Petition for a Writ of Certiorari — U. S. Dairies Sales Corp. v. Mojonnier Dawson Co. (No. 962)

IN THE

Supreme Court of the United States

Ocroser Term, 1957.

we. 962 |

U. S. DAIRIES SALES CORPORATION, PURITY

PACK CORPORATION, MILK CONTAINER EQUIP-

MENT CORPORATION, MAURICE J. BRASILE, np

EUGENE BLUM,

Petitioners,

vs.

THE MOJONNIER DAWSON COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

Vincent O’Brien,

Ricuarp KE. Vouanp,

Trp J. Friruis,

105 South La Salle Street,

Chicago 3, Illinois,

Counsel for Petitioners.

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Statute and Court Rules involved................... 3

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Reasons for granting the writ...................... x

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Appendix A—Statutes and Court Rules............. 11

Appendix B—Opinion below ...................0... i3

Appendix C—Judgment below ..................... 33

CITATIONS.

Cases.

Colgate-Palmolive Company, et al. v. Carter Products,

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Schreyer, et al. v. Casco Products Corp., 190 F. (2d)

i ee ee cei ti deetda ny sos aks Gies e046 560. 4

Statutes.

Act of June 25, 1948, c. 646, 62 Stat. 931, 28 U.S.C.

Ie Ce rey aL U ace cagebene«isakdeenuh win 2,3

Miscellaneous.

Fed. Rules Civil Procedure, § 52(a) following Title 28,

ee ee CL ne ban whee ees 2,7,8

Supreme Court of the United States

Ocroper Term, 1957.

No. ececcecscescasecccoqrese

U. 8. DAIRIES SALES CORPORATION, PURITY

PACK CORPORATION, MILK CONTAINER EQUIP-

MENT CORPORATION, MAURICE J. BRASILE, anv

EUGENE BLUM,

Petitioners,

v8.

THE MOJONNIER DAWSON COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court:

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Seventh Cirenit, entered in the above-entitled case on

January 15, 1958.

CITATIONS TO OPINIONS BELOW.

The memorandum opinion of the district court (R. 1168-

1170) appears in 142 F. Supp. 385. The opinion of the

Court of Appeals, printed in Appendix B hereto, is re-

ported in 251 F. (2d) 345 (Adv. Shts. No. 2. March 17,

1958).

JURISDICTION.

The judgment of the Court of Appeals was entered on

January 15, 1958. (Appendix B,) A timely petition for

rehearing, filed January 30, 1958, was denied on February

13, 1958. The jurisdiction of this Court is invoked under

62 Stat. 928, 28 U. S. C., Section 1254(1).

QUESTIONS PRESENTED.

1. Whether a Court of Appeals, despite Rule 52(a) of

the Federal Rules of Civil Procedure, may totally disregard

findings of fact made by a District Court without hold-

ing said findings to be clearly erroneous.

2. A claim for unfair competition and ‘‘aggravation

of infringement’’ (Count III) was joined with a claim for

patent infringement (Count I). Supposing Count III to

be dependent on a finding o” infringement, the district

judge before trial, on motion of defendants, ordered a sep-

arate and prior trial of Count I. At the trial, over the

objection of defendants, plaintiff asked and was granted

leave to try both claims concurrently, although the factual

situations were not closely related. The district court held

the patent iny*lid, making no decision on infringement.

Count III, as an independent cause of action, was de-

termined on the merits in favor of defendants, the court

holding that there was no unfair competition. On appeal,

the Court of Appeals held the patent valid and remanded

the cause for determination of the issue of infringement:

(a) Whether, under such circumstances, the judgment

of the district court dismissing Count III on the merits

should be reversed and that claim remanded for retrial, on

the sole ground that the Court of Appeals believes, as de-

fendants unsuccessfully contended at the trial, that

Count ITI is dependent on a finding of infringement and

3

should be de*ermined after decision on infringement, al-

though the point was not urged by respondent on appeal.

(b} Whether, under such circumstances, if the court

below correctly reversed the judgment dismissing Ceunt

III and remanded the cause for retrial as a claim dependent

on the issue of infringement, it was an abuse of discretion

for the court below to tax against petitioners’ costs on

appeal attributable to review of said judgment of dismis-

sal. Ere tics

3. “Whether the court below erred in holding respond-

ent’s patent valid.

STATUTE AND COURT RULES INVOLVED.

The statutory provision involved is the Act of June 25,

1948, 62 Stat. 931, 28 U. S. C., § 1338. The Court Rule

involved is Fed. Rules Civ. Procedure, § 52(a), following

Title 28 U. S. C. A. They are printed in Appendix A,

infra, pp. 11-12.

STATEMENT.

This action was tried before District Judge John P.

Barnes without a jury upon a complaint in two counts—

Count I claiming infringement of United States Reissue

Patent No. 23,830, and Count III charging unfair com-

petition and ‘‘aggravation of the infringement.’’ Jvuris-

diction of the district court was invoked under 62 Stat.

931, 28 U. S. C., § 1338. At the close of plaintiff’s case,

the trial judge dismissed the action as to all defendants

excepting petitioners (hereinafter referred to as ‘‘defend-

ants’’). (R. 1164-1168.)

Some two months before the trial, on motion of defend-

ants, the district judge entered an order (R. 59) directing

that the issues relating respectively to Counts I and III

be heard separateiy and in that sequence. This order was

4

predicated on the assumption that plaintiff's claim under

Count III was dependent on the patent being held valid

and infringed. (Fg. 19, R. 1176.) Throughout the first

days of trial plaintiff persistently failed to comply with

this order and sought to persuade the court to permit

plaintiff to proceed concurrently with its proofs under

both counts. (R. 86, 113-114, 117-119, 263-269.) In this

connection plaintiff relied (R. 118) on Schreyer, et al. v,

Casco Products Corp., 190 F. (2d) 921 (CA 2, 1951) and

Colgate-Palmolive Company, et .«. v. Carter Products,

Inc., et al., 230 F. (2d) 855 (CA 4, 1956), in both of which

there were joined with claims of patent infringement claims

of unfair competition upon which a separate recovery

could be had even though the patent should be held invalid

or not infringed.

Finally, on the fourth day of trial, at the insistence of

plaintiff, over the objections of defendants, the district

judge reversed his pretrial order and ruled that the man-

ner of procedure which it required need not be followed.

(R. 266; Fg. 8, R. 1172.) Thereafter plaint'‘f continued to

present its evidence relating to Counts I and III concur-

rently and both counts were fully litigated. None of the

evidence offered by plaintiff was excluded.

In consequence of departure from the pretrial order, as

the district judge found (Fg. 19, R. 1176), the trial of the

cause consumed approximately sixteen trial days. Of this

total, approximately 11 days were devoted to plaintiff’s

evidence in chief and rebuttal, including approximately 4

_days devoted to plaintiff’s proofs on matters germane

~ only to Count Ti.

After the conclusion of the trial, the district judge filed

a memorandum of decision (R. 1168-1170) holding first

that there was no vufair competition on either side. In

this connection the district judge commented that ‘‘both

sides did what human beings usually do under those cir-

5

cumstances, nothing more.’’ Turning next to the patent

issues, the memorandum held the patent invalid in its en-

tirety on the ground of unpatentable aggregation. By

reason of the holding of invalidity, ihe memorandum did

not decide the issue of infringement.

Subsequently this memorandum was implemented by

the entry of detailed findings of fact and conclusions of

law. (R. 1165-1177.) Based on these findings and con-

clusions, an order of judgment was entered February 21,

1956 dismissing Counts I and III for want of equity.

(R. 1178.)

Fact findings 10, 11, 12 and 13 (R. 1173-1174) related

solely to the issues of fact raised by Count III, and

resolved each and every such issue against plaintiff.

Plaintiff appealed from the aforementioned judgment

to the Court of Appeals. This appeal was docketed as

No. 11784 in the court below. Although error was assigned

on the failure of the district court ‘‘to recognize the fact

that Count Ili * * * is essentially a charge of patent

infringement * * * and not ° * * a separate cause of unfair

competition’ (Pt. 29, R. 1191), this point was not urged

or even mentioned in rlaintiff’s brief on the appeal.’

Moreover, in respect to Count III, plaintiff’s brief made

no attempt whatever to show that the findings of fact

of the district court relating to Count III were not sup-

ported by substantial evidence in the record. The only

reference to these findings in plaintiff’s brief appears at

page 24 in the statement of ‘‘The Contested Issues,’’

where these findings are falsely characterized as relating

not to Count ITI but to certain defenses to Count I, which

defenses the district court expressly did not determine.

(R. 1177.) The only argument of plaintiff relating to

Count III appears at pages 62 to 69 of its brief where,

1. Copies of the briefs below have been certified and delivered

to the Clerk of this Court.

6

without any reference to the findings on that count, plain-

tiff alludes \» portions of its own evidence which, it is

urged, show that the trial judge erred in his memorandum

of decision in saying that there was no unfair competi-

tion on either side.

Defendants, at page 47 of their brief in the court below,

pointed out that plaintiff had wholly failed to make any

showing that findings 10, 11, 12 and 13 were clearly

erroneous.

The Court of Appeals reversed the judgment appealed

from as to both Count I (the patent claim) and Count

III (the claim of unfair competition). (App. B, imfra

pp. 29, 30.) As to Count I, the court below held the patent

valid and remanded the cause to the district court for

further proceedings, directing that as a part of said pro-

ceedings the issue of infringement be determined.

The decision of the court below respecting Count III

is contained in a single paragraph of its opinion. (App.

B, infra, pp. 29-30.) Nowhere in this decision is any con-

sideration given or reference made to the fact findings of

the district judge. Indeed, it would appear that the court

below wholly overlooked or disregarded the findings in

question. The decision recites that the district court con-

cluded as a matter of law that defendants had not engaged

in any act of unfair competition toward plaintiff, and then

adds: ‘‘ However the court did not set forth a basis of fact

for this conclusion.’’ Relying, apparently, on this plainly

erroneous assumption, the court below reversed the judg-

ment of the district court dismissing Count III for want of

equity and remanded the cause for a retrial, ‘‘at which time

the court’s decision as to infringement should have been

made and be available for consideration by the court.’’

The last-quoted statement from the decision of the court

below perhaps indicates that as a cumulative reason for

7

reversal and remandment the court below viewed Count

III as having been prematurely decided by the district

court, that is to say, as a dependent claim which should

not have been tried except in pursuance of a prior holding

that the patent was valid and infringed. This, of course,

was precisely the position for which defendants had con-

tended unsuccessfully at the trial and which plaintiff had

prevailed upon the district judge to abandon.

Not only did the court below thus remand Count III

for retrial, but, in the concluding paragraph of its deci-

sion, it directed that ninety per cent of plaintiff’s costs

on appeal in cause No. ‘11784, including costs attributable

to review of the judgment dismissing Count ITI, be taxed

against defendants.

A timely petition for rehearing was filed by defendants,

which was directed solely to that portion of the decision

of the Court of Appeals relating to Count III. This

petition invited the attention of the court to findings 10,

11, 12 and 13 of the district judge, and pointed out that

plaintiff had wholly failed to make any showing that these

findings were clearly erroneous within the meaning of

Rule 52(a) of the Federal Rules of Civil Procedure. It

further pointed out that if the court below regarded

Count III as a claim dependent on the paient being held

valid and infringed, then the court to this extent was

upholding the position for which defendants had con-

tended unsuccessfully at the trial, and that under such

circumstances it was manifestly unjust that defendants

should be put to the expense of relitigating the identical

issues previously tried and be forced to pay the costs

of an appeal occasioned solely by error induced by plain-

tiff. The petition for rehearing asked that the judgment

of the district court dismissing Count III be affirmed or

in the alternative that the opinion of the court below be

modified so as to make clear that findings 10 to 13 were

mot set aside and would be conclusive on a retrial of all

matters of fact therein determined. It frrther asked

that the award of costs be modified so that defendants

be not required to bear such costs to the extent that they

were attributable to review of the district court’s judg-

ment on Count III.

This petition for rehearing was denied without com-

ment.

If the decision of the Court of Appeals as to Count

III was based on the assumption that the district court

had failed to make findings of fact, this decision was

plain error. And in view of the fact that the attention

of the court was invited ¢o these findings by timely peti- -

tion for rehearing, it is apparent that the court chose to

disregard these findings, despite the requirement of Rule

52(a) of the Federal Rules of Civil Procedure.

Surely there is no reason to reverse the judgment of

the district court and to remand Count III for a new trial

merely because the trial judge adjudicated Count III as

a separate cause for unfair competition. If this was error

on the part of the district judge, it was error invited by

the plaintiff and which plaintiff did not argue in the court

below as a ground for reversal. Moreover, there is noth-

ing in the record to warrant the Court of Appeals in

assuming, if it did, that such error was prejudicial.

Under either theory of decision, it is submitted that

the action of the Court of Appeals in reversing the judg-

ment of the district court and remanding the cause for

a new trial is such a departure from the accepted and

usual course of judicial proceedings as ‘> call for an

exercise of this Court’s power of supervision. The effect

of the decision of the court below is to impose upon the

For the foregoing reasons, we submit that this petition

should be granted, and that this Court's writ of certiorari

should issue to the Court of Appeals for the Seventh

11

APPENDIX A.

1. 62 Stat. 931, 28 U.S.C., § 1338.

§ 1338. Patents, copyrights, trade-marks, and unfair

competition.

(a) The district courts shall have original jurisdiction

of any civil action arising under any Act of Congress re-

lating to patents, copyrights and trade-marks. Such juris-

diction shall be exclusive of the courts of the states in

patent and copyright cases.

(b) The district courts shall have original jurisdiction

of any civil action asserting a claim of unfair competition

when joined with a substantial and related claim under the

copyright, patent or trade-mark laws. June 25, 1948, c.

646, 62 Stat..931.

2. Fed. Rules Civ. Procedure, § 52(a) following Title 28

U.S.C.A.

Rule 52. Findings by the Court.

(a) Effect. In all actions tried upon the facts without

a jury or with an advisory jury, the court shall find the

facts specially and state separately its conelusions of law

thereon and direct the entry of the appropriate judgment ;

and in granting or refusing interlocutory injunctions the

court shall similarly set forth the findings of fact and

conclusions of law which constitute the grounds of its action.

Requests for findings are not necessary for purposes of

review. Findings of fact shail not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the credibility

of the witnesses. The findings of a master, to the extent

12

that the court adopts them, shall be considered as the find-

ings of the court. If an opinion or memorandum of deci-

sion is filed, it will be sufficient if the findings of fact and

conclusions of law appear therein. Findings of fact and

conclusions of law are unnecessary on decisions of motions

under Rules 12 or 56 or any other motion except as provided

in Rule 41(b). As amended Dec. 27, 1946, effective March

19, 1948.

13

APPENDIX B.

In tHe Unirep States Court or APPEALS

For the Seventh Circuit.

Nos. 11784-85-86.

SEPTEMBER TERM, 1957, JANUARY Session, 1958.

Tut Mosonnier Dawson Company,

an Illinois corporation,

Plaintiff-A ppellant,

v8. No. 11784,

U. S. Darnres Sates Corporation,

et al.,

Defendants- Appellees.

Tue Mosonnrer Dawson Company,

an Illinois corporation,

Plaintiff-Appellee,

vs. No. 11785,

U. S. Darries Sates Corvoration,

et al.,

Defendanis-A ppeliants.

THE Mosonnier Dawson Company,

an Illinois corporation,

Plaintiff-A ppellee,

v8. No. 11786,

U.S. Finuer Equipment, Inc., ef al.,

Defendants- Appellants.

a |)

January 15, 1958.

(

Appeals from the

United States Dis-

trict Court for the

Northern District

of Illinois, Eastern

Division.

Before Finnecan, SCHNACKENBERG and Hastinos, Circuit

Judges.

ScHNACKENBERG, Circuit Judge. In count I of its second

ameuded complaint, filed September 27, 1954, plaintiff al-

14

leged infringement by defendants’ of claims 1, 6 and 7

of Mojonnier United States reissue patent No. 23,830, and,

in count Ili, alleged unfair competition and aggravation

of the infringement by defendants.

The Brasile defendants filed an answer, denying in-

fringement, and a counterclaim charging plaintiff with

unfair competition, to which plaintiff filed an answer. The

Lewis defendants also, answered.

The case was tried on these pleadings. At the close of

plaintiff’s case, the court dismissed the action as to the

Lewis defendants.

At the close of all the evidence, the court held that the

patent was invalid in its entirety and that there was no

unfair competition by either plaintiff or the Brasile de-

fendants. The charge of infringement and various de-

fenses advanced were not decided.

The patent in suit, issued to Albert B. Mojonnier, and

assigned to plaintiff, recites that it relates to mechanisms

for dispensing milk, whipping cream, beverages, syrup,

paint, shellac, hand lotion, cosmetics, insecticides, powders,

drugs, and other free-flowing fluids and comminuted ma-

terials, and more particularly to mechanisms for dis-

pensing such free-flowing materials into containers.

Plaintiff’s brief asserts that the Mojonnier machine is

especially designed for repetitive production filling in com-

1. The defendants in the above-captioned appeals from the

district court are:

U. S. Dairies Sales Corporation, Purity Pack Corporation,

Milk Container Equipment Corporation, Maurice J. Brasile,

and Eugene Blum, as a group sometimes herein referred to as

‘*Brasile defendants’’, and

U.S. Filler Equipment, Inc., U. 8. Carton Forming Corpora-

tion, Paper Pack Corporation, Pack Equipment Corporation,

and Albert A. Lewis, as a group sometimes herein referred to

as ‘‘Lewis defendants’’.

All, except the individuals named, are Illinois corporations.

2

15

mercial plants where the filling operations require a high

degree of accuracy in the quantity dispensed at each filling

and where the cost of such filling operations is important,

and, further, that this machine is of particular utility in

the dairy industry for filling milk into wax or paraffin-

treated paper cartons commonly known as ‘‘paper car-

tons’’; also in the aerosol industry for filling chemicals,

propellants and products into the so-called aerzzal ‘‘bombs”’

for spraying or dispensing insecticides, deodorants, shav-

ing soap, whipping cream and many other products.

The Mojonnier patent refers to a vacuum plunger type

dispensing mechanism said to have been theretofore widely

used, stating that this type had not always been satis-

factory for dispensing free-flowing fluids, particularly with

reference to accuracy, i. e. being able to dispense within

very close tolerances the same volume of weight of fluid

upon successive operations of the dispensing mechanism.

It also asserts that vacuum dispensing mechanisms, while

fairly accurate for dispensing fluid into a container to a

preselected level, are not accurate insofar as volumetric

displacements of free-flowing fluids are concerned, and that

the plunger type is not so accurate when utilized for

free-flowing fluids; that different mechanisins must be

used for each of different products and they cannot be

quickly adapted to other products; that the mechanisms

have so many small parts they are difficult to assemble,

clean and service; that the attempted use of some such

mechanisms in the dairy, and like, industries has met with

disfavor, and in some cases health officials have dis-

approved their use due to the fact that milk passing through

such units is subject to contamination because they cannot

be adequately cleaned ; that the paint industry does not em-

ploy dispensing mechanisms to any great extent because it

is so hard to clean the complicated mechanisms and difficult

to change from one color to another, with the result that

16

it is more economical and practical to fill the cans by man-

ual operation.

In the face of these conditions, Mojonnier, by his patent,

seeks to accomplish the following objects:

(1) a multi-purpose dispensing méchanism that may

be used to accurately dispense volumetrically any free-

flowing liquid; (2) novel means for dispensing to a

high degree of accuracy predetermined volumes of

fluid upon successive actuations; (3) a simple construc-

tion relatively inexpensive to manufacture, easy to

assemble and disassemble, and requiring a minimum

of maintenance; (4) easy changing to any desired vol-

ume within the limits of the dispensing mechanism;

(5) control of the splash effected by discharging the

fluid into a receptacle; (6) a novel dispensing mecha-

nism that may be used on a variety of fluids; (7) a

novel mechanism that can be thoroughly and readily

cleaned and maintained in a sanitary condition; and

(8) a mechanism wherein there is a minimum amount

of fluid left in the dispenser at the end of a dispensing

run.

Claim 1 follows:

1. In a dispensing mechanism, the combination of

a fluid container, means for supplying fluid to said

container, means in said container operable to maia-

tain the fluid in the container at a preselected level,

a valve mounted en the container for dispensing, fluid

from the container into a receptacle, a_ solenoid

mounted on said container for operating said valve,

a member extending through said container for inter-

connecting said solenoid and said valve, an interval

timer for controlling the energization of the solenoid

and means to actuate said timer to energize said

solenoid and thereby move said member to open said

valve, whereby a substantially constant volume of

liquid is dispensed each time said solenoid is ener-

gized.

17

Claims 6 and 7 were added by the application for the

reissue patent.”

Claim 7 follows:

7. A filling machine for delivering an accurately

controlled predetermined quantity of milk and other

free flowing fluids for the repetitive filling of indi-

vidual milk containers and the like each in a single

2. Claim 6 is as follows:

6. A filling machine for delivering an accurately controlled

predetermined quantity of milk and other free flowing fluids

for the repetitive filling of individual milk containers and the

like each in a single complete operation, the combination of a

relatively large main fluid supply tank; a fluid supply con-

tainer having a fluid capacity substantially smaller than said

main supply tank and larger than the quantity to be delivered

in filling said individual containers; said fluid suppiy con-

tainer being provided with a bottom delivery citlet having a

given orifice factor and area of orifice, through which outlet

orifice the fluid freely flows by gravity; a valve in said bottom

outlet operable between an open position in which the fluid

flows for delivery into an individual container positioned

beneath and in filling coaction with said outlet and a closed

position for stopping said flow; means operable to deliver

said fluid from said main tank to said fluid supply container

and to maintain a substantially constant preselected hydro-

static head of the fluid in said supply container, said hydro-

static head having a predetermined value with relation to said

orifice factor and area of orifice whereby to effect conitroiied

relatively rapid continuous flow of the fuid from the supply

container to the said individual container when the latter is in

said filling position ; and a timer for controlling the operation

of ‘said valve, said timer having a starting switch and operating

to control a continuous uninterrupted time period in response

to the initial actuation of said switch, said timer control-

ling said valve to continuously hold open said valve through-

out said time period whereby to deliver said predetermined

flow and quantity of fluid in a single complete operation to

each said individual container and whereby the preselected

constant factors of said hydrostatic head in the supply con-

tainer and said orifice delivery produce relatively rapid filling

of said individual container and control of splash effect of

the fluid in its discharge into the said individual container,

said timer being adjustable to vary said time period and the

predetermined quantity of fluid delivered to each individual

container.

18

complete operation, the combination of a large source

of fluid, a fluid supply container having a fluid capac-

ity substantially smaller than said source and larger

than the quantity to be delivered in filling said indi-

vidual containers, a fluid delivery line interconnecting

said source and said supply container, a valve oper-

able to control the flow of fluid through said fluid

delivery line into said supply container, the supply

container being provided with a bottom delivery out-

let having a given orifice factor and area of orifice

through which outlet orifice the fluid freely flows by

gravity, a valve in said outlet operable between an

open position in which the fluid flows for delivery into

an individual container located beneath said supply

container and a closed position for stopping said flow,

a float in said supply container operable to control the

first mentioned valve to replace the fluid in said sup-

ply container as it is dispensed and also operable to

maintain the fluid in the supply container at a pre-

selected level and providing a hydrostatic head of

predetermined value with relation to said orifice fac-

tor and area of orifice whereby to effect controlled

relatively rapid continuous flow of the fluid from the

supply container to said individual container when

the second mentioned valve is held open, a solenoid

for operating said second mentioned valve, operating

means interconnecting said second mentioned valve

and said solenoid, and an interval timer for controlling

the energization of said solenoid to continuously hold

open said second mentioned valve for a preselected

time period to control a continuous uninterrupted flow

delivery of the fluid to said individual container where-

by the preselected constant factors of said hydrostatic

head in the supply container and said orifice delivery

produce relatively rapid filling of said individual con-

tainer and control of splash effect of the fluid in its

discharge into said individual container, said timer

being adjustable to vary said time period and the pre-

determined quantity of fluid delivered to each indi-

vidual container.

19

We now state the controlling facts on the question of

validity, established by (1) the admitted allegations in

the pleadings, (2) documents and physical exhibits ad-

mitted in evidence and (3) uncontradicted testimony.

For many years milk had been delivered to the consumer

in glass bottles, in quart, pint and half pint sizes. These

bottles were filled by machines wherein the bottle itself

‘served as the measure or the bottle was filled from a

measuring pot in the machine. The glass bottle, because of

its fixed and rigid body, may be forcibly used to unseat

the valve mechanism in a filler, also the bottle itself may

be used as a measure as the flowing milk fills it. Machines

of the Beyer type were economically available to small

dairymen, and the larger dairies used multiple unit ma-

chines of the McKinnis and Winton type for their higher

production requirements.

Some 20 years before the Mojonnier invention, paper

cartons began to supplant the glass bottle. In these car-

tons, paper structure is flexible and subject to distortions

by contact forces and pressures. Because of these vari-

ables the paper carton cannot be used as the measure of

the quantity dispensed.

In production filling, the need for aceuracy in the

quantity of milk dispensed is essential, first because over-

measures in repeated fillings would mean a serious loss

to the producer and unsanitary operating conditions and,

secondly, short measures would violate the usual local

and federal regulations for protection of the consumer.

This is in contrast to beverage dispensers, where con-

siderable variation may occur in dispensing (for instance)

a cup of coffee or a carbonated beverage.

Local and federal health authorities check all equipment

of this kind. in the case of milk the equipment must be

thoroughly washed and cleaned daily. Where a filling

mechanism has many intricate parts this task becomes

burdensome and costly.

Accuracy in flow control by the Mojonnier device en-

ables almest instant changes from one-sized delivery to

another, i.e., pints to quarts, ete, in cases of widely

varying viscosity or volumetric quantity of liquids to be

dispensed. The Mojonnier machine attains this result by

changing nozzles to obtain the desired relationship be-.

tween the orifice factor and the hydrostatic head valve.

Milk flowing at high velocity or pressure into a container

ordinarily results in objectionable splasi..ag and foaming.

The Mojonnier combination controls splash and foam

within tolerable limits. Some prior art types which have

variable pressure conditions are unsatisfactory for milk

production filling, although they may serve the require-

ments of beverage dispensing.

Prior to the Mojonnier invention there were mainly two

types of machines for filling milk into paper cartons, one

operating on the piston filling principle used for ‘‘Pure-

Pak’’ cartons, the other opernting on the displacement

principle similar to a measuring cup and used for

‘*American Can’’ cartons. ‘‘Pure Pak’’ carton filling

machines made hy Ex-Cell-O Company were leased, or

sold at prices around $10,000 to $12,000 and up to $60,000

to $70,000. ‘‘ American Can’’ carton filling machines were

leased, or sold at upwards of $10,000 in the prewar

period and their large machine around $75,000. At the

time of the trial the smaller ‘‘ American Can’’ machine was

selling for about $22,000 and the larger one for about

$34,000.

The small dairy plant was accustomed to paying only

from $1,000 to $5,000 for glass bottle filling machines.

Mojonnier’s first trial test filler was sold to Bowman

Dairy Co. for $385 and commercial fillers for about $1,000

to $1,200.

21

A common type of dispenser, known as an aerosol

bomb, is used for spraying insecticides. A certain amount

of insecticide is placed in a tin can and then what is

known as a ‘‘propellant’’ is put in. One of the most

commonly used propellants is ‘‘Freon’’, a chemical ma-

terial which at room temperature and atmospheric

pressure is a gas. Under atmospheric pressure and low

temperature it becomes a liquid. Liquid Freon is/put in

the can under the ‘‘cold fill’’ method. The can is sealed

/ with a cap which includes a spring pressed valve with a

small tube extending to the bottom of the can. As soon as

this can with the Freon and the insecticide has been

sealed and brought to room temperature, the Freon tends

to gasify. Since it is confined in the can it develops a

considerable pressure of about 30 to 40 pounds per square

inch. By merely opening the valve with a finger action

the high pressure within the can forces the insecticide out

in a spray. This general principle is used for dispensing

whipping cream, shaving soap and many other products.

Another way in which these bombs were filled was under

pressure after the insecticide or other material was placed

in the can and the can was sealed. Special filling mecha-

nism and valve were used and the propellant was put in

under high pressure but at room temperature.

A booklet published by E. I. DuPont de Nemours & Co.

in 1951, introduced in evidence, relates the history of

aerosol beginning in 1943. The only filling equipment shown

therein is plaintiff’s filler made under the patent now in

suit. Prior to Mojonnier’s machine, filling equipment of

the piston type had been manufactured for filling by the

cold fill method, but this was not satisfactory because of

difficulties in controlling the quantity delivered and in

operation of the unit.

The Mojonnier invention met with commercial success.

22

The district court based its conclusion of invalidity of

reissue patent 23,830 on its finding 17:

‘617. The device disclosed anc. claimed in the Mo-

jonier reissue patent in suit is merely an aggrega-

tion of elements old in the art which in the aggregation

do individually and collectively only what they have

always done and nothing more. Each of the elements

in the aggregation continues to perform only its own

function without modification of the function of any

of the other elements due to that association. No

new and unusual results are obtained from the device

but merely that which would normally be expected

from the assembly of an aggregation of old elements.’’

Arguing in support of the district court’s action, the

Brasile defendants summarize their argument by stating

that the alleged new results were old in art and citing

Warren Patent 2,515,363, Zsoldos Patent 1,639,679, Engels

Patent 2,542,239, Rudd-Melikian Kwik Kafe Coffee Vend-

ing Machine, Winton Patent 2,030,951 and Mothersall

Patent 2,222,617. We shall hereinafter consider the cita-

tions separately.

1. It is true that in the prior art are found numerous

uses of a float valve for keeping a supply of liquid in a

tank or for preventing the liquid from overflowing, but

this level is only incidental and is not a factor in measuring

the quantity of liquid dispensed through the valve, but in-

stead, the quantity is measured by some extraneous means

unrelated to the level of the liquid supply, such as the

size or shape of the bottle to be filled, the size of a meas-

uring pot, or the action of some variable pressure means.

Also in the prior art practically every patent has a dis-

pensing outlet and valve of some kind; and some patents

have time control. But nowhere, except in the claims in

23

suit, is there disclosed a float control for maintaining a

‘*preselected level’’ in combination with a dispensing valve

and a timer as described which jeintly produce the func-

tion and result, ‘“‘whereby a substantially constant volume

of liquid is dispensed each time the solenoid is operated.’’

This is the ‘‘time controlled uniform flow with constant

hydrostatic head, orifice and time.”’

The Mojonnier patent points out that the preselected

level is the hydrostatic head of predetermined value with

respect to the delivery outlet orifice of the valve, the con-

joint action of these elements measures the flow of liquid

being dispensed, and this, in conjunction with the time

control, produces the new result of dispensing a substan-

tially constant volume of liquid each time the device is

operated.

In this combination Mojonnier utilizes only the body of

liquid itseif and the cispensing valve, together with time

control, to measure and determine the accurate volume of

liquid at each operation. The effect of the hydrostatic

head which operates upon the orifice is relatively low,

in the neighborhood of 11 inches. The low hydrostatic

head in a small container and with predetermined value

relation to a given orifice factor has a definite advantage

in the matter of facilitating flow, making a slower flow,

permitting a large orifice and a slower flow to get the

same quantity of material. It has also a definite advan-

tage from the standpoint of splash and foam effect be-

cause there would be less.

The specific purpose of maintaining a preselected con-

stant hydrostatic head above the valve orifice is not

merely to prevent overflow of the tank or to limit the

amount of liquid which might run into the tank, which is

the situation in toilet tanks controlled by float valves and

the many instances of float valves used in the prior art

patents; but instead, the float valve maintains a hydro-

24

static head of liquid with an entirely different idea in

mind and having an entirely different purpose and ob-

taining an entirely different result.

Another function of the float valve is to replace the

fluid in the small container as it is dispensed. This is the

ordinary function of a float valve. Mojonnier’s float valve

performs an additional function of maintaining a prese-

lected hydrostatic head.

The district court, in its memorandum deciding the

case,* referred in condensed form to eight elements in

the reissue patent. Significantly that part of claim 1

reading ‘‘whereby a substantially constant volume of

liquid is dispensed each time said solenoid is energized’’

was omitted from the memorandum. Finding of fact 15,

prepared by defendants’ attorney has the same omission

and finding 16 states ‘‘each of the elements listed in finding

15 is old, being disclosed in one or more of the following

prior art patents and devices’’. The essential function

of the elements is omitted. It serves no purpose to say

that in an incomplete listing of the elements of the claim,

each element is disclosed in one or more prior art patents.

The significant fact is that nowhere in the prior art is

there disclosed the combination recited in claim 1, and

that this new combination was unobvious in the meaning

of the statute‘ and produced a highly beneficial result.

This new result, which is omitted from the memorandum

and findings of the district court, is due to the conjoint

action of maintaining the fluid in the container at a pre-

selected level, a valve for dispensing fluid from the con-

tainer, and an interval timer for controlling the valve.

In their argument in this court, defendants’ counsel

tacitly admit ‘‘that some of the functional] language of the

3. 142 F. Supp. 385. Ree Were Nee

4. 25 U.S.C.A. 102, 103.

25

claim has been omitted.’ They seek to justify the omis-

sion by referring to the prior art in the record to refute

plaintiff’s contention that the final clause of claim 1 ex-

presses a new result.

Warren 2,515,363 is a patent for a coin-controlled vend-

ing machine, the pressure on the beverage in a container

being variable and supplied by the gas in the beverage.

This results in a variable amount of fluid expelled. While

the patent indicates that milk might also be dispensed by

the Warren device, it does not appear probable that ear-

bonated milk will be much in demand. The variability of

the gas pressure is emphasized by the presence of a relief

valve and also a check valve to allow the escape of maxi-

mum pressure. Nevertheless Warren’s gas pressure varies

from 3 to 4 pounds per square inch, as compared to the

unchanging pressure in the Mojonnier machine. This

variable pressure also would result in inaccuracies in the

measurement of repetitive fillings of milk and aeresols.

Zsoldos 1,639,679 is a patent for a coin-controlled coffee

vending machine. The patent provides no method for

maintaining the contents of the coffee receptacle. The

5. We said, in Hunt v. Armour & Co., 185 F. 2d 722, 728. that

the claims of a meritorious patent should have a liberal interpreta-

tion. See, also, Minnesota Mining & Mfg. Co. v. International

Plastic Corp., 159 F. 2d 554, 558, where we said:

“It is urged by appellant that some of the claims are func-

tional. If so, such language is in words of limitation which

express the relationship of the structural elements only, and

for this reason such claims are not to be considered as fune-

tional.”’

and Flerwood Co. v. Faussner & Co., 145 F. 2d 528. 535, where,

speaking of ‘‘functional language”’ in a claim, we said:

‘““® * but the claim in which this language appears is for

means sufficiently specified and described in the claim and

specifications, and, accordingly, the claim is not invalidated

as being for a function by the recital therein of the function

to be performed or the result to be served by such means.’"**

See also In re Clark, 25 Court of Customs and Patent Appeals,

1317, at 1322.

26

liquid level in the reservoir varies from high to low levels

with corresponding variation in the hydrostatic head of

the liquid, a fact attempteJ to be compensated by a com-

plicated mechanism.’ There is no constant hydrostatic

head, as in the Mojonnier machine. Zsoldos’ machine is

complicated, with a varying hydrostatic head of liquid and

would dispense a variable quantity.

Engels 2,542,239 is a patent for a cake dough or batter

depositor. It relates to apparatus into which a mass of

cake batter or dough may be introduced and which will

discharge the same in predetermined sizes. During the

operations the level of the dough in the extrusion chamber

drops and the eperations then stop while a new supply

of dough is delivered to the chamber from a hopper. This

phase of the operation is actuated by two electrodes in the

extrusion chamber.’ The chamber does not maittain a

constant hydrostatic head and it uses a variable head

backed up by air pressure. It is not made for the filling

of free-flowing fluids.

The Kwik Kafe coffee vending machine, manufactured

by The Rudd-Melikian Co., was made and sold prior to

the filing of the Mojonnier original application. Upon an

offer by defendants, the Kwix Kafe raachine was admitted

in evidence. They did not, however, show the results of

its operation. It was operated by Clarence T. Fishleigh,

a witness for plaintiff, who testified in regard thereto.

Fishleigh’s evidence in that regard was not contradicted.

In separate canisters were coffee extract, sugar, and

cream, each of which was dispensed by a gravity method

6. This mechanism includes a supplemental reservoir, float, rod,

conical regulating valve, outlet, spring, adjusting screw, magnet,

armature, solenoid and electrical structure.

7. The Mojonnier patent in suit shows a modification of the

invention in which, in lieu of using a float valve, two conventional

electrodes projected into the interior of the container, are used to

control the liquid fevel.

27

into hot water, the containers being at least 14” above

a solenoid valve, which operiied with a timing device to

open or restrict the flow of the coffee, cream and sugar.

In referring to the cream canister, expert witnesses for

both sides stated that the hydrostatic head in the can-

ister would be higher when it was filled than when it was

not completely filled. They differed only as to the extent

of the variance, defendants’ witness Norman EK. H. De-

letzke saying, ‘‘a little higher’’ and at another time not

‘‘more than probably 10 or 12 per cent variation’’, and

Fishleigh stating that he had made calculations and found

that the head would be about 38% more when the can-

ister was full than when it was ‘‘empty’’. While this dif-

ference is not significant when the end result is the pour-

ing of hot coffee into a cup for the use of a customer, it

becomes in.portant in a machine such as Mojonnier’s

where an exact amount of milk must be repetitively sup-

plied in accurate measurements into a carton or bottle.

If too much milk is furnished, the recepiacle will over-

flow and the officials charged with inspection of sanitary

conditions will complain, while, if not enough milk is fur-

nished to fill the receptacle, the officials charged with en-

forcing short measure regulations will be calling upon the

owner of the machine.

For these reasons, inter alia, the Kwik Kafe device is

not an anticipation of the patent in suit.

Winton 2,030,951 and Hothersall 2,222,617 are gravity-

operated mechanisms. They dispense an amount of fluid,

measured by a built-in measuring pot. Our exan nation

of these patents leads to the conclusion that they are

not anticipatory of plaintiff’s device.

Mojonnier’s simple structure measures to a high degree

of accuracy each quantity delivered, without depending

on the size, shape, or physical structure of the container

being filled; it overcomes the many variables in prior

28

methods; and it accomplishes superior results with low

cost equipment. The very simplicity of the device makes

it relatively inexpensive, practical, accurate, dependable,

sanitary and easily cleaned in repetitive production filling

operations.

That the patent in suit is, or is not, an aggregation of

old elements rather than a new combination of old ele-

ments is an ultimate fact which must be determined. That

the patented device is, or is not, clearly anticipated by

prior art, even if considered a combiration, is also an ulti-

mate fact. Noble Co. v. C. S. Johnson Co., 241 F. 2d 469,

475. In view of the record before us, as hereinbefore in-

dicated, we are of the opinion that finding of fact 17 made

by the district court is clearly erroneous and should be

set aside. Noble Co. v. C. 8. Johnson Co., supra, 475.

In Lewyt Corporation v. Health-Mor, Inc., 181 F. 2d

855, at 857, we said:

“Though the District Court may have correctly

found that each of the elements in the Yonkers cleaner

was old, it does not follow that Yonkers’ combina-

tion was ipso facto unpatentable, for a novel com-

bination of old elements which so cooperate as to pro-

duce a new and useful result or a substantial increase

in efficiency is patentable. * * * That the result

achieved is both useful and desirable is evinced by

the machine’s commercial success, attributable, obvi-

ously, to the fact that it eliminates inconveniences

and disadvantages inherent in the older cleaners.”’

In Blaw-Knox Company v. I. D. Lain Company, 230 F.

2d 373, at 375, we said:

‘‘Tt is undisputed that the three mentioned elements

essential to Bushnell’s combination were known to the

art. However, it is clear from the evidence that the

specific arrangement and placement in combination

which he prescribed and embraced in his claims and

which, the proof shows, has solved effectually the

29

serious problem that confronted road builders in the

use of heavy concrete, had never been suggested. All

prior efforts to solve the problem had resulted in in-

effectiveness. For the first time in the art, Bushnell

demonstrated that his specific placement and pre-

scribed relationship of the three elements in a road

building machine furnished a complete answer to the

problem. In other words, to our way of thinking,

all this produced a new and a useful result which had

not been accomplished by any of the worke-s in the

art prior to that time. * * *”’

It is our opinion that Mojonnier’s machine embodies a

conjunction or concert of old elements which contributed

materiaily to the sum of usefv! knowledge in both the

dairy industry and the aerosol industry and that the whole

exceeds the sum of its parts, Great A. and P. T. Co. v.

Szpermarket Equip. Corv., 340 U.S. 147, 152, and that

the differences between Mojonnier’s machine and the prior

art are such that his device as a whole would not have

been obvious at the time he invented it to a person hav-

ing ordinary skill in the art. 35 U.S.C.A. § 103.

We therefore hold, as a matter of law,* that claims 1,

6 and 7 of reissue patent 23,830, are valid, and that, in

holding to the contrary, the district court erred.

As to the Brasile defendants, the judgment of the dis-

trict court entered February 21, 1956, insofar as count I

was thereby dismissed for want of equity, is hereby re-

versed and the cause is remanded to the district court for

further proceedings not inconsistent herewith, and the

court, as a part of said proceedings, should determine the

issue of alleged infringement by the Brasile defendants.

2. By count III of the second amended complaint,

plaintiff charged the Brasile defendants with certain al-

leged acts of infringement and unfair competition, asseré-

8. Noble Co. v. C. 8. Johnson Co., supra, 476.

30

ing that the infringement was aggravated. Plaintiff there-

in asked for treble damages, etc. An answer having been

filed, a trial was had before the court. The court did not

in that proceeding decide whether there had been an in-

fringement. By finding 19 the court indicated that the

question of infringement and validity should have been

tried first ‘“‘in view of the dependence of Count Ili on

Count I.’’ The court concluded as a matter of law that the

Brasile defendants had not engaged in any act of unfair

competition toward plaintiff. However the court did not

set forth a basis of fact for this conclusion. In a filed

memorandum, 142 F. Supp. 385, the court stated ‘‘that

it does not believe there was any unfair competition on

either side. The plaintiff owned a patent which it thought

was valid and infringed by the defendants. The defend-

ants thought the patent was invalid and that if it was

valid that they did not infringe it. Both sides did what

human beings usually do under those circumstances, noth.

ing more. So the case is reduced to the simple patent in-

fringement suit,—all that it ever should have been.’’ (Ital-

ies supplied.) Whether the italicized words are to be taken

figuratively or literally, they express a thought too am-

biguous and general upon which to conclude that there

was no unfair competition by the Brasile defendants. Be-

cause of the variables in human behavior, the court used

an unreliable test. We, therefore, reverse the judgment

of February 21, 1956, insofar as count Ili is directed

against the Brasile defendants, and the cause, to that ex-

tent, is remanded to the district court for a retrial, at

which time the court’s decision as to infringement should

have been inade and be available for consideration by the

court.

3. By said count III plaintiff included the Lewis de-

fendants in the charges made against the Brasile defend-

ants. At the close of plaintiff’s case, the district court

31

entered findings of fact and conclusions of law in favor

of the Lewis defendants. Accordingly the judgment of

February 21, 1956, wes favorable to them. In this court

plaintiff’s attack on the district court’s action in this

respect is confined to the following point: ‘‘The court

erred in dismissing the Lewis group of defendants.’’ We

cannot say that these findings are clearly erroneous, with-

in the meaning of 28 U.S.C.A. rule 52 (a), or that the

conclusions of law are incorrect. As to the Lewis de-

fendants, therefore, we affirm the judgment of February

21, 1956.

4. As to the counterclaim of the Brasile defendants,

charging plaintiff with unfair competition, the district

court after a trial ordered a dismissal for want of equity

as a part of its judgment of February 21, 1956 and the

Brasile defendants have appealed therefrom as well as

from a provision in said order which failed to allow them

attorneys’ fees. Both plaintiff’s attorneys and attorneys

for the Brasile defendants agr:: here that the district

court made no findings of fact relating to said counter-

claim. The court contented itself with the language above

quoted from its memorandum, ante 15.

It will be noted that in the counterclaim it is charged

that plaintiff ‘‘well knowing that defendants’ product did

not and does not infringe said claims and that said claims

are invalid if construed broadly enough to cover defend-

ants’ product, have been and still are wrongfully and il-

legally harassing distributors and customers of defend-

ants * * *’’ It is obvious that the questions of both va-

lidity and infringement are at the basis of this connter-

claim. We have held the claims at issue are valid and we

are directing the district court to pass upon the charge

of infringement. Hence, for these various reasons, the

judgment of the district court dismissing the counterclaim

of the Brasile defendants must be and is reversed and the

32

cause remanded to that court for further proceedings con-

sistent with this opinion.

5. In appeal 11784, the Lewis defendants filed a cross-

appeal, and they appealed separately in 11786, contend-

ing that the district court erred in not allowing them

attorneys’ fees.

We hold that no error was committed by the district

court in this respect. It is provided in 35 U.S.C.A. § 285:

‘‘The court in exceptional cases may award reasonable

attorney fees tu the prevailing party.’’ Continental Art

Company v. Bertolozzt, 232 F. 2d 131, 134 and Apex Elec-

tric Mfg. Co. v. Altorfer Bros. Co., 238 F. 2d 867, 874.

Insofar as the Lewis defendants’ cross-appeal in 11784

and their appeal in 11786 are concerned, we affirm.

For the purpose of taxing costs in this court, the clerk

shall ascertain his fees and the printing charges for the

preparation of the printed record covering appeals 11784,

11785 and 11786, as well as the cost of copies of docu-

mentary exhibits, under rule 14(a) and (k) effective Oct.

1, 1954, if any satisfactory showing thereof is made, and

shall thereupon apportion 85% thereof to 11784, 13% to

11785 and 2% to 11786. We direct that all taxabie costs

in 11784 shall be apportioned 9/10 thereof against the

Brasile defendants and 1/10 thereof against plaintiff;

that all taxable costs in 11785 shall be apportioned }

thereof against the Brasile defendants and 4 against

the plaintiff; and all taxable costs in 11786 shall be taxed

against the Lewis defendants.

In No. 11784: Affirmed m part; reversed in part,

and remanded with directions.

In No. 11785: Reversed and remanded with direc-

tions.

In No. 11786: Affirmed.

Finnecan, Circuit Judge. I approve of and concur in

this opinion, except as to costs.

33

APPENDIX C.

Unrrepv States Court oF APPEALS,

For the Seventh Circuit,

Chicago 10, Illinois.

Wednesday, January 15, 1958.

Before

Hon. Philip J. Finnegan, Cireuit Judge.

Hon. Elmer J. Schnackenberg, Circuit Judge.

Hon. John S. Hastings, Cireuit Judge.

THE MOJONNIER DAWSON COMPANY,

an Illinois

Plaintiff-AppcUant,

No. 11784. a.

U. S. DAIRIES ry a CORPORATION,

et ’

Defendants-A ppellces.

THE MOJONNIER DAWSON COMPANY,

Plaintiff-Appelice,

No. 11785. ve.

U. S. DAIRIES SALES CORPORATION,

et al.,

Defendants-Appelilents,

THE MOJONNIER DAWSON COMPANY,

Plaintiff-AppeUee,

No. 11786. va.

U. S. FILLER EQUIPMENT, INC.., et al.,

Defendants-Appeliants. )

>

Appeal from the United

States District Court for

the Northern District of

Illinois, Eastern Divi-

sion.

This cause came to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Illinois, Eastern Division, and was argued

by counsel.

34

On consideration whereof, it is ordered and adjudged by

this Court that the judgment of the said District Court

in this cause appealed from by The Mojonnier Dawson

Company, an Illinois corporation, in Appeal No. 11784, be

AFFIRMED in part and Reversep in part and Remanpep to

the said District Court with directions in accordance with

the opinion of this Court filed this day.

It is further ordered and adjudged by this Court that

the judgment of the said District Court in this cause ap-

pealed from by U. S. Dairies Sales Corporation, et al., in

appeai No. 11785, be Revkxsep axkp Remanvep with direc-

tions in accordance with the opinion of this Court filed this

day.

It is further ordered and adjudged by this Court that

the judgment of the said District Court in this cause ap-

pealed from by U. S. Filler Equipment, Ine., ef al., in Ap-

peal No. 11786, be Arrimmep.

It is further ordered and adjudged by this Court that

for the purpose of taxing’costs in this Court, the Clerk

shall ascertain his fees ayd the printing charges for the

preparation of the printed record covering appeals 11784,

11785 and 11786, as well as the cost of copies of documen-

tary exhibits, under rule 14 (a) and (k) effective Oct. 1,

1954, if any satisfactory showing therefor is made, and

shall upon apportion 85% thereof to 11784, 13% to 11785

and 2% to 11786. The Court directs that all taxable costs

in 11784 shall be apportioned 9/10 thereof against the

Brasile defendants and 1/10 thereof against plaintiff ; that

all taxable costs in 11785 shall be apportioned 1/2 thereof

against the Brasile defendants and 1/2 against the plain-

tiff; and all the taxable costs in 11786 shall be taxed

against the Lewis defendants.