Opinion
Civ. No. 6814.
October 8, 1951.
Lindabury, Steelman Lafferty, Newark, N.J., for plaintiff, Andrew J. Steelman, Newark, N.J., and William D. Burrows, New York City, of counsel.
Leavitt Talley, Elizabeth, N.J., for defendant, Harry C. Bierman, New York City, of counsel.
This case was remanded from the Court of Appeals for the purpose of introducing in evidence the file wrapper and contents of the Humphrey patent No. 2,025,947, and to consider the effect thereof as bearing on the opinion of this Court filed on the 26th day of January, 1950, 88 F. Supp. 236.
Many weeks of difficult study were given to the problems of chemistry involved in this case. Difficult because I had to sit at the feet of counsel while they functioned as tutors in endeavoring to bring me to an understanding of what the issues really were. I am convinced that they finally succeeded in this. Now after the passage of months, I have again gone into the subject and again aided and abetted by counsel, I think I see the light.
What transpired here on remand will be elucidated by a reading of the report of the Court Reporter dated March 13, 1951. It is brief, consisting of only 17 or 18 pages, but nothing I might add would tend to further clarify the subject.
Nothing was found in the file wrapper to change, alter or amend the opinion filed herein on the 26th day of January, 1950. On the contrary, the file further emphasizes the fact that Humphrey announced what Ellis patented. That Humphrey disclaimed it, is but to say, he did not choose to patent it. There it was, however, right in the open for those skilled in the art to read and understand. Ellis came later with the same thought, and so he was not the first inventor.
The opinion of this court above mentioned is affirmed without change.