Before Madden, Judge, United States Court of Claims,*fn* and Lumbard and Moore, Circuit Judges.
This is an appeal from a judgment entered March 25, 1958 in the District Court for the Western District of New York dismissing upon the merits plaintiffs' action for alleged infringement of Anderson patent 2,596,063, and from an order denying plaintiffs' motion for new trial. The patent claims in suit define a flexible wiper or cleaner construction adapted to wipe or clean a curved surface as well as a planar surface. The application of curved windshields to vehicles created cleaning problems apparently solved by flexible wipers of the general type illustrated in the Anderson patent.
The opinion of the District Court held claims 6, 8, 15, and 17 of the Anderson patent invalid because of prior knowledge and prior public use of certain Zaiger devices distributed to the trade in 1941, about four years before the Anderson patent application was filed. The correctness of the court's findings with respect to prior public use is determinative of this appeal.
Plaintiffs contend that prior use of the Zaiger windshield wiper was not proved beyond a reasonable doubt or by a preponderance of the evidence, and that said prior use was an abandoned experiment. Where a device such as the D-15 Zaiger device has been used or demonstrated on public streets and samples have been given to one or more companies for consideration and trial, such activities constitute public use. Armour & Company v. Rath Packing Company, D.C.Ill., 154 F.Supp. 54.
Judge Morgan's opinion recognizes that when viewed in certain respects the evidence raises doubts. However, the opinion indicates to us that the evidence was carefully considered, and that despite such doubts Judge Morgan found no basis for any reasonable doubt respecting the prior use of the Zaiger D-15 devices. It was specifically found that the evidence was sufficient to establish beyond any reasonable doubt the existence, use, and character of the Zaiger D-15 devices. Our examination of the record before us indicates adequate basis for such findings. The lack of documentary evidence to establish a firm date of public use of the D-15 devices is not critical, in view of the testimony received in this case. The fact that much of the testimony was by deposition is likewise not considered critical. We note that the court also considered evidence with respect to the authenticity of the Zaiger D-15 construction and found nothing which indicates with certainty how D-15 was made or that the devise was a spurious exhibit. We find ourselves unable to conclude that the findings on prior public use of the D-15 construction were either unsupported by evidence or clearly erroneous.
With respect to plaintiffs' contention that use of the Zaiger D-15 devices in 1941 was only an abandoned experiment, it may be noted that this country entered World War II that year and that commercial development of many new and useful devices was necessarily delayed for several years. An established successful public use is not negatived by delays in its commercial development.
The Anderson patent is invalid because the invention was in public use more than one year prior to the date of the application for patent. 35 U.S.C. § 102(b).
In view of our opinion that the finding of prior public use is supported by the evidence and is correct, it is unnecessary to consider other issues such as infringement of the Anderson patent claims by L-Bow and Rainbow blades. Since the Anderson patent claims are clearly invalid, we do not reach the infringement issue.Gentzel v. Manning, Maxwell & Moore, Inc., 2 Cir., 230 F.2d 341, certiorari denied 352 U.S. 840, 77 S. Ct. 63, 1 L. Ed. 2d 57.
With respect to the order denying plaintiffs' motion for new trial, we note that the power to inspect and make copies of the abandoned Zaiger and Nesson patent application was filed in the United States Patent Office August 22, 1957, and approved. Plaintiffs apparently obtained a certified copy of said application in September 1957 and concluded in October 1957 that it was not the type of evidence justifying reopening the present case. Plaintiffs' motion for new trial was not filed until February 5, 1958, a date after the decision unfavorable to plaintiffs but before actual entry of judgment dismissing plaintiffs' suit. We note that the District Court in its opinion denying plaintiffs' motion for new trial, indicates that it carefully considered the new matter and concluded that the matter presented does not change the result reached on invalidity of the Anderson patent. We have considered plaintiffs' motion, together with the affidavits and exhibits in support and in opposition, and find no reason to conclude that the District Court failed to act properly and within its discretion in denying plaintiffs' motion for a new trial.
The appellants have called our attention to litigation in another circuit on the Anderson patent here in suit in the case of Anderson Company v. Sears Roebuck & Co., D.C., 165 F.Supp. 611, in the Northern District of Illinois, Eastern Division, commenced after this suit, and to the decision of Judge Hoffman, af irmed by the Seventh Circuit on April 14, 1959, 265 F.2d 755. We are unable to conclude that Judge Morgan's findings of fact are or must be in error simply because Judge Hoffman reached a different result on apparently different evidence.
Furthermore, Judge Hoffman's very brief opinion of June 18, 1958 states only the conclusions that alleged prior use has not been established and that D-15 was a spurious exhibit; it gives no analysis or reasons for the conclusions. It does not even refer to Judge Morgan's thorough and reasoned opinion of January 17, 1958, reported at 162 F.Supp. 224, which was available to Judge Hoffman prior to his own decision. Only the findings of fact and the conclusions of law signed by Judge Hoffman and prepared for him by counsel at his request are reported at 165 F.Supp. 611.*fn1
We did note and give weight to two opinions of the California federal court in earlier litigation which involved the same patent before us in Georgia-Pacific Corporation v. United States Plywood Corporation, 2 Cir., 1958, 258 F.2d 124, but in the California case the decision was final, and the case had finished its course before the Georgia-Pacific case was commenced in the Second Circuit. Moreover, the ...