violated the confidence and secured in his own name the patent upon Koza's discovery. In his counter-claim Koza alleges that Drexler is trustee ex maleficio for him, Koza, and prays the court to order the assignment of the patent to him and an accounting by Drexler for the profits arising from his appropriation of Koza's patentable idea.
Koza, on January 21, 1941, was issued a patent upon an Angle Drill Construction, No. 2,229,509, which discloses the Drexler Patent No. 2,147,832, plus a minor feature alleged to improve Drexler. The Drexler and the Koza patents each show an angle drill having two bevel or miter gears at the corner of the drill for the purpose of transmitting power from the long power shaft to the short shaft and the drill. Each patent shows a thrust bearing for the two bevel gears which consists of a single steel ball. The center of this ball is placed at the point where the axes of the two bevel gears or their shafts come together, at the vertex of the gears. In the Drexler patent the ball is held in place by seats in the housing, while in the Koza drill the ball is held in place by a screw which has a bearing for the ball on the end of the screw. The only difference between the two patents is in the method by which the ball is held in place.
In December of 1937 Koza was in Indianapolis and called upon Drexler. He was a manufacturer's agent and engaged in the sale of certain tools. Among them was an angle drill which had certain defects in operation. It was not his own design. His call upon Drexler, in part, was due to information that Drexler had a Gleason gear cutting machine that could cut mitered gears with involute teeth such as he desired for use in his tools. The angular drill which he had been trying to sell, and which had certain defects, was one which was designed to work along the same lines as the Drexler patent, but which had two balls or more instead of one and which had failed to keep the two bevel gears in proper line. In discussing the possibility of Drexler making drills and other tools for him, Koza declared that he exhibited a blue print (Ex. A) to Drexler which disclosed an angular drill with more than one ball. He stated that during the discussion of the designing of an improved drill, he took a pencil and placed a single circle at the vertex of the gears and asked Drexler and his employe, Morgan, what they thought of a single ball so located as a means of keeping the gears from crowding each other.
If the testimony of Koza is accepted he was the real inventor of the so-called Drexler patent for an angular driving mechanism, and the work of Drexler was nothing but the mechanical function of an expert in perfecting another's patentable idea. The only novelty in the Drexler patent No. 2,147,832 is in the single ball located at the point where the axes of the two bevel gears come together. By that means the gears are kept from crowding, and except for its location and function nothing new exists in the patent.
Drexler and Morgan deny that a circle was placed upon the blueprint at the time it was exhibited to them, or that they ever saw on it the circle in the vertex of the gears.
To support his assertion as to the circle and its location the defendant offered in evidence a blue print (Ex. A) which he stated was the print exhibited to Drexler and Morgan. It contained a clear and undimmed circle. According to Koza's testimony it had been placed upon the blue print about six years before the day the paper was offered in evidence. The plaintiff remarked upon the clear outline of the circle, as exhibited at the trial, on a paper six years old and which had been handled considerably in the meantime. He asserted that the very perfection of it should excite suspicion, and should be considered in connection with plaintiffs' claim that it had not been placed on the blue print when exhibited to Drexler and Morgan.
The decision in this case rests upon the credibility to be given to the testimony of Drexler and Morgan on the one hand and Koza on the other.
On behalf of the plaintiff it is averred that Koza came to Drexler for the purpose of having him manufacture some tools for sale for the united benefit of each of them; that he exhibited a blue print showing a thrust bearing of several balls, and that Drexler, after viewing the proposed angular drill with the balls shown, had declared that he would not manufacture the drill shown in the blue print, because of its imperfections, but would endeavor to design an angular drill which would function properly. It is claimed that Patent No. 2,147,832 was the result. Koza was notified promptly that plaintiff proposed to apply for a patent on his design and never made any claim that he was the discoverer of the idea until September 28, 1939. In the meantime he apparently acquiesced in Drexler's right to the patent. For a considerable time he sold Drexler angular drills, having Drexler bill the purchaser and remit his commission to him. Drexler's patent application was filed May 7, 1938, and granted February 21, 1939. On January 23, 1939, Koza filed his application for an Angle Drill Construction, Patent No. 2,229,509, which incorporated the inventive idea in Patent No. 2,147,832. His attention was called to the Drexler Patent by the Patent Office, but he failed to assert any claim that he was the actual inventor of it. Instead he distinguished his device from Drexler, allowing the public to be deceived if his present contention be correct. Although he made no claim that he was the inventor of Patent No. 2,147,832, he now complains that the Patent Office blundered in not declaring an interference. The burden was upon him to make his claim, and his failure to make it seems to the court to be a vital blow to it, in view of the burden of proof weighing upon him. With counsel representing him, and the ease with which he could have filed an affidavit reciting his claim, he is practically estopped from setting up his contention at this late date. Instead of asserting invention of Patent No. 2,147,832, he steadfastly kept away from its essential claims.
Koza's only excuse for failing to have an interference declared was his poverty at the time the Drexler patent was called to his attention, and the testimony would indicate that at times he was financially embarrassed, but in 1939 he was represented by counsel and the burden of an interference proceeding could not have been heavy. A mere affidavit filed in the Patent Office at a late date would have given him better standing in this court than that to which he is now entitled.
As hereinbefore stated, the judgment herein depends upon the credibility of Drexler and Morgan for the plaintiffs, on the one hand, and Koza, defendant and counter-claimant, on the other, with the burden of proof resting heavily upon Koza. Upon consideration of the proofs the court is of opinion that the evidence of Koza is insufficient to invalidate Patent No. 2,147,832 to Drexler.
Let a decree for the plaintiff be submitted.
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