Melvin Varnish v. Best Medium Publishing Co. Inc.
405 F.2d 608
2d Cir.
1969
Check Treatment

*1 Thеy primary completely priority. question is of consider the purpose proceeding. of a section of whether contend that the issue public use or Boyce patent in if the district We therefore hold that year prior to his on than one sale more court, priority of consideration unless and application is not relevant herein, up- following remand issue first determined until court district Patent determination holds the Office priority. Boyce had invention priority, that the Anderson invention appeal, ruling upheld position. on agree plaintiffs’ is public 102(b) controlling will no section issue follows rule stated as Boyce 13, 15, invention. Kepner, or sale as to the use in Sanford v. or, hand, if court 75, 76, On the the district other L.Ed. 12: S.Ct. plaintiffs court, appeal, on holds this quoted purpose “The obvious issue, priority court’s the district part 35 U.S.C. § 4915 [now R.S. § made, determination, already remedy give judicial a 146] is public Boyce or on invention in use finally applicant been an who has date, prior will critical then sale to the patent Patent of a denied a because present ripe here on for consideration against him and Office decision sup- appropriately as record and briefs question adversary on favor of his plemented. priority. de- trial court When the further Reversed and remanded priority cides this factual issue opinion. proceedings consistent with against the re- him and thus affirms pаtent by Patent Of- fusal remedy fice, the full he has obtained gives Only he wins if

the statute him. may proceed.” priority pro- If the a court such ju-

ceeding, challenging party, as dicially priority, court held to have VARNISH, Plaintiff-Appellee, Melvin may then, proceeding, inquire in the same bearing upоn whether into other issues Inc., CO. BEST MEDIUM PUBLISHING challenger patent. to a is entitled Defendant-Appellant. because, such court This is true No. Docket 32359. action, challenger usually seeks Appeals directing Court order the Commissioner issue United States Circuit. Second Boyce, Letters Patent him. as challenger case, sought re- such in this Argued Oct. 1968. Kepner, lief. See Sanford v. Decided Dec. 1968. 15, 73 75. also Hill v. Woos- S.Ct. See April Denied Certiorari ter, 693, 698, 10 S.Ct. See 89 502; Trust Co. v. Cleveland L.Ed. Berry, Cir., 99 F.2d 521-522. judicial

However, that, upon fact priority

determination favor

challenger may inquire further the court

concerning issues, validity such public requirement

“in or on sale” use 102(b), mean does not U.S.C. § here, may, bypass that the court it did directly proceed рriority issue validity exclusively issues to other

concerning plaintiff’s application ‍‌​​​​‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌‌‍patent. a course The result of such *2 (Jaffe

Ernest Allen Cohen Cohen Ber- Crystal, City, man & New York brief), plaintiff-appellee. Taylor Taylor, (Kaufman, Irwin M. Miller, City, Kimmel & New York brief), defendant-appellant. LUMBARD, Judge, Before Chief Judges. HAYS, KAUFMAN and Circuit Judge: LUMBARD, Chief prеsents appeal ques- This the difficult article, appellant’s tion of whether “ ‘Happiest Mother’ Kills Three Her Herself,” sufficiently Children and support untruthful and offensive privacy. invasion September, 1963, In Melvin Varnish’s their three infant children killed March, 1964, In and committed suicide. Publishing Co., pub- Best Inc. Medium weekly, lished an article in The Na- tionalization, Enquirer, purporting tional describe invented the defendant give in con and reactions ironic and sensation- Varnish’s actions tragedy.1 twist, publication The article al of- nection with community fensive to standards decen- newspaper previous re was based cy. alleged article caused author, ports police records which job distress, him mental severe loss of Donahue, On had collected. James *3 opportunities and loss of friends. article, plaintiff commenced of this basis diversity Dis in the Southrern action a case was tried before claiming privacy, trict for invasion jury, which, to after instruction appellant objection, re portrayal his wife and his no made awarded plaintiff $15,- conpensatory $5,000 and complete fic- lationship a her was put other end of thе hose She follows: article read 1. The open partially through window and a was known as Joanne Varnish Mrs. got neighbor- fumes happiest then in the car to for the wait in the woman put sleep. to them all to hood. Danny good young, pretty, in the with his was front seat had a was She lovely mother. children. three husband and together bright, Cuddled the back seat com- cheerful and She family. Things Debra and Mitchell. pletely were her to devoted anguished smoothly always when he Varnish’s screams in the Varnish ran tragedy came neighbors, awakened household. depart- neigh- smoothly аnd called the fire more than one So community Calif., Concord, ment. in their bor vainly them Firemen worked to revive said: hospital. family. and them then rushed to a a model “Now there’s desperate They’re always ef- While doctors continued contented so children, happiest tо revive the mother and forts mother in and she’s the neighborhood.” police a note left Mrs. Var- found Varnish, : looked nish for her said Mrs. Each week explanation you bowling going to let hus- “Just a note with her to forward going put band, Melvin, know I am three auto a successful myself sleep having They fun children and forever. salesman. go years. doing on.” can’t it for explanation explained regular It was an their Then November last nothing, weekly night, bowling least of all to told her hus- the shocked Var- she going nish. feel like didn’t band that she stay bowling, “I He said: can’t it. home understand We rather she’d troublеs, evening. quiet had no no troubles all. at for a you happy.” go “But were him: said to Then she discovery good along, dear, Three hours after the a time. and have finally us, tragedy, up worry gave we’ll all doctors about “And don’t pronounced you get asleep the mother home.” аnd children fast when dead. her and left. Varnish kissed tears, Varnish broke into home—and went from returned At 1 a. m. he child, empty. child to kissed head each on the found house through racing and sobbed: the house He was forgive coming “We’ll have to We’ll her. music from the when heard forgive garage. have to her.” garage. But it would be easier for Varnish He dashed to the The music only if he coming could understand from the car radio. happiest neigh- wife and mother in the also found and three his wife childre suddenly Debra, 5, Mitchell, 4, borhood kill her Danny, decided to n— three children and herself. mоnths. right. Mrs. Varnish had been 2. Plaintiff at trial introduced evidence that were She and the children all fast attempted as a result of the article he asleep—forever. suicide, psychiatric suffered the need for Mrs. a Varnish had attached vacuum attention, unemployment, suffered cleaner to the exhaust on the hose community, shunned in his and became family car then sat the suffering. children the victim of severe mental Thus, ample sup- the car. there was evidence to appeal, ap truth. After a punitive On review of the entire rec ord, ample wе conclude there was there is insufficient pellant contends finding find, did, support of invasion evidence as it evidence Pennsylvania and fed privacy met this burden. under motion law,3 its therefore eral Appellant no claims motion verdict its directed false in evidence notwithstanding the verdict respect. However, con- material granted. find As we been should have trial, here, tended at does without appellant’s contentions him cast in a false and unfavor- judgment. merit, affirm the we light, “happy able throughout mother” theme used per Although article was fictitious and was intended unwarranted to redress mits tort action ironic, plaintiff’s to be to indicate in- Aquino privacy, invasions sensitivity caring and lack of and under- *4 528, Co., Pa.Super. A.2d 422 154 190 standing for his wife. The record shows recognizes privacy (1959), actions that it Varnish, being that Mrs. far the from carefully in to order must be scrutinized mother, reality happiest was in a de- Amend First avoid interference with spondent, depressed extremely and un- speech guarantees of of freedom ment note, The woman. suicide Co., supra, press. Aquino v. and expressed unhappiness itself her extreme 425; Publish v. Dell at Jеnkins 154 A.2d possession, and which in the author’s 1958), (3d Co., ing 447 Cir. 251 F.2d quoted in the in a article somewhat 1362, 921, 2 78 S.Ct. cert. U.S. den. 357 distorted manner: Time, Likewise, Inc. v. in L.Ed.2d 1365. “ * * * police note left found a 534, 374, 17 L.Ed. Hill, 87 S.Ct. 385 U.S. Mrs. Varnish for her It said: (1967), Su the United States 2d 456 explanation you Amendment preme that First ‘Just a in to let held note Court press going forbid guaranteеs speech put I know am three to the showing myself sleep “knowl recovery, children and absent a to forever. disregard falsity go edge in I or reckless can’t on.’ truth,” privacy involv actions the in explanation explained ing While public interest.” “matters of nothing, least of all to shocked the public interest” scope of “matters Varnish.” defined, clearly it cannot be not been explained The actual note fact Enquirer subject of the doubted that fully: suicide 4 more murder-suicide, article, within that is explanation Hill, “Just a supra, note to let Time, category. Inc. v. Cf. you put going know I am 534; to v. Jenkins at 87 S.Ct. myself sleep three Publishing Co., children and supra, F.2d at for- 251 Dell go longer. I can’t on 450-452; (2d) ever. I see 652 Torts § Restatement myself. 13, 1967). no future it children or (Tent.Draft No. Thus F [plaintiff] impossible Mitch is to es upon the was incumbent only way get away is the from was false tablish thаt article knowledge it him. I’ve had a miserable life since with it was for the time met him. Tell Uncle reckless Chris was false compensatory press jury’s finding port is involved federal law is of Corp. Diapulse Birtcher course also v. relevant. Cf. 1966), (2d Corp., Cir. F.2d Although appellant argues only part dеn., S.Ct. cert. U.S. quoted of the letter was because Donahue L.Ed.2d story,” wanted write a “nice it apparent Penn- that had the was a resident entire note been 3. Since publication, printed, “happiest sylvania approach, at the time mother” selling agreed point, impоs- parties law would have been apply. freedom extent sible. To the should relationship sorry ture of him and his about I'm Uncle Butch in 1961. his wife. money they loaned each me * * * I’ll never have much I owe so are also satisfied anymore.” anyone to bother properly issue instructеd than “more stated The also knowledge It was and recklessness. neighbor” Mrs. Varnish had said one negligent misstate told that innocent or neighbor- “happiest mother in suffice, ment reckless neighbors’ state- hood,” the two whereas requires must ness “that the writer author to the available which were high ments probability aware of a “seem- merely the Varnishes stated might false, knowing statement * * * fairly get along well.” ed to that, takes calculated risk and dialogue and fictionalized also contained publishes anyway.” Compare it St. It concluded: inaccuracies. some 727, 731, minor Thompson, Amant v. (1968) 20 L.Ed.2d 262 “ S.Ct. * * * be easier it would (must fact show “that defendant only understand Varnish if could entertained serious doubts happiest wife and ‍‌​​​​‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌‌‍mother publication.”); truth of his Garrison suddenly neighborhood decided Louisiana, herself.” kill her three children degree (1964) (“high 13 L.Ed.2d 125 that his wife trial testified Plaintiff at falsity”). рrobable awareness of their *5 repeatedly happy person; not a he of recklessness consists Evidence however, testified, that he understood largely testimony of the author’s on cross- they problems, had a that and her her basis, except examination that he had no that he did what difficult life and “presumption,” labelling his own Mrs. could for her. happy Varnish a Both appellant agree with We the police reports, the suicide note and the fictionalized minor inaccuracies possession, which author had in his the privi dialogue the defeat will not alone indicated the did not Varnishes lege granted publications of to truthful Likewise, have a home life. Spahn public Julian v. interest. Cf. manner in which the suicide note was 324, Messner, Inc., 274 N.Y.S. 18 N.Y.2d by used the author could taken as 877, (1966), vacated 2d 221 N.E.2d 543 evidence intent or recklessness. 239, remаnded, 87 S.Ct. 387 U.S. jury Therefore entitled to find rearg., 1706, 744, N.Y. L.Ed.2d 21 18 article was with 124, 832, N.E.2d 840 286 233 N.Y.S.2d knowledge false, noted, in reck (1967), probable jurisdiction it was or 393 80, 818, 21 L.Ed.2d 91 U.S. 89 S.Ct. less truth.5 (Oct. Allen, 1968); Koussevitzky 14, v. argues Appellant also 484, 479, Heath, & Misc. Towne showing no of the article was 783-784, App. 779, aff’d N.Y.S.2d persons ordinary fensive sensi (1947). The Div. 69 N.Y.S.2d bilities, Pennsylvania required by as law. here, however, specifically district court however, ignore held, jury in in ‍‌​​​​‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌‌‍a minor instructed quite one, required them to find case similar to this accuracies competence peculiarly falsity. light issue is within “substantial” In of the evi Co., jury. unobjection Aquino Bulletin v. dence outlined above and say supra, instructions, 154 A.2d at 430. We cannot able we believe Enquirer accept plaintiff’s of law as a matter was entitled to per present article would not offensive to view that article as a whole ordinary substantially pic ed sensibilities. and distorted son false jury’s punitivе supports This evidence also award Co., Pa.Super. appellant Aquino hold, See 528, 154 v. we to Were (1959). A.2d 422 urges, on this record recovery, there would entitled to The media must allowed wide news be they reckless, ir- restraint be insufficient leeway deciding report will what journalism responsible, and untruthful they report See how will it. St. press. guise of freedom under Thompson, Amant v. S. applied think that the standards (1968); Time, Ct. 20 L.Ed.2d 262 required court, in- the district Hill, Inc. v. 87 S.Ct. falsity and offen- tentional reckless (1967); New York L.Ed.2d 456 Times ordinary persons sensi- siveness Sullivan, 254, 84 Co. v. balancing bilities, represent proper (1964). 11 L.Ed.2d 686 ex- publiс 'freedom of' interest pression interest individual privacy. judgment is affirmed.

HAYS, Judge (dissenting): Circuit

I reverse the agree court. cannot district CALDWELL, Appellant, Robert Garrett Enquirer majority’s conclusion materially false. America, UNITED STATES argument rests, entire Plaintiff’s Appellee. majority indicates, theory that No. 23035. stоry portrayed him in a false and Appeals States Court United light by implying unsympathetic Circuit. Ninth sensitivity lacking in and under- Jan. standing. objects particularly to the *6 Rehearing did not statement the article Denied Feb. why her- understand ‍‌​​​​‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌‌‍his had killed wife plaintiff that he did self. But testified

not had killed understand wife his swear that сould not

herself investigating police

he had not told the inability

about his to understand. part suicide If omitted included,

message it accurate

would have been more but not have reflected light. better irony description of the properly be held cannot pro-

justify withdrawal of constitutional

tection. if it be

Even assumed

contains false statements some knowingly they or reck were

lessly, nothing the statements ‍‌​​​​‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​​​‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌‌‍there is is so offensive as

as to justify the article is That verdict. clearly bad taste not sufficient. go “beyond limits of decen does cy,” plaintiff is to as it must if recover.