters relied upon

in the opinion. ‘ But beyond question the opinion was based -

in large part upon the Ciarke -articie, as clearly .appears’

from the opinion itself. The extent to which it influenced .

the decision ‘plainly appears from the quotations in peti--

tioner’s- main brief (pp. 18-20). ‘And, if the Clarke article

had nothing to do with the decision of May 5, 1932, why

were Hartford and Owens so anxious concerning what’

Clarke might tell the Hazel investigator, and why did they

_ “follow the matter closely” (Owens letter of May 16, 1932

_ to Hartford, R: 43) nd thereafter pay Clarke because: he

“felt*Hartford was under obligation because of the work

he did on the Clarke:article, and because he was bothered

by investigators” (Hatch, R.” 37)? °°

The Clarke article undoubtedly was a material factor

_ in sustaining. the Hartford patent.

POINT III

THE COURT BELOW. ERRED IN HOLDING THERE

WAS LACK OF DILIGENCE.

The court Siw held that daca was lack of diligence on

the part of the Hazel and Shawkee companies, and, as it. -

‘also held that the public interest was insufficient, reftised

ea %

* : ge i . 6

to reopen’ its 1932. decision for this reason as well as sup-

posed imni#teriality -of the fraud and lack ‘vf jurisdiction.

4. Respondent’s brief here (p. 54) says that during and-

prior to the trial of the infringement suit Hazel had been

told that Hartford had prepared the Clarke article, but did

not attempt to prove it-at the trial. But in that trial Hart-

ford was the plaintiff, Hartford did not offer or in any way

rely upon the-article, and there was nothing ‘for the defend:

ant to. meet.

' After the. opinion came dow n, Hazel proinptly endeav-

ored to obtain evidence that Hartford had written the

article, of which Hazel then had only liearsay information

(Hazel main brief, p. 22, et seq.), but was prevented trom -

‘obtaining anything helpful from Clarke, who, on the con-:

trary, denied what the Woods, lawyers representing inter-

ests adverse to Hartford, were willing to say they remem-.

bered hearing some years, earlier (Hazel maim. briet, pp.

23, 24). | 3

All that Hazel could ie then presented to Judges

Buttington and Davis was some hearsay information that

Hartford was responsible for the Carke article, which

~ would have been opposed by the contrary affidavit of

Clarke. Undoubtedly such presentation would have been

futile. The same court ignored the Shawkee defendants .

when they later attempted to attack the authenticity of the

Clarke article (Hazel main brief, p. 25), their counsel writ-

ing Judge. Buffington “that the correspondence sent to your

Honor * * * clearly shows that the publication of this

article in the Glass Budget was instigated by the ingenious

e brain of Mr. Hatch, one of the plaintiff’s attorneys” (R.

84), and in a still later suit in F lorida the same attack was

ignored by the court (R. 55, 190).

&

=

t

7

The chances of Judges Buffington and Davis reversing

their decision because of what Hazel then knew concerning

the Clarke ‘article were practically zero. Their minds had

been poisoned so that they were convinced that Peiler of

the Hartford Company was a real inventor, as is evident

from their opinién. They would have regarded the hearsay

affidavits of the Woods, hostile to Hartford, as of little if

any weight, compared to an. affidavit by Clarke, who un- .

doubtedly would have,sworn that he had written the article,

as he was then saying to McCarthy, the Hazel investigator

(R. 20, 22, 24, 25). And there was the further burden of

_ convincing Judges Buffington. and Davis that the article-

- Was material to their decision. Their attitude in the Shaw-

" kee case clearly showed their prejudice towards the Hart-

“ford position.

There is no dispute that neither Hazel nor Shawkee had

_ the documentary evidente and oral testimony, produced by

the government in the anti-trust trial in the surnmer of

1941, that the article was w ritten “to obtaify claims” in the

patent office for the patent in. suit (Hartford letter, R40),

to be ‘ “printed under the name of some apparently unpreju- -

diced authority” (Carter letter, Rk: 42), the other. exhibits

reterred to in the Hazel petition, and the testimony of Hatch

concerning his dealings with Clarke after Judge Buffing-

ton’s opinion (Hazel main. brief, P- 26).

2. ecncindiin, in addition to denying that there was

diligence on the part of the Hazel and the Shaw ‘kee fetition-

ers, says also that the patent infringement decisions which

Hartford obtained against them can not be set aside because

of their “elections”, which seems to us is merely another

way of saying that they were not diligent.

8 |

With respect to Hazel, the Hartford brief asserts

as its Fourth Point ‘Petitioner is barred, from ‘seek-

ing the relief for which it petitions, by its own election to

settle its controversy with respondent”, etc. (brief, p. 67).

In, Hartford's brief answering the Shawkee petitioners,

the Fourth Point is “Petitioners are barred by their! ‘own

election from seeking relief” (p. 26). In both cases, the

underlying argument is the same, namely, that the peti-

tioners elected ‘to abide by the respective decisions against

them and, therefore, notwithstanding ‘the new evidence,

shorld not be permitted to ask relief from ‘those decisions.

Y

3. In connection: | with its lack of diligence and election

points, the Hartford brief refers to a 1932 cross-license

agreement between Hartford and Hazel (brief, pp. 21, 56.

68), and matters related to it, although they are not perti:

nent to the issues in the present proceeding, which is di-

rected solely to the 1932 judgment of the circuit court of

-appeals sustaining the Hartford. patent. The only question

is whether that judgment should be set aside. if not, it’

will stand on the records as very strong evidence. that the

Hartford Company contributed much to the practical n-

dustry of glass container manutacture, contrary to th

fact. —- ss ‘\

Respondent's brief here s says that Hazel received ange | \

amounts from Harttord under the license contract (brief.

p. 68), but, in consideration of this Hartford\and its |

licensees under the contract were receiving the benefit of

the use of the Haze! inventions, engineering “know how” -

etc., and respondent does not assert that these were not

substantial nor even that Hartford paid -for more than it

received.

|

9

_ The nature of the 1932 Hartford-Hazel cross-license

agreement, the way it actually worked out in practice, the

rights and remedies of the parties concerning it and such ;

related matters have simply nothing to do with the basic

questions presented to this Court in the Hazel and Shawkee

cases. Those questions are: was material fraud practiced

on the third circuit court of appeals; has it power to cor-

rect such fraud after the term has expired; and was there |

such diligence in presenting new evidence by Hazel and

Shawkee as warranted relief; or, in the absence thereof,

should the court of appeals have so acted. in the public |

interest. |

‘POI NT IV -

THE COURT BELOW SHOULD HAVE SET ASIDE

_ ITS JUDGMENT ALTHOUGH ‘THE TERM IN WHICH IT

WAS ENTERED HAD EXPIRED. .

Respondent’s brief. (pp. 22 to°42) discusses . several

matters which are wholly irrelevant, it seems to us, to the

basic question here presented. ;

“That question is w hether an appellate court,. by’ a pro-

ceeding instituted in it, can set aside its judgment tor

‘fraud practiced on it, after the term has expired. There .is

no doubt that a.trial court can do so, U. S. v. sap

morton, 98 U. S. 61 and Marshall v. Holmes, 141 U. S. 589.

Respondent says that the court af-appeals “lost all j juris-

diction of the case and had no further control .over its

mandate or power to recall it” after the term expired

(brief, p. 25). But it had precisely the same power as has

a trial court, after its term has expired, to reopen the case

for fraud shown, because an appellate court has the same

>

powers with respect . to its appellate functgons as “does.a

trial court with respect. to its trial functions. The stataites

provide that -

“The Supreme Court, the circuit courts of appeals,

and the district courts shall have power to issue all

__ writs not specifically provided for by statute, which -

may be necessary for the exercise of their respective:

' jurisdictions, and agreeable to the usages and prin- -

ciples of law” (28 USCA 377; R. S. Sec. 716).

Respondent is wreng in saying that “The court below,

being solely of appellate jurisdiction, has no power to con-

sider an original bill” (brief, p. 29). It has such power,

to aid or. prevent the impairment of its se juris-

\ diction, precisely as has this Court.

\ In, Merrimack River Sav. Bk.. v. Clay Center, “219

~ \U. S.527, this Court considered an original petition to it

for an injunction to preserve the status pending appeal: to

it, which was heard by this Court upon an order to show -

cause, and held that it had power to issue the injunction.

The injunction was, not issued, because of ‘he show-

ing made by defendants in their answers, but there can

be no donbt that if this Court had been dissatisfied with

the facts so ‘presented, it had the power to r "reitt the case

to a master to ascertain the facts and report. to it. In the

case of In Re Baig, 135 U. S.°403, this Court pointed ott

that applications tovit for writs of prohibition or writs of

mandamus ‘may be disposed of by a rule to show cause

upon affidavits, but, if ot, then “a traverse of the return

[to the writ] was allowed} issues were. made up and a trial .~

had” (p. 431). This Court‘ in that case permitted new evi-

- dence, not before the lower court, to: be introduced, “the

“petitioner being afforded, as he was, the opportunity for

11

destataiiions and the introduction of such other evidence

as he chose to produce” (p. 431).

Ih Toledo Co. v. Computing Co., 261 U. S. 399, the

_-seventh circuit court of appeals issued an injunction against

the prosecution of a suit in another circuit, and,this Court

-afirmed: The’ same- arguments as are made here were

made-there; namely, that “the Circtit’Court of Appeals is

a court of pyrely appellate jurisdiction” (p. 413), but this

Court overruled that contention, stating that- “Under

§ 202* of the Judicial Code, that.court had the right to

issue all writs not specifically provided for by statute which

might be necessary for the exercise of its appellate juris-

diction” and ‘that “it had jurisdiction to, determine. whether

the filing and maintenance of the bill was-in 1 contempt of

its jurisdiction” ‘(p. 426).

In the Art Metals cases, 2 Cir., 107 F, 2A. 940 and 944,

the proceeding » | an original one in the circuit court of

appeals, to set aside a judgment.after its term had expired,

. the judgment was set aside, and this Court denied certiorari,

308 U. S. 621.. In that-case the judgment was voidable,

because one of the. judges was biased by money. In the

present case, the judgment is also voidable, because two of

the judges were biased, by fraud practised on them. Re

spondent says: that the Art Metals judgment was void

and as though ‘‘no judgment had been entered’. ( brief cP

32), but totally ignores the authorities cited in petitioner's

main brief ( p.. 33) that such a judgment is onby voidable,

and fails to cite any contrary authority:

__° Respondent says that a bill can be now filed in the dis-

. trict court, to set aside the judgment, and that such is the

procedure for-petitioner to follow. But obviously such bill

*28-U. S. C. A. 377, supra, page 10.

-- is now before this Court, as it was before the court oi -

12

would be futile now, because it would have to be based on

the materiality of the Clarke article, on the diligence of

petitioner and on the public interest, all of whith the court of

appeals has already decided against petitioner. It wouid

be a vain proceeding. And, of course, whether or not a

suit could be filed in a district court to remedy a fraud

practiced on its court of appeals, certiinly there should be

no doubt of the latter;a-power to undo what it had been

fraudulently i hay do.

Respondent's brief (p. 35, et seq.) says that the (ques

tions involved are such that the court of ‘appeals should net

decide them on affidavits, and that a court of appeals can

not call witnesses. But that .is a miatter of procedure for

the court of appeals to decide. The burden is upon the

moving party to satisfy the court that action- should be

taken. In the present case, the record has been mace and

appeals.. The present question is simple, namely, whether

upon the record here made, the early: judgments sustaining

the Hartford patent should be set aside.

Courts in the exercise of their appellate juriselictionis.

including; of course, this Court, are not barred by the lap»

of time, fgom correcting judgments obtained by fraud upon

them. _ © :

2. CONCLUSION

+

This i is a simple case.

Hartford concocted a*spurious article which it had pul-

lished under the name of an apparently disinterested author-

ity on glassmaking patents and machines. The article was

submitted. with such representation to the pdtent fice.

\

ad - ;

7 8

which thereafter issued the patent. “The patent office pro-

ceedings do not show to whdt extent, if any, the article in-

fluenced the patent office's decision:.

“The article was in the record of a patent infringement

suit brought by Hartford, as a part of the patent office

history, but was not itself offered in evidence or referred. -

to at the trial. Hartford Josing in the trial court, its brief

mm appeal for the first time in, the casé cited the-articie. as :

authority, and the majority of the appellate court accept; *

ing it as such, ignored the competent evidence on» which

the trial court had found mn Hartford, and reversed

thg trial court.

That this was fraud cannot be doubted. $s 1%

Petitioners here, Hazel and Shawkee, both had been told

- that Hartford and Hatch were-responsible for the article,

but did not have proof of such fact until 1940, when the

government produced it at an antitrust trial, and they im-

mediately. thereaffer presented it te the court of appeals, . °°’

They were diligent, but” even if not, the court of tor xe ac

of its own motion can set ‘aside its judgment obtained .by

fraud practiced on it, not “only to protect its jurisdiction,

~ but because of. the public interest.*

Does the expiration of a term of court leave an n appel-

late court powerless to correct a patent or other decision

** *Judge Buffington’s opinion that Hartford. ‘invented the |

plunger feeder should rk be allowed to stand. — It tras alréacdy

misled another court into ‘granting Hartford ather patents which

fun to 1954, Hartford v. Coe, 87 F. 62d) 741 (Ct. App. D. od,

quoting with approval Judge [uftington’ s references to the Clarke

article (p. 743). In patent litigation “the public has rights also.”

Densmore v. Scofield, 1O2-U. S. 375, 378, which * ‘can never be

male-te yield to schemes of selfishness or cupidity.” Kendall v.

Winsor, 62 UsS: 322, 328. There must he considered “the ad-

: — effect upon the public irlterest of a suceessful infringement :

suit."“Mortom Salt v Suppiter. 314 US. 488,494.

+ diction with respect to their appellate jurisdiction—they

14

resulting from fraud worked on it? To state the quest

is to answer it., Courts would be sorry things if that w

true, and it.is not., Appellate courts have complete ju

fill armored with all writs ‘‘which’may be necessary for

exercise of their respective jurisdictions” (28 USCA 37

Any. court of equity, not, only trial courts but appell

courts, may reopen judgments for fraud after the term

passed (Throckmorton, Marshall and ‘Art \!etal cases).

The decision below should be reversed.

' Respectfully submitted,

STEPHEN H. PHIiBin

Henry R: Asuron,

Counsel for Petit

;

1

February, 1944. —

*.