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PHILIPPE v. WINDOW GLASS CUTTERS LEAGUE OF AMERICA

August 9, 1951

PHILIPPE
v.
WINDOW GLASS CUTTERS LEAGUE OF AMERICA ET AL.



The opinion of the court was delivered by: John E. Miller, District Judge.

The complaint in this case was filed July 7, 1949, by the plaintiff against defendants, Window Glass Cutters League of America, Lester Thiebert, Hubert Gaston, Paul L. Kopp and George Berger. It was therein alleged that on May 17, 1949, United States Letters Patent No. 2,470,444 was issued to plantiff for an invention in a glass cutter, and that since that date plaintiff had been and still was the owner of the patent; that the defendants had and were at that time infringing said patent by making, selling, and using glass cutters embodying the patented invention; that written notice had been given defendants of said infringement; that defendants had derived unlawful gains and profits from such infringement. The prayer was for a preliminary and final injunction against defendants, for an accounting of profits, and for damages in the amount of $27,000.

On August 5, 1949, an amended and substituted complaint was filed making Oscar Walker a defendant. It was alleged that Walker is an individual doing business as Walker's Machine Shop in Grapeville, Pennsylvania, and had been and was committing acts of infringement of the rights of plaintiff through his agent, Hubert Gaston. The remaining allegations of the amended and substituted complaint are the same as those in the original. Subsequently, and on November 16, 1949, it appearing that personal service of summons could not be obtained, the amended and substituted complaint was dismissed as to Walker upon motion of the plaintiff.

Thereafter, the other defendants filed answers and in substance denied the infringement and receipt of notice. And, they alleged that "a substantial portion of plaintiff's alleged invention, specifically the yoke or saddle and block contained on plaintiff's alleged invention, have been used in the cutting of glass for a period of approximately ten years and were well known in the trade at the time of the said alleged patent."

Specifically, the decree provides: "It is Ordered and Decreed that the defendants, Window Glass Cutters League of America, Lester Thiebert, Paul L. Kopp, George Berger, and Hubert Gaston, and each of them, and their agents, servants or employees be, and they hereby are, permanently enjoined and restrained from manufacturing, selling, or using, and from aiding, promoting, or encouraging the manufacture, sale or use of the device described in Patent No. 2,470,444, issued May 17, 1949, to George A. Philippe, without the consent of the said George A. Philippe; Provided, however, that this injunctive decree does not include that device which has been described as a yoke, saddle or halter; the block that may be attached thereto on pivotal points within the terminal ends of the yoke, nor the diamond mounted ferrule and wiper which is used in connection therewith, all of which was introduced as defendants' Exhibits No. 1 and 2, unless manufactured, sold or used in connection with and in combination with the device covered by Patent No. 2,470,444."

On March 28, 1951, plaintiff filed a "motion" alleging that defendants, Window Glass Cutters League of America, Hubert Gaston and George Berger, "notwithstanding said injunction, * * * have wilfully continued to infringe said patent and to ignore the order of the United States District Court, Western District of Arkansas, all to the damage of this plaintiff", and praying "(1) That the defendants be fined for civil contempt of the United States decree dated November 22 [26], 1949, in the sum of not less than $10,000.00, and that said fine be awarded to this plaintiff on account of the damage to him. (2) For costs, and for treble damages in the sum of $150,000.00, since the actions of the defendants have been wilful and intentional. (3) For such other and further relief as the court may deem just."

On April 17, 1951, the defendant, Window Glass Cutters League of America, filed a motion to quash service of process and return thereof and to dismiss. The other defendants filed a motion to dismiss and in alternative motion for a more definite statement.

At a hearing held on May 8, 1951, the court ordered that defendants' motion to quash be overruled and that defendants' motion for a more definite statement be sustained.

Thereafter, on July 3, 1951, the plaintiff filed an amended motion, in which he incorporated the original motion by reference, and further alleged:

(Paragraph 2) Shortly after the court rendered its decree the defendant League wrote a letter to the local unit of the League at Fort Smith, Arkansas, stating that said members had permission to use any splitter so long as they did not actually use the Walker splitter [which was held to infringe plaintiff's patent, Conclusion of Law No. 3], and that said members were not to pay too much attention to the "glorified injunction", which was only good in Arkansas; if plaintiff interfered with the use of any splitter but the Walker splitter, Attorney Wilson would prosecute the plaintiff.

(Paragraph 3) On or about December 22, 1949, the defendant League distributed splitters which incorporated practically all of the material points of workmanship included in the Walker splitter, infringing upon plaintiff's patent in the same manner as did the Walker splitter, and members of the League at Harding Glass Company have been using said infringing splitters ever since said date; that the splitter issued by the defendant League specifically infringes upon plaintiff's patent as to four "claims", to-wit, numbers 1, 2, 4 and 5.

(Paragraph 4) That numerous members of the defendant League are using the Walker splitters in their work at the Pittsburg Plate Glass Company at Henryetta, Oklahoma, and have been doing so since December, 1949.

On July 16, 1951, defendants filed motion to strike the amended motion in its entirety and to dismiss and in alternative to strike specific allegations thereof. Defendants allege that the amended motion should be stricken in its entirety because it did not comply with the court's order of May 8, 1951, granting leave to plaintiff "to file, within a reasonable time, a substituted motion alleging facts which would prima facially show the defendants to be in civil contempt", and that the original motion filed by plaintiff March 28, 1951, should be dismissed because said motion fails to allege any grounds upon which the defendants could be held to be in contempt. In the alternative, defendants move that the allegations of paragraph 2 be stricken because they fail to state grounds upon which civil contempt could be based, and that the allegations of paragraph 4 be stricken as being completely immaterial and as not stating grounds upon which civil contempt could be based.

In the statement in support of the latter motion, defendant, Window Glass Cutters League, states that since the court has construed the original pleading of plaintiff filed on March 28, 1951, as a motion and not a complaint, it concedes the jurisdiction of the court in a civil contempt proceeding, but this result would have been reached in this case regardless of defendant's concession, for while a contempt proceeding is said to be independent, ...


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