Opinion
No. 15610.
January 31, 1940.
P.J. Lucey and Gerald G. Barry, both of Chicago, Ill., for plaintiffs.
Evans McCoy, of Cleveland, Ohio, and Earle E. Ewins, of Chicago, Ill., for defendants.
In Equity. Action by Gerald G. Barry and another against the General Tire Rubber Company and another for infringement of a patent.
Order in accordance with opinion.
The court has this day made and filed Findings of Fact and Conclusions of Law.
Two principal issues were tried in this case: First, did the defendant infringe? And, second, is plaintiffs' patent valid? After argument, the court orally announced a decision finding no infringement, and since there was (as there still is) a possibility that the reviewing courts may not agree with this court on the question of infringement and may desire the decision of this court on the question of validity before passing on that question themselves, and to prevent the necessity for a multiplicity of appeals, this court further found the patent valid.
The court understands that the defendants object to the court's making any formal findings or conclusions in respect of validity of the patent. The defendants have in fact called the court's attention to the case of Electrical Fittings Corp. v. Thomas Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263.
The reasons above stated which prompted the oral statement on the question of validity have, in spite of defendants' suggestions, prompted the court's making of formal findings and conclusions on the question of validity.
It may be said that the court errs in assuming that the plaintiffs will appeal from the decree of this court. No good purpose can be served by closing one's eyes to facts. A majority of patent cases are appealed. It is reasonably certain that one or the other or both of the parties will appeal. In any event, the court's findings and conclusions on all issues will be before the reviewing courts.