Aero Spark Plug Co. v. BG Corporation

clause should not isolate a word or apart. Helver- setting its and consider it Bank, 293 ing Enskilda Stockholms Apply- 55 S.Ct. rule, pur- it was the clear that ing this it is pose Congress withhold a dividends was a taxable distribution paid credit unless corpora- made the stockholders

tion. the Revenue that under It is well settled reorganization upon a nontaxable Statutes surplus profits earned the accumulated pass liquidated corporation same status corporation with the successor payment, of divi- are available corporate Such successor. by the dends extent do to this limited transactions corporate life. continuity break the Cir., Sansome, Commissioner Kauffmann, 9 United States v. Com- Estate Murchison’s 62 F.2d missioner, F.2d 641. from the bar case at Viewing the inde construction standpoint statutory Varney M. Lucius E. and Nichol San- analogous, made of decisions pendently doe, City, plaintiffs- New York both of situations, opin our parallel, though not appellants. not entitled to was petitioner ion the Yerkes, Jr., City Harry New A. York claimed. paid credit dividends Kemon, Washington, C., (Lee B. D. affirmed. the Board is order counsel), defendant-appellee. FRANK, SWAN, CHASE, Before Judges.

Circuit CHASE, Judge. Circuit upon grounds, The decree based non-infringement invalidity of Claim which is claim in issue. CO., v. B. G. PLUG SPARK AERO Kasarjian’s patent spark plugs involves CORPORATION. engines. airplane for use in The usual No. 319. assembly spark plug aviation has a core Appeals, Second Circuit. Court

Circuit center consisting in spindle. of metal rod Aug. spindle lower end of this constitutes electrodes spark gap, the whole and therefore must insulated from electrode known the other ground as the electrode. Because of the engines, intense in aviation heat mica is insulator. Several used as an thin lamina- mica first tions of wound around the spindle. This known the mica midway “ciga- “cigarette.” About on this tight-fitting bushing brass rette” place spindle. hold it in Above bushing, sometimes both above and it, placed stack below is of mica washers circumference of which snug- the inner fits “cigarette.” ly around This constitutes the center the insulation of electrode. extremely high required An voltage is engines satisfactory create a in aviation 291 high high cylinder the spark tempera- because of in the under di-electric value the explosive mixture. compression prevailing the tures plug opera- during occasionally plug Page 1, tion.” had been found that would 91: “I line have discovered be a because that eliminating miss fire there would pockets, air these the parasitic discharge flashing discharge within the silent or or coronar plug within the ” spark gap entirely rather the structure than insulation at is eliminated flashing scope The high. every where patent resistance This was is the limited to slight space occurred the between air the invention which is covered in the claims washers, “cigarette” read the light specifications. the mica and mica and of the explanation the some it Schriber-Schroth Co. Co., was that v. Trust Cleveland plugs “cigarette” the this air between and 312 U.S. leakage S.Ct. washers became ionized the from L.Ed. Keith Charles high voltage Co., E. electricity the Hires the And F.2d deprived usually when ionization the air of its claim is so there read is doubt good insulating properties only the with result that the advance from the old Kasarjian’s that there was resistance the found less offered construction of the discharge through path spark plug filled this the spaces than across all the that air spark gap. All refractory this was known to the insulating sub- prior art, it while stance. seeking was parasitic eliminate Kas- discharge this that Assuming, deciding, without that arjian invented which the new construction valid, claim is agree infringement patented. he has not been shown. general The structure Kasarjian Although para calls this of the plug accused the that of conven discharge flashing sitic charge” or dis a “corona tional spark plug, aviation but in it technically which is an incorrect parasitic discharge prevented placing term, unimportant relatively refractory substance at only places, specifica there can be no doubt from his just just above and one below the brass jump spark that what he means is tions this bushing which holds “cigarette” the mica A engine causes miss fire. place. practice In actual this is done patentee may him use such terms as to by placing a small refractory amount of the best describe what he means and cement in shape doughnut of a around meaning plain thus makes his “cigarette” either at bushing. end of given Salvage effect. Cf. H. Wheeler The J. pressed washers are then D.C., Guardino, Inc., & Inc. v. Rinelli whole compressed is then part 295 F. assembly usual method. theory The is that refractory these “doughnuts” will act as an patent Claim of the calls an insulating prevent barrier either the spark plug of the usual sort “and aviation leakage electricity parasitic discharge discharges precluding means for corona regardless presence of the of air which in through plug comprising insulating an patented construction has exclud been refractory filling pockets substance the air ed. No effort made to fill the spaces air insulating within the element to exclude completely and that result is not attained. air A residual said reading element.” purpose and the final end of both leaves this claim no doubt but of Kasarjian’s prevent flashing, methods but with theory exclude all the similarity that their ends. To eliminate none could become air so that ionized and spaces thing harmful air is one and to make flashing. path for. the afford a This towas spaces the residual in such air harmless by displacing all the air be done awith quite another and so different a method semi-liquid liquid refractory substance infringe. that it Westinghouse does not liquid porcelain. That gist such Boyden Power Brake invention was exclude of his all air L.Ed. E. Van discharge prevent way in that Cheney Co., Noorden Co. 75 F. specifications. repeatedly evidenced his 298, 302. 2d says, line “I page On find carrying appellant essential to out of inven relies Weiss this v. R. Hoe presence Co., Inc., Cir., air & pockets tion that within where the patentee taught plug structure eliminated thus “air-tight” of an use invention, presence this according to printing of structure in ink fountain for plug presses, where air within the structure eliminated this court found in- fringement in a filling spaces structure that was not the actual all within plug entirely air-tight. structure with suitable substance case was 2&2 too, known, threats of such specifications well that expense, is suits, light said that often induce “air-tight” meant practicable. accept alleged licenses on infringers to complete closure as was engage onerous terms rather than the substance took fountain The accused litigation. patent a the exercise of copied imperfectly. As it invention that There monopoly publicly injurious where when an analogy in is no this patent large, public invalid goal remains the the at plug has attained the accused is, therefore, interest deeply And imperfect copy, by different involved. a but not method; as, spaces under statute and existing patent the by eliminating the air not decisions, one, public, behalf the off harmlessness no of by blocking them into patent de- can have a institute a suit to by effective insulation. invalid, should, think, I clared we avail infringement even no Since there is opportunity wipe ourselves out of to this valid, decide patent be we do the if patent here. Kresge validity. question See S. S. of That it seems clear is invalid 708, Davies, Cir., 711. 8 112 F.2d Co. v. Aircraft, supra. light of v. United Picard Supply Co. v. Exhibit cf. dissent appellee’s brief the instant case 126, 137, 62 Corp., 315 Patents U.S. Ace states patentee hit on the use that the of 513, S.Ct. 86 L.Ed. 736. resort,” refractory “only last material as a Affirmed. adds, “Indeed, be, proved it as problem was not FRANK, Judge solvable (concurring). Circuit a deduction and, by experimentation; but happens, often I think we I concur. But should also trying solved in end it was was patent invalid. That issue hold the something practicable.” seem that did squarely in the court raised below and That raised, brings patentee’s statement issue method court. When such an this directly description invalid, within what patent I of think it and our court, day, this the other held not consti In duty Supply so decide. Exhibit tute 126, invention. Picard v. Air Corp., United Patents Co. v. Ace 62 craft, supra, (per L. Judge where said 513, 736, majority a S.Ct. Hand) nothing is an invention which refused to whether consider the product “the slow but inevitable patent invention invalid for was want * * * progress through trial er holding infringement; was while there no ror” persistent “the exercise explicitly refusal was rested on but that intelligent improvement.”1 search ground that the lack issue of the sole There display ingenu here “new was no invention was not the court as ity beyond compass routineer”; alleged infringer been raised had neither in its Mfg. Co., Kirsch Co. v. Gould petition for Mersereau certiorari nor Cir., 2 793, 794.2 F.2d Supreme Court. brief filed in its here.

That, however, situation unlike the that, It has been said where there is recently infringement, decision no v. United As we said Picard the better Aircraft, Cir., 28, May 1942, practice judge 128 F.2d is for to leave “the 632, 636, more “there stake patent at status of the [in patent it, than issues between presumption had found with the case] clothed parties.” my colleagues decision of validity arising from the fact of appellee, appellant grant.” Co., relieves but leaves free Buick Motor Irvin alleged infringers, putting Shakespeare to sue others Co. v. great expense—notoriously them the patent Perrine Mfg. 91 F.2d defending It Davies, Cir., suits—of themselves. S. Kresge S. Co. v. 112 F. pointed concux-ring opin yers public generally, I out in a As or to the is not suf case, ion in test has the vix'tue ficient to constitute invention.” Radtke reducing subjectivity Corp. Coe, App.D.C. area of in de of ciding Patents what is an invention. As to the certiorari denied 314 subjective factor, Mfg. see —; Kirsch Co. v. U.S. L.Ed. S.Ct. cf. Co., supra. Carnegie Mersereau Gould Steel Co. v. Cambria Iron whether or there L.Ed. something more than “the exercise of intelligent persistent search im- provement,” courts should It be careful not be noted that here there was reactions, large too much their own no need for the investment sums “may stage bring prac- that a device for the fact seem re- device markable, new, profound, law- tical commercial use. of ac- cause defendant’s, as to the ened the agree. conclu I That cannot 2d conceivably upon. It could tion sued all, only if if would be sion sound decision, ground used as a have been patent. aspect public to a to another or as an alternative either alone liti- ordinary private It is true invalidity is ground. holding But a de- confine gation, courts sometimes alternative entirely is an different. suffi- and, point if narrowly, one cisions decision; complaint can be ground of points support decision, other cient invalidity or because of either dismissed if that could Even are not discussed. non-infringement. If a court because of practice, much it loses said to the usual possible avail itself of chooses patent cases. A pertinence in of its another, does com- ground rather than 3 franchise,” legalized mon- “public a is a Suppose error? the issue mit reversible ap- patent opoly. to remain To allow a is we de- infringement Cannot difficult. invalidity the issue of parently valid when But, even if ground? other cide on the patent is raised court sees that the and the rule confines grounds, what both are clear paramount invalid, ignore the is 4a is to it ? If us to rather than the other one public representative Because no interest.4 non-infringement finding a be said that public may have institute a suit to validity, be passing will obviate on it can invalid, patent because a held equal accuracy finding a that said with experts independent courts have staff of invalidity passing on in- will obviate suits, patent courts to aid them in And, fringement. just finding of va- as a must, cases, litigants rely on the in most require pass lidity on to the is- will us when, in ascertaining prior art. But of in- infringement, finding sue of so a patent suit, prior the court aware a require pass on to fringement will us to is- invention, and that art which shows no validity. judicial So far issue parties, by sue raised concerned, economy are no more like- that public seem to interest would reauire ly by looking to in- judicial to save effort decide. he court so should validity looking fringement first than Corp. first, Fittings Electrical likeli- greater there is some v. Thomas & unless Co., 241, 860, patent Betts infringed 307 U.S. 59 83 that a S.Ct. hood be 1263, L.Ed. My guess that improper decided it than that it will be invalid. court, for holding invalidity after that is no is more common there would that infringement, And, course, patent valid; non-infringement. hold the and than it reversed invalidity a decision of finding this reduces ef- fort, prevents which we refused direct suits the District further it Court to reform patentee persons; its decree other expunging finding as to part that of it validity. does non-infringement sustained not. patent For to valid, hold a if it is in- fringed, is to render a opin- mere advisory Supreme All that Court held in the ion, hypothetical to decide a case. cru- The Fittings Electrical case was if there cial fact in the Electrical Fittings Corp. is a decision of non-infringement, there finding case was that a of validity in no properly be a validity. cannot decision of way plaintiff’s position aided the or weak- Westinghouse Irvin Co. In & v. Air Brake 3 Seymour Osborne, 1870, 11 Scofield, 375, Wall. 378, more v. 26 516, 533, 20 214; 33. Cf. L.Ed. United Winsor, States L.Ed. Kendall v. 62 U. Machinery 1922, Corp., v. United Shoe 329, 322, 328, 322, 21 S. How. 16 L.Ed. 451, 463, 363, U.S. 165; S.Ct. L. Corp., Picard United Aircraft 708; Winsor, Ed. 1858, Kendall v. supra. 322, 327, 328, How. MeQuewan, 4a 1852, Bloomer suggested 14 How. It that issue of ap 532, infringement primary L.Ed. cited with because proval plaintiff rights United States v. Univis Lens must show that his have May 1088, But, 62 S.Ct been invaded. unless he has valid Meyers —; Lewis, rights L.Ed. patent, has no he in the device Patent infringement “Franchise” and The Antitrust which an can invade. Laws, Georgetown (1941) trespass plaintiff L.Rev. land, a suit ,(a) both must show 'that has title to public (b) interest, As to the Morton the land and that see the defendant has land; Suppiger Co., trespassed Salt v. on G. S. is no rule must S.Ct. the court first consider the de L.Ed. Unit supra; conduct; indeed, ed States Lens v. Univis if either issue fendant’s May 11, regarded primary, might Corp., United it States v. Masonite were to be —; plaintiff's well L.Ed. Dens- be that of title. Co., Cir., we reversed a rely rule it error to reversible judgment patent declaring the invalid on alone, rely unconstitutionality both pat- where the judgment also held the had unconstitutionality on a non-consti- and on ent infringed. say We did ground. practice, tutional it as a And even pass infringement a court must plainly inapplicable A cases: going validity, on to it and that would be finding of unconstitutionality grave is a improper invalidity pass- step without it involves a nullification ing say, on infringement. We did how- the action legislative branch of ever, that, grounds, where there are two government; wherefore courts should If, then, employ the court cannot both. issue, shrink from and should facing employed the District in that Court case it side-step possible. far In this so solely invalidity, might been well have Supreme comparable juris- Court sustained. alleged in- diction state decisions over right; vade a federal issue federal point If the decided Irvin necessarily presented. must There is open, still I would sanctity patent’s no such attached to a va- indeed, is, way. perhaps other lidity. presumption arising its open (or opened still been closed it has faint issuance is a Patent Office ; court, way) for this in Hazel a new patent one.5 An masquerading invalid Corporation Emerson Television- tine menace, public a valid one is a should and Cir., July 29, Radio, F.2d game. be fair which, just opinion has rendered an infringed, patent adequate say not to It holding after a be is no answer to say on to “even had we come courts concern themselves with it went should not infringe persons parties to protection a conclusion as to to different not ment, be would have to affirmed” fact pending suits before them. The decree invalidity. patent’s daily that courts do so concern them- because event, selves, Irvin case should in the where the ruling and in circumstances de- must, a court in all sirability extended so that far less obvious doing not be so is cases, ground than another far select one rather than here means less effec- and the decision, since, saying even that a Because that to invalid tive. I think hold case, cannot, patent obviously a decide on is mat- which is void court support importance, case I major public Irvin think grounds, the ter' of Fittings (cited point: elaborate that by the Electrical it desirable to ed controlling), and it is case as in the Irvin Perhaps theme in most dis- central practice, everyday with our line out of process the ob- cussions of grounds suits, giving several ordinary judges to consider the future ligation of choose. when we so of decision specific consequences of their decisions. usually presents both stress the “rule” a case discussions is true that where Such aspect Thus ground precedent deci- decisions. another and

a constitutional may prefer Dickinson, paraphrasing (it properly) to (and often sion, courts unconsciously) remarks made they issue if Aristotle’s can. be constitutional avoid years earlier,6 crystallized twenty-two into hundred far practice almost That be

ing, except ference” Patent Office Hamilton, with ministrative Patent have entitled ent Office ucts v. Cir., Supply Chute Co. v. The doctrine heard) This is true public (interested little Office, Timken-Detroit Co. v. proceedings, prior was not F.2d bearing Patents great F.2d determinations Capital procedures because American-National art. limited because, weight on the thoroughly acquainted 64; Lempco no third Cf. Western Auto Mail Chute quasi-judicial of the nature Axle its extent Free has and should generally. often, opportunity findings hearings persons Cutler Enterprise fact the Pat- “inter- Corp., Prod- Mail hav- are' are ad- those who have allowed Corp., cf. Williams chinery brought claims of short their whereas members of the particular ^[*] sideration, ministrative influenced (1942). (T. 6 “Next, ^[*] Patent N. ^[*] duty notice, which makes Woodward, E. Corp., decision of the before them. Cir., laws are justice whereas by feelings System C. try to decide Mfg. Law, themselves Rosenberg Monograph, prospective the case Cir., 121 F.2d Co. United Shoe and A Reconsideration decisions are as a Problem of Ad made after on expediency. Harv.L.Rev. They lawgiver [court] definite cases friendship No. it hard for satisfy will often Groov-Pin long 48. But so much 31) given general, find it 123- con Ma writes, danger miscalculated; “One are in the administration there is an “illusion of of justice purpose.”8 is that the fu- course, present necessities of the problems Of will parties ends, ture the interest not before clarified reference to future but, the court sacrificed as I in favor have suggested, elsewhere such present litigants”; imperative ends, although he thinks it they bearing, have a future judges should “raise their above must significance present minds obtain their consequences, the immediate case before them and sub- otherwise those ends lose their significance. feelings impressions For, ordinate their it is the nature practice of intricate abstract future reasoning, that it never “Tomorrow arrives. today centering yesterday.” future, their Any attention present, mass of it becomes considerations which lie outside the bring is sure to new unexpected color of the case problems.9 at bar.” There is much wisdom Valery’s “ant reference to the Although much can be said for that at- achronism of the future.” considering primarily titude—of decision significance paradox to its reference And the in future judges that when be- unduly given is sometimes come cases—it too much interested in the future conse- weight. quences Excessive their rulings, they concentration of atten- (as are Walter tion, by upper Bingham pointed judges, some years on the ago) out doing pre- opinions cisely their say formulation in what they of so-called avoid—they must eye legal rules, with chiefly hypothetical the im- real but cases, pact hypothetical present of those rules speak future with imagi- for the yet nary cases not court, sometimes contestants.10 The interests of the inadequate parties results in allotting actually atten- before the court tion to the parties interests of the actual are thus sacrificed to the shadowy unvoiced specific existing supposititious cases which claims of it is the litigants in future duty litigation to judges may arise; of courts decide. which Such never and the quite up themselves; for, judicial process catch with never pursuit becomes the of an occur, actually they which elusive horizon cases which are is never reached. No one—except may perhaps future cases deciding that never oc- judges—is those sat- isfied, Legal history cur. shows that such an since the parties interests of the to pronouncements present judicial leads attitude real cases to are overlooked, and the times, which, happy parties are none too in interests of the subsequent cases their effects on are often inadequately cases. For fu- future determined in their develops unanticipated happenings; ture absence. expands doubt it No ego of moreover, stay put, it does not it refuses judge upon to look himself guardi- as the trapped. to general an future. But his more yet important humble more and consequences The intended immediate efforts to individual, fail; actual, govern present the future often task to decide the actual con- may exaggerated respect cases. The sequences—which paid today be good or evil— are, frequently, utterly upper different. judges, Results court as distinguished from they pres- hatred or self-interest affect others lose countless who are not any clear vision of the truth and have and whose ent circumstances are not at judgment society their obscured considera- all identical. Human is not so personal pleasure pain. organized dispute tions or that a between A and judge should, general, then, say, anybody B can be of no concern to else.” things as (1933) be allowed to decide few as and The Law Social Order possible. questions also, Salmond, as to whether Introduction to The something happened hap- has or has lxxvi, Legal Method, lxxv, Ixxx, Science of pened, be, not, will be or will or is lxxxiv. necessity judge, must of be left Berolzheimer, Legal Cf. The World’s lawgiver since the cannot foresee them.” Philosophies (transí.) XLIII-XLIV, Rhetoric, 1354b; Aristotle, Bk. Ch. 142, 168, 350, 435; Kocourek, Leg 2, 1356b, cf. Bk. Oh. 31-32. Function, islative Legal in Science vein, In a somewhat similar Mr. R. Method, L—LI, LV; Chesterton, but cf. every writes the “fact Cohen Wrong World, What’s With The 282-283. presented as an case is issue between two Marshall, Cf. Commissioner v. parties” ju is “a circumstance about our system always tending dicial which is inadequate produce jus concurring opinion view of social J., Stone, judge looking only Willing A Chicago tice Auditorium Asso parties ciation, the interests the two before 48 S.Ct. apt forget

him is his decision will 72 L.Ed. 880. factor, or judges, trial both a cause and cal (3) moral” the “economic” result factor over-emphasis (4) “prophylactic preventive” of this rule-as- factor, pect judicial legisla- (the (S) “justice” decisions.11 Such factor rules n “merits” formulating particular case). tion as inheres The “ad- inescapable.12 instance, factor, be modest But courts should ministrative” relates legislative rule, their the fu- efforts to control to “the workability” of a its “ease and ture, they certainty since cannot function democrati- performance” future. cally, legislative and admin- re- saying committees if we find courts .Thus can, by cases, agencies inviting covery istrative views “in this class of allowed may pros- all litiga- of pective naturally who be affected it would in flood of result And, they complained rules. do not because tion in injury cases where views, ;16 largely learn those must detection” easily feigned without imaginations, they should be cau- their own tious about satisfac- practice impossible or that torily it is “in cases, attempting, present rule”;17 other administer project far exception, their formulations too arbitrary too based that a rule “is an firmly days yet cope into the to come. To upon practicable.”18 of what is notion easy, part none present is too a desire “prophylactic” factor, bred present only moving healthy line fu- judges fashion rules for “to dividing yesterdays tomorrows, “judges so ture,” operative, for frequently happen legislators”; reflections on are un- what prophets are inveterate and they problems. impose avoidable elements of current they dam- penalties, “scale their But, continuity, although backwards exemplary, both ages, punitive both arid forwards, lesson, necessity, extent a to some merely offender’s for the individual harms”; judges present aspect should not shirk the preventive future as a today’s problems much prophylactic in favor too fashioning “spend time much illusory tinkering de- procedural with tomorrow’s.13 The both of substantive rules perniciously tyranni- future can become as purify social sign in their efforts Posterity-worship past. process.”19 cal as the can be through the stream ancestor-worship.14 undeniably bad factors Those and similar always fortunate important. But it is analysis Dean Leon Green’s tentative such fac- to consider first judges tend when upper the factors which affect court deci- their attention turning tors helps to reveal the extent which the sions particular actual parties to the courts, cases, judges of those upon to decide. they are called in the future often interest themselves at the fatuous) sometimes (and present.15 (1) expense He refers to The elaborate potentialities ex- factor, the future (2) the “ethi- “administrative” concern with Ethics, 5, Jury 11 Ch. Judge (1930), Aristotle, Bk. Green, Nicomachear 16, Bk, 3, Politics, 10; Aristotle, 91-92; Ch. Forness, Cir., 2 United States v. Equity, 15-29; Kiss, Law 1287a 125 F.2d 928. Legal (transí. 12 Estate, Method in the Science See, v. Beck’s Commissioner Analy 151-152; Demogue, 1917) 146, paragraph Cir., 243, third 129 F.2d 2 Notions, in Modern 4, view that sis Fundamental for a discussion of the note involves Philosophy 1916) Legal (transí. fact-findings specific French in 345, judicial legislation. 481. kind of noteworthy 13 in constitution seq. 15 76, Green, loc. 77 et cit. peculiar cases, is a ne where there al Ry. 16 Co., 151 v. Rochester Mitchell cessity regarding interests those 110, 354, 107, 34 L.R.A. 45 N.E. N.Y. parties suits which are not who Am.St.Rep. 781, 604. 56 questions, the Su raise constitutional 17 Lynn Co., Spade & Boston 168 R. given increasingly preme has less Court 89, 285, 288, 88, 47 N.E. 38 L.R. Mass. weight decisis, recog stare and less Am.St.Rep. 512, A. 60 adaptation chang nizing need for J., ing Holmes, v. Boston Graves v. Schmid in Homans circumstances. Cf. C. Ry. 457, 30, 1942, 870, 456, lapp, L. 62 S.Ct. 180 Mass. N. March El. Am.St.Rep. 291, E. L.R.A. Ed. 1097. restated, age- problem in can be reconciling cit., terms, Green, as that of the need loc. 98. He cites Mac old legal generality in rules and the need Buick Motor for Pherson v. equitable L.R.A.1916F, the individualization of—or 111 N.E. for N.Y. specific Ann.Cas.1916C, and Priest cases. Cf. Aristo treatment—of Rhetoric, 13, 1374a, ly tle, Fowler, Bk. Ch. 25 to 3 Mees. & W. 31-32; striking 2, 1356b, 1374b, 1, Ch. illustrations. Bk. portant, court should generally, judicial opinions, which pressions in accom- own its deviate, except is, prospectively, in con- specific decisions pany justify case, if that decision prior even measure, in a decision due to uncritical venera- siderable devia- where such error, especially by the was in “standing of the doctrine of tion does, persons acted in opinion who reliance for, tion harm precedents”; if an instance, decision—as, upon for a deci- lay must thereafter truth, down rules which specific legal consequences to assigning lat- sion the courts themselves be followed specific cases, ex- or lease.”21 responsibility words a deed er precedent-worship been so unreflective greater is far than has isting controversies into inquiry insufficient parties to con- there has been fair to the those being need troversies, practical workings. There is judge playing its for then a scep- responsi- constructive apply That to it more of that important legislator. role of however, twenty-five years by Wigmore under- bility, can be too much ticism voiced little paid have too heed ago.22 We scored. Gray—a way Chipman suc- limits, in which decisis, undenia- Stare within has John lawyer course, practicing in the field of real cessful recently, As “Of ble worth. we said all, where, precedent property has above exceedingly cautious courts should be traditionally sanctified—challenged been (at retrospectively) prece- disturbing least fundamental thesis stare when he which men have im- decisis dents in reliance on men, said that few portantly changed positions.”20 As I in the conduct of their their affairs, practical elsewhere, actually past judi- “undeniably, order have said scepticism jus- rulings Perhaps impartial cial his went achieve administration years tice, law,’ twenty Yet, too ‘equality before the cer- far. elapsed tainty, challenge, far im- issued that practicable, as is have since he the desire the Barnett ed posed sion is of tially ers need not Hampden not call for ings. tween those provided incisive product where we vested interest quired knowledge consciousness of duction ence so note 15. 1011. Cf. Hammond-Knowlton v. Unit afforded and another more sary. Equality riman. rights Quest But, Here the States, past pressure persons The Judicial In re of questions for Law and re <1017). Allowing, therefore, for which stare decisis apply or the comment: Legal Method,' the guaranty. Barnett, or with same quoted Dieey: after now Wigmore’s importance. already possessed.” influence of now receives Marine Harbor case, of for stare decisis stems from certainty tomorrow, sameness (1941) also there lawyers future whether XXXVI-XXXIX. receive in their under the equality E.2d supra, Function, something present previous “Equality equal .Ch. XI. And he makes this as decision of substan generation. Gomp- remarks citizen of equal necessary stare men Editorial noted, laboriously principle “If law treatment be- law; protect and legal profes- in Seagle, would lose desired decisis has Properties, of short time with law quoted is not The Sci- our own is neces- some of those Utopia, 300. it does for the Courts Intror today Wigr Har- with sup- The rul- ac- al- of n Jurisprudence, consequences Now the law man If he would men knowledge not law equity principles, often reliers. But tual plication not of ters an act until he ing. Perhaps, ments, ship, law, ertheless, reflect as relatively how much. edge of what Sources generation, ance, er our period inite Doubtless Patterson, interpreted by has institutions “Practically, complicated system through except governing exist." affairs, seldom consult marries, seems, rules impossible delayed proof. community of stare never there is involved in some of its of Law engages appears small is is all and equality vaguest possible where_ who is at the be made 4th But he the even judicial or enters into a to make Gray, decisis.” of a few crude notions of understood times, reliance (1921) precedents them, probably it should be otherwise. same to ex amount of actual in its most of the involved, the Ed., attitudes; courts which a so, the lawyers post be matter of faith keenly situation, calls lawyers concludes lawyers. The Nature formulations often but no some s. great majority other application on have imply 225. facto. him contract or do exactly therefore jurisprudence, have aware of the the contract the vague draft man has no but that idea transaction, before act- as decided one knows Of. that “def- laity, that, act Our decisions aWhen guidance if it did partner general instru- knowl- all the Austin, longer to ac done. larg- nev- reli- and im- fil- of ' , it, lawyers persons can be changes, Wigmore suggested, few met and most such have as retroactive, many declaiming life judges go prospective, made and not unbearably any uncertain did there would be if courts where likelihood not adhere decisis sanctity their earlier formulations of reliance.24 If the of stare diminished, if “principles.” moderately “rules” and know were We virtual- thus do, nothing they ly employed of which men the extent to authorities were fact, If, e., scholastics, past utterances. when much abused i. reasonable,25 judg said, upper court is often decisis is bottomed on shown to stare be something prestige, es but estoppel, might courts lose some of their like should aloofness, could, changing reducing previ- be too hesitant about their their Jovian litigants change highly ous formulations de- devote more time to the interests sirable, possi specific to the proof less the absence of of actual re- actual “just” of those ble future harm of decisions litigant opposes who such a liance actual controversies.26 such change. might It well to hold that be es- presumed pre- judges Fortunately, reliance but that have devised wise And, event, capes rul- sumption improvidently is rebuttable. from formulated 'Keon, dation; be not be found Justice Jackson Utah examining be scholastic For that in contradictory rassment, Ct. erence tics dozo, The unless 77 L.Ed. could question in mind which there is after on the ern so far as retroactive ess, Maughs, tive factor”? 903, relates to value, yers ests ing of reliance tions in Prospective held. Ryan, brief turned in Wigmore remarked, “But courts Wigmore, loc, Ry. 146-149. the reason of truth could find new if only old it Selections recent given date, what the law.” a 149 Cal. Co. statements, and who Aldrich, Authority, Contracts, he refers judges see problems rule. lawyers, Nature authority the good rule could clients Is his to over-ruling fortified acquired v. Green calls statements. suggests, Cal. has over-ruling dissenting 85 A.L.R. authority reference interplay any Sunburst common criticism laymen, scholastic was one who it, proof from April be discovered best on their a reference, was past thinkers —. cit.; of The Judicial Proc 364, 92 embarrassment which the State as one of direction whatsoever nose wax: were solved and if Constructive Condi- judges, knowledge their vested convinced opinion Col.L.Rev. of actual reliance Medieval Philos- to cases orderly cf. reason.” of such made either to such embar now opinion 254; People P. future Tax Oil Authority lawyers? And, would relieve without P. least Great reason could 187; People does “administra- 1942, 62 S. so the scholas- & applicable, Comm, occasions. side of could not far as it solidified function- Refining eases possible for law- he have further it arising North 1 Me- (1942) inter- foun- may Car 145, Mr. ref- v. a test. raeli had who And the from that to lars. Such unsound, action the appealed ples. liked two choices the are stimulated ois’ may praise ing. “facts” of a case Johnson living,” 100% uous. What Gladstone especially chief hindrances ic more himself. the thinking. 1388b, Roger cluding suited ophers In I Of course the selection of the relevant facts of truth” is “the the uncritical important note 46. description The word confess conventional comments competition vice general are this affect the The choice of to choose an abstract the reverence adequate He liked Aristotle, When authority.” Bacon conscious; 4-10. of ancient authors (1929), of interest Aristotle, is a sort Corp., Cir., versa. to his activated to connection, where process specific a care of a and Disraeli: classify judges aspects may deduce Disraeli horror of is meant said role. Perkins classification “just” consideration Hobbes, General certain of the differences primarily by selection imagination. Rhetoric, example on the use at one cases. that Hobbe’s that one of primarily by particu intuition often putting not a his of inter-action of those mutual is, evidence highly complicated. pertinent it is changed ideas because echo Introduction, here Leviathan preferences. cases—and those ground abstract authorities, Bk. time, simple process, dead, course, tempting, understanding recalls principle as those on scholastic proceeds them frail and by “just” envy rules—i. “Gladstone always He left his Aristotle Endicott I criticism between conflict- “facts,” Ch. to the princi ambig specif Maur voiced views, (1651) plays “four from they Dis who “the XV. rule but un- 10, in- e., to instance, future, very recog- the attempt courts have to assert those For the ings.27 rights. circumstances— revok- question nized the that chance It resembles the fact parties ing peculiar the interests the license drive an automobile such as to incompetence incompe- man proved to a suit28 or the laziness who been to be an has ade- lawyers29—may prevent spe- the of their tent that deciding driver: whether aspects of a presentation the quate of all drive permitted cific man should to be neglect induce and thus necessary the to future, it is consider those aspects, inadequacy in those with resultant if may injured who his conduct be future the Su- judicial generalizations.30 So the revoked, preceden- his the license said, “Questions preme wisely Court has litiga- tial on future effect decision record, neither merely lurk in the tion, way specific relating to that nor brought court the attention man, is, relatively, unimportant. public upon, as hav- are not to be ruled considered interest in his later activities should be prece- ing as to constitute been so decided paramount potential His fu- consideration. dents.” and, present, ture for that victims are not But, done, problem what is matter reason, a ma- very their interests should be will not deciding so that decisions upon to jor concern of tribunal called hurtful, litigants, precedents, to future as render decision. surpris- easy not too solution. It is Consequently, if must here choose we my colleagues, then, like all ing, who between is not valid must, seek, every day, judges, they infringed—a choice or is I think we are problem, refuse, in the that difficult solve required choice should to make—our bar, problem the case at to tackle a solu- choice, By such a do the former. simpler tion which is far and with results patent system. It is under no harm to the easily ques- far more foreseeable: Here the today, may fire not survive attack un- consequences, tion is not of the future on Among major are removed. less its abuses possible suits, gen- litigants future persistence is the cancerous such abuses opinion eral rule articulated in an accom- metaphor, “spurious” To shift decision, panying how but of a decision as patents.32 on they Zombis. Their attacks specific rights person are vicious particular of a patent system public bring interest may others not in the court affect disrepute. may, against person whom same into ly) his ponents judge—and est portunist, being cided. tions ferences between those two men existed trinaire.” Whether a Disraeli. judge thought raeli, rulings. helpful “friends of the court” In re appear titude decide Macaulay ^[30] admitted It has Cf. Permitting constancy time 59, 64, it has heard two when both not point Barnett, may changeable; Quong they seems opportunist; Gladstone, did, prided to time. been said doctrinaire, part preventing even he said occasions, be doubted. stated arguments Wing to have it change might percentage himself on in a Gladstone and blades Cir., 124 planks. question vary (perhaps not correct- it is “that a such clear-cut Gladstone is one prided neither such and was particular able men conventional Kirkendall, from said that of straw and 56 L.Ed. judicially being tribunal device most improvident F.2d himself those side self-inter- judge assuming made ready fastened actually a doc argue, fairly judge every often men- com part Dis dif de- op at- on v. Endicott than “two As nature pects. 45 S.Ct. plate reason; Essay will make tentious mode of court above, pertinent 197, 198. often points. alistic attitude consideration will variably posite Moreover, Undoubtedly, true, page unfairly Webster v. judge Demogue 57 S.Ct. v. Associated sides help to Woodward, happens superior In re History litigation will- be case under is certain that no different Johnson text, suggests, Green, it. But, Barnett, rules. towards possible, worse bring Fall, eloquence altogether (1828). * * * compelled law suits. loc. cit at Press, usual aspects” L.Ed. 266 U.S. loc. Corp., Demogue, out most of appear least certain that the reasons noted create a sometimes more supra, the “duellistic” on the two procedure cit. two-sided con- Sometimes, 411; KVOS, not what different escape facts or the of a case. important 507, 511, Cir,, dexterity false loc. Perkins contem- note note.” better does cit, du op- in- as-

Case Details

Case Name: Aero Spark Plug Co. v. BG Corporation

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 14, 1942

Citation: 130 F.2d 290

Docket Number: 319

Court Abbreviation: 2d Cir.