evidence to form an opinion, and that opinion is that both share
the blame in major proportions.
The court has considered the Findings of Fact and Conclusions
of Law suggested by both counsel for the plaintiffs and the
defendants and on this date has adopted those suggested by
plaintiffs' counsel except as to certain modifications. Said
Findings of Fact and Conclusions of Law, so modified, have this
day been entered and, likewise, a final Judgment in accordance
with said Findings of Fact and Conclusions of Law is being
entered simultaneously herewith.
The court has found that the patent which is the subject of the
suit herein is valid and has been and is being infringed by
defendants, Heatbath Corporation and Berg Manufacturing and Sales
Co. (hereinafter sometimes called "Berg").
From the evidence and law as this court views it, this is a
patent that never should have been questioned. The infringement
of the patent in suit by defendants was and is indefensible
except on the ground that Allied and Amchem were guilty of
discrimination against Heatbath by their action in refusing to
grant a license thereon to said defendant while granting one to
its competitor, Parker Rust Proof Co., which they in fact did as
is set forth in the Findings of Fact entered herein.
On the other hand, plaintiffs Allied and Amchem had no right to
refuse a license to Heatbath on the same terms as to Parker Rust
Proof Co., a licensee of plaintiffs, as they in fact did, and
solely because of a personal dispute between Harry Irvin and
Ernest Walen, Jr., as this court has found in the Findings of
This court is conscious of the fact that other reasons which
appeared valid were given; but the court reiterates that it is
convinced the denial of a license to Heatbath by plaintiffs was
solely because of the Irvin-Walen dispute. Defendant Heatbath was
a competitor of plaintiffs and Parker Rust Proof Co. Heatbath was
in every way qualified as a licensee. Refusal to grant Heatbath a
license was unfair discrimination.
A patent must be presumed to be valid and no one has a right to
make use of or to infringe such patent unless granted a license.
Heatbath and Berg erred in making use of and infringing the
patent in suit without judicial sanction pursuant to law. The
defendants had a remedy against plaintiffs Allied and Amchem and
that remedy was to bring a suit in equity to compel said
plaintiffs to grant a license on the grounds of discrimination.
Public policy requires liberal use of a patent. An owner of a
patent cannot assert his rights under the law and Constitution if
such owner refuses to make use of a patent, or to license a
patent so that it may be of use to the public, or refuses to
license an applicant when it has already granted a license to the
Therefore, the plaintiffs and defendants herein both share to
some extent the blame for the useless costs of this lawsuit.
Defendants should bear the costs of a useless defense by virtue
of their action in taking the law into their own hands, but
defendants should not be required to pay plaintiffs' attorneys'
fees. However, defendant Heatbath was entitled to be licensed by
plaintiffs on the same royalty basis as plaintiffs were granting
licenses to other manufacturers who were competing with
plaintiffs and defendants.
The defendants should account to the plaintiffs upon the basis
of royalties paid to plaintiffs by Parker Rust Proof Co., leaving
the plaintiffs to determine between themselves how the proceeds
shall be shared, if at all. The court has in its final judgment
order made an appropriate appointment of a Special Master to take
evidence and to recommend an accounting to the court as a basis
for a money judgment for damages due to the plaintiffs herein.
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