Patent rights, Aberrations, Lures and Scams (Legal)

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Dorsey mentions that:. Evidence of the understanding of General Electric of its boundaries was suggested by the Government in a memorandum dated December 23, , forwarded by Mr. Kewley of that Company to Mr. Gerard Swope, President, wherein it is said:. The only domestic sales of glass we make are to the R.

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Radiotron Co. In a letter of March 13, , Mr. Hughes of General Electric wrote to Mr. Soll of the Empire Division:. They are in position to furnish bulbs to anyone on the outside. The Government further submitted that orders for glass lamp parts of types of which only General Electric had a supply on hand, would be placed with Corning which would bill and collect the amounts due, but the merchandise would be purchased from and would be shipped by General Electric directly as an indication of General Electric's complete disinterestedness in competition with Corning.

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This is further emphasized by the fact that when General Electric with Corning's consent sold bulbs to Chicago Miniature under an "informal arrangement" Corning expected General Electric to make regular reports of such transaction Ex. General Electric again declined to be bound by the statement of Corning representatives and asserted that the Government misinterprets statements made by its own agents, Messrs.

Kewley Ex. It reiterated that it was prompted to adopt the policy of not furnishing glass by business reasons of its own and not any agreement with Corning and argued vehemently that Corning made its independent decision to adopt the policy of not entering the lamp business and submitted that there was no evidence to support the contention that there existed between Corning and General Electric an agreement not to compete with each other.

The facts show that General Electric made some sales of bulbs and tubes with the specific consent and knowledge of Corning. At least two areas for this type of business occurred; one was in connection with the shipment of bulbs to Chicago Miniature and the other in the sale of bulbs to R. In each instance the prices were upon the same basis as the prices charged by Corning and were with the full knowledge and consent on the part of Corning.

Indeed, the R. Radiotron and when General Electric made shipments of bulbs to Chicago Miniature it was expected to, and promptly did, report to Corning the details concerning such shipments. The Government alleged that by virtue of sales agreements with Corning General Electric enabled itself to secure control over Corning's prices. It specifically complained about an agreement between Corning and General Electric made as of June 30, Ex. Prices were established for the sale of glass to General Electric by Corning under formulae based in part on General Electric's cost of manufacture and a complete exchange of cost information was provided for.

In Westinghouse agreed to buy all of its annual requirements of glass from Corning Ex. Corning agreed to supply Sylvania and Consolidated with all their requirements of bulbs, tubing and cane at a price as low as that to any other customer Exs. Under these contracts the Government complained that General Electric's cost of production influenced the cost to others, and that General Electric in effect under-wrote the position of Corning as exclusive seller of bulbs. The Government argued that it was the purpose of General Electric to keep independent glass manufacturers from gaining a part of the market large enough to enable them to supply independent lamp manufacturers on a mass production basis and that this purpose was accomplished.

General Electric, on the other hand, asserted that the contracts between Corning and Westinghouse and General Electric's "B" licensees expired before the institution of this suit by their own terms, and that if Corning had discriminated in the past against any other customer that the situation had been completely cured as a result of the filing of the Corning consent decree. However, it argued that there is no evidence that General Electric had in any way participated or had knowledge of Corning's sales contracts with its other customers and that General Electric at most had Corning's price lists.

The expiration of the contracts was within the period of a month of the filing of this suit and the consent decree filed on the part of Corning cannot be held to cover the issues raised in this case.

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The evidence discloses that the relationship between Corning and General Electric generated a condition whereby Corning preferred Westinghouse and General Electric's "B" licensees' business and that its other and independent customers were required to pay prices in excess of those with which Westinghouse and General Electric's licensees were favored. It denied that there was any connection between the percentage of General Electric's purchases and its power to fix Corning's prices. It asserted that the exchange of price information with Corning was solely for the purpose of promoting efficiency of production and lower cost of manufacture.

It alleged that its contract with Corning was in the usual course of a purchaser including in its contract provisions beneficial to itself. General Electric further contended that the evidence shows that the purpose of this provision of the sales contract was to provide for an outside source of supply of glass adequate to protect General Electric against such curtailment in its own production as might result from tank failures, strikes, war shortages and similar hazards, and that in practice the provision has been ignored by the parties because General Electric has never been called upon to purchase any bulbs under it.

It is also significant that Corning produced all of the bulbs for sale in the country except those produced by General Electric and such as may have been imported; the latter two categories being of insignificant consequence. Even in the absence of any showing of direct connection between General Electric, Corning and General Electric's licensees the hard fact remains that following in the wake of Corning's and General Electric's sales agreements there was an advantageous differentiation in price structures made by Corning to General Electric and its licensees over those who purchased independently from Corning and the base upon which these prices were fixed inevitably was formed out of General Electric's cost figures.

All of these considerations lead to the conclusion that General Electric wielded a very powerful influence over the price structure of the bulbs susceptible of and producing the resulting constriction of the market which the Government charged. The Government alleged that in order to bring patent rights and licenses of other glass companies within the field created by General Electric and Corning, and in order to prevent competition Corning entered into agreements with the Hartford-Empire Company.

It is claimed that by virtue of its agreements with Corning, General Electric secured the benefits of the agreements with Hartford. Hartford-Empire Company held patents for the manufacture of glass containers and in Corning secured for itself exclusive rights in the field of bulbs, tubing and cane for electrical purposes Ex.

This charge is supported by reference to certain documents taken from the Corning files.

One of these is Exhibit G which consists of a letter written by Corning's attorney, Mr. Sayles, in December to Mr. Falck in which he reviews the then existing agreements with Hartford-Empire and gives his opinion as follows:. General Electric contended that there is no evidence to show that it participated in or knew of the contractual arrangements between Corning and Hartford-Empire. It insisted that the statements of Corning's officers relative to the purpose of the Hartford-Empire contract were inadmissible against it and if these statements are considered they show no more than that Corning believed General Electric received some indirect benefits from the Hartford arrangements.

General Electric submitted that such benefits without participation in or knowledge of the agreements between Corning and Hartford rendered it no party to them. It further denied that it received any benefit whatever from the Corning-Hartford relationship. The evidence is convincing that the relationship between Corning and General Electric inspired the negotiations between Corning and Hartford-Empire in order to protect the field in which Corning and General Electric had agreed they would operate and it also appears that Hartford-Empire in its dealings with Corning and other glass producing interests always reserved the rights within Corning's field.

See 46 F.

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This was not the only instance where sources of potential competition and intrusion into the field were eliminated. There was also an option agreement between the parties under which Libbey could require General Electric to purchase the property and if its option was not exercised prior to July 1st, then General Electric would have an option to purchase any time prior to July 1, Ex. Apparently neither of these options was exercised and in by a series of agreements with Libbey, Corning purchased the business including plants, equipment and good will of Libbey in the glass field which included tubing and cane Ex.

General Electric strenuously objected that there was no tie between the Corning-Libbey contract of and the contract between Libbey Glass Company and General Electric. It called attention to the fact that the contracts were submitted to the Attorney General in the course of the investigation which preceded the suit and claimed that due to shortages before World War I it made many attempts to augment the production of bulbs for its purposes. One of these efforts was to lease one of Libbey's plants and the lease arrangement called for options upon the part of Libbey to sell within a certain period and thereafter for General Electric to purchase within one year.

General Electric contended that its contractual relation with Libbey did not prevent that firm from producing bulbs, tubing and cane for many years.

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Even though it be conceded, as argued by General Electric, that there is no showing connecting General Electric with the purchase by Corning of the Libbey plant, it is nevertheless implicit in Corning's activity in reaching out for the absorption of this source of production yet available in the field that the effort was made to further close off the area in bulbs and lamps which Corning and General Electric had allocated to themselves.

In and General Electric entered into cross licensing agreements Exs.

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Kimble continued to make sales of bulbs and tubing to independent lamp companies until The Government charged that in order to eliminate the competition furnished by Kimble, Corning entered into agreements with Kimble in in which each party agreed that for a period of 17 years it would not produce or sell tubing, cane and glass ware falling within the exclusive field of the other Ex. Corning's exclusive field was delineated as including products made from tubing and cane for use with electrical devices.

Kimble's exclusive field included products to be used in the medical profession such as ampoules, droppers and vials. In the agreements were superseded by a new agreement which carried on the same division of fields Ex. The Government offered evidence to show that both parties carried out the terms of their agreements strictly, steering business into the respective channels they had contrived. General Electric challenged the Government's allegations with regard to the Kimble-Corning agreements with the assertion that there is no evidence whatever to show a relationship between the General Electric and Kimble agreements and the Kimble-Corning arrangements.

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It sought to explain the fact that licenses by Kimble to General Electric were for the electrical field and those from General Electric to Kimble were for vials, ampoules, droppers and chemical glassware with the argument that these were the fields for which General Electric and Kimble had been licensed by Libbey under the Danner patents. The design of the pattern is brightened when it is considered that through the seeming independent negotiations by Corning with Hartford-Empire, Libbey and Kimble the domination over the manufacture and sale of bulbs, tubing and cane for electrical purposes was promoted to a point where the products could be purchased only from Corning with the resulting benefits by way of stabilization of the field to General Electric.

The Government claimed that the acquisition of the Peiler and Pipkin patents showed how General Electric and Corning have conspired to maintain the monopoly. General Electric obtained an exclusive license to the Danner machine, rights to which Corning acquired through American Blank from General Electric.

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This patent issued in and General Electric and Corning regarded it as controlling the manufacture of tubing and cane. The Peiler Patent, issued to Hartford-Empire in upon an application dated , preceded the Danner patent and dominated several of its claims. It is argued that General Electric and Corning were moved to purchase the Peiler patent in order in effect to extend the Danner patent from to nine years. The Government argued that in order to obviate the objection to the Peiler patent's questionable validity, Corning and General Electric licensed Libbey, Kimble and Demuth Glass Works following a successful infringement suit against the latter by Hartford-Empire and Corning.

General Electric claimed that no letter was introduced in evidence between General Electric and Corning upon this subject. It discounted the letter from Mr. Dorsey, counsel to Corning, addressed to Mr. Falck, its president Ex. It asserted that the fact that it was offered a sub-license under the Vello tube drawing machine purchased by Corning and that it declined to acquire such a sub-license demonstrated clearly that it had no interest in acquiring extended patent rights relating to tube drawing.

It is critical of the Government's attack upon it in connection with the Demuth patent suit and charged that the Government unreasonably attempted to show that it had an interest in this suit and its outcome. It argued that in view of the fact that it merely had a paid-up, non-exclusive, sub-license giving it no control over the Peiler patent and no right to any royalties resulting from sub-licenses, made it obvious that it could have no motive to agree with Corning that it should refuse to sub-license others under the Peiler patent.

General Electric's association with Corning in the procurement of this patent was altogether too close for it to be permitted to relieve itself of the imputations of mutual interest of Corning and General Electric found in the documents from Corning's official files written by its responsible lawyers and officers wherein the advantages of the Peiler patent to the production of bulbs and incandescent lamps were reiterated Exs.

To be sure these documents are written by Corning officials, but in some instances they are addressed directly to General Electric executives and contain convincing recitals of what was going on in the minds of the parties. There can be no doubt of the joint estimate of Corning and General Electric of the Peiler patent and of the joint effort to get Kimble and Libbey to take out licenses and acknowledge its validity.

Similarly there can be little doubt that General Electric approved the course pursued by Corning's counsel in the suit against Demuth when it was recalcitrant about taking a license and acknowledge the validity of the patent. The Government contended that General Electric attempted to enlarge the patent monopoly on the inside frosting of bulbs by the use of the pipkin patent despite the fact that in an inter-office communication between its officials indicated that "the idea of inside frost is too old to be broadly patentable to anybody" Ex.

In General Electric acquired the Pipkin patent, No. As of June 30, Exs. Corning agreed to grant licenses to General Electric under any inside frost patents which it might acquire during the term of the agreement which, as amended, was to run until January 1, Thereafter Corning refused to sell inside frosted bulbs to any company not licensed by General Electric unless it approved Exs.