Americas Ballast Log Co. v. Cotter

E.D. Pennsylvania

Americas Ballast Log Co. v. Cotter

11 F. 728, 1882 U.S. App. LEXIS 2460

DecidedJanuary 30, 1882

StatusPublished

This text of 11 F. 728 (Americas Ballast Log Co. v. Cotter) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Americas Ballast Log Co. v. Cotter, 11 F. 728, 1882 U.S. App. LEXIS 2460 (E.D. Pa. 1882).

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Opinion

Butler, D. J.

Very little need be said in disposing of this case. Two only of the several grounds of defence set up in the answer were pressed on the argument — First, want of patentability and, second, anticipation.

The first of these points was passed upon, and decided in favor of the patent, by the circuit court of the eastern district of New York, [729]*729:n the suit of Demartini et al. v. Abramovic et al., in 1879, and again by the circuit court for the district of Maryland, in a suit by the plaintiffs here against Barnes and Gatto. The'respect due to these judgments, and the importance of consistency and uniformity of decision in courts of co-ordinate jurisdiction, where the samo subject-matter is involved, require this court to adopt the judgments referred to.

The second question alone, therefore, is open to consideration. A large amount of testimony bearing upon this was taken and is produced, by each of the.parties. A written analysis of this testimony ■would serve no useful purpose. It is sufficient to say that while the general statements of the defendant’s witnesses, on examination in chief, considered alone, would be fully sufficient to overcome the presumption of novelty arising out of the patent, they are so shaken by the cross-examination in some instances, and generally by rebutting testimony produced by the plaintiffs, that they cannot justly he accorded such weight. Whilo it is true that the plaintiffs’ testimony, principally, is negativo in character, the circumstances are such that it is little, if any, less valuable than the direct testimony of the other side. Considering the occupations and experiences of the plaintiffs’ witnesses, it seems virtually impossible that the prior use alleged could have existed without their knowledge.

Bor the reasons stated a decree will be entered for the plaintiffs.

McKennan, C. J., concurred.

See Hammerschlag v. Garrett, 9 Fed. Rep. 43; American Ballast Log Co. v. Barnes, Id. 465.

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Butler, D. J.

Very little need be said in disposing of this case. Two only of the several grounds of defence set up in the answer were pressed on the argument — First, want of patentability and, second, anticipation.

The first of these points was passed upon, and decided in favor of the patent, by the circuit court of the eastern district of New York, [729]*729:n the suit of Demartini et al. v. Abramovic et al., in 1879, and again by the circuit court for the district of Maryland, in a suit by the plaintiffs here against Barnes and Gatto. The'respect due to these judgments, and the importance of consistency and uniformity of decision in courts of co-ordinate jurisdiction, where the samo subject-matter is involved, require this court to adopt the judgments referred to.

The second question alone, therefore, is open to consideration. A large amount of testimony bearing upon this was taken and is produced, by each of the.parties. A written analysis of this testimony ■would serve no useful purpose. It is sufficient to say that while the general statements of the defendant’s witnesses, on examination in chief, considered alone, would be fully sufficient to overcome the presumption of novelty arising out of the patent, they are so shaken by the cross-examination in some instances, and generally by rebutting testimony produced by the plaintiffs, that they cannot justly he accorded such weight. Whilo it is true that the plaintiffs’ testimony, principally, is negativo in character, the circumstances are such that it is little, if any, less valuable than the direct testimony of the other side. Considering the occupations and experiences of the plaintiffs’ witnesses, it seems virtually impossible that the prior use alleged could have existed without their knowledge.

Bor the reasons stated a decree will be entered for the plaintiffs.

McKennan, C. J., concurred.

See Hammerschlag v. Garrett, 9 Fed. Rep. 43; American Ballast Log Co. v. Barnes, Id. 465.

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Bluebook (online)

11 F. 728, 1882 U.S. App. LEXIS 2460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/americas-ballast-log-co-v-cotter-paed-1882.