Brief of Respondent in Opposition to Petition for Certiorari — Hazel-Atlas Glass Co. v. Hartford-Empire Co.

NSY 80

IN THE .

Supreme Court of the Unit

OCTOBER TERM, 1913

NO. 398

HAZ EL-ATLAS GLASS COMPANY, Petitioner.

on v.

HARTFORD-EMPIRE COMPANY, Respondent.

*

BRIEF FOR RESPONDENT, HARTFORD-EMPIRE

_COMPANY, IN OPPOSITION’ TO PETITION |

FOR WRIT ‘OF CERTIORARI

WALTER J. BLENKO,

¢

Attorney for Respondent.

FRANCIS W.-COEE,

Epcar J.-GoopRICH,

JAMES M. CARLISLE,

Of Counsel. 25

November, 1943.

SUBJECT INDEX

ficial Reports of Decisions............. Seana i 1

ounter-Statement of the Case 3 2

The controlling facts found by the Court below 3

ummary of Argument. e

%% ̃ A ˙⁰o³A¹i. eT ee 8

First Point. The judgment below was based on

three separate and distinct grounds. Two

of these grounds, either of which was suffi-

cient fully to dispose of the case, are not

presented as reasons for granting the writ;

therefore, certiorari is inappropriate

Second Point. The judgment below is not in

conflict with the decisions of other Circuit

Courts ( oe

Third Point. The judgment below 4 is not in con-

flict with the decisions of this Court......

Fourth Point. Petitioner’s contention, that the

decision of the court below raises a juris-

dictional question of great importance to

the administration of justice that should be

settled by this Court“, is wholly without

merit % F eas

/

Fifth Point. There is no question of public in-

terest involyed | 5252522544 eee eee

3

12

16

ii Table of Cases Cite.

2 PAGE

Appendix „een n 3

The truth of the Clarke article 4

The preparation and publication of the Clarke

articPtABAt[ͤe-e see cece cece ee eee 21

Use of the Clarke article in the Circuit Court of

Appeals V 24

. Hazel’s knowledge in 1929 that Hatch had in-

itially drafted the Clarke article......... 28

Hazel's further knowledge in 1932. Its election

to abandon any attack upon the a |

ship of the Clarke article. 27

Hazel's reason for changing its position in 1941

and for applying for the relief now sought 30

Hartford’s payment of money to Clarke in

August 177 ͤ rrr errr se 31

Factual errors in the petition and in the dis-

senting opinion below. 1 1 32

Table of Cases Cited

Alice State Bank et al. v. Houston Pasture Co., 247

U.S. 240 FFV 10

Art Metal Works, Ine. v. Abraham & Straus, Inc.

(C.C.A. 2), 70 F. 2d 639, 70 F. 2d 741; 107 F. 2d

940, 107 F. 2d 944; certiorari denied 308 U.S.

. FCCCCCCCCCC ke cues 7. 13. 14. 15. 16

U.S. 648 „ e be e see 16

Table of Cases Cited. See

PAGE

Bronson v. Schulten. 104 U.S. 410 ace ee ee

Casey v. Sterling Cider Co. (C.C.A. 1), 15 F. 2d 52. 12

Dodson va United States (C. C. A. 2), 31 F. 2d 288;

. ‘certiorari denied 278 U.S. 65 33... 13

ö Foster Bros. Mfg. Co., Inc. v. National Labor Rela-

tions Board (C. C. A. 4), 90 F. 2d 948. 13

General Talking Pictures Corp. v. Western Electric

. 11

Guaranty Trust Co. of New Vork et al. v. Minneap-

olis & St. L. R. Co. et al. (C. C. A. 8), 98 F. 2d 345 13

Hart et al. v. Wiltsee et al. (C. C. A. 1), 25 F. 24 868. 12

Hawkins v. Cleveland, C., C. & St. L. Ry. Co. (C. C. A.

r eee re 8 PPE 13

Helis v. Ward, 308. U. S. 365 *. 10

Keller v. Adams-Campbell Co., 264 U.S. 314. 10

Magnum Co. v. Coty, 262 U.S. 159............ em. Sa

Marshall v. Holmes, 141 U.S. 589 ..ĩ 7. 16, 17, 18

Montgomery v. Realty Acceptance Corp. (C. C. A. 3.

51 F. 2d 642; affirmed 284 U.S. 547. 13

Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 10

Nachod et al. v. Engineering & Research Corp.

(C. C. A. 2), 108 F. 2d 594. 5 7, 12. 13, 14, 16

- Reynolds et al. v. Manhattan ae a Co. et al. (C.C.A.

8), 109 F. Serer . - B

Shawkee Manufacturing Company et al. v. Hartford- :

Empire Company (C. C. A. 3), 137 F. 2d 764. 1

iv fable of Casés Cited.

*

PAGE

Southern ** Co. v. „North Carolina Public Service

—A ö „„ 11

Sundh Electric. Co. v. 83 Mfg. Co.

— m err errr eee 13

‘Toledo Scale Co. v. Computing: Scale Co., 261 US. |

Fc 17

United States v. Johnston, 268 U.S. 20. 5

United States v. McFarland, 275 U.S. 485. 10

United States v. Throckmorton, 98 U.S. 61. . 7, 16, 17, 18

Watts, Watts & Co. Ltd. v. Unione Austriaca Di

2 (C. C. A. 2), 289 F. r

* Court of # the United States

a

"OCTOBER 2 1943

joe as Pa

-HAZEL-ATLAS GLASS COMPANY, Petitioner,

3 ees n |

- HARTFORD-EMPIRE COMPANY) Respondent.

BRIEF FOR RESPONDENT, HARTFORD-EMPIRE

COMPANY, IN OPPOSITION 10 PETITION

FOR WRIT OF CERTIORARI

Official Reports of Decisions.

The decision of the court below is reported at 137

F. 2d 764 and appears at page 240 of the Record. That

decision disposed not only of this case, but also a com-

panion one, Shawkee Manufacturing Company et al.,

petitioners, v. Hartford-Empire Company, now the sub-

ject of a petition to this Court, No. 423 at this Term. <:

The earlier decision of the Circuit Court of Appeals,

upon which was based the judgment sought to be re-

opened by the present proceeding, appears at 59 F. 2d

399. That opinion was filed May 5, 1932 and judgment

was entered on the same day.

2 Counter-Statement of the Case.

Counter-Statement of thi’ Case.

_ For convenience and brevity, petitioner will be re-

ferred.to as “Hazel”, respondent as “Hartford”, the

earlier litigation reported at 59 F. 2d 399 as “the Hazel

infringement suit”, and the 6 — at No. 423 as

“Shawkee”.

* Although entitied below tsi the Hass infringement

suit (disposed of by the Court of Appeals in 1932), the

petition for certiorari seeks to bring before this Court

only the proceedings on a “petition for leave to file a bill

of review, filed in November 1941, but amended in Janu-

(1) that the Court of Appeals itself determine whether

or not, on the ground of alleged fraud, it should set aside

the judgment it had entered in the Hazel infringement

suit in 1932, vacate the final decree entered therein in

the District Court, recall the mandate and restore the

case to the docket of the Court of Appeals for reargu- -

ment, or, alternatively (2) for leave to proceedings

in the District Court setting aside and vacating the

decree.

In its opinion filed June 30, 1943, the Gourt of Ap

peals—opinion by Judge Jones, Judge Maxis concurring,

\ Judge Biocs dissenting—denied the petition, holding

(1) that the petition was without merit because the

Clarke article was not material to 1932 decision in

the Hazel infringement suit; :

(2) that Hazel had full knowledge of the situation,

even during the trial of the infringement suit in 1929.—

“Not possibly can the information as to the facts attend-

ing the publication of the Clarke article be deemed to

rate as after-discovered evidence so far as either Hazel-

*

* . . 9 |

> *

* — ä

— '

| Cownter-Statement of the Case. 3

| Atlas or Shawkee is concerned” — and that Hazel had

deen so derelict that it had no standing to seek the relief

for which it petitioned; and F

03) eee

than against Hazel on the merits, yet, the term in which

the Court of Appeals had decided the infringement suit

having long since expired, the Court of Appeals would

de without power itself to vacate or set aside the de-

erees of the Distriet Court which reside therein un-

affected by any retention of jurisdiction in this court“.

Neither of the first or second grounds of the decision

below is presented as a reason for granting certiorari.

Zach is purely FACTUAL, and alone is dispositive of the

Since an extensive statement of fact is not essential

for a disposition of the petition, we confine ourselves here

to a brief recital of the facts as found by the court below.

We have set out in an Appendix a detailed factual state-

ment, à correction of Hazel’s statement of the case as

contained in its petition, and a statement of factual

errors included in the dissenting opinion below.

The controlling facts found by the Court below.

(1) In the Hazel infringement case the Peiler pat-

ent in suit was held by the Court of Appeals (one judge

“issenting) to be a pioneer patent and infringed by the

Hazel feeders; 59 F. 2d 399, R. p. 241 (the District

Court’s opinion had held the patent not infringed but

had not questioned its validity; 39 F. 2d 111). While the

Clarke article wag quoted and discussed in the Court of

Appeals’ opinion, yet, “wholly apart” from it, the ma-

* Emphasis ours throughout this brief.

, °

4 Counter Statement of the Case.

Shetty of the court below “upon turning to ‘the proofs’, 1

drew their own conclusions in support of the action

which the court thereupon tox. * what was held

in the Hazel-Atlas case was the court’s independent

* regardless of the Clarke article“ (Opinion, R ' |

p. 28) . ‘ |

(2) The charge of fraud goes. merely to the au-

thorship of the Clarke article, not to its substance, which

is unchallenged; “No substantial complaint has yet been

made that what ‘the article contained in material part,

namely, the ascendency of gob-feeders over stream feed -

ers, was factually false (Opinion, R. pp. 247-8)

The Clarke article, as published, was entirely true.

real has never contended otherwisc.

(3) In 1933, while the Court of Appeals had the

Shawkee appeal under consideration, facts as to the

origin of the Clarke article were brought to the attention

of the Court of Appeals by counsel for Shawkee. As to

that, the opinion below says There can be no doubt that

the matter received the attention of all of the members

of the court which had heard the Shawkee, as well as the

Hazel-Atlas case” (Opinion, R. p. 247). Moreover, Judge

WooLLEY, who had dissented in the Hazel infringement

suit, separately concurred in the Shawkee decision on the

. ground that he felt bound by the majority opinion in

the Hazel case (68 F. 2d 727, R. p. 248), ignoring the

challenge. as to the authorship of the article and thus .

making it plain that he regarded it as having played no

material part in the majority decision in the Hazel case

(Opinion, R. p. 248).

44) Counsel for Hazel “were aware at least by the |

time of the trial” of the Hazel infringement suit in April

counter- Statement of the Case. 5

1929 of the facts as to the authorship of the Clarke ar-

ticle (Opinion, R. p. 243). Both Clarke and Hatch had

freely stated the facts in September 1926 and February

1928, respectively, and these admissions were imparted

to counsel for Hazel at the time of the trial at Pittsburgh

in 1929 (Opinion, R. pp. 243-4; and see the affidavit of

Edmund P. Wood, Esq., whom both sides accredit”,

Opinion, R. pp. 211-214). |

Counsel for Hazel “deliberately chose not to go into.

the matter of the article’s real authorship” (Opinion, R.

p. 243) fearing that if they should do so they would

merely emphasize the truth of it, and consequently “an

attack on the article might be a boomerang” (R. p. 213).

When the briefs were filed in the Court of Appeals,

Hazel's counsel still refrained from challenging the ar-

ticle except to criticize a chart appended to it on the-

ground that it was “misleading” and “not competent evi-

dence” against Hazel (Opinion, R. p. 244).

Immediately after the 1932 decision of the Court of

Appeals in the Hazel infringement suit, counsel for Hazel

obtained affidavits entitled in that appeal (R. p. 211) and

setting forth the facts as to the authorship of the article

(Opinion, R. p. 244). These affidavits, however, were not

brought to the attention of the Court of Appeals, nor was

any other timely representation made to it concerning

the Clarke article. No petition for rehearing, based on

this or any other ground, was filed, despite five exten-

sions of time. Within the time allowed by the last exten-

sion Hazel entered into a cross-licensing agreement with

Hartford (Opinion, R. p. 245). Although that agree-

ment contains a provision giving Hazel the right to

cancel at any time (R. p. 185), Hazel has never cancelled

or renounced it.

6 Summary of Argument.

Summary of W

1

The judgment of the court below was based on

three separate and distinct grounds:

First, that the Clarke article was not material to the

1932 decision of the court below;

Second, that the evidence relied on by petitioner

cannot possibly qualify.as after-discovered evidence;

and

Third, that even were the Court to conclude other -

wise than against Hazel on the first two grounds, yet,

the term in which the Court of Appeals had decided the

infringement suit having expired, the Court of Appeals

would be without, power itself to vacate or set aside the

decrees residing in the District Court.

_ Petitioner does not contend that either of the first

two grounds of decision warrants review by this Court

—neither is presented as a reason for granting the

writ. Certiorari is therefore inappropriate. Petitioner

is in reality attempting to use the third and subsidiary

ground of the decision below as a lever to obtain a re-

view of the first two grounds of that decision, which

grounds were purely factual and dispositive of the case.

This Court does not review controverted questions of

_fact on certiorari.

Tue decision of the court below is not in conflict

with the decisions of other Circuit Courts of Appeals. On

the contrary the court below followed the rule, enounced

by this Court and uniformly recognized, limiting the

*

Summary of Argument. ; 7

power of appellate courte to recall their mandates. The

conflict alleged by petitioner between the decision of the

rourt below and the Art Metal cases in the Second Cir-

cuit is non-existent in fact. The court below specifically

considered the Art Metal cases and correctly differenti-.

ated this case from them. The Second Circuit Court of

Appeals states and follows the general rule, also fol-

lowed by the court below in the instant case, in Nachod

et al. v. Engineering & Research Corporation, 108 F. 2d

594, decided immediately after the Art Metal cases.

im

Petitioner’s contention that the judgment below is

in conflict with United States v Throckmorton, 98 U. S.

61, and Marshall v. Holmes, 141 U. S. 589, is without

merit. Neither of those cases is authority for the

proposition that an appellate court has the power to

recall its mandate after the expiration of the term nor

in conflict with the established rule that no such. power

exists. Those were cases dealing with original bills

brought in courts ‘of original jurisdiction. The court

below. specifically considered both of them and showed

their inapplicability. Petitioner was not prevented from

fully exhibiting its case in the infringement suit.

IVS

Tnere is no merit to petitioner’s contention that the

decision of the court below raises a jurisdictional ques- |

tion of great importance. Petitioner failed to present to

the court below. a case even prima facie sufficient to

move that court to give leave to file a bill of review in

the District Court and cannot in these circumstances be

heard to say that an important jurisdictional question

arises because the Court of Appeals also refused to re-

8 on Argument.

call its mandate and rehear the infringement suit ten

years after the term had expired.

| ee :

There is no question of public interest involved. The

decision in the infringement suit was in personam only,

not in rem. Any member of the ‘public not a party or

privy to the infringement suit may defend against the

Peiler patent on any grounds it sees fit. Even the peti-

tioner is free to bring an original suit in a court of

original jurisdiction to relieve. itself of the judgment.

The petition is in reality only a belated attempt to ob-

tain a re-argument of the issues litigated in the infringe-

ment suit on the basis of the Clarke article, despite

the fact that, although petitioner had full knowledge re-

garding its authorship at the time of the trial of the

infringement suit, petitioner elected. not to challenge it.

ARGUMENT

First Point.

The judgment below was based on three separate

and distinct grounds. Two of these grounds, either of

which was sufficient fully to dispose of the case, are not

presented as reasons for granting the writ; therefore,

certiorari is inappropriate.

The court below held (1): ö

But, wholly apart from the Clarke Article, the

majority of the Court in the Hazel-Atlas case, upon

turning to ‘the proofs’, drew their own conclusions

_in support of the action which the court thereupon

took. * * * such was the primary basis of the

majority opinion in the Hazel-Atlas case

Argument. | 4

© © © what was held in the Hazel-Atlas case was

the court’s independent judgment, regardless of the

Clarke article.” (Opinion, R. p. 248) 8

The court below further held (2):

Not possibly can the information as to the

facts attending the publication of the Clarke article

be deemed--to-rate as after- discovered evidence so

far a8 * * ffazel-Atlas * * * is concerned.”

(Opinion, R. p. 247 :

The court below then said (3):

„So far we have considered this matter on the

merits of the petitioners’ allegations and their

standing to seek the relief for which they petition;

and we conclude against them on both — 2

(Opinion, R. p. 249)

The court then went on to say that, even had its

conclusions in such regard been otherwise, it still lacked

power to vacate the decree of the District Court, the

mandate having gone down, and the term in which the

judgment of the Court of 2 was entered having

long since ä

Petitioner does not contend that either of the first.

two grounds of decision warrants review by this Court

—neither of them is presented as a reason for granting

‘the writ. Certiorari is therefore inappropriate:

‘“It is well settled that this Court. confines itself

to the ground upon which the writ was asked or

granted, the review here being no broader than that

sought by the petitioner. Clark v. Williard, 294 U. S.

211, 216; Helvering v. Tex-Penn Oil Co., 300 U. S.

481, 498; Washington V. and M. Coach Co. v. Na-

M ICRO CARD

_ TRADE MARK “8

22

a i

10 ; Argument.

tional Labor Relations Board, 301 U. S. 142, 146.”

Helis v. Ward, 308 U. S. 365, 370.

“This Court confines. itself to the ground upon

which the writ was asked or granted. Alice State

Bank v. Houston Pasture Co., 247 U. S. 240, 242.

Clark v. Williard, 294 U. S. 211, 216.” Morehead v.

New York ex rel. Tipaldo, 298 U. S. 587, 604-5.

“But as that is not the ground upon which the

writ of certiorari was asked or granted, we confine

our discussion to the matter relied upon in asking

the intervention of this Court. Hubbard v. Tod, 171

U. S. 474, 494.” . Alice State Bank et al. v. Houston

Pasture Co., , 24T U. S. 240, 242.

. . should this Court grant the writ and

_ decide “the ground upon which the writ was asked”

favorably to Hazel, the judgment below would still stand

because its first two grounds of decision—or either of

them—fully disposed of the controversy. Certiorari is

consistently denied in sucht cases, or, if granted under

misapprehension, is promptly revoked: - .

“The decision of this case does not require a de-

cision of the questions which are presented in the

petition for certiorari because of which the writ was

granted, and the certiorari heretofore granted in

this case is therefore revoked upon the authority of

- Southern Power Co. v. North Carolina Service Co.,

263 U. S. 508.“ United States v. McFarland, 275

U. S. 485. :

In Keller v. ee Co., 264 U. 8. 314 this

Court granted certiorari in a patent infringement suit to

review the question of scope of intervening rights—4

question sufficiently important to justify the granting

*

Argument. 11

of the writ. On the hearing, it developed that although

the lower courts had passed upon the question of inter-

vening rights, they had also decided the question of

infringement, which alone was sufficient to dispose of

the case. In these ciroumstances, this Court said:

“The result is that an order must be entéred dis-

missing the writ of certiorari as improvidently.

granted * * *.” (264 U. S. at 3200

Petitioner is in reality attempting to use the third,

and subsidiary, ground of the decision below as a lever

to obtain a review of the first two grounds of that deci-

sion, which grounds were purely factual and each of

which was fully dispositive of the case. But this Court.

does not review on certiorari controverted questions of

fact: | 7 age

“This writ must be dismissed - 3

The argument developed that the controverted

question was whether the evidence sufficed to estab-

lish actual dedication of petitioner's property to

public use—primarily a question of fact. That is

not the ground upon which we granted the petition

and if sufficiently developed would not have moved

_ us thereto.” Southern Power Co. v. North Carolina

Public Service Co., 263 U. S. 508, 509.

N “Granting of the writ would not be warranted merely

to review the evidence or inferences drawn from it.“

General Talking Pictures Corp. v. Western Electrio

Co., 304 U. S. 175, 178.

‘ “We do not grant a certiorari to review evidence and

discuss specific facts.” United States v. Johnston,

268 U. S. 220, 227.

12 a ‘Argument. .

As this Court said in Magnum Co. v Oni, a U a

159, 163: *

The Jurisdiction to bring up cases by certiorari

7 was not conferred upon this Court merely

to give the defeated party in the Circuit Court of

Appeals another hearing. 1

2

Second Point.

The — below is not in conflict with the deci-

sions of other Circuit Courts of Appeals.

The court below, after disposing of the case on the

: merits, held that it Jacked power to recall its mandate,

or to vacate the District Court’s decree entered pursuant

thereto, after the expiry of the term in which the man-

date had issued and the judgment had been entered.

The court, below (R. p. 249), far from creating a conflict

with the Second Circuit Court of Appeals, as contended

by petitioner: (Petition. p. 13), adhered to the general

‘rule, following and quoting from the same court’s deci-

sion in.Nachod et al. v. Engineering & Research Corpora-

tion, 108 F. 2d 594:

Our term having 8 the mandate

went down, we have no power to recall it. (citing:

cases) 55

‘Thus both Courts of Appeals reiterate and follow

the fundamental principle enounced by this Court in

Bronson v. Schulten, 104 U. S. 410, 415; and —

observed by the Circuit Court of Appeals, £.g.:

Fer CIRCUIT:

Casey v. Sterling. Cider Co., 15 F. 2 523

Hart et al. v. Wiltsee et al., 25 F. 2d 863.

Argument. 13

SECOND CIRCUIT:

Watts, Watts ck Co., Limited, v. Unione Aus-

triaca Di Navagazione, 239 Fed. 1023; ;

Sundh Electric Co. v. Cutler-Hammer M 119. Co.,

244 Fed. 163, 170;

Dobson v. United States, 31 F.. 2d 288; certio-

rari denied 278 U. S. 688.

Tum Circurr: ;

Realty Acceptance lenis, v. Montgomery, 51 F.

2d 642; affirmed 284 U. S. 547.

FouRTrH CIRCUIT: .

Foster Bros. Mfg. Co. Inc. v. National Labor

‘Relations Board, 90 F. 2d 948.

SEVENTH CIRCUIT: ; .

Hawkins v. Cleveland, 0. N é Bt. L. Ry. Co.,

99 Fed. 322.

EIGHTH CIRCUIT:

Guaronty Trust Co. of New York et al. v. Minne-

apolis é St. L. R. Coe al., 98 F. 2d 345.

346-7;

Reynolds et al. v. Manhattan Trust Co. et al.,

109 Fed. 97, 98-99.

The sole alleged conflict between circuits. asserted

by petitioner (Petition p. 13, pp 17-18) is with the de-

cisions of the Circuit Court of Appeals for the Second

Circuit, antecedent to the Nachod case above cited, in.

Art Metal Works, Inc. v. Abraham & Straus, Inc., 107 F.

2d 940, 107 F. 2d 944, eertiorari denied 308 U. S. 621.

The Art Metal cases, however, are not germane because

based on a wholly different state of facts. The court

below specifically considered the Art Metal cases and

correctly differentiated this case from them.

14

| Argument. R

In the Art Metal cases the defendant had bribed

Judge Marrox, who had written the opinions in both of

the cases. The. decision in one of them, reversing the

District Court, was by a divided “court”. Upon appli-

cation to the Circuit Court of Appeals, it recalled its

“mandate”, set aside the “judgments” entered pursuant

thereto, and restored the cause to its docket for re“

argument of the appeals: But this action in no way

dingmished the force of the rule of the Nachod case,

supra, as the court below pointed out:

“The procedure followed in the Art Metal

cases, cited supra, does not derogate from this rule.

There the vote of a judge of the Court of Appeals

who had been corrupted in respect of that litiga-

tion was necessary to produce one of the two deci-

sions in the appellate court between the same par-

ties and involving the same patent, so that no

qualified court had really disposed of those appeals;

and, by the same token, no competent mandates

ever issued, hence, the term time was irrelevant.

The appeals were in effect treated as never having

. been coram judice theretofore. The orders there-

upon entered in order to clear the record in the Art

Metal cases of the former invalid action taken

therein cannot properly be utilized to spell out

power in a Circuit Court of Appeals to recall its

mandate after the expiration of the term when no

action has been taken within the term to continue

the jurisdiction of the court. The view we thus

take of the procedure followed in the Art Metal

cases is confirmed by the fact that after the action

taken therein looking to a de novo argument of

70 F. 2d 639; 70 F. 2d 641.

*

those appeals, the same court, composed of the

same judges who had sat for the reargument of the

Art Metals appeals and had disposed of them on

November 20, 1939, just one month later (Decem-

ber 22, 1939) reasserted in the Nachod case, supra;

the lack of power in a Court of Appeals to recall

its mandate after the term has expired.” (Opinio,

md cata OP

— of the proceedings in the Second Cir-

cuit Court of Appeals reveals’ that counsel for Art

Metal, in seeking relief, from the “judgments” which its

. adversary had bought · and paid for, gave full recognition

to the legal principle relied upon by the court below in

the instant case, but differentiated from it, stating in

ee

the Art Metal cases: .

6 No decree, therefore, .

constituted and completely disinterested court, and.

in legal effect, no hearing was had by the plaintiff.

The decrees, therefore, are void and a nullity.”

—

The distinction between the power to set aside,

after term, a void “judgment” and the lack.of power to

set aside, after term, a genuine final judgment by a

properly constituted ‘court is basic and has been care-

' fully observed by the Circuit Court of Appeals for the

Second Circuit itself. Thus, although that Court in the

Art Metal cases exercised the power to vacate void

“judgments” after the close of the term in which they

were “entered”, it recognized in immediately subsequent

“decisions that it had no power to vacate after term the

judgment entered by a genuine court; Beidler v. Photo-

8 Pe ad | ,

ee sees, Argument. |

stat Corporation, certiorari denied 310 U. S. 648;

Nachod v. Engineering & Research Corporation, supra.

It follows. that the is no conflict between the Art

Metal cases and the case’at bar.

Third Point.

The judgment below is not in conflict with the deci-

sions of this Court. 9 1

Petitione: contends that the judgment below is ir

conflict with United States v. Throckmorton, 98 U. S. 61,

and Marshall v. Holmes, 141 U. S. 589. No conflict exists:

Neither of those cases is authority for the proposition

that an appellate court has the power to recall its man-

date after the expiration of the term in which its judg-

ment was entered and its mandate issued, even upon the

ground of fraud. In both those cases original bills to

obtain relief from judgments allegedly obtained by fraud

were brought in courts of original jurisdiction. The

court below in the case at bar specifically considered

both cases and pointed out (Opinion, R. p. 250) that if.

Hazel feels itself aggrieved, the course is open to it to

file an original bill to impeach the decree now standing

against it in the District Court. |

* Here agents of Manton had -unsuccessfully at-

to buy a favorable decision, informing the petitioner

that unless a satisfactory arrangement was made, the

case would be decided adversely to him. The Circuit

| Court of Appeals for the Second Circuit refused to re-

call its mandate and vacate its judgment after the close

of the term in which it had been entered, and this Court

denied certiorari. . |

ras tempted to induce the petitioner to pay substantial sums

Argument. ies 17

As pointed out he the court below iain, R. p.

250), it is only i in the situation where an original bill has

been filed in a court of original jurisdiction that the rule

of those cases as to whether the alleged fraud is ex-

trinsic or intrinsic, becomes germane”.

Petitioner contends (Petition p. 21) that there was

extrinsic fraud in the Hazel infringement suit, because,

specifically, it was “prevented ‘from exhibiting’ fully’

its case“, but the fact is, as found by the court

below and as shown above (pp. 4-5), that petitioner,

with full knowledge of the facts, decided at the trial not

to raise any question regarding the authorship of the

Clarke article, feeling that to do so would merely em-

phasize the truth of its statements and so prove a boom-

erang. Moreover, neither in the present petition nor in

the proceedings in the court below did petitioner under-

take to specify any evidence, relating to any issue in the

infringement suit, ‘which it was “prevented from exhibit-

ing fully“. 4

~ The question as to what kind or degree of Wind

will justify relief against a judgment allegedly obtained

thereby is not germane tu the ground of the judgment.

_ below upon which certiorari is sought, i.e., the lack of

power of the court below to recall its mandate after the

expiry of the term of its entry.

—

—

The court below in holding that the alleged fraud

was. not material to its 1932 judgment found it unneces-

sary to distinguish between “intrinsic” and “extrinsic”

fraud or to discuss the alleged coaflict between the

Throckmorton case and Marshall v: Holmes, but (Opin-

ion, R. p. 248) relied on Toledo Scale Co. v. Computing .

Scale Co., 261 U. S. 399, 421, where this Court said:

18 Argument.

here has been much an as to whether

extrinsic fraud is here alleged, and the case of

United States v. THrockmorton, 98 U. S. 61, is cited

and numerous other authorities since that case. We

do not find ourselves obliged to enter upon a consid- ~

eration of the sometimes nice distinctions made be-

tween intrinsic and extrinsic frauds in the applica-

tion of the rule, because in any case to justify set-

ting aside a decree for fraud whether extrinsic or

intrinsic, it must appear that the fraud charged

really prevented the party complaining from making

a full and fair defense. If it does not so appear,

then proof of the ultimate fact, to wit, that the de-

cree was obtained by fraud, fails.” ö

Clearly, there is no conflict between the judgment

below and either United States v. Throckmorton or

2 v. Holmes.

Fourth Point.

- Petitioner’s contention, that the decision of the

court below raises “a jurisdictional question of great

importance to the administration of justice that should

be settled by this Court”, is wholly without merit.

Under the amended’ prayers of the petition below,

the Court of Appeals was asked to inquire into the

alleged fraud and either (1) to recall its mandate and re-

hear the infringement suit or, alternatively, (2) to

grant leave to petitioner to take proceedings in the Dis-

trict Court for setting aside and vacating the decree (R.

p. 173). The alternative prayer was plainly equivalent

to a prayer for leave to file a bill of review.

te

Argument. a

The Court of Appeals held that the petition was not

‘meritorious and dismissed it, at the same time pointing

out to petitioner that it had the right to file an original

bill in a court of original jurisdiction, if it chose to do so.

Petitioner having failed to present to the Court of

Appeals, a case even prima facie sufficient to move that 85

court to give leave to file a bill of review in the District -

Court, cannot now be heard to say that a great jurisdic-

tional question is raised because the Court of Appeals

also refused to recall its mandate and rehear the in-

fringement suit ten years after the term had expired.

Fifth Point. 5

ö There is no question of publie interest involved.

The decision in any patent case is always in per-

sonam, never in rem. Only the parties to the infringe-

ment suit below were concluded by the judgment. Any

member of the public not a party or privy to the in-

kringement suit, affected by this particular patent, may

defend against it on the grounds of invalidity and non-

infringement, and may make such use of the Clarke ar-

ticle as he sees fit. Even the petitioner is free, as pointed

out by the court below, to bring an original suit in a

court of original jurisdiction and make what use it can *

the Clarke artiele.

Petitioner is in reality belatedly seeking a reargu-

ment of the issues fully litigated in the infringement

suit, on the basis of the Clarke article. But no conten-

tion has been made that the Clarke article as published

was not entirely true. Nor has petitioner pointed to any

evidence relating to any of the issues in the infringement

suit — it was deprived of exhibiting below. Peti-

~

N 0

20 N | Argument.

tioner has had its day in court with respect to those

issues, and they were determined against it.

to the court its knowledge as to the Clarke article.

1932 judgment, it changed its mind.

. JAMES M. CARLISLE,

At the trial of that case petitioner chose not to sii

Nine years later, after it had been deprived for the time

being of the profits it had been deriving from the settle-

ment agreement it had voluntarily entered into after the

Petitioner hag now had a hearing as to the effect of

the authorship ot ti Clarke article, and as to petition-

er’s standing to present to a court its unsubstantiated

claim of recently acquired knowledge thereof, and both

issues—neither of which would present a proper ques-

tion for review by this Court—were determined against

it. We respectfully submit that petitioner has no stand-

ing to seek a further review by this Court.

oy Conclusion. | 5

= petition. for certiorari should be denied.

; Respectfully. submitted, |

WALTER J. BLENKO,

. Attorney for Respondent.

FRANCIS W. COLE, * 5

EpGAR J. Goopick,

Of Counsel.

November, 1943.

N 1 ; i 8 J és ‘ *

| APPENDIX _ -

The truth of the Clarke, article. ;

In the seventeen years during which the Clarke arti-

de has been under scrutiny, no one has found any in-

accuracy in the article as published. The article, as

published, was and is entirely true, a fact which peti-

tioner does not deny here and did not deny at any time

in the proceedings below. The article was based upon,

and largely compiled from, the published annual Pro-

ceedings of the glass-workers’ union. Its truth is at-

tested in the record by the Clarke affidavit of 1932 (R.

p. 111), by the Maloney affidavit of 1935 (R. p. 112),

by affidavits of Dorsey (R. p- 114), Hatch (R. p. 85),

and Brown (R. p. 75), and by admission of petitioner's

counsel (R. p. 213).

The preparation and publication

of the Clarke article.

Sometime in 1925 or early in 1926, Herbert Knox

Smith (since deceased), then Secretary and General

Counsel of Hartford, requested R. F. Hatch, an employee

of Hartford, to search for certain data as to the manu-

— facturing cost of glassware in 1913, which Mr. Smith de-

sired to have in connection with some tax proceedings.

The search so requested was made, and in connection

therewith, Mr. Hatch consulted the annual printed Pro-

ceedings of the Glass Bottle Blowers Association of the

United States and Canada. He observed that they con-

tained a very complete story of the development of auto-

matic machinery for feeding molten glass and the effect

that such automatic machinery had exerted upon the

glass manufacturing industry, especially the unionized ©

workers therein. Believing that such proceedings con-

1 Appendix.

tained dee from which could be saints an article

ol interest to the glass manufacturing industry, he asked

for and received permission to compile such an n article.

As the article was to deal with the introduction of

automatic glass-making machinery from the point of.

view of labor, Mr. Hatch desired to have it sponsored by .

an informed labor official and published, hoping that it

would be of interest to the industry and a commercial

advertising advantage to Hartford as presenting a con-

nected story, which was not then generally known, of

_ _. the effect on the glass industry of the introduction of

automatic machinery (R. pp. 81-82).

Mr. Hatch obtained photostatic copies of pertinent

extracts from said proceedings. He also consulted -

other sources of information to locate data as to the

production of glass containers by the automatic Owens .

suction system and by the “gob feeding” system (which

was then being commercialized and. in respect to which

Hartford had applications for patents pending), and the

approximate relative production of containers by these

two systems since they had respectively been put into

commercial use. The article as written was based al-

most entirely on the said Proceedings (R. p. 82). ö

At that time there were two union officials familiar

with the facts involved, one of whom, James Maloney,

was the President of the Glass Bottle Blowers Associa-

tion, and the other of whom was William P. Clarke,

President of the American Flint Workers Union

(R. p. 82). a f

After the article was drafted, it was submitted to 8

several persons for eriticism and correction, including

Henry W. Carter, patent attorney of the Owens Bottle

| Appendisæ. es

Company, Mr. Maloney and, Mr. Clarke, all of whom

‘satisfied themselves of its accuracy before —

The article was originally criticized in some respects

by Mr. Carter, who pointed out some seeming inaccura-

cies (R. p. 84), as; for example, the statement of the

Association as to the number of Owens machines in use

(R. p. 84). It was subsequently (before it was revised

by Clarke) changed by Hatch to meet such objections

as were well founded (R. p. 84). In its final form, it

was approved by Mr. Carter with certain suggested

changes stated by him to be “of a trivial nature and

hardly need mentioning” (R. p. 129). The text of the

article as published was * true (R. pp. 247-8, 75-6,

55, 111, 112, 114).

In respect to the chart appended to the article (R.

p. 200), Mr. Carter said he had concluded the previous

criticism he had made of it “was without much founda-

tion” and that Mr. Baker, the Treasurer of the Owens

Company, thought that in its final form it was about

as accurate as could be arrived at“ (R. p. 129). If any- .

thing, the chart was an understatement ‘adverse to Hart-

ford, because all feeder production of pressed ware was

omitted, so as to draw a true comparison with Owens

Bottle machine production, which latter did net include

pressed ware. | :

Hatch submitted a draft of the article to Clarke

prior to May 24, 1926 (R. p. 125). When.the article was

left with Clarke, the understanding was. that he

[Clarke] intended to rewrite this quite extensively” and

that it was “to-be actually his [Clarke’s] own product,

so far as possible“ (R. p. 181). On his first examina-

tion of the article, Clarke told Hatch that some of the

24 Appendi.

: ts which had been quoted from the proceedings .

of the Bottle Blowers Association, wers not correct

and that he would not use them in his draft of the

article” (R. p. 127).

/ After the article had been puree and corrected by

Mr. Clarke, he submitted it to Mr. Maloney (R. p. 131),

and both of.them being satisfied with its then accuracy,

Mr. Clarke adopted it as his own, signed it, and released

it for publication (R. p. 132). It was transmitted to

the Budget Publishing Company, which published a trade

paper known as the “National Glass Budget” and was

printed in the July 17, 1926 issue of said publication in

precisely the form into which Clarke had * it om .

p. 87).

Use of the Clarke article in the :

Circuit Court of Appeals.

The Hazel infringement suit wes tried i in April, 1929.

The Clarke article was not separately offered in evidence 5

in this case but appeared in the record as a part of the

Patent Office file wrapper of the patent in suit, which

was offered by Hartford and received without objection

from Hazel-Atlas. The article was not referred to by

anyone during the proceedings in the District Court.

The District: Court. filed its opinion on February 28,

1930, holding the patent not infringed. An appeal was

duly taken and prosecuted. by Hartford. .

In Hartford’s brief on appeal, reference was made

to the aforesaid article but solely for the purpose of

showing that the Peiler invention “broke the Owens

domination“ (R. pp. 200-201), that is to say, opened up

the field theretofore dominated by the Owens automatic |

Appen 2

bottle machine. In the same paragraph of the brief

wherein reference to the said article was made, other

record references were given supporting the proposition

that the Peiler invention “broke the Owens domination”.

Hazel’s brief made reply to this part of Hartford's brief

only to the extent of criticizing the chart annexed to the

article as “entirely misleading” and stating that “this .

chart”. was not competent evidence against the defend-

ant, “being merely part of ex parte statements made in

Hartford's behalf during the Patent Office proceedings”

(R. pp. 201-2). No point was made respecting the initial

authorship of the article and, aside from the said criti-

cism of the chart, no criticism was made of any of the

statements in the article itself; nor was it asserted or

suggested in Hazel’s brief or otherwise to the court or

to counsel for Hartford that Mr. Clarke was not the

author thereof or that it was.improper for Hartford to

refer to the article in its brief because it had been written

initially by Mr. Hatch. No reference was made to the

article in Hartford’s reply. brief. :

The opinion of the Circuit Court of Appeals revers-

ing the District Court was filed May 5, 1932. While ex-

tracts from the Clarke article were quoted in the ma-

jority- opinion of that court, no reference was made

therein to the chart which, as before stated, was the

only part of the publication which Hazel-Atlas’ brief

criticized.

: In the later case, Shawkee — Co. et al.

v. Hartford - Empire Co., in which a petition for certiorari

has. recently been filed (No. 423 October Term, 1943), the

question of the authorship of the Clarke article was

called to the attention of the Circuit Court of Appeals by

the Shawkee defendants in 1933 while Shawkee’s appeal

ee Appendia.

was under advisement by the court and awaiting deci-

ion, and also in an application for rehearing, after the

case was decided. The circumstances relating to the

- Shawkee case are more fully discussed in respondent's

* in opposition to the Shawkee petition for certiorari.

Hazel’s knowledge in 1929

that Hatch had initially

drafted the Clarke article.

Inor prior to 1929, Messrs. Wood and Wood, Cincin-

nati lawyers, told representatives of Hazel-Atlas that

Hatch had written the article and revealed that “they

had been so told by Clarke and also by Hatch” (Philbin

affidavit attached to original Hazel petition, R. p. 16).*

During the trial of the Hazel-Atlas suit in 1929, Mr.

Edmund P. Wood discussed the Clarke article with

Hazel’s counsel and. other representatives (R. p. 212).

The counsel, experts and guiding officials of petitioner .

discussed the matter between themselves during the

course of the trial, with a view to determining whether

>or not they should establish the facts in the record

(R. pp. 212-213). After full consideration, petit tioner’s.

counsel, Mr. Philbin, decided not to make any attack

upon the article or its authorship because (a) the

facts contained in it · as to the wide-spread use and com-

mercial success of the Hartford type of feeder were

freely admitted by everyone and could not be success-

fully controverted, and (b) “an. attack on the article

* Clarke’s statement on the matter might well be

celassifled as hearsay so far as concerns Hartford, but the

Hatch statement was obviously an admission and *

able as such.

. - Appendia. N

might be a boomerang” in that it might emphasize the

,truth of those parts of it which were of any possible

“pertinence. In other words, Hazel elected at the trial

not to attack the article because Hazel’s counsel believed

that its authorship was unimportant and that any attack

on it would merely emphasize its truth (R. p. 213).

These facts appear without contradiction from the

affidavit of Edmund P. Wood (R. p. 211), a lawyer who

was attending the trial of the case on behalf of Nivison-

Weiskopf Company, another infringer. His client's in-

terests paralleled those of Hazel-Atlas, and in that situa-

tion Mr. Wood was present at the time Mr. Philbin

Hazel’s further knowledge in

1932. Its election to abandon

any attack upon the authorship of

the Clarke article.

In May, 1932, two weeks after the opinion of the

Circuit Court of Appeals was rendered, Hazel procured ~

executed affidavits from.William R. Wood and Edmund .

P. Wood revealing the essential facts as to che genesis

of the article and that Mr. Hatch had freely admitted its

authorship (R. p. 37, p. 41). These affidavits were both

entitled in the appeal in the instant case but were never

filed or called to the attention of the Circuit Court of

Appeals or: Hartford’s counsel until the filing of the

original petition herein on November 19, 1941.

Also in May, 1932, Hazel employed one McCarthy to

make a further investigation of the Clarke article. On

I

May 13 and May 24, 1932, McCarthy interviewed Clarke

at Toledo. Clarke refused to produce his records or to

give McCarthy “a signed statement containing all the -

facts relating to the preparation and publication of the.

‘Budget’ article based on the records in his possession”,

but said that “every word of that article is true and I

3 * and “of course if I am subpoenaed I

will give all the facts as I know them” (R. p. 29, p. 34).

No steps were taken to subpoena Clarke, and McCarthy

RR

that the artiele was true.

; ein nennt the baden that, Hind tak te

the year 1929, during or prior to the trial of this action,

t both Hatch and Clarke had advised the Messrs.

ood that Hatch had written the article and caused it

to be published in the National Glass Budget, and the

knowledge conveyed to it by the affidavits of the Messrs.

Wood, procured shortly after the opinion of the Circuit

Court of Appeals was rendered, no effort was made to

lay before that court the fact that tiſe article had been

‘written initially by Mr. Hatch and not by Mr. Clarke, or

to seek 4 reliearing or reversal of the decision. of the

Cirvuit Court of Appeals on that ground, although five

separate extensions of the time to apply for rehearing

were allowed (Opinion, R. p. 245). Nor did Hazel-Atlas

ever seek to ascertain from-Hartford, or from Hatch,

WWW

Hatch.

On ban 2i, 1982 Hazel enteréd sito an agreement

with Hartford. (having an effective date of July 1

1932) whereby (a) Hazel paid to Hartford $1,000,000,

received from Hartford a license under Hartford's pat-

ents and agreed to pay for said license royalties at Hart-

tord's standard royalty rates, granted Hartford a non-

~~ © =

Appendix. 29

exclusive license under Hazel’s patents, and released

Hartford from any claims; f past infringement of

Hazel's patents, both those by it and those under

which it had rights; and (5) Hartford gave to Hazel a

release from all claims for past: infringement of Hart-

ford’s patents and agreed to pay to Hazel during the life

of the agreement one-third of its-net income from the

“licensed inventions”, as defined in the agreement, over

and above the sum of $850,000 per annum. The agree-

ment was to extend until January 3, 1945 unless sooner '

terminated, which by its terms could be done by Hazel

at any time upon six months’ notice to Hartford.

ase! cad Hartford operatéd under their 1882 agreed

ment from the time of the execution thereof until the

present time, with an exception to be hereinafter noted,

and as a result thereof, Hazel has received from Hart-

ford, up to December 31, 1940, a total of $678,422.26 more

than Hartford has received from Hazel, including the

million dollars paid to Hartford at the time of the execu-

24298 — (R. p. 186).

Hazel has Sa the agreement or taken

any steps to cel or annul it, nor has it availed itself

_ of the cancellation provision thereof. All the provisions

of said agreement, except as restrained by a certain im-

pounding order to be mentioned presently, have remained

in full fore und effect, and each party continues t- en-

joy the benefits of the other’s inventions.

30 9

Hazel's reason for changing

its position in 1041 and for

applying for the relief now sought.

On December 11, 1939, the United States of America

filed a complaint in the United States District Court for

the Northern District of Ohio, Western Division, against

Hartford, Hazel and ten other corporate defendants =

a large number of individuals, alleging violation of

anti-trust laws of the United States. In that suif,

cancellation of the said Hartford-Hazel agreement was

ordered by the District Court on the ground that it

violated the Anti-trust Acts. Both Hazel and Hartford

contend, and always have contended, that the said agree-

ment is lawful and does not violate the Anti-trust Acts,

and should not be set. aside. Said suit is now in this

Court on direct appeals by Hartford, Hazel and other

defendants, Nos. 7-16, October Term, 1943.

During the course of those proceedings, a motion

was made by the plaintiff to impound the monies pay-

- able under that agreement by Hazel to Hartford and by

Hartford to Hazel. On May 9, 1941, an impounding

order was made over the objection: of both Hartford and

Hazel, sincé which time the monies payable by Hartford

and Hazel respectively, to each other have been paid,

pursuant to said order, to the Clerk of the United States

District Court for the Northern District of Ohio, West-

ern Division, with exceptions in the case of Hartford not

here material. 5

Being thus deprived of the profits which it had been

realizing for nine years under its contract with Hartford,

Hazel began the proceedings now sought to be reviewed.

by filing its petition of November 19, 1941 in the Cireuit

Court of Appeals. That court correctly said (Opinion,

Appendix. 31

R. p. 245) that Hazel remained inactive from 1932 to

1941.

Hartford’s payment of money

to Clarke in August 1932.

In July, 1932, Clarke failed a re-election as presi-

dent of his Union, and on July 22nd, in conversation

with Hatch, told the latter of a series of misfortunes —

that he had suffered; that the Union’s bank of which

he had been president had been closed; that he had lost

his position as president of the Union; that he was faced

with financial trouble and needed quick assistance; that

he thoyght he ‘was morally entitled to assistance from

Hartford because he had done work for it previously

for which he had never asked to be paid and never had

been paid; that he thought he could do additional work

for Hartford in the way of. furnishing statistical and

other information as to the production of glassware;

that he had spent a good deal of time in connection with

the aforesaid published article; that he had been both-

ered somewhat by investigators ; and that he wanted

$10,000 (R. p. 88).

This was Clarke’s first and only request for money

from Hartford. It was made after Hazel-Atlas had made

its contract with Hartford. ;

Mr. Hatch was not authorized to speak for Hartford

and so advised Mr. Clarke (R. p. 88). Subsequently, in

August, 1932, Hartford agreed to employ Clarke under

a retainer contract for a period. of five years, paid him

at that time.a total of $8,000 (R. p. 90), and thereafter

he did work for Hartford from time to time, for which

/ Appendix.

he was paid additional compensation as provided in the

agreement, plus out-of-pocket expenses (R. p. 90).

Factual errors in the petition

and in the dissenting opinion below.

The instant petition and the ae beg opinion be-

low include important factual errors, including the

following: “

(1) The opinion of Judge Buffington, far from

showing “on its face” (Petition, p. 2) that the Clarke

article had any determinative influence on the outcome,

shows that the conclusion of the court was based

strictly on “the proofs” which did not include the Clarke

article: In the case at bar the majority opinion of the

court below specifically 80 holds (Opinion, R. p. 248). .

(2) The petition (p. 3) states that “the facts con-.

cerning this article were first revealed in the summer of

1941 * * *”. A similar claim is made on page 9. But

the record is clear, as pointed out in the foregoing out-

line of events, that Hazel knew in 1929, and in 1932 as

well, of the only material fact, namely, that the Clarke

article was initially drafted by. Hatch and not by Clarke.

(3) Petitioner asserts at various places, e. g., Peti-

tion, pp. 5, 21, that the article was referred to in Hart-

ford’s brief in the Circuit Court.of Appeals in the hope of

“poisoning”, and did in fact poison“, the minds of the

judges of the court. But the undisputed fact is that the

article ig entirely true; and, as pointed out in the opinion

of the court below (Opinion, R. p. 244), the only criticism- |

made in the Hazel brief was that a chart, forming a

part of the article, was “misleading” and was “not

competent evidence” against Hazel.

Appendix. 2823

(4) Petitioner concedes (Petition, p. 7) that

through Edmund P. and William R. Wood, it had learned

in 1929 of the origin of the Clarke article. Petitioner's

suggestion that “this was purely héarsay” (Petition, p.

7) is clearly erroneous. It was plainly an admission by

Hatch and, in any event, had Hazel chosen at the trial of

the case to challenge the authorship of the article, it

could readily have called Hatch and-Clarke as witnesses.

This it did not do, either during the trial in the District

Court, or after the, decision of the Court of Appeals,

although it then could readily have obtained leave to

take depositions of Clarke and Hatch if it had regarded

the initial authorship of the Clarke article as material

or important. :

5) Hazel-Atlas’ petition- p. 9) implies that Hazel

entered into its license agreement with Hartford

in July, 1932 because it was “faced with this situation” ;

namely, lack of ability to prove authorship of the article.

There is no factual support for the suggestion. The

agreement was a cross-licensing agreement, highly

profitable to Hazel. It was not until six months after

the order impounding the monies receivable by Hazel un-

der it was entered by the District Court in Toledo—when

the agreement for the first time became unprofitable to

Hazel, that it saw fit to initiate this proceeding by the

filing of its original petition ( nent R. p. 245).

f 6) Petitioner's reference (Petition, p. 12) to pro-

ceedings in the Shawkee case is incomplete. The facts,

found by the court below (Opinion, R. pp. 246-7), are

that Shawkee was not only well informed as to the essen-

tial facts but called them to the attention of the Court of

Appeals while the Shawkee appeal was still under con-.

sideration. And, although that court was thus in-

34 A4 Appendia.

formed, not only did it ‘reassert the holding of validity

of the Peiler patent which it had reached in the Hazel

case, but Judge WOOLLEY, ' who has dissented in the Hazel

case, flled a special concurrence, a thing which it is cer-

tain he would not have done had he felt either (a) that .

‘the origin of the Clarke article had had any material

bearing on the outcome of the Hazel-Atlas case or (b}

that it was of any intrinsic importance.

The dissenting opinion below evidences clear | misap-

prehension of the facts of record:

(1) It states (R. p. 259) that “the heart and es-

sence of the fraud” was that:

. “Apparently, at no place in the proceedings of the

Bottle Blowers Association, to which Hateh re-

ferred, was any reference made to gob-feeders; viz.,

to devices such as Peiler’s. .* * * those proceed-.

ings in fact make no reference to them, *

But “devices such. as Peiler's“, including feeders of

Peiler’s own design, are referred to in many places in

the Bottle Blowers Proceedings, as quoted in the record

herein. For example, the “Hartford-Fairmont Flow’,

and also another Peiler feeder called the. Hartford

Single Feeder“, are referred to in the proceedings 4s.

quoted on page 231 of the record. On the same page,

reference is made to the “gob process”, and to the Hart-

ford Multiple Feeder”.

Other references by name to Hartford-Fairmont

Peiler feeders are found. in the proceedings quoted in the

record at pages 236-239 inclusive. Also, installations of

Hartford-Fairmont and Hartford-Empire Peiler feeders

are referred to by the names of the manufacturers using

them at several places in the proceedings, as quoted in

the record at pages 235-6, 237-8. i

Appendiz, „„

Other “devices such as Peiler’ a viz., reciprocating

inger feeders which ch drop gobs or mold eharges freely

o molds, are referred to in the Proceedings as quoted

pages 231, 237-9, being there identified as Howard,

ller, Illinois Pacific, .Nivision- Weiskopf, O'Neill,

eves, etc.

It is thus apparent that, while neither the union

oceedings nor the Clarke article emphasize feeders

urketed by Hartford any more than others, and do not

fer to Peiler’s invention as such, (Peiler is not even

ntioned in either), still the dissenting opinion is

ainly wrong in stating that 5 proceedings do not

fer to devices such as Peiler's“

(2) Another factual error in 2 dissenting opin-

1, which apparently accounts for the caustic 3 of

aud in that opinion, is the statement (R. p. 261):

„At about this time, May 20, 1932, Clarke demanded

of Hatch or Hartford-Empire the sum of $10,000.”

arke’s only request for money was made two months

ter, viz., on July 22, 1932 (six years after the article

as published), as is chown by the Hatch affidavit (R.

. 89-90), and by the Brown affidavit (R. p. 79). This

ference in dates is important because of the further

atement in the dissenting opinion (R. p. 261):

“In ‘connection with the payment to Clarke, Hatch

wrote Carter a letter dated May 28, 1932,” .

id bonus of the reference in the dissenting opinion

N. p. 261) to

“* * * the other letters written by Hatch to offi-

cers of Hartford-Empire and Owens-Illinois | Glass

Company at this time,

———

36 areas.

which the dissenting judge an quite 1

had referente to the payment of money to Clarke, but

which were all written i in May, 1932, before any —

of on had arisen. . :

(3) A. on page of the record, the dissent-

ing opinion states:

“The Court: thought that the Clarke Article repre-

sented the opinion of members of a labor union in

_ Tespect to a labor saving device * * *”

as: it this were untrue. It is perfectly true. The article

did and does represent the union’s opinion, as is shown

by the affidavits of Clarke (R. p. 111), and of Maloney

(R. p. 112), by the Clarke-Maloney correspondence

(R. pp. 130-122), and by the printed Union Proceedings

(R. pp. 219-239 incl.).

(4) . Still another factual error of importance in

the dissenting opinion is the statement (R. p. 258) that

“a deliberate intention to avoid truthfulness” is shown

by a letter written by Hatch in which he said, in part:

I prepared the article so far as possible with refer-

ence only to the proceedings of the Bottle Blowers

Association and knowingly and intentionally I re-

produced some of the errors found therein.“

In making this quotation, it was evidently overlooked

that the quoted statement referred to a preliminary draft

of the Clarke article, and that the errors were corrected

before the article was published, so far as correction was

possible. See Hatch affidavit (R. p. 85). As shown

above, the Clarke article as ‘published was entirely true

and correct, and the instant petition does not deny this

fact. :