# Petition for Writ of Certiorari — Fraver v. Studebaker Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2121%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1954 - **Citation:** 347 U.S. 968 ## Text o Fi an APR © 1954 HAROLD B. WILLEY, Ch IN THE Supreme Court of the United States Octoser Term, 1953 No. 672 IVAN N. FRAVER, Petitioner, v. THE STUDEBAKER CORPORATION . Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT WILLIAM J. RUANO, Counsel for Petitioner, 1530 Park Building, Pittsburgh 22, Pennsylvania. SATAVIA TIMES LAW PRINTERS. BATAVIA. &. Y. RAYMOND R. SMITH. PENNSYLVANIA REPRESENTATIVE. 4 SMITHFIELD ST.. PITTSBURGH 22. PA. CO-URT t-3595 INDEX. PAGE MN MONE: Sis ck ce dndebaebad caches tag ces 1 PRL: oO o6 bone 5iein a SUURERUL Ck Shao oes 2 eres Preieet ee Se cS 3 scerspamuing Bb sceicd cong, SEE ORR AANA ete 3 Statement of the Case ........ Se Mind Mie dcack Moa cima 3 Reasons Relied on for Allowance of the . ae 6 Dummy OF Weenie aaa oc ao sich vo cen. hk 6 a a TE RN are Cee er ee 10 1. The Court improperly set aside the jury’s ver- dict only on questions of fact rather than on questions of law thus violating Rule 50 (b) F. R. C. P. and depriving petitioner of his Con- stitutional right to trial by jury ............ 10 2. The District Court’s action is directly contrary to the decisions of this Court ............... 13 2(a). This Court has consistently held that validity and infringement are ques- tions of fact for determination by the POET bok vn esas obiatdlinak aes ae 14 2(b). Regardless whether validity and in- fringement are questions of fact or law, the particular findings of the jury pertaining to these issues and which were set aside by the Court have been consistently held, by this Court, to be qehntnns we Teen 16 3. Hopeless conflict exists among the various cir- cuits concerning the respective functions of court and jury on questions of validity and in- fringement which should be resolved by this CET * 6 vuinsird padawes odd SLAG OL aR es 22 4. Evidence strongly supports jury’s verdict of validity and infringement .................. 27 ORION 66 ine ES dons Konak ak ee ii LIST OF AUTHORITIES Cases PAGE Bailey v. Central Vermont (1943), 319 U.S. 350....... 13 Battin v. Taggert (1854), 17 How. (58 U.S.) 77...... 14,19 Besser v. Ooms, 154 F. 2d 17 (App. D. C.-1946)........ 25 Bischoff v. Wethered (1870), 9 Wall. (76 U.S. 812)...14, 19 Cutter Laboratories v. Lyophile-Cryochem (C. A. 9, PO CO civ ceed snceutieeeccds. iokecs Esnault-Pelterie, 299 U. S. 201 Ss Ratainis Sm ean, 14 Expanded Metal Co. v. Bradford (1909), 214 U. S. 366 29 Falkenberg v. Bernard Edward Co., 175 F. (2) 427 Ce EE. Sih co 555 ok Sars oho oceanic UROL Eco 26 Faulkner v. Gibbs, 170 F. 2d 34 338 U. S. 267 ( C. A. Pe) HO Ce BOD ois ona Sune dedcnccn 15, 18, 19 Goodyear Tire & Rubber Co. v. Ray-O-Vae Co. (1944), 65's hed eV id nuk CaN ba cbe Acids bce x 30 Graver Tank Mfg. v. Linde Air Products (1949), 336 ip MAIN ia i ain ttn dak oss Devine SWE wha ue caw 15, 20, 21 Great Atlantic & Pacific Tea v. Supermarket Equip- ment (1950), 340 U. S. 147 ................. 8, 15, 25, 30 Gunning v. Cooley, 281 U. S. 90 (1930)............... 27 Haines v. McLaughlin, 135 U.S. 584................. 19 Hanovia Chemical & Mfg. Co. v. David Butterick Co., og Le | eee 26 “— & Reynolds v. Wilgus (C. C. A. 9, 1893), 56 Fed. - ME Pata teb atl at Whee hnads Ria bu bacdine 6 040% ka wns Heide v. Panoulias (C. C. A. 2, 1911}, 188 Fed. 914, cert. den. (1911), 223 U. 8. 722 ...............25. 22 Herald v. Rice, 104 U. 8. 738, 749 ....... 0. cece cc cncs. 16 Holmes v. Truman (C. C. A. 9, 1895), 67 Fed. 542...... 22 Hotchkiss v. Greenwood, 11 How. 248 (U.S. 1850) .... 14 Jacob v. City of New York (1942), 315 U.S. 752 ...... 12 Keyes v. Grant (1886), 118 U. S. 25 ................ 14 Lavender v. Kurn (1946), 327 U. S. 645 ............ 13 Marsh v. Illinois Central (CA5—1949), 175 F. (2) i EE PEE DNL See CAME AE SE Mazer et al. v. Stein et al., 100 U. S. P. Q. 325........ McElrath v. Industrial Rayon, 123 F. 2d 627 (CA4- EE ohn dineek eeu tonde adh Uieuoen akin: oss o Mellvaine Patent v. Walgreen (C. C. A. 7, 1943), 138 EOE > Selkinatues bcc kwcdok cout a National Slug Rejectors Inc. v. A. B. T. Mfg. Corp., ee He Be GUD in wick cctv ncné vas cvuccs Oxnard Canners v. Bradley (C. A. 9, 1952), 194 F. (2d) Ee Ce le SA I oS oviin Xenin cece unk ose Packwood v. Briggs & Stratton (C. A. 3, 1952), 195 F. _ ¢ Rket e made ted Parsons v. Bedford (1830), 3 Pet. (28 U. S.) 438 .... Pointer v. Six Wheel, 177 F. 2d 153 (C. A. 9-1949) .... Refrigeration Patents Corp. v. Stewart-Warner (C. C. Bia Gy Bey Ws COUR 6 ovcnecicccacscsicssse Root v. Lake Shore & Michigan (1882), 15 Otto (105 Whe We GU Seda s Weng. chts su dau oka ccubbiag eeu San Francisco Bridge v. Keating (C. C. A. 9, 1895), 68 ie SE dine Ns sthawngcwiiwkwedbiniers cea Singer Mfg. Co. v. Brill (C. C. A. 9, 1892), 54 Fed. 380 . Ginger v. Crnmer; 298 0. @. OB... .o55 5 5k dices cee Stilz v. United States, 269 U. S. 144, 147 ............ Stubnitz-Greene v. Fort Pitt, 110 F. 2d 192 (C. A. 6- EE MER OU EWG wicca Gaunbids Rodeuwca ute bs iéa Sturtevant Co. v. Mass Hair & Felt Co., 122 F. 2d 900 et” aa wate blab nnn niaminsaion-ode Tennant v. Peoria & Pekin Union Railway (1944), 321 ji (SSO tee Oh Gr lh epee Thomson Spot Welder v. Ford Motor, (1924) 265 U. S. SSP eeenseeSOev_eese 6666666 b 6 6 68 d's PAGE 12 22 22 16 14 25 25 a Se PIE RE ASTIN Tae TA NCS AE A NES 14,17 iv PAGE Turril et al. v. Railroad Co., (1863) 1 Wall (68 U.S.) PE kuind was Gh ea dns hbesn aeolian asetaws 14,19 Watson v. Heil, 192 F. 2d 982 (CA4-1951) .......... 24 Willis v. Miller (C. C. A. 2, 1903) 121 Fed. 985 ...... 22 CoNSTITUTION. rr RN ee ee 11 STaTUTEs. TU, Bh a, Tree BO, OOO BITS ac inn vie cen vnncencs 11 U. S. Code, Title 35, Former Section 67 ............ REA Del cic it Ui Sage RD 4, 11, 39 Appendix A U.S. Code, Title 35, Section 103 ....3, 7, 18,40 Appendix A U.S. Code, Title 35, Section 281 ........ 11, 39 Appendix A U.S. Code, Title 35, Section 284 ........ 11, 39 Appendix A U.S. Code, Title 35, Section 4919 ..........ccccsecs 39 RULEs. Federal Rules of Civil Procedure, Rule 50 (b) ..... 2, 6, 10 TExtTs. Moores Federal Practice (2nd Ed.) ................ 10 Walker on Patents (Dellers ed.) ................5. 15 IN THE Supreme Court of the United States OctosEr Term, 1953 No. IVAN N. FRAVER, Petitioner, v. THE STUDEBAKER CORPORATION, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT To the Honorable Chief Justice and Associate Justices of the Supreme Court of the United States: Your Petitioner, Ivan N. Fraver, respectfully prays that a Writ of Certiorari issue to review the amended judgment of the United States Court of Appeals for the Third Cir- cuit, entered in the above entitled case on J anuary 11, 1954. Opinions Below The opinion of the District Court (W. D. Pa.) (R. 29a- 38a") is reported in 112 F. Supp. 209 and 97 U. S. P. Q. 291. * References with suffix “a” are to Appellant's Appendix 1 in certified copy of proceedings in Court of Appeals. 2 The Per Curiam Opinion of the Court of Appeals (R. . . . . is reported in 208 F. (2d) 794 and 100 U.S. P. Q. 259. Jurisdiction The original judgment of the Cireuit Court of Appeals was entered on December 11, 1953. Petition for rehearing | was filed December 30, 1953. It was denied but the judg- ment was amended as to costs, both on January 11, 1954. The jurisdiction of this Court is invoked under 28 U.S. C. 1254 (1). Questions Presented 1. Whether petitioner’s constitutional right to trial by jury under the 7th Amendment was not clearly violated by the District Court in setting aside the jury’s verdict of validity and infringement, amply supported by evidence, merely because the Court disagreed with certain disputed findings of fact. 2. Whether ‘‘invention”’ and ‘‘infringement’’, in a pat- ent infringement suit tried by a jury, are questions of fact for the jury or matters of law solely for the Court. 3. Whether the District Court violated Rule 50 (b) F. R. C. P. by re-examining the facts tried by the jury, such as the factual determinations of ‘‘novelty’’, ‘‘obvious- ness’’ of the patented combination to persons having ordi- nary skill in the art, whether admitted ‘‘variations’’ be- tween the novel patented combination and prior combina- tions produced ‘‘unusual results’? and can be considered ‘*a contribution to the art’’ or merely an ‘‘aggregation’’, whether ‘‘anticipated’’, and whether the accused device had either the ‘‘same’’ or ‘‘equivalent’’ elements as re- cited in claim 1 therefore constituting ‘‘infringement’’, etalk acd — 3 although there is substantial evidence clearly supporting the jury’s factual findings on all of these matters. 4. Whether the District Court, merely by hindsight, may hold a new combination of elements, which the Court admits is different from the prior art, as ‘‘obvious’’ to per- sons having ordinary skill in the art, contrary to the find- ings of the jury, when there is no supporting testimony whatsoever as to obviousness, but abundant testimony showing non-obviousness, including that of petitioner’s three expert witnesses, the Patent Office and respondent’s own prior admission that the combination is the ‘‘world’s most advanced’’ system. Also whether the Court made a fatal error in determining obviousness as of the date the patent issued instead of at the time the invention ‘‘was made,’’ in violation of the Statute (35 U. S. C. 103). 5. Whether the District Court may ignore claims as the measure of the invention and set aside a finding of infringe- ment, even though the accused device falls clearly within the wording of claim 1, by importing unexpressed limita- tions in the claim and treating ‘‘equivalance’’ as a question of law contrary to this Court’s recent decision Graver v. Linde (1950) 339 U. S. 605. Statutes Involved This action was based on 35 U. S. C. former 67 (now 35 U.S. C. 281, 284), Appendix A, infra, which creates, for the patent owner, an ‘‘action on the case’’ to recover ‘‘dam- ages’’ for patent infringement. Statement of the Case Petitioner, Ivan N. Fraver, brought suit on May 6, 1949, against respondent, The Studebaker Corporation, for in- fringement of his patent No. 1,903,037, issued March 28, 4 1933, on a car heating, cooling and ventilating means. ¢Plaintiff’s Exhibit 1, R. 41*, Appendix 2.) Petitioner al- leged that the Studebaker ‘‘Climatizer’’, Plaintiff’s Exhibit 2 (R. 42, 273), a physical exhibit produced by respondent of the accused structure, infringed claims 1, 2 and 3 of his patent. The accused device is also shown in Plaintiff’s Exhibits 14 and 15 (R. 258, 259) and photos of Plaintiff’s Exhibit 2 in Defendant’s Exhibits L to S inclusive. (Part- ly in Appellant’s Appendix 2*.) The case was tried before a jury under the provision of 35 U. S. C. former 67 (Ap- pendix A). The trial lasted almost two weeks and in- cluded the testimony of six expert witnesses, three on each side, whose testimony was in sharp conflict on many issues such as that pertaining to the operation of the accused device, equivalance of operation between petitioner’s and respondent’s devices, definition and application of scientific terms to the accused device, differences between petition- er’s structure and prior patents, whether the patented combination would have been ‘‘obvious’’ to persons hav- ing ordinary skill in the art, whether the patented com- bination produced ‘‘unusual results’’ and could be con- sidered as a ‘‘contribution to the art’’ etc., which factual issues were decisive on the questions of ‘‘validity’’ and ‘‘infringement.’’ The trial involved also tests in open court and demonstrations of working models, Plaintiff’s Exhibits 2 and 13. (R. 42, 273, 242.) After almost two weeks of trial and after being charged by the court concerning validity and infringement (R. 496-520), the jury, in answer to interrogatories prepared by the court, found that claims 1, 2 and 3 were valid and that claim 1 (R. 31la*) was infringed and returned a gen- eral verdict in the sum of $79,250, with costs, in favor of = References R are to record in District Court; Appendix 2 is Petitioner’s (Appellant’s) Appendix in Court of Appeals. 9] petitioner, and judgment was entered on this verdict on October 30, 1952. A motion by respondent, at the close of the trial, for a directed verdict was refused (R. 487-488) and the Court, as stated above, referred the questions of ‘‘validity’’ and ‘‘infringement’’ to the jury for determination. Respond- ent, subsequent to the verdict, filed a motion to set aside the verdict and to enter judgment n. o. v. in its favor. The District Court, months after the verdict and judg- ment, granted this motion and, by its Order and Opinion of May 1, 1953, (R. 29a-38a) set aside the judgment in favor of petitioner and directed entry, instead of a judg- ment in favor of respondent. Petitioner appealed from this action of the District Court. The Court of Appeals for the Third Circuit, by a short Per Curiam opinion of Decem- ber 16, 1953, merely affirmed the District Court without fur- ther opinion. Petitioner filed a timely petition for rehear- ing on December 30, 1953, which was denied on J anuary 11, 1954. Petitioner asks this Court to grant certiorari to review the propriety of the District Court in setting aside the jury’s verdict and granting judgment notwithstanding the verdict. | It is clear from the Opinion of the District Court, that it set aside the jury’s verdict merely because it reweighed the evidence and drew different inferences and conclusions of fact. 6 Reasons Relied on for Allowance of the Writ Summary of Argument 1. The decision of the lower Court is directly in conflict with the decisions of this Court. The District Court re- examined the facts tried by the jury, ignored the evidence strongly supporting the jury’s verdict of validity and infringement, drew contrary inferences and conclusions than the jury on disputed factual issues pertaining to validity and infringement, thereupon set aside the verdict and granted judgment n. 0. v. Such usurpation of the jury’s function as the finder of facts is in direct conflict with the consistent decisions of this Court for more than the past 150 years. Furthermore, the Court’s usurpation of the jury’s func- tion of finding facts clearly deprives petitioner of his right to trial by jury under the 7th Amendment of the Constitu- tion. Moreover, the granting of judgment n. o. v. by the Court was improper and a clear violation of Rule 50 (b) FRCP since, as stated by the rule, a motion for judgment n. o. v. raises only ‘‘legal questions’’, whereas the judge granted this motion to re-examine questions of fact. 2. This Court has consistently held, for more than 150 years, that disputed facts concerning ‘‘validity’’ and ‘‘in- fringement’’, in actions at law, are questions of fact for determination by the jury, and not questions of law for determination solely by the Court. But in spite of this long line of decisions by this Court, the Court below treated these questions as questions of law solely for the Court. But the crucial point in this case is that regardless whether validity and infringement are questions of law or 7 fact, it is nevertheless very clear from the Opinion of the District Court (R. 29a-38a) that it set aside the jury’s ver- dict of validity and infringement merely because it came to different conclusions on factual issues, such as the issue of ‘‘obviousness’’ of the patented combination to persons having ordinary skill in the art, whether admitted ‘“varia- tions’’ between the novel patented combination and prior combinations produced ‘‘unusual results’? and can be con- sidered ‘‘a contribution to the art’’ or merely an ‘‘aggrega- tion’’, whether ‘‘anticipated’’, and whether the accused device had either the ‘‘same”’ or ‘fequivalent’’ elements as recited in claim 1 therefore constituting ‘‘infringement’’. This Court has consistently held each and every one of these issues to be a question of fact but the lower Court com- pletely disregarded this Court’s decisions and acted direct- ly contrary thereto. Another fatal error of the Court is that it considered the question of obviousness of the invention as of **1933”’, the date of issuance of the patent, whereas it is fundamental in patent law, and even provided by Statute (35 U.S. C. 103) (Appendix A), that obviousness should be determined ‘‘at the time the invention was made,’’ namely in 1931. And to make matters even worse there is no testimony in sup- port of the Court’s finding of obviousness at either date. 3. A sharp conflict exists among the various Circuit Courts of Appeal also between certain of them and this Court, concerning the respective functions of Court and jury on questions of validity and infringement. While most circuits have followed the consistent holdings of this Court to the effect that validity and infringement are ques- tions of ‘‘fact’’ for determination by the jury, the Third Circuit recently, step-by-step, has been giving less and less attention to jury verdicts in patent cases. Finally, in the 8 instant case, it has gone ail the way and completely disre- garded altogether the jury’s findings of fact and verdict and treated validity and infringement as questions of ‘‘law’’ solely for the Court. Therefore, unless corrective action is taken by this Court, the Constitutional right to trial by jury will become a mock- ery rather than a fundamental guaranteed right. Presently an utter state of confusion exists among the various cir- cuits, who are torn between the long line of decisions of this Court holding validity and infringement as questions of fact for the jury, and recent cases ignoring this pre- cedent and treating them as questions of law. Much con- fusion in the law started with the recent A & P case (34 O. U.S. 147) wherein, while the majority opinion held inven- tion to be a question of fact, the concurring opinion of Mr. Justices Douglas and Black held that ‘‘the question of validity of a patent is a question of law.’’ Below are cited hopelessly conflicting decisions among the various circuits on this question. This Court, in face of the utter confusion that exists should resolve doubts and conflicts and take a clear stand on this vital question so as to guide lower Courts as to the respective functions of Court and jury on ques- tions of validity and infringement, and thus enable justice to be properly and uniformly administered in the many existing and future patent jury cases that surely will be plagued by this same question. And equally, if not more important than a ruling on the above is a ruling to the effect that regardless of whether these questions are of law or fact, the District Court should not have vacated the Jury’s verdict merely because the Court drew different inferences and conclusions from con- flicting evidence on purely factual issues, such as whether the patented combination would have been ‘‘obvious”’ to 9 persons having ordinary skill in the art, whether it pro- duced ‘‘unusual results’’, whether it constituted a ‘‘con- tribution to the art”’ ete. 4. The evidence, including testimony of three outstand- ing expert witnesses of petitioner and ruling of the Patent Office on exactly the same issue, strongly supports the jury’s verdict of validity and infringement since it shows that petitioner invented a novel combination and arrangement of elements mutually cooperating to provide new and un- usual results as a consequence of the unification or com- bination, constituting a distinct and very outstanding con- tribution to the art of ventilating a motor vehicle, and which completely replaced all existing prior ventilating devices used by respondent in automobiles and made obsolete all existing devices. Evidence of Petitioner’s significant con- tribution to the art includes respondent’s own prior admis- sion in its advertising literature (Pl. Ex. 15, Petitioner’s Appendix 2) that the infringing combination constitutes *‘the world’s most advanced fresh air’? ventilating system. Of course, after respondent was charged with infringement it made an about face and argued that the combination pro- duced no unusual results. The Court accepted this and held that Fraver’s patent disclosed ‘‘unimportant changes’’ (R. 35a). How much can respondent get away with? Peti- tioner’s novel combination and arrangement of elements not only met but exceeded the present requirements, or so called standards, of invention set forth in the Constitution, Statutes and decisions of this Court. Certainly the Con- stitutional intent of ‘“‘encouraging’’ invention was not carried out in this case wherein the Court usurped the jury’s function and made its own findings of fact, resolv- ing every doubt against, instead of for, petitioner. The District Court’s hostile attitude towards trial by jury was 10 best expressed by its statement in open Court that it was ‘‘against’”’ trying this case before a jury. (R. 264-27a.) __ ARGUMENT 1. The Court Improperly Set Aside the Jury’s Verdict Only on Questions of Fact Rather than on Questions of Law thus Violating Rule 50(b) F.R.C.P. and Depriving Petitioner of His Constitutional Right to Trial by Jury. The District Court re-examined the facts tried by the jury, ignored the evidence strongly supporting the jury’s verdict of validity and infringement, and because it drew contrary inferences and conclusions than the jury on factual issues pertaining to validity and infringement, set aside the verdict and granted judgment n. o. v. Thus, the Court violated Rule 50 (b) F. R. C. P. under which respondent’s motion for judgment mn. 0. v. was brought, since it raises only questions of law. Rule 50(b) is quoted in part as follows: ‘*Whenever a motion for a directed verdict is made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have sub- mitted the action to the jury subject to a later deter- mination of the legal questions raised by the motion.’’ Moore’s Federal Practice (2nd Ed.), page 2342 approv- ingly quotes Marsh v. Illinois Central (C. A. 5—1949) 175 F, (2) 498 in which the Court of Appeals stated: ‘“‘A motion for a directed verdict, or for a judgment ~ notwithstanding the verdict under Rule of Civil Pro- cedure 50, raises a question of law only. Whether there is any evidence which, if believed, would authorize a verdict against movant.’’ 11 However, the Court’s grounds for granting this motion are all directed to questions of fact, and not of law. The decision of the District Court also violates the 7th Amendment to the Constitution, whieh provides : ‘*In Suits at common law * * * the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the com- mon law.”’ This provision of the Constitution positively precludes re-examination of facts tried by the jury as done by the Court. U. S. Code, Title 28, Section 2072, which grants this Court the lower to prescribe rules of civil procedure for District Courts, specifically provides: ‘Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.”’ This Court preserved ‘‘inviolate’”’ this right to a jury trial under the Constitution or statute of the United States in Rule 38 F. R. C. P. As evidence of the District Court’s disregard of peti- tioner’s constitutional rights and prejudicial attitude mere- ly because petitioner sought a jury trial, is its declaration in open Court that it is “‘against’’ trying the instant case by a jury (R. 264—R. 27a). But Congress, on the contrary, saw fit, in the New Patent Act of 1952, to emphatically re- affirm a patentees’ Statutory and Constitutional right to trial by jury on questions of validity and infringement (for- mer 35 U. S. C. 67 restated as 35 U. S. C. 281, 284—see Appendix A hereto). 12 In the apt words of Mr. Justice Douglas (Cardozo lec- ture: in 49 Col. Law Rev. 735, 752) the Court adopted ‘‘a philosophy hostile to that reflected in the legislation’’ (also to the decisions of this Court). This Court has always jealously protected a litigant’s right to a jury trial in applicable cases and has consistently given the party who prevailed before a jury the benefit of every doubt in all cases of review. In Parsons v. Bedford et al. (1830) 3 Pet. (28 U. 8.) 433, Justice Story stated: ‘‘The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. * * *’’ In Root v. Lake Shore and Michigan Southern Railway Company (1882) 15 Otto (105 U. S.) 189, 206 this Court said: ««* * * the 7th Amendment forbids any infringement of the right of trial by jury, as fixed by the common law. And the doctrine applies in patent cases as well as others.’’ Later, in Jacob vy. City of New York (1942) 315 U. S. 752, this Court said: ‘“The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.’’ 13 2. The District Court’s Action is Directly Contrary to the Decisions of this Court. This Court has consistently held that lower courts are not permitted to ignore evidence supporting a jury’s ver- dict, reweigh the evidence and set aside a jury’s verdict merely because the jury could have drawn different infer- ences or conclusions, or even because judges feel that other results are more reasonable. In Bailey v. Central Ver- mont Railway, Ine. (1943) 319 U. 8. 350, 353 this Court held: ‘** * * The debatable quality of that issue, the fact that fair-minded men might reach different conclusions, emphasizes the appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue. (Citations omit- ted). To withdraw such a question from the jury is to usurp its functions.’’ And in Tennant v. Peoria & Pekin Union Railway Com- pany (1944) 321 U.S. 29, 35 this Court said: ““* * * Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more rea- sonable.’’ And in Lavender v. Kurn ( 1946) 327 U. S. 645, 653 this Court stated: ‘** * * But where, is here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes appar- ent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’’ 14 - 2(a). This Court has Consistently Held that Validity and Infringement are Questions of Fact for Determina- tion by the Jury. This Court has consistently held, for more than 150 years, that in an action at law for patent infringement the questions of ‘‘invention’’ and ‘‘infringement’’ are ques- tions of fact for determination by the jury, rather than questions of law for determination by the Court. In Hotchkiss v. Greenwood, 11 How. 248 (U. S. 1850) this Court decided that whether an improvement is merely the work of a skilled mechanic or required invention, was a question of fact which was properly submitted to the jury. Other earlier decisions holding ‘‘novelty,’’ ‘‘validity’’ and ‘‘infringement’’ as questions of fact and not of law are Battin v. Taggert, 17 How. 74; 84 (U. S. 1855) ; Bischoff v. Wethered, 9 Wall. 812, 815-6 (U. S. 1870); Turril et al. v. Railroad Co. (1863) 1 Wall. (68 U. S.) 491; Keyes v. Grant, 118 U.S. 25 (1886); and In Thomson Co. v. Ford Motor Co., 265 U. S. 445 (1924) at page 446 this Court stated: ‘‘The question whether an improvement requires mere mechanical skill or the exercise of the faculty of invention, is one of fact; and in an action at law for infringement is to be left to the determination of the jury.’’ Keyes v. Grant, 118 U. S. 25, 36, 37. In Stilz v. United States, 269 U. S. 144, 147 this Court said ‘‘Infringement is a question of fact.’’ This Court, in United States v. Esnault-Pelterie, 299 U.S. 201 (1936) at 295 held: ‘‘Validity and infringement are ultimate facts on which depends the question of liability. In actions of law they are to be decided by the jury.’’ (Citing many Supreme Court cases.) This Court recently, in 1948, affirmed in 338 U. S. 267 the decision of the 9th Circuit Court of Appeals of Faulkner v. Gibbs, 170 F. 2d 34 where the Court of Appeals held at 37: ‘Questions of invention and patent validity are questions of fact * * *”” ‘‘The issue of infringement presents a question of fact.’’ This Court in the recent A & P v. Supermarket case, 340 U.S. 147 (1950) ; 87 U.S. P. Q., at 306, held ‘‘invention”’’ as a finding of fact, saying in the majority opinion: ‘We set aside no finding of fact as to invention for none has been made * * *”? Walker on Patents (Dellers Ed.) page 115 states: ‘*The question of invention is a question of fact and not of law.’’ (Citing many cases.) And on page 1210 Walker states: ‘The question of infringement is one of fact for the jury. (Winans v. Denmead, 15 How. (56 U. S.) 330, 344; Coupe v. Royer, 155 U. S. 565, 575.) ”’ That infringement is a question of fact and not of law was recently reiterated in Graver Tank Mfg. v. Linde Air Products Co., 339 U. S. 605, 609 (1950). Thus, in decision after decision this Court has consistent- ly held that ‘‘invention’’ and ‘‘infringement’’ are questions of fact for the jury and not questions of law for the court. No authoritative judicial holding of this Court can be found holding conflicting evidence as to either invention or infringement as being questions of law for the Court rather than questions of fact for the jury. Nevertheless 16 the lower Court ignored the decisions of this Court and treated ‘‘validity’’ and infringement as questions of law. The present case is distinguishable from such cases as Heraiu v. Rice, 104 U. S. 773, 749 (also Singer v. Cramer, 192 U. S. 265) wherein there was no conflicting evidence or testimony presented. The only question in the Herald case was for the Court to compare the contents of an orig- inal and a reissue patent to see whether or not they were identical,—a matter obvious from the face of the patents. This was considered a matter of law since no extrinsic evi- dence whatsoever was presented, or needed, such as evidence to explain terms of art, or to apply terms to subject matter as in the present case. There was considerable dispute of fact in the instant case concerning the operation of the Climatizer, such as the direction of flow of air when discharged into the chamber (R. 16a, R. 376-377), whether such air in the chamber was stagnant (R. 378) or swirled (R. 130), the air confining effect of the seat support and panels (R. 27a), the heating or cooling effect of the air in the chamber (R. 16a), and other matters pertaining to identity or equivalency of the Climatizer and Fraver chambers, which involved the eredi- bility of various witnesses, and were resolved by the jury in favor of petitioner. The evidence clearly shows that the Climatizer has a ‘‘chamber’’ as in claim 1. (R. 7a, 11a, 16a, R. 331-336.) 2(b). Regardless Whether Validity and Infringement are Questions of Fact or Law, the Particular Findings of the Jury Pertaining to These Issues and which were Set Aside by the Court have been Consistently held by this Court to be Questions of Fact. But, regardless whether validity and infringement are questions of fact or of law, the more important and crucial 17 point in this case is that the specific reasons given by the Court for setting aside the verdict, as clearly apparent from the District Court’s Opinion (R. 29a-38a), are that it arrived at different conclusions and obtained different inferences than the jury from the conflicting testimony given on factual issues. More specifically, the District Court arrived at different factual inferences and conclusions than the jury as to whether the invention, in the words of the Court, was ‘‘ob- vious”’ to those skilled in the art’ (R. 33a); whether the patent claimed a novel combination or an ‘‘aggregation”’ of elements (R. 31a, 35a) involving the consideration of whether the admitted ‘‘variation”’ (R. 32a) between the novel patented combination and the prior art provided *“‘unusual results’’ and constituted a distinct ‘*contribution to the art’’ (R. 35a); and whether the accused device had either the same or ‘‘equivalent’’ elements (R. 37a) as the claimed combination so as to constitute an ‘‘infringement.’’ This Court has consistently held that each and every one of these issues to be a question of fact for the jury and not of law for the Court. The Court, after frankly admitting ‘‘variations’’ be- tween petitioner’s patented combination and the prior art, stated (R. 32a, 33a) that the invention ‘‘in 1933, was ob- vious to those skilled in the art’’. However, the question of whether or not an improvement is ‘‘obvious to those skilled in the art’’ has been consistently held by this Court to be a question of fact for the jury since it involves many factual circumstances surrounding each particular case. In Thomson Co. v. Ford Motor Co., supra, at p. 446 this Court held: ‘‘The question whether an improvement requires mere mechanical skill or the exercise of the faculty 18 of invention is one of fact; and, in an action at law for infringement is to be left to the determination of the jury.’’ (Citing many cases.) In Faulkner v. Gibbs, supra, recently affirmed by this Court (338 U. S. 267), the Court of Appeals held (p. 137): ‘‘The question of whether or not a new and useful combination is the result of mere mechanical skill, or of inventive faculty, is one of fact.’’ The District Court, in vacuo and only with the benefit of hindsight, incorrectly made its own appraisal as to what would have been obvious to persons having ordinary skill in the art in 1933. The Court admitted there are diiferences or ‘‘varia- tions’? (R. 32a, 33a) between the patented combination and the most pertinent prior art, but made its own factual appraisals that they did not constitute a ‘‘contribution to the art’’ (32a) or produce ‘‘new or unusual results.’’ (R. 35a.) This is directly contrary to the evidence including the position of the Patent Office on the same issue, and even to respondent’s own admissions, as will be specifically set forth under title 4, infra. These issues are clearly factual issues for the jury. Not only did the Court err by usurping the jury’s func- tion of determining the factual question of ‘‘obviousness,’’ but made the further fatal error of making this deter- mination at the wrong time, namely ‘‘in 1933’’ (R. 32a, 33a), the issue date of the patent, instead of 1931, the date the invention ‘‘was made”’ as provided by statute 35 U.S. C. 103, which summarizes existing patent law on the subject of what constitutes invention. (Appendix A.) It will also be seen from this provision of the statute that the question of invention turns largely on whether or not ‘‘the subject 19 matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.’’ Therefore the Court’s determination of obviousness ‘‘in 1933”? is directly contrary to the statute. The District Court stated that another issue was ‘‘to determine whether it (the patented invention) is a com- bination which produces a new and unusual result or is simply an ‘aggregation.’ ’’ (R. 31a.) But this Court has consistently held that the question of invention as distinguished from mere aggregation and the question of whether prior patents or publications antici- pate a patent as being questions of fact. More specifically, this Court affirmed Faulkner vy. Gibbs, C. A. 9, 1948, supra, wherein the Court of Appeals stated at 37: ‘*What constitutes inventién as distinguished from mere aggregation, is a question of fact * * *, ‘‘Whether prior art patents or publications disclose or anticipate the subject matter of a patent in issue is deemed as a question of fact.” This Court in affirming (338 U. S. 267) said: ‘“‘the patent was sustained because of the fact of combination rather than the novelty of any particular element.”’ That ‘‘anticipation’”’ is a question of fact was also held in Haines v. McLaughlin, 135 U. S. 584; Battin v. Taggert and Bischoff v. Wethered, and Turril v. Railroad, of this Court, swpra. And in Tucker v. Spalding, 13 Wall (80 U.S.) 453 this Court, reversing the lower Court for making its own comparison of the patent and prior art said, in reversing (p. 456): ‘*This court has no more right than the court below to decide that the one patent covered the invention of 20 the other, or that it did not; and it is obvious that extended argument here, to prove such general resem- blance as would require the submission of both patents to the jury, might prejudice the plaintiff’s case on the new trial which must be granted.’’ The Court usurped the jury’s function in determining ‘‘infringement’’ which, as shown by the above quoted deci- sions, under title 2(a), has been consistently held by this Court to be a question.of fact for determination by the jury. The Court made the further error of incorrectly determining infringement by disregarding the claims as the measure of the invention and by artificially importing unexpressed limitations in the claims, such as the limita- tion that the chamber is ‘‘relatively air tight’. (R. 34a.) This language does not even appear in the specification. Actually claim 1 is clearly readable on the aceused device therefore infringed since each element therein finds its exact counter-part in the Climatizer as testified by three expert witnesses of petitioner. The' proper test of infringe- ment was recently stated by this Court in Graver v. Linde, 339 U. S. 605 (1950) on page 607:° ‘‘TIn determining whether an accused device or com- position infringes a valid patent, resort must be had in the first instance to the words of the claim. If the accused matter falls clearly within the claim, infringe- ment is made out and that is the end of it.’’ By this test the Climatizer clearly infringes,—but the District Court ignored this Court’s decision. The Court then went on to say ‘‘since no substantially airtight chamber or its equivalent is embodied in the ac- cused structure, there is no infringement.”’ (R. 37a). Thus the Court not only rewrote the claim by importing un- expressed limitation ‘ xesoa oe 7,9 Singer Manufacturing Company v. Cramer, (1904) Sk eS 0 ieee s One Lakes orbs meen 9 Western Electric Co. v. Robertson et al., (2 Cir., SD ME OR oe boc veda ess swodcnivecice a Supreme Court of the United States OCTOBER TERM, 1953 NO. 672 IVAN N. FRAVER, Petitioner, Vv. THE STUDEBAKER CORPORATION, Respondent. BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Opinions Below The opinion of the District Court for the Western District of Pennsylvania is reported at 112 F. Supp. 209. The opinion of the Court of Appeals for the Third Circuit is reported at 208 F. 2d 794. Jurisdiction Respondent admits the jurisdiction of this Court under 28 U.S.C., Section 1254 (1). The Questions Presented Petitioner’s statement of questions allegedly pre- sented by the record is grossly misleading, particularly as regards the action taken by the District Court and the bases or reasons for that action. The only question Brief for Respondent in Opposition to Petition. stated by petitioner not subject to this criticism is No. 2; but that question is purely academic in this record. In reality, petitioner is merely seeking review by this Court of adverse decisions by a Master, the District Court and the Court of Appeals in an ordinary patent infringement action in which his patent was held invalid and not in- fringed by respondent. The only question presented is whether the Court of Appeals erred in sustaining the action of the District Court in granting respondent’s motion under Rule 50(b) of the Federal Rules of Civil Procedure for judgment not- withstanding the verdict where the Court was of the opin- ion that, as a matter of law, petitioner’s patent was in- valid and, even if valid, not infringed. The decision of the Court of Appeals is not in conflict with any decision of any other Court of Appeals. It is in full accord with and not in conflict with the applicable decisions of this Court. It does not involve a question of Federal law which has not been settled by this Court, and it does not so depart from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s power of supervision. Statement of the Case Petitioner’s “Statement of the Case” incorrectly and incompletely states the proceedings below. Petitioner filed an action against respondent for in- fringement of patent No. 1,903,037, which issued March 28, 1933 and which had expired before trial. The patent relates to a car heating, cooling and ventilating apparatus which had not been adopted or used by anyone during iz 3 Brief for Respondent in Opposition to Petition. the entire life of the patent. Petitioner asked for a jury trial. On the ground that the action was complicated, the District Court referred the matter to a Special Master, an eminent member of the patent bar upon whom the parties agreed for the purpose. After a full hearing, the Special Master reported that petitioner’s patent was in- valid and not infringed by respondent and recommended that the action be dismissed. The action later came on for trial before a jury and the Special Master’s report was read to the jury. Both parties adduced additional evidence and, at the conclusion of ali of the evidence, respondent moved that a verdict be directed in its favor on the grounds that the patent was invalid and that re- spondent had not infringed. That motion was denied and the case was submitted to the jury. The jury found that Claim 1 of petitioner’s patent was valid and had been infringed. Respondent seasonably moved that the ver- dict and judgment thereon be set aside and that judgment be entered for respondent in accordance with its motion for a directed verdict. After oral argument and exhaus- tive briefs, respondent’s motion for judgment n.o.v. was granted on May 1, 1953, pursuant to an opinion filed simul- taneously by the Honorable Rabe F. Marsh, in which he held, as a matter of law, that Claim 1 of petitioner’s patent was invalid and not infringed. Contrary to petitioner’s assertions, the District Court did not have to weigh the credibility of witnesses or any dispute as to the meaning of scientific terms. The issue of validity required nothing but the comparison of writ- ten documents, namely, the plaintiff’s patent with prior patents and trade publications, the authenticity of all of which was admitted. The evidence on infringement, con- Brief for Respondent in Opposition to Petition. sisting of plaintiff’s patent and the defendant’s admitted structure, was not confliciing, except, as the District Court stated, in an interpretive sense and there was but one reasonable conclusion as to the proper verdict. Petitioner appealed to the Court of Appeals for the Third Circuit, which affirmed the District Court’s action in granting the motion for judgment n.o.v. Argument. Contrary to petitioner’s contentions, the action of the Courts below in this case is in direct accord with applicable decisions of this Court and various Courts of Appeals. It is well established that, in the Federal Courts, the trial judge should direct the jury’s verdict whenever the evidence is such that, without weighing the credibility of witnesses, there can be but one rea- sonable conclusion as to the verdict, or, as it is some- times stated, that the trial judge should direct the ver- dict whenever the evidence preponderates so strongly in favor of one side that a verdict for the other, in the exercise of sound judicial discretion, would be set aside as against the manifest weight of the evidence: Brady v. Southern Railway Co., (1943) 320 U.S. 476, 479-480; Pennsylvania Railroad Co. v. Chamberlain, (1933) 288 U.S. 333, 343; Pennsylvania R. Co. v. Martin, (3 Cir., 1901) 111 Fed. 586, 589. On the issue of validity, it was the duty of the Dis- trict Court to keep the jury’s findings within reasoned rules and standards: Capital Traction Company v. Hof, (1899) 174 U.S. 1, 13-16. It was the duty of the District Court to see that the proper standard of invention was applied, as a matter of law, and this is exactly what the — Br eosin % oe. Perr eat hare Slee r r aa . * ” P ™ 7 ™ = . a Srareeerneyanye cone SPRITES NESS NRL pMUERERENRIEN [REC eeemncnEemeameenes maneede” | NBS Bis eian tn 5 Brief for Respondent in Opposition to Petition. District Court did. In its opinion, the District Court stated (p. 211): “Therefore, when we scrutinize the patent broadly as plaintiff would have it done, it is evi- dent in the light of the prior disclosures, that the standards of invention were not met and that his patent was anticipated, lacks novelty, and, in 1933, was obvious to those skilled in the art.” With reference to the other possible construction, the District Court stated (p. 212) : “Thus when plaintiff’s combination patent is scrutinized under the strict construction, it con- tinues to appear that no distinct contribution has been made in the art of car ventilating and that no new or unusual result or invention has been shown. Therefore, as a matter of law, the verdict based on that construction should be set aside.” As early as 1884, this Court, in Mahn v. Harwood et al., 112 U.S. 354, held the question of validity or “pat- entable invention” to be a matter of law for the Court. In that case, the Court stated (pp. 358-59) : “In cases of patents for inventions, a valid de- fence not given by the statute often arises where the question is, whether the thing patented amounts to a patentable invention. This being a question of law, the courts are not bound by the decision of the commissioner, although he must necessarily pass upon it. See Brown v. Piper, 91 U.S. 37; Glue Co. v. Upton, 97 U.S. 3; Dunbar v. Myers, 94 U.S. 187, 197-199; Atlantic Works v. Brady, 107 U.S. 192,. 199; Slawson v. Grand St. Railroad Co., 107 U.S. 649, 652; King v. Gallun, 109 U.S. 99, 101.” HEE NRTA ROL SY RTE CR MRIS IN RG RIE BA EES OR GN EI x 2 Brief for Respondent in Opposition to Petition. The latest pronouncement on this subject by this Court is in Great Atlantic & Pacific Tea Co. v. Supermar- , ket Equipment Corporation, (1950) 340 U.S. 147, in which this Court reversed concurrent holdings of the Courts below on the question of patentable invention, holding that the lower Courts’ decisions on the issue “cannot stand as a matter of law.” This Court held , that the lower Courts had failed to apply the proper “standard of invention.” In the concurring opinion of Mr. Justice Douglas and Mr. Justice Black, it was pointed out that this standard of patentability is a con- stitutional standard and, hence, a question which must be decided by the Court. In this connection, the concur- ring opinion states (pp. 155-56) : “The standard of patentability is a constitu- tional standard; and the question of validity of a patent is a question of law. Mahn v. Harwood, 112 U.S. 354, 358. * * * The Court now recognizes what has long been apparent in our cases: that it is the ‘standard of invention’ that controls. That is pres- ent in every case where the validity of a patent is in issue. It is that question which the Court must decide. No ‘finding of fact’ can be a substitute for it in any case. The question of invention goes back to the constitutional standard in every case. We speak with final authority on that constitutional issue as we do on many others.” The decisions of the lower Courts in the case at bar are not in conflict with pertinent decisions of other Courts of Appeals. This is shown by: Himes v. Chadwick, (9 Cir., 1952) 199 F. 2d 100; FREON G BEP INE NS ELE RENN REIS 1h PISO OAD SRNR FELT S AMT TE aaNTS a i a Oe 7 Brief for Respondent in Opposition to Petition. Cutter Laboratories, Inc. v. Lyophile-Cryochem Corp., (9 Cir., 1949) 179 F. 2d 80; Fischer & Porter Co. v. Brooks Rotameter Co., (D.C. E.D. Pa., 1952) 107 F. Supp. 1010; Packwood v. Briggs & Stratton Corp. et al., (3 Cir., 1952) 195 F. 2d 971; Patent Scaffolding Co., Inc. v. Upright Inc. et al., (9 Cir., 1952) 194 F. 2d 457; Ryan Distributing Corp. v. Caley, (3 Cir., 1945) 147 F. 2d 138; Mcllvaine Patent Corp. v. Walgreen Co. et al., (7 Cir., 1943) 138 F.2d 177, 44 F. Supp. 530; Connors et al. v. Ormsby, (1 Cir., 1906) 148 Fed. 13. The action of the lower Courts in entering judgment mn. 0. v. on the issue of infringement is likewise in accord with the applicable decisions of this Court. On this issue, the District Court stated ( pp. 212-13) : “But assuming, as the jury found, that the pat- ent as strictly construed by the court was valid, we believe it would still be necessary to enter judgment n. Oo. v. for the defendant for the reason that the evi- dence does not warrant a verdict of infringement. See Black Diamond Coal Mining Co. v. Excelsior Coal Co., 1895, 156 U.S. 611, 15 S. Ct. 482, 39 L. Ed. 553; Singer Mfg. Co. v. Cramer, 1904, 192 U.S. 265, 24 S. Ct. 291, 48 L. Ed. 437; Ryan Distributing Corp. v. Caley, 147 F. 2d 138, supra; Western Electric Co. v. Robertson, 2 Cir., 1905, 142 F. 471; Hurin v. Electric Vacuum Cleaner Co., 6 Cir., 1924, 298 F. 76; McRos- Rar a : - Brief for Respondent in Opposition to Petition. key v. Braun Mattress Co., 9 Cir. 1939, 107 F. 2d 143; Fischer & Porter Co. v. Brooks Rotameter Co., 107 F. , Supp. 1010, supra. The principle to be gathered from these cases is that where the credibility of witnesses is not involved, the meaning of scientific terms is not in substantial dispute, and the evidence on in- fringement is not conflicting, except in the interpre- ? tive sense, the question of infringement, even though one of fact, is for the court and not for the jury. We think such a case is presented here.” As is apparent from the above quotation, the District ' Court predicated its action on this Court’s decision in Black Diamond Coal Mining Company v. Excelsior Coal Co., (1895) 156 U.S. 611, in which this Court held (p. 618) : “For the reasons given above, we think the court erred in its interpretation of the patent. If there was any invention at all disclosed, it was in the use of the re- servoir and the screening device, and without ex- presssing an opinion upon this point of patentability, it is clear that no infringement was involved in the use of defendant’s hopper and chute, with or without a solid bottom, if for no other reason, because it lacked the reservoir of the plaintiff’s patent. “There was no question to go to the jury in the case, and the court should have directed a verdict for the defendant.” Thus it is clear that this Court, as early as 1895, held that, where the evidence does not warrant a verdict of infringement, it is within the power of the Court to direct a verdict for the defendant. iY Mite carota pr ees mena mexneen . . ewer " oe Ad BELIY LAG BN FOE PARTON ORT E REN tht RS AE AES Ae ame ethene ER Pate ior Aah nt kt gy seeeenenten . ’ . - all OP ERT BLY ; ae AE yan LOD ERNE oc Slr 9 Brief for Respondent in Opposition to Petition. The District Court also relied upon this Court’s deci- sion in Singer Manufacturing Company v. Cramer, (1904) 192 U.S. 265, wherein the Court stated (p. 275) : “As in each of the patents in question it is apparent from the face of the instrument that extrinsic evi- dence is not needed to explain terms of art therein, or to apply the descriptions to the subject matter, and as we are able from mere comparison to comprehend what are the inventions described in each patent and from such comparison to determine whether or not the Diehl device is an infringement upon that of Cramer, the question of infringement or no infringe- ment is one of law and susceptible of determination on this writ of error. Heald v. Rice, 104 U.S. 737; Market Street Cable Ry. Co. v. Rowely, 155 U.S. 621, 625.” That the District Court’s action is in accord with applicable decisions of the various Courts of Appeals is apparent from the following cases: Himes v. Chadwick, (9 Cir., 1952) 199 F. 2d 100; Patent Scaffolding Co., Inc. v. Upright, Inc. et al., (9 Cir., 1952) 194 F. 2d 457; Ryan Distributing Corp. v. Caley, (3 Cir., 1945) 147 F. 2d 138; McIlvaine Patent Corp. v. Walgreen Co. et al., (7 Cir., 1943) 138 F. 24177; 44 F. Supp. 530; McRoskey v. Braun Mattress Co., (9 Cir., 1939) 107 F. 2d 143, 147; Western Electric Co. v. Robertson et al., (2 Cir., 1905) 142 Fed. 471; Hurin v. Electric Vacuum Cleaner Co., Inc., (6 Cir., 1924) 298 Fed. 76. 10 Brief for Respondent in Opposition to Petition. In his brief, petitioner has devoted many pages to an argument to the effect that the evidence supports the jury’s verdict on the issues of validity and infringement. We shall not trouble the Court to reply to petitioner’s arguments in this regard, since it is clear that the action of the District Court and the Court of Appeals is in accord with the applicable law as enunciated by this Court and , that no real ground for review exists. Conclusion We submit that the petition for a writ of certiorari should be denied. Respectfully submitted, WILLIAM H. ECKERT WILLIAM H. WEBB Attorneys for Respondent. JOHN A. DIENNER EDWARD C. GRELLE, Of Counsel. Office - Supreme Bi i. MAY 6 | HAROLD B. WIL In THE Supreme Court of the United States OCTOBER TERM, 1953 NO. 672 IVAN N. FRAVER, Petitioner, v. THE STUDEBAKER CORPORATION, - Respondent. REPLY BRIEF FOR PETITIONER WILLiAM J. RUANO, Counsel for Petitioner. _ 1530 Park Building, Pittsburgh 22, Pennsylvania. ————————————————————— SMITH BROS. CO. INC., LAW PRINTERS, 434-436 BLYD. OF ALLIES, PITTSBURGH 1, PA, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2121%3A1. Public record. Not legal advice.