Opinion
No. 20655.
July 31, 1964. Rehearing Denied September 3, 1964.
Howard E. Moore, Frank J. Scurlock, Turner, Rodgers, Winn, Scurlock Terry, Dallas, Tex., for appellants.
Ralph R. Browning, Joe E. Edwards, Houston, Tex., for appellees. J. Vincent Martin, M.H. Gay, Vinson, Elkins, Weems Searls, Browning, Simms, Hyer Eickenroht, Houston, Tex., of counsel.
Before HUTCHESON and RIVES, Circuit Judges, and GROOMS, District Judge.
This is a hard fought patent case, involving two patents, basic patent Webber No. 2,633,808, hereafter called 808, and improvement patent, Webber No. 2,719,768, hereafter called 768. Long and exhaustive briefs have been written, the district judge has written full, and, in our opinion, correct conclusions of fact and law, and these appeals are from a judgment declaring patent No. 808 valid and infringed and patent No. 768 invalid by reason of plaintiffs' own experimental sales.
After an eight day trial, followed by filing of briefs and oral argument, the district court filed its initial findings and conclusions of law, finding patent No. 808 valid and infringed and inadvertently finding both patent No. 808 and patent No. 768 invalid by reason of appellees' own experimental sales, although such sales did not occur prior to the September, 1948 filing day of such basic patent.
Upon this inadvertence being called to the attention of the court, the case was resubmitted and was fully and thoroughly reconsidered for a period of approximately two years. On March 6, 1963, findings of fact and conclusions of law supporting a judgment as to validity and infringement of the basic Webber patent No. 808 and as to the invalidity of patent No. 768 were filed and judgment accordingly was entered.
Defendants-appellants have taken an appeal from the judgment holding Webber patent No. 808 valid and infringed, and plaintiffs-appellees Webber and Mission Mfg. Co. have appealed from the judgment declaring improvement patent No. 768 invalid by reason of appellees' prior experimental sales.
We are of the clear opinion that the findings and conclusions and the judgment of the district judge as to both patents are correct and should be affirmed. Without, therefore, undertaking to set the findings and conclusions out, we find it sufficient to refer to them as set out in the reported opinion, note 1 supra, and, approving them as to each patent, we affirm the judgment as to each patent.