Petition for Writ of Certiorari — Shawkee Manufacturing Co. v. Hartford-Empire Co.

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FILECOPY | |.

IN THE

Supreme Comt of the United States ia

OCTOBER TERM, 1943.

| SHAWKEE MANUFACTURING COMPANY,

‘GLENSHAW GLASS COMPANY,

McKEE GLASS COMPANY, .

GEORGE R. HAUB, Petitioners,

V. ae ;

HARTFORD EMPIRE COMPANY, Respondent. -

PETITION FOR A WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT, AND SUPPORTING BRIEF.

. —

\ Wiuiam B. JASPERT,

Counsel for Petitioners.

October, 1943.

—

— *

SM!TH BROS. CO. INGC., LAW PRINTERS, 434-436 BOULEVARD OF ALLIES, PIYTSBURGH, PA.

_ INDEX.

. od ac

Petition for Writ of Certiorari 895 l Pe

Summary Statement of the Matter Involved. 2

Questions Presentdeeee 8

Reasons Relied vee for the Writ of Cettiorari 9

Erler in Support of Petition for Writ of Certiorari.. — 4

Opinions of the Courts Below....... n 8

—.. ĩ˙ ʃclſlu

—::: . 12

Specifications of Error..... as eae 5 - 12

Summary of Argument e 5

— 8 . 13

Point I. The decision of the Third Cireuit

Court of Appeals is in conflict with the

decisions of other 2 Courts f

Appeals . 13

Porr I. The majority opinion of .the

' court below is in conflict with the de-

; cisions of this Court....... „ 18

Porr III. The decision below is the ma-

chinery for effecting the fraud by

which respondent has a a

major industry VF 19

Point IV.— The decision below is in 0

with this Court's decision in the Key:

stone Driller * TV .

—

Cases and Statutes Cited.

3 Summary | Und pase e ee e e 21

___ Chronology cnc ee *

0 Cases and Statutes Cited.

Aguilar v. Standard Oil, 318 U. S. 724,. 25. *

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

2d 940 and 107 F. 24 944, * —

ce — 621 Cͤ ĩð. ͤ erie caiien ore ae

DeForest Raflio Co. v. General Electric, 283 U 8.664 12

Hartford-Empire Co. v. Hazel-Atlas Glass Co., 39 F. 0

2d 111. 120; 59 F. 2d 399, 413... 8 4555 2-6-7

Hartford-Empire Co. v. Shawkee Mfg. Co. et ibe 18

U.S. P. Q. 119; 68 F. n „

Judicial Code, 28 U.S.C. 347, sec. 240- (a) 12

Judicial Code, 28 U.S.C. 377, sec. 20ꝶã22 .. 17

Keystone Driller Co. v. Excavator Co., 290 U. S.

240 so teenage nes SHE KUNSEN Se eS aA: cen 10-13-20

Marshall v. Holmes, 141 U. S. 489. . „ 18-19

Muncie Gear Works v. Outboard Marine & Mfg. Co.,

315 U.S. ee. vas. JJ 12

In re New England Oil Refining Co. et al., 9 F. 2d 344 16

Powers · Kennedy r Corp. v. Concrete Mix-

ing etc. Co., 282 Bahar | er ! o 12

Reynolds v. United States, 292 U. S. 3 12

Saranac Automatic Mach. Corp. v. Wirebounds Pat- |

* 2⁰ů U. 8. 704. — 12

¢

Cases and Statutes Cited.

bar N

Sola Electric Co. v. Jefferson Electric Co. 317 U. 8.

„ ĩðͤv ta vaio Sle 12

Southern Railway Co. v. Walters, 284 U. 8 190 .. 12

Southland Gasoline v. Bayley, 319 U. S. 44. 12

United States ex rel. Fisher v. Williams, 67 Fed. 384 16

Vnited States v. Mayer, 235 U. S. 55. 15

United States v. Sterline et 81. 70 F. 24 706 16

United States v. 1 Throckmorton, 98 U. —

United States Industrial Chemicals v. Carbide & ;

Carbon Chemicals, 315 U. S. 668, 669...:....: 12

White v. Toomey, 4 HL. C. 3 = oe

Williams Mfg. Co. v. United Shoe 8 316 L. ;

See RNS RN GE Re Oe eink Sie 12

Winslow v. Staab, 242 F. 426 (CCA 8 14

In THE

*

Supreme Court of the United State:

\\ OCTOBER TERM, 1943.

NWO.

SHAWKEE MANUFACTURING COMPANY,

GLENSHAW GLASS COMPANY, |

McKEE GLASS COMPANY,

GEORGE R. HAUB, Petitioners,

9 N 9.

” HARTFORD-EMPIRE COMPANY,,Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THB

CIRCUIT COURT OF APPEALS FOR THE ;

: THIRD,CIRCUIT

To the Honorable, the Chief Justice and

Associate Justioes of the Supreme Court

of the United States: ~~ eg ae

Your petitioners, Shawkee Manufacturing Com-

pany, Glenshaw Glass Company, McKee Glass Company

"and George R. Haub; respectfully pray for a-writ of

certiorari to the Circuit Court of Appeals For The Third

Circuit to review the judgment of. that court entered

on June 30, 1943. ,

A transcript of the proceedings in said Circuit Court

of Appeals is furnished herewith, in accordance with

rule 38 of this Court. The opinion of the Court of Ap-

a Petition for Writ of Certiorari.

peals for the Third Cirtuit (not reported) in pitied

page 93 of the record and is unofficially reported in 58

U.S.P.Q. 348, 355. A petition for.a writ of certiorari

a to the same Coirt has been filed recently in the com-

panion case of Hartford-Empire Company: v. n

Glass Company, No.. 388.

+

Summary Statement of the Matter Involved.

; On. October 21, 1941, Shawkee Manufacturing Con-

_ pany, Glenshaw Glass Company, McKee Glass Company

and George R. Haub filed a petition in the Circuit Court

of ‘Appeals for the Third Circuit for leave to file a bill

review.“ .

‘The petition alleged in substantial part that a fraud

had been practiced upon the Court of Appeals below in

connection with the appeal in a suit entitled Hartford-

Empire Company v. Hazel-Atlas Glass Company and

that it had induced that court's order (59 F 2d, 399,

413) reversing the decree of the District Court in that

dase (39 F 2d, 111, 120); and that the decision in the

Hazel case in turn was employed by. respondent to com-

j ‘pel the decree of the District Court in respondent’s favor

‘in the case of Hartford-Empire Company v. Shawkee

Manufacturing Company et al., affirmed by the Court « |

2 68 F 2d 726. 2

In an opinion filed December 29, 1941 (R. 59),

the Court of Appeals below denied the prayers of the

petition for leave to file a bill of review as framed and

granted leave to petitioner to amend the prayer to peti-

tion the Court of Appeals to set aside the judgment

heretofore entered in that court in view of the fact that

the petition alleged that fraud was practiced upon the

* A chronology of eyents is printed as an appendix hereto.

*

Petition for Writ of Certiorert. | 3

Court of Appeals rather than upon the. district court,

the opinion further stating that the court would adopt

the practice followed by the Circuit Court of Ap

for the Second Circuit in the case of Art Metal-Works,

Inc. v. Abraham, 107 F 2d 940 and 944, cert. denied

208 U. S. 621.

The ‘petition was amended 1 accordingly and filed

in the Court of Appeals and on June 30, 1943 the

court, Circuit Judge Jones and Circuit Judge Maris,

dismissed the petition to vacate and set aside the

decree, Circuit Judge Biggs dissenting, the ‘majority

opinion holding that the court lacked the. power to set

aside its decree after the end of the term at which the

mandate was dispatched and on the further ground that

the fraud worked upon the court, which the court held

to de indisputably established, did not. effect the entry

‘of. the decree. complained of, even though there are

numerous references to it in the opinion. The dissenting

“opinion held that the Court of Appeals does possess the ~~

power to set aside the decree in question if the evidence

warrants, and further that the fraud practiced upon the

court did serve to effect the decision of the court.

The majority opinion further held that although

the evidence of the fraud may be taken as indisputably _

established, it does not qualify as after-discovered-evi- _ 32

dence because the question of the fraud had been

imparted to Judge Buffington by correspondence passing

between counsel for petitiopers and counsel for respond -

ent, and that because three copies of letters passing

between counsel were submitted to Judge Buffington,

the matter was presumably called to the attention of

the full court that had rendered the decision in the case.

The dissenting opinion held that the allegations of the eg

correspondence were based on hearsay evidence which.

petitioners were unable to substantiate and that the

court did not act upon it, presumably because it was

g : . * 5 * ö , 7

4 Huus for Writ of Certorart. .

a not evidence of such a kind or of such weight as woul

jystify action.

the newly discovered evidence consists of memo-

randa and letters taken from the priyate files of the

respondent Hartford-Empire Company and the Owens

Glass Company which conclusively establishes a con-

spiracy between these companies to perpetrate a fraud

upon the Patent Office by publishing an article laudatory

of the patented thing, under the name of one William

P. Clarke, President of a labor union. The Clarke article

was neither asserted in the District Court nor relied

upon by the District Judge but was, as stated in the

dissenting opinion by Judge Biggs (R. 107):

“* © * served up to this court upon Hartford-

Empire Company's brief and a majority of this

court did eat thereof. The fraud, therefore was

upon this court and affected its appellate juris-

diction.” . as

The Nature of the False Clarke Article.

The proof of the deceptive design and use of the

spurious authorship of the Clarke article was discovered

in a suit entitled United States of America v. Hartford-

Empire Co. et al., Case No. 7 to 16 now before this court

on appeal. Prior to that time petitioners knew only some

of the facts and these merely on hearsay.. The evidence

now shows that Robson D. Brown, Vice President and

chief patent counsel of respondent, Hartford-Empire

Co., suggested the publication of said article to Henry

W. Carter, an officer and counsel for-Owens Glass Com-

pany (which had a cross license arrangement with

respondent company) for the purpose of influencing the

Patent Office to a more favorable consideration of the

broad claims, then pending and under rejection by the

3 e ye -G

Patent Office, in the application which has matured into

the Feiler patent in suit No. 1,655,391 (R 7).

R. F. Hatch, attorney of.Hartford, in collaboration

with Carter, prepared the article for the purpose of

publishing a chart showing the relative production of

glass articles by respondent's feeding method and the

Owens method, and for the further purpose of getting

landatory statements of respondent’s method into print

(R 10). It was published in the name of Clarke to

make it appear, contrary to the fact, that it came from

an unbiased source and one hostile to labor-saving de-

vices (R. 7). The said Clarke was paid $8,000 in cash

by Hatch shortly after the decision of the Court of

Appeals in the Hazel-Atlas case (R. 6) and was retained

by respondent for a period of years.

The Clarke le was published in the National

Glass Budget July 17, 1926, and “planted” in the Patent

Office in the application of Peiler patent 1,655,391 by

Brown and Dorsey, attorneys for respondent company

particular reference being made to the false production

curve shown in the chart as establishing the revole -

tionary character of the invention (R. 8). The corre-

spondence betwéen Hatch and Carter now demonstrates

that the article knowingly and intentionally misrepre-

sented the facts for both of them admitted that the

article contained false representations (R. 10). With

reference to the production chart, the correspondence

establishes that the number of Owens used in

estimating production was knowingly (R.

is assumed from minimum ties which had to be

(R. 117. —

tion of the Owens machine in the depression of 1921

and the alleged increase in production at that time

= *

6 Petition for Writ of Certiorari.

| (based upon minimum * of Hartford's Peiler

*

machines that established Hartford’s claim for a revo-

lutionary invention.

‘The true character of the article may further be

measured fa Carter’s own ‘statement in criticism of it

(R. 10):

“Under the circumstances, I do not see that we

need be very critical in our treatment of the article.

If not too rank,* would say that we better let it go

8 *. A

The Fraudulent Use of the Clarke Article.

Respondent referred to the Clarke article in its

brief in the Court of Appeals, wherein it was of record

only as part of the file wrapper history of the patent -

in suit. The brief stated that the Clarke article gives

an admirable outline of the effect of the Peiler plunger

method on the Owens machine business, and with ref-

erence to the chart of the Clarke article respondent

stated that the production curves of the two types. of

machines gpeak for themselves. These assertions were

known to be false when en were made to the court by

respondent.

The majority. opinion of the Court of: Appeals below

(59 F. 2d 399) by Circuit Judges Buffington and Davis

(Judge Woolley sharply dissenting) made frequent ref-

erence to and quoted extensively from the Clarke article

which. the court,.supposing it was from an unbiased

and hostile, source, accepted as true. The majority

opinion relied upon the Clarke article as establishing

_ ‘what glass feeding machines were practical, and which

were regarded as unsuccessful prior art. The court

was thereby led to disregard the Prior: art relied upon

: * Emphasis - italics in — and brief te ours unless otherwise

stated.

Petition for Writ of Oertiorari. ee 7:

1 the District Judge in his finding that the claims

were not entitled to a‘ broad construction and accord-

ingly gave to the claims a very wide scope. :

On May 31, 1933, respondent, in reliance upon the

Court of Appeals decision in the Hazel-Atlas Glass case

brought suit against petitioners, Shawkee Manufac-

turing Company et al., for infringement of the. same

Peiler Patent No. 1,655,391, by an entirely different

apparatus and method. The bill of complaint in that

case made frequent reference to the Court of Wen

decision in the Hazel-Aflas case. me

| In its opinion (reported 18 U.S. P. Q. 119) the trial

court made reference to the Court of Appeals decision

in the case of Hartford- Empire v. Hazel-Atlas Glass

Company, 59 F. 2d 399, as holding the patent valid,

and on appeal the Circuit Court of ogee, 68 F. 2d

726, said:

The patent We was constteres by this.

Court in Hartford-Empire Co. v. Hazel-Atias Glass

Co., reported in 59 F. 2d 399. Reference thereto

obviates needless restatement of the art: It suffices

‘to say the patent in question Peiler’s patent No.

1,655,391) was there held valid. * * *. Accord-

ingly, we held in the Hartford-Empire Hazel-Atlas

Case that the claims of the Peiler patent there in

suit were broad enough to cover the Hazel-Atlas

device. For the same reasons we hold that the

claims of the patent here in suit are broad —

to cover the defendants’ device.” :

As in the Hazel case, where the court swept aside

the prior art by its reliance upon the Clarke article for

“what machine blowers were of practical working ca-

pacity”, so in the Shawkee case the Court of Appeals

completely ignored the prior art, rélied upon by the

defendant below, by reference to its former decision in

8 -_ Petition for Writ of Certiorari.

the Hazel case, even though.the Shawkee feeder and

feeding method which was for feeding by positive and

negative air impulses did not employ the reciprocating |

plunger of the Peiler patent which was employed by the

defendant in the Hazel-Atlas case. While. generally thé

same prior art would be pertinent in either the Hazel

or Shawkee cases on the question of validity of the

Peiler patent, it would have entirely different signifi-

cance in the interpretation of the claims for the purpose

of establishing infringement of these radically different

methods and apparatuses. a

‘It therefore appears from the decision in the

Shawkee case that the court of Appeals’ decision in the

Hazel-Atlas case was based largely if not entirely on the

statements quoted by Judge Buffington from the Clarke

article. It further appears that the decision. in the

Shawkee case was procured by respondent’s intentional

and frequent reference to the favorable decision which

it had. obtained in the Hazel-Atlas case by its fraud on

the court.

As stated in the dissenting opinion by Circuit Judge

Biggs, (R. 110),

“Can it be believed that Judge Buffington would :

have quoted from or accredited the contents of this

article if he had been aware that it had emanated

from certain of Hartford-Empire’s counsel who had

employed it to perpetrate a fraud on the United

States Patent Office? The. answer must certainly

be in the negative.“

So in the Shawkee case on appeal before the same

Court, can it be believed that the same Circuit Judges

would have given the same Peiler patent even broader

scope, so as to include the Shawkee air feeder, had they ö

been aware of the corruption of Clarke and of the fraud

practiced by Hartford's counsel?

1. Did the Court of Appeals for the Third Circuit

lack power to set aside its decree obtained by fraud

after the end of the term at which the mandate was

- dispatched ?.

2. Whether the accredited contents — by the

Court of Appeals from the false Clarke article affected

Petition for Writ of Certiorari. 9

the Court’s- judgment in the Havel Atlas case and con-

sequently in the Shawkee case?

3. Should the Court of Appeals for the Third Cir-

. cuit dismiss the bill of complaint under the ruling of

this Court in Keystone Driller Oo. v. Excavator Co., 290

U. S. 240?

4. Whether newly discovered evidence, which is

proof of a fraud previously questioned and called to the

“attention of the court, but proof of which was not sooner |

available, qualifies as after discovered evidence.

Reasons Relied Upon for the Writ of Certiorari.

1. Because the decision of the majority of the

Court of Appeals for the Third Circuit, holding that the

Court lacked the power ta vacate its decision and orders

obtained by fraud, after the term of court had expired,

is contrary to law and in conflict with. the decisions of

other Circuit Courts of Appeals.

2. Because the decision of the Third Circuit Court

of Appeals that an appellate court lacked the power to

vacate its decree and order after term where such is

obtained by fraud practiced on the appellate court is

of great importance to the administration of justice and

is in conflict with the applicable decisions of this Court

and other circuit courts of appeals. _ |

10 ietition for Writ of Certiorari.

3. Because the Court of Appeals for the Third

Circuit, by reversing the trial court in its reliance upon

corrupt and false evidence has made its decision the

machinery for effecting the monopoly in the manufac. |

ture, sale and use of unpatented glass articles in a major

industry, which resulted in the suit by the United States

Government entitled United States of America v. Hart-

ford-Empire Co. et al., No. 7 to 16, now before this

Court on appeal. a ae

4. Because the decision below in the Shawkee case

Obtained on the basis of the fraud in the Hazel-Atlas

Glass case is in conflict with the decision of this Court

in Keystone Driller Co. v. Excavator Co., 290 U. S. 240..

WHEREFORE your petitioners respectfully pray that

a writ of certiorari be issued out of and under the seal

of this Court, directed to the United States Circuit Court

of Appeals for the Third Circuit sitting at Philadelphia,

Pennsylvania, commanding said Court to certify and

send to this Court on a day to be designated a: full

transcript of the record and all proceedings in the Court

of Appeals, had in these proceedings, to the end that

this case may be reviewed and determined by this Court.

and the judgment of the majority of said Circuit Court

of Appeals be reversed and the, dissenting opinion be

affirmed; and that petitioners be granted such other and

further relief that may be proper.

WILLIAM B. JASPERT,

Counsel for Petitioners.

October, 1943.

Brief in Support of Petition. 9

Supreme Cou d- Usted States

OCTOBER TERM, 1043.

NO. — „

SHAWKEE MANUFACTURING COMPANY, |

GLENSHAW GLASS COMPANY, _. ge

McKEE GLASS COMPANY, |

GEORGE R. HAUB, Petitioners,

— V. ;

_ HARTFORD-EMPIRE GOMPANY, Respondent.

BRIEF IN SUPPORT OF FETITION FOR WRIT OF

CERTIORARI ’

20

Opinions of the Court Below.

The opinion of the Circuit Court of Appeals for the

Third Circuit, and dissenting opinion, are in the record

(R. 93), and are unofficially e! in 58 U.S. P. Q. 348,

355.

durisdiction.

The grounds of jurisdiction are:

1. The judgment to be reviewed was entered June

* — (R. 119).

/

/

nl

12 ee Brief ta Support 0 of Petition.

2: The statute under which the jurisdiction is in-

voked is Section 240-(a) of the Judicial Code, 28 U.S.C.

347, as amended by the Act of February 13, 1925. Cases

believed to sustain the jurisdiction are Powers-Kennedy a

, —

Contracting Corp. v. Concrete Mixing, etc., Co., 282 U. S.

175, 176; Saranac Automatic Mach. Corp. v. Wirebounds .

Patent Co., 282 U. S. 704, 705; U. 8. Industrial Chemicals

v. Carbide and Carbon Chemicals, 315.U. S. 668, 669, and

Southland Gasoline v. Bayley, 319 U. S. 44; Aguilar v.

Standard Oil, 318 U. S. 724, 726, where there were con-

flicts of decisions. Also, this Court has granted certio- -

‘ vari where there was no conflict between different cir-

cuits when important questions of law were presented,

De Forest Radio Co. v. General Electric, 283 U. S. 664,

Muncie Gear Works v. Outboard Marine c Mfg. Co., 315

U. S. 759; Williams Mfg. Co. v. United Shoe Machinery,

316 U. S. 364, Sola Electric Co. v. Jefferson Electric Co.,

317 U. S. 173, Reynolds v. United States, 292 U. S. 443;

Southern Railway Co. v. Walters, 284, U. S: 190, etc.

Statement.

. The facts are sufficiently stated in the petition.

* Specifications of Error.

| “The errors which petitioner will urge, ‘if the writ

of certiorari is granted, are that the majority of the.

Circuit Court of 2 for the Third Circuit erred in

holding: sig

1. That it lacked power to set aside its decree:

obtained by fraud after the end of the term at

which the mandate was dispatched.

2. That the accredited contents quoted by Judze

Buffington from the false Clarke article did not

5 affect the Court's —

Brief in Support of Petition. 13

3. That the 6 discovered evidence adduced at

the trial of the Government anti-trust suit does

not qualify as after discovered evidence.

4. In failing to vacate its decree and dismiss the

dill under the ruling of this Court in Keystone

Driller Co. v. Excavator Co., 290 U. S. 240.

Summary of Argument.

The points of argument follow the reasons —

upon for the 5 of the writ. N

5 Argument. ö

The merits of this case are presented in the majority

and dissenting opinions below, and also in the petition

(supra, p. : A

POINT I.

The Decision of the Third Circuit Court of 3 te

in Conflict With Decisions of Other Circuit

ä Courts of Appeals.

In denying the petition originally filed’ by respond -

ent in the Court of Appeals below, which was for leave to

file a bill in the nature of a Bill of Review, the court

granted petitioners leave to amend the petition to move

the Court of Appeals to set agide its judgment on the

ground of fraud practiced on the court, following the

practice of the Circuit Court of Appeals for the Second

Circuit in Art Metai Works Inc. v. Abraham & Straus,

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

By now holding that application should be made to the

District Court the Court of Appeals in effect reversed |

itself. The majority opinion by Circuit Judge Jones,

2 *«

2

*

14 Brief in Support of Petition.

“Circuit Judge Maris concurring, distinguishes the pres-

ent case from the Art Metal cases on the ground that in

the latter cases no qualified court had disposed of those

appeals because a judge of the Court of Appeals had

been corrupted in respect of the litigation, and that

therefore no competent mandates ever issued. With

reference to the case at bar the court held that it was

without power to change a final decree of a district

court after the term · in which the decree. was entered

has expired.

The dissenting opinion, by Circuit Judge Biggs, held:

that the apparent facts in the case at bar bear an anal-

ogy to the circumstances which were before the Circuit

Court of Appeals of the Second Circuit in the Art Metal

cases, and that in those cases the court acted to protect

the integrity of its appellate jurisdiction and that the

difference between the Art Metal cases and those at bar,

including the companion case of Hartford-Empire v.

Hazel-Atlas Glass Co., seemed to be only one of -degree,

that in both cases the fraud was worked upon the appel-

late tribunals. The dissenting opinion is to the point

that in either case no valid order or mandate can issue

on invalid and irregular legal proceedings, and thut

an appellate court may vucate its decision and order

after term if the invalidity and irregularity. of the legal

proceedings is established.

There are other decisions supporting this view. In

Winslow v. Staab, 242 Fed. 426 (CCA 2),,the Second.

Circuit Court of Appeals affirmed the trial.court in set-

ting aside its decree after term which the court had been

induced to sign by misrepresentation of fact. The court

said:

A court which can protect against a judgment

obtained at law by fraud, accident or mistake, is not

* powerless to relieve from a decree so obtained.”

*

*

Brief in Support of Petition. : 15

. this Gaciiton ivy thin court ia. U. 8.

v. Mayer, 235 U. S. 55, 35 Sup. Ct. 16, the court in tùhle

Winslow case pointed out that there were exceptions to

the general rule that a final judgment cannot be set aside

after the term. The court then analyzed numerous cases,

including the technical rules and decisions of the English’

courts, and quoted extensively from the decision of the

House of Lords in White v. Tommey, 4 H. L. C. 313, a por-

tion of which is quoted for the convenience of the court,

as follows:

Although in any question decided by

this House upon appeal the matter is finally settled

.. between the litigant parties, it is always subject

to this condition: That if one party has, by any

misrepresentation—I will not put it so highly as to

‘ say fraud, for I do not wish to use harsh terms

‘+ but, if by misre presentation, inadvertently (if you

will) introduced. a party has led the House into an

error, has icd it to suppose that something is going

on irregularly, all the commonest principles of jus-

tice compel this house, as they must compel any

other tribunal, to interfere to prevent its own deci- -

sions from being made the machinery for effecting

a fraud or the machinery for effecting that which, if

\notgdone per incuriam, would have been a fraud

. What is the relief then, which your Lord-

ships in your wisdom ought to think fit to grant to

the parties’ Evidently to put them in precisely the

same position as that in which they were before

that erroneous order was made (behind their

backs). giving leave to Tommey to present the

appeal which has led to all the difficulty. y.

I shall move your Lordships to discharge those

orders, and to direct that the Court of Chanéery in -

Ireland should deal: with the case remitted back to

it by the order of 1850 in such a way as may be

6 Brief in Support of Petition.

> Oe

just, having regard to the fact that the several

extqun .. have been Gacherged.” |

In United States v. Sterling, et al, 70 F 2d 708,

certiorari denied, Commercial Trust Co. of New Fork v.

D. S., 55 S. Ct. 97, 293, U. S. 584, the Circuit Court of

Appeals for the Second Circuit affirmed its earlier deci-

sion in Winslow v. Staab and said:

“A mistake of the clerk, whereby the Court is

induced; to enter a wrong judgment, like a misrep-

' resentation by a party or his counsel (even though

innocent) upon which a judgment has been founded,

is a ground for annulling the judgment even after

the term has ended. In either case the court may

modify or vacate the judgment without resort to

a separate suit in the nature of a bill of review.

Winslow v. * (C.C.A.) 242 F. 426.” b f

The Winslow case was followed by the Circuit Court

of Appeals for the First Circuit. in, In re New England

Oil Refining Co., et al., 9 Fed: 2d 344, the court saying:

“There is authority for the proposition that,

where a decree in an equity proceeding has been

procured through false representation or misrepre-

sentation to the court, and would not have been

entered except therefor, the court in which the

decree was entered has power, even after the term

to vacate it on motion.”

In an earlier case, United States ex rel. Fisher v.

Williams, 67 Fed. 384, the Circuit Court of Appeals for

the Eighth Circuit held that a Federal Circuit Court has

power to set aside a final decree which the judge | has

been induced to enter red false representation. The court

said:

“We are of the opinion that when, by a mistake

of the . ae by erroneous statements of

~

on Brief in Support of Petition. 17

counsel, a decree has been entered of record which

the judge did not examine or approve, and did not

intend to enter, such decree may be set aside, on

motion, after as well as before the expiration of the

term.”

All of the — cases held that it was not neces- .

sary to proceed by way of a bill to set aside the judgment.

With the exception of the House of Lords decision in

. White v. Tomme (supra), the foregoing cases deal with

the power of a trial court to vacate its decree after term.

The case of Art Metal Works v. Abraham and Straus,

100 F. 2d 940 and 944, cert. den. 308 U. S. 621, and

White v. Toomey deal with the question of an appellate

court’s power to vacate its decree or order for fraud

practiced upon the appellate court. As stated by Judge

Biggs in the dissenting opinion, R. 106:

The difference between the Art Metal Works cases

and those at bar seems to me to be only one of

degree. In the former cases a litigant had cor-

rupted the court. In the cases at bar, if the allegarv-

tions of the petitions and the supporting affidavits

are correct, a litigant has corrupted the record by

knowingly inserting fraudulent matter therein and

calling the corrupt matter to the attention of this

tribunal. In neither the Art Mctal Works cases nor

in the cases at bar was the fraud perpetrated upon

the lower courts. The significant fact is that the

fraud _was worked upon the appellate tribunals.

. view of these facts should we not our-

selves dis » of the matters raised by the peti-

tions? We have at our disposal every writ neces-

‘sary to protect and maintain our jurisdiction. See

Section 262 of the Judicial Code, 28 U. S. C. A. 377.”

*

18 Brief in Support of Petitiaa.

; POINT I. |

The Majority Opinion in the Court Beldw Is in Conflict

| With Decisions of This Court.

i questioning its jurisdiction to hear and dispose

of the matter of vacating its decree and order the Court

of Appeals below referred to this Court’s decisions in

United States v. Throckmorton, 98 U. S. 61, and Marshall

v. Holmes, 141 U. S. 589, as applicable only where juris-

diction is established for the purpose of determining

_ whether the alleged fraud is extrinsic or intrinsic. These

decisions are not on the point of whether an appellate

court has power to vacate its decrees and orders after

term where such were obtained by fraud on the appellate

court. These cases do, however, decide the question of

the power of a court to vacate a decree after term where

the fraud is extrinsic, as in the Throckmorton case, or

‘intrinsic, as in Marshall v. Holmes.

In the Fhrockmorton case this Court held that relief

will be granted where by fraud or deception an unsuc- -

cessful party has been prevented from exhibiting fully

a ies, Ss Ce aNG & Gane, Rewer, as’

follows:

on the other hand, the doctrine is equally’ well

settled that the court will not set aside a judgment -

because it was founded on a fraudulent instrument,

or perjured evidence, or for any matter which was

— 2

e e

because of the use pf the Clarke article in the Patent

Office in the procurement of the patent, which under the

decisions would be an intrinsic fraud, the case would fall

under the exception noted by this Court in the Throck-

?

Brief in Support of Petition: 19

morton case. Since, however, peti are seeking

relief from’ the judgment because fraud practiced

upon the court, which prevented petitioners from fully

exhibiting their case, e.g., the state of the prior art/ by

which the trial court held the patent limited in its scope,

. the case falls under the rule of the Throckmorton ease

that such fraud vitiates the decision. *

In Marshall v. semi: 141 U. S, 589, this Court ex-

tended the rule of the Throckmorton case to grant relief

from judgment after term where such is based on false

testimony and forged documents, which in the case at

dar constitute authority for vacating the Hazel and

Shawkee decisions on the ground alone that the patent

‘there in suit was procured by irregular and invalid pro-

r

the use of corrupt and false evidence.

Upon the application of the rule in either the

Throckmorton case.or the case of Marshall v. Holmes,

the court below should have vacated its decree. —

, POINT IIL.

ine Decision Below Is the. Machinery for Eifecting, the

ee Fraud by Which Respondent Has Monopo-

| \ lized a Major Industry.

The decision of the Court of Appeals in the Hazel-

L

of feeding molten glass to ware forming machines by

use of a reciprocating plunger. The subsequent decision

by the same court in the Shawkee case extended the

monopoly under the patent to cover the air impulse feed-

ing method which does not employ a plunger.

. By these decisions respondent effectually overcame

the resistance to its licensing policy of the Hazei-Atlas

— — Deeision in the Keystone Driller Case.

>

20 Brief in Support of Petition.

Glass Company, the then largest independent producer

of bottles in the industry, and Ball Bros. Glass Company,

the largest producer of fruit jars.

. The complete collapse of these large manufacturers ..

resulted in a number of settlements with other manu-

facturers of glass ware who accepted licenses, the total

; royalty from which amounted to many millions of dol-

lare since the decision in the Hazel-Atlas case (R. 51).

The far reaching effect of these decisions is tersely

stated in the petition and brief filed on behalf of the

United States of America as — Curiae (R. 47) in

the court below.

The use made of the S thus n ant

obtained, to control the kind and quantity of unpatented

articles in the glass container industry, resulted in the

suit by the United States of America entitled “United

States of America v. Hartford-Empire Co. et al., No. 7

0 16,” now before this Court on 9

Fak

POINT IW. ‘i

The Decision Below Is in Conflict With This Court’s

In Keystone Driller Co. v. Excavator Co., 290 U. S.

240, this Court held that where a plaintiff in a suit on

a patent sought relief partly on the basis of a decree ia

another case which sustained the patent and in. the ob-

_ taining of which the plaintiff through corruption had

suppressed evidence damaging to that patent, the use

made of the prior decree sustaining the patent brought

the pending case within the doctrine that he who comes

into equity must come with clean hands,” and the case

was properly dismissed on that ground.

¢

Brief in Support of Petition. 21

In that case the plaintiff had suppressed evidence

of a prior use and obtained a favorable decree uphoid-

ing the patent which it employed in a 3 suit

as a basis for injunction pendente lite.

In the Shawkee case the injunction 2 lite,

made final on appeal, was procured on the basis of the *

decision in the Hazel case by direct reference thereto in

the bill of complaint, paragraphs 9, 10 and 11, Shawkee

trial record pp. 5 and 6. The facts of the suppression of

evidence and the procedure are similar to the Keystone

Driller Co. case and the decree of the court of appeals

below should be vacated and the bill dismissed. 5

. Summary.

Under the uniform decisions of the Circuit Court of

Appeals, where a similar question has arisen and under

the decisions of this Court, the majority of the Court of

Appeals erred in denying the petition for relief in their

holding that the court had no power to vacate its de-

erees and orders.

There wens no laches attributable to petitioners even

though the source of the article may have been ques-

tionable. The corruption of Clarke precluded thé Hazel-

Atlas Glass Company and the Shawkee Company from .

ascertaining the facts, and it was not until the Govern- .

ment removed the evidence from the private files of

respondent and the Owens Glass Company in the anti

trust case that it became available to petitioners who

acted promptly in filing their petition in the court below.

The court below in applying the rule of the Toledo

_ Scale case R 102 as to the need for putting an end to

_ litigation, has completely ignored the fact that its deci-

sions in the Hazel and Shawkee cases are the basis for

0 ce -

*

x —

/ 4 5

x

22 5 Brief in Support of Petition.

endless litigation so long as any glass manufacturer may

elect not to pay tribute under Peiler patent 1,655,391

and other patents which were issued on mandamus in a

suit against the Commissioner of Patents reported in 87

F. 2d 741, wherein respondent fraudulently directed that

court's attention to Judge Buffington’s laudatory state-

ments of Peiler’s contribution to the art of glass —

„ in the Hazel-Atlas case.

The petition for a writ of certiorari to the Circuit

Court of Appeals for the Third Circuit should be

granted. ;

. Respectfully submitted,

WILLIAM B. JASPERT,

N Counsel for Petitioners.

October, 1943.

Appendix. os =

APPENDIX.

Chronology.

This suit was filed on May 31, 1933; decided against

defendants on motion for preliminary injunction on

June 22, 1933; upon appeal, the parties agreeing that

decision as on final hearing might be made, the Court

of Appeals on January | 1, 1934, decided against defend-

ants; defendants filed on February 8, 1934, a petition.

for rehearing, which petition was denied on February

21, 1934; Shawkee filed petition to this Court for writ

of certiorari on April 3, 1934, which was denied May 7,

1934, 292 U. S. 640; on May 29, 1934 Shawkee filed in

the Circuit Court of Appeals a petition for leave to file

a bill of review, which was denied on July 23, 1934;

Shawkee filed a second petition to this Court for writ '

of certiorari on September 7, 1934, which was denied

October 15, 1934,.293 U. S. 600; on October 20, 1934

Shawkee filed a petition in the Circuit Court of Appeals

to amend and reform its mandate, which was denied on

November: 14, 1934; Shawkee filed on April 8, 1935, a

second petition in the Circuit Court of Appeals for leave

to file a bill of review, which was denied on July 3, 1935;

Shawkee on October 1, 1935, filed its third petition to

this Court for writ of certiorari, which was denied on

October 28, 1935; 296 U. S. 635; on March 5, 1938,

Shawkee filed in the Circuit Court of Appeals a petition _

for rehearing and for leave to file supplemental amend-

ment to the answer, which was denied on May 31, 1938.