Opposition Brief — Dixon v. American Telephone & Telegraph Co.

AUG 20 1947

Supreme Court of the United Stater

October Term, 1947

No. 170

THOMAS BULLITT DIXON,

Petitioner,

VS.

AMERICAN TELEPHONE AND TELEGRAPH

COMPANY; WESTERN ELECTRIC COMPANY,

INCORPORATED; PHILIPP, SAWYER, RICE &

KENNEDY; JAMES J. KENNEDY, JR.; FISH,

RICHARDSON & NEAVE; HENRY R. ASHTON;

JOHN McGLONE, hetciienie.

BRIEF ON BEHALF OF RESPONDENTS AMER-

ICAN TELEPHONE AND TELEGRAPH COM-

PANY, WESTERN ELECTRIC COMPANY, IN-

CORPORATED, FISH, RICHARDSON & NEAVE,

HENRY R. ASHTON AND JOHN McGLONE, IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES CIR-

CUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT

| Homer H. Brean,

. Counsel for Respondents American

Telephone and Telegraph Com-

pany, Western Electric Company,

Incorporated and John McGlone.

\ Bruce BRoMLey,

Counsel for Respondents Fish,

| Richardson & Neave and Henry

R. Ashton.

BENJAMIN R. SHUTE,

Of Counsel.

| August 19, 1947.

TABLE OF CONTENTS

PAGE

Opinions Below and Jurisdiction................. 1

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OCpentiot PROM ons sin ad és cise ssadedcnkotese 5

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TABLE OF CASES

Arnstein v. Porter, 154 F. (2d) 464 (CCA 2d, 1946). 8

Associated Press v. U. S., 326 U.S. 1 (1945)........ 8

Avrick v. Rockmont Envelope Co., 155 F. (2d) 568

CUA BR, BD wanccannsuncuwsnnteesananen 8

Bower v. Stein, 177 Fed. 673 (CCA 9th, 1910)...... ja

Bozant v. Bank of New York, 156 F. (2d) 787 (CCA

DBRT) oan cides ccccestseneivescevelWebate 8

Brown v. Buena Vista County, 95 U.S. 157 (1877)... 14

Bushwick-Decatur Motors, Inc. v. Ford Motor Co.,

116 F. (2d) G75 (CCA 2d, 1940)... cc cccncccess 7

Doehler Metal Furniture Co. v. United States, 149 F.

(BG) UID CUA BE, BOG) cs oncniccccccccssens 8

Engl v. Aetna Life Insurance Co., 139 F. (2d) 469

FR dk ay GOED in cutc cca ccdanneesanescaeenes 8

ii

Griffin v. Griffin, 327 U. S. 220 (1946)..........44. 8

Leggett v. Standard Oil Co., 149 U. S. 287 (1893).... 14

Lindsey v. Leavy, 149 F. (2d) 899 (CCA 9th, 1945).. 7

Madeirense do Brazil, S/A v. Stulman-Emrick Lumber

Co., 147 F. (2d) 399 (CCA 2d, 1945)........... 8

Milcor Steel Co. v. Fuller Co., 316 U. S. 143 (1942).. 8

Monroe v. Ordway, 103 F. (2d) 813 (CCA 8th, 1939). 14

Russell v. Todd, 309 U. S. 280 (1940)...........2.- 14

Sartor v. Arkansas Gas Corp., 321 U. S. 620 (1944)... 8

Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.

(2d) 1016 (CCA Sd, 1942)... cc ccccccccccecee 8

Wolf Mineral Process Corp. v. Minerals Separation

N. A. Corp., 18 F. (2d) 483 (CCA 4th, 1927) . ‘j ae

TEXT BOOKS AND STATUTES

3 Moore, Federal Practice, p. 3190.............008. 8

Pemicmnl Code, Section 240(8)......cesccsessccess 2

Supreme Court of the United States

October Term, 1947

No. 170

Tuomas Butuitt Dixon,

Petitioner,

VS.

AMERICAN TELEPHONE AND TELEGRAPH

CoMPANY; WESTERN ELectric Com-

PANY, INCORPORATED; PHILIPP, SAWYER,

Rice & KeNnNeEpy; JAMEs J. KENNEDY,

Jr.; Fisu, Ricuarpson & NEAVE;

Henry R. AsHton; JoHN McGLong,

Respondents.

BRIEF ON BEHALF OF RESPONDENTS AMER-

ICAN TELEPHONE AND TELEGRAPH COM-

PANY, WESTERN ELECTRIC COMPANY, IN-

CORPORATED, FISH, RICHARDSON & NEAVE,

HENRY R. ASHTON AND JOHN McGLONE, IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES CIR-

| CUIT COURT OF APPEALS FOR THE SECOND

| CIRCUIT

Ee Tee 7

OPINIONS BELOW AND JURISDICTION

The opinion of the District Court for the Southern Dis-

trict of New York (R. 757-774) * upon the granting of Re-

*All references to the Record are to folios unless otherwise

indicated.

2

spondents’ motion for summary judgment is unreported.

The opinion of the Circuit Court of Appeals for the Second

Circuit (R. 907) with respect to which certiorari is sought

is reported in 159 F. (2d) 863. On February 21, 1947,

the Circuit Court of Appeals denied a petition for rehearing

(R. 931).

Jurisdiction of this Court is presumably invoked by the

Petitioner under Section 240(a) of the Judicial Code, as

amended by the Act of February 13, 1925 (43 Stat. 938,

28 U. S. C. § 347).

STATEMENT OF THE CASE

The Petitioner’s statement of the case (Petition, pp. 2-4;

Brief, pp. 5-10) is so confused and contains so many inac-

curacies and omissions that .a complete restatement of the

facts is necessary.

The decision which Petitioner seeks to review affirmed

a decision of the District Court granting Respondents’ mo-

tion for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure. That motion was based on the

ground that there was no genuine issue as to any material

fact and that Respondents were entitled to judgment as a

matter of law (R. 328, 331).

Petitioner’s reamended complaint set forth a cause of

action “in the nature of a bill of review” to vacate and set

aside, for alleged collateral fraud, a final decree of the

Federal District Court for the Southern District of New

York entered February 6, 1936*, which decree was affirmed

on appeal by the Circuit Court of Appeals for the Second

Circuit, without opinion, on January 4, 1937 (87 F. (2d)

*The opinion of the District Court is reported in 12 F. Supp.

996.

3

1002). The final judgment of the Circuit Court of Appeals

in that case was dated January 21, 1937. That prior suit

had been brought in 1932 by the same Petitioner against the

corporate Respondents herein for alleged infringement of

Petitioner’s patent (R. 18-20). In that suit the District

Court had adjudged Petitioner’s patent valid, but held that

it was not infringed, on the ground that the term “radiant

energy” in Petitioner’s patent did not include an electrical

current and that the alleged infringing device, which utilized

electrical current, therefore did not infringe (12 F. Supp.

996).

On January 20, 1943, six years after the conclusion

of the prior case, Petitioner began the instant action to

vacate and set aside the decree in the prior suit on the ground

that his own attorneys in that suit and Respondents’ attor-

neys had allegedly made a corrupt and fraudulent bargain to

“throw” the case (R. 31-32, 36 et seq.). Notwithstanding

seven affidavits and 23 exhibits filed in opposition to

Respondents’ motion, Petitioner has never alleged any terms

of the alleged corrupt bargain between counsel in the prior

suit. He seeks to infer it, mainly from conduct of his own

counsel and also from certain alleged acts of Respondents’

counsel. All the Respondents have categorically denied the

charges (R. 336, 367, 375).

Petitioner’s principal allegations are charges that his

case should have been tried more expertly than he believes

it was. Thus, he has alleged failure on the part of his

counsel to produce evidence showing commercial use of the

invention in suit (R. 42-43, 52-53, 663-74) and evidence

allegedly showing that the term “radiant energy” included

electrical current (R. 69-78, 674-82).

Petitioner’s only allegation of any relevant overt act

by Respondents’ attorneys in the prior litigation worthy of

4

mention is a stipulation between counsel which allegedly

limited his proof (R. 111-17, 393-94, 487-94).

The District Court succinctly described the Petitioner’s

proofs, as follows:

“A careful examination of the affidavits sub-

mitted by plaintiff upon this motion shows a com-

plete lack of any proof of a corrupt bargain or

conspiracy between the defendants or any of them.

* * * * * * * x

“Criticism, after an adverse result, of one’s

attorney, docs not prove or justify a conclusion of

corrupt action or connivance on the part of the ad-

versary. Here practically the only evidence offered

by plaintiff is as to his counsel’s conduct. Whether

justified need not be decided. Even if sustained, it

would not be sufficient basis for a denial of this

motion. It would be a matter between plaintiff and

his counsel, and would in no way, absent other proof,

involve the other defendants” (R. 768-71).

The Circuit Court of Appeals affirmed the District Court

on the ground that, as a matter of law, Petitioner’s delay

in the commencement of this action for six years after he

had full knowledge of the alleged fraud, during which time

three of the attorneys intimately connected with the original

patent infringement action had died, was a fatal defect in

the Petitioner’s case which he could not cure on a trial, and

that the case therefore presented no triable issue of fact.

As pointed out by Judge Frank in his opinion:

‘« * * Had there been a trial, none of the de-

fendants, by their testimony, would have contributed

anything concerning the reasons for the delay; if,

at the trial, his testimony [the Petitioner’s] had

5

been ifi accord with his affidavits and had been be-

lieved, nevertheless dismissal for laches would have

been necessary.” (R. 917; matter in brackets sup-

plied. )

Respondents submit that both grounds for deciding the

case are clearly right.

QUESTION PRESENTED

The basic question now before this Court is whether

the Petition presents any sound reason for a further review

of the case. Petitioner has not suggested any such reason.

Since his only argument is that, on the facts, both Courts

below were wrong in granting Respondents’ motions for

summary judgment under Rule 56 of the Federal Rules of

Civil Procedure, we shall also deal briefly with the factual

situation on which those decisions were based.

SUMMARY OF ARGUMENT

~

1. The Petition does not raise any question of public or

general interest and both decisions below are in accord with

the decisions of this Court and of the Circuit Courts of

Appeals under Rule 56.

2. The District Court correctly decided that Petitioner

had not shown any evidence from which the existence

of an alleged conspiracy could be reasonably inferred, and

therefore that the Respondents were entitled as a matter

of law to summary judgment under Rule 56 of the Federal

Rules of Civil Procedure.

;

6

3. The Circuit Court of Appeals correctly decided that

as a matter of law Petitioner’s action was barred by laches.

Petitioner’s delay of over six years in commencing

the action to set aside the earlier decision, even though

Petitioner had all the facts at his disposal at the begin-

ning of that six-year period, has not been satisfactorily

explained. The death of three of the attorneys con-

nected with the prior trial during that six-year period de-

prived the Respondents of important witnesses for their

defense.

ARGUMENT

I.

THE PETITION DOES NOT RAISE ANY QUESTION

OF PUBLIC OR GENERAL INTEREST AND BOTH DECI-

SIONS BELOW ARE IN ACCORD WITH THE DECISIONS

OF THIS COURT AND OF THE CIRCUIT COURTS OF

APPEALS UNDER RULE 56.

The District Court decision in this case is best described

by the same District Court Judge who rendered it, in a

subsequent opinion denying Petitioner’s motion for leave

to amend the reamended complaint and to amend one of

his previous affidavits, as follows:

“* * * The gist of that decision was that there

was a complete lack of any proof of a corrupt bar-

gain or conspiracy; that the inferences which plain-

tiff sought to draw from certain of his statements

were equally as susceptible of a lack of wrong as

with its presence; and that criticism after an adverse

result of his attorneys did not prove or justify a

conclusion of fraudulent action or connivance on the

part of his adversary” (R. 828-29).

_—

7

The Circuit Court of Appeals chose to base its affirm-

ance on the ground that “as to laches, there was no issue

of fact but only one of ‘law’ ”’ (R. 918).

The ground of each of these decisions, which are not

inconsistent, is the proposition that Petitioner, in his seven

affidavits and 23 exhibits filed in opposition to the motion,

failed to present any genuine issue as to a material fact, and

that therefore Respondents are entitled to judgment as a

matter of law. That narrow question on the record in this

case presents no point of public or general interest or any

novel construction of Rule 56 of the Federal Rules of Civil

Procedure, and the case is in accord with the decisions of

this Court and of the several Circuit Courts of Appeals.

The rule is clear that the party against whom the motion

for summary judgment is made must establish a genuine

issue of fact in order to defeat such a motion. Judge

Clark of the Second Circuit Court of Appeals stated the

applicable law in Bushwick-Decatur Motors, Inc. v. Ford

Motor Co., 116 F. (2d) 675 (CCA 2d, 1940), as follows:

“* * * In my judgment, the summary judgment

will lose much of its usefulness, will be in effect little

more than the old demurrer, if a ‘genuine issue’ is

discoverable when, as here, the full and complete

affidavits of the parties show no basis upon which a

plaintiff’s verdict could be sustained” (at p. 679).

In upholding a motion for summary judgment in a com-

parable recent conspiracy case, Lindsey v. Leavy, 149 F.

: (2d) 899, at 901 (CCA 9th, 1945), cert. den. 326 U. S.

783 (1946), the Court described exactly the situation here:

“The record fails to sustain appellant’s charge

of conspiracy amongst the appellees, or any of them,

7

and no facts were disclosed from which an inference

of conspiracy against appellant can arise.” :

See also Toebelman v. Missouri-Kansas Pipe Line Co., 130

F. (2d) 1016 (CCA 3d, 1942); and 3 Moore, Federal

Practice, p. 3190.

The instant case fits squarely within this Court’s de-

scription of the limits of the summary judgment rule.

Sartor v. Arkansas Gas Corp., 321 U. S. 620, at 624, 627

(1944). See also Griffin v. Griffin, 327 U. S. 220, at 236

(1946) ; Associated Press v. U. S., 326 U.S. 1, at 6 (1945) ;

and Milcor Steel Co. v. Fuller Co., 316 U. S. 143 (1942).

Indeed, the very Circuit Court of Appeals which here

decided in favor of the Respondents has been the strictest

in denying relief under Rule 56 where it has found the

slightest ground for granting a full trial. Doehler Metal

Furniture Co. v. United States, 149 F. (2d) 130, 135, 136

(CCA 2d, 1945); Arnstein v. Porter, 154 F. (2d) 464

(CCA 2d, 1946) ; and Bozant v. Bank of New York, 156 F.

(2d) 787, 790 (CCA 2d, 1946). Cf. Avrick v. Rockmoni

Envelope Co., 155 F. (2d) 568, 571, 573 (CCA 10th, 1946) ;

Madeirense do Brasil, S/A v. Stulman-Emrick Lumber Co.,

147 F. (2d) 399 (CCA 2d, 1945) ; and Engl v. Aetna Life

Insurance Co., 139 F. (2d) 469, at 472-473 (CCA 2d,

1943).

THE DISTRICT COURT CORRECTLY DECIDED THAT

PETITIONER HAD NOT PRODUCED ANY EVIDENCE

FROM WHICH THE EXISTENCE OF AN ALLEGED CON-

SPIRACY COULD BE REASONABLY INFERRED.

The following brief review of the record demonstrates,

we submit, that Petitioner has failed to produce any facts

a

9

which raise a genuine triable issue of fact. As the District

Court pointed out, Petitioner’s principal allegations amount

only to criticisms of his own counsel’s conduct in the trial

of the patent infringement suit (R. 768-70). Petitioner

has stated the gist of his case as follows (R. 563-64) :

“In my said annexed affidavit, while the facts

stated have more particular reference to the conduct

of James J. Kennedy, Jr. [his own counsel in the

prior suit] * * *, they are equally applicable, as

applying to the fraud alleged, to all of the defendants,

the material facts and circumstances of the case

pointing unmistakably to the ‘handwriting on the

wall’ which reads: Firstly, James J. Kennedy, Jr.,

acting under the supervision of James J. Kennedy,

* * * highly trained experts in the law of patents,

* * * having the substantial interest of thirty per

cent in any recovery in the aforesaid prior suit,—

could not, unless mad, have made of plaintiff’s case

an evidential Desert of Sahara as they did make of

it, unless, secondly, they did so because cf some sort

of corrupt bargain with defendants to corruptly sell

out plaintiff’s case.” (Italics and matter in brackets

supplied. )

In other words, Petitioner bases his serious charges here

on his conclusion that the conduct of the prior case by his

own counsel was so detrimental to Petitioner that there must

have been a fraudulent agreement with defendants and

their counsel. Not only does that syllogism, unsupported

by evidence, fail to state a case against the corporate Re-

spondents and their counsel, but indeed an examination of

the entire record demonstrates that Petitioner has no valid

complaint against his own counsel.

10

1. Facts showing commercial use

Petitioner’s counsel appear to have been right in not

attempting to establish commercial use or operative utility.

The only alleged commercial use, in so far as it pertains to

the patent in suit, was restricted to a brief experimental

use in 1908, proof of which would have created an inference

of failure instead of one of success (R. 384-87; see also R.

340-43, 608-13, 667-73). The only commercial success was

that of a modified arrangement, not of the invention cov-

ered by Petitioner’s patent (id.). Petitioner confuses this

issue by arguing that the brief 1908 experimental use was

on a commercial line (Brief, pp. 24-25). That fact does not

change the experimental nature of the brief use of Peti-

tioner’s invention in 1908.

The wisdom of omitting evidence of the actual use of

Petitioner’s invention was confirmed by Petitioner’s victory

on the issue to which it was mainly relevant—the validity of

the patent. On the issue of infringement, neither the brief

experimental use of the invention nor the commercial suc-

cess of the modified arrangement would have assisted the

Petitioner.

2. Evidence on the infringement question—Petitioner’s

argument that his phrase “radiant energy” included

electrical current

In the prior suit the District Court found no infringe-

ment, on the ground that the term “radiant energy” in Peti-

tioner’s patent was not sufficient to embrace Respondents’

device employing electrical current to achieve the same re-

sults claimed for Petitioner’s device. The District Court’s

opinion in the prior suit succinctly stated that issue and the

basis of its decision against the Petitioner, as follows:

11

“A careful reading of Dixon’s patent brings to

me the conviction that he did not have in contempla-

tion the use of an emission of electrons; that he did

not conceive of the use of an element which instead

of using radiation of light or heat would utilize

electrical current. His explanation discloses no

intent to include in ‘radiation,’ electric current. Such

current is not a heat ray or a light ray; nor do I be-

lieve it is within the concept of Dixon in his use of

the term, ‘or other forms of radiant energy.’ I do

not believe that his claims legitimately can be con-

strued to teach what the defendants have practiced

in this respect. Accordingly, there is no infringe-

ment” (12 F. Supp. 996, at 998).

Petitioner’s allegation of a deficiency of proof with

respect to that issue is based on his counsel’s failure to

introduce “evidence and/or matters for judicial notice com-

prising generally accepted facts respecting radiation or

radiant energy and the scope and equivalency of the several

forms thereof as comprised in leading scientific treatises,

encyclopedia articles, and dictionary definitions” (R. 68-

69). In support of that allegation, Petitioner has produced

one page from an article in the Encyclopaedia Britannica

(R. p. 153).

The Britannica article, or any other scientific treatise of

which judicial notice could have been taken, could have af-

tected the decision only if it defined “radiant energy”

broadly enough to include electrical current. The Britan-

nica article does not do so. No article that does make any

such extreme claim has been mentioned to date in the many

affidavits and briefs.

12

3. The stipulation allegedly limiting Petitioner’s recoverable

damages and proofs

The stipulation (R. 286-91) was beneficial, not prejudi-

cial, to Petitioner’s case, as will be clear from a comparison

of the stipulation with the answers to Petitioner’s interroga-

tories (R. 292-7), for which answers the stipulation was

substituted. The answers to the interrogatories had ad-

mitted that Respondents “made and/or used and/or sold

and/or licensed others * * *”. Since making, using or sell-

ing are the only acts that constitute infringement, it is

obvious that under the form of admission contained in the

answer to the interrogatories the Respondent did not admit

infringement since they may have only licensed, which is not

infringement at all. Thus the stipulation, admitting as it

did both using and selling, was more favorable to the Peti-

tioner’s case; and that is precisely why Petitioner’s counsel

in the prior suit requested the stipulation in place of the

answer to the interrogatories (R. 343, 351-3). As the

District Court said:

“Such a stipulation is not an unusual one, and

a far cry from anything from which fraud or cor-

ruption may be inferred * * * (R. 772).”

Petitioner’s contention that the stipulation released Re-

spondents from liability for alleged infringing uses in four

additional fields contained in the answers that were omitted

from the stipulation is wholly without merit. Under well-

settled principles of patent law Petitioner, if successful,

would have been entirely free on an accounting to recover

for the making, using or selling of all alleged infringing

devices regardless of the fields in which such devices were

used; and the stipulation, which admitted sale or use in four

fields, did not release Respondents from liability for infring-

_—

13

ing uses in other fields. However, all the uses of the alleged

infringing device mentioned in Respondents’ answers to

the interrogatories, including those omitted from the stipu-

lation, were in fact proved by Respondents at the trial (Rec.

in prior suit, Fols. 253-4 and p. 251).

Petitioner’s contention that the substitution of the stipu-

lation for the answers to the interrogatories “eliminated”

from the case the Colpitts reissue patent No. 14,380, owned

by the corporate Respondents, is wholly without merit.

Respondents’ answer in the prior suit contained the same

admission as the answers to the interrogatories, namely

that they had made, used, sold or licensed “devices embody-

ing inventions of all of said Colpitts patents” which included

No. 14,380 (Rec. in prior suit, Fol. 55), and that admission

in their answer was in no way amended by the stipulation.

Furthermore, the Petitioner had no greater burden im-

posed upon him by the stipulation than he would have had

if the answers to the interrogatories had remained. Since

the answers to the interrogatories did not admit infringe-

ment, the Petitioner would have been compelled to prove

infringement by showing that devices containing the circuit

of the reissue patent No. 14,380 infringed the Petitioner’s

patent sued upon in the prior suit. Hence, Petitioner’s

claim that the making of the stipulation imposed a greater

burden upon him is wholly without merit.

Il.

THE CIRCUIT COURT OF APPEALS CORRECTLY

DECIDED THAT PETITIONER’S ACTION WAS BARRED

IN ANY EVENT BY LACHES.

The statement of facts and opinion by Judge Frank of

the Circuit Court of Appeals set forth all the relevant facts

14

with respect to Petitioner’s laches (R. 911-18). In brief,

the Petitioner waited for six years before seeking to set

aside the earlier judgment ; he now alleges that lack of legal

knowledge to begin an action on his own behalf and lack of

funds to hire an attorney prevented him from beginning the

suit prior to an accident to his shoulder and arm on August

7, 1940, and presumably the painful effects of that accident

caused the further delay (R. 913-14) ; meanwhile three of

the attorneys in the patent infringement action, one for the

Petitioner and two for the corporate Respondents, had died

(R. 914-15). Subsequent to the Circuit Court of Appeals

decision, Petitioner filed a petition for rehearing in which he

again sought to explain his delay, but without adding any

relevant facts (R. 922-27). The Circuit Court of Appeals

denied that petition for rehearing (R. 931). Petitioner’s

brief in this Court furnishes nothing new in the way of

fact or authority to the case as it was presented to the Cir-

cuit Court of Appeals.

The decision of the Circuit Court of Appeals on the

laches point is entirely consistent with the decisions of this

Court and of the several Circuit Courts of Appeals. See

Brown v. Buena Vista County, 95 U. S. 157 (1877);

Leggett v. Standard Oil Co., 149 U.S. 287, at 294 (1893) ;

Russell v. Todd, 309 U. S. 280, at 287-9 (1940) ; Bower v.

Stein, 177 Fed. 673, 678 (CCA 9th, 1910); Wolf Mineral

Process Corp. v. Minerals Separation N. A. Corp., 18 F.

(2d) 483, 490 (CCA 4th, 1927), cert. den. 275 U. S. 558;

Monroe v. Ordway, 103 F. (2d) 813 (CCA 8th, 1939).

eT

LINN PR I

15

CONCLUSION

It is respectfully submitted that the petition for a writ of

certiorari should be denied.

Homer H. Bretanp,

Counsel for Respondents American

Telephone and Telegraph Com-

pany, Western Electric Company,

Incorporated, and John McGlone.

Bruce BrRoMLeEy,

Counsel for Respondents Fish,

Richardson & Neave and Henry

R. Ashton.

BENJAMIN R. SHUTE,

Of Counsel.

August 19, 1947.