Upon considering the evidence, the Court finds grave reasons for
agreeing with the district judge that the respondent copied the
petitioner's patented invention.
The rule which gives conclusive effect to a finding made by a
judge who saw the witnesses when there is testimony consistent with
it and the finding depends on conflicting testimony or the
credibility of witnesses is peculiarly applicable in a case wherein
a patent is assailed by oral evidence of an alleged unpatented
anticipation.
One who opposes a patent by oral evidence of a prior discovery
must prove his case beyond a reasonable doubt.
The Barbed Wire
Patent, 143 U. S. 275,
143 U. S.
284.
227 F. 93 reversed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the petitioner for the infringement of
a patent for a vulcanizing device,
"including a vulcanizing member constructed to retain a
combustible fluid upon and in contact with its upper surface, the
lower surface of the vulcanizing member being adapted to be applied
to the material to be vulcanized."
In other words, the upper side of the upper of two sheets of
metal, between
Page 242 U. S. 351
which, when heated, the material is to be vulcanized, is
fashioned as a cup in which gasolene can be burned to heat it. The
specific character of the machine has made of it a valuable
success. The respondent admitted making and selling devices like
the plaintiff's, but alleged and testified that he made them first.
In a previous suit by the plaintiff, the plaintiff and the present
defendant testified, and District Judge Geiger gave the plaintiff a
decree. In this case, again the district judge, in his turn, saw
the defendant and heard additional evidence, but, after criticizing
it, said that his own judgment was that the new testimony would not
have changed Judge Geiger's opinion, and, while professing to
follow that opinion, according to the usage of district judges in
such matters, evidently, to our mind, signified that he agreed with
Judge Geiger, although in terms only following what had been done.
The circuit court of appeals treated the action of the district
judge as a mere yielding to the authority of the former decision,
and reversed the decree upon the evidence as it stood in print.
We are unable to agree with the circuit court of appeals. There
is no question that the plaintiff did not copy the defendant, that
he put his invention into the market in November, 1911, and that
the defendant did not put out his vulcanizer until February or
March of the following year, but the defendant says that, on August
7, 1911, twelve days before the plaintiff made the drawing that
depicted his invention, he had had castings made that are
substantially identical with the plaintiff's device and identical
in particulars that the plaintiff's patent made material, but that
the defendant declared to answer no useful end. The plaintiff's cup
had pins projecting from the bottom, arranged in circles around a
central one, which his specification described as serving to
conduct the heat of the flame downwards into the vulcanizing plate
and the combustible fluid. The defendant's original casting
Page 242 U. S. 352
showed pins of similar arrangement. He explained that the
similarity was accidental, that the pins were of no use, but that
"we expected to tell the poor, unsuspecting public that they
conducted the heat . . . to the bottom of the vulcanizer," "which
is a false statement." It needs no emphasis to point out the
improbability that the defendant, at nearly the same time as the
plaintiff, should have hit by accident upon the same configuration
in striking particulars that he regarded as immaterial, and, merely
to deceive the public, have invented the same by no means obvious
explanation that was offered seriously by the plaintiff, but that
the defendant regarded as false. The improbability is intensified
by a further coincidence, also explained by the defendant as
accident. The lugs by which the cup was to be fastened to the lower
surface happened to face in opposite directions in the plaintiff's
device, although later they were made to face the same way. The
defendant's also faced in opposite directions. It surpasses the
power of belief that a man who testified that there was nothing in
the invention, that it was merely arranging to fasten a ladle to a
board, should have come by pure chance to make so exact a replica
of the plaintiff's specific form. Inspection of the two castings
shows more clearly than can words that one must have been a copy of
the other. The plaintiff and defendant lived far apart. Adamson had
no chance to copy Gilliland. On the other hand, after Adamson's
vulcanizers were made public, Gilliland could copy them. The man
who made the castings shows that the resemblance was even more
complete than we have stated, by reason of the presence of a base
plate, although Gilliland denies that he had one at that time.
There is no doubt that the defendant had castings made. The
essential question is the time when they first were made. We shall
not discuss the evidence of those concerned in the making, beyond
recurring to the impression that the witnesses made upon the
district judge and
Page 242 U. S. 353
mentioning that a dray ticket relied upon as fixing that date
appears to have been open to grave suspicion from its character,
marking, and other details. Considering that a patent has been
granted to the plaintiff, the case is preeminently one for the
application of the practical rule that, so far as the finding of
the master or judge who saw the witnesses
"depends upon conflicting testimony or upon the credibility of
witnesses, or so far as there is any testimony consistent with the
finding, it must be treated as unassailable."
Davis v. Schwartz, 155 U. S. 631,
155 U. S. 636.
The reasons for requiring the defendant to prove his case beyond a
reasonable doubt are stated in the case of
The Barbed Wire
Patent, 143 U. S. 275,
143 U. S. 284
Upon these considerations and a review of the evidence, we are of
opinion that the decree must be reversed.
Decree reversed.