Transcript of Record — Shawkee Manufacturing Co. v. Hartford-Empire Co.

OCTOBER TERM, 1943

No. 423~

La

vs.-

HARTFORD-EMPIRE COMPANY

OF, APPEALS FOR THE THIRD CIRCUIT

IN DEX.

‘Order allowing certiorari. .................2.0.0-0eeee. Poe . 2

Original

Proceedings in U. 8. C. C.'A, Third Circuit. OF Ee fat ES Te 1

SEINE RES TE Cree 1

Petition for leave to file a bill WE GNII os ana snes tense sus 2

Affidavit of ‘William B. Jaspert in support of petition wee 12

ann at aa ke une ea cenabahesaa dns 14

Plaintiff's memorandum in opposition to petition for leave

EVM ONO GOON. 6. 5c. 5 casino cauveccccscetdcss 20

Petition, brief and affidavit on behalf of U nited States of ;

} Dmmerion an nmmloms CUTIOS. .... «622 o ionic ees ceees 47

_ Minute entry of hearing eine hh a ik hok sa ns tik ee eA eer 59

- Opinion, per curiam, denying pee for leave to file bill

OE SERIES a dare ore tee ene 59

Amendment to petition and memorandum i in casi thereof 60

Reply rrr. errr Seer 64

_ Schedule ““A”—-Pertinent correspondence and exhibits.. 75

Schedule “‘B”—Chronology of important events in suit 90 .

Minute entry of hearing on penrgumemt..........0...60:. . 8

IR Ms 5 5 ck Xig n ss Ss awd’ b newsetncn seeds 93

Dissenting opinion, Riggs, ps SS eae ae wee 104

Order denying petition to vacate dobry. fekea eee aaeeaan 119

ESCO TET COL, Le POO CPOE EE COTE 120

* Order extending time within which to file petition for certiorari. 120

SUPREME COURT OF THE UNITED STATES

SHAWKEE MANUFACTURING COMPANY, GLEN.

SHAW GLASS COMPANY, McKEE GLASS~ COM-

mate AND GEORGE R, HAUB, ‘PETITIONERS,

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

—-9483

Jupp & Derweirer (INc.), PRINTERS, WASHINGTON, D. C., DeceMBEB 16, 1943.

1

[fol: a] [Stamp :] Office of the’ Chi, Suprénte Court,

ef S. Sep. 2, 1943. cae

___Ix THE Unxirep Srares-Cmevtr Corer OF “AprraLs FOR THE

‘Trip Cimevir

- No. 5203

Suawker Merc. Co., et al., Defendants-Appellants,

: _ VS... 2 i

~ Hartrorp-EMrire Comrany, Plaintiff-Appellee |

Ene __ Pentinent Docket “Entries

October 24, 1941. Petition for Leave to File a Bill of

Review and- Affidavit of William B. Jaspert-filed. .

* + October 24, 1941. Brief in Support of Petition: for Leave

‘to File a Bill of Review filed. \

October 31, 1941. Hartford Téstimony & Correspondence

Referred to filed.

December 5, 1941. Memorandum of -Plaintiff in * Opposi-

tion to Petition for Leave to File-a Bill of Review filed.

: December 5, 1941.. Affidavits and Exhibits of Respontient-

Plaintiff Hartford Empire Co. ete. filed in 4414:

_ December 5, 1941. Heard on Petition for Leave to File

~a Bill of Review etc. Coram: Biggs, Maris, Clark & Jones; |

JS.

December 5 5, 1941. Pétition of Uuited States to file Amicus

Curiae Brief’ ete. filed—granted. |

December 12, 1941.. Reply Memorandum of Petitions "YS,

_ Chawkee Maniuf. Co. et, al., filed.

December 29, 1941. Opinion Per Curiam Denying Pe-

_titioi to File a Bill of Revi iew ete. filed.

December 29, 1941. Copy of opinion to Wm. B. Jaspert.

January 7, 1942. Amendment, to Defendants Petition.

filed Oct. 24, 1941, and Supporting. Memorandum, filed.

December 29, 1941. - Order Denying Prayer, of Petition

_fot Leave to File Bill of Review in Distriet Court and

Granting Leave to Otherwise Amend. the Praver of the

Petition . filed.

February 3, 1942. Reply to Aissendie Pe tition of Det tends

- ant to Vacate Decree ete. filed.

-* February 4,1942. Acknowledgment of. Servi ice of Reply

to Amended Petition filed. : :

1—810¢

F ——

——

—

February 17, 194: 2. Brief for Respondent filed (Hartford .

Emp. Co.): | : ae

February 19, 1942. Acknowledgment of Service of Brief

for Respondent filed.-

Februafy 24, 1942. Brief in Support of Amended Peti-

tiow for Rehearing ete. filed. .

2 February 24, 1942. Appendix to- Brief in Support of

- Amended -Petition for Rehearing ete. filed.

February 27, 1942. Reargved on Petition. for Leave to

Filea Bill of Revi iew, Coram: Biggs, Maris, Clark & Jones

JJ.

March 4, 1942. ‘Affidavit of John S.- McCarthy. filed in

No. 4414. -'s iors ,

March 16, 1942... Reply brief for Respondent Hartford

' Empire Co. filed. a: | -_

~ March 11, 1942. 2. Acknowledgment of Service of Respond. .

- ents Brief filed. .

June 30, 1943. Opinion of the Court by Jones, J. filed.

June 30, 1943. Dissenting Opinion by, Biggs, J. filed.

- June 36, 1943. Order Denying Petition of Appellants to

Vacate Decree, Judge Biggs Dissenting filed:

,

— ffol bp Is rue Usirep States C IncuIT Court or APPEAL,

Tarp Cixcurr ,

: - No. (5203

Hartrorp-Empre Compaxy, Plaintiff-Appellee,

si ak é

Suawkee Manvuractunine Company, GLENSHAaW Grass Com-

pany, MeKee Glass - Company - -and George R. Hanb,

Defe ‘ndants-Appellants

- In Equity No. 2791

, P ETITION FOR LEAVE to Five A Bix oF Revirw ¢

Arripavir Be Wisiuie B...Jaspert

Pa. Bu. er Kevirw

“ffoke]) 7° INDEX - cre. -

- ‘ Pace

_. “Petition for Leave to File a Bill of Review — ae

Affidavit of William B. Jaspert 2

Bill of Review. - | . 14

o . e a ,

7

“{fol. 1| To the Hienarsbte. the Jadges of the United States —

' Cireuit Court of Appeals. for the.Third Cireuit :

Now come, Shaw kee Manufacturing Compaty, Gle ishaw

“Glass Company, McKee Glass Company and-George R.

a your petitioners, and respectfully represent and show.

to\this Honorable Court :

utjon May 31, 1933 Hartford-Empire C omipany, plain-

tiff below, filed its. bill of complaint (SR 3) in the United ,

> *States District Court for-the Western District of Pennsyl-

~ (fol. 2] vania alleging infringement of United States Let--

~~ ters Patent to Peiler No. 1,655,391 (SR 311) dated January

3, 1928 for. apparatus and method of mechanically feeding

nielter glass to the molds of: ware-forming machines.

That Peiler Patent No. 1,655,391 discloses an apparatus

\- for. feeding suspended charges cf molten glass to the ‘molds

‘of ware forming machines by means of a reciprocating plug

or plunger which acts upon the glass to extrude it through

a submerged feeding orifice, whereas the petitioners’ Shaw-

kee feeder (SR 45) did not eniploy any reciprocating im:-

_plenient whatsoever but utilized air pressure ¢ and vacuum

to control the flow of. glass a& disclosed in the expired

«patents to Hitchcock No. 805,068 (SR 359) and RE-13,929

(SR 351) granted November 21, 1905. cee

That because petitioners” feeder did not employ: dny’ of

. the apparatus of the pi: 1 in suit, infringentent was

charged only ‘on m_piethod claims 9, 10, 11, 12, 13, 14 and

46, most of the remaining sixty claims of the patent in

suit, being for apparatus, which the petitioners’ structure

did not employ. |

That on the samé date, to-wit: May 31, 1933, the plain-

tiff, in reliance upen this Court’s former decision in a suit

entitled Hartford- Empire (‘o. Hazel-Atlas Glass. Co.,

.. reported in 59 F. (2d) 399, ir hie +h the same Peiler Patent

- No. 1,655,391 was held valid and infringed, filed its mation

for preliminary injunction (SR 24), accompanied by affi-

davits in support thereof. ©

That on June 10, 1933, the petitioners filed their opposi-

tion to plaintiff's mation for pretiminary injunction (SR

+3), accompanied by affidavits in support thereof.

—,

Reference to Shaw kee et al. Ree ord is herein marked (SR).

Ref erence to Hazel- Atlas Ree ord i is herein marked (HR,

vo —). aa

eet EN it oe

That, on fans 22, 1933, the District Court’ oor Judge ©

“Me Vicar): filed and. entered its opinion granting the pre-

liniinary injunction ‘against petitioners (SR 259). .

{fol.3] That on June 27, 1933, the petitioners filed their

_answér denying validity and infringement of said Peiler

Patent No. 1,655,391 (SR 15).

- That.on, June 27, 1933 the District Court’ filed and en-

tered its decree (SR 262) directinig that a preliminary in-:

junction issue against ‘petitioners, which. injunction issued

Ps June 28, --

_ That thereafter, petitioners having perfected their appea!

to this Court, said appeal came on for hearing upon the

briefs and arguments of counsel on October 3, 1933, and

that upon the hearing before this.Court it was agreed that

the case might be disposed of as if on final hearing.

That thereafter and on to wit: January 11, 1934, this

Court filed its opinion (68 F. 2d, 726); (SR 489) in which

. opinion the Court referred to its-former opinion in Hart-

ford-Empire Company vs. Hazel-Atlas Glass Company (59

F. 2d, 399) wherein ‘the said Peiler Patent No. 1,655,391.

had previously been adjudicated,‘and stated, that having

held the patent valid and broad enough to. cover the Flazel-

Atlas Glass Company’s reciprocating plunger device

‘:**For the same reasons we hold that the claims of the

patent here in suit are broad enough’ to cover the de-

fendants’ device. aid

The Court ordered 1 2 dismissal of the appeal, and remanded

‘the case for proceedings in due ¢ourse.

That on February 8, 1934 your petitioners. filed their

petition for rehearing in this Court, which was denied

_ February 21, 1934 (SR 495-503).

That on April 3, 1934 your notilionees file d their pe tition

for Writ of Certierari in the Supreme Court of the United

States, which was denied on May i, 1934.

{fol.4] That on May 29, 1934, your petitioners filed in

this Court, petition for leave to file a bill of review (SR

905) grounded on the decisions in other Federal jurisdic:

tions and a decision of the British House of Lords involy- _

ing plaintiff's glass feeding patents, which was deriied with-'

out opinion on July 23, 1934 (SR‘ 523).

That on September 7, 1934 your petitioners filed petition

for Writ of Certiorari in the: Supreme Court af the United

5

States for a review of said decision next above recited,

which-was denied October 15, 1934.

- That thereafter thé mandate (SR 529) of this Court was

entered in said Court on October 17, 1934. —.

That pursuant to said mandate, on October 19, 1934, the

District Court entered its Deeree and Order of reference

for an accounting.

That on October 24, 1934, your petitioners filed in this

Court petition to amend and reform the mandate (SR —

_ which was denied November 14, 1934.

That on April ‘&, 1935 your petitioners filed petition for

leave to file a bill of review (SR 537) in-this Court grounded

was denied without opinion on July. 3, 1935. -

for Writ of Certiorari in the Supreme Court of the United

States for a _review.of said decision next above - recited,

which ‘on October 28, 1935 was denied.

ment to the answer in the’ District Court of the- United

on. the issuanee of two _ patents, to the plaintiff (Nos,

2,073,571 and. 2,073,572) as the result of a suit brought

by plaintiff against the Commissioner of Patents | on ap-

* plications filed in 1910 and 1914, the patents being, for the

same generic invention that this Court had attributed to

Peiler Patent No. 1,655,391 in the Hazel-Atlas Glass Com-

pany and Shawkee ét al. decisions, which petition was

denied May 31, 1938 without opinion.

-s profits to plaintiff having been filed, a final Order of

Court closing the litigation was entered February 14, 1939.

your petitioners have Grecoveren' new matter of consequence

as a

on newly distovered evidence growing ‘out of the prior,

testimony of the ‘predecessor’ of the plaintiff in the unre-

ported : ‘and undecided case. of Hartford-Fairmont Glass.

Company vs: Berney-Bond Glass Company, which petition,

That on March 5 5, 1938, ‘the case being in an interlocutor y-

stage of aceounting hefore the Special Master, -your peti--

‘|fol. 5] tioners filed petition in this Court for leave to file

a petition for rehéaring ‘and to file a supplemental amend:.

That the report of the Special Master for an ace ounttny

That since the rendition and entry of the decree aforesaid,

transmitted ‘to. the Distriet Court and was duly filed“and) °

-

That on October 1, 1939, your ‘petitioners filed petition ——

‘States-for the Western District of Penuextrania grounded

‘in the said cause, Particularly and Separately .Set Forth

6 Reren wen ras, Se

That in the now pending and undecided «uit entitled —

United States of America vs. Hartford-Empire Company

: al.,«ivil action, Case Ng. 4426, being tried in the District

‘ourt at Toledo, Ohio, charging, inter alia, violation of See-

som Land 2 of the Sherman Act and Section 3 of the Clay-

ton Ao by unlawfully conspiring and mopopolizing patents

covering ‘the manufacture apd licensing of glass making

machinery, there was introduced into evidence, testimony _

of one R. F. Hatch, and documentary exhibits * establishing

that an article entitled ‘‘Sntroduction of Automatic Glass

Workjng Machinery ; How Received by Organized Labor,”

[fol. 6] allegedly written by William P. Clarke,** President

of the American Flint Workers Union, and published in the

Nattonal Glass Budg»t, July 17, 1926, at Pittsburgh, Penn-

sylvania,was written by Hartford- Empire Company’s pat-

ent solicitor, ‘R. FP. Hatch, at the instigation of the com-

pany's chief patent counsel and Vice President, R. B. *

Brown. ~

That said R. D. Brown suggested the publication of said

article to Henry W. Carter, in charge of the patent depart-

nient of the Owens Gluss Com ompany (which had a cross

lieense arrangement with Hartford-Empire Company) for

the purpose of.influencing the Patent Office Examiner to a

more favorable consideration of Hartford's. broatl claims

in the then-pending application of patent No. 1,655,391, and.

the article was so employed by Hartford. oe

. That at the hearing on appeal before this Court in the .

case of Hartford-Empire Co. v. Hazel-Atlas Glass-Co., 59

F. (2d) 399, this-Court-was induced to accept the statements

of the Clarke article as establishing that the invention of

Peiler Patent No. 1,655,391 was revolutionary, and in reli-

ance upon said article. this Court reversed the trial court

Z .

*

- * Ptofert éf- certified copies of said testimony and all of

the documentary ev idepee i is hereby made.

** It appears from the aforementioned testimony and

exhibits that on May 24, 1932, after this Court’s decision in

the Hazel-Atlas case, William P. Clarke, having suffered:

financial reverses, asked R. P. Hatch for ten thousand dol-

lars ($10,000.00), ahd Hatch paid Clarke five hundred

($500.00) dollars in cash on Augyst 4th or 5th, 1932, and

seventy-five hundred (47 900.00) dollars in cash on August

10, 1932.

(per Jadge Gibson) and gave the patent «a “wend generic

scope, with the Honorable Judge Woolley sharply dis-

senting. -

_ That the facts establishing the. falsity of the Clarke

article, why and how it was prepared, and the. manner in

which it was employed in the Patent Office to obtain the -

patent, and in this Court to obtain a favorable decision ap-—

wldihg the patent, appear as follows:

- [fol. 7] In the lettér dated December 11, 192 25 addressed to

. Henry W. Carter, written by R. D. Brown, he states : ‘

“The other day in Washington we discussed in a rather

' joking way, the possibility that you might write up an

article describing the revolution prodneed-in the glass

business by the plunger gob feetling system. The more

I think of this the better the idea seeys and I am writ-

ing to enquire whether you would seriously care to

undertake the preparation of such article to ‘be a

either by yourself or someone else:

‘“As you will no doubt recall,. the importance of this

matter lies in the fact that we must soon make a record

before the Patent Office, in connection with the prin-

cipal Steimer case and also in our Peiler plunger case,

- ~ where we hope to obtain_claims, covering the broad

ideas of feeding suspended?mold charxes shaped vu. the

action of a plunger.

" Ina letter dated May 25, 1926, written by Henry W.

Carter to W. H. Boshart, President of the Owens Bottle

Company, he said: e

' “It occurs to me that I should make myself. more clear

. about the purpose of this Hatch article.

**He has prepared it with the idea of getting it printed

whder the name of seme apparently unpre judiced

authority, and then calling.the attention of the Patent

Office Examiner to the article as published, in the belief

that the Exaniiner will thereby be influenced to a mote

favorable consideration of Hartford’s broad clainfs.

‘Of course we are equally interested with Hartford in

| securing these broad claims, and therefore indirectly

' interested in having the article published.” - |

[fol.8} In an amendment filed in the United States Patent

Office, dated une 23, 1926, Jhree.weeks prior to the publica-

I

° .

—— ' 7 . AN

Q

tion of the Clarke article in the National Glaze. Budget,

. Hartford-Empire Company stated under the Remarks,

' first paragraph (HR, Vol. V, p. 226) :

‘‘For the Examiner’s information, a discussion of the

- subject-matter of this case is being prepared, with

affidavits and exhibits, showing the widespread recog-

nition by the glass art of fhe novelty and great value of

the features claimed herein, * * *”

On October 12, 1926, plaintiff, Hartford- elite. Com-

pany, filed in the Patent Office a number of affidavits and

exhibits, including a copy of the National Glass Budget

publication of the Clarke (Hatch) ‘article, which, as stated

in the ‘‘Remarks’’ ean tite the amendment (HR,

Vol. V, p. 261), were:

we a intended to lay before the Patent Office eer-

tain material facts relating to the development of the

type of glass feedérs to- which this application re-

lates | e © 099 :

And therein it was farther stated that:

‘“‘The rapid and widespread commercial adoption of

suspended-tharge glass feeders, particularly plunger:

-feedérs, is an interesting.and remarkable story. °° °"

- ‘With reference to the Clarke article, | it | is stated (HR, -

Vol. V, p. 263): .

2 ‘The article published in the National Glass Budget

for July 17, 1926, by William P. Clarke, President of

the American Fiint Glass Workers’ Union, is an in-

teresting account of the introduction of automatic class

machinery and its reception by the labor unions. * * *°

[fol 9]> The applicant’s remarks further stated, with ref

erence tc i Clarke article (HR, Vol. V, p. 264-265) :

oe The curves shown on this chart are interest-

ing as showi ing that the production on the Owens ma-

chines fell off at just about the time when the sus-

pended-charge feeders got under way. ‘y .s

‘‘The conclusion of the whole matter is, that the sus:

pended-charge feeder has accomplished «a revolution

in. the glass art, * *-*%. It is submitted, therefore,

that these claims’ are entitled to favorable considera-

tion, which is respectfully solicited.*”

_ . i PG *

. : 9

That by reason of the publication of the Hartford-Hatch

_ article over the name of. William-P. Clarke, President of the

American Fiint Glass Workers Union, this Court in the

Hartford-Empire Company.-vs. Hazel-Atlas‘Glass Company |

case was induced, by reference to the Clarke article on page |

1s of plaintiff’s brief, to accept the statements contained

therein as reason for sustdining the patent in suit. This.

Court.in the. Hazel-Atlas decision (59 F. 2d, 399) devoted

several pages of its opinion to a discussion of. the Clarke -

article as a.basis for extending a broad generic scope to

Peiler Patent No. 1,655,391 and to emW®ace within that

patent the radically different method of the Hazel-Atlas ~

device. ,

That the Court prefaced its discussion of the Clarke

article by reference to its former decision in Consolidated

Window Glass Co..v. W indow Glass Machine Co., 261 Fed.

- B62, as showing that because of the hostility of labor unions

- to labor supplanting machinery, any fav orable —

“of the unions could be accepted as true.

‘That with reference to the Clarke article, the court, be-

-vinning page 401, said:

_*tAs we have indicated, the labor organizations were

vitally interested in the supplanting of hand blowing by

[fol. 10] mechanical blowers, and we nafurally look to

the proceedings of their several organizations to find

what machine blowers were of practical working capac-

ity aud ones which. they regarded as supplanting lung:

blowing.’ We can therefore, and do, rely on. their

opinion in that regard, for successful machine blowers

largely spelled ending of the supremacy of lung hlow-

ine. a a .

That because of the plaintiff’s fraudulent act of, publish-

ing the artide as taken. from the proceedings of the Glass

‘Blowers Union, which was allegedly adamantly opposed to

the introduction of mechanical blowing machines, this Court

(Judges Buffington and Davis, Judge Woolley dissenting)

Was induced to accept the statements of the Clarké article:

as true, when in fact they are false, and this. Court was’;

further induced thereby to attribute a broad stope tp the

Peiler patent in suit, which differed shdrply from the deci-

sion of the District Court (Judge Gibson) and the dissenting: |

opinion of Judge Woolley, both of -whom restricted the |

‘patent to the precise mechanism which it disclosed.

1

That’ because of the we scope attributed to Peiler

Patent No. 1,655,391 in the Hazel decision, this Court said.

ins its Shawkee decision, that it would be unnecessary 10,

further consider validity or infringement, and held. the

petitioners” Shawkee air impulse feeder to be au infrimes-

thent of Peiler plunger Patent No. 1,633,391. as

That the Clarke article is false and untrue wnd-not based

on fact appears from the Hatch and Carter letters. as.

follows: °° 2 . A

In the Jetter. of Carter to Boshart ef May, 29, 1926

states : ye! ‘ P

**Under the cirenmstances, ] do not see that * we: need

‘

be very critica) in Our treatment of the “article, J+ wot’

tow rank. would sav that we better 1a it. go throuch.

*

{fol.11} In a Jetter by ch to , Cartes: April 14, 1926, he,

states:

= vennieea this morning vour jetier re lating tO mm)

proposed article on Feeding’. ] appreciate vou

comments very q@uch indeed and 7] think there i+ bu

one point on which vou failed to apprecinte mi. exact

position. That is. ] prepared this article so far a+

sible with reference only to the proceedings of T1

Bottle Blowers Asseaiation, and kwouwmaly and om i

tre mally Isr: priducrd some of the errors Tound tier

'~

+

For -exat nple. in aby statement as to the nuinber of,

(Wvens mzic hinésein use. ] have used the numbers gives

in the proceedings. oren when ] knew this was not oor

reé 1. y > @r°

(Emphasis Ours) “* :

— Ina letter written by Hatch to- Carter, April@s. 1926, 4

states: Peep

ee 8 8 Of caurse. 1 think vou understand th:

whole onject of the article is to make an exense to oc

the production cnrves and a few statements in Tegard

to gob feeding into print.” :

That thé production curves showing the relative increas

of the gob feeder over the Owens machine were in then

selves false appears from the letter by Carter to Hat

April 17, 1926, as follows: . afte

‘Am not sure that-] quite understand vour ** increas

line. The falling off for Owens in 1921 was.entire’s

, +

e. . : - : mi > : : } 1]

due, 1 take. it, to ‘the general collapse of business dur-

ing that vear, and | should. ‘xpect it to be tuore or less

paralleled by a falling off in feeder production. * * *"*

‘fol. 12) In reply to this, Hatch, by letter dated “aii 28,

i: rt, said:

"You. ‘spoke. in one of your letters, about the depres-

sion in business during the year 1921. You may be

interested in the enclosed chart which shows: the rela-

, tive Joss in business by Hartford and Owens .at that

/ tite. 1] cannot understand why there was so auch

vreater drop in the Owens production, unless it be that

our production records are based on the rovaltt paid

Sand it might be that the agtual bu~ines- done was much

jess than ,that indicated by the minimum royalties

wiach had to be paid anyway.” r 3 :

* That from the Carter-Hateli letters dt appears that the

~ Hart ford curve of feeder production Was based op dhitiiinum

rovalties and not on actual produc tiow. 11 further appears

from the @urves in the National Glass Budeet article that

there was no dray in either Owens or Hartford feeder. pro-

duction for the veur WT. and thaf the drop referred to

the Carter'and Hatel letters were it tentionally not repro.

duéed in the-Nationa! Glass Budge? chart. .

That counsel for petitioners, after hearing iy

learned that the Clarke urtie je Sia cate. ed at

af sgn an ca Company. and your pet

.

etter dated Oetober S45, 1955, wc lressed to the Hon. Joseph

ee: ; .

this Court,

ay

itioners, by

x, .

m@ request

1 that it

wd heen submsitted to the National Glass Budget fy sap

with thee request ray pirbelisty it over the natue of Clarke,

appears from the “correspondence (proffer of which x

hereby made)

. That it further appears fren, said. COPresponderices that

neither counsel ior-the Hazel-Atias Glass Co. or the Shaw:

/ tee Manufacturing Conqany knew that it was written by

Hated oy that it was false. and that the true fact. wore wert

‘ther available to counsel and were <arpressed by plaintiff.

fools. 15-147) That vour petitioners were unable. by reason

af 43 . . . cast

Of the extent and characte of the Investigation Hecessary

Gireerted this ¢ ‘ourt’ me nttertion to the Tac

ims ate

tudeven t x the use of ali proper and recsonable ‘diligence tn

Wseovering the matters ba reIN presented. toy repere ana

Nie any petition ‘for leave to file bill of review in said cause

prior to June, 1947 when the Hateh testimony was concloded

12

in the Government. suit at Toledo, and the newly discovered

evidence was not known to petitioners until the latter part

of July, 1941 whén counsel for petitioners reviewed the

- transcript of.the record of testimony at the Federal Build-

ing, Toledo, Ohio, as appears from +the-attachéd affidavi t of

William B. Jaspert.

- That the newly discovered evadionne | is indisputably: true .

and material and may induce a different decree in this cause.

Your Petitioners: Therefore Pray that they may be at lib-

erty to file a bill of review for the purpose of having said

deciston ofthis Court, dated January 11, 1934, reviewed,

reversed and set aside; your petitioners further pray for an.

order tirecting that the plaintiff, Hartford- Empire Cou-

~, pany, may be served hy mailing a copy of the bill of review

to its general offices at Hartford, Connecticut, and your pe-

titioners further pray this Honorable Court that at the

hearing thereof an order be made by this Court granting

petition for leave to file in the District Court: for the West-

ern District of Pennstlvania. the -bill of review, copy of

which proposed bill is attached hereto.

| Shawkee Manufacturing. Company, Glenshaw Glass

Compiny, MeKee Glass Company, George R.

Haub, by William B. Jaspert,- Their Attorney.

. October 21, 1941.

[fol. 15] In tue Unrrep Sratres Circuit Govurr OF Ar PEALS,

Trirp Circuit. .

; No. 5203 :

: °))d Harrrogp-Eupme Company, Plaintiff-Appellee,

vs. aa

SHAWKEE MANUFACTURING Company, GLENSHAW GLass Com-

pany, MeKée Glass Company and George R. Haub, De--

fendants- Appellants .

: In Equity No. 2791 7

Ow PE IN F¢ rave TO Fine tHe Brun or Revirw ’

Affidavit of W liam B. Jaspert

State OF PENNSYLVANIA, _

County of Allegheny, ss.:

Wu. iam B. Jaspert, being duly sworn, heohewn and says:

2 | have been engaged in the practice of patent law since

1921 and maintain an office at 1422 Farmers Bank. Building,

Pittsburgh, Peunsylvania.

_

15

{fol. 16] I was attorney for petitioners, Shawkee Manu-

facturing Company, Glenshaw’ Glass Company, McKee .

Glass Company and George R. Haub throughout the proceed-_

ings in the above-entitled-suit— agers 27RD

On July 22, 1941 I inspected, the transeript of reeord and

documentary evidence adduced ‘in the trial, entitled United

States of America, Plaintiff, vs. Hartford- Empire Compan$

‘etal. Defendants, Civil Action Case No. -4426.in the District

: Court at Toledo, Ohio, to discover certain facts pertaining to

a transaction between one of your petitioner companies

(Glenshaw Glass -Company, .Pittsburgh, Pennsylvania) ;

George KE; Howard and the Hartford-Empire Company, and |

while so engaged I discovered the testimony of R. P. Hatch

and the letters referred to therein with reference to -the

‘preparation ayd publication. of an article published ov er the

‘name of William P. Clarke, President of the American

- Flint Glass Workers Union, appearing in the July 17, 1926

issue of the National Glass Budget at Pittsburgh, Pennsyl-

vania, the artitle being entitled ‘‘ Introduction of Automatic

. Glass Ww orking Machinery ; How Received By Organized

Labor’’.

Recalling that the authenticity of this article was. in ques-

tion after hearing in the Shawkee case and that certain cor-

respondence had passed between Hon. Thomas G. Haight,

senior counsel for Hartford-Empire Company; and Otto R.

Baryett, senior counsel for Shawkee Manufacturing Com-

/ pany, aud the Hon: Joseph Buffington oftthe Court of Ap-

peals for the Third Circuit, I made a careful examination

_ of the Hateh testimony and the letter exhibits referred to |

therein. —

‘Believing the newty discov ered evidence to be of a ch: ir

acter ey idencing miseonduet by Hartford-Empire Company

in the procurement of Peiler Patent No. 1,655,391 from the

Patent Office and in the procurement of favorable decrees of

the Court of Appeals in the suits entitled Hartford. Empire

[fols. 17-18] Company v. Hazel-Atlas Gass. Company’ (59

F. 2d,°399) and Hartford-Empire Company v. Shawkee

Manufacturing Company et al; (68 F. 2d, 726), T have made

a careful study.and analy sis-of the said testimony and eévi- ~

“dence and have dilixently applied myself in the preparation

_ of the petition, the bill of review and the brief.

Upon inquiry made of the personnel of the. Anti-Trust

Division of the Department .of Justice in charge of the

Toledo suit, T.was —— that the letters refer red to,in the

—

petition + were taken from the-files of the Hartford-Empire

14

o-

Company and the Owens-Illinois Glass Company by Govern-

ment Investigators, and that these letters have been certified

by. thenamed cor porate parties as coming from their files.

‘Other than the letter dated July 9, 1926 by R. F. Hatch

to the National Glass Budget requesting that the. article

be published over’ the name of William P. Clarke, I had

no knowledge prior to July 22, 1941 that the Clarke article

was false or that it was written by R. P, Hatch at the sugges-

_ _ tion of RD. Brown,‘or that it was published to induce the

Patent Office, to grant brvad claims in the Peiler plunger

pa vent, or any ‘of the ma‘ters establishing that the article

ix not based on fact, ‘as set forth in the petition tor leave

- /to file a bill of review.

a

/

WwW herefore, the newly ‘discovered evidence could not

sooner have been available to your petitioners and was not

known to affiant.

a B. Jasper.

Subse Yr ‘bed and sworn to before me a Notary Public

‘this 21st day of October, 1941. Eva G. Seardamalia.

My Commission expires January 27, 1945.

‘{fol. 19] Usirep States District Court ror THE WeEsTERN

District OF Pex NNSYLVANIA

Civil hnolies No. — |

Hartronp-Empme Company, Plaintiff,

: - a an we

SHAWKEE MANUFACTURING COMPANY, GLENSHAW GLass €'oM-

pany, McKee Guass Company and GEORGE R. Hate. De-

fendants

ane ‘ But or Review

.To the Honorable Judyes of the United States District

Court for the Western District of’ Pennsylvania:

Your ‘petitioners, Shawkee Manufacturing Company.

Glenshaw Glass Company, MeKee Glass Company and

George R. Haub cacti represent and show to the

Court: - . .

a ‘15

- That on May 31,1933 Hartford-Empire Company, -ilain-

- tiff, filed its bill of complaint.in this Court alleging infringe-

ment of United States Letters Patent to Peiler Noe. 1,655,391

dated January 3,.1928 for apparatus and method of me-

chanically feeding molten, glass to the molds of ware-forn-

ing machine.

II

That on the same date, to-wit: May 31, 1933, in relianee

upon the decision of the Court be Appeals in the tase of |

(fol. 20] Hartford-Empire Co. v. Hazel Atlas Glass Co.,

—, a9 F. (2d). 399, holding patent 16: 35,391 valid and infringe ’

"plaintiff filed its motion for preliminary injwiction, ae-

companied by affidavits én support thereof, ; |

ie

That on June 10, 1933 petitioners filed their opposition

to plaintiff's motion for preliminary injunction, a

nied by affidavits in support thereof.

IV

That on June 29. 1933, this Court (per. Judge MeVic: ar)

filed and entered its opinion granting the preliminary in- ¢

"Junction against petitioners.

V

That on June 27, 1933; thie petitioners filed their answer |

-denying validity and infringement of said . Peiler Patent

| No. 1,655,391.

?

VI )

That on June 27, 1933 this Court filed and entered its

decree directing that a preliminary injunction issue against

petitioners, which injunction issned June 28, 1933.

vil

. That thereafter, petitioners having perfected their appeal

to the Court of Appeals, said’ appeal came on for heariig, °

upon the briefs and arguments of counsel ‘on October 3y

’ 1933, and that upon the hearing it was agreed that the case

" jalighet he disposed as ifton final hearing.

OW

That thereafter’ and on to wit: January 11, 1934, the

Court of Appeals filed its opinion (68 F. 2d, 726) in whfeh

opinion the Court referred to its former opinien in Hart-

a rei Company vs. Hazel-Atlas Glass Company (59 ~

[fol 21] FL 2d 399) wherein the said Peiler Patent No.

1,655,391 had: previously been adjudicated, and stated, that

having held the patent valid and broad enough: to cover

the Hazel- Atlas lass Company" s reciprocating plunger

device °°. °%-

**For the same reasons we hold that the claims. of the

patent here in suit are broad enongh to cover the de-

fendants* device.

The Court of Appeals ordered a dismissal of the appeal

and remanded the case for proceedings in due course. -

a

That on- February "8, 1934, petitioners filed petition for

rehearing in this Court, Which was denied February 21, 1934. _

x

“- : e

That on April 3, 1934 petitioners filed their petition for

Writ of Certiorari in thie Supreme Court of the United

« States, which was denied on May 7, 1954.

Xi ;

That on May 29, 1934 and on April 8, 1935 your peti-

tioners filed in the Court of Appeals petition for leave to file

-h bill of review grounded on the decisions in othe: Federal

jurt-dictions and on a decision of the British House of Lords

involvitig plaintiff *s feeder patents, and on newly discovered

evidence growing out of the prior testimony of the predeces-

sor of the plaintiff in the gE and undecided case of ;

Hartford-Fairmont Glass Co. Berney-Bond Glass et

whith petitions were denied July 25,1954 and July

01935, respectively.

XII -

That on March 5, 1938, the case being 1 in an interlocutory

stage of accounting before the Special Master, your peti- +

tioners filed petition in the C ourt of Appeals for leave to file

v ; : : * 17

_ [fol. 22] petition for rehearing and to file a supplemental

amendment to the answer in this Court, grounded on the

issuance’ of two patents to plaintiff Nos. 2,073,571 and

073,572 as the result of a suit brought by- plaintiff against.

the Commissioner of Patents on applications filed in 1910

and 1914, which patents were for the same generic invention

that the Court of Appeals had attributed to Peile® Patent

—No. 1,655,391 in the-Hazel-Atlas Glass C ompany and Shaw-

kee etal. decisions, which petition was denied May 31, 1938.

XIi1.

That the report of the Special Master for an accounting

‘ of profits to plaintiff having: been filed, a final Order*of

Court closing the litigation was entered February 14, 1939.

_ That since the rendition and entry of the decree aforesaid,

your petitioners have discovered new matter of consequence

in the said cause, Particularly and Separately Set Forth

as Follows: — . \

XIV

.. That in a civil action, Case No. 4426, entitled United

‘States of America ys. Hartford-Empire Company et al., now

pending in the -District Court at Toledo, Ohto, charging,

inter alia, violation of Sections 1 and 2 of the Sherman Act

and Section 3 of the Clayton Act by unlawfully conspiring

and monopolizing patents covering the manufacture and

i liceitsing of glass machinery, there was introduced into evi-

defce, testimony of one R. F. Hatch, and docume tary

_ exhibits, establishing that-an article by Mr. William P.

Clarke, President of the American Flint Glass W orkers

Union published in the July 17, 1926 issue of the National

Glass Budget at Pittsburgh, Pennsylvania, was written by

R. F. Hatch, a patent solicitor in the employ of Hartford.

- Empire Company, at the instigation of R. D. Brown, patent

\- [fol. 23] counsel for Hartford-Empire Company, for the

\ purpose of inducing the Patent Office to grant, broad claims

in Peiler Patent No. 1,655,391;. that said artivle was pro-

cured by the plaintiff’s ‘corruption of Clarke, for which the

said Clarke, after the decision of the Court of Appeals in.

the Hazel-Atlas Glass Company case, demanded payment of |

‘Ten Thousand ($10,000.00) Dollars, of which the plaintiff

paid Eight Thousand ($8,000.00)* Dollars in two instal]-

wents: August 4, 1932-and August 10, 1932.

2—S104

wee ee ee ee

m4 4

That the said publication, which purported to -be taken

from the préceedings of the Glass Blowers Union, was pre- ©

pared by said R. F. Hateh with the cooperation of Henry

W. ¢ ‘arter in charge of the Patent Departmenit of the Owens

Glass Company to impress the Patent Office with the im-

portance of suspended ebarge feeding in the glass industry,

and that. the glass teeding method was rapidly displacing

the Owens suction machine method.

a Seer

That the said R. F. Hatch, with the knowledge of Henry

W. Carter, knowingly and intentionally misrepresented the

facts and falsified production curves that were published. .

in the Clarke article.

XVII

That on appeal'from the decision of this Court ‘in the °

case of Hartford-Empire Company v. Hazel-Atlas ilass

(‘ompany,-:the plaintiff igduced the Court -of Appeals, by

reference.to the Clarke article in the plaintiff's brief, to ae-

cept the statements contained therein as reason for sus-

taining the patent in suit, and to extend to the patent a

broad generic, scope to embrate within that patent the

radically different method of the Hazel- Atlas Glass Com-—

pany’s feeder, which this Court (per Judge Gibson) had

held net to come under the scope. of Peiler Patént No: 1,-

655,391. -.

| fol. 24] ee XVIII"

_ That because of the broad scope attributed to Peiler

‘Patent No. 1,655,391 in the Hazel-Atlas decision and in re- .

liance upon that decision, this Court (per Judge MeVicar)

was induced to hold the Shawkee feeder method ‘to be an

infringement of that patent, whieh: holding was affirmed. by

the Court of Appeals. .

NIX |

That pe itioners are ‘advised that under the aforesaid

circumstances, the Deeree in the Shawkee case, in conse-

ot : | 49

quence of the discovery of such new matter as aforesaid,

ought to be reviewed and reversed, aud that a Decree dis-

nfissing the Bill herein for wait of rr should be entered |

by this Court. ve : a

=

_ ‘And your petitioners further pray that the said suit may

he revived against the Haytford-Empire Company or that

said company may show good cause to the contrary, and that

the last decision and /or proceedings thereon may, be revived

and reverséd, and that tlie said first-mentioned Decree may

Se set aside and a hew Decree be entered vacating this

‘Court's Order for Injunction granted June 22, 1933, and

vacating this Court’s Order entered Qetober 19, 19384 for

reference on accounting, and further direct the plaintiff. to

pay vonr petitioners the monies received by the plaintiff

in settlement of the accounting, and to reimburse your peti-

tioners for the cost of the suit, the cost of the accounting and

the cost of the present proceedings, and to award your

petitioners the damage which they have sustained frou the

. loss of sales of its feeder devices becanse of the injuniction,

and to reimburse Glenshaw Glass Cotipany and MeKee

(Glass Company ‘the amount of royalties they have paid to

the plaintiff since the Cc ourt of Aprems decision, January

11, 19: 4 ek .

[fot.25| To the-end, therefore, that the amr Hartford-

Banire Conipany may show cause why your petitioners

should not have the relief therein prayed’ for and make full,

true and perfect answer as to the several matters hereinbe-

fore averred and set forth, may it please your Honor‘ to

erant to the petitioners a,writ of subpoena ad responden-

~dum issned out of and under ‘the seal of this Honorable.

Court and directed to the. plaintiff, Hartford-Empire Coni-

pant, vommanding it to appear, and make answer to, this .

Bill of Complaint and to perform and abide by the Order

and Decree herein.as to this Court may seem required by-.’

principles of equity, and your petitioners Will ever. pray.

Shawkee Manufacturing. Company, Glenshaw Glass

Company, McKee Glass Company, George R. Hanb,

by William B. Jaspert, Their Attorne u.

‘Chtaher i 8 1941.

-_—

ty m0

{fol. 20-22} Is N THE a witep States Circuit Cover or APPEALS

& THump Cacurr oe, Seer

eee , No. 5203

é Hartrorp-EM Pine Comraxy, Plaintiff-Appellee,

~

7 ee ~N

. . ; ~

Suawkee Maxaractvrinc Company, Gtensuaw Grass Com,

paxy, MeKee Glass Company and, George R. —_ De-

* tendante-Apeellants

PuLaustire’s Memoraxpum tx Oppostriox to Petrtios. For

"Leave. To Fie a Bu or Review—Filed. December 5, ~

“1941.

a

[fols. 90-22 _ [File endorsement omitted]

[fol. 23] | Question Involved

The question in the case; as'we undersiand defendants’

briéf, is whether the statements in the Clarke article were

false ‘and with. this knowledge on the part of plaintiff were

represented to be true. ae

We will also discuss in this brief, because it may pos-

sibly arise from some of the averments in the petition, the

question of diligence in laying before this Court the facet

that the Clarke ‘article was not originally written, and the

" ~ statisties upon which it is based not collected, by Mr. Clarke,

but by Mr. Hatch of the plaintiff company.

Cc ounterstatement of the Case

.

“The statement of the case, in defendants’ brief. should

be supplemented. This is the fourth application by defend-

ants for leave to file a bill’ of review. As stated in defend-

ants’ brief three petitions for a writ of certiorari have -

been filed and denied, one petition for rehearing, and an

application ‘to amend and reform the mandate. This, there-

fore, is the defendants”. ninth application to escape the

consequences ‘of. the decree since this case was tecided by

this Court. It follows closely on the: heels of a suit. for

overdue royalties instituted by. plaintiff against the Glen-

shaw Glass Company, one of the defendants.

. Upon the, filing of the bill an application was made for a

preliminary injunction. This was. heard by Judge MeVican ,

and granted on June 22,1933. The defer idants appealed to

this Court. At the argument of the appeal, thesr counsel |

suggested that the case be decided by this Court on the

Tecord which was before the District Court and which con-

sisted, so far as evidence is concerned, of affidavits and ex-

hibits. The suggestion’ was agreed to by counsel for the

[fol. 23-1] plaintiff and the Court. No evidence was offered

‘attacking the validity of the patent. The whole question pre-

sented was one of:infringement arising from defendants’

contention that»their accused apparatus and method were

those of the prior art ‘apparatus of the Hitchcock Patents

No. 805,068 and Reissue No. 13,9292. These patents had been

previously held by the District Court for the Western Dis-

1—423

ee

22

trict- of Pénnsylvania (J udges Burrincton and ScHooy-

MAKER) not to be infringed by an apparatus known as the

Miller feeder. (Hartford- Empire Co. v. United States

Glass Co., 2 F. (2d) 109.) The Miller feeder in essential —

respects was substantially the same as the feeder covered

by Peiler patent in suit in the Hazel-Atlas case and the suit

against these defendants... An application of Miller for a

patent and an application for the Peiler patent in suit were

in interference in the Patent Office at the time of the Enited

States Glass“Co. suit decision. -The accused apparatus and

method in the instant case were not the same as the. Hitch-

eock patent. ‘The accused apparatus had been built a¢ ‘cord-

ing to the disclosures.of an application or applications for

a patent of one George R: Haub, one of. the defendants

herein.

In tlie Hazel-Atlas ose, Judge Woo.tiey had’ dissented *¢

on the ground that the accused device there did not imfrinige

the Peiler patent in suit because, as he held, the latter was

not entitled to a broad enough construction in view of its

place in the art. However, in the case at bar he concurred

with the majority, saying (68 F. (2d) 726, 727) :

‘In the Hartford-Empire-Hazel-Atlas . case, this

- court held the claims in suit valid and broad enough -

to cover the alleged infringing device there in -ques-

tion. Differing sharply as to the scepe of the claims

and, in consequence, differing on the issue of infringe-

ment, I dissented. Regarding myself bound by thiat

‘[fol. 24] decision of the court, I concur in the findings of

validity and ce act of the claims here in suit.”

About three weoks after the present case Was argued,

Mr. Barnett, one of the‘counsel for the defendants, sent a

communication to Mr. Haight, one of the counse} for the

plaintiff, with which he enclosed certain documents and

suggested that counsel for the plaintiff submit them to this

Court and stated that if they did not feel inclined to do so.

it was defendants’ intention to promptly submit them to this

Court. Mr. Haight and Mr. Barnett exchanged several let-

ters and also wrote Judge Brrrincrox, sending him at his

request two copies of each letter for the other Judges whe

had heard the case in this: Court.” These letters are set

forth in the affidavit of Mr. Haight herein (App. pp. 21 7746).

eal

23

In a letter written. October 30,. 1933 to Mr. Barnett by

Mr. Haight, it was stated that counsel for the plaintiff felt

“that the correspondence which vou enc losed in your

letter is evidentially irrelevant ‘for several reasons .

and has no proper: place in the-record. If, however,

you desire that it should be placed. before tlie Circuit

Court of Appeals and that Court is willing to accept

it, we will interpose no objection.” .

On the day that this letter was written, but before it

was received by Mr. Barnett, the latter forwarded the docu-

ments to Judge Burrixctoy. In his etter he said:

“It is quite true that these papers, are probably -

not pertinent evidence in the pregent case for the rea-

son that neither the Clarke article|nor the ather articles

referred to in a Court of Appeals piniont in the Hazel-

Atlas ease are in evidence in the jiresent record.

[fol.25] ‘It is true that they yea eontained in the

Hazel-Atlas record and that the Hazel-Atlas record is

in evidence in the present case. That fact merely shows

what record was before this court in the Hazel-Atlas

case but of course does not establish as proven facts

in this case.any matter shown in the Hazel-Atlas record. |

“The enclosed ar emphasize. the importance « .

this distinction. If the Clarke article were in evidgnee

in the present case these papers would be perting& as

newly discovered evidence.

“Believing that these papers show that pertinent

facts were withheld from the court.when the Clarke

article was introduced in evidence in the Hazel-Atlas

case and that in the absence of the testimony of wit-

nesses as to their origin and authenticity the same

may be true as to other published articles relied on

by the court‘in the opinion in the Hazel-Atlas case,

I submit these papers for your Honor's considera-

‘tion. I do not understand that their authenticity is

challenged by the: Tartfond-Empire Co,”’ a

— It will thus be noted that the papers were ‘sent to Judge

Burrixeton for his ‘‘consideration’’, notwithstanding that

* Where italies appear in quotatians the emphasis is our s

unless otherwise noted.

94 oF

-

Mr. Barnett said that the papers were not ‘‘ pertinent evi-.

dence’’ in the ease, and that if .the Clarke article were in

evidence in the present case, ‘‘these papers would be perti-

‘nent as newly discovered evidence’’. A copy of Mr. Haiglit's

letter of October 30th, as requested therein, was eaiieabes!

' by Mr. Barnett to. Judge Burrington.

On Noveinber 3, 1933, Mr. Haight w rote Judge eee,

Ton advising him ‘of the receipt. of. the papers from Mr. °

Barnett and of the fact that at that time he ‘‘knew nothing

‘about any-of these heeniie” * and did not have time to

read the photostats; that finally a had got in communica: |

tion with his colleagues and asa result had written Mr.

Barnett the letter of October 30th, in which he advised the-

[fol. 26] latter that while it was felt ‘‘that the papers’’ en-

closed in his letter ‘‘were irreleyant and immaterial, and

could not be considered by an appellate court’’, neverthe-

less, ‘tif Mr. Barnett wished to bring them to the attention

of your Court, and your Court was willing to have him do so,

we would interpose no objection.” © .

Near the end of the last letter to Judge hventiorex. it

- Was said:

sé # 2 *

So far as we are concerned, your Court may

consider them (the documents), if it desires so to do.

as a part of the record in this case, although under the‘

ordinary rules of procedure they could not be so con:

sidered. 7 ;

In the first letter written by Mr. Haight to Mr. Barnett

under date of October 24, 1933, it was’ said:

‘‘] am advised that the existence of the papers

was kuown to counsel for the Hazel-Atlas Company

befare that Case was heard in the Court of Appeals.

and to counsel in another case in which the Hartford-

. Empire Company was the plaintiff, but no effort was

made by counsel in either,case to make any ‘use of

the papers. Indeed, the person who wrote one of the

letters—I think Mr. Hateh—--was produced at the trial ~~

by the Hartferd-Empire Company at the request of

counsel for the defendant: in the second of the above

cases mentioned, but he was not, called.”’

\

In Mr. Haight’ s letter of Nov ember Srd to Judge Brr-

FINGTON, it Was said: . .

Ye

yrs

i* * * T was, however, able to get in communica-

tion by telephone with one of my Associates in the above

‘matter, and he told me that the existence of these let-

ters was known to counsel for the defendant in both the

- Hagel-Atlas suit, and in another case which had been

‘brought by the Hartford Empire Company in -Ohio, *

[fol.27] during the pendency of those cases, respec-

tively; and that no attempt had been made to offer

. them in either of those .cases although in one ef them

‘the Hartford-Empire Company had, at the request of

the defendant, produced at the trial Mr. Hatch, who

wrote some of the. setqers, so that the defendant could

use himn asa witness.’

“The s same was set forth in ‘eabetenee 1 in Mr. Haight’s letter

of October 30th to Mr. Barnett.

> ‘Mr: Barriett followed up one of the leads given in there

~ ‘two quotations by writing a letter to counsel for the Hazel-

Atlas Company, and sent a copy of his reply to Judge Birr-

FINGFON November 15th. Mr. Barnett ‘stated in his letter

that “Mr. Philbin’s recollection is that while he suspected

that the Hartford-Empire Company might have been re- ‘

sponsible for the article’ (the Clarke article), he did_ not,

at the time of the trial, know of the papers Ww hich I ‘have

"submitted to you.’

As appears from Mr. Haight’ s afidavit, itr. Philbin’s

letter contained the further statement that his recollection

was then ‘‘too indefinite to be positive and I would have |

to go through the voluminous collection of papers relating |

to the various Hartford-Empire litigations, including cor-

respondence, before I could be more definites*:

After receipt of'a copy of Mr. Barneft’s last mentioned

_ letter to Judge BUFFINGTON, inquiry Was-made by come of

the counsel for the plaintiff of Mr- Edmund P- Wood. as

to the information that he had, prior to the trial of the case

-in Ohio (Nivison-Weiskopf case) in June, 1929, and the

, trial of the Huzcl-Atlas case 1929, that the Clarke article

had been transmitted to the Glass Budget by Mr. Hatch ©.

of the Hartford4Empire Coinpany and published through.

his instrumentality (App. p. 118). In reply to that letter

- Mr. Wood wrote on November 14th as follows (App. p. 119) +

[fol.28] ‘Prior to the trial of the Hazel-Atlas case in

Apfil 1929, we understood that Mr. Hatch was in-

; :

strumental in having the article entitled ‘Introdue.

_ tion’ of Automatic Glass Working Machinery; How ©

Received . by Qrganized Labor. By William P.

. Clarke’ published. in the Glass Budget and were 86

told by Mr. Hatch. You did produce ‘Mr. Hatch at

the Nivison-Weiskopf trial but we had no occasion to

put him on the witness stand.

~~ ————..“Tekgow we had. the information in question prior

; té the Hazel-Atlas trial for I attended a portion of

‘the,trial and while in-Pittsburgh personally discussed

. . this matter at length with-counsel for the Hazel-Atlas

Company,: and also with certain: persons from the ~

.- ‘Hazel-Atlas Company who were™active in connec.

tion with the trial.*’ :

A copy of Mr. Wood's letter was transmitted to Judge -

BrrFixeton on November 17th and a copy of: the letter to

Judge Burrixctox and of Mr. W ood 's letter were seuf, to

Mr. Barnett on the same date. .

The matter rested there until Becember 16, 1933, when

_ Mr. Barnett wrote a long letter to Judge Brrrineton calling

his, attention to the then recent decision of the Supreme.

Court ‘in Keystone Driller Co. v. General. Excavator Ce...

299 U.S. 240, and claiming that it. was applicable -t 6 this

case and should call for a dismissal of -the bill under **the

clean hands doctrine”. In this, letter, Mr. Barnett: stated

that: *

“In the present case it appears or the first time

subsequent to the submission of the case in this court

that in the prior suit (the Haze}-Atlas case) upon

_ which plaintiff now relies. this court was influenced

by a publication whieh -first had beew iistigated and

then invoked: by plaintiff to seeure a favorable actior

by the Patent Office when the application for th

Peiler ‘Patent here sued on, was, pending and hadere-

[7ol. 29] tied upon and invoked that publication

other publications which bad never been introduced |

evidence’ in the litigation but appeared in-the Tecord

only because they appeared in the. Patent Office fle

wrapper as «matters which had been’ presented ©

parte by the preseut plaintiff to support: the ap on

tion for the Peiler Patent and to overcome the act)

of thecPatent Office in rejecting claims by ‘Peiler pen

-

2

5

“ ,

the disclosure of the Hitchcock Patent upon which the

defendant here relies for justification of its action in

‘making the machine here complained of. ,

‘As to the Glass Budget article, the correspond

ence sent to your Honor. since this casé was sub-

mitted clearly shows that the publication of this ar’

ticle in the Glass Budget was instigated by the in-

genious brain 6f:-Mr. Hatch, one of plaintiff’ s attor-

“Meys, was then used by another of plaintiff*s attor-.

nevs as so-called evidence produced ex parte to sup-

port that attorney’s contentions in his argument for

a favorable action on‘the application for the Peiler

patent here sued on as against the rejection of claims

; Vie the Hitchcock prior patent disclosure.

‘Having ‘thus obtained the issue of the patent

upon such ex parte showing, and of course: without

disclosing to the Patent Office that the Glass Budget

article had been instigated by plaintiff, we, turn to

the plaintiff's briefs in this court in the Hazel- Atlas

Case = find that plaintiff's attorneys quoted from *

this article and from other published articles, which

‘had never been introduced in evidence or proven in

any inter partes proceeding, as reasoiis why this

court should sustain the Peiler patent.”

To this letter counsel for plaintiff réplied on December

26th, and stated that) in view of the extensive correspond:

ence, “‘unless vou desire that we should specifically an-

- sWwer Mr. Barnett’s last letter, we will not do so. ~Phere-

after, counsel were advised by the ¢ Jerk that, the Court did

net de ‘Sire any further correspondence. The decis sion of

Ifo), 3 | this r ‘ourt) Inmediate Iv fullowe al. ‘The re “atte r

caine the many motions, petitions, and applications re fyrre “b-

‘to above and set forth i more detail in the. petition herein.

It the Shawkee petition to this Court. for—rebearihe.

substantially the same conte ntions were made in respect

to the Clarke article as were made-in the last ef the above-

quoted letters from Mr. Barnett to Judge Burrineton, - It

Wis stated that the article was ‘tinstigated by plaintiff and

published at plaintiff's urgeyt request’: that these facts,

had deprived ‘the Glass Budget article of al! evidentiary

Value and to that extent ctits the supports from. . under the

reasoning of this Court iti the Haz-l-Atlas cage"*: that the

plaintiff did not come into court with clean hands ‘twhere .

£

”~

e

«

28

it relies upon a prior decision which rests in large part

upon this self-serving and apparently home-made ‘evi-

dence’ *’; and that the article had never been proven ‘‘as

evidence of any fact therein stated either in the present

case or in the Hazel-Atlas case.’

Argument

’ The many moves s which the defendants have made. i in

this case " subsequent to the decision of this Court call to

~ mind what Chief Justice Tarr said in Toledo Scale Com-

pany v. Computing Scale Company, 261 U.S. 399, 425:

sce ce * As Mr. Justice Story remarked i in Ocean

A ‘Ins. Co. v. Fields, 2 Story, 59, Fed. Cas. No. 10,406;

- *TIt is for the publie interest and policy to make an.

end to litigation; or, as was pointedly said by a great

jurist, that suits may not. -be immortal while men are.

m mortal. Pings . '

The gravamen of the prese: 4 application as disclosed

by defendants’ brief seems to be ihat the Clarke article was

[fol. 31] false and was used by the plaintiff in the Patent

Office and.in its brief in this Court with know ledge of such

falsity. Sec ondarily, some. point, exactly what is not clear,

it attempted to be made of the fact that the Clarke article

Was not originally prepared by him but by Mr. Hatch. Our |

argument will be addressed to these matters.

Point I

There is. no sufficient showing that the statements in

the Clarke article, especially those: relied upen -by this

Court in its opinion in the Hazrl-Aflas case, were false

-or that any of them were incorrect in any respect which

could possibly have any effect. on fhe decision in this eztse.

1. We invite a careful reading of the Clarke artiele (a

_~ photostatic copy of the original manuscript of which is set

forth in the: Appendix, pp.°79-94). After the introductory

part to the effect that the introduction of automatic bottle ..

| making machinery ‘had not caused any ‘‘antagonistie ac-

tion’’ on the part of organized labor *‘to prevent the-use

of the new machines”’, the article proceeds with a historical

discussion frog 1892 “on through the advent.of the gob feed-

ing devices, pointing out the fear which the introduction of

different kinds of automatic machinery created in the ranks

of organized labor, the attitude of labor towards them,

\efforts which labor made to adjust itself to the new co

-\tions, the only commercial devices which were in use, ond.

. the effect of the early devices on labor. The commercial

devices discussed were the Owens suction machine, which

was the pioneer automatic bottle making machine, the

{fol: 32] Brooke stream*feeding device, which followed the

Owens, and then the gob feeding devices.*

The original article signed by Clarke contains a aumber

of references to the authorities for the statements made

therein. -It also contains quoted extracts from statements

made by two presidents of the Glass. Bottle Blowers’ Asso-

- gation in reports made to the Association. In addition, it

‘sets forth in graph form the respective productions on the

Owens machine and the gob feeding machine.t

We challenge the defendants to point out any false. state-

ments in this article. Defendants are versed in the glass-

ware making.art, as is the Hazel-Atlas Company, yet net-

ther present an affidavit to.show any specific false state-

ment, or indeed, inaccuracy in this article. -The reference to

this article in plaintiff's ’s brief in the Hazel-Atlas case. has

been quoted in. plaintiff’s brief on Hazel’s present applica-

tion for leave to file a bill of review, as have also the state-

ments made in the appeal brief of Hazel-Atlas Company in

the case against it. The only criticism in the fatter is that

the chart ‘‘is entirely misleading’. The r respects in which

it is said to, be: misles iding are as follows :

sa

os * * 2

First, the curve for ‘gob feeders’ Starts

. with the year 1917.- But, plaintiff's paddle feeder

went into comme rcial use in 1915, and plaintiff asserts

* The i. feeding iiaillas found its most effec ‘tive form

in devices dov ered by the patents in suit.

+ The Owkns machine Was one that operated by suetion,

. a mold was lowered into a bath of molten glass and

the ¢lass suc ‘ked up into it. In the gob feeding devices,

on the other hand, the glass flowed from'the tank to a fore.

hearth.and thence through an orifice where it was severed in

> asin

gob form and the gob dropped into a mold.. The gob was —

preformed in weight and shape to suit the mold that.was to

receive it. :

Ls)

tliat it was a gob feeder. So, apparently, it produced ©

[ fol. 33] nothing until 1917, which is contrary to plain- .

tiff’s contention that it was used in 1915 and thereafter

‘Second, the chart shows that by 1922 about four -

“mnillion gross pieces of ware were ‘produced annually

by gob feeders. Whatever proportion of that ware

’ was made by plunger feeders, the only feeder in issue

here, was made on plunger feeders developed by others,

‘for plaintiff’s first plunger sooter was November,

1922.”

No one has pointed out that any: ‘of the extracts from the —

article quoted in the opinion of this. Court in the Hazel-Atlas

case are incorrect or false in-any réspect whatsoever, nor

has it. been pointed out wherein this Court may have relied

in any respect upon the production chart which, defendarts

say, was inaccurate. '

We ask the Court to read the extract from the Haub pat-

ent application which appears at pages 47-48 of the Appen-

~ . dix and compare it with the parts of the Clarke article that

deal with the commercial developments ‘of automatic glass-

ware making machinery. It will be remembered that \r..

’ Haub is a defendant a ease and the designer of the

accused Shawkee’s device ’ tay /

The defendants in this case and the Hazel-Atlas Com-

pany, the former with reckles\ charges that thg article was,

a ‘false and fraudulent publication”, rely in. thefr attempt

to support the charge of falsity npon a. letter written by Mr.

Hatch to Mr. Carter of the Owens: Rottle Company on April

19, 1926, and to-some criticisms of the article in a letter or

letters written by Mr. Carter -to Mr,\Hateh. The part of

the Hateh letter of April 19, 1926, av idl poune ed npon and

first two paragraphs of the letter, frony which we quote, a-

* we do in the Hazel-Atlas ease: . =

i we

— \

“I received. this morning your letter\relating to

my proposed article on ‘Fe eding’ ~ L_appr&ciate your

‘{fol. 34] comménts very much indeed and I t

‘is but one point on which you failed to apprecjate my

exact position. That is, I prepared this article xo far

as possible with reference only to the proveedings

of The Bottle Blowers Association, and knowin'ly

\ .

ink the Te.

relied upon to support their ‘charge of nv whieh found in the .,

\

Perit ao ‘. 3

“and intentionally I reproditced. some of the errors

found therein..

' ‘For example, in any statement as to the umber

of Owens machines in use, I have used the numbers

age in the proceedings, eyen when 1 knew this ‘was

“not correct. The point I: have in mind is that if-1

“an get the President of the ‘Association to publish

this I thought that he. should base all of his state-

ments on their printed records except where such

statements had a direct bearing on the particular point

which we wished to bring out.’”’ - ;

The letter goes on to'state, however, that Mr. Hatch thinks

he can ‘*make considerable improvement in the article and

still base all statements on information published i in the pro-

ceedings of the Glass Blowers Ass’n.’’; and that it was his

‘present intention to revise the article in view of your com-

ments and others which I expect:to receive from Mr.:Dor-

sey'’. This letter was written to Mr. Carter in nesponse to

a letter written by him criticizing an early draft that had

- been submitted to him for his criticisms. It must -be- borne:

in mind, as appears from the affidavits of Mr. Hateh and

Mr. Brown herein, that the article was prepared princi-

pally from data: procured from the published proceedings

of the Glass Blowers Association over a periéd of. years.

When it was prepared it was intended that it should be~

sponsored by an official.of a glass blowers’ union and pub- °

lished under’ ‘his name. Qf’ course,’ under these cirenm-

stanees, thevarticle had to reflect w hat{appeared i in th pub.

lished proceedings of the Glass Blowers, Association, plus

what. might: be remembered ‘by the union official. who would *

‘sigwit. But, what is more important,-the draft which. the

[foi. 34-1] letter of April 19th referred do was an early

one Which was subsequently revised, and made as acetirate

both as to statements and as to comparative production fig-

ures as Was possible. Mr. Hatch’s explanation of the letter

of April 19; 1926, and the efforts which he made to have

the article accurate, and his belief.that as published if was

‘accurate, are set forth in his affidavit (App..pp. 14-17).

_ Mr. Hateh reeounts how he took the matter up with Mr.

é Maloney, the President of ‘the Glass Blowers’ Association,

the latter’s approval thereof, and then the submission of

the same to Mr. Clarke, and the revisions that he made

therein, even in the final.draft (App. pp. 17-19).

- * ion. «As to this letter Mr. Ha

32° coe c oe

In the defendants’ petition (p. 10) a short extract is

taken from a fetter written by Mr. Carter to Mr _gBoshart *

of the Owens Company, and the words ‘‘if not too rank”’ are

italiciged. The full letter is on page 40-f the book entitled

‘Exhibits of Petitioner-Defendant’’ in the Hazel-Atlas

ease. Although this letter is not geferred to in defendants’

brief, some sinigter inference js undoubtedly attempted to

be drawn from it by the ee: and emphasie i in the peti-

h’s affidevit states (p. 26):

Mr. Carter orally made the same statement

to me, stating he thought the proposed article was

rather. rough on the Owens Coypany, but that i was

in actordahce with the facts and thaf what he meapf

by ‘not to@ rank’ was ‘not too rough on Owse

When it is borne in mind that the article itself made thé

Owens suction development. (suction was still being used

by the Owen¢ Company to a very great extent) in the glass-

making machinery art appear at a substantial disadyantage

when compared with*the gob feeding machinery, the above-

[fol.. 35] quoted es is entirely understandable and

reaspnable.®

» 8 7. .

* When Mr. Carter, on exaniination by Goyernment coun-

sel in the anti-trust suit, was asked whether he had written

this letter, he stated (Tr. 1824) :

‘‘A. I wrote it, undoubtedly, but I wonld H&ke to say

altout Phat, this: that here was a man writing up a

piece of history setting forth some facts, and on the

whole knocking the Owen§ machine development and

hooming the other development. Jow, the question

of how far a man will be correct in expressing the

‘views that the Owens Machine development was or was

> not being superseded to a large extent, or to a very

large ‘extent, was a matter of judgipent. The question

of its being what I said, being too rank, here, meant

_that all that we were trying to do was to put in print

and asa matter-of history a record of the fact that

the feeder development was a tremendously impdr-

tant development, which had had a very creat influence

in overcoming the supreme position which the Owens

Bottle "Machine had had at that time’’.

og Raine seers >

| ams

If Mr. Hatch’s affidavit is not sufficient to dispel’ any;

doubt that the Clarke article was true, two. poor vdw: ol

neofis letters must have that effect. On June 30, 1926, Mr.

Clarke wrote Mr. Maloney, the president of the Glass Bottle

ers Assotiation, enclosing a copy of Mr-Hatch’s then:

last manuscript and asking Mr. Maloney ‘‘to read it with

care *:* as I want to discuss the matter with you

‘more fully’’.

-On July 7 i, neh, Mr. Maloney. wrote Mr. Clarke as fol- .

lows :

| fave regd this paper carefully this morning

a was the first opportunity 1 have had to do so

I find nothing in it that we can take ‘any exeep- ..

tons to. In fact, it seemis to be a very fair review

of the changes that liave occurred in the glass bottle

industry in the last few year®? as, far as automatic

nachinery is concerned and the attRhyde we have al-

ways taken relative to new methods of production.”

. These two letters are in the & ppendix, pages 75-77.

.-[fol. 36] But that is not all! On June 10,1926, Mr. Carter,

to whom the letter of April. 19, 1926, had been sent bv Mr..

Hatch, wrote Mr. Hatch in respect to the chart attached to

the article, as follows:

“With regard 46 your chart, I aul that the

criticism éxpress (sie.) iti my last letter’ was without

e* tiuch foundation. The firure of forty million gross on:

total production was one for which 1 thought’ we had

the authority of-Mr. Bakér. It seems, however, gat

DAY recollection was at fault inthis respect in quoting

the fieyre mentioned. Mr. Baker now tefiseme that © —

tlie most. he was ever able to make it was twenty-five

million, and upon this basis the curres of our chart

would seem to be substantially correct. Mr. Baker

thinks they are about aes accurate as could be ar-

rived at.’ ¥ ° ae ‘

In the affidavit. of Mr. Jaspert, the counsel for the defend-

ants, attached to the petition herein, he states (p. 16) that

on July 22, 1941 he *sinspeected the transeript of record and

documentary evidence adduced”, in the anti-trust suit then _

pending in Toledo, Ohio, and “discovered the te stimouy of.

RK. P. Hatch and the letters referred to therein with’ ref-

<-

erence to the preparation and publication’’ of the Clarke

article. Among the letters then in evidence as Government

Exhibit 639 was the last mentionéd letter written by Mr.

Carter to Mr, Hateh. Significantly,: ‘this letter is not re-

ferred to-in-the petition herein, or the accompany ing brief

of the defendants. It will be noted that in this letter Mr.

* (Carter adyises Mr. Hatch that Mr. Baker thought that. the

curves of: the. chart (those attached 16 the .Clarké article) °

‘‘are about as accurate as could be arrived at’’. Mr. Baker

was the Treasurer of the Owens Bottle Company, then the

largest manufacturer of bottles and kindred glassware in

| the United States, and the most extensive user of the Owens.

machine. How, in view of these.contemporeaneous letters,

[fol. 37] leaving aside every thing else, it can be contended

that the two statements in ‘the Hatch letter of April 19th,

relied upon here and in the Hazel- -Atlas petition, are suffi.

- cient to demonstrate that the statements. in the Clarke ar.

' ticle,were falsé seems impossible to conceive.

But, in addition, we havé submitted affidavits from Vr.

Clarke, Mr. Maloney and Mr. Dorsey (App. pp. 48, 49, 52)

that the statements in the article are in fact true. . Mr.

Clarke’s affidavit was made ir 1932; Mr. Malonty’s in-4

for use in a suit which Hartford- Empire hac |

against. the Florida Glass Manufacturing C ati 0

original affidavit having been removed from the files of -

that court, with its permission, and filed herein.

In view ‘of what has been said, we ‘submit. it timst be

- fonnd that the charge that the statements in the ¢ ‘larke

‘article were false and untrue, is utterly unfounded and that.

if there be any maccuracies theréin (and the defendants do

_ not disclose that there werc} they certainly were not ofa

pia! that could affect any issue in this Case,

As the charge of falsity and untruthfulne iss in the

C ign article fails, there.must fail with it the charge that

counsel for plaintiff in the letter of October 30, 1933, to Mr.

B: irnett (which was submitted to Judge “eae stated

that the statements in the Clarke article which were «fioted

by’ Judge Burrinctow were ,true, ‘‘when in fact they are

false’? (Defts’. Br. 23).. It is said that this statement was

‘‘a deliberate misrepresentation to this. Court intended- 10

foreclose further inquiry as to the character of the article

(Clarke). This is a reckless charge without anything wlat-

‘soever to support it. Defendants have pointed to nothing

35

which would show that any of the counsel involved had any

belief other.than that the statements quoted by Judgé Bur-

FINGTON, AS Well as the whole article, were true. The affi-

" davits presented herewith show that Mr. Brown, Mr. Dor-

-{fol. 88] sey and Mr. Haight believed, and still do, that the |

article was absolutely true. Mr. Belknap and Mr. Brown |

so advised Mr. Haight at the time the letter was written.

Unfortunately, Mr. Belknap died very suddenly shortly be-

fore Thanksgiving Day of this vear, and Mr. Byrnes is,

we are advised, in either California or Florida. Mr. Dorsey

has made an, affidavit herein stating that in the spring or

early summer of 1926, Mr. Hatch brought him the manu-

“script of the proposed Clarke ‘article, which he read and —

tmuade some slight suggestions as to its’ verbiage. His: affi- °

davit proceeds ‘yn fe

“From my personal acquaintance ‘with “the glass

feeding art extending from 1906 to 1926, I knew ‘from

my own knowledge that the statements .in the’ said

inanuscript, and in the said article ‘as’ published, were

true in every substantial respect’? (App. 53). —

‘ ‘ ;

_ Mr. Dorsey was in charge of the solicitation of the patent

in suit in the Patent Office and filed the Clarke . artic icle i in the

Patent Office.

; Point 11s

If the fact that the Clarke article was originally” pre-

pared by Hatch, although revised and sponsored by Clarke,

ik a material cireumstance, which plaintiff denies, its au-

thorship could have been discovered by defendants in the

exercise of reasonable diligence.*

:: ( ‘outisel for plaintiff informed Mr. Barnett in the let:

ter of October 30th, 1933. that. if he desired to place the docu-

* “ments which. he ‘had submitted to counsel for the plaintiff > .

before the Cireuit Court of Appeals, ‘*we will interpose no

ToL 29] objection”? In the letter of November ord written

be ounse: for the plaintiff to Judge Burrinctox, he was’

‘advised in respect to these papers as follows:

(iiieiyaaiaeiesS

* The brief seems to- make no point as to the authorship

of the article as a ground for granting defendants’ petition,

but the petition refers to the authorship and the refore we |

discuss | the point here. ; ae |

ORE pn

oe. @ *

: So far as we are concerned, your Court may

consider’ them, if it desires so to do, as a part of the

record in this case, although under the ordinary rules

of procedure they could not be so considered.”

And this,. notwithstanding Mr: Barnett’s statement in ‘his

‘letter of October 30th to Judge Burrineton that ‘these

papers are probably not pertinent evidence in the present

-ease.’’ Plaintiff therefore waived the objection which it

could have insisted upon that these documents were not a

- part of the record in the case. It went further and pointed

out to Mr. Barnett that their existence was known to counsel

for defendant in the I/azel-Atlas ease and to Mr. Wood, who ©

had been counsel for the defendant in the Nivison-Weiskopf

case. There was transmitted to’ him a letter over Mr.

Wood’s own signature (App. p. 54), stating that Messrs.

‘Wood had understood in April, 1929, prior to the trial of the .

Hazel-Atlas ease, ‘that Mr. Hatch was instrumental jp hav-

ing the.article * .* * published’ in the Glass Budget —

and were so told by Mr. Hatch’’; that Mr. Hateh had been

produced by plaintiff at the trial of the Nivison-Weiskopf

ease at Mr. Wood’s request, and that he had discussed ‘this

matter at length with ¢ounsel for the Hazel-Atlas Company,

and also with certain persons from the Hazel-Atlas (‘om-

pany who were active in connection with the trial’. Me.

Barnett did not follow up the information which plaintiff's

counse] had given him in respect to Mr. ‘Wood’s informa:

tion regarding the Clarke article (App. p. 54). He did

inquire of counsel for the Hazel-Atlas Company ‘*to learn

whether they could confirm Judge Hatcur’s information

that the matters relating to the article in the Glass, Pudget —

- * * were fully known to counsel for the Hazel- Atlas

[ fol. 40] Company at the timé that case was tried’? (sce let-

ter to Judge Burrixctrox ‘dated November 15, 1953, App.

p. 40). As a result of this inquiry he learned from Mr.

Philbin that his ‘‘recollection is that’ while he suspected

‘that the Hartford-Empire Company might have been re-

sponsible for the article, he did not, at the tiine of the trial,

know of the papers’’ which were ‘submitted by Mr. Barnett

to Judge Burrixcroy. He further learned from Mé. Phil--

bin that the latter's recollection was ‘‘too indefinite to be

positive’’ and that he would have to go through ‘‘the vel-

uminous collection of papers relating to the various Hart-

wake

ee7"

37

ford-Empire litigations, including correspondence, before

he could be more definite’? (App. p. 41). Mr. Barnett pur-

sued the matter no further. Je let it rest. He did, how-

ever, in his letter to Judge Burrincron of December 16th,

charge that ‘the article had been “‘iustigated by the in-

genious brain of Mr. Hatech’’. . Plaintiff did not question

the charge thus made.

If Mr. Barrett, or the diligent Mr. Jaspert, who has filed

so many petitions and made so many movxes-inm-this case —

since it tvas decided against him, had followed up the leads

which had been given to them by plaintiff in 1933, they

.would have found the following: .

(a) That Mr. Philbin, upon ref ashing his’ recollection

(which in his letter to Mr. Barnett he did not indicate that

he would. be unwilling to do) believed ‘tin or before 1929”.

that the Clarke article had been ‘written by Mr. Hatch and

caused to be published by the Hartford-Empire Company,

and that he had been so told ‘*by the firm of Messrs? Woed

& Wood, Cincinnati lawyers, who <aid the vy had been so told -

by Clarke and’ also by Mr. Hateh’? (see Mr. Philbin’s

Affidavit attached to the petition for leave to file a bill of

- review in the Hazel-Atlas case, p. 10).

[fol.41] (b) He would have learned from the Messrs.

Wood that Clarke had told Mr. William W ood that he did

not write the article, but that. it had been prepared by Mr.

Hatch, and also that Hatch ‘*had no hesitation.in admitting

the circumstances’? deseribed in Mr. Wood's affidavit of

May 17, 1932, which was then in Mr. Philbin’s possession

and which appears on page.17 as Exhibit 6 ini the book of:

“Exhibits of Petitioner-Defendant’ in’ the Hazel-Atlas .

application herein. He would have also learned from Mr.

Edinund Wood that he had discussed the article: with My.

Hatch in February, 1928 *tand many times since* "and that

he ‘tat all times has fréely echnitted to me that he was the

real author of this artic le’ * (seo Affidavit of Edmund P.

- Wood attached to the beforeinentioned book of ‘Exhibits -

of Petitioner-Defendant”’ in the Mazel-Atlas case, p. 21)-

Mr. Edmund. Wood's affidavit was likewise madé on May

17, 1982 and was in Mr.-Philbin’s possession at the time: Mr.

Barnett: was eorresponding. with Judge Br PEINGTON in

- reference to the “larke article and Hartford. Empire's con-

- nection therewith.

2—423

38 : .

In view of the rules of law referred to in our brief in

tlie Hazel-Atlas case (copy of which will be given to coun-

sel for defendants herein), it is inipossible to see how any .

‘point ¢an be made in the present application im regard to

- the authorship of the Clarke article, based on the fact that

Hatch originally wrote the article and collected the data”

embodied therein. The exercise of the slightest diligence

would have revealed that fact. It probably would not be

helpful to the. Cougt for us to review (if we had the time,

which we have nos the various cases in which lack of dili-

gence has been held by appellate courts tw bar the granting

of leave to apply to.a lower court for pe rinission to file

~~ abill of review, beeause most cases stand on their own facts.

{fol.42] 2. Nor can we see how the authorship of the ar-

ticle would be a material circumstance. The article was

prepared by Mr. Hateh principally fron: the published pro-

-ceedings of the Glass Bottle Rlowers’ Association. It was

©. read, revised and approved by Mr.Clarke. It was submit-

ted by Mr. Clarke fo Mr. Maloney, the president lof the

Glass Bottle Blowers’ Association. _ In his letter of July 7,

1926, -he stated that he had read it carefully and that it

seemed to him ‘*to be a very good review. of the changes

that have occurred in the glass bottle industry in the last:

few years so far as automatic machinery is concerned aid

the attitude which we have always taken relative to. new,

methods of production’. Thus, whilé originally prepared

by Hatch, it was sponsored by Clarke and adopted by him

as his own, with the appre wal of Mr. Maloney, President

of the Glass Bottle Blowers Association, As the statements

in the article quoted by. Judge Berrincrox were true; the

fact that the article was in the first instance written):

Hatch certainly is not material. “That Hatch instigated the

article and that Hartford-Empire had. it published “in. the

Glass Budget and thereafter presented it-to the Patent

Office, was krrown to all of the Judges im the case at bar,

* ineluding Judge Wooiiey who had dissented in the [irz-/

Atlas ease, prior to the decision in tlie case at hair, anc

plaintiff had consented that the Court anight’ consider «s

‘part of the record in the case all of the papers and docu-

ments sent to the Court by Mr. Barnett.

~ As set forth in our brief in opposition to the Hazel- Atle 1s

petition, chostwriting is not an unusual thing’ In this. cour

try; the important thing is whether tlie article is true and:

”

bd

ads. - 3 e

> Aled ° :

>

‘ 39

wlether it was based on the proceedings of the Glass. Bottle

Blowers’ Association and had the sanetidi and approval of

jvol. 43] the union oflic ials and was — by ‘one of thenr

as his own.

In the petition a ictee. from Mr. Brawn to Mr. Carter

dated) December 11, 1925 is quoted. Ttis answer to this

letter is set forth.in the Appendix, page 53. In this letter

- he said that he was not in a position to write the article

mentioned in Mr. Brown’s letter because he did ‘not get in

touch with the industry until 1921 and then only from the

viewpoint of a patent specialist. As pointed out in Mr.

Brown’s affidavit, the letter which he wrote to Mr. Carter

had nothing whatever.to do with the preparation of the

article by Mr. Hatch. ‘The latter had found (as set forth im

his affidavit, App. pp. 11-15), making an investigation in

connection with a Federal tax matter in which the plaintiff

was interested, information in the proceedings of the Glass

tottle Blowers Association which suggested. to, him the

idea fhat an article should be conipiled from the proceedings

of that Association and published. He thought it would be

of interest to the trade and an advantaye to the plaintiff as

showing the effeet on the elass\industry of thé introduction

of automatic machinery. including that of the Hartford-

Empire Compatiy, these facts then being pot generally

known. Hie was accordingly authorized to prepare the ar-:

- ticle and did so., The suggestion in the petition that the

Clarke article was prepare din the first instance at the sue-

gestion of Mr. Brown is shown in Hateh’s affidavit to- he

unfounded (App. p. 25). ; ces es .

Doubtless the lack of diligence on the part of de.

fendants and their attorneys, “and the imimatertality of

Whether the research work and the writing of the article

in the first instance was by Hateh rather than Clarke, is

the reason why the question of the authorship is not m: ude

a poijt in defendants” brief.

I fol 44- 46) | ( ‘onelusion

It is’ respectfully submitted that the petition shiuta ”

de ‘nied.

Respectfully submitted, !

Thomas G., Haight, Edgar JZ-Coodrich, Robson D.

Brown, Counsel for Plaintiff-Appellee.

’

e.

47

{fol. 27] Is roe Unirep Srares Cirevir Courr or Appears .

ror THE Trirp Circtir , 3

No. 4414 \

\

~ Hartrorp-EMpre Company, Plaintiff-Appellant,

v.

Hazev-Atias Guass Company, enn aggntine

* No. 3203

_Harrrorp- EMpire Compasy, Plaintit Appellee,

; v.

SHawkEE MANUFACTURING COMPANY, Guiexsuaw Grass Com-

pany, MeKee Glass Company’ and George R. Haub, De-

fendants- Appellants . ne

Petition, Br ief and Affidavit on Behalf of the United States

SAY of America as Amicus Curide

Now comes the United States of America and respect-

* fully. petitions for leave to file the attached brief and af-

fidavit as amicus curiae in support of the petition of Hazel

-[fol. 28] Atlas Glass Company and the petition.of Shawkee ;

Manufacturing. Company, et: al., for leave to file Bills of

- Review in the above entitled suits, for the following reasons :

First, The United States is the plaintiff in an antitrust

prosecution now pending in the District Court of the United

States for the Northern District of Ohio (Western Divi-

sion) against both parties: to the above-entitled Cause No.

414, and against the Plaintiff-Appellee. in’ the above’

entitled’ Cause No. 5203,-as well as against numerous other

defendants. As plaintiff, The United States has knowledge

of certain facts heretofore made in the antitrust suit bear-

ing on the issue of fraud in the-Patent Office, which fraud is

pertinent to material issues decided by this Court in the

instant suits. The United States has no financial, interest

in the matter and presents these facts ‘to this Court from

the sole viewpoint of the . rest.

Second, The United States, as £rantor of the patent rights

involved in the instant cases, cgnsiders that the broad seope

given to the Peiler patent in fhe two decisions, affects the

3—S1(H

41

42 ; | ~ | ey nee

48

; ‘

public interest and requires a definite ascertainment that

such decisions were not the result ofa fraud .practiced upon

the Court.

Thurman Arnold, Assistant Attorney Renewal, Hugh

B. Cox, Samuel S. Isseks, Lawrence S. Apsey,

Special Assistants. to the Attorney General.

December 3. 1941.

fol. 29] In tue Unrrep States Cincurr Court or Apreats -

FoR THE Tuirp Circuit

No. 4414

: Hantrorp-Fimrire Company, Plaintiff-Appellant,

: a

Hazer-Atias Grass Company;- Defendant-Appellee

No. 5203

Hanrrorp-Empme Company, Plaintiff-Appellee,

. et. ¥ Ke

SHAWKEE MANUFACTURING Company, GLENsHaw Grass Cow.

pany, MeKee Glass Company and George R. Haub, De-

fendants-Appetkmts

Brief Amicus Curiae Filed by the United States of America

in Support of Petitions of Hazel-Atlas Glass. Compas.

and Shawkee Manufacturing C om pant ef al., for Leave

to wile Bills of Review

Re “asons for Filing Brief

The United States of America respectfully directs thie at-

tention of this Court to the following consideratipns bear-

ing on the respeetive petitions of Hazel-Atlas Glass Cont-

[fol. 30] pany and Shawkee Manufacturing Company, ¢f a.

for leave to file Bills of Review in the above- entitled cases.

This brief is filed for two reasons :

(1) As the plaintiff in em antitrust action now pending

- in the District Court of the United States for the Northern:

District of Ohio (Western Division), the United States is

in a position to know of certan facts bearing on the issue

. a Po. a Pe

2 ,

ee

er (:)

(2) The braad scope given to the Peiler patent in the

two decisions clearly affeets the public interest and makes

it-important that there be a reconsideration of the two de-

cisions in order to determine whether or not they were the

result of a fraud perpetrated upon the ‘Patent ‘Office and

mig ourt. ;

Statement of Facts

As shown by the affidavit of Samuel S. Isseks filed here-,

with, the following facts bearing on the issues in the instant

case have been adduced in the course of the trial of the

antitrust suit-of the United States v. Hartford-Empire Com--

‘pany, Hazel-Atlas Glass Company, Owens-Illinois Glass

Company and others, No. 4426, in the United States District

_ Court for the Northern District of Ohio, Western Division:

1. On April 9, 1924, Hartford-Empire Company, the

plaintiff in both of the instant cases, a concern engaged in

the development and ligensing of patented ‘inveutions on

machinery used in the manufacture of glassware, and

Owens-Illinois Glass Company (then called Owens Bottle.

Company), the largest. manufacturer of bottles in’ the

United States, and also the owners Of certain patents

and applications on autoniatic glassware machinery, en-

|fol. 31] tered into a cross-licensing agreement, This

agreement provided that Owens would receive one-half of

Hartford's royalty collections after deduction of $600,000.00

in return for which Owens gave Hiirtford an exclusive

. license under all its feeder and. forming machine patents.

The parties further agreed to prosecute all infringers

promptly and by a subsequent arrangement, they agreed to

share equally in the cost of all litigation brought on the

licensed patents.

2. This 1924 agreement was executed diring the pendency

of the nine year struggle of Hartford- -Empire Company

‘in the Patent Office, to obtain the issuauce of Patent No.

1,655,391 involved in the instant—suits,/ Pursuatit to” the

“agreement and during the course of the Patent Office Pro-

ceedings, Hartford-and Owens joi

whereby they would arrange to haye published in-a teiile

paper an article relating to the ¢ ass feeders of the Hart-

ford Company. It was their pyxrpose to have the article

published under the name of a/disinte rested authority who.

would recite alleged facts showing the. important contri

ly conceived ao plan .

‘>

«>

“50

bution of Hartford to the advsncouitnt of the glass feeding -

art, in order that the article be used in the Patent Office to

influence it to issue the Peiler patent. :

3. Pursuant to this plan, one R. F. Hatch, a patent

solicitor in the Patent Department of Hartford, drafted

such an article and sent it to one, Henry W: Carter, in

charge of the Patent Department of Owens, for his com-

ments and revisions. Carter returned the draft and noted

that it was erroneous in many material respects, but adding

that so long ‘as it-was not ‘too rank’’ it would serve the

purpose. is en ; 7

4. Hatch then induced one William P. Clarke, head of

a glassworkers imion, to sign the article as author.~ There-.

- upon Hatch arranged to have it published in the National,

Glass Budget, a trade paper. . ets

[fol. 32] 5. Without revealing the true author of this

article, Hartford’s attorney submitted the article to the

' Patent Office in the then pending proceedings with respect

to the patent in issue in the instant suit, emphasizing the

impartial character of its source.

6. Subsequently and on Jasnact 3, 1928, the Patent Office 7

allowed the application, which issued as patent No. 1,655,391

-—the sedpe and validity of whieh was before this Court..

Again acting pursuant to their prior agreement, Hart-

ford and. Owens agreed that Hartford would bring the

. instant suit against Hazel-Atlas, the second largest manu-

facturer of glassware in the United States, for. alleged

infringement of the Peiler patent.. Hartford. and Owens

shared equally in thte‘expenses of this litigation.

8. At no time did Hartford or Owens reveal the ciremn:

stances ‘relating to, fhe authorship’ of the Clarke article or

the inaccuracy of ‘some of the statements therein, "to the

Patent Office, the District. Court, or to this Court.

ee Immediately followi ing the decision.of the Court in the

Hazel-Atlas Suit (No. 4414) représentatives of Hartford

* vommunicated with the President of Hazel, and it was sus-

«ested that an arrangement ‘could: be worked out whereby

. Hazel could have a license under the Peiler patent here in-

volved with-a share in Hartford's royalties from other -

licensées. if Hazel would agree (1 )-not to file a petition for

am

| ee

a ie in‘this Court and (2) not to file a petition for

certiorari to the Supreme Court. Hazel accepted these con-

ditions, paid a million dollars damages, and took a license

under the Hartford patent. ios .

turn for Hazel’s accepting, a license under the Peiler and

- other patents, at Hartford’s standard royalty rates, Hazel

dedueting $350,000, while Qwens would .receive another

third in place of the half it had been receiv ing under the

1924 contract: In exchange for this share in royalties,

Hazel : wreed ‘that it would license Hartford under Hazel’ s

‘patents, which were narrow in seopg, relinquish a elaim

‘*the benefit of.- its skill =. operati ag glass machinery

mechanisms. ’ \ a

’ .

11. Following the signing of the various ‘aereements De-

tween Hartford, Hazel and Owens, in July, 1982, Hartford

to accept a license under the Hartford patents. The an-

nouncement did not reveal, however, that Hazel was to share

in one-thiml of Hartford's rovalties, and in fact the exist-

ence of this arrangement was not known. to, other members

ford, until it was revealed at a public hearing before the

TNEC in December, 1938.

ry .

Who had previously refused to take licenses from Hartford,

took licenses under Hartford patents at Hartford's stand-

ard royalty rates. Some of them did so because the power-

ful Hazel-Atlas Company had, so they thought, been forced

to take a license as a result of the decision of this Court in

the Hazel-Atlas suit. The result is that today Hartford

has manufacturers’ representing about 96% of: the pro-

duction eapacity,-of the industry under license and con-

tributing royalties to Harfford and Hazel. --Royalty col-

- have totalled forty million dollars since Hazel: took the

license,

[fol. 33] 10. This license iicnieiaiiie prov ided that in re--

against Hartford and Owens and allow Hartford to receive .

and Hazel published an announcement to the effect that”

Hazel had paid ene million dollars.in damages and agreed’

12. Following the announcement of the Hartford-Hazel.

settlement, a number of other manufacturers of glassware, ,

would receive one-third oft \Hartford’ 8 total royalties after™

of the industry, even including certain executives of Hart-

lections in 1940 amounted to about six million dollars and.

pee a .

«52 g ne =! a

[fol. 34} 93. During the negotiations for the 1932 Hazel-

Atlas, Hartford and ¢+wens agreements, the aforementioned

Clarke made a demand upon Hatch that Hartford pay him

$10,000.00 for having sponsored the so-called Clarke Article.

Hatch communicated with his ‘principals at Har¢ford and

with the Owens representatives, and as a result Hatch

maile two payments to Clarke, one of $500.00 and the other

~ of $7,500.00. Both payments were made in cash by Hatch {

\e Clarke, the first in New York City and the other in

*ittsburgh, and the revords-of Hartford ‘showed that the

payment of $7,500.00 was tuade as ‘‘counsel fees’’ in con- -

, nection .with litigation instituted by Hartford and as to

" which Owens: was obligated*to pay and did pay one-half

~éf all such expenses, including the payments to Clarke.

Clarke, of course, was not an attorney.

.14, On May 9, 1941, Honorable Frank L. Kloeb, United

States District Judge for the Northern District of Ohio,

before whom the aforeinentioned case of United States v..

ford-Empire Company, et al., is being tried, entered

i owder on motion of the plaintiff, after argument and

submission ef briefs, impounding all. royalties payable by >

Hazel-Atlas to Hartford under the. 1932 agreement, and

all amannts payable to Hazel-Atlas be Hartford under said

agreement. Judge Kloeb esnecluded that the Government

had made a prima facie showing of the illegality of the pay-

ments by Harfford and Hazel-Atlas under the agreement.

. The total amount paid as of November 15, 1941 to the Clerk

of. the Court under said order is $1,786,172.22, for he

period from May 14, 1941, to November 15, 1941.

ly The status of the antitrust case. is as follows: The —

CGiovernment completed its proof on October 22, 1941, and

the defenlants are now offering proof.

[ fol. a5) Argument

Judge Gibson in the District Court held that if ty pate nt

were valid, the Hazel-Atlas structure did not infringe (39

Fed. 24-111, 1930). Hartford then appealed ‘to this Court.

In an opinion here by Judge Buffington, the patent was

held valid and_infringed, and its claims were given great

~ dere adth of scope. Judge Davis concurred and Judge Wooley

dissented (59 F. 24 399, 1932). The opinion rests in large

part upon the so-called Clarke article. It states at the out-

4

53

set (p. re that since labor organizations were. vitally |

interested in the supplanting of hand blowing by mechanical

blowers the Court can and does ‘‘rely on their opinion in

that rezard.’’ The article is queted from at length through-

out the opinion, ayd the Court reached a conclusion at page _

413 that where the art found /jno solution in the patents cov-

ering prior inventions, ‘‘it is safer to rely evidentially on

the then judgment, attitude, and conduct of the glass trade <—

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.” The ¢ ‘ourt’s notion of the’ judgment ang

conduct-of the glass ‘t¥ade>thowever,is drawn from the

_ Clarke article, relied on as the impartial expression of :a-

labor leader. P

Thus the opinion of Judge Buffington i in the Haze-Atlas

ease Shows that in sustaining the validity of the Peiler

patent the Court relied heavily upon the disinterested char- ¢

acter of the Clarke article. ‘The motives which underlay

the writing, publishing, and submission to the P atent Office

of that article have. been demonstrated’ by the complete

facts brought to light for the first time in the pending anti-

trust suit inthe Ohio District, Court, and which are in part

~t forth above and more fully referred to in the separate

[fol. 36] petitions and stipporting papers of Shawkee Mani-\ :

facturing Company and Hazel-Atlas Glass Company.

In view of the facts, argument-is hardly necessary to ingi-.

cate that grave doubt exists ax to whether or not the deci-

sions of this Court in the instant cases were obtained as

a result-of a fraud practiced upon the Court as well as

the Patent Offiée. Upon all the cirepmstances, and con-

sidering the fact’ that Judge Gibson in the’ District Court

and Judge Wooley in this Court were of the opinion that

the patent involved had not been infringed, there seems to

be considerable merit to the instant petitions for leave to ~

file Bills of Review. \

There being more than a rensonable doubt as to’ the

‘existence of fraud, the yiublic interest involved fends sub-

stantial weight to the pokition of. the petitioners. Dune to

the broad and basie chatacter aséribed by this Court to

thd claims of the Peiler patent, the Hartford Company, with

the aid of the Owens Company, have been enabled to exact

54 oe ; | . % a

largé sums of money from the glassware produeers of the

country, sums ultimately recouped from the consuming

public. Furthermore, these companies have. been able,

largely through the broad: scope attributed by this Court

to the Peiler patent, to extend their control not only over

the glassware machinery aah \ ht but also over the mast

ware business itself. - i

In holding that the United States could file a bill to annul

‘a patent alleged to have been fraudulently seéured, the

.

Supreme Court said through -Mr. Justice Miller in United

‘States v. American Beil Pelephone a 128 U.S

315 (1888), at page 367: ;

The essence of the right of the United States to inter-

fere in the. present case is its obligation to protect

the public from the monopoly of the patent. which was

procured by fraud. a te

bad

fol 3a]. The Court went on to: say, at page 370:

The United States, by issuing the patents whiel are

here sought to be annulled, hastiaken from the public

rights of immense Value and bestowed them upon the

patentee. Tn ‘this’ respect the government and its

officers are acting: as .the agents of the people, and

have, under the authority of law vested in them, taken’

from the people this valuable ‘privilege and conferred

it as an exclusive right upon the patentee. * * *:

This has. been taken from ‘the people, from the public,

-and made the private property of the patentee by the

action-of one of the departments of the government act:

ine under the forms of law, but deceived and misled, as

the bill alleges, by the patentee. That the government,

authorized both by the Constitution and the statutes

to bring suits at. law and in equity, should find it to

he its duty to correct this evil, to reéall these patents.

to get a remedy fur this fraud, is so clear that it needs

no argument. ithas er atc

. =

‘The Government, of course, is not at Sreseiit seeking to

intervene in the instant suits; nor is it now taking steps to

have the patent here involved annulled. It simply requests

that this Court give consideration to the public interests.

a) clearly expounded by Mr. Justice Miller’ in the America.

Oa

Bell Telephone Co, éase, in determining the question pre-

sented: by the private petitioners herein.

Respectfully submitted, Thurman Arnold, Assistant |

Attorney General. Hugh B.’Cox, Samuel S. Is-:

seks, Lawrence S. Apsey » Special Assistants to the

Attorney General.

Decembey’3, 1941.

“fol. 88) Ly rue Usrrep States Cinevir Court of Apreas

FoR THE Tuirp Cirevit

No. 4414

Harrrorp-EMrine Company, Plaintiti-Appeitant,

_ . ™ v. \ . .

Haze.-AtLas Grass Companys, Defendant-Appellee

No. 5203

Hartronp-EmMpme Company, Plaintttf-Appellee,

a v. .

: *

SHAWKEE Manecractunine Company, GLENSHAW Grass Com-

pany, MeKee Glass Company and George R. Haub, De-

fendants-Appellants. }

Affidavit of Samuel S. Isseks

Srare-or New York,

County of New York, ss.:

Samven S. Issexs, being duly sworn, deposes and says:

* {fol 39] Pam a Special Assistant to the Attorney General

of the United States, of counsel Jor the Government in the

Antitrust Suit entitled, United States v. Hartfora-E mpire

Company, vt al., No, 4426, now pending i in the United States

District'Court for the Northern District of Ohio, WwW estern

Division.

The evidence site by the Government in said pe nding

action against Hartford: Enipire Company, etal. shows

. that: |

1. On April 9, 1924, Hartford-Empire Company, a con-

* cermengaged in the development and licensing of patented

fy)

56 ae :

inventions on machinery used in the manufacture of glass-

-ware, and Owens-Illinois Glass Co., the largest manutae-

turer of bottles in, the United States, entered into a cross-

licensing agreement. The agreement provided that Owens

would receive one-half of Hartford’s royalty collections.

after deduction of $600,000, in return for.which Owens gave

- Hartford an exclusive ficense under all its feeder and forni-

ing inachine patents. The parties further agreed to prose-

cute all iifringers promptly and by «a subsequent arrange-

ment, they agreed to share equalky in the cost of all litiger-

tion brought on the licensed patente.

», This 1924 agreement was executed during the penne nes

of ‘the nine year struggle of Hartford-Eimpire Company in

the Patent “Office, to obtain the issuance of Patent No,

1,655,391. Pursuant to the agreement and during the Gourse

of the Patent Office . proceedings, Hartford and Owe,

jointly conceiveda plan whereby they would arrange to have

published in a‘trade paper an article relating to the eliss |

feeders of the Hartford Company. It was their purpose to

have the article published under the name of a disintereste:|

nutherity who would recite alleged facts showing thie in

portant contribution of H: artford to the advancement of the

wlass —e art.

[fol. 40]- 2. Pursuant to this ‘shan, one RE. Hateh, st yuat

ent solic meg the Patent Department of Hartford, dratted

such an article and sent it to one Henry W. Carter, in charge

of the Patent De ‘partment of Owens, for his comments ane,

revisions. Carter returned the draft noting that if was er

roneous in manvomaterial respeets, bit adding that se lone

as it Was not ‘ited rank” it would serve the purpose,

4. Hateh then induced. cone William P. Clarke, head of

a vlassblowers union, to sign the artiele as author. There

upon, Hatch arranged to have it publishe “hi In the Nationa:

Glass Budget, a trade paper.

. Without revealing the true author of this artic le, tl: art

ford" s attorney introduced the article to the Patent Office

— in the then pending ‘proceedings with respect to the patent

in issue in the instant suit, emplotsizing the impartial

character of its seurce.

bi. Subseque ntly and on January 3, 1928, the P spent Othen

allowed the application, whic lh issued ais patent No. 1,695,

391. ey ae °

; | =

Again acting pursuant to their prior agreement, Hart-

ford and Owens agreed that Hartford would bring the in-

stant suit against Hazel-Atlas, ‘the second largest manu-

facturer of glassware in the United States, for alleged in-

fringement of the’ Peiler patent. © Hartford and Owens

shared. equally in the expenses of this litigation.

At no time did Hartford or Owens reveal the cireum-

stances relating to the authorship of tne Clarke article or

‘the inaccuracy’ of some of the statements therein, to the

Patent Office, the District Court, or to this Court.

. Immediately following the decision of this Court. in

me ‘Hoe +1 Atlas suit (No. 4414) the representatives of dart-

lfol. 41] ford communicated with the -President of? Hazel.

and it Was suggested that a arrangement could be worked

out whereby Hazel could havea license under the Peiler pat-

ent here involved with a share in‘Hartford’s rovaltic ss frome.

other Heensees if Hazel would agree (1) not, to file a petition

- fora reherring in this Courts and (2) not to file a petition

‘for cortroraré to the Supreme Court. Hazel accepted these

conditions, paid a millien dollars damages, and took a lis >

conse under the Hartford patent,

.

This license agreenient provided that in return for

Havel’s accepting a lieense under the Peiler and other

patents, at Hartford's standard revalty rates. Hazel would’

recerve sone third -of Hartford *s raoviitye after deducting

SS00,000, while Owens would receive another third in place

of the half it had been receiving under the 1924 contract,’

In exchange for this share in rovaltiess Hazel agreed that at

wonld license Flartford under Hazel’s patents, which were

narrow in-seope, relinquish a elain: against Hartford and.

| Owens and allow:-Hartford to reegive the benerit of its skill

iwoperating glass machinery mechanisms.

MH. Following the signing of the Various agreements De

tween Hartford, Hazel and Owens, in Puiv 1952. Hartford

wd Hazel published an announcement to the effect that:

Hazel hati paid one million dollars in dainages and aereed .

to accent a dicerse-under the FA: artford patents. The an.

neuncement did’ not reveal, however, that Hazel was. to .

share in one-third of Hartford's rovalties, anal in fact the.

existence of this arrangement was not known to other mem-

be ‘rs of the industry, even including contain executives of

s

58

°

. 1"

Hartford, until public hearins before the TNEC in -Decen-

ber, 1 938.

12. Following the annotncement of the Hartford-Hazel

settlement, a number of other manufacturers of glassware,

{fol. 42] whe had previously refused to take licenses from

Hartford, took licenses under Hartford patents at Hart-

ford’s standard royalty rates. Some of ‘them did so be-

cause the powerful Hazel- Milas Company had, so they

thought, been forced to take a‘ license as a result of the

decision of this.Court in the Hazel-Atlas suit. The result is

that today Hartford has manufacturers representing about

96% of the production capacity of the industry under li-

cense and contributing royalties to Hartford and Hazel.

Royalty collections in 1940 amounted to about six million,

dollars and have totalled forty million dollars since Hazel

took the license.

— On May 9, 1941, Honorable Frank L. Kloeb, United States

District Judge for the Northern District of Ohio, before

whom the aforementioned case of United States v. Mart-

ford-Empire. Company, ct al., is being tried, entered an

order on motion of the’ plaintiff, after argument and sub-

mission of briefs, impounding all rovalties payable by

Hazel-Atlas to Hartford under the 1982 agreement, and all

amounts payable to-Hazel-Atlas by Hartford under said

agreement. Judge Kloeb, in-m: iking such order, found that:

said agreement was prima facir illegal. The total amount

ened to the < ‘he rk of C ourt under ~ onder as af Nov v anber

to fois 15 ), 1! 41. = -

The status of the Governme nt Cane Is as follows: The 1

Government rested.oin October 2, 1941, and the-defendants

are now offering proof... ; ,

: Samuck 8 . Isse Ks.

Subseribed nd sworn to before me this 4th day of De-

conber, 1941. 7 -

..Leo Cohen, Notary Public, Kings County, Cik’s No.

-y. * 98;N.Y. Co. Clk’s No. 64; Bronx’ Co. Clk’s No. 31.

ae (Soal.)

Commission Expires March 30, 1942.

fe Sarre

e

59

ffol. 43) Is tak Esrrep Srares Crreevryr Courr or APPEAts

ror THE Titre Cincerr,, Ocroper Trem, 1941 a

No. 5205

Harreorn-Eurie Comeany, Plaintiff- Appellee,

| ae

SuawkeEe MANUFACTURING COMPANY, GLENSHAW GLass Com-

paxy, MeKee Glass Company anil George R. Haadb, De-

fendants- Appellants

“And afterwards, tor wit, the 5th dav of December, 1941,

come the parties aforesaid by their counsel aforesaid, and

this case being called for argument sur Petition for Leave

to Fite a-Bill of Review, etc.. before the Lonorable John

Biges, Jr. ‘Honorable Albert B. Maris, Honorable William

Clark and Honorable Charles Alvin Jones, Circuit Judges,

and the Court not-beiny fully advised in the premises, takes

further time for the.consideration thereof, ;

And afterwards, tovwit, on the 29th day of. December,

1941, come the parties aforesaid by their counsel aforesaid,

and the Court, now being fully adv ised inthe premises, ren-

ders the following decision :, :

ffl. 44] Iso aire Unrrep Comes Wovrr or APPEALS

‘ror THE Tiuirp Cinccrr, Ocropen Them, 1941

<-, \No . A414

Hartronp-Earine Company, P laintift Ap pe Wh it,

Vs.

Hazer-Atias Giass Company, Defendant-Appellec

No. 9208. October Term, 1941 °°

Hanrtrorp-EMpire Company, Plaintiff-Appellee,

Vs.

SHawher Manuractcnine Company, GLENSIAW Giass Com-

pany, MeKee Ghass Company and George R. Haub, De

fendanix- \ppellants ;

On ‘Petitions for Leave to File Bills of Review

Orreion—Filed December 20, 1941

Before Biggs, Maris, Clark and Jones, Cireuit Judges.

Lfol45} Pre Curiam: |

Petitions supported by affidavits and seeking leave to file

bills of review-in the United States District Court for the ©

ys |

60

Western District of Pennsylvania have been filed in this:

court in the above cases. The gist of these petitions is the

charge that a fraud was imposec& upon ‘this court which re:

sultedt in No, 4414 in an incorrect decision reversing the de

cree of the District Court. See 59 FL. (2nd) 399.) "Phe in

correct decision (if it was such) in No. 4414 caused a, like

incorrect result in No. 5203. See 68 F. (2nd) 726. .The-

proposed bills of review seek rever val of the two ‘de ‘CISIONS

-of this court referred to.

Inview of the fact that it is alleged that fraud Was prac:

ticed upon this court rather thaw upon the court below, this

court wil! adapt the practice followed by the Circuit Court

of Appeals for the Seeond Cirenit in the companion cases _

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

(2nd) 940 and 944, certiorari denied 508 UL S.621, and itself

pass upon-the question of whether the mandates. ef this

court should be recalled and the cases reopened. Actor.

ingly the prayers of the petitions as framed are denied but

«leave is granted to the petitioners to amend the prayers

and to petition this court to, set aside the judgments hereto

fore centered in this court, on the ground of frand, The

plaintiff-appellant will then.rey ply to the petitions for revie ws

as amended and the questions involved will be heard and

determined by this court.

A true Copy :

Teste:

3 ‘Terk of the United States Cirenit Court o!

Appeals. for the Third Cireuit. .

[fol 46! Is roe Usrrep Staves Circerr Covrr or Apres

ron THE Tain Cireeer

“No. 5203 | gs

Hanrrorp- Rup mE Company, Plaintiff-Appellant,

Vs,

Suaw KEE MANUFACTURING Comp ANY, Giexsnaw Gixss Cow-

pany, MeKee Glass © ompany and George R. Haub. Te.

fendants-Appellants

Amendment to Defendants” Petition Filed October 24, 141

and Supporting Memorandiam

[fol.47] AMexpMenr to Derenpasts’ Perirign—Filed Ue-

tober 24, 1941 :

Comes now petitioners, Shawkee Manufacturing Cem

pany, Glenshaw Glass Company, MeKee Glass Company

and George R. Haub, pursuant to the leave granted hy thix

Court's decision of December 29, 1941 and petitioning this

Court to set aside its judgment heretofore entered in this

Court, on the ground of fraud, amend the prayer of their

petitionctiled herein on October 24, 141 to read.as follows:

—_— petitioners, therefore, pray:

me Hat this Court, on the’ gremml-ef fraud, vacate,

set aside and annul its decision amd decree entered on

or about October 19, 1954, affirming the decree of the.

district court for the western district of Pennsylvania ;

recall the mandate issued pursuant to-said decision and

dette , and vacate, annul and set aside all proceedings

~ had-pursuant to said mandate, ine ucing the entry of .

the final dee ‘ree filed in said district court on or about

January 11, 19934; and restore this catse te the docket

of this Court for reargument upon the original briefs

filed hereinoor upon such supplemental briefs as the:

parties may wish to file, wend fix the time for the filing

of such briefs and rearga:nent.

“? That this Court, dismiss thix cause of action on

the groand of the fraudulent use made by plaintiff, of

this Court's decree of validity and infringement fraud:

ulently obtained inthe case of Hartford-Kmpire Com-

pany v. Hazel-Atlas Glass Company, 59°F (2d) 399, as

the basis of the favorable decrees in its application for

_ [fol. 48] injunction pe ndente lite, and that this Court

decree that plaintiff did not-come ‘with clean. dands, in

respect of any cause of action in this case. -

‘3. For such other and further relief as may be just,

including reference to a Master to be appointed by this”

Court, to render an accounting of ‘all costs incurred by

defendants and each of thera in these and the former

proceedings, including attorneys fees gnd the moneys

paid hy defendants on accounting to gaintift with in-

* terest, and for damages i in treble the amount sustained

‘.. by defendants and each of then because of plaintiff's

fraudulent and unlawful use of its patents, and that de-

fendants and each of them have judgment for the dam-

ages and costs so found and for such final disposition

as’ ito the Court may seem aie and proper.’

~Shawkee Manufacturing ‘Company, Glenshaw Glass:

Conipany,. MeKee Glass Company and George R.

Haub, Petitioners, by William B. Jaspert, Counsel

for Petitioners.

* Januar ~, 1942,

[fol. 49] ee 3 » Memonanxpum

The present petition, pursuant to this-Court’s decision

filed December 29, 1941, seeks leave to amend the prayers

and ‘to petition the Court to set aside the judgment hereto-

fore entered in this Court. and the-court below, on the ground

of fraud.

_ The amended prayer numbered 1, asks the Court. io-re-

l its mandate and reopen thescase in conformity with the

: ocedure followed by the Cireuit Court of Appeals: for the

cond Cirenit in the cases of Art’ Metal Works, Ine. vy.

Abraham & Straus, Inc. 107 F (2d) 940. and. 944., The

amended prayer numbered 2 es the Court to dismiss this

cause of‘action under the clean hands doctrine, and amended’

prayer numbered 3. asks the Court for judgment and ac-

counting for costs and treble the amount of daniages’ sus-

tained by defendants beeause of plaintiff's fraudulent and

unlawful nse of its patents, and for such final disposition a-

to the Court may seem just and proper.

The evidence upon whiély defendants rely in support of

their petition has-been briefed and argued hefore: this Court

on hearing on the original petition.

Respectfully submitted, William B. Jaspert, (oom:

for Petitioners. - ;

January, 1942. Nest ets —

° P . "

° . »

— . oe .

- ee aren pag isn . . ° -

e € . :

- ) :

7

‘

i

>= = , P

4 ee \

“4 \ e !

°

: ms 57

{fol. 64] Ix tHe Unirep States Circurr Court or ApPEal. s

FOR THE TuigpCircuir

iy No. 5203 ” . i

Harrrorp-Empie ideas,

Plaintiff- Respondent,

Vv.

SuawkEE Manvuracturine Company, GuensHaw Grass Com-

—pany, McKee Giass Company and GeorGe R. Haus,

Defendants-Petitioners.

Repty to AMENDED a oF DEFENDANTS TO Vacate ¥

© Decree, Erte. —Filed Feb. 3, 1942, :

Now comes the plaintiff, Hartford-Empire Company

(hereinafter called Hartford), and makes answer to the

amended petition of. the defendants-petitioners (herein-

after collectively called Shawkee), the original of which w as

filed herein on October 24, 1941, as follows:

1. As the original petition herein was heard:and con-

sidered by-this Court in connection with the original peti-.

tion of the Hazel-Atlas Glass Company (hereinafter called .

Hazel-Atlas), (No. 4414), and as the two amended petitions

. will doubtless be considered together, Hartford in this reply

will incorporate, by reference, various pertions of its reply

to the Hazel- Atias amended-petition i in order to avoid repe-

tition. : °

[fol. 65 . Hartford admits the alleg: itions appet uring on

page 1 of a Petition.

Hartford admits the. allegations appearing on page

of the Petition, exeept the allegation that the ‘*Shawkee

feeder’* involved herein utilized air pressure and Vacuum

to.control. the discharge of @lass.as disclosed in the expired

patents to Hitchcock No. 805,068 and Reissue 13,929, which

Hasttoed denies, and lar tford avers that the Peiler patent,

in so far as concerns: the process defined by the claims in-

volved in this suit, is not fimited to the use of ‘a reciproeat-

ing plug or plunger’’. ae

Hartford admits the’ allegations appe: ring on page 3 of

the Petition, but avers that Shaw cee’s counsel proposed at”

the hearing before this , 5. ourt that the case night be dis-/

ee es

»

-

posed of as if on final hearing, and Hartford refers to the

opinion of this Court reparted at 68 F.*(2d) 726 for a full ,

' statenient of its reasons for diemicslng-the appeal.

Hartford admits the afegations appearing on pgges 4

«and 5 of the Petition, except the allegation that patents

2,07%571 and 2,073,572 were for the saine-‘‘ generic inven-

. tion that this Court Nad attributed to’ Peiler-Pafent 1,655,

391 in ‘the Hazef-Atlas Glass Company and Shawkee deeci-

sions"*, which it denies. ; .

Answering pages 6 to,12 ‘inclusive of tke Petition, -

Hartford avers:

The. so-called “Clarkesarticly’” was prepared_in the first”

instance under the circuma&tances related in Hartford's

‘reply filed herewith %o tHe petition of*Hazel-Atlas im No.

44id4end Hartford refe and adepts the same as a part

hereof to show thg facts and tireumstances as to the prep-

* nration of saigl article,the use thereof in the Patent Office

and before this Court, the reply made thereto by Hazel.

Atlas in its original brief in No. #414 and the truth of the _

“facts set out in said srticle.

[fol. 66] Hartford denies the allegatians and implicftions +

. of the Petition that the Said article, as published, w

avers that any errors Phich may originally have appedkred

in preliminary drafts Qjereof were corrected before publi-

cation, avers that the "Btatements, in. said ‘article, as pub-

‘ lished, were. true; and avers’ that pages 10,to 12 inclusive

of the Petition are misleading‘in that they do net disclose

that subsequent to the writmg. of the letters therein re-

ferred to, it was ascertaified that such of the criticisms and

statements 6f inaccuracies voiced in said letters as were

not subsequently corrected were without foundation“aia™,

were based on faulty recollection, that the curves of the

chart, prior to publication, were asce?tained to be correct.

and furtber that the chart was actually adverse to Hartford

because all feeder production of pressed ware Was omitted,

so as to the draw a true comparison with Owens Bottle

* machine production. For a further ‘detailed statement of

the facts in this regard, Hartford refers to Paragraph 6

of its reply to the Petition in No. 4414.

‘Ln-answer to the last two paragraphs on page 12 of the

Petition Hartford admits that by letter dated October? °.

1933, this Court's attention was directed by Shawkee to the

fact that the aforesaid article had been submit@d to the

‘

-~

National Glass Budget by Mr. Hatch, but avers that prior

to such submission, the same had been carefully checked by

, Mr. Clarke, changed by him in some respects and then

approved and signed by Mra Clarke. -

* “Hartford denies that the true facts were not then dvail-

able to Shawkee and that the true facts were suppressed by

Jiarfford, but avers, on the contrary, that the facts were

_available to Shaw kee, and that prior to the decision of this

“Court, Hartford, by its counsel, had advised Shawkee’s

counsel as to persons who had knowledge of the facts, hie

hereinafter more fully set forth. 7

J

\fol. 67) 4. Answering page 13 of the. Petition, Hartford

Menies that the petitioners -were unable to prepare’ and

_ file their said Petition prior te June 1941; denies that peti-

tioners have exercised proper and reasonable diligeyce in

presenting the same? and avers:

The appeal inthis cake was argued on OctdBer 3, 1933.

On. Oetoler 20, 1933, one of the counsel for Shawkee wrote

to one of the counsel for Hartford, stating that subsequent

to the argunient in this Court ceftiin correspondence had

he¢n brought to the attention of Shawkee’s counsel *‘show-

‘ing that the (Clarke) article * * * was published

29S 2 ae request of Hartford-Empire Company by

one ofits attorneys, Mr. R. F. Hatch * * + °,”* and on

_ October 30th said counsel for Shawkee advised the Judges

of this Court of the’eorrespondence just referred to. Or

the same day, counsel for Hartford advised counsel for --

Shawkee that if the latter désired that the correspondence

“he placed before the Cireuit Court of Appeals and that

(‘ourt is willing to accept it, we wil] interpose no objection”.

Copies of all the pertinent correspondence. and exhibits .

thus laid before the judges of thix Court are hereto attached .

as Schedule “*A*’ and made a part hereof. 9°

Hartford refers fo Paragraph 8 of its reply to the Peti- ’

tion in No, 4414 for a statement of the facts as to the knowl-

edge acquired by Messrs. Wood and Wood as to the author-

ship of said article. As appears from the Appendix to

Hartford's brief on the original petition herein, pages LIS,

119, the late: William J. Belknap, of counsel for Hartford,

wrote to Edmund P: Wood on November. 13, 1933, asking —

confirmation. of Mr. Belknap’s understanding that Mr.

Wood was aware prior to the trial of the Hazel-Atias case

in 1929 that Mr. Hatch had been instrumental in having the

=: *

60

article published; and Mr. Wood replied under date of No-

-Vember 14, 1933 confirming’ ‘the fact. On November 17,

‘[fol. 68] 1933,°copies of Mr: Wood’s letter just referred

‘to were sent by counsel for Hartford to the Judges of this

C ‘ourt: and also to counsel for Shawkee.

5. On December 16, 1933, counsel for Shawkee agai

wrote to the Judges of this Court calling attention to the

then: recent decision of the Supreme Court in Keystone

- Driller Co: vs General Excavator Co., and asserted that the

facts as to said article constituted a case of unclean hands.

In that letter, counsel for Shawkee stated that

‘it appears for the first time subsequent to. the siub-

ission of the case in this court that ‘in the prior suit.

(the Hazel-Atlas case) upon which plaintiff now re-

lies, this court was influenced by a publication which.

first had been instigated, and then invoked by’ plaintiff

to secure a favorable action by the Patent Office when

the application for the Peiler Patent, here sued on,

was pending and liad relied upon: and invoked that

publication and: other publications which had never

‘been introduced: in ‘evidence. in the litigation but ap

peared in the shag only because they ‘appeared in

the Patent Office file wrapper as matters which had

been presented ex parte by the present. plaintiff to

support, the application for. the Peiler Patent and to |

‘overcome the action of thé Patent Office in rejecting

claims by Peiler upon the disclosure of the Hitch-

cock Patent upon which the defendant here relies for

justification of its action in making the. machine ‘vere

complained = :

He further stated that .the corresponde nee sent. to the

Court. shows that : ee ,

‘¢the publication of this article in the Glass Budget’

was instigated by the ingenious brain of Mr. Hatch,

_ one of plaintiff’s attorneys”?

was nsed in the Patent Office and that. ites, plaintiff's sbrief

"in the “Hazel- Atlas case in this Court - {juoted from this:

_article”’ .

- [fol. 69] 6. On January 11, 1934, the opinion of this Court

was filed herein, dismissing the appeal. On February &.

; r

61

1984, ‘a petition for rehedeinis was filed based in part. on. the

alleged newly distovered evidence as to said article, and

alleging that it showed that Hartford was in court with

uiclean hands. On sien 21, 1934, the ners was

| —

7

7. Hartford reters to: Paragraph 14 and Schedule F of

its reply to the Amended Petition in. No. 4414 for the facts

as to the disclosure of matters relating to the Clarke article

by the filing of the complaint in the case of United Stat¢s

of America v: Hartford-Empire Company, et al:; and avers

that on the’ filing of .said complaint on December 11, 1939,

detailed charges as to the authorship of said article were

made of public record. Hartford further avers that a com-- |

plete copy of said complaint was in the hands ‘of present

counsel for the petitioners herein shortly after the filing

: thereof, as was admitted by said counsel at the hearing i in

this Court on the original petition.

8. | for Shiawkee was advised. by counsel for |

Hartford by a letter dated October 24, 1933°(in-Schedule A

annexed hereto) that the existence ‘of the papers presented

to ‘the Judges of this Court by ‘counsel for Shawkee, as °

_ aforesaid, were known. to counsel for the Hazel-Atlas.Glass

‘Company before the appeal in No. 4414 was heard by this

Court, and by letter dated October 30, 1933 (in Schedule A)

eounsel for Shawkee was adv ised that the same was also ~~

i known to counsel for the def ‘endant in the Nivisoi-W ciskopt

- case (Messrs. Wood and Wood), Hartford refers to Para-

- graph § of its reply to the Petition in No. 4414 for a state-

ment of the facts as te the knowledge of counsel for Hazel-

Atlas and -Nivison-Weiskopf on this, matty ‘ras of October

_ 80,1933, and Hartford avers that by Lwiid letters of October

24 and October 30, 1933, counscT for Shawkee were given

ffol. 70] such information that by the exercise of ouly ordi-

ary ‘diligence, they could have ascertained. all the addi-

tional faéts as to the authorship of : the article had they

chosen to do so.

Counsel for’ Shawkee therea fter wrote bn counsel for

Ritzel- Atlas asking whether they could confirm the informa-

tion iy en-to counsel for Shawkee by counsel for Hartford. .

“that! the matters relating to the article in the Glass,

Budget" referred to.in the papers submitted br coansel for

ne to the Court on October 30, 1933, as above stated,

‘ .

* . should be denied.

62,

‘‘were fully known to counsel’? for the Hazel-Atlas com-

pany at the time the case was tried. He received a reply.

- dated November 10; 1933 stating that counsel for Hazel. ;

Atlas’.

‘‘ present impression is that prior ta the trial, per..

. haps when I first _knew of this article, probably soon .

after the patent issued in 1927, I thought that the

Hartford-Empire Company might have been. respon-

sible for the article, but that I did nat, prior to the

trial, know of the papers. However, my recollection

now is too indefinite to be positive and I would have. .-

- to go through the voluminous: collection of papers

relating to the various Hartford-Empire litigations,

_tncluding correspondénce, before I could be mere defi-

nite. This would take about two days and it is possible

that . there would be nothing in the papers to make

“me more definite than I: now am.’

Hartford avers that Shaw kee are made no effort to

have counsel for Hazel-Atlas make any examination of his

records to refresh his recollection as to what he knew about

the-articlé, nor did they make any effort to ascertain what

knowledge Messrs. Wood and Wood had after a copy of

Mr. Edmund Wood's letter to Mr. Belknap was sent to

counsel for Shawkee, as aforesaid.

Hartford avers that petitioners’ failure to exercise dill

> gence under these circumstances, for a period of eight |

years, deprives them of any right, to relief under their

- [fol. 71) present’ Petition, and-that there has been such

laches in the -filing of the Petition herein that the same

Hartford further avers that Shawkee made no atten

to investigate the facts as to the preparation ‘of said article’

in or inimediately after December 1939 when Shawkee’s

counsel came into possession of the complaint in the case of

United States v. Hartford-Empire et al. above referred to,

or to call the same to the attention of this Court at that

time.

9 The bill of Complaint herein was filed May 21. ES.

At that time, one of the deferdants, Shawkee Manufactur-

ing Company, was making and offering for sale glass feed

ers* whose operation was charged to infringe the Feiler

patent. in suit. Two other defendants, Glenshaw: Glass

re ; : Se a ee 63 :

Company and McKee Glass Company, were using the like

feeders in day to day Cperation. The fourth defendant, —

George R. Haub, was ati pee formerly in the employ of’

Hartford and of Hazel-Atlas’ Glass Company, , and was:

made a defendant as the designer of the accused feeders.

The District Court filed its opinion on July 22, 1933, grant-

ing a preliminary injunction, limited, however, to enjoining -

‘the sale or disposition of: the accused feeders to third _

parties, and refusing to enjoin the use of the feeders by the

defendants themselves. . ae

On June. 27, 1933, the defendants. filed their answer. |

Two of the defendants, Glenshaw Glass Company and

McKee Glass Company, admitted-in,the joint answer of the.

defendants (Ree. p. 18) that they were then and had been

_ ‘licensed by Hartford to use certain glass feeders owned by

*Hartford ‘and embodying and performing’ inventions of -

Hartford; including ‘‘the method invention of the letters

‘patent here in suit; and that they have acknowledged atid

recognized and still continue to acknowledge and recognize

[fol. 72] the validity of letters oe of plaintiff including»

the letters patent here in suit’. The defendants averred

(Ree. p. 20) that if the claims in suit of said patent 1,655,-.

391 were interpreted to embody the apparatus and method. .

of the acéused device, then the claims in suit weré invalid -

in view of certain prior art cited, mae rngl prior art not

before the Court in the Hazel-Atlas suit.

As hereinbefore, stated,. Shawkeée’s sade proposed in

open Court at. the hearing of the appeal herein, that the

pirties stipulate that the-case be considered by this Court

-asif on final hearing, and a written stipulation to that effect:

~ was entered into and filed forthwith. Although Shawkee

“wrote to the Judges of this Court, prior to the decision of

* this Court, ‘*that the publication of-this article in the Glass

Budget was instigated by the ingenious brain of’ Mr. Hatch, -

one of plaintiff's “atternevs, * * 7’) no- request was

‘made that the defendants be relieved of the stipulatien

which their couse] had proposed, providing for the disposi-.

tion of. the ease as though on final hearing, and no request

_ Was made that the case be reopened to receive.evidence as

to the genesis or truth of the aforesaid article. In the peti-

tion for rehearing above referred to, no. contention was

made that-said stipulation had been entered into inadver-

tently, nor did Shawkee seek to, be discharged therefrom.’

?

64

Hartford avers that by its acts and omissions, Shawkee has

waived and abandoned any right to reopen the case on the

_ basis of the said.article, and that, by adhering to said stipu-

lation after h having obtained full knowledge or opportunity

for knowledge as to the genesis of the said article, Shawkee

elected not to make any defense based thereon:

10. Hartford uvers, for the reasons stated in Paragraph

18 of.its reply to the pending petition in No. 4414, that the

reference by Hartford to the said article in its brief before

this Court-in No. 4414 constituted no fraud, and that Hart-

[fol. 73] ford’s reliance in this case on the decision of this

Court in No. 4414 constituted no fraud in the case at. bar,

11. Hartford further avers that’ the public interest does

not require a reopening of this-ease._The decree of the

Court as to‘infringement was im personam merelyand ap-

plies only to the particular feeders whose operation was

complained of. The proceedings in the Patent: Office on |

application Serial “No: 294,792, which matured into the

Peiler patent in suit, constitute no!bar against an action

for inftingement on the Peiler patent, either at law or in

equity, but can be challenged only by the United States

Gov ernment, in a direct proceeding. .

12. Hartford makes a part hereof the original stibitaerits

and exhibits herein before filed by Hartford i in response to

the original petitions herein. -

~ 3 Attached hereto as Schedule Band made a part

hereof is a chronology of important events in this suit.

Wherefore Hartford prays that the petition of Shawkvee, |

as amended, be denied. x

Harfford- Empire Company, By Stebbins & Blenko.

Attorneys. Francis W. Cole, Edgar J. Goadrich,

James M. Carlisle, Of Counsel.

(Tomas @, Harcut as Counsel for Plaintiff- Respondent

took’a principal part in drafting this Reply, but he died sud-

‘denly on January 26 before the Reply was filed. ).

{fol. 74] : Verification

StaTe or Ouro,

County of Lueas, ss: .

Robson D. Brown, being duly sworn, deposes and says

_ that he is a Vice President of Hartford-Empire Company,

\

y 65

the icieidh tessa herein; that he in vend the fore-

going reply and that.the statements therein are true to the -

best of his know ledge, information and belief.

“9 | Robson D. Brown.

‘Sworn to and ‘subscri ec ici

and for said County and State, the — - day. of vivant d

1942.

[fol. 75] ae Screpute ‘A?’ To Repvy

Correspondence and Exhibits submitted” to the Judges

_of this Court by Shawkee’s counsel in cana 1933, as

follows:

Letter, Otto R. iiiaaaae Ksq., to Thomas G. Haight, _

Oct. 20, 1933

‘Letter, Mr. Haight to Mr. Barnett, Oct. 24, 1933 _

_ Letter, Mr. Haight to Mr. Barnett; Oct. 30,1933

Letter, Mr. Barnett to Judge .Buffington, Oct. 30, 1933,

with the following enclosures :

‘1. Letter, Hatch to National Glass Budget, July

9, 1926

2. Letter, Budget Publishing Co. to Hatch, July

* 42,1926

. Letter, Budget Pullliching Co. to C larke, Ses

18, 1926 .

e-

eas

>

Budget, July 14, 1926 -

5. Certified copy of papers from Patent Office :

file of application for Peiler patent 1,655,391.

See Record of this suit, No. 4414, Vol. V, pp.

261-265, 301

6. The typed Clark article. See Hartford ap-

pendix\ pp. 95-106 and Schedule A attached to

_Hartford*s Reply to Amended Petition in No.

~ 4414.

7. Copy of ition, Mr. Rlacnott to Mr. Haight,

_ Oct. 20, 1983 (printed at p. 13, infra):

.. Letter, Hateh - Kimes . of National a

My dear Judge Haight:

’ purported to be written by the President of the American

= judges who heard the Shawkee case on appeal as matters —

. which the court may deem pertinent but which were previ-

~ ously unknown to counsel for either side.

&. Copy of letter, Mr. Haight to Mr. Barnett,

~ Oct. 24, 1933. eibensaln at P- ‘14, infra).

The iia are snniaieaed hereviith, except the fifth and —

~~ sixth enclosures accompanying Mr. Barnett’s letter to Judge _

Buffington of _ 30, 1933.

[fol.76]° = “October 20, 1933.

‘‘Hon, Thomas G. Haight, ear ; ee wae .

Exchange Place, ae aes. ie

Jersey City, N. J.

_ Re Shawkee et al. vs. “Hartford. ‘Empire Co. _ 23 io ———

‘Since the conclusion of the atewnent. in the Coie of

Appeals i in the above case I have had‘submitted tomy atten-

tion certain paper's showing that the article published i in the

National-Glass Budget-undér-date of July 17, 1926-which

Flint Glass Workers’ Union was published at the request

of Hartfgrd-Empire Company by one of. its attorneys, Mr.

R. F. Hatch.

‘‘This request was sent. by Mr. Hatch to: his personal

friend Mr. Thomas A.-Kimes, Secretary of National Glass —

Budget. Following the publication of the article, a certified

copy of it was filed in the Patent Office in support, of the

then pending Peiler application which resulted in Peiler .

Patent No. 1,655,391. This is the article which was quoted .

quite extensively by Judge Buffington im his opinion in tie

Hazel-Atlas case upon which Hartford-Empire Company

relies in.support of its-contentions in the Shawkee case. -

“T\am sure you will agree with me that all of these

papers should be. immediately called to the attention of the

‘*T feel that you, as senior counsel for the Hartford-Em-

pire Cothpany, which has been claiming the benefit of this

article, have the prior right to clarifv this situation by sub-

[fol. 77] mitting these papers to the court immediately: and

feel confident that you will agree with this suggestion and

act accordingly.

“Should I be wiitahen | in : this respect, sianaal for Shaw-

| "kee et al. feel that it is their obligation‘to the court as well

_ as to their client to sec that these papers are promptly sub-~

mitted to the cour

“As whatever utiles is taken must be taken promptly,

may I have your early reply stating your Son eee as to

bow the matter should be handled...

“With personal regards. .

‘‘Very truly yours,

— ; ea (Signed) Otto R. atieatt: oy

——————

——

‘‘October 24, 1933.

-“Otto R. Barnett, Esq., -

1518 Monadnock Block, .

Cuca, ms ce

‘Shawkee v. Hartford-Empire Cémpany:

My dear Mr. Barnett:

‘‘Your letter of the twentieth, with ctniontiaas, was for:

warded to, and. has just reached me here. -

_ ‘*1 do not know of any procedure which permits an ap-

pellate court to consider evidence which was not ‘before the

eo

lower court; nor would I feel at liberty to attempt to in--

augurate such a procedure without the permission of the

appellate court. I cannot, therefore, agree with you that

the papers, photostats of which you enclosed, should be im-

mediately called to the attention of the Judges who heard .

ffol. 78] the above case on appeal. However as you know,

I have several associates in this matter, and I do not feel

at liberty to adopt any definite course of action without

_ their concurrence. - I-have accordingly advised all of them

by letter today of your letter.and suggestions, and. as soon

_as' I have heard from them I wilk let you know definitely

what we will do:

“‘T suggest, if you feel the matter of determining whether

these papers should be submitted to:the Judges of the Cir-

cuit Court of Appeals should’ not wait that long, thaf ‘vou

give notice of an application to be made to the Cireuit Court

of Appeals for permission to incorporate these ‘papers in

the record. I will be before.the Court on Thursday next,

- November second, and it would accommodate me very ‘much :

if you could make the a, if vou determine to make

: , ne

one, at that time. Speaking personally,t would not fee] it

- would be fair, even.if the Ciréuit Court of Appeals were

_ Willing to accept the letters and documents which you en-

élosed, to- submit them unless’ they were accompanied by*

‘- depositions Or affidavits of explanation by the — who.

- wrote them respectively. \ \

“I am advised that the existence -of as paper. was

-—known to counsel for the Hazel-Atlas Company before that

case was heard in the Court of Appeals, and to counsel i in .

_another case in which the Hartford- Empire Company was ©

the plaintiff,.byt no effort was made by counsel in eithér —

* case.to make pe use of the papers. Indeed, the person-who —

wrote one of the letters—d think Mr. Hatch—was produced °

at the trial by the Hartford- Empire Conipany at the request

of counsel for the defendant in the second of the above

cases mentions, but he was not called.

‘Sincerely’ ‘yours, _

; : le

7

[fol.79] | . -* Qetober 30, 1933.

‘“Hartford-Empire ( Sa v. Shawkee Mfg. Co. et tage

‘‘Dear Mr. Barnett:

3 I have just been able to get in communication with

other counsel for tke plaintiff since writing you on Octo- *

ber 24th. As you know I was engaged in a trial at Camden

all of last week. . We all feel that the correspondence which

rou enclosed in your letter is evidentially irrelevant for

several reasons ‘and has no proper place in the record. - If,

_ however, vou desire that it should be placed before the Cir-

cuit Court of Appeals ‘and that Court is wilting to accept -

it, we will interpose no objection." ~.

‘*Quite aside from other reasons,: we think that 3 you will,

agree with us that the correspondence is irrelevant for any

purpose unless you are prepared to show that the state-

ments in Mr. Clarke’s article which were quoted by Judge

Buffington are untrue. They are true and were fully sup-

_ ported by other parts of the record in the Hazel-Atlas case.

- Indeed, as we have understood the pdsition of your asso-

ciates in this matter since the Shawkee case started, they

have never contended to the contrary and, in fact, we do

not see how defendants can contend to the contrary in view

of certain statements relating to the development of the art.

Zo

ae My Dear Jupae Bu FFINGTON :°

appearing in “the Haub penne ry found in the Supple.

“mental Record on pages 13 and 14.

“As I heretofore wrote vou, the same. ssenaiiiiiallanie

was known to counsel for the defendant. in the Hazel-Atlas

ants make any attempt to use the same.

[fol. 80] “The article i in question found its way into both

cases through the introduction.in evidence of file wrappers.

“If you determine to transmit the correspondence. and

other documents Which you enclosed in.your. letter of Octo-

' ber 20th, to.the Circuit Court of Appeals, will you please

send to the Court a copy of this letter? Will you also please .

send me a copy of any letter you write to the Coart o or the

Cera?

‘*Sincerely yours, — -——-.

“Otto R. Barnett, Esq., 1518 Monadnock Building, Chi-.

cago, Minois. ” P

? **October 30,°1938.

Hon. Joseph Buffington, United States Circuit Court of

Appeals, Federal Building, Philadelphia, “Pa. °

Re: Shawkee. vs. Hartford-Enipire Company

e

“In your decision in the Hensel Atlas case 8n the Peiler |

patent much weight was giver to certain publications, in-’

eluding a published article purported to have been written

by William P. Clarke, President of the American Flint

Glass Workers Union, paying tribute to the Peiler inven-

tion, ;

“After the argument of the Shawkee case in your court

was completed there was brought to my attention certain

original correspondenee, including the original of the Clarke

[fol. $1] article bearing the printer’s marks showing that

the Clarke article was printed at the instigation of the

Hartford-Empire Company, through one of its attorneys,

“R.F. Hatch, who appears as qe of its witnesses in the ree-

ord in the Shawkee casé. Mr. Hatch submitted tite article

to his friend Mr. A. W. Kimes, Secretary of. the publication

in which the article 5 cateinarss Shortly thereafter that

case before the trial and was also known fo coinsel for the ms

. defendant in the Nivison-Weiskopf case before the trial,~

/ and in neither case did counsel’ for the respective. defenid-

ts

"Baas e. ome

70

articl@ was used in the Patent Office in support of the prose: .

cution ofthe Peiler application which was then owned by

Hartford- Empire Company.

‘*Believing that these facts should be keene to the court

as having a bearing on the opinion in the Hazel-Atlas case

p> which plaintiff so strongly relies.in the Shawkee case,

I stibmitted photostatic copies of these papers to Judge

Thomas G.: Haight, principal counsel for plaintiff in the

present case, suggesting that he submit them to the court.

‘‘But: Judge Haight did not agree with me that this

should be done.

‘*Aecordingly, | submit to your Honor. herewith copies-

of the following papers:

‘1. Letter of Hartford- Kenice Company, per R. ,.:

Hatch, to National Glass Budget, enclosing the Clarke

article and requesting that it be published. ° fe

‘*2. Letter from Budget Publishing Company to Mr.

Hatch promising to publish the article promptly.

‘3. Letter from Budget sie sci tied to Wil-

| liam P. Clarke.

“4. Letter from Hartford- Empire. Cisse by Mr. |

‘Hatch, to A. W. Kimes of National Glass Budget. |

5. Certified copy from the Patent Office in the matter

of the Peiler Patent No. 1,655,391,- including an,argument

[fol. 82] by Peiler’s. attorneys in reply to a letter of objec-

tion and an affidavit by T. A. Kfmes accompanying said

argument and swearjng to the authenticity of the copy of —

National Glass Budget for July 17, 1926 there referred to.

‘“*6. The typed Clarke article. ;

“7, ¢ ‘opy of my letter to J adgerHaight of October 20th.

“8, Copy of Indge Haight’ s.reply to me.

.

“lt i is quite true that these paperg are probably not’ -per-

tinent evidence in the present case for the reason ‘that

neither the Clarke article nor the other articles referred to

in a Court of Appeals opinion in the Hazel- Atlas case are

in evidence in the present record.

‘It is true that they are contained in 1 ‘the. Hazel- Atlas :

record and that the Hazel-Atlas record. is in evidence. in|

the present case. That fact merely shows what record was ©

71

. before this court in. the Hazel- Atlas case but. of course does

not establish as proven facts in this case any matter shown

‘in the Hazel-Atlas record, y oe

“The enclosed papers emphasize ‘the importance of this

distinction. If the Clarke article were in evidence in the

-present case these papers would be pertinent as newly dis-,

covered evidence.

‘Believing that these papers ‘show that seidieiial facts

were withheld from the court when the Clarke: article was

introduced in.evidence in the Hazel-Atlas case and that in

the-absence of the testitnony of witnesses as to their origin

and authenticity the same may be true as to other pub-

lished articles relied on by the court in the opinion in an

Hazel-Atlas case, I submit.these papers for your Horfo

[fol. 83]. consideration. I do. not understand that their

authenticity, is challenged by. the Hartford:Empire Co:

“A copy of this letter i is being ‘sent to Judge Haight by

this same mail. °

‘*Respectfully submitted, (Signed) Otto R. Barnett,

Of Counsel for Bhawkee Manufacturing Com-

pany et al.’ - ;

s

| Letterhead of Hartford- Empire Company

. aritaps, Conn.

* _tsily §, 1926.

National Glass Budget, 230 5th hen Pittsburgh, Pa.

Attention: Mr. Kimes

rs = Ve ; ton bets

' Dear Mr. ‘Kines:

I am ‘now having copies and I hope to be able to send

it with this letter, a final revision of an article relating to

organized labor and the’ “introduction of glass feeding: me-

.Chanism. This article is prepared by Wm. P. Clarke,

President of the American. Flint Glass -W orkers’ Union.

Mr. Clarke’s address, as you probably know, is the.

American Bank Bldg., Toledo, Ohio.

_ Weare considérably interested-in the atilieatiiat of this -

‘article and we believe that it is of sufficient genefal interest

to take it acceptable to you for publication.

a

{fol. 84) I am going to send you the original copy which

- has been corrected and signed by Mr. Clarke, but we want

to be sure to get this signed copy back again to return to

Mr. Clarke in accordance with his request. With it I will

enclose a clesn copy made from the original draft.

_ I do not kiiow just the process that you employ jn pre-

. paring this article. I assume of course that as the editor

you are entitled to blue pencil it if you think it necessary.

I might say that the repiarks relating fo the Owens Com.

pany will not give theni any offense, as they have already

seen the article. Mr. Clarke would like to see a proof of

this before it is published. Is this in accordance with your

usual custem anid can this be conveniently arranged! We

would like to have the article appear as soon as possible and

I ¢hink that Mr. Clarke will not insist on seeing a*proof

if it is going to take extra time. .

If you can conveniently send Mr. Clarke a proof of this

article, his address until Wednesday July 14th will be Hotel

Lérraine, Philadelphia, Pa. and after that for a week or

more he will bé at the Craig Hall Hotel, Atlantic City, N. J.

In case I am not able fo enclose the copy with this letter,

I will say that it takes 13 typewritten pages and that there

is one sheet showing a production ehart which will have to

be reproduced in some way. You will understand that we do

not want to have any unnecessary connection with this ar-

ticle as it is presented wholfy as the statement and opinion -

of Mr. Clarke. If there will be any expense in connection

ewith this, please let us know what it will be.

My ‘present. plans ‘call for being in Pittsburgh July 20th

and [ shall be in to see you as usual. I hope to be able to

bring a descriptive article on our 1, S. machine at that time

with photographs, bit this is not sure.

(fol. 85] .1f there is anything that you can do to aid us

- in hastening the appearance. of this article, we will appre- ,

ciate your advice.

Yours véry traly Hartford-Empire Company By R.

; F. Hatch.

RFH :BRW.

P.S. Mr. Clarke puttertoba the publication of this article

over his name and in his ®fficial capacity as President of

his Union. *

. There is another thing. about which I would like to get

some information. I do not know whether this article is

a

73-

"too long to appear in one edition of the Budget, but whether

‘jt appears in one or two issdes it is probable that we would

like to get some reprints, perhaps abont 100 of a convenient

pamphlet size. Would you undertake making these for us!

If it is not going to be convenient ‘to get these reprints, .

we shall want about fifty copies of the’ Budget in which

the article appears.

‘I suppose that submitting a proof to Mr. Clarke wiil

' eause some delay, Therefore I am going to enclose a ecar-

bon copy of this re-written article exactly ashe aubmits:

it for publication and suggest to you that you send this

carbon to Mr. Clarke and write him that you either intend

to publish it exactly as submitted or indicate on the carbon

exactly what changes you wish to make. Please let me know

what you do about this. I feel sure that he would be per--

fectly satisfied to take ‘your word for a faithful reproduc-

tion of the (ypowetiten, sheets.

R. F. Hatch.” °

to so) Letterhead of The National Glass Budget

: “Pittsburgh, Pa. July 12, 1926.

; R. F. Hatch, % ‘ Hartford- vate Co., Hartford, Conn.

* My DEAR Mr. Hatcu: > : :

Your letter of the 9th accompanied by three enclosures,

just received. Since tlie article is to appear over Mr. Wil-

liam P. Clarke's signature it will be published in its entirety

“ in next Saturday's issne of.the Budget verbatim wit the

‘ copy which you had marked for the Budget. Inasmuch as

we would not have time to submit the article to Mr. Clarke

‘and get it back in time to use in § mean! w issue, and es-

pecially. since no clfanges will appear in the copy, we are

going - or with its publication. .

will be carefully read so that the slightest devia-"

tion ffom- the signed article will not take place. Your com-

pany will not be connected by us with this article in any way. |

Coticerning the reprints of the article, or extra copes

of the Budget in which it appears, we will gladly sypply

you with fifty copies of our publication with our compli-

ments. Théy will be mailed to you on next Friday after-_

noon. Should you like to have the reprints made ‘also in

pamphlet form. we will save the type and arrange to have

them printed atthe lowest pgssible cost to your firm.

: e

4—423

;

74

As Siiiunbtnl, awe are pelea herewith ‘the original

copy signed by Mr. Clarke. The second carbon copy is

being mailed to Mr. Clarke at the Craig Hall Hotel, Atlantic

City, N. J. We are advising Mr.'Clarke ‘that the article

willbe reproduced exactly as submitted.

[fol. 87] Glad to see that you are coming to Pittsburgh on

July 20th. Do. not forget that Mrs. Kimes-and ‘I are to

show Mrs. Hatch and you around ‘the city, Do you care

for baseball.gamés? Boston will play, here on the. after-

noon of the 20th and Brooklyn i is scheduled for the follow- |.

ing day. Should you like to see the Pirates in action let

us known promptly which game you would prefer seeing.

’ Be sure and call us up upon your arrival in this city. |

Allow us to assure you that we greatly appreciate vour

kind fav or in supplying the article for publicatiom .

Very truly yours, — ‘Publishing Co. A. W.

Kimes.

m AW Kinies/H”’. ea

| anor “July 13, .1926.

Mr.-Wm. P.'Clarke, % American Flint Glass -Workers’

PP iii Union, Craig Hall ‘Hotel, Atlantic — yN. J.

My DEAR Mr. CLARKE:

Enclosed. herewith you will find the, carbon: copy of an

article you will readily recognize and which was sent to us

by. Mr. Hatch. He requested that if the slightest change

be niade to the article as submitted that a proof showing

same be sent to you. Inasmueh as the article is being

printed verbatim and that time was scarce, we are going

ahead with the publication of it in Saturday’s issue of the

Budget.

Trust that our aetion in this instance will meet with your

approval. , a

[fol. 88] On Friday a dozen.copies of the current issue of

the Budget will be mailed to you at Atlantic City.

Do not forget that we will appreciate having any news

coneerning the Flints gnnual convention or the wage con-

ferences that you can consistently releasé for publication. | °

Again thanking you for the many kind favors extended

to the Budget.

Very truly yours, Budget Publishing Co.

~AW Kime “FD. baal

. =

‘«July 14, 1926.

Mr. A. W. iii National Glass Budget, 230 Fifth Ave-

nue, Pittsburgh, Pennsylvania.

Dear Mr. KiMEs:

We are very glad to note by your tefter of July. 12th

that you found the Clarke article to be acceptable for pub-

- jieation. I have written Mr. Clarke this morning in regard °

to the failure to submit printed proofs to-him and I think

- that this will not be objectionable to him. If he has any:

criticisms to make. it wil@be directed against me, as this was

my suggestion.

I take it that this: will all. appear in a single issue of the

Budget.. We certainly appreciate’ your offer to supply us

with fifty copies with your compliments. I have taken. the

_matter of thé re-prints up with Mr. Brown and we have

decided that .probably the original publications will carry

[fel. 89] a little more weight than a reprint, therefore, we

would like to have you send us fifty‘additional copies, mak-

ing one hundred in all. But, we insist most emphatically, —

that the additional fifty copies shall be billed us at your’

regular rate. In view of this decision it will not be neces-

sary for you to save the type of the original article.

It certainly is very kind of you and Mrs. Kimes to make

plans to entertain Mrs. Hatch and myself. I doubt if it will

be advisable for you to make any plans i in advance. There

isastrong possibility that I may not be able to leave here

on the 18th as I plan, and I find that T have ‘to make one

stop on the road, so that it is not exactly sure just what.

time IT will arrive. IT expect to get there on July 20th, but

it might be a day earlier or Tater. T shall certainly let you

know as soon as I- get in town and I am sure that we would

‘be delighted to have you show ns around the city a little.

About all I know of it is the business district.

Very truly yours, Hartford-Empire Company, by

’ RFH-T”’.

16 . Ssh 38

[fol. 90]. “ ScHepue ‘*B** ro"Repiy

Chronology of Events

May 5, 1932. This Court's Opinion filed in Hazel-Atlas

case, holding the Peiler patent valid and infringed.

May 17, 1932. Hazel-Atl&s procured the affidavits of .

Messrs. Wood & Wood stating that both Clarke and Hatch

' . had told them that the article had been originally pre-

pared by Hatch.

May 31, 1933. Bill of complaint, herein filed (Ree. p. 1).

June 22, 1933. Opinion of District Court filed, granting

; preliminary. injunction against sale of the accused feeders,

_but refusing to enjoin their continued use by defendants

(Ree. p. 259). :

June 27, 1933. Answer filed, two of the défendants ad. -

mitting. validity ofthe Peiler patent in suit andthe ot}er

deferidants not denying its v

This text is long and has been trimmed here. Open the source document for the complete record.