The opinion of the court was delivered by: GIBSON
The court, after hearing and consideration, makes the following findings of fact and conclusions of law:
1. This suit involves eighteen patents, relating to electric refrigeration, which are owned by the defendant-counterclaimant, Westinghouse Electric and Manufacturing Company, a corporation of the State of Pennsylvania (hereinafter referred to as "defendant", or as "Westinghouse"). Defendant has been the owner of all of said patents since they were issued.
2. The plaintiff, the Crosley Corporation, a corporation of the State of Ohio (hereinafter referred to as "plaintiff" or as "Crosley"), was notified by defendant, prior to commencement of this suit, of alleged infringement of each of said patents, except Quimper patent 2,254,780 and Forsthoefel patent 2,254,604, which had not been issued when the complaint herein was filed.
3. The present suit was brought under the Declaratory Judgment Act (Sec. 274d, Judicial Code Title 28 U.S.C.A. § 400) praying that each of said patents, except the two above identified, be declared invalid and/or not infringed. The suit was filed the day after receipt by Crosley of notice from Westinghouse that it was about to bring suit against Crosley for infringement of said patents, which was done (in the Southern District of Ohio) the day after, and without knowledge of, the filing of the present suit.
4. The defendant counterclaimed herein for alleged infringement by plaintiff of all the patents included in the declaratory judgment action and also of said Quimper patent 2,254,780 and said Forsthoefel patent 2,254,604, which had issued between the filing of the complaint and the filing of the counterclaim. An additional infringement suit had been filed against Crosley on the latter patents in Ohio some time before the counterclaim was filed, but Crosley did not amend its complaint herein to include said patents.
5. Westinghouse entered the household refrigerator field in 1930, its refrigerators from the beginning being of the hermetically sealed type, which is the type involved in this litigation. Crosely entered the refrigerator field about 1931 with a so-called "open-type" refrigerator, not here involved, and began making the hermetically sealed type in 1935. Crosley refrigerator Models S-641 and SE-641, which were offered as proof of the alleged infringement of many of the patents in suit, were manufactured and sold by Crosley beginning with its 1941 models.
6. Westinghouse relies upon the following claims of the respective patents with respect to the noted Crosley models:
Patents Claims Model
Forsthoefel 2,166,630 7 & 8 S-641 & SE-641
Yoxsimer 2,242,335 3 S-641 & SE-641
Quimper 2,254,780 1, 2 & 6 S-641 & SE-641
Anderson Reissue 21,535 1 to 4, incl. S-641 & SE-641
Forsthoefel Reissue 21,178 1 & 3 SE-641
Yoxsimer 2,194,176 1, 3, 4 & 5 SE-641
Kruck Design 112,778 S-641 & SE-641
Ford 1,967,770 1 to 4, incl. S-641 & SE-641
Ashbaugh 2,079,238 2, 3, 4, 8 & 9, 11 &
12 S-641 & SE-641
Roberts 2,188,303 1, 4 & 5 S-641 & SE-641
Terry 2,007,730 1 to 4, incl. S-641 & SE-641
Kucher 1,719,807 9, 10, 15, 16, 17,
18, 22, 23, 24 & 25 S-641 & SE-641
Kucher 1,719,820 12, 13 & 14 S-641 & SE-641
Kucher Reissue 19,908 44, 45 & 47 S-641 & SE-641
Terry 2,040,507 7, 8 & 10 S-641 & SE-641
McCloy 2,181,856 1 to 18 incl. S-641 & SE-641
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