(dissenting).
With regret, I find myself compelled to dissent. The Wisconsin and California cases between the parties here, based initially on the ’143 patent, were filed on or about November 26, 1958, and March 30, 1959, respectively. The ’143 patent related to a waste disposal device embodying a splash guard which (with supporting means for the grinding mechanism) is mounted on and supported by a sleeve adapted to be supported in a sink drain opening. -
The ’949 patent issued March 31, 1959, about a day or so after the California suit was filed. It relates to a garbage disposal device embodying means including a grooved thin wall steel sleeve and snap-ring construction for supporting the grinding mechanism in a sink drain opening.
The settlement agreement was entered into March 29, 1962. Physical specimens and drawings of portions of the accused devices were among the “facts pleaded” in the prior litigation settled by that agreement of March 29, 1962. The very same elements and features of the current models now accused in connection with the ’949 patent were embodied in the models which were accused in connection with ’143. Defendant was surely well aware of its own patent claims in ’949. That patent is mentioned in a memorandum dated October 19, 1959, and the application for. that patent is mentioned in an Amendment of Royalty agreement dated April 18, 1957. Both documents are listed as exhibits which the defendant proposed to offer at the trial of the California case.
I would agree with the District Judge that “the current claim arises from elements of the same device pleaded as infringing in the California suit,” and “falls within the scope of the agreement barring claims ‘arising from any of the facts pleaded’ in that suit.” I would affirm the judgment of the District Judge, adopting his Memorandum of Decision as this Court’s opinion.