Electrofilm, Inc., Appellant, v. Everlube Corporation of America, A. R. Booker and K. Taylor, Appellees, 265 F.2d 495 (9th Cir. 1959)

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U.S. Court of Appeals for the Ninth Circuit - 265 F.2d 495 (9th Cir. 1959)

March 31, 1959

Walter H. Young, Los Angeles, Cal., for appellant.

Warren L. Kern, Walton Eugene Tinsley, Harris, Kiech, Foster & Harris, Los Angeles, Cal., for appellee.

Before BARNES and HAMLEY, Circuit Judges, and CHASE A. CLARK, District Judge.


This is an appeal from a judgment wherein it is held that:

"United States Letters Patent No. 2,703,768 and each of the claims thereof are invalid for anticipation under subdivision (a), (b) and (g) of Section 102 of Title 35, U.S.C. and solely by reason of such invalidity plaintiff, Everlube Corporation of America, does not infringe said letters patent or any of the claims thereof.

"2. Defendant Cross-claimant, Electrofilm Inc., shall take nothing by its cross-claim against cross-defendants, Everlube Corporation of America, K. Taylor and A. R. Booker, and the same is hereby dismissed.

"3. No attorneys' fees are awarded, and each party shall bear its own costs on the complaint and cross-claim."

Specifications of error numbered 1, 2, and 3 have to do with the receiving in evidence of certain exhibits (47d, 47e and 47f, 40g and 40f), and the receiving in evidence testimony of Morris Brown with respect to exhibits 47d, 47e and 47f.

We are of the opinion that the Trial Judge was fully justified in admitting in evidence the exhibits mentioned in specifications of error numbered 1 and 2 and in admitting the evidence of Morris Brown, so that he might have as complete a record as possible from which to determine the issues presented. Business Records Act, 28 U.S.C. § 1732, as amended 1951. Olender v. United States, 9 Cir., 1956, 237 F.2d 859; Lisansky v. United States, 4 Cir., 1929, 31 F.2d 846, 67 A.L.R. 67.

Specifications of error numbered 4 to 10 inclusive are fully covered by the Trial Court's opinion reported in D.C., 154 F. Supp. 788, which we adopt and make a part of this opinion.

To that opinion we would add only that "Hall" named in the opinion (first paragraph at page 791 of 154 F. Supp.) but otherwise unidentified, is R. D. Hall, the asserted inventor and assignor to Electrofilm Inc., a corporation, of the United States Patent No. 2,703,768.