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Comeau Family
Donations
2
Archivist Intern 2
N.D. Ill. Historic
Patent Cases
3-5
125th Anniversary of
Seventh Circuit Court of
Appeals
6
INSIDE THIS
Northern District of Illinois
Court Historical Association
Newsletter Fall/Winter 2016
From the President
The New Year is a busy one for the Northern District of Illinois Court Historical Association. We are cele-brating the 125th anniversary of Seventh Circuit Court of Appeals, cataloguing new judicial oral histories, and preserving and preparing to display pieces of the extensive collection of transcripts and notes donat-ed by the family of long-time court reporter Raymond Comeau. History is made daily in our District, and the judges, lawyers, librarians, historians, and other volunteers of the Court Historical Association work diligently to ensure its preservation while having fun doing it. If you are interested in getting involved with the Association, please contact me at [email protected]. - Margot Klein
N.D. Illinois Court Historical Association Meeting
Wednesday, February 8, 2017
12:15pm - 1:30pm
The next N.D. Illinois Court Historical Association meeting is on Wednesday, February 8,
2017. The Association will meet in the Library conference room on the 16th Floor of the
Dirksen Courthouse.
New Judicial Oral Histories Available
Several new judicial oral histories were added to the Seventh Circuit Library’s collection over the past year. These, and many other judicial oral histories, are available to be borrowed from the Library by court staff.
The Oral History of Marvin E. Aspen, Senior
District Judge of the United States District
Court for the Northern District of Illinois
The Oral History of Arlander Keys, District
Court Magistrate Judge of the United States Dis-
trict Court for the Northern District of Illinois
The Oral History of P. Michael Mahoney, Retired
Magistrate Judge of the United States District
Court for the Northern District of Illinois
The Oral History of Charles P. Kocoras, District
Judge of the United States District Court for the
Northern District of Illinois
The Oral History of William J. Bauer, Circuit
Judge of the United States Court of Appeals
for the Seventh Circuit
The Oral History of Ilana Diamond Rovner, Cir-
cuit Judge of the United States Court of Appeals
for the Seventh Circuit
The Oral History of John D. Schwartz, United
States Bankruptcy Judge for the Northern District
of Illinois
The Oral History of Eugene R. Wedoff, United
States Bankruptcy Judge for the Northern District
of Illinois
Volume 2, No. 2 Page 2
Northern District of Illinois
Historical Association
www.ilndhistory.uscourts.gov
Officers:
Margot Klein, President
Gretchen Van Dam, Vice-President,
Archivist
Meaghan Clayton, Secretary-Treasurer
Directors:
Judge Rebecca R. Pallmeyer, Chair
Judge William T. Hart
Judge Jacqueline P. Cox
Judge Jeffrey Cole
William J. Kresse
Joel R. Skinner
The N.D. Illinois Court Historical Associa-
tion is incorporated in the State of Illinois
exclusively for education and charitable
purposes within the meaning of 501(c)(3)
of the IRC. Contributions are used for
maintaining archives and educational
programming about the history of the
court. Contributions may be sent to the
Secretary-Treasurer, Room 1637, 219 S.
Dearborn, Chicago, IL 60604.
Comeau Family Donates Audio Recordings
Cary Anne Hall has joined the Library of the U.S. Courts of the Seventh Circuit staff on a part -time basis. Cary Ann is a Masters candidate at San Jose State University in the Library and Information Sciences program focusing on archival studies. She will be working on the Comeau tapes project; organizing, cleaning, preparing for digitization, and researching case histories. Cary Anne also works as a Library Specialist in the Chicago office of Perkins Coie.
Library Adds Archivist Intern to Staff
This past summer, the family of for-
mer N.D. Illinois court reporter Ray
Comeau donated a treasure trove
of audio recordings to the N.D. Illi-
nois Court Historical Association.
Mr. Comeau’s son, John, provided
the information that his father had
been a court reporter for the dis-
trict from 1958 through 1985,
working with federal district judges
Austin, Crowley, and Hart, and oc-
casionally covering trials for other
judges as needed. John told Judge
Pallmeyer that his father had kept
all of his original recordings; he nev-
er discarded anything he recorded.
After his death, the family began
cleaning out Mr. Comeau’s house in
preparation for sale. In the base-
ment were boxes and boxes of
court audio recordings in a variety
of formats: audiographs, reel-to-
reel tapes (large and small), and
cassettes. There may be recordings
of significant trials held in the N.D.
Illinois, including recordings from
half of the Chicago Seven conspira-
cy trial and a trial involving Team-
sters head Jimmy Hoffa.
This past fall, Circuit Librarian
Gretchen Van Dam and Research
Librarian Erin Schlicht arranged for
the receipt of approximately 50
boxes of recordings. The boxes of
tapes were in terrible condition, as
they had been stored for many
years in an unfinished basement;
there was a great deal of mold and
water damage. New Library staffer
and Master’s student Cary Anne
Hall’s first job was to transfer the
tapes from their original boxes to
archival legal storage boxes and
begin to address the mold and mil-
dew. Continued page 5
Gretchen Van Dam, Vice-President, Archivist
Volume 2, No. 2 Page 3
N.D. Illinois Historic Patent Cases
The Intellectual Property Law Association of Chica-
go is one of the city’s oldest lawyers’ organizations.
I was invited to speak at the Association’s annual
dinner, which gave me an excuse to dig into some
patent cases decided by our court in its own early
days. As these cases show us, some things change
and others remain very much the same.
The first case I’ll tell you about is the oldest. Pitts v.
Wemple, decided in 1855, was an action to enforce
a patent issued in December of 1837: Patent Num-
ber 542. Just three digits! Perhaps not surprisingly,
the patent
was for agri-
cultural
equipment,
specifically
“a new and
useful im-
provement
in machines
for thresh-
ing, sepa-
rating and
cleaning
grain.” The
improve-
ment, as I
understand it (not very well – if you grew up on a
farm, you may be able to make more sense of this)
involved something referred to as “an endless
apron divided into troughs and cells in a machine”
that effectively separates wheat from chaff. The
opinions in the case were not as long as those we
write today, but not perfunctory, either. The first
was written by our Circuit Justice, John McClean.
The procedural posture of Pitts isn’t entirely clear,
but my best guess is that the court was reviewing
the situation to see whether there would be a trial
– more or less a claims construction/summary judg-
ment ruling. In allowing the case to go forward, the
court appeared to be addressing the validity of the
patent. The court didn’t use the expression “prior
art,” but that’s exactly what Justice McClean was
addressing. And in doing so, he made a point still
relevant today – that if the defendant’s machine
was similar to one that pre-dated the plaintiff’s pa-
tent, then for the plaintiff to label the defendant’s
machine infringement essentially meant that plain-
tiff’s own patent was invalid. Using the word
“infringement” to mean what we might call
“anticipated by the prior art,” the court explained,
“The rule is, that where the invention consists of a
combination of known mechanical powers, the use
of less than the whole will be no infringement. If
the whole of the combination be taken, though
something be added, still it is an infringement.”
Justice McClean remanded the case for trial to the
district judge, and District Judge Drummond’s in-
structions to the jury appear in the reported deci-
sions. From what I can tell, those instructions are
remarkably consistent with the law in 2016. For
example, Judge Drummond explained in his instruc-
tions:
The patent law requires the inventor
to set forth the nature and extent of
his discovery, so that, by referring to
his letters patent, a mechanic of
competent skill may be able, in the
state of the art as then understood,
to construct the machine or im-
provement, if the invention relate to
a machine. And he must ...
Hon. Rebecca Pallmeyer
Continued page 4
Volume 2, No. 2 Page 4
… particularly specify and point out the part, improvement, or combina-tion which he claims as his own in-vention or discovery. He is restricted to this claim. It is true that the whole patent, including specifications and drawings, is to be taken into consid-eration, but we look at them only for the purpose of placing a proper con-struction upon the claim.
We don’t know much more about the case, but we
do know that there was a defense verdict. These
old, old opinions got the job done, and without the
luxury of word processors, the judges didn’t waste
nearly as much ink as we do. Another big difference
between those old opinions and the ones we judges
write today is one you might appreciate: There was
very little in the way of case citations. The judges
just relied on their own good judgment and under-
standing of the law.
Let’s fast forward almost half a century to 1900, to
another case whose name reflects the technology
important
for the
time: Na-
tional Cash
-Register
Co. v. Navy
Cash-
Register
Co. The
patent at
issue in
this case
had issued
in 1883,
and by
now we
are up to
six digits:
It was Patent No. 271,363. The plaintiff was seeking
an injunction against infringement of its patent, and
Judge Kohlsaat issued a couple of opinions. In the
first one, we see he was a stickler when it comes to
written assignments. The plaintiff provided a certi-
fied copy of the assignment of the patent, but that
by itself wasn’t good enough for the judge, who in-
sisted that “good reason be shown for the nonpro-
duction of the original before the certified copy is
admissible.” (Does this sound a bit like the original
writings rule?)
The plaintiff evidently cured that problem, because
three weeks later, Judge Kohlsaat turned to the
merits. He concluded that the defendant’s cash reg-
ister device was an improvement on the plaintiff’s in
many ways, but it involved “all the features of
[plaintiff’s] patent.” In other words, it infringed.
The judge nevertheless declined to issue an injunc-
tion, because on the date of the decision, there
were only four days left in the life of the patent. So
it appears lawyers were not immune from procrasti-
nation. Again, both opinions are shorter than the
ones we write today, but the Cash Register case
made use of precedent, specifically citing a couple
of other cases where injunctions were issued, in
spite of the comparatively short remaining life of
the patent.
One more old case is worthy of consideration in this
year when our own Cubs made history. This is the
case of Thayer v. Spaulding, decided in 1886. The
patent was issued in 1878, Patent No. 200,358, for
“an improvement in masks” – specifically, a face
mask worn by baseball catchers. The inventor, F. W.
Thayer, evidently began with “the old and well-
known fencing mask” and then added a head rest
and a chin rest. The judge had no difficulty conclud-
ing that defendant Spaulding had manufactured a
mask that infringed the patent. The real dispute...
Historic patent cases continued
Continued page 5
...appeared to be, again, a question about whether
the device was in common use before Thayer ob-
tained his patent. Two witnesses swore they had
seen such a mask “worn at a match game, played in
Boston, in the fall of 1875,” – but plaintiff vehe-
mently denied this, and several witnesses who also
attended that game did, as well. Judge Henry
Blodgett, who replaced Judge Drummond, ob-
served, “Parties asserting a prior use of device cov-
ered by a patent have the burden of proof, and are
bound to establish such prior use by strong and
convincing if not absolute conclusive proof; and I
feel compelled to say, after considering the proof
on both sides in reference to this prior use, that I do
not think that even the preponderance is with the
defendants.” The patent was valid and infringed,
and the plaintiff was entitled to damages.
This court has a busy patent docket to this day.
And that seems appropriate to me. I can trace my
own seat on this court back to the one Judge Drum-
mond occupied. Judge Drummond was the first
judge to occupy the second seat on our court. And
he was followed by Judge Blodgett and then later
by Judge Kohlsaat. Then as we march further
through history, we reach Judge William Hart, who
took senior status in 1997, and was replaced by –
well, by me. It’s an honor to follow in the footsteps
of those who set our court on course.
Volume 2, No. 2 Page 5
Historic patent cases continued
Comeau donations project continued from page 2
… She will then organize the tapes in chronologi-
cal order to locate recordings of identifiable no-
table trials. The plan is then to transfer those
recordings to a more stable platform, i.e. clean
tapes, and digitization. This Association can
then make the recordings available on our web-
site and to researchers. This is an exciting new
project, and we will keep everyone informed of
discoveries as we move forward!
Volume 2, No. 2 Page 6
Editors: Gretchen Van Dam and Erin Schlicht. Please send any news and queries to Gretchen Van Dam at [email protected].
Seventh Circuit Court of Appeals’ 125th Anniversary
2016 marked the 125th anniversary of the U.S.
Court of Appeals for the Seventh Circuit. Con-
gress created the court by the Act of March 3,
1891, known as the “Evarts Act.” The Act created
nine intermediate courts of appeal for the ex-
isting circuits, removing appellate jurisdiction
from the traditional circuit courts. Each of the
new appellate tribunals was to consist of three—
the Seventh’s were Judges Walter Q.
Gresham, John M. Harlan, and Henry W.
Blodgett. The first clerk of court was Oli-
ver Throck Morton and the first marshal
named was Capt. L.O. Gilman. The first
session of court was called or order on
June 16, 1891 and held in the Chicago
Post Office and Custom House located on
the block bounded by Adams, Jackson,
Dearborn, and Clark Streets (that building
was condemned in 1893 and demolished
for the Henry Ives Cobb courthouse,
which was demolished in 1964 for the
current U.S. Post Office and Kluczynski
Building.)
The clerk of court and marshal took their
oaths of office and Judge Harlan made
the exciting announcement that “this
Court of Appeals...will adopt and wear
the usual judicial gown as worn by mem-
bers of the Supreme Court at Washing-
ton…” This was very controversial as no
judge in Illinois, either state or federal,
had ever worn robes. The Chicago Legal
News was against the practice noting,
“...courts are the tribunals of the people
and judges should be near the people.
Justice should be administered in accord-
ance with the simplicity of our Govern-
ment and without pomp and show.”
The first case heard by the court was Union Stock
-Yards & Transit Co. v. Western Land & Cattle Co. ,
59 F. 49 (7th Cir. 1893).
For more on the history of the U.S. Court of Ap-
peals for the Seventh Circuit, check out History
of the Seventh Circuit: 1891-1941 by Rayman L.
Solomon, available in all of our library locations.