Brief for the Petitioner — Shawkee Manufacturing Co. v. Hartford-Empire Co.

2 5 — ; CUR 1 * ' S 7 * ‘i te . ‘ we 8.

f a \ cd 2 . ~ ee — —

. 2 5

DEC 30 013

CLERK

In THE.

| Supreme Court of the United states

oronRn TERM, 1943

NO. 423

* 4 *

SHAWKEE MANUFACTURING COMPANY

GLENSHAW GLASS COMPANY

+ McKEE GLASS COMPANY

GEORGE R..HAUB, Petitioners .

.

HARTFORD-EMPIRE COMPANY, Respondent

On Writ of Certiorari to the Third Circuit Court of

Appeals for the Third Circuit

BRIEF FOR PETITIONERS.

7 WILLIAM B. JAS PERT,

Counsel for Petitioners:

December 29, 1943.

rn BROS. CO. INC., LAW PRINTERS, <34-436 BOULEVARD OF ALLIES, PITTSBURGH, PA.

| |

CHARLES ELMORE CROPLEY j

*

Pont IL—The Motive for Publishing the

ais Clarke Article ..........:...... E

Pont II.— The Nature of the Clarke Article. 8

Point I11.—The Clarke Article Is Admittedly

55 False by Omission of Reference to

Other Prior Art Known to Hart-

ͤU—A. ũ oH——.àA 9

Point IV.— The Clarke Article Did Affect the

Court’s Decision in Both the Hazel

and the Shawkee Cases 10

Point V.—The Evidence of the Fraudulent

Character of the Clarke Article

Peta ar Was Not Sooner Available to

oe Hazel or Shawkee...:.......... 11

Point VI.— The Fraudulent Use of the Clarke

Article in the Hazel Case Requires

Dismissal of the Bill of Complaint

in the Shawkee Case. 3

Point VII. —The Court Below Had Power.to

Set Aside Its Judgment and Order

Procuréd by Fraud 17

Conclusion 5 . „

/

ae,

Cases and Statutes Cited.

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

F. 2d 940 and 107 F. 2d 540, 944, cert. den. 308,

U.S. 621, 60 S. Ct, 293, 84 L. Ed. 518. ee

Bien v. Heath, 6 How. 228, 247˖ .. a.

Commercial Trust Co. of N. T. v. U. S. 2 3

G a ae ee ana a 18

Hartford-Empire Co. v. Coe, 87 F. . 0

Hartford-Empire Co. v. Hazel-Atlas Glass Co., 137

F. 2d 764; 39 F. 2d 111, 117; 39 F. 2d 111. 8

59 F. 2d 399; 125 F. 2d 976, 977; 59 F. 2d 401;

59 F. 2d 399, 413; 39 F. 2d 117; 68 F. 2d 726.

. „ kebeewnee cake aad _A-2-3-8-9-10-11-14-15-20

- Hartford-Empire Co. v. Shawkee Mfg. Co., 137 F.

2d 764; 68 F. 2d 726; 292 U. S. 640; 293 U. S.

G00; 125 F. 2d O76, O77... . . .1-2-3-21

Hartford -Fairmount v. United States Glass Co., 2 F.

2d 109-111; 2 F. L „„

Judicial Code, 28 U. S. C. Sect. 347 . 2

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

ere ee ee ee ee ed ge als 1-4-12

Marshall v. Holmes, 141 U. S. 589 a eee ‘Sc. . .18-19

In re New England oil Refining Co. et al., 9 F.2d

— .... ̃ ͤ 20

United States ex rel. Pisher v. Williams, 67 F. 384

(CCAS) „eee 20

— United States v. Sterling et al., 70 F. 2d 708 (CCA2). 20

United States v. Throckmorton, 96 U. S. 1. 18

Winslow v. Staab, 242 F. 426 (CC A2); 70 F. 2d 708

C . 18-20

€ * °

Supreme 6 of the United States

octoner ren, 1943

NO. 423

SHAWNKEE MANUFACTURING COMPANY

: GLENSHAW GLASS COMPANY

McKEE GLASS COMPANY _

GEORGE R. HAUB, Petitioners —

a ae y

HARTFORD-EMPIRE COMPANY, Respondent

On Writ of Certiorari to the. Third Circuit Court of

Appeals fox the Thisd Cipouit

BRIEF FOR PETITIONERS

“This case is before the Court upon a writ ot

~-—eertiorari to the third circuit court of appeals, petition

therefor being granted December 13, 1943 (R. 107).

The final judgment of that court under review here was

entered June 30, 1943 (R. 105) and reported, Hartford-

Empire Co. v. Hazel-Atlas Co., and Hartford-Empire Co.

v. Shawkee Manufacturing Co., 137 F. 2d 764. The peti-

tion for certiorari was filed Oct ber 13, 1943.

The questions presented in the Shawkee case are

the same as in the Hazel case except that in the instant

ease there is the additional question of whether or not

the Bill of Complaint in the Shawkee case should be dis-

misséd under the rule pronounced by this Court in Key-

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

: y

°

“a

—2— :

Tue jurisdiction of this Court is invoked under Sec-

tion 240(a) of the Judicial Code, 28 U.S.C., Section 347,

as amended.

Statement of the Case

; The Shawkee suit was, brought by respondent (here-

inafter called Hartford) May, 1933 charging infringe-

ment of the same Peiler patent No. 1,655,391 involved in

the Hazel case although the Shawkee feeding method

employing air impulse pressures was entirely different

from the plunger method disclosed by the Peiler patent

and employed by the defendant in the Hazel suit. The

Bill of Complaint in the Shawkee suit referred to the

favorable decision of the Hazel case holding the patent

valid and infringed.

‘, The trial court 3. the motion for preliminary

injunction on the basis of the favorable adjudication of

the patent in the Hazel case which was confirmed on ap-

peal, Hartford-Empire Co. v. Shawkee et al., 68 Fed. 726,

by the same judges that decided the appeal in the Hazel

After hearing on appeal, Shawkee had hearsay in-

formation that the Clarke article, referred to in the opin-

ion in the Hazel case as the basis for reversing the trial

court, was published at the instigation of Hartford's

patent attorney, Hatch, and the matter was called to

the attention of Judge Buffington by letter but having no

proof other than that the article may have been inspired

by Hartford no direct attack could be made on its au-

thenticity. After the decision holding the Shawkee

4 4

. | —

feeding method to come under the Peiler patent, Shawkee

petitioned for rehearing which was denied, (R. 16).

Shawkee then petitioned this eourt for a Writ of Certio-

rari which was denied, 292 U. S. 640. Shawkee then

petitioned the Third Cireuit Court of Appeals for leave

to flle a Bill of Review (R. 16) which was denied and

this Court again denied . Petition for Writ of Certiorari,

293 U. S. 60. te

In the summer of 1941, the Government in the trial

of an antitrust case in Toledo, Ohio, United States v.

örd et al., now on appeal to this Court, produced

evidence concerning the Clarke article, which had been

obtained from the secret files | of the Hartford and Owens

— and which proved its fraudulent origin and

nature. f .

*

ane

The Shawhee and Hazel companies promptly. moved

to present this evidence to the Third Circuit Court of

Appeals, filing their respective petitions in Octobe-

(Shawkee) and November (Hazel), 1941.

These petitions were for leave to file Bills of Review

in the District Court, to set aside the decisions of the

Third Circuit Court of Appeals, adverse: to petitioner,

becausé of the fraud practiced by the Clarke article.

In December, 1941, the court said, Hartford v. Hazel

and Hartford v. Shawkee, 125 F. 2d 976, 977:

“In view of the fact that it is alleged that fraud

was practiced upon this court rather than upon the

court below, this court will adopt the practice fol-

lowed: by the Circuit Court of Appeals for the Sec-

ond Circuit in the companion cases of Art Metal

Works, Inc. v. Abraham & Straus, Inc., 107 F.2d

940 and 944, certiorari denied, 308 U. S. 621, 60

S. Ct. 293, 84 L. Ed. 518, and itself pass upon the

/

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4}

question of whether the mandates of this court

should be recalled and the cases reopened. Accord-

- 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 burt to st

: aside the judgments heretofore entered in this

2 - court, on the ground of fraud. e

appellant will then reply to the petitions for review

as amended and the questions involved will be heard

2 „ ‘

18 The petitions were accordingly. amended and filed

the cases were reargued in February, 1942, and on June

30, 1943, the court below filed the opinion (R. 79) which

is under review here.

ye Specification of Errors

7 The Circuit Court of Appeals for the Third Circuit

erred in holding : >

1. That it lacked power to set aside its deeree

obtained by fraud after the end of the term at

which the mandate was dispatched.

° 2. That the accredited contents quoted by Judge

Buffington from the false Clarke article did not

affect the Court’s judgment.

That the newly discovered evidence adduced at

the trial of the Government Anti-trust suit does

not qualify as after discovered évidence.

4. In failing to vacate its decree and the

bill under the ruling of this Court in Keystone

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

“oo

8

N me

Petitioners contend that the Court of Appeals below

had power and Bhould have set aside its judgment in

both the Hazel case and the Shawkee case and to order

dismissal of the bill of complaint in the Shawkee case

on the ground that its decisions were procured by fraud

agent the Patent Ofice and the Court.

' POINTE

| The Motive for Publishing the Clarke Article. -

The purpose in preparing and publishing the Clarke

article was explained by Carter in a letter written to

the President of the Owens Bottle Company (R 7)

wherein it was referred to as the Hatch article

Hatch, a patent attorney for respondent, had written

. Carter said:

“He has prepared it with thé idea of getting it 7

printed under the name of some apparently un-

prejudiced authority, and then calling attention of

the Patent Office Examiner to the article as pup-

lished, in the belief that the Examiner will thereby .

2

Hartford's broad claims.”

The Patent Office Examiner was being prepared for

the Clarke article in an Amendment filed June 23, 1926

(R. 8), three weeks prior to publication of the article

in the National Glass Budget. The amendment stated

under the Remarks: . |

“For the Examiner's information, a discussion

of the subject matter of this case is being prepared,

with affidavits and exhibits, showing the wide-

} 5 *

spread recognition by the glass art of the novelty

and ry value of the feeders claimed herein |

"By an amendment filed October 12, 1926 (R. 8) after

anne tig of the Clarke article under Remarks it was

stated:

“The tele publihed in the N ational Glass

Budget for July 17, 1926 by William P. Clarke,

President of the American Flint Glass Workers

Union, is an interesting account of the introduction

of automatic glass machinery and its reception by

the labor unions * * — .

The remarks to the Patent Office Examiner then

.\ — to the chart of the Clarke article stating:

The curves shown on this chart are

interesting as showing that the production on the

Owens machines fell off at just about the time

when the suspended charge feeders got under way 8

The conclusion of the whole matter

is, that. the suspended charge feeder has accom-

plished a revolution in the glass art. It is sub-

‘mitted, therefore, that these claims are entitled to -

favorable consideration, which is ‘respectfully

solicited.” ; }

a, en „

At the time the article was published the broad

claims of the Peiler application then before the Patent

Office were under rejection. This was after respondent —

nad acquired or had control of numerous interfering

applications and after the Patent Office interferences

had been “terminated by order of the Commissioner of

Patents. The District Court in the Hagel case with

reference to this particular period of the. patent office

prosecution of the Peiler Patent said, 39 F. 2d, 111, 117:

“The application of the patent in suit was, at

various times, in interferences with applications

filed by Bridges, Ferngren, Howard, Lott, Miller,

Steimer, and Tucker and Reeves, all of whom had

filed applications prior to that of Peiler. While

enlightening, space does not allow any extended

review of these proceedings in the Patent Office.

The most important of these interferences were

brought to an end by the order of the Commissioner

after plaintiff had acquired or had control of the

contending applications, one after another. Prior

to the withdrawal of the interferences by counsel

the Patent Office had steadfastly rejected all claims

having approximately the same subject matter of

those in suit. After the interferences had all been

ended, the claims in the patent in suit were all with-

drawn. After rewriting; one hundred and four

‘ new claims (many of them rewording of original

claims) were presented, and after a considerable

time and much controversy the patent was allowed.

Before allowance however, the Primary Examiner

nad rejected all claims, and his action had been

supported by the Examiners in Chief. A rehear- a

ing was granted, and Peiler, after cancelling a

number of claims, filed affidavits to show that he

had completed his invention prior to November 14,

1917. That the Patent Office intended to grant any

such broad monopoly as is claimed by plaintiff’s

‘counsel in the suit is incredible, if any evidentiary

weight is to be attributed to various disclaimers

—

filed by Mr. Peiler with the approval of the plaintiff,

or filed * by the plaintiff.“

POINT 1

The Nature of the Clarke Article.

The statement by Hatch ta oo. setter dated

April 19, 1926 (R. 10):

ei course, I think you understand that

the whole object of the article is to make an excuse .

to get the production curves and a few statements

in regard to gob feeding into print.“

is, we believe, comprehensive of the character of the

article. Its spurious authorship represents it as based

upon the proceedings of the Bottle Blowers’ Association

and it is sounded in the historic alarm of labor over

advancement in labor saving machinery. The Clarke

article has still another significance which is most im-

portant ari which as appears from the opinion in the

court of appeals in the Hazel case was persuasive in

setting aside the prior art upon which the district

court had denied respondent's claim for a pioneer in- N

vention. After reviewing the prior art patents to

Brooke, Brookfield, Steimer, Ferngren, Wilson, Morri-

son, Bowman, Harding, Howard, Bridges, Tucker and

Reeves, and notably Hitchcock, = trial court said, 39

F. 2d 111, 116

Other patents and uses might be cited to sustain

our conclusion that the Peiler patent claims are not

entitled to broad construction.“

Vet, with all of these prior patents and uses the Clarke

article speaks of only one, namely, the Brooke patent.

* Italics ours; unless otherwise .

—9—

‘POINT m a | =

The Clarke Article Is Admittedly False by Omission of

Reference to Other Prior Art Known to

| : Hartford. cer

The Clarke Article presents the Brooke flow pat-

ent 723,983 as the only prior attempt of feeding sepa-

rate mold charges to ware forming machines. Re-

spondent’s predecessor, the Hartford-Fairmont com-

pany acquired the patents to Hitchcock, Numbers

805,068 and reissue 13,929 before their expiration in

1922 and asserted them against the Berney Bond Glass

Company, which employed the Howard feeders, in a suit

in the Western district of Pennsylvania in 1921. At the

same time it had also brought suit against the United

States Glass Company in the western district of Pern-

_sylvania reported 2 F. 2d 109, 111. As appears from

that decision, the Hitchcock patents were asserted to

de for suspended charge feeders. The Brookfield patent

No. 883,779 under which the defendant was operating

was known to be in commercial operation and success-

_ fully feeding suspended gobs or charges to ware form-

ing machines. Omission of reference to these feeding

methods and Hartford’s own prior art patents estab-

lishes the intentional falsity of the Clarke article.

Furthermore Carter’s letter to Hatch (R. 10) ques-

tioning the production curves of the Clarke article and

Hatch’s explanation to Carter (R. 11) show the produe-

tion curves to be based on minimum royalties, which had - ~

to be paid regardless of any production, and upon an in-

correct number of Owens’ machines in use which were

‘intentionally misrepresented in the curves (R. 10). The

_ curves were represented to both the Patent Office (R. 8)

and the Court of Appeals in the Hazel case (R. 98) as

—— —— — — — —— — —

*

establishing the dee t character of the Peiler

* when .. knew they were false.

POINT IV.

The Clarke Article Did Affect the Court's Decision in

Both the Hazel and the Shawkee Cases.

The Clarke article begins with the statement

“There is an apparent conflict of interest be-

tween the manufacturers: and organized labor

whenever new labor saving machines are introduced -

into: a business. ed

The effect of this statement on the e of the

court in the Hazel case on appeal is apparent from the

opinion. Judge Buffington said 59 F. 2d 401: —

8 °

As we have indicated, the labor organizations

were vitally interested in the supplanting of hand

blowing by mechanical blowers, and we naturally

look to the proceedings of their several organiza-

tions to find what machine blowers were of

practical working capacity and ones which they

regarded as supplanting lung blowing. We can

therefore, and do, rely on their opinion in that re-

gard, for successful machine blowers largely spelled

ending of the supremacy of lung blowing. In an

article prepared by the president of one of these

i unions, he sai id: ag

‘The court then further referred to the Clarke ar-

_ ticle as disposing of the question of —_ was prior art

to Peiler. The court said:

„ In point of fact the 1 oper-

ators who were threatened with annihilation by! the

Owens 3 found nothing in this swarm of al-

leged patent antieipations to relieve them, and the

labor conventions asserted, as they did, that none

7 these alleged prior devices had any effect

* oa —

It is to he noted that the Clarke article did not, as.

might be assumed by the above quoted statement of the

opinion, make reference to the prior art patents or.

uses referred: ty in the opinion of the trial court 39 F.

24d 111, with the exception of the Brooke patent.

There is no other statement in Judge Buffington’s

a opinion from which it might be inferred that he had

considered the prior art of record on the merits. The

opinion evidences he was persuaded to disregard the

prior art because of his reliance upon the Clarke article

as coming from a disinterested and hostile source hav-

ing knowledge of the facts.

The following: significant Jon enor by Judge Buf- -

fington may be regarded as conclusive on this point =

406):

“Accordingly, we take these Owens and Brooke

devices as constituting the advance of the art in the

machine glass blowing of bottles.“

: POINT V

The Evidence of the Fraudulent Character of the Clarke

Article Was Not Sooner Available to Hazel

or Shawkee.

As stated in the petition of the companion case of

the Hazel-Atlas Glass Company, after the decision by

the court of appeals 59 F. 2d 399, Hazel began to inves-

tigate the authenticity. of the Clarke article, but four

days after that decision Hatch had interviewed Clarke

. ie tee: 8 ay reo se

* .

*

and shortly thereafter Clarke asked for $10,000 and was

paid $8,000.00 in cash by Hatch (R. 17, 46). This cor-

ruption of Clarke foreclosed every avenue of investiga-

tion and it was not until the evidence of the fraud was

established through the private correspondence files of .

Hartford and the Owens-Illinois Glass Company in the

trial of the suit entitled United States v. Hartford-

Empire Company et al. now before this court on appeal, f

that proof of the fraud was available to Hazel and Shaw-

kee who immediately made application to the court of

appeals below for leave to ate a bill of review in the

district court. .

POINT vr

The Fraudulent Use of the Clarke Article in the Hazel

Case Requires Dismissal of the Bill of Com-

plaint in the Shawkee Case.

In Keystone Driller Company v. Excavator Com-

pany, 290 U. S. 240, quoting with approval the language

of Mr. Justice Story, this court said: 0

It is one of the fundamental principles upon

which equity jurisprudence is founded, that before

a complainant can have a standing in court he must

first show that not only has he a good and meritor-

ious cause of action, but he must come into court

with clean hands. He must be frank and fair with

the court, nothing about the case under consider-

ation should be guarded, but everything that tends

to a full and fair determination of the matters in

controversy should be placed before the court.’

Story’s Equity Jurisprudence, . 14th ed., 898.“

Further in the same case, P. 245, the court said

This court has declared: It is a principle in

„chancery, that he who asks relief must have acted

.

—

—

in good faith. The equitable powers of this court

can never be exerted in behalf of one who has acted

fraudulently or who by deceit or any unfair means

has gained an advantage. To aid a party in such

a case would make this court the abetter of in-

iquity.’ Bien v. Heath, 6 How. 228, 247.”

The facts and circumstances of the Shawkee case

are similar to those in the Keystone case in which the

court said, P. 246 :

Had the corruption of Clutter been disclosed at

the trial of the Byers case, the court undoubtedly

would have been warranted in holding it sufficient

to require dismissal of the cause of action there

alleged for the infringement of the Downie patent.

Promptly after the decision in that case, plaintiff

‘brought these suits and immediately applied for

‘*s* injunctions pendente lite. It used the decree of

validity there obtained in support, if not in deed

as the basis, of its applications. And plaintiff’s

misconduct in the Byers suit remaining undisclosed,

that decree was given weight on the motions for

preliminary injunctions * The use actually

made of that decree is sufficient to show that plain-

tiff did not come with clean hands in. respect of any |.

cause of action in these cases. 1 <a

The bill of complaint in thé Shawkee case has three

paragraphs numbered 9, 10 and 11 which assert the

decision in the Hazel case as establishing — and

infringement. They are as follows:

* “9. The said Peiler patent No. 1,655,391 has

been held valid and infringed, as to all of its claims

there in ‘suit, (to wit, all of the sixty elaims of said

patent except claims 2, 3, 5, 6, 7, 24 to 31 both

2 D

—14—

inclusive, 51, 52 and 60), by a decision of the

United States Circuit Court of Appeals for the Third

Circuit, in a vigorously contested suit of the plain-

tiff · herein, Hartford-Empire Company, against

Hazel-Atlas Glass Company: The said suit was

‘tried in open court in the United States District

Court for the Western District of Pennsylvania be-

fore Judge Gibson of this Court, the trial occupying

several weeks, during which much testimony was

taken. The said suit was further vigorously con-

tested upon appeal to the United States Circuit

Court of Appeals for the Third Circuit, and on May

5, 1932, the said Circuit Court of Appeals, in an

opinion dy Judge Buffington, held the patent there

and hei in suit to be valid and infringed as to all

the claims there in suit, including all the claims

which are in suit herein: The said opinion is re-

ported in 59 Federal Reporter, Second Series at

page 399. A certified copy of the said decision is

attached hereto.“

“10. Plaintiff, in its 8 of infringement

herein, relies upon elaims 8, 10, 11, 12, 13, 14, 46

of said Peiler patent No. 1,655,391, which claims

were all in suit and were all held valid and infringed

vy the United States Circuit Court of Appeals for

the Third Circuit in the said suit of Hartford-

Empire Company v. Hazel-Atlas Glass 3 59

Fed. (2d) 399.”

“11. Plaintiff is informed and believes, and

therefore avers, that the defendants’ glass feeding

method, herein complained of and charged to ir-

fringe, is, so far as concerns the inventions of the

said claims 9, 10, 11, 12, 13, 14, 46 hexe in suit, the

same in all material and substantial respects as the

—15—

defendants’ Hazel-Atlas Glass company glass feed-

ing method held by the United States Circuit Court

of Appeals to infringe said claims as aforesaid.” :

°

The preliminary Abele was granted and on ap-

pe 68 F. 2d 726, the court said:

“The patent involved was considered by. this .

colt in Hartford-Empire Company v. Hazel-Atlas .

Glass Company reported in 59 F. 2d 399, 413. Ref-

‘ , erence:thereto obviates needless restatement of the

art * * .* Accordingly we held in the Hartford-

Empire v. Hazel-Atlas case that the claims of the

Peiler patent there in suit were broad enough to

cover the Hazel-Atlas device. For the sare rea-

sons we hold that the claims of the patent here in

suit are broad enough to cover the defendants’

device.“ ö

Hartford also cialis the Hazel decision in this

Court in reply to Shawkee’s petition for Certiorari. In

a brief for respondent, dated April 23, 1934, in opposition

to petition for Writ of Certiorari, Hartford said, (P. 3):

“The history of the invention, what it has ac-

complished in the commercial and practical art, and

the benefits to the glass industry which have re-

sulted from it, are described in the opinion of the

Circuit Court of Appeals for the Third Circuit in

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

F. 2d 399, the prior suit on this same Peiler patent.

This prior case was decided in May, 1932, and the

patent in suit including the claims now in issue, was

held valid and infringed by a machine and method

employed by the Hazel-Atlas Glass Co. In the dis-

‘trict court, four weeks were consumed in the trial of

that case, the prior art was thoroughly. canvassed |

a

and explained. as were-also the merits of the inven-"

tion covered by the patent here in suit and the com-

mercial and practical successes which had attended

. VW

— 8

. IP. 5)

An application for a preliminary injunction was

made, based upon the fact that the patent had been

ae ee eee

Third Circuit.” ;

(P. 11) > « @

e

of this summary, it would be manifestly unjust to

respondent to now have the validjty of the patent

determined by this Court on a record which was pre-

pared for use in a proceeding in which validity could

not be raised in the absence of evidence affect-

ing yalidity, especially in of the fact that in

the Hazel-Atlas case, where validity of the pat-

ent was sustained, there was full and com-

plete record.” : 7

(P. 23) 5 5

AU Hasel-Aitles case the commercial art. which

preceded Peiler, and its shortcofmings and limita-

tions, were fully explained by competent experts

and practical workers in tne glass industry, as was

also the great advance that the Peiler invention had

2 N made and the difficulties which it had solved.” 8

It must be concluded that the judgment in the. ‘

Shawkee. case was obtained by Hartford’s repeated

reference to and reliance upon the favorable decision

in the Hazei-Atlas case which the court below held as

controlling on the question of validity and infringement.

? | = =

Because the Hazel decision was procured by the use of

the fraudulent Clarke article plaintiff did not come with

clean hands in respect to this cause of action and the bill :

of complaint should be dismissed under the ruling of this

Court in the Keystone Driller case (supra). __ :

4

N 0 roter vn

The Court Below Had Power to Set Aside Its Judgment

and Order Procured by Fraud.

-When the evidence of the fraud of the Clarke article

was first presented to the court below. petitioner sough

leave to file a bill in the district court in the nature

a bill of review. The court of appeals denied the petition

on the ground that the fraud was practiced on that court

and granted petitioners’ leave to amend the petition

to move the court to set aside its judgment following

the practice of the circuit court of appeals for the

circuit in Art Metal Works, Inc. v. Abraham a

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

621. By now holding that application should be made

to the district court for leave to file a bill of review the

court of appeals in effect reversed itself. In the dis-

senting opinion, J Biggs said, R 91:

2 to our fi tion to receive these petitions

and to pass upon the matters raised by them, I am

not unmindful of the fact, as I have indicated, that -

such bills or petitions are ordinarily presented to

the court below upon grant of leave to do so by

the appellate tribunal, but the apparent facts in

the cases at bar bear an analogy to.the circum-

stances which were before the Circuit Court of

Appeals for the Second Circuit in Art Metal Works

= * 8 .

v. Abraham & Straus, 10% F. (2nd) 940 and 944,

cert. den. 308 U. S. 621. f 5

he pertinent facts in the Art Metal Works

cases are as follows: One of the members of that

N court had been corrupted. The tribunal thereupon

reconstituted itself, and after applications similar

in form to those before us had been filed with it,

i itself reheard the cases. The fraud was (fol. 67)

practiced upon the circuit court of appeals and

therefore that court heard the matters raised by

the. petitions and disposed of them. The court

acted to protect * integrity of its | appellate |

; jurisdiction. a N

We believe that, as stated by Judge Biggs,

“The significant fact is that the fraud was

worked upon the appellate tribunal” g N

and the Art Metals Case is authority for both the ques-

tion of an appellate court having jurisdiction where the

fraud is practiced upon that tribunal and the question

that its judgment and order may be recalled after the

term in which it was entered had expired.

The House of Lords’ decision quoted by the circuit

court of appeals i in Winslow v. Staab, 70 F. 2d 708, Cer-

tiorari denied; Commercial Trust.Company of New York |

v. United States, 293 U. S. 584, is in point on the ques-

tion of an appellate tribunal having power to discharge

its orders after term to prevent its own decisions from

being made the machinery for effecting a fraud.

In United States v. Throckmorton, 96 U. S. 61, and

Marshall v. Holmes, 141 U. S. 589, this Court decided

that judgments obtained by fraud may be set aside

after the term in which the judgments were entered had

expired. In the Throckmorton case the court held that ;

‘

1, lms

fraud vitiates judgments where the fraud was practiced |

directly upon the party seeking relief against the judg-

ment or decree, if by the fraud the party has been pre-

vented from presenting all his-ease to the court.

In the Shawkee case, Hartford’s reference to the

favorable decision in the Hazel case, undoubtedly fore-

closed inquiry by the court of appeals into the prior art

upon which Shawkee relied in its use of the air feeder.

Shawkee was thereby prevented from presenting all its

case to the court and because, as now appears, the Hazel

decision was procured by fraud, its use in foreclosing a

consideration of the Shawkee defense on the merits is

such a fraud as vitiates the judgment within the rule

of the Throckmorton case.

The case at bar does not fall within th exception

noted in the Throckmorton case that a judgment will

; not be set aside if founded on a fraudulent instrument,

or perjured evidence or for any matter which was actu- -

ally presented. and considered in the judgment assailed.

The nature of the fraudulent preparation and use of the

Clarke article has never before been presented to any

tribunal and the question before the court is not alone

whether the Clarke article is a fraudulent instrument but

whether the manner of its use is a fraud upon the court.

In. Marshall v.. Holmes, 141 U. S. 589, relief wes

granted, P. 601:

“* © © by reason of the fact, distinctly 4

that some of the necessary proof establishing che

forgery of the letter was discovered after the judg-

ments at law were rendered, and after the legal

delays within which new trials could have been ob-

tained, and could not have been discovered by her

- gooner.

cause that proof establishes the fraudulent character of

Proof of the authorship and character of the Clarke

article’could not have been discovered by petitioners

before the Government. Anti-trust suit in 1941 and be-.

the Clarke article we believe that under the ruling of

- Marshall v. Holmes the court below had power to _—

relief. ;

The decisions ‘of the Circuit Court of Appeal uni-

formly hold that a judgment obtained by mistake or

mis representation may be annulled after the term has

ended. Winslow v. Staab, 242 F. 426 (CCA 2); United

States v. Sterling et al., 70 F. 2d 708 (CCA 2); In re New

England Oil Refining Company et al., 9 F. 2d 344 (CCA

1); United States ex rel. Fisher v. . 67 F. 384

(CCA 8).

a The Circuit Court of 2 for the Third Circuit

therefore erred in deciding that it lacked the — to

vacate its order after the term had expired.

CONCLUSION. 5

_ The history of Hartford's patent situation reflects

a well laid plan to establish and perpetuate a monopoly

in the feeding of glass. It began with the acquisition

and assertion of the Hitchcock patents by Hartford's

predecessor, The Hartford-Fairmont Company reported

in Hartford - Fairmont Co. v. United States Glass Com-

pany, 2 F. 2d 109. followed by the acquisition of all other im

gob feeding patent applications and devices pertaining

to suspended gob feeding as found by the court in

Hartford-Empire Company v. Hazel-Atlas Glass Com-

- pany; 39 F. 2d 117.

7

After Hartford succeeded in obtaining allowance of

the broad claims in the Peiler plunger patent in the

patent Office by use of the Clarke article and by use of

the same article obtained a favorable judgment against

‘the Hazel-Atlas Glass Company, 59 F. 2d 399, it em-

ployed that judgment in the Shawkee case to bring with-__ .

in the dominance of its said patent the air pulsator sus-

pended charge feeding principle of the old Hitchcock

patents, Hartford-Empire Co. v. Shawkee et al., 68 Fed.

. 2d 726. Hartford then extended its monopoly of sus-

pended charge feeding by bringing suit against the Com-

_ missioner of Patents, Hartford-Empire Co. v. Coe, 87 F.

2d 741, where it again relied upon the favorable decision

which it had obtained in the Hazel case — to by

the court (P. 742).

„ * * The appellant company has been involved

in a number of suits in connection with these Peiler

patents, and special stress is laid by appellant on the

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

Co. (CCA3d) 59 F. 2d 39 .“.

'In the Hazel-Atlas case, the court

paid a great tribute to Peiler for revolutionizing the

art and supplying an urgent and desperate need'

of the bottle manufacturing industry.“ .

As the result of that litigation three additional patents

were issued to Hartford in 1937. The Clarke article was,

therefore, the key to Hartford’s patent monopoly which

in its effective scope is dependent upon a fraud.

; \

By these Patent Office and suit tactics, Hartford

has extended a patent monopoly for suspended charge

feeding from 1905, the date of issue of its early Hitch-

cock patents to 1954, the date of expiration of the 1937

patents and has exacted millions of dollars from the

—22—

*

industry (R. 52). Whatever the outcome of. the Gov-

ernment Anti- trust suit now on appeal before this Court,

Shawkee and Hazel are nevertheless under injunction

against owning or operating any prior art suspended

charge feeding apparatus or method unless the judg-

ments below are „ es ;

The decision deer should be reversed and the case

remanded for such further relief as the premises and

the equity of the case may require and to the Court vee:

seem just and —

Respectfully submitted,

— B. JASPERT,

Counsel for Petitioners.

—