Aeration Processes, Inc. v. Walter Kidde & Co.

Second Circuit

Aeration Processes, Inc. v. Walter Kidde & Co.

177 F.2d 772, 83 U.S.P.Q. (BNA) 403, 1949 U.S. App. LEXIS 4595

CourtCourt of Appeals for the Second Circuit

DecidedNovember 18, 1949

DocketNo. 43, Docket 21400

StatusPublished

Cited by5 cases

This text of 177 F.2d 772 (Aeration Processes, Inc. v. Walter Kidde & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aeration Processes, Inc. v. Walter Kidde & Co., 177 F.2d 772, 83 U.S.P.Q. (BNA) 403, 1949 U.S. App. LEXIS 4595 (2d Cir. 1949).

Pincite

Opinion

FRANK, Circuit Judge.

As the trial court found no indication that either Lee or Drescher had incurred attorney’s fees, it properly allowed them nothing. Nor can defendant Kidde Manufacturing Company recover any costs alleged to have been incurred in behalf of Lee and Drescher, since any investigation of the prior art which it made for them, it made for itself as well.

The issue is thus narrowed down to whether the trial court should have allowed any fees to the corporate defendants who fought the case. On this point, our previous opinion was perhaps not too clear. We there intended to direct the trial court (1) to deny fees for defending against the claim based on the Getz patent, because that claim was quite pursuasive and was denied only on appeal; but (2) to allow fees for preparing to defend against the claim based on the Smith patent, because that claim was abandoned by plaintiff and defendants had done needless work. The corporate defendants apparently misunderstood us, for they submitted proof of their over-all expenses and made no attempt to apportion them between the two claims. Normally, under these circumstances, we might well affirm a denial of all fees, because the proof was inadequate and the discretion of the trial court broad. Blanc v. Spartan Tool Co., 7 Cir., 168 F.2d 296, 300; cf. Official Aviation Guide Co. v. American Av. Associates, 7 Cir., 162 F.2d 541; Burndy Engineering Co. v. Sheldon Service Corp., 2 Cir., 127 F.2d 661, 663; Cory v. Physical Culture Hotel, 2 Cir., 88 F.2d 411, 413. But here, since the mistake was perhaps caused by us, we believe it appropriate to remand with leave to defendants to prove their reasonable expenses in preparing to defend solely against the claim based on the Smith patent. To the extent that such services were not necessary in preparation for defense against the Getz patent, the district court has discretion to award an attorney’s fee reasonable in amount.

Reversed and remanded.

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FRANK, Circuit Judge.

As the trial court found no indication that either Lee or Drescher had incurred attorney’s fees, it properly allowed them nothing. Nor can defendant Kidde Manufacturing Company recover any costs alleged to have been incurred in behalf of Lee and Drescher, since any investigation of the prior art which it made for them, it made for itself as well.

The issue is thus narrowed down to whether the trial court should have allowed any fees to the corporate defendants who fought the case. On this point, our previous opinion was perhaps not too clear. We there intended to direct the trial court (1) to deny fees for defending against the claim based on the Getz patent, because that claim was quite pursuasive and was denied only on appeal; but (2) to allow fees for preparing to defend against the claim based on the Smith patent, because that claim was abandoned by plaintiff and defendants had done needless work. The corporate defendants apparently misunderstood us, for they submitted proof of their over-all expenses and made no attempt to apportion them between the two claims. Normally, under these circumstances, we might well affirm a denial of all fees, because the proof was inadequate and the discretion of the trial court broad. Blanc v. Spartan Tool Co., 7 Cir., 168 F.2d 296, 300; cf. Official Aviation Guide Co. v. American Av. Associates, 7 Cir., 162 F.2d 541; Burndy Engineering Co. v. Sheldon Service Corp., 2 Cir., 127 F.2d 661, 663; Cory v. Physical Culture Hotel, 2 Cir., 88 F.2d 411, 413. But here, since the mistake was perhaps caused by us, we believe it appropriate to remand with leave to defendants to prove their reasonable expenses in preparing to defend solely against the claim based on the Smith patent. To the extent that such services were not necessary in preparation for defense against the Getz patent, the district court has discretion to award an attorney’s fee reasonable in amount.

Reversed and remanded.

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177 F.2d 772, 83 U.S.P.Q. (BNA) 403, 1949 U.S. App. LEXIS 4595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aeration-processes-inc-v-walter-kidde-co-ca2-1949.

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