# Petition for Writ of Certiorari — Clarage Fan Co. v. B. F. Sturtevant Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1945
- **Citation:** 326 U.S. 727

## Text

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INDEX

Supsect INDEX

Petition for writ of certiorari.......................
Summary statement of matter involved..........
I na G's gp kk kab bac 445
Beseme Ramen Patemt......................
ee Sad Oe i ead og aw kick a
LG sais yh ast givin d as woken
Reasons relied upon for allowance of the writ... ..
5) ERNE SENS ESSE ls ae als apie ee
Brief in support of petition.........................
Opinions of the courts below. ..................
I ars are Or eed ee
Specification of errors......... 2.2... eee eee
SI Or PIII, on hos nS cp avakun sas bvcan
pe RES eet eee ee ye eee
Point I—The Court of Appeals for the Sixth
Circuit appears to have overlooked the pub-
lic interest in applying the rule of res ad-
judicata in this case and in not following the
application of the rule of upholding the
public interest as this Court stated should
be done in Mercoid Corporation . a
Continent Investment Co. 320 U. 8. 661,

Point II—The Court of Appeals for the Sixth
Circuit has failed to give proper considera-
tion to the public interest in holding the
second Hagen patent valid, which patent the
patentee Hagen now admits is merely an
adaptation of the structure of the first
Hagen patent, which was applied to an in-
duced draft fan, to a forced draft fan (R.
114), and the fact that such adaptation is
taught by the art; Cuno Engineering Cor-
poration v. Automatic Devices Corporation,
314 U.S. 84; 86 L. Ed. 58; Sinclair & Carrol
Company, Inc., v. Interchemical Corpora-
tion, announced May 21, 1945............

—8840

|

ll INDEX

Page

Point I1I—The Court of Appeals for the Sixth
Circuit has failed to guard the public interest
in not holding the second Hagen patent in-
valid on this record which shows that the
adjustment of the vanes through an angle of
90 degrees is merely a matter of mechanics,
and that it is merely a matter of mechanics
to make the vanes of the first Hagen patent
adjustable through that range of degrees and
that such range of adjustment of vanes and
the arrangement of the pivots of the vanes
obliquely to the rotor axis is not only taught
by the art of record but was done by Hagen
and his associates purely as a mechanical
expedient to minimize obstruction of the
kkk _ PIE SRRI Dg cr ea MI arsenate

Point 1V—The Court of Appeals for the Sixth
Cireuit, by adopting and applying respond-
ent’s present theory of 100% overlapping of
vanes in fully open position and construing
the claims to cover petitioner’s structures
Exhibits B and C because they have vanes
overlapping in space, has disregarded the
public interest to’ the extent that this inter-
pretation of the claims would make them
apply to most multiple vane controls and
most of the prior art patents, many of which
have expired and are in the public domain.

Point V—The Court of Appeals for the Sixth
Circuit has overlooked the public interest in
holding petitioner’s Exhibits B and C to
infringe both patents in suit on the basis of
results accomplished, and has further over-
looked the public interest to the extent of
giving the claims such scope as to embrace
the prior art structures and has given the
mechanical Claim 2 of the first Hagen
patent the effect and scope of the method
Claim 1 held invalid by the Court of Appeals

SCPE ss PIMA Ye

Conclusion

for the First Circuit, and has unwarrantedly
extended the finding of the Court of Appeals
San thee Poneh CHP: ok eon cn kas

Point VI—This Court in the public interest

should exercise its supervisory authority and
review the decision of the Court of Appeals
for the Sixth Circuit, determining the
validity of both patents in the light of the
record in this case, the admissions of the
respondent herein and the respondent’s
presently urged theory of 100% overlapping
of the vanes in fully open position, which is
an incident to several prior art patents.
If this Court should determine the patents
in suit to be valid the rights of the public
should be definitely determined by fully de-
fining the meaning and scope of the claims,
inasmuch as this has not been done by any
court considering them but which, without
attempting to apply to Exhibits B and C
the Court of Appeals for the Sixth Circuit
has, on the basis of results accomplished
thereby, extended to cover prior art patents
having spin control vanes overlapping in

TaBLE oF Cases CITED

B. F. Sturtevant Co. v. Massachusetts Hair & Felt Co.,
SF Te cK Cea aren eie akan cena bene e es
Cuno Engineering oe v. Automatic Devices Cor-
poration, 314 U.S. 84; 86 L. Ed. 58....... 8,10,16,17,19
DeForest Radio Corporation v. General Electric Co., 283

General Electric Company v. Wabash Appliance Cor-

poration, 304 U.S. 364, 82 L. Ed. 1402............
Market Street Cable Railway Co. v. Rowley, 155 U.S. 621.
Mercoid Corporation v. Mid-Continent Investment Co.,

320 U.

20

S. 661, 88 L. Ed. 376.......... 7,10,13,15,21,23

PREMERA IL LOI IEE EIRENE TERT AEG TL PIM FILE BOE GSES RETEST

iv INDEX

Page

Motion Picture Patents Corporation vy. Universal Film
oe LL SO rer re ret errr 21,23
Ue Se ee eee 21

Sinclair & Carrol Company, Inc. v. Interchemical Cor-

poration, Announced May 21, 1945 (unreported),

8,10, 16,17,19,21,23

United Carbon Company v. Binney & Smith Co., 317
es Sa ee ie SESS ioc ve oh icg x sea oe ses Dis 8

United States v. Masonite Corporation, 316 U. S. 265... 21,23

mamrensey or iat TO PRETER e PEO ROT supe

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1945

q
i
4
No. 150
4
CLARAGE FAN COMPANY, :
si Petitioner, :
B. F. STURTEVANT COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

To the Honorable the Chief Justice of the United States,
and the Associate Justices of the Supreme Court of the
United States:

Your petitioner, Clarage Fan Company, prays for a writ
of certiorari to the United States Circuit Court of Appeals
for the Sixth Circuit to review the judgment of that Court
entered on the 4th day of April, 1945 (R. 412), 65 USPQ
203, as amended on the 22nd day of May, 1945 (R. 423),
not reported.

A certified transcript of record in the case, including
proceedings in said Circuit Court of Appeals, is furnished
herewith in compliance with the rules of this Court.

1b

bo

Summary Statement of Matter Involved

This suit was brought by the respondent against the peti-
tioner for infringement of Claim 2 of the first Hagen pat-
ent 1,846,863 for Fan and Method of Operating Same (R.
263), and all four claims of the second Hagen patent
1,989,413, for Centrifugal Fan (R. 264). The United States
District Court for the Western District of Michigan held
all claims in suit valid and infringed by petitioner’s strue-
tures exemplified by Exhibit 3 and Exhibits B and C (Find-
ings of Fact and Conclusions of Law, R. 36). Tae Court
of Appeals for the Sixth Circuit affirmed the judgment of
the District Court (R. 412), 65 USPQ 203, and on May 22,
1945, amended its judgment (not reported).

The two Hagen patents here in suit were involved in the
case of B. F. Sturtevant Company (respondent herein) v.
Massachusetts Hair & Felt Company, in the United States
District Court for the District of Massachusetts, charging
infringement of the claims here involved and also method
Claim 1 of the first Hagen patent by Exhibit 3.

That case was referred to a Master who found method
Claim 1 of the first Hagen patent invalid, Claim 2 valid
and infringed, and all four claims of the second Hagen pat-
ent invalid. The Master’s finding was affirmed by the Dis-
trict Court (31 Fed. Supp. 975). The Court of Appeals for
the First Circuit affirmed the District Court with respect
to the first Hagen patent, holding method Claim 1 invalid
and Claim 2 valid and infringed, but reversed the finding
of the Master and the judgment of the District Court in
respect to the second Hagen patent, holding all four claims
valid and infringed (122 Fed. (2d) 900; Petition for Re-
hearing denied 124 Fed. (2d) 95; Petition for Writ of Cer-
tiorari denied, 315 U.S. 823, 86 L. Ed. 1219).

Petitioner assumed the defense of the Massachusetts case.
Exhibit 3 is the same as the structure held to infringe in

3

the Massachusetts case. Exhibits B and C were not involved
in that case.

First Hagen Patent

The principle of controlling the output of a fan by vary-
ing the spin of the entering air in the direction of rotation
of the rotor of the fan is admittedly old and in fact is re-
ferred to as ‘‘ancient.’’ This control is best accomplished
by a plurality of coacting pivotally adjustable vanes and
this is old in the art.

The first Hagen patent (R. 263) is an adaptation of this
ancient principle of variable spin control to an induced
draft fan in which the vanes are arranged in an annular
series in a scroll-shaped inlet, the axes of the vanes being
parallel to the axis of the rotor. The vanes are connected
for simultaneous operation which is old in the art, for
example in Hickhoff (R. 356, Chart Exhibit P) and the
Beaudrey French patent (R. 392, Chart Exhibit U). The
vanes of this Hagen patent are curved and the Court in the
Massachusetts case distinguished Hagen from Eickhoff’s
straight vanes, pointing out the differences, 122 F. (2d)
900, at 910. On page 911 (also R. 285) the Court of Appeals
for the First Circuit summarized what it considered to be
Hagen’s contribution in the following language:

“It does not seem to us that it would have occurred
to a mechanic or designer skilled in the art either to
disregard increasing shock-loss by radically increasing
the spin of the entering air or to construct vanes of
cylindrical contour for the purpose of providing pas-
sages between them ‘of substantially uniform cross-
section as the vanes are moved to closed position,’ so
that céntrol to minimum capacity by spin rather than
by throttling would result. Thus the finding of patent-
able invention made by the master and confirmed and
adopted by the court must stand.’’ (Italics ours.)

RE TOI ee te a

POR TTT PRR POTD ee Ee Ae

4

Hagen sought to pre-empt this ancient principle of spin
control by method Claim 1 of the first Hagen patent which
the Court of Appeals for the First Circuit held invalid for
lack uf patentable invention. This claim was held to be
invalid on the ground that if patentable novelty was present
in Claim 1 it must reside in adjusting the spin through a
range from substantially the full capacity of the fan to a
minimum capacity thereof with a substantially tangential
admission of fluid, such variation through this range being
effected by increasing the spin component while reducing
the area, as defined in the concluding clause of Claim 1, the
claim being as follows:

‘‘1. A method of operating a centrifugal fan which
consists in rotating the fan wheel at constant speed and
controlling the output of the fan in aceordance with
the variations in demand thereon by supplying fluid
to the fan with a spin component of velocity in the
direction of rotation of the wheel, adjusting the spin
through a range to produce variations in output from
substantially the full capacity of the fan to a minimum
capacity thereof with a substantially tangential admis-
sion of fluid, said variation from maximum output to
lower outputs being effected by increasing the spin
component while reducing the area through which the
fluid passes at a rate not proportionately greater than
the rate of increase of the spin component.’’

The Master held that this was merely extending the range
of control by a known method and that any novelty in Claim
1 resides in results rather than method. Both Courts
affirmed the finding.

Claim 2 of the first Hagen patent, held valid, is as follows:

‘2. The combination with a constant speed motor,
of a centrifugal fan having a rotor, an inlet, a plurality
of vanes in the inlet forming fluid directing passages
to admit fluid to the rotor with a spin component of
velocity in the direction of rotation of the rotor, the

vanes being adjustable to vary the output of the fan
through a range from maximum capacity with the vanes
open to a minimum capacity with a substantially tan-
gential admission of fluid when the vanes are closed,
adjacent vane surfaces continuously approaching
parallelism and having extended overlapping portions
shaped to define passages of substantially uniform
cross-section as the vanes are moved toward closed
position.’’

This must be construed to define what the Court in the
Massachusetts case stated Hagen’s contribution to be as
distinguished from what would have occurred to a mechanic
or designer in the paragraph we have quoted.

Second Hagen Patent

The second Hagen patent (R. 264), as admitted by the
inventor Hagen, is merely an adaptation of the first patent
to a forced draft fan (R. 114) ‘** * * That is all that it is
supposed to be.’’ This adaptation was old and taught by
the art; in fact, some of the prior art patents show both
adaptations in single patents, as in Moody 1,460,428 (R.
357, Chart Exhibits Q and R).

Whether an induced draft fan or a forced draft fan should
be installed in a particular system is a matter of engineering
and sometimes both are employed in a single system (R. 94),
the forced draft to push the air into the system and the
induced draft to pull it out of the system. With both in-
duced and forced draft the spin control vanes are arranged
in advance of the rotor; in the induced draft commonly in
a seroll-shaped inlet chamber connected to a conduit, and in
the forced draft in an inlet open to the air.

In the first Hagen patent the vanes are arranged in an
annular series with their pivot axes parallel to the axis of
the rotor. In the second Hagen patent they are arranged
in an annular series with their axes oblique to the axis of

2b

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6

the rotor. Both arrangements are old in the art, Moody
(R. 357) being an example. While the axes of the vanes in
this patent are shown in the drawing at right angles to the
axis of the rotor, the specification states,

‘*The guide vane axes in Fig. 2 are shown in the same
plane although they might be equally well contained in
a conical surface having its apex in the pump axis.”’

In adapting the first Hagen patent to a forced draft fan
the axes of the vanes were first arranged perpendicular
to the axis of the rotor; as this served to choke the inlet
the design was changed by moving the vanes forward in
the conical throat (Hagen, R. 89).

Claim 1, which may be regarded as typical, is as fol-
lows:

‘*1, A centrifugal fan comprising a rotor, a casing
having an eye and a substantially conical inlet passage
leading to the eye, and a plurality of vanes in the inlet
pivoted on axes which are oblique to the rotor axis
and substantially at right angles to the conical inlet,
the vanes being adjustable about their axes from sub-
stantially wide open position in which they do not
appreciably obstruct the flow of gas to the rotor
through an angle of nearly 90 degrees to a closed posi-
tion, throughout which adjustment they direct the en-
tering gas to the rotor with an appreciable spin, the
work done by the fan on the gas being variable in ac-
cordance with the adjustable spin introduced by the
vanes at different positions.”’

Respondent’s expert Berry states that it is a matter of
mechanics to provide a 90-degree range of adjustment of
the vanes in the first Hagen patent (R. 138).

Claim 1 concludes with the statement,

‘*the work done by the fan on the gas being variable
in accordance with the adjustable spin introduced by
the vanes at different positions’’.

POE RE EINE, TY OTE RTE OMIT ERIN TELS OEE I ET RAE, ae ao

7

This is the same as in the first Hagen patent and in the
ancient art, the principle having been discovered in the
Eighteenth Century by a Swiss mathematician and physi-
cist named Euler and reduced to an equation.

The added hub element on the rotor axis of Claim 2 of
the second Hagen patent is old in the art. The added
‘“‘means for simultaneously and uniformly adjusting the
vanes about their axes’’ of Claims 3 and 4 are common in
the old art.

Jurisdiction

1. This is a suit arising under the Patent Laws of the
United States, Judicial Code, Sec. 24 (7) (28 U.S. C., See.
41 (7).

2. The jurisdiction of this Court is invoked under Sec-
tion 240 (a) of the Judicial Code, as amended by the Act
of February 13, 1925 (28 U.S. C., See. 347).

3. The date of the judgment which petitioner seeks to have
reviewed is April 4, 1945 (R. 412), as amended May 22,
1945 (R. 423).

Questions Presented

1, Whether public interests are not paramount in the
application of rules of res adjudicata in this cause as was
held by this Court in Mercoid Corporation v. Mid-Conti-
nent Investment Co., 320 U. S. 661, 88 L. Ed. 376.

2. Whether a claim of a patent should be held valid which
is so indefinite and vague as to permit the owner of the
patent (respondent) to urge one interpretation in the Mas-
sachusetts case in order to support a charge of infringe-
ment by Exhibit 3, and to advance another theory of inter-
pretation in the present case in order to support a charge
of infringement by Exhibits B and C. The interest of
the public and equity to the petitioner demand that a claim
capable of being so manipulated should be held invalid

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8

under the established rules of law applied to this Court in
United Carbon Company v. Binney & Smith Co., 317
U. S. 228, 87 L. Ed. 232; and
General Electric Company v. Wabash Appliance Cor-
poration, 304 U. S. 364, 82 L. Ed. 1402.

3. Whether public interest should not be considered in
determining validity of the second Hagen patent which
admittedly is merely an adaptation of the first Hagen pat-
ent, applied to an induced draft fan, to a forced draft fan
(R. 114), such adaptation being taught by several prior
patents,

Sinclair & Carrol Company, Inc., v. Interchemical Cor-
poration, Announced May 21, 1945 (unreported) ;
Cuno Engineering Corporation v. Automatic Devices

Corporation, 314 U.S. 84, 86 L. Ed. 58.

4. Whether the Court of Appeals for the Sixth Circuit,
in view of the statement of the inventive step which the
Court of Appeals for the First Circuit held was taken by
Hagen, properly held petitioners structures Exhibits B
and C to infringe the patents in suit, and whether the Court
of Appeals for the Sixth Circuit has not unwarrantedly ex-
tended the findings of the Court of Appeals for the First
Cireuit to the detriment of public interest and petitioner’s
rights.

5. Whether respondent’s urging the theory of 100%
overlap when the vanes are in fully open position is such
a shift of theory from that taken by respondent in the
Massachusetts case as warrants refusal to apply the doc-
trine of res adjudicata.

6. Whether overlapping of vanes in space should be re-
garded as imparting patentable novelty to the patents in
suit or in determining infringement thereof by Exhibits B
and C when such overlapping in space is an incident to all

BASIE PORES ME LUTE IL ERLE SATIN YELENA IT NETL IMT EES E SEI SERINE SIRS EE TEED

9

prior art multiple vane spin controls to the same degree as
is present in petitioner’s structures Exhibits B and (C,
held to constitute infringements because of such over-
lapping in space, the public interests being thereby dis-
regarded and permitting respondent to reclaim and re-
capture admittedly ancient principles of spin control and
structures of patents long since expired.

7. Whether the application of the doctrine of res adju-
dicata to Exhibit 3 justifies holding Exhibits B and C to
constitute infringement on the ground that they produce
substantially the same results in spin control in substan-
tially the same way as Exhibit 3 when, as a matter of
fact, they are within the range of spin control of structures
embodying the prior art, and Exhibit B has substantially
the same as and Exhibit C has substantially less range
of spin control than structures embodying the prior art,
and this spin control is accomplished in both Exhibits B
and C in the same way and by the same means as the spin
controls of the prior art.

8. Whether this Court should in the public interest exer-
cise its supervisory authority in reviewing the decision in
this cause, not only determining the validity of both patents
in suit in the light of the record in the present case, the
admissions of the respondent herein, and the respondent's
presently urged theory of 100% overlapping of vanes in
fully open position which is incident to several prior art
patents, but also, if the patents are valid or determined to
be valid, defining the rights of the public by defining the
meaning and seope of the claims, which has not so far been
done by any court considering them, but which have been
extended by the Court of Appeals for the Sixth Cireuit to
include practically all prior art patents on multiple vane
spin control,

OS HOS RED Ug POR : BATEMANS Ue j

10

Reasons Relied Upon for Allowance of the Writ

I. The Court of Appeals for the Sixth Cireuit appears
to have overlooked the public interest in applying the rule
of res adjudicata in this case and in not following the ap-
plication of the rule of upholding the public interest as this
Court stated should be done in Mercoid Corporation v. Mid-
Continent Investment Co., 320 U. S. 661, 88 L. Ed. 376.

II. The Court of Appeals for the Sixth Circuit has failed
to give proper consideration to the public interest in hold-
ing the second Hagen patent valid, which patent the patentee
Hagen now admits is merely an adaptation of the structure
of the first Hagen patent, which was applied to an induced
draft fan, to a forced draft fan (R. 114), and the fact that
such adaptation is taught by the art;

Cuno Engineering Corporation v. Automatic Devices
Corporation, 314 U. S. 84; 86 L. Ed. 58;

Sinclair € Carrol, Inc. v. Interchemical Corporation,
announced May 21, 1945 (unreported).

Ill. The Court of Appeals for the Sixth Circuit has
failed to guard the public interest in not holding the second
Hagen patent invalid on this record which shows that the
adjustment of the vanes through an angle of 90 degrees is
merely a matter of mechanics, and that it is merely a matter
of mechanics to make the vanes of the first Hagen patent
adjustable through that range of degrees and that such
range of adjustment of vanes and the arrangement of the
pivots of the vanes obliquely to the rotor axis is not only
taught by the art of record but was done by Hagen and his
associates purely as a mechanical expedient to minimize
obstruction of the eye of the fan.

IV. The Court of Appeals for the Sixth Circuit, by adopt-
ing and applying respondent’s present theory of 100%

11

overlapping of vanes in fully open position and construing
the claims to cover petitioner’s structures Exhibits B and C
because they have vanes overlapping in space, has disre-
garded the public interest to the extent that this interpre-
tation of the claims would make them apply to most multiple
vane controls and most of the prior art patents, many of
which have expired and are in the public domain.

V. The Court of Appeals for the Sixth Circuit has over-
looked the public interest in holding petitioner’s Exhibits
B and C to infringe both patents in suit on the basis of
results accomplished, and has further overlooked the public
interest to the extent of giving the claims such scope as to
embrace the prior art structures and has given the me-
chanical Claim 2 of the first Hagen patent the effect and
scope of the method Claim 1 held invalid by the Court of
Appeals for the First Circuit, and has unwarrantedly ex-
tended the finding of the Court of Appeals for the First
Circuit.

V1. This Court in the public interest should exercise its
supervisory authority and review the decision of the Court
of Appeals for the Sixth Cireuit, determining the validity
of both patents in the light of the record in this case, the
admissions of the respondent herein and the respondent’s
presently urged theory of 100% overlapping of the vanes
in fully open position, which is an incident to several prior
art patents. If this Court should determine the patents in
suit to be valid the rights of the public should be definitely
determined by fully defining the meaning and scope of the
claims, inasmuch as this has not been done by any court
considering them but which, without attempting to apply
to Exhibits B and C the Court of Appeals for the Sixth
Circuit has, on the basis of results accomplished thereby,
extended to cover prior art patents having spin control
vanes overlapping in space.

12

Prayer

WueEnerorE, your petitioner respectfully prays that a writ
of certiorari be issued to the Court of Appeals for the Sixth
Cireuit to the end that this cause may be reviewed and de-
termined by this Court in accordance with the principles
of law heretofore announced by it and that the judgment
of the Court of Appeals as to the finding of res adjudicata
and the application of the rules of res adjudicata in this
cause be reversed; that the finding of validity of Claim 2
of Hagen patent 1,846,863 and of each of the four claims
of the Hagen patent 1,989,413 and the finding of infringe-
ment of all of said claims by petitioner’s structures Exhibits
B and C be reversed; and that petitioner be granted such
other and further relief as may be proper.

CLarace Fan Company,
By Oris A. Ear,
Frep L. CHappeELt,
Ws. S. Hopes,
Attorneys for Petitioner.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0200%3A1. Public record. Not legal advice.