Appendix — Sakraida v. Ag Pro, Inc.
Supreme Court brief1976
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
No. 75-110
BERNARD A. SAKRAIDA,
Petitioner,
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR CERTIORARI FILED JULY 17, 1975
CERTIORARI GRANTED OCTOBER 14, 1975
TABLE OF CONTENTS
Page
D eee ee 80 1
Complaint for Patent Infringement ............... 7
Defendant’s Original Answer ..................... 9
Deposition of Bernard A. Sakraida, Filed May
16, 1969
Bernard A. Sakraida
Cross Examination by Mr. Kolisch ........ 10
Deposition of Donald Joseph Gribble, Filed
May 16, 1969
Donald Joseph Gribble
Cross Examination by Mr. Hulse .......... 11
Defendant's Motion for Summary Judgment 25
Exhibit A — Patent 3.223. O0 27
Exhibit C — Affidavit of W. C. Fairbank ...... 34
Exhibit D — Affidavit of Bernard A.
bee 05650006 eee 37
Exhibit E — Affidavit of Archie Sharp ......... 41
Judgment, Filed February 19, 197700 44
Findings of Fact and Conclusions of Law,
Filed September 23, 19777 46
Final Judgment, Filed September 23, 1971 ........ 55
Transcript of Proceedings, Filed December
Be EEE ‘Ran dcdddsqhaecsceancettsccnncceetdubsenee 56
Witnesses:
Donald Joseph Gribble
Direct Examination by Mr. Kolisch .......... 58
Cross Examination by Mr. Hulse ............ 74
Redirect Examination by Mr. Kolisch ........ 82
ii
TABLE OF CONTENTS (Continued)
Page
Robert B. Price, Jr.
Direct Examination by Mr. Hulse ............ 83
Cross Examination by Mr. Kolisch .......... 90
Darrell Lloyd Reed
Direct Examination by Mr. Kolisch .......... 98
M. G. Huber
Direct Examination by Mr. Kolisch ......... 104
Cross Examination by Mr. Hulse ........... 113
Defendant's Motion for a New Trial ............. 120
Exhibit A — Affidavit of HerbertG. Meyer..... 124
Exhibit C — Affidavit of Bernard A.
Saleraida ..... 0... ccc ccc sccccsececsecceees 127
Exhibit D — Telegram from Frank Souza ..... 130
Deposition of W. C. Fairbank, Filed
SD GG SPD ee eee eee 131
W. C. Fairbank
Examination by Mr. Kolisch ................ 131
Examination by Mr. Hulse .................. 151
Examination by Mr. Kolisch ................ 166
Examination by Mr. Hulse .................. 170
Plaintiff's Exhibit No. 2— Affidavit of W. C.
PEE — . <ocee 171
Defendant's Exhibit A — Letter from W. C.
Fairbank dated October 8, 1969 .............. 173
Order of the District Court, dated February 7,
12—˖ . — ̃˙ . ˖‚˖ «%. cant 174
— —
LL ſ DDP —
iii
TABLE OF CONTENTS (Continued)
Page
Transcript of Proceedings of February 7, 1974
Witnesses:
Bernard A. Sakraida
Direct Examination by Mr. Hulse ........... 177
Cross Examination by Mr. Kolisch ......... 180
Cross Examination by Mr. Hulse ........... 190
Redirect Examination by Mr. Kolisch ....... 193
A. M. Wisdom
Direct Examination by Mr. Hulse ........... 195
Cross Examination by Mr. Kolisch ......... 197
Emil Rovie
Direct Examination by Mr. Tatem ........... 202
Cross Examination by Mr. Kolisch ......... 219
Redirect Examination by Mr. Tatem ........ 221
Recross Examination by Mr. Kolisch ....... 222
Frank Frances Souza
Direct Examination by Mr. Tatem ........... 223
Cross Examination by Mr. Kolisch ......... 234
Chester Fleet Whitmore
Direct Examination by Mr. Tatem ........... 235
Cross Examination by Mr. Kolisch ......... 243
Redirect Examination by Mr. Tatum ........ 244
Herbert G. Meyer
Direct Examination by Mr. Hulse ........... 245
Cross Examination by Mr. Kolisch ......... 258
DOCKET ENTRIES
In the United States District Court for the Western
Date
10- 7-68
10- 9-68
10-28-68
10-18-68
12-10-68
12-10-68
12-11-68
5- 1-69
5- 6-69
5-12-69
5- 9-69
5- 9-69
District of Texas, El Paso Division
AG PRO, INC.
versus CA-68-118 EP
BERNARD A. SAKRAIDA
Proceedings
1) Plaintiff's complaint filed.
Summons issued.
2) Filed Defendant’s Original Answer, in
trip.
3) Filed ret. summons to BERNARD A.
SAKRAIDA, ex. 10-8-68 in El Paso, Tex.
4) Filed Motion for Production of Docu-
ment, in trip.
5) Filed Brief in Support of Defendant's
Motion for an Order for Production of Docu-
ment, in trip.
6) Filed Order for Production of Docu-
ment, in dup. (Copies furnished counsel)
7) Filed Defendant’s Motion to Produce, in
dup.
8) Filed Motion for Production of
Documents, in dup. (Plaintiff)
9) Filed Defendant's Supplemental Mo-
tion to Produce, in dup.
10) Filed Plaintiffs Objections to Defen-
dant’s Motion to Produce, in dup.
11) Filed Plaintiff's Brief in Support of Ob-
jections to Defendant's Motion to Produce. in
dup.
5-16-69
9-26-69
9-26-69
9-26-69
11- 5-69
11- 5-69
11 5-69
11-20-69
12-22-69
12-22-69
1-19-70
1-19-70
12) Filed Deposition of Bernard A.
Sakraida (Chg. to Pitfs.)
13) Filed Notice of Taking Deposition of
Albert W. Gandt, in dup.
14) Filed Motion of Deft. for Protective
Order Re Oral Deposition of Albert W.
Gandt, in dup.
15) Filed Brief in Support of Deft's. Motion
Re Oral Deposition of Albert W. Gandt, in
dup.
16) Filed Defendant's Motion for Summary
Judgment, in dup.
17) Filed Brief in Support of Defendant's
Motion for Summary Judgment, in dup.
18) Filed Transcript of Deposition upon
Written Interrogatories of Albert W. Gandt,
and Original Notice of Taking Deposition
upon Written Interrogatories
19) Filed Plaintiffs Memorandum in Op-
position to Deft's. Motion for Summary
Judgment, in dup.
20) Filed Deft’s. Supple. Brief in Support of
His Motion for Summary Judgment.
Hearing on Defendant’s Motion for
Summary Judgment. After hearing
arguments of counsel, the Court granted
Plaintiff 2 weeks to file Amended Petition.
No ruling on Motion.
21) Filed Motion for Permission to File an
Amended Complaint, in dup.
22) Filed Supplemental Memorandum in
Opposition to Deft's. Motion for Summary
Judgment, in dup.
2-11-70
2-19-70
3-19-70
3-25-70
4-23-70
3-26-71
3-26-71
3-26-71
8- 4-71
8-19-71
8-19-71
8-26-71
8-26-71
Additional Hearing in open Court on
Defendant's Motion for Summary Judgment.
After hearing additional arguments of
counsel, the Court took the Motion under ad-
visement.
23) Filed Judgment, in dup Deft s. Motion
for Summary Judgment Granted)
24) Filed Notice of Appeal
25) Filed Cost Bond on Appeal
26) Filed Designation of Contents of
Record on Appeal (in letter form)
Plaintiffs Exhibit No. 1 — Book of Color
Photographs.
27) Filed Opinion of the U.S. Court of
Appeals, 5th Circuit
28) Filed CC Judgment in lieu of mandate
of the U.S. Court of Appeals, decision of Dis-
trict Court reversed and remanded to U.S.
District Court
29) Filed Copy of Bill of Costs, U.S. Court
of Appeals for 5th Circuit
30) Filed Deft's. Request for Admission of
Genuineness of Documents, in dup.
31) Filed Plaintiff's Request for Admis-
sion, in dup.
32) Filed Response to Defendant's Request
for Admission of Genuineness of
Documents, in dup.
33) Filed Motion requesting trial by jury
by Plaintiff, in dup.
34) Filed Response to Plaintiff's Request
for Admission served August 20, 1971. in
dup.
8-26-71
9- 7-71
9- 8-71
8-27-71
9- 9-71
9-13-71
9-23-71
9-23-71
10-19-71
11-26-71
12-29-71
7-25-73
4
35) Filed Brief in Support of Jury Request,
in dup.
36) Filed Substance of Testimony by Pltfs
expert M. G. Huber. in dup.
37) Filed Memorandum of Testimony to be
Offered by Robt. B. Price, Jr. as an Expert
Witness on Behalf of Deft., in dup.
Motion for Jury Trial Denied.
38) Filed Findings of Fact, in dup. (Plain-
tiff's)
Non- Jury Trial. Parties stipulate that all
evidence admitted at Hearing on Motion for
Summary Judgment may be considered as
admitted in evidence on this trial. Counsel
for Plaintiff made opening statement.
Testimony presented for both sides and both
sides rest and close. Both sides allowed to
submit briefs and/or supplemental propos-
ed Findings & Conclusions. Court will rule
in 2 weeks.
39) Filed Findings of Fact.
40) Filed Final Judgment in favor of Defen-
dant, Bernard A. Sakraida.
40(a) Filed Notice of Appeal
41) Filed Order extending time for filing
Transcript of Proceedings to and including
1-17-72, in dup. (Cert. Copy mailed to U.S.
Court of Appeals, 5th Circuit, New Orleans,
La., 11-26-71)
42) Filed Transcript of Proceedings.
43) Filed CC of Opinion of the U.S. Courtof
Appeals, Fifth Circuit remanding case to the
U.S. Dist. Court, with directions to enter
judgment holding patent valid, subject to
7-25-73
7-25-73
7-27-73
8- 9-73
8-23-73
9-14-73
9-14-73
9-17-73
9-26-73
12- 4-73
12- 7-73
Court’s consideration of a motion under
Rule 60(b)(2), F.R.Civ.P., to be filed in Dist.
Court by Deft. Sakraida.
44) Filed CC of Judgment of U.S. Court of
Appeals, 5th Circuit, issued in lieuof Man-
date, remanding cause with directions in ac-
cordance with the opinion of June 25, 1973.
45) Filed Bill of Costs, U.S. Court of
Appeals, 5th Circuit.
46) Filed Deft’s. Motion for A New Trial, in
dup.
47) Filed Pitff's. Notice of Taking Deposi-
tion of W. C. Fairbank, in dup.
48) Filed Pitff's. Motion to Produce, in dup.
49) Filed Deft’s. Response to Pltff's. Re-
quest for Production, Inspection and Copy-
ing of Documents, in dup.
50) Filed Deft's. Brief in Support of Its
Response to Pltff's. in dup. Request for
Production, Inspection and Copying of
Documents,
51) Filed Deposition of W. C. Fairbank
52) Filed Pltff's. Memorandum in
Response to Deft’s. Objections to Production
of Documents, in dup.
53) Filed Request for Production of
Documents Pursuant to Rule 34 F.R.C.P., in
dup.
54) Filed Order Overruling Plaintiff's Re-
quest for the Production of Documents,
Served Under Date of Sept. 21, 1973. &
Sustaining Defts. Objections Thereto.
Copies mailed to Atty’s. 12-10-73
6-74
6-74
55) Filed Motion to Recuse or Disqualify
HON. ERNEST GUINN.
Hearing on Motion to Produce — Court
heard from both sides. Motion Denied.
Another hearing on 12-18-73
56) Filed Motion to Produce, in dup. Called
Joe Elliott to inform him.
57) Filed Defendant's Response to Plain-
tiff's Request for Production, Inspection and
Copying of Documents
58) Filed Memorandum in Opposition to
Defendant's Motion for a new Trial.
59) Filed Order which grants Motion for
New Trial. copies to Attys.
COURT RULED: Granted Motion for a new
trial — expense of hearing cost of transcript
— assessed against deft.
Hearing on Motion to Produce under Rule 34
— Denied. (1) Notes, memorandum, etc. (2) 21
Letters, (3) Documentary Evidence. Motion
for New Trial — Carried — rule invoked —
witnesses sworn. Court takes under advise-
ment until tomorrow morning at 11:30 A.M.
60) Filed Notice of Appeal to 5th Circuit,
CC mailed to New Orleans
7
In the United States District Court
for the Western District of Texas
El Paso Division
AG PRO, INC.,
Plaintiff,
versus CA No. CIV-68-118-EP
BERNARD A. SAKRAIDA,
Defendant.
COMPLAINT FOR PATENT INFRINGEMENT
Comes now plaintiff and for cause of action against
defendant alleges as follows:
I.
This action arises under the Patent Laws of the Unit-
ed States and jurisdiction is conferred on this Court by
Title 28, United States Code, § 1338(a).
II.
Plaintiff is a corporation of the State of California
with a principal place of business in Santa Rosa.
California.
III.
Defendant is a resident of El Paso, Texas.
IV.
On December 14, 1965, United States Letters Patent
3,223,070 entitled Dairy Establishment” were duly
and legally issued to plaintiff as assignee of Donald
8
Joseph Gribble and Henry E. Bennett and plaintiff is
the owner of the entire right, title and interest in and to
said Letters Patent.
V.
Defendant has infringed said Letters Patent and wil!
continue to do so unless enjoined by this Court.
VI.
Defendant has been on notice of said Letters Patent
and his infringement thereof, has been willful, wanton
and in deliberate disregard of plaintiff's rights.
WHEREFORE, plaintiff prays that:
1. Defendant be required to pay over and account to
plaintiff for all gains, profits and advantages derived
from his infringement of said Letters Patent.
2. Defendant be required to pay treble damages to
plaintiff in view of his willful and wanton infringe-
ment.
3. The Court award reasonable attorney fees and
costs of this action.
4. Plaintiff have such other and further relief as is
just.
EDWARDS, BELK, HUNTER
& KERR
/s/ FRANK HUNTER
Frank Hunter
Attorneys for Plaintiff
Of Counsel:
KOLISCH & HARTWELL
J. Pierre Kolisch
9
[Title Omitted in Printing]
DEFENDANT'S ORIGINAL ANSWER
Filed: Oct. 28, 1968
COMES NOW BERNARD A. SAKRAIDA, Defen-
dant in the above styled and numbered action, and in
Answer to the Complaint filed herein says:
FIRST DEFENSE
The Complaint fails to state a claim against Defen-
dant upon which relief can be granted.
SECOND DEFENSE
Defendant admits the allegations in paragraph I of
the Complaint; alleges that he is without knowledge or
information sufficient to form a belief as to the truth of
the allegations contained in paragraph II of the Com-
plaint; and denies each and all of the other allegations
contained in the Complaint.
WHEREFORE, Defendant prays that Plaintiff take
nothing by this its action and that Defendant have
judgment of the Court, and that he have his costs
herein expended.
/s/ J. F. HULSE
J. F. Hulse
11-D El Paso Nat. Bank Bldg.
El Paso, Texas 79901
Attorney for Defendant
OF COUNSEL:
10
OF COUNSEL:
SCOTT, HULSE, MARSHALL &
FEUILLE
11D El Paso Nat. Bank Bldg.
El Paso, Texas 79901
[Certificate of Service Omitted in Printing]
1121 DEPOSITION OF BERNARD A. SAKRAIDA
Filed: May 16, 1969
BERNARD A. SAKRAIDA
CROSS EXAMINATION
BY MR. KOLISCH:
Q Now, Dawn Dairies had a manure flush system
of the Agpro type?
A As you refer to it, yes.
Q I would like you to tell us what capacity you
worked at the Dawn Dairy job?
A l worked as asupervisor. I did not have a general
contract.
Q And the job was designed as I understand it, by
Agpro, is that correct?
A That is correct.
Q And you worked closely with them on that job?
A Yes, sir.
Q Was that the first flush system job you worked
on, Agpro type?
A The first one I had worked on of Agpro type, yes,
sir.
Q Prior to Dawn Dairy, were you aware of any
flush system of the Agpro type?
11
A For approximately several years before that. I
had seen one at Pine Hill.
And that was another Agpro installation?
Yes.
Any others?
Not that I recall that was like their's, no.
5 O O
[12] DEPOSITION OF DONALD JOSEPH GRIBBLE
Filed: May 16, 1969
DONALD JOSEPH GRIBBLE
a witness, called by the Defendant, having first been
duly sworn to tell the truth, the whole truth and
nothing but the truth, testified as follows:
CROSS EXAMINATION
BY MR. HULSE:
Will you state your name, please?
Donald Joseph Gribble.
And where do you live?
1226 Cranbrook Drive. Hixson, Tennessee.
What is your business address?
It's the same address, and P. O. Box 6052, Santa
sa, California.
Did you formerly live in Santa Rosa, California?
Yes.
How long have you been living in Tennessee?
Since last September.
8 OY OO
R
5 O0 O0
12
What is your occupation?
I am an engineer.
Graduate of an engineering school?
Yes, sir.
What school?
Oregon State University.
What year?
1957.
[50] Q What degree?
A Bachelor of Science Degree in Agricultural
Engineering.
Q Have you moved your place of business, sub-
stantially, then, to Tennessee from California?
A No. We have opened a branch office.
Q How large an organization do you have?
A In what terms?
Q .Well, employees?
A
Q
POPrOroro
Twelve to fifteen.
You do business through Agpro, Inc., do you
not?
A Yes, sir.
Q Which is incorporated in the State of California?
A Yes, sir.
Q Does Agpro have a permit to do business in
Tennessee?
A Yes.
Q And you have some — Agpro has some ten or fi-
teen employees?
A Yes.
Q Are there any of them besides yourself in
Tennessee at the present time?
A Yes, sir.
Q What work is Agpro, Inc., primarily engaged in?
A We design agricultural facilities and manufac-
ture some of the equipment used in the facilities.
13
1511 Q What all does that include, does that include
barns? It includes dairy, I assume, from what we know
about this case?
A Yes.
Q And besides dairies, what else do you do?
A Some work in beef operations, and poultry, and
other animal-raising enterprises.
Q How long have you been engaged in this type of
work yourself?
A Personally?
Q Yes.
A Since I got out of the Service in 1960. Prior to
that, part time while going to college.
Q When was Agpro, Inc. incorporated?
A I believe 63. but I would want to verify that from
my records.
+ * * *
1521 Q Well, Iwill hand it over to you. I will ask you
a question and I will hand it to you to look at it. Mr.
Gribble, I want to ask you a couple of questions about a
write-up, four pages, that appears to be run off on
something similar to a mimeograph, headed,
“Manure-Flush, Agpro, Inc., P. O. Box 6052, Santa
Rosa, California’, and just for the purpose of your
identifying it, I will hand it to you. That is a paper
which was put out by Agpro, Inc., was it not?
Yes.
And that, I assume, is your write-up about —
— Yes —
— the manure flush system.
Yes.
May I have it back, please?
Yes.
„O OSO
14
Q In the first paragraph, refers to a U.S. Patent
Number, and the second paragraph says this covers
[53] the hydraulic flush concept and so forth. And the
third paragraph I want to ask you about. It says,
“Basically, this method consists of releasing a large
volume of water upon uniformly sloped alleyways.”
That, I assume, is the basic concept of the patent?
A Yes, sir.
Q Is there anything unusual about that, as stated in
the sentence I just read to you?
A Yes, the accumulation of water in a large quanti-
ty to be released on that, such lanes, is a — or was at
that time, a rather unique development for the clean-
up and carrying away of animal waste.
Q So really what is unique about it is the amount of
water, is that right?
A This is a difficult question, because it can vary
tremendously, depending on the amount of offal to be
cleaned up, and the type of animals, chickens, for in-
stance, would represent a relatively small amount of
water, of waste and water, where a long cow lane
would represent a much large amount. So I don’t know
exactly how to answer your question.
Q Well, from the way you had stated your prior
answer, I was just checking to see if my understand-
ing was correct. I understood it, in essence, to be that
the [54] collection of a large amount of water to be turn-
ed loose on these runways was what was unique.
A Yes.
1571 Q My question is, is it not true, in view of your
prior answer, that what you state is the unique thing
about this so-called manure flush system, is the
15
amount of the water that is collected for the purpose of
turning it loose on the alley-ways?
A No, there are several things that are unique
about the system, as described.
Q Well, what else? Just enumerate them all for me,
would you?
A The hinged water bins for holding, retaining the
water, and releasing it. The careful relationship and
attention to detail that has to be maintained between
all flow areas of the barn, or the facility to be cleaned.
Q And this is what you call the basic concept on
which the idea behind this patent is based?
A Yes.
Q And you originally had several different ideas
about how the result could be accomplished, could be
done, and you set them out here. one, two, three, and
four in this paper, I believe, didn’t you?
A Yes.
[58] Q Did you prepare the claims that were
presented in connection with the application for the
patent?
A Yes.
Q Are you familiar with the claims?
A Yes, sir.
Q Arethese claims as set out, in line with your idea
on which the patent was based?
A Yes.
Q In the patent, your claims are set out there in
three numbered paragraphs, are they not, or do you
[59] recall?
A Yes, as I recall.
16
Q And in Claim Number 1, which appears in
Column Number 6 of this patent, the first thing set out
is an evenly contoured, paved surface, forming a floor,
providing a walking surface for cows in the barn. Is —
I'm not sure that I know what is meant by “evenly con-
toured”; does that mean a smooth surface, or what?
A Relatively to the hydraulic movement of the
water. It wouldn't necessarily be a level surface; for in-
stance, it goes around the corner, the sides might be
raised or banked similar to the bank.
Q But where is — do you propose by this to havea
flat surface, but tilted so that the plane is not quite
horizontal?
A That's an element of the design, yes.
Q AndI am trying to find out, I don't know what is
meant by this word, “contoured”, really, is what I don’t
really know what it means here.
A The most effective removal of the waste material
is not obtained with a flat surface, from side to side. We
use a small amount of crown, generally. The amount
depends on the width of the lane.
Q Well, using a small amount of crown, do you
mean by [60] that, something like the crown that they
have had in some of these old highways where it is sort
of leveled up towards the center and comes down on
each side?
A That would be an exaggerated example, yes.
Q Well, could you tell me what you mean by it as
appears in this Claim I that I just read this clause
from. Let's just back up and start over, what do you
mean by this word, “contoured” as used here?
A lt would have to do with the shape of the top sur-
face of the floor.
Q And what shape would that call for. then?
17
A Relatively smooth, with a slope in one direction.
and then depending on corners and such things that
would have to be negotiated, and the location of the
manure on the floor.
Q In other words, you may bank it at the corners.
where the water has to go around the bend, or
something, or corner?
A This is sometimes done, yes. And along a row of
free stalls, where the bulk of the manure would
perhaps accumulate, next to the curb, the floor would
be either crowned or tilted slightly in that direction.
The contour, as I would interpret it, is the general
shape of the surface of the floor.
1611 Q Well, looking at the first page of the
drawings attached to that patent, the different areas
are numbered here, which maybe will help us. Number
30 here, is a tank for the water?
A Yes.
Q And 26 is the alley-way which is to be washed
off?
A Yes.
Q Well, now are we talking about a contoured sur-
face for 26?
A Yes.
Q And as 26 appears on this drawing here, would
this be a flat surface, but tilted ata slight angle toward
15-a?
Yes. 15-a?
Yes.
Yes.
And what's contoured about it, then?
Well, what is your idea of contour?
Well, I don't know, I'm trying to find out, my idea
of contour — the only contour I know is one of these
O5 O20
18
relief maps, that shows mountains and valleys and
ridges, and all that kind of stuff.
A Yeah. Right, it describes the top surface of a
plane, or of some object. And the contours, in this case,
are describing the top surface of the floor.
182 Q Well, I understand that from what you have
just said, but I don’t know what kind of a floor we are
going to get here, when you say “contour” —
A — in that particular case —
Q are we going to get the Rocky Mountains, or
the Appalachians, or the Mississippi Valley; what are
we going to get here?
A In that particular case, you would have a
relatively level surface, laterally, and a slope in
the direction toward 15-a, with a small amount of
crown in the center.
Q That's what really wanted to know. A small
amount of crown in the center?
A Yes.
Q And in this Claim I, following that statement,
which I originally read from this Claim I, it also says
“drain means for draining wash water from such floor
opening at the top of the floor. That's just like a little
ditch, or something, isn’t it?
A Where are you reading now?
Q Where it says drain“, right down in here
somewhere.
A I haven't found that sentence you read yet.
Q Right here. Starting right there at that mark.
A What is your question?
Q My question is that that drain that is referred to
183] there is simply a groove, or a small ditch, or
something, designed to drain water?
19
A 'm not sure if the intent here is to describe the
collection drain or the dispensing.
[65] Q Then where is the drain that is referred to in
what we just read?
A The collection drain on this type of a lay-out,
would be at this point.
Q You pointed down here, somewhere in the vicini-
ty of the shaded area that is marked. 20.
A Twenty.
Q Is that what is referred to there, where it refers to
that drain?
A Just a moment. Grate 20, yes. That is the grate
covering.
Q Well, what kind of a set-up is this Item 20 here?
A lt can be a graded ditch or a ditch with — arrang-
ed like a scupper, or a ditch covered with a steel door
that can be opened to collect the drainage.
Q Well, where this Item 20 is, there is a ditch there,
then, is there, which is covered by a grate?
Yes.
And into which this water will flow?
Yes.
So the drain is actually a ditch, isn’t it?
Yes.
Now, is there anything unique about having a
ditch for a drain?
[66] A These particular ditches have to be designed
OSO YO
in such a way that they can accept very high flow
rates. The flushing water in a typical installation
would be perhaps from two thousand to three thou-
sand gallon, which evacuates the holding tank in a few
second and would arrive at the ditch over a period of
perhaps 30 seconds. So the ditch must be large and ofa
cross section to accept such loads.
Q Beginning with that second check mark there,
for the ease of finding what I am reading about, it picks
up where I left off before. This Claim I further says,
Said smooth, evenly contoured surface which forms
such floor, sloping towards said drain, drain means
whereby wash water discharged on the floor may be
collected and disposed of through said drain means,
picking up that part of it there, and referring back to
Sheet 1 of these drawings.
A Yes.
Q Where is the floor that they are referring to there
on this Sheet 1, could you point it out by number?
A It would be the floor area from the collection
tank to the point where the drainage enters into —
Q clear on down into the drain?
A Enters the ditch.
Q It would be, then, these that are labeled, 26 and
[67] either all or parts of 15?
A Yes, except these numbers may be misleading.
It's in the area where those numbers exist, but not
necessarily those numbers.
Q So what we have there is a smooth, evenly con-
toured surface, sloping towards the drain, so that the
water will flow down to the drain —
A — yes —
Q — that's what it amounts to?
A Yes.
And all that means is that it's — you have gota
smooth surface where this water will flow from where
it's turned loose, down to where it is picked up in the
drains?
21
A Contoured in such a way that the water will flow
in a uniform sheet to cover the surface, picking up all
of the waste material as it travels along.
Q And then, beginning where I left off, reading
from that Claim I, “Said barn further includes a multi-
ple rest areas, individual stalls for each cow, and with
each of said stalls having a bottom which is also a
smooth pavement. That’s likewise shown on this
Drawing I, these individual stalls are s own on either
side of those alley-ways —
A — yes, sir —
[68] Q — there, the Number 26?
A Yes.
Q And that’s similar to dairy stalls in general, is it
not?
A Yes. .
Q And then it goes ahead to say, “But which is dis-
posed at an elevation above the paved surface forming
the floor.“ Which means the floor of the stall is raised
somewhat above the level of the floor of the rest of the
building?
A Yes.
Q That is typical dairy construction?
A Yes.
Q “And with each of said stalls having a bottom,
which is also a smooth pavement.” And that is also
typical dairy construction, is it not?
A Yes, the term “pavement” might be misleading,
because it could be hard packed earth, or other
material.
Q Any kind of a hard floor?
A Yes.
Q “But which is disposed at an elevation above the
paved surface forming the floor.” Well, that’s the same
thing we just mentioned a minute ago, that this floor of
the stall is above the floor of the rest of the dairy barn?
1891 A Yes.
Q “Said stalls being dimensioned so that a cow can
comfortably stand or lie in the stall.“ And that is
typical dairy construction, isn't it?
A Yes.
And as to which there are variations from one in-
stallation to another, are there not?
A Yes.
And that's true whether it is done by you, or done
by somebody else, isn't it? That the dimensions vary
from one installation to another?
A Yes.
Q Depends on several different things, doesn't it?
A Right, breed of the cows, and such things as that.
Q “So the cow can comfortably stand or lie in the
stall but offal from the cow falls outside the stall bot-
tom and onto the floor, providing a walking surface in
the barn.”’ And that is in line with typical dairy con-
struction, is it not?
A Yes.
Q They were making them that way long before
1965, weren't they?
A Yes. A lot of this is description to —.
Q Description, isn't it?
A Yes.
70] A And it is description of what has been com-
mon in the dairy business for along, long time, isn’t it?
A It is description necessary to frame the flush
concept, in this instance.
Q And then it goes ahead to say, said barn, further
including defined feeding areas, having feeding
troughs, with means for discharging feed to the
troughs.’ That is typical dairy construction, isn't it?
A Yes.
Q And it has been used over a long period of time,
hasn't it?
A Yes.
Q “The cow holding area. That is also typical of
dairy construction?
A Yes.
Q And that has been used over a long period of
time?
A Yes.
Q “Amilking area.” Now, they have all got a milk-
ing area?
A Yes.
Q And always have had, wherever they have hada
dairy barn, haven't they?
A Yes.
Q “And a transfer area.” And they have all got
transfer [71] areas?
A Yes, generally, yes.
Q .. . on bottom, but the walking surface forming
said floor.in the barn, and the floor-washing means for
washing the floor, providing a walking surface in the
barn, where said floor bottoms...” I’m not sure I can
read this and follow it, all at the same time, because it's
got such long clauses. “Said feeding, holding, nilk-
ing, and transfer areas operable to send wash water
flowing over the floor, with such water washing any
cow offal thereon into said drain means.” Well, all that
means is it is fixed so that when the water is turned
loose, it is supposed to wash the offal off?
A What this means is that these various eas
described are disposed of elevations and slopes, #1d
joined together such that this water, as it flows down
there, will move a uniform sheet and carry all the
waste material to the drain means. As opposed to a
typical drain in a floor, or a sloped floor, which might
be beveled, or lowered into a V type trough to carry
the water down the channel.
[72] Q That's generally the old tub idea, isn’t it? You
just dump a tub of water on the floor and it flows down
the floor if the floor has got a slope to it?
A I’m not familiar with the old tub principal.
Q Well, you know what a tub of water will do if you
dump it out onto the floor that has got a three percent
grade to it, don’t you?
A Yes.
Q That's essentially the same thing right there.
isn’t it?
A No.
Q In what way is it different?
A ln the volumes involved and means of dispens-
ing the [73] water.
Q You mean it’s not out of a tub, and it is more
water?
A Yes.
Q And III, which is over on the next page, is really
the gist of your idea as about how this ought to be done,
is it? Where it says, the “Barn of Claim I, wherein said
floor washing means comprises a dam for damming
and collecting water as a pool, directly on the floor,
and such dam is abruptly openable to send such water
as a sheet over the floor, towards said drain means“?
A This has proven to be the most economical con-
struction, as far as the water storage vessel.
Q So instead of putting it in a tub, you have got it
behind a dam, where the door will open and let it go
right on down right quick?
A Yes, right.
Q And it holds a lot more water than you can put in
an ordinary wash tub?
A Right.
Q And that’s really the gist of the whole thing, isn't
it?
A It's the basic concept of manure flush, yes.
[16] DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
[Title Omitted in Printing]
Filed: Nov. 5, 1969
Defendant moves the Court to enter, pursuant to
Rule 56 of the Federal Rules of Civil Procedure, aSum-
mary Judgment in the Defendant's favor dismissing
the action on the ground there is no genuine issue as to
any material fact and that the Defendant is entitled to a
Judgment as a matter of law.
This Motion is based upon:
(a) A copy of the Patent No. 3,223,070 referred to in
Plaintiff's Bill of Complaint.
(b) The transcript of oral depositions of D. J. Grib-
ble and of Bernard A. Sakraida.
(c) Affidavit of W. C. Fairbank.
(d) Affidavit of Bernard A. Sakraida.
(e) Affidavit of Archie Sharp.
(f) Patent file as furnished by Plaintiff.
Items (a), (c). (d). (e). and (f) are attached hereto. Item
(b) is on file in the Clerk's office.
/s/ J. F. HULSE
J. F. Hulse
SCOTT, HULSE, MARSHALL
& FEUILLE
11-D El Paso Nat. Bank Bldg.
El Paso, Texas 79901
Attorney for Defendant
[Certificate of Service Omitted in Printing]
27
EXHIBIT A
Dec. 14, 2525 D. J. GRIESLE ETAL 3,223,079
DASAY ESTASUISEXCNT
ea Sev. 3. i663 3 Sheets-Sr<st 1
2 8
— — —
— i alin |
¥ 1 bat N
. N,
* 2 8 18 17 N * 7 b
2 -& N Nn
0 E- tae. 8
„
2
wet
—
*
—
2
=
*
— GY. 2 OOrLLD JOSEPH GPBBLE
— x N HENRY E BENGETT
4 8 2 8 WJ INSENTORS.
Lee. 2, 2833 D. J. GRIZELE ETAL $222,579
* - * ee oS a 0
DAIRY ESTASLISECXT es. , eww D. J. GRISSLE ETAL 3.222,70
Fileé Nov. 3. 2833 3 Ses ts- Soc t 2 DALRY ESTASLISEAENT
a
7 64
ow — gm . SS
——
— —
9
.
sha tis 32 suitably mounicd
4
comprising a large er g conisiner Ii pivotally
bent
tod af eber ead oa
on e oor 25.
31
of a portion of the front
chu of the washing sail
oor “x S&S
— ef
Fo —
we
° 29
—— 2 | — ae ee
— 2239222
~
0 vn“
o® o*ce 2. — *
—
1 Ht 14111441111 1
F111 ae te
1 We aaltl 1 ee
e
1 inte f a Ae ‘ll
10 1115 ALS THE 227 ; 11 HF
0 il. Mi abet 15 e ;
1122 in HT 115 i 0 i 121 1115
: : e t i Hi 1 1 ni * i 5
1 ih 11115 iis i i : 1 i 10 i
aq 4 11157141171 111 f 12777107 27144 1 121 1 a “4
| 0 it 11 iy all afi it 15 ii
21121 i 11171 2 321
e
3%
Shock Norden
34 are congected Py cromis 35 to shal, 32. Coba er-
Waicr-iniet how 38
ee Se eee aren See a ame ond
—
>
frames 33 renten
container 31 and auayied te ercage tne frame 33 io po~-
Adjustable return 5 d 37 are mound on cithor ond of
—
tion the tank ia upright poison
atte
lowered position, and g§ weight 35 is mounted on the buck side of container J.
ny in section yo ——
in section of a portion
711 1 0 ii
15 3 1 Hell
2325 ny Haale
6 showing
ei! 11115 22 Ht 1212 fit i
Ht 110 e ail ital 10 i
2 i 11 2125 af 10 iW: 11 af 117
wil 247711 11111 ni | 0 Hs Me i 10 10
711117 111 nH iF 10 t 0 ii Hf Hi 10 1 a 10 tf
1 i Bit iil ill etn i ae
1 ilu 1 a a iu! Bee 1 | 1 I if
elevation of a water-dispensing dump
~ ty Ad.
greater detail in
— tap
with the
— 2 Fi. 1,
L
—
enlarged view of the
33 11
6 is a eecticn on lines 6—4 of FIG. 5, showing 0
on lines 7—7 of FIG.
rod and gate.
fy | Fait 11 i HF
pal ta i 1 wien Ty pial
ands if e AT
ee a 1 if e 0 0
22, fy 1225 ili THLE | 110
171 iit 1117 11 : HE 111 if ; HH 0
“He 10 ren 1 all ili ij 1 1 i
Cid i 1111 ililili e i
2
FOREIGN PA: ENTS
10/1960 France.
OTHER REFCAL>CES
Cattle Shelters and Equipment for South Curolina, Fa-
temsion Agricultural E f ilandbvok No. 2, Dec.
1/1963) Great in.
9i<,059
The Way Cows Will be Mike on Your Farm To-
morrow,” Bubson Bros, Duiry Rescarch Service, |
p- 13.
1958, pp. 21 and 26.
1.246.418
SAMUEL KOREN, Primary Examiner.
HUGH AK CHAMBLEE, ALDRICH F MEDBERY,
aly
7
3. The bern of claim 1, whercin wid Soor-washing
means comprises a dam for dam sad colieciing water
‘erences Che. by tie Ager
6/1937 NMC Lid 16 X
Bogert .............. 119-16
lagrahbam .......... 119-27 X
UNITED STATES PATENTS
7/;934 Leas.
1,981,4:7 13/1934 Xscuczer ........-.. 119-16 10
1.88116 11/1934 Kresszer ..--....--.. 11916
2,081,957
9/1942
as a pool Jirectly on the floor, anJ such C- is
R.
openabte to nd such water da nice der ide flour o-
ward said drain meaas.
2.233.766 3/1941
2,491,359 10/1954
1,968,564
2,294,781
———z——3—ͤ—ͤ
e 1 % it
Gee nal 111 i inte! tit 1 i it 111
A fie tS 1 i 1 , n i
3 e 11 Hit 7 ia HL e
sella ah atl 1 (aut thie
uals 11 if il 11 e 1 HES HEE
1 ny rl i, 1 1 fi n fa
e e aru
% aa
LR een ;
HE EE 1 tH FH | aginst e 111 111 1 1 Mf 11
1 e al 1 e if 1 1 1 ii le t
1 NAAT He jhe! 114121 2 Hii} lil 711 111
34
EXHIBIT C
THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
BEFORE ME. a Notary Public, in and for said Coun-
ty and State. on this day personally appeared W. C.
Fairbank, who, having been by me first duly sworn,
upon his oath deposed and said:
That he resides in Riverside, California, is an
agricultural engineer by training and practice, and is
employed as Extension Agricultural Engineer,
Department of Agricultural Engineering, University
of California, Riverside, California; and that he has
personal knowledge of the facts hereinafter set out.
1. That he is a graduate of University of California,
and received a degree as an agricultural engineer in
1950; that he has been employed by the University of
California as an agricultural engineer for 11 years,
and has been so employed in the Riverside, California
Branch of the University of California for 4 years.
2. That a dairy barn for cows
(a) having a smooth, evenly contoured, paved
surface as a floor. which provides a walking sur-
face for cows in the dairy barn;
(b) having a drain as a means for draining
wash water from an evenly contoured, paved
surface. forming the floor of such barn. opening
to the top of the floor:
(c) having an evenly contoured surface form-
ing a floor of such barn. and sloping towards
such a drain as above referred to, whereby wash
water discharged on the floor may be collected
and disposed of through the drain;
(d) having multiple rest areas with individual
stalls for each cuw, but which is disposed at an
elevation above the paved surface forming the
floor, the stalls being dimensioned so that a cow
can comfortably stand or lie in the stall, but offal
from the cow falls outside the stall bottom and
onto the floor providing the walking surface in
the barn;
(e) having adjacent or connected feeding areas
with feeding troughs with means for discharg-
ing feed to the troughs;
(f having a cow-holding area, a milking area,
and a transfer area, all bottomed with the walk-
ing surface of the barn;
(g) having a means for washing the floor
providing the walking surface in the barn where
the said floor bottoms the feeding, holding, milk-
ing, and transfer areas, operable to send wash-
water flowing over the floor with such water
washing any cow offal thereon into said drain
means, which floor washing means includes
means located over a region of the floor which is
up-hill from said drain, and operable to disperse
the water as a sheet of water over said floor:
36 37
(h) having a floor washing means comprised of EXHIBIT D
a water supply disposed above the floor, and
arranged whereby said water can be released to THE STATE OF TEXAS
flow as a sheet of water thereon: COUNTY OF EL PASO
(i) having a floor washing means as referred to BEFORE ME, a Notary Public, in and for said Coun-
in statements above made, but comprised of a ty and State, on this day personally appeared BER-
dam for damming and diverting water adjacent NARD A. SAKRAIDA, who, having been by me first
to the barn floor which dam is operable to send duly sworn, upon his oath deposed and said:
such water as a sheet over the floor toward said
drain means. said drain means have all been That he presently resides in El Paso County, Texas,
used in the dairy industry in the United States for and that he has been engaged for many years in the
years prior to the year 1963. All of such things construction of dairy barns and dairy facilities in con-
have been used prior to 1963 at such places as nection therewith. That growing out of his business
Weed, Lodi, and Bishop, California. and experience he has knowledge of the facts herein
; Stated.
FURTHER, AFFIANT SAYETH NOT.
That a dairy barn for cows
s W. C. FAIRBANK
W C. FAIRBANK (a) having a smooth, evenly contoured, paved
surface as a floor, which provides a walking sur-
SUBSCRIBED AND SWORN to before me by the face for cows in the dairy barn;
said W. C. Fairbanks on this 13th day of October 1969 to
certify which, witness my hand and seal of office. (b) having a drain as a means for draining wash
water from an evenly contoured, paved surface,
/s/ MARION L. MEAD forming the floor of such barn, opening to the top
Notary Public In and for of the floor;
Riverside County. California
(c) having an evenly contoured surface forming
a floor of such barn, and sloping towards such a
drain as above referred to, whereby wash water
discharged on the floor may be collected and dis-
posed of through the drain;
(SEAL)
(d) having multiple rest areas with individual
stalls for each cow, but which is disposed at an
elevation above the paved surface forming the
floor, the stalls being dimensioned so that a cow
can comfortably stand or lie in the stall, but offal
from the cow fails outside the stall bottom and
onto the floor providing the walking surface in the
barn;
(e) having adjacent or connected feeding areas
with feeding troughs with means for discharging
feed to the troughs;
() having a cow-holding area, a milking area,
and a transfer area, all bottomed with the walking
surface of the barn:
(g) having a means for washing the floor
providing the walking surface in the barn where
the said floor bottoms the feeding, holding, milx-
ing, and transfer areas, operable to send wash-
water flowing over the floor with such water
washing any cow offal thereon into said drain
means, which floor washing means includes
means located over a region of the floor which is
up-hill from said drain, and operable to disperse
the water as a sheet of water over said floor;
(h) having a floor washing means comprised of a
water supply disposed above the floor, and
arranged whereby said water can be released to
flow as a sheet of water thereon;
(i) having a floor washing means as referred to
in statements above made, but comprised of adam
for damming and diverting water adjacent to
the barn floor, which dam is operable to send
such water as a sheet over the floor toward
said drain means;
have all been used in the dairy industry in the United
States for years prior to the year 1963. All of such
things have been used prior to 1963 at such places as
Weed, Lodi, and Bishop, California; and
(j) Thathe has not collected water in a dump tank
sO arranged that it could be tipped, spilling the
water out of it on to the floor, but that there is
nothing new or novel about this, as it is merely the
idea of tipping a tub to pour out the water. for
which a simple mechanical arrangement would be
necessary to tilt the tank;
(k) Thata dairy floor-washing means comprised
of a dam for damming and collecting water as a
pool directly on the floor, with such dam being
abruptly operable to send the water as a sheet over
the floor toward the drain means is not new: nor is
there anything new in the idea of the dam being
comprised of a steel plate, hinged to a channel iron
embedded in the floor, with a rubber seal around
the edges, and held by a simple catch attached to a
post. The steel plate is a simple plate, obtainable at
any iron or steel works, and is already fabricated
as a piece of steel plate, needing only to be cut to
size. Nor is there anything new in it being hinged
to a channel iron embedded in the floor, this being
a simple construction long known to anyone in the
construction business. Nor is there anything new
40 41
about holding it in place by a simple catch at- EXHIBIT E
tached to a post. When the catch is released, the
steel plate falls down, into a horizontal position, THE STATE OF OREGON
but this is like the movement of the tail gate on COUNTY OF JACKSON
dump trucks in use more than 10 years ago and
like the movement of the end gate on station
wagons more than 10 years ago; and sealing the
edges of the gate with a rubber trim is that like that
used, among other places, around the edge of
automobile doors, or doorframes, over a period
extending back over a period in excess of 10 years
from this date. That he resides in Jackson County, Oregon, and that
he has been conversant with the dairy business in the
western part of the United States, and particularly on
the Pacific coast for more than 10 years; and that he
has persone! knowledge of the facts hereinafter set
out.
BEFORE ME, a Notary Public, in and for said Coun-
ty and State, on this day personally appeared Archie
Sharp, who, having been by me first duly sworn, upon
his oath deposed and said:
(1) Affiant further says the patent on which
Plaintiff bases its cause of action is based essen-
tially upon the idea of cleaning a dairy barn by
washing it out with a flow of water which, in this
instance, is caught behind a dam, which can be
opened suddenly, sending the water cascading
down the floor, and that this idea, and its use, are
both ancient, and contain nothing new. (a) having a smooth, evenly contoured, paved
| surface as a floor, which provides a walking sur-
face for cows in the dairy barn;
That a dairy barn for cows
Further, Affiant sayeth not.
/s/ BERNARD A. SAKRAIDA (b) having a drain as a means for draining wash
Bernard A. Sakraida water from an evenly contoured, paved surface,
forming the floor of such barn, opening to the top
SUBSCRIBED and SWORN to before me by the said of the floor;
Bernard A. Sakraida on this 22nd day of October, 1969,
to certify which witness my hand and seal of office (c) having an evenly contoured surface forming
(SEAL) a floor of such barn, and sloping towards such a
/s/ BARBARA J. ARNETT drain as above referred to, whereby wash water
Notary Public — In and for discharged on the floor may be collected and dis-
El Paso County, Texas. posed of through the drain;
42
(d) having multiple rest areas with individual
stalls for each cow, but which is disposed at an
elevation above the paved surface forming the
floor, the stalls being dimensioned so that a cow
can comfortabley stand or lie in the stall, but offal
from the cow falls outside the stall bottom and
onto the floor providing the walking surface in the
barn:
(e) having adjacent or connected feeding areas
with feeding troughs with means for discharging
feed to the troughs:
(f) having a cow-holding area, a milking area,
and a transfer area, all bottomed with the walking
surface of the barn;
(g) having a means for washing the floor
providing the walking surface in the barn where
the said floor bottoms the feeding, holding, milk-
ing, and transfer areas, operable to send wash-
water flowing over the floor with such water
washing any cow offal thereon into said drain
means, which floor washing means includes
means located over a region of the floor which is
up-hill from said drain, and operable to disperse
the water as a sheet of water over said floor;
(h) having a floor washing means comprised of a
water supply disposed above the floor, and
arranged whereby said water can be released to
flow as a sheet of water thereon;
(i) having a floor washing means as referred to
in statements above made, but comprised of adam
for daming and diverting water adjacent to the
barn floor, which dam is operable to send such
water as a sheet over the floor toward said drain
means;
having all been used in the dairy industry in the Unit-
ed States for years prior to the year 1960. All of such
things have been used prior to 1960 at such places as
Weed, Lodi, and Bishop, California; and
(j) That a dairy floor-washing means comprised
of a dam for damming and collecting water as a
pool directly on the floor with such dam being
abruptly operable to send the water as sleet over
the floor toward the drain means is not new; nor is
there anything new in the idea of the dam being
comprised of a steel plate, hinged to achannel iron
embedded in the floor, with a rubber seal around
the edges, and held by a simple catch attached toa
post. The steel plate is a simple plate, obtainable at
any iron or steel works, and is already fabricated
as a piece of steel plate, needing only to be cut to
size. Nor is there anything new in it being hinged
to a channel iron embedded in the floor, this being
a simple construction long known to anyone in the
construction business. Nor is there anything new
about holding it in place by a simple catch at-
tached to a post. When the catch is released, the
steel plate falls down, into a horizontal position,
but this is like the movement of the tail gate on
dump trucks in use more than 10 years ago and
like the movement of the end gate on station
wagons more than 10 years ago: and sealing the
edges of the gate with a rubber trim is that like that
44
used, among other places, around the edge of
automobile doors, or doorframes, over a period
extending back over a period in excess of 10 years
from this date.
Further, Affiant sayeth not.
/s/ ARCHIE SHARP
Archie Sharp
SUBSCRIBED AND SWORN TO before me by the
said Archie Sharp on this 30th day of October, 1969 to
certify which witness my hand and seal of office.
/s/ RONALD M. JAMES
Notary Public — In and for
(SEAL) Jackson County, Oregon
1231 JUDGMENT
[Title Omitted in Printing]
Filed: Feb. 19, 1970
Defendant's Motion for Summary Judgment having
come on regularly to be heard by the Court on
December 22, 1969, with, at the request of Plaintiff,
further arguments and consideration thereof on
February 11, 1970, and both Plaintiff and Defendant
having appeared by their respective attorneys of
record, and the Court having fully heard and con-
sidered Defendant's Motion for Summary Judgment,
and the arguments of counsel with reference thereto,
finds:
1. Plaintiff's patent is a combination patent, com-
posed of a number of parts or elements, as set out in
said patent.
45
2. The several component parts or elements of said
patent were well known in the dairy business long
prior to the date of filing the original application for
this patent.
3. Plaintiff, in a “Supplemental Memorandum in
Opposition to Defendant's Motion for Summary Judg-
ment” stated it does not deny the patent is made upofa
combination of old elements, and further stated it ad-
mits all the elements are individually old.
4. The combination of said old elements did not
result in anything new and patentable.
5. This case is controlled by the holding and opin-
ion of the Supreme Court of the United States in
Anderson’s-Black Rock, Inc. vs. Pavement Salvage
Co., Inc., opinion dated December 8, 1969.
6. There is no issue as to any material fact.
7. Defendant's Motion for Summary Judgment is
well taken, and is granted.
IT IS, THEREFORE, ORDERED, ADJUDGED and
DECREED by the Court that Defendant's Motion for
Summary Judgment be and it is hereby granted, and
further, that Plaintiff take nothing by this its action
and Judgment is hereby rendered in favor of the Defen-
dant. It is further ORDERED that Defendant have his
costs herein expended.
ENTERED this 19th day of February, 1970.
/s/ ERNEST GUINN
JUDGE
[39] FINDINGS OF FACT AND
CONCLUSIONS OF LAW
[Title Omitted in Printing]
Filed: Sep. 23, 1971
FINDINGS OF FACT
1. I find that the “dairy establishment as described
in United States Letters Patent 3,223,070 is composed
of 13 separate items, as follows:
(a) “...asmooth, evenly contoured, paved sur-
face forming a floor providing a walking surface.
(b) “... drain means for draining wash water
from such floor opening to the top of the floor“
(c) “...said smooth, evenly contoured surface
which forms such floor sloping toward said drain.
(d) ... multiple rest areas with individual
stalls for each cow and with each of said stalls having
a bottom which is also a smooth pavement.
(e) “... which is disposed at an elevation above
the paved surface forming the floor.
(f) “... said stalls being dimensioned so that a
cow can comfortably stand or lie in the stall, but offal
from the cow falls outside the stall bottom and onto the
floor providing the walking surface in the barn.. .”
(g) said barn further including defined
feeding areas having feeding troughs...”
47
(h) .. a cow-holding area
(i) “...a milking area.”
(j) “... a transfer area all bottomed with the
walking surface forming said floor in the barn...”
(k) .. and floor washing means for washing
the floor providing the walking surface in the barn
where said floor bottom, said feeding, holding, milk-
ing and transfer areas operable to send wash water
flowing over the floor with such water washing any
cow offal thereon into the said drain means, said floor
washing means including means located over a region
of said floor which is uphill from said drain means
constructed to collect water as a pool above said floor
and operable after such collection of water as a pool to
disperse the water as a sheet of water over said floor.”
(1) A tank on a mounting, so that it can be tilted,
and the water poured out to cascade on the floor to
form a sheet.
(m) A floor-washing mea s comprising a dam
for damming or collecting water as a pool directly on
the floor, which such dam abruptly openable to send
water cascading as a sheet over the floor towards the
drain.
2. I further find that each of the items above-
described were not new, but had been used in the dairy
business prior to the time the application for the said
Gribble patent, made the subject of this action, had
been filed in the Patent Office of the United States on
November 5, 1963. This finding is based upon the
testimony of Robert B. Price, and upon the following
facts in evidence, the first group being taken from the
deposition of Donald Joseph Gribble, to whom the said
patent was issued, and who is now president of AG
PRO, INC., to-wit:
(a) He described the, “smooth, evenly con-
toured paved surface forming a floor providing a
walking surface” as having to do with the shape of the
top surface of the floor, and that, “we use a small
amount of crown, generally”, and said, the contour,
as I would interpret it, is the general shape of the sur-
face of the floor.”
(b) With respect to the clause. drain means
for draining wash water from such floor opening to the
top of the floor. he said, It can be a graded ditch or a
ditch with — arranged like a scuffer, or a ditch covered
with a steel door that can be opened to collect the
drainage To the question, “The drain is actually a
ditch, isn't it? he answered, “Yes.”
(c) With respect to the clause, “said smooth,
contoured surface which forms a floor sloping toward
said drain,” he admitted this was simply a floor witha
small amount of crown sloping toward a ditch.
(d) With respect to the clause. multiple rest
areas with individual stalls for each cow and with
each of said stalls having a bottom which is also a
smooth pavement’, he was asked. And that’s similar
to dairy stalls in general, is it not?“, to which he
answered. “Yes.”
() With respect to the clause. which is dispos-
ed at an elevation above the paved surface forming the
floor’, his response was that this was typical dairy
construction.
With respect to the clause that, “said stalls
being dimensioned so that a cow can comfortably lie
or stand in the stall, but offal from the cow falls outside
the stall bottom and onto the floor providing the walk-
ing surface in the barn,” he admitted this is, “typical
dairy construction” as to which there are “variations”
from one installation to another. He further stated that
a lot of this is description which has been common in
the dairy business for a long time, but which Gribble
included because it was conceived as being necessary
to frame the “flush concept”.
(g) With respect to the clause, “said barn
further including defined feeding areas having
feeding troughs”, he agreed this is typical dairy con-
struction, and has been used over a long period of time.
(h) With respect to the phrase, “a cow-holding
area he agreed this is typical dairy construction and
has been used over a long period of time.
(i) With respect to the phrase. a milking area
he agreed that dairy barns have always had milking
areas.
(j) With respect to the clause, “a transfer area
all bottomed with the walking surface forming said
floor in the barn”, he agreed that dairy barns have
generally always had transfer areas.
(k) With respect to the provision that floor
washing means for washing the floor providing the
walking surface in the barn where said floor bottom,
said feeding, holding, milking and transfer areas
operable to send wash water flowing over the floor
with such water washing any cow offal thereon into
the said drain means, said floor washing means in-
cluding means located over a region of said floor
which is uphill from said drain means constructed to
collect water as a pool above said floor and operable
after such collection of water as a pool to disperse the
water as a sheet of water over the floor, he said this
means that the various areas (i.e., cow-holding areas,
milking areas, transfer area) are joined together 80
that the water, as it flows down, will move in a uni-
form sheet and carry all the waste material to the drain
means.
(1) Paragraph 2 of this part of the patent merely
describes a tank on a mounting, so that it can be tilted,
and the water poured out to cascade on the floor to
form a sheet. Mr. Gribble said this was not like dump-
ing a tub of water out because of the volumes involved
and the means of doing it. However, it is an old idea to
put water into a tub, vat or tank which is mounted so
that it can be tipped and the water poured out.
(m) The reference to a floor washing means
comprising a dam for damming or collecting water as
a pool directly on the floor, with such dam abruptly
openable to send water cascading as a sheet over the
floor towards the drain — Mr. Gribble was asked if that
means you have a place that holds water that you can
dump out on the floor and it flows down the floor, isn't
51
that all. to which he replied. Ves. very rapidly. There
are several variations of that tank.“ and with respect
to the item listed under (m) above. he was asked if this
did not mean that instead of putting the water in the
tub. you have it behind a dam where the doors will
open and let it go right on down quick, to which he
answered, “Yes, right“. He was then asked. And that's
really the gist of the whole thing. isn’t it?” to which he
answered, “It’s the basic concept of manure flush,
yes.”
3. I find that in Plaintiff's supplemental memoran-
dum in opposition to Defendant’s motion for summary
judgment filed in this court on the day of J anuary,
1970, it is stated on behalf of Plaintiff:
“Plaintiff doesn’t deny that the patent is made
up of a combination of old elements, just like
most other patents.” (Page 8).
In the same memorandum, it is said:
Plaintiff admits that all elements are in-
dividually old. but no one prior to the inven-
tors ever combined the elements as called for
in the claims.“
4. 1 further find that many of the items going to
make up Plaintiff's claim for a patent were disclosed
in prior patents, known respectively as the McCor-
nack patent, the Holz patent, the Ingraham patent, the
Kreutzer patent, the Bogert patent, and the Luks pa-
tent; and that the statements of the Examiner's opin-
ions refusing to issue a patent are true as to all items
there stated to be covered in prior patents or
publications.
5. I therefore find as a fact that each and all of the
component parts of this patent as listed under the
applicant's claims set out in said patent, were old and
well-known throughout the dairy industry long prior
to the date of the filing of the application for the Grib-
ble patent. I further find that what Mr. Gribble referred
to in his deposition as the essence of the patent, to-wit,
the manure flush system, was old, various means for
flushing manure from dairy barns having been used
long before the filing of the application for the Gribble
patent, the general idea in that connection being a hard
surfaced sloping floor onto which the cows’ offal was
dropped, and some system of introducing water in suf-
ficient quantities and force onto said floor to wash the
offal therefrom, with a ditch or drain to carry the offal
so washed away from the barn, either into a manure
container or otherwise.
6. I further find that the use of a tank at the upper
end of the floor to hold water, which can be suddenly
released onto the floor of the dairy barn, is a relatively
simple matter. Steel or concrete tanks have been used
prior to 1963 as water troughs on dairies. Neither the
tank which holds the water, nor the means of releasing
the water quickly is new, but embrace tanks and doors
which have long been known, and their use in this con-
nection is one that is obvious, and the patent in that
respect is lacking in novelty. The patent does not meet
the non-obvious requirements of the law.
53
CONCLUSIONS OF LAW
I find that the decision in this case is controlled by
the opinion of the United States Supreme Court in
Anderson's Black Rock, Inc. vs. Pavement Salvage
Co., Inc., 396 U.S. 57, 24 L.Ed.2d 258. The same finding
made by the Supreme Court in that case are applicable
here, and changed to fit the circumstances of this case
are:
(1) Each of the elements combined in the patent
was known in the prior art. It is urged that the distinc-
tive feature of the patent was the tank at the upper end
of the dairy barn floor which held the water that could
be cascaded onto the floor. However, the making of
such a tank, with a door or gate openable in the manner
this one was, would not of itself have been patentable.
This brings us to the question whether the combina-
tion of old elements created a valid combination pa-
tent.
(2) All that the Plaintiff has done is to construct
several elements known in the prior art in a sequence
known in a dairy barn. This may be relevant to com-
mercial success, but not to invention.
(3) The question of invention must turn on whether
the combination supplied the key requirement. I con-
clude that the combination was reasonably obvious to
one with ordinary skill in the art. The convenience of
putting a tank for water at the upper end of the dairy
barn floor, together with the other elements and areas
in the dairy barn, though perhaps a satisfactory way
of washing the dairy barn floor, did not produce a new
or different function”.
(4) A combination of elements may result in an
effect greater than the sum of the several effects taken
separately but even if the combination here filled a
long-felt want and it has enjoyed commercial success,
those matters, without invention, will not make paten-
tability.
(5) The patent standard is basically constitutional,
Article I, Section 8 of the Constitution. that under
that power Congress may not “enlarge the patent
monopoly without regard to the innovation, advance-
ment, or social benefit gained thereby.’ Moreover,
Congress may not authorize the issuance of patents
whose effects are to remove existant knowledge from
the public domain, or to restrict free access to
materials already available. Innovation, advance-
ment, and things which add to the sum of useful
knowledge are inherent requisites in a patent system
which by constitutional command, “must promote the
progress of useful arts.” This is the standard ex-
pressed in the Constitution, and it may not be ignored.
(6) I conclude that while the combination of old
elements may have performed a useful function, it
added nothing to the nature and quality of dairy barns
theretofore used. I further conclude that to those
skilled in the art, the use of the old elements in com-
bination was not an invention by the obvious — non-
obvious standard. Even though the dairy barn in ques-
tion attains the posture of a successful venture, more
than that is needed for invention.
I further find that the decision in this case is sup-
ported by the opinion of the Court of Appeals, Fifth
Circuit, in Inject-o-Meter Mfg. Co. vs. North Plains
Fertilizer & Co., Inc., 439 F.2d 1138 (1971), with special
reference to what is there said about novelty and non-
obviousness.
SIGNED AND ENTERED this 23 day of September,
1971.
/s/ ERNEST GUINN
JUDGE
[40] FINAL JUDGMENT
[Title Omitted in Printing]
Filed: Sep. 23, 1971
The above styled and numbered action, having come
on regularly to be heard on the 13th day of September,
1971, and the respective parties having appeared in
person or through their duly constituted officials, and
through their respective attorneys of record, and the
Court having heard the pleadings, evidence, and argu-
ment of counsel, is of the opinion and finds that said
Patent No. 3,223,070 held by Plaintiff does not con-
stitute invention, is not patentable, and is not a valid
patent, it being a combination patent, all of the
elements of which are old in the dairy business, long
prior to 1963, and the combination of them as described
in the said patent being neither new nor meeting the
test of non-obviousness, Defendant is entitled to judg-
ment.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Plaintiff's Patent No. 3,223,070. does
not constitute invention, is not patentable, and is not a
valid patent;
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED, that Plaintiff, AG PRO, INC., take nothing
by its action against BERNARD A. SAKRAIDA, the
Defendant herein, and that judgment be and it is
hereby rendered in favor of Defendant, BERNARD A.
SAKRAIDA;
IT IS FURTHER ORDERED that the costs herein be
taxed against the Plaintiff, for which Defendant may
have his writ of execution.
SIGNED AND ENTERED this 23 day of September,
1971.
s ERNEST C UINN
JUDGE
[42] TRANSCRIPT OF PROCEEDINGS
[Title Omitted in Printing]
Filed: Dec. 29, 1971
{3] BE IT REMEMBERED that on the 13th day of
September, 1971, the above entitled and numbered
cause came on for hearing before the Honorable
Ernest Guinn, Judge of said Court:
57
WHEREUPON the following proceedings were had,
to-wit:
THE COURT:
Gentlemen have you all discussed the procedure
you would like to follow today? The Court feels the
evidence that was received before the hearing could be
considered as being admitted in this trial and then
each party may supplement it by any additional
evidence they wish to present.
MR. KOLISCH:
That is satisfactory with the plaintiff.
MR. HULSE:
It is satisfactory to us.
[6] MR. KOLISCH:
... We will show that a problem had existed for
literally thousands of years. As the Court knows, this
goes back to the time of Hercules. It was his fifth task
to wash the Augean stables...
191 DONALD JOSEPH GRIBBLE
having been first duly sworn on oath to tell the truth,
the whole [10] truth, and nothing but the truth, testified
as follows, to-wit:
58
DIRECT EXAMINATION
BY MR. KOLISCH:
Q Please state your name and address.
A Donald Joseph Gribble, Hixson, Tennessee.
Q What is your occupation, Mr. Gribble?
A Iam an engineer.
Q What is your present position in connection with
the plaintiff?
A l am the President of the Ag Pro Corporation and
I work under the title of Director of Engineering.
Q Does Ag Pro. the plaintiff in this case own the pa-
tent in suit, the Gribble invented patent?
A Yes, the patents were assigned to Ag Pro.
A Does Ag Pro oven the right. also, to bring this suit
for patent infringement?
A Yes. I am not qualified to say legally but they
have all rights to the patent.
Q They own all the rights?
A Yes.
Q As well as all rights to enforce it, is that correct?
A Yes.
Q Now you are the co-inventor of the patent in suit,
isn't that correct?
A Yes.
Q Will you give us, briefly, your educational
background?
[11] A I have a degree in agricultural engineering
from Oregon State University.
Q When did you obtain that?
A In 1957.
Q And give us your business experience.
A Well, I was born and raised on a dairy, if you
want to go back that far, and after college and com-
pleting a three session in the service I went to work
with my father in a company called the Gribble Con-
struction Company in Port Arther, Oregon which later
evolved into Ag Pro Corporation. Since that time I
have acted in an engineering capacity and a manage-
ment capacity for Ag Pro Corporation.
Q Will you relate to us as fully as you can what the
circumstances were surrounding your making the in-
vention in suit? In other words take us back to the time
you first started on this.
A We began construction of the Sweet
(PHONETIC) Dairy in Oregon in the spring of 1961 and
this is the first dairy where we utilized the flush
system as it is described in our patents. Gribble Con-
struction Company acted as the general contractors-
builders. We intended, initially, to experiment with
hydraulic methods of waste removal but nothing
specific. After the dairy was completed or the first half
of it was completed the cows were moved in and we
began these experiments which consisted of cleaning
in conventional ways with high pressure hoses. We
tried —
Q — let me interrupt you for a minute. As of that
time [12] — you are now talking about 1961-'62?
A Yes.
Q What were the best conventional means that you
knew of for cleaning dairy floors at that time?
A Well, tractor scraping and hosing has, for many
years, been the standard accepted way toclean dairies.
Q All right. Continue with your experiments.
A The experiments consisted of high pressure hos-
ing with relatively high volumes. Work with per-
manently fixed sprinkler systems similar to lawn
sprinklers where the individual sprinklers were
strategically located to try to clean up areas of the
floor, and then the use of fairly high volume flow rates
from an irrigation pump where we introduced pipe to
have a distribution of 500 to 600 gallons per minute on
the floor and the system that is covered by the patent
which introduces dams and reservoirs in the process
to obtain a surge or tidal wave effect. As a result of the
— of these four wasys we experimented with, the surge
or tidal wave type of system evolved as much more ef-
ficient than any of the others in terms of time required
to get the cleaning done, total volume of water used
and labor and in initial investment. It was a very sim-
ple device to install as opposed to piping and valving
required for say, the sprinkler system or the big
volume pumps and system required for the high-flow
rate irrigation type of a system.
Q And approximately what date had you com-
pleted your experiments and had you stopped testing
it and were satisfied [13] that you had an operatable
system which would be made available to people who
wanted to purchase it?
A We had a pilot model, definitely better than any
of the other things we were working with, in the spring
or early summer of 1962.
Q And then you — you had this pilot model — this is
the one at Sixes, Oregon?
A Yes.
Q That finally proved out and then what did you
do?
A We proceeded with the second half of the con-
struction of the dairy and installed this sytem in the
entire dairy.
Q And tell us about the initial reception which you
had when you tried to present this to dairymen prior to
your having built the successful pilot model?
61
A Well, most people didn’t think it would work. It
seemed too unbelievable, and this is: A the reaction.
If we describe this same thing verbally to a dairymen
who has not seen or even if we show pictures and
slides of it being done, it is difficult for them to believe
the kind of a job that it is possible to obtain. This
system, when it is properly laid out will literally clean
up thousands and thousands of square feet of floor
area with virtually zero labor, in just a few minutes —
actually just a few seconds.
Q After you had completed the first successful in-
stallation was this then shown to other dairymen for
the purposes of [14] selling systems?
A The first sale of the system was made in the
spring of 1963 to the Pineyhill-West Dairy.
Q This is in California?
A Yes, in California.
Q And tell us now about the reception by the dairy
industry of your patented system?
A Very enthusiastic. As a result of this early work
and the formation of Ag Pro we have built a business
that is based on consultation and services to the dairy
industry where we specialize in a design and lay-out
of large commercial dairy facilities. We have worked
all over the United States, now, in this capacity in the
nine years since that time and have seventy some odd
installations that we have designed and installed of
this type. We have worked outside of the United States
in Japan and Hawaii. We have installed systems for
various of the educational institutions including
Oregon State College, the University of New Mexico at
Las Cruces, the University of North Carolina at
Raleigh and we have a system under construction at
the University of Georgia at Athens.
62
Q And just by way of example, can you give us the
name of some of your licensees?
A Well, the licensees include Dawn Dairy in
California, the Ralston Purina Company of St. Louis,
the Dean Foods Company of Rockford, Illinois and
many many cthers. There is 60 or 70 of them.
Q And roughly what are the size of these
operations and [15] the number of cows or however
you measure this type of operation?
A Well, the trend in the dairy industry is toward
larger and larger units and of course we specialize in
working with large commercial dairies so! would say
the range would be from perhaps 200 cows to 2,000
cows.
Q Would you tell us what your standard licensing
fee is? Do you have a license program and what is it?
A Yes. The standard fee is $1,500 for the facility
plus $1.00 per cow of the basic design.
Q And how — have you granted this license to
anyone who wanted it? In other words has this been
made avilable to those who wished it?
A Yes, anyone.
Q I will hand you a roadmap with certain in-
dications on it. I will ask you to identify this — would
you mark it as plaintiffs exhibit one?
(Whereupon Plaintiff's Exhibit
One was marked for Identifica-
tion)
Q Can you identify that?
A This mpa indicates the location of the various
dairies that I and my associates have worked on in a
design capacity in the last nine years since the forma-
tion of Ag Pro, which have been issued licenses.
Q You have marked those yourself in there in ac-
cordance [16] —
A — yes. Mr. Kolisch, one other point I should
make is that since the time this Court ruled against us
in the previous hearing we have refrained from seek-
ing any legal action against anyone else and in some
cases some of these should be licensed.
But these are all installations in accordance with
your patent?
A Yes, and installations I worked on. It does not in-
clude installations that other people built outside.
Q They are all installations under which you —
that is, Ag Pro installed —
— yes.
Or built?
Yes.
Or designed?
Yes.
How well do you know Mr. Sakraida, the defen-
dant — excuse me, I will offer plaintiff's exhibit one.
OSHO YO
THE COURT:
All right, It will be admitted.
Q How long have you known the defendant, Mr.
Sakraida?
A My first contact with Mr. Sakraida was on the
Dawn Dairy job at Bakersfield, California and this
began early in 1966.
Q In what capacity was he involved in that job?
A He was the general contractor for the construc-
tion of that dairy which is a 1,300 cow dairy operation.
1171 Q And what was your connection with that job?
Al was the designer of the dairy and supplied the
plans and construction details.
64
Q Specifically directing your attention to the
patented manure flush system, what type of informa-
tion did you make available to Mr. Sakraida in connec-
tion with the Dawn Dairy job?
A Well, we made all of the information concerning
the patent, plus the data we had gathered on volume,
slopes, data that doesn’t appear in the patent but is re-
quired for proper operation of the system. We supplied
shop drawings and construction drawings for the
various pieces of equipment that were involved, such
as the water dams.
Q Iam going to show you some copies of letters
and ask you to identify them.
A Plaintiff's exhibit two, a letter dated May 19, 1965
addressed to Ag Pro from Charles Shoemaker of Dawn
Dairy.
Plaintiff's exhibit three is a letter dated March 16,
1966 from Charles Shoemaker of Dawn Dairy to Ag
Pro.
Plaintiffs exhibit four, a letter dated April 4, 1966
from Joe Gribble to Charles Shoemaker, Dawn Dairy.
Plaintiffs exhibit five, a letter dated July 9, 1966
from Joe Gribble to Bud Sakraida, Western States Con-
struction Company with attached drawings.
Q Would you look at these exhibits two, three, four
and five?
[18] A These are zerox copies of letters from the Ag
Pro files and they describe the circumstances leading
up to the commissioning of us to design the Dawn
Dairy and working with Mr. Sakraida and delivering
certain plans and drawings to him.
Q In connection with exhibit five, there is a pen-
ciled notation at the end of the letter. Will you read it
and tell us who put it there and what it refers to?
A There is a note at the bottom, These units were
subsequently supplied by Ag Pro. The drawings were
never returned. And it is initially by me, D. J. G. It
refers to the water dams and paraphernalia for the
flush system as described on these drawings. We
supplied the Dawn Dairy and Mr. Sakraida these
drawings to construct these items but they elected,
during the course of construction, not to build them
but to buy them from Ag Pro and we subsequently
supplied the water dams and paraphernalia for the
flush system.
Q Are you familiar with the Jessup Dairy in
Bakersfield, California?
A Yes.
Q Will you tell us, with respect to this lawsuit,
what your knowledge is of the Jessup Dairy?
A Well, the Jessup Dairy is similar to the Dawn
Dairy in that it has housing areas and feeding areas
and holding areas for the cattle and it contains a
manure flush clean up system that is substantially
identical to that of the Dawn Dairy.
1191 Q What were the circumstances surrounding
the construction of the Jessup Dairy, and particularly
I would like for you to tell me what you know as far as
Mr. Sakraida's involvement with Jessup.
A Mr. Sakraida, through a friend of his, Mr. Al
Gandt supplied the drawings and plans for the Jessup
Dairy and Mr. Sakraida subsequently acted as the
general contractor in the construction of the Jessup
Dairy.
128] MR. KOLISCH:
We also have these two publications, plaintiff's ex-
hibit seven, the article in Western Dairy Journal.
THE COURT:
What is the purpose of those?
MR. KOLISCH:
Those are to show commercial] acceptance of the in-
vention. In other words these are publications in the
industry.
THE COURT:
All right. Mr. Hulse?
MR. HULSE:
If the Court please, we object to those; those [27] are
magazine articles, insofar as they contain any state-
ment of fact, they are hearsay as far as this defendant
is concerned. Insofar as they express an opinion or
trying to offer an opinion of somebody who is not here.
who cannot testify —
THE COURT:
— I am inclined to think so. I will reserve my ruling
and Mr. Gribble can testify to any of that that he knows
of his own knowledge. I will reserve my ruling on that.
If he wants to — if he wants to verify any of it he can. He
can do that, but as to people not here to be examined,
and their opinions, we will see. Go ahead.
MR. KOLISCH:
Your Honor, these are being offered merely to show
there were articles written about the installation in
67
recognized magazines which have a circulation
throughout the area and I wil] —
THE COURT:
— I think you can testify to that and offer that
without the content: that they were written up. I don't
think there is any question about that, that they were
written up in detail in these magazine articles of those
dates but there wouldn't be anything in there that
would be binding on the defendant and — he wouldn't
have an opportunity to question him on it. The Court
will allow you to state these articles about your patent
and we will let it go at that for the time being.
MR. KOLISCH:
Let the record show that the plaintiff has offered as
exhibit seven an article in Western Dairy Journal en-
titled The Way You'll Milk Tomorrow and The Way
You'll Clean Up” dated [28] May, 1964. Perhaps I can
ask him a couple of questions?
THE COURT:
All right, do that.
Q (MR. KOLISCH) Are you familiar with the arti-
ole in plaintiff's exhibit seven?
A Yes.
Q Is that article about the patent manure flush
System?
A Yes, the second half of the article, “And The Way
You'll Clean Up” — the second half of this refers
specifically to the patented System and the installa-
tion at the Pinyhill-West Dairy in Calistoga, Califor-
nia.
Q And this magazine Western Dairy Journal”, to
your knowledge what is its distribution?
A Its primary distribution is in three western
states, Oregon, Washington and California, although
progressive dairymen in other states do subscribe to
the magazine.
MR. KOLISCH:
I will renew my offer.
THE COURT:
All right. Do you want to examine him about the se-
cond one?
Q (MR. KOLISCH) In “Dairymen”, September,
1967, is there an article in there about the patented
system?
A Yes, the cover sheet on this particular publica-
tion has pictures of the manure flush system in opera-
tion and on pages 12 and 13 there is a feature article,
the title of which is “Biltmore Farms Solve Labor
Problems With Automation”, and the sub-title, “Flush
System in Action”.
1291 Q What dairy is being described in this article?
A This is the Biltmore Farms Dairy at Asheville,
North Carolina.
Q Do you know what the distribution of “The Sun-
belt Dairymen” is?
A “The Sunbelt Dairymen” is distributed in the
southern states from Texas to the east coast.
Q Do you know what the circumstances were
surrounding the preparation of these articles in these
two magazines? How did this come about?
A The Biltmore Dairy was — represented quite a
new and different way of handling the cows and clean-
ing up the waste for the dairy and as a consequence
there was an article written on it.
Q What about “The Western Dairy Journal”?
A The same thing. Pinyhill-West Dairy
represented a new departure from conventional ways
of handling cattle and cleaning up waste, as indicated
in the title, The Way You'll Milk Tomorrow . and
the article was written about it.
MR. KOLISCH:
Your Honor! would now like to show a movie which
will be not more than about 10 or 12 minutes.
THE COURT:
Mr. Carney, will you turn the lights off?
Q When you are ready to go, generally explain to
the Court what you are going to show and then, as we
go along you can explain it.
130 A This short film describes the conditional
ways of cleaning up manure in dairy barns and other
animal facilities but specifically related to dairy
barns in this case. It was taken at the Hall Brothers
Dairy in Montgomery. A portion was taken at
Reliance Dairy in Bakersfield, California, a dairy
Similar in size, I believe, 1,500 or 1,600 cows.
Q Now the first portion will be with respect to the
Standard, usual ways of cleaning up?
A Yes, the first-half of the film shows shovel work
and work with the scoopmobiles and manure
Spreaders or trucks and conventional ways of han-
dling manure which still are conventional. This film,
this part of the film Strip was taken just afew days ago,
10 days ago.
THE COURT:
All right.
70
A The second part refers specifically to our
manure flush system and was taken at the Hall
Brothers installation, which is a recent installation
and shows quite graphically the results we get.
THE COURT:
All right.
A This boy is preparing to do some shovel work.
The normal ways of handling manure at the time of
our invention were working with shovels or brooms of
this type and using high pressure hoses, using trac-
tors to scrape with or in some cases mechanical barn
cleaners, although in big days of this type mechanical
barn cleaners never worked out well at all. An in-
teresting feature here [31] is that necessity of getting
the cows out of the way to do the cleaning, if you are
cleaning in this way. It is a very tedious and time con-
suming job. This photo now was taken at Reliance
Dairies near Delano, California. This shows a large
truck in the background, the manure being handled in
dry form or simply dried. This big scoopmobile is used
to clean up the floors where the cows eat and sleep. In
this large area this equipment is used full-time in
manure clean up and manure handling. A machine of
the type of this scoopmobile would rent for something
like $20.00 an hour. Again, illustrating a very slow and
tedious and time consuming job to handle the waste
and manure from the dairy. A truck would haul the ac-
cumulated waste out to a field and stock pile it or it
would be distributed in manure spreaders.
Now we are in the main dairy building and this isa
relatively new and modern dairy. This is in the milk-
ing room — not the machine room but the milktank
room and here you are in one of the milking areas. This
71
is a boy in the left hand corner hosing this parlor
down. This is very tedious and time consuming. To
clean up one of these parlors properly would require
approximately an hour and a half. The hose the boy is
using is very high volume and high pressure and
would probably be dispensing something like 30 to 40
gallons per minute. In an hour this would represent
perhaps 2,000 gallons of water. It is very tedious and
slow work. Notice also where the hose strikes the
ground you get a good cleaning action but a few feet
away from the hose, where the low volume water [32]
is running on the ground you don't have much clean-
ing. The boy literally spent hours at this task which
has to be done twice daily in a typical dairy.
Q Mr. Gribble, do they use these hoses in the other
portions of the dairy? You showed earlier where they
were using the scoopmobile?
A Generally speaking, no. The hoses would be
used only in the milking area and cow housing or hold-
ing area adjacent. This is due to sanitary re-
quirements.
We are now at Hall Brothers Dairy near
Montgomery, Alabama. This is a 1. 200 cattle layout de-
signed to be flushed cleaned in its entirety, including
the milking parlors, holding area, housing area, feed-
ing area and transfer lanes. This is a picture of the
parlor. There is a girl in there milking and you will see
her in the lower left hand corner. The girl is about to
wash the milking parlor with these flush tanks of our
design. She has just released the flush tanks and it is
washing that side of the parlor and in a moment she
will release the other tank. The girl has just released
600 gallons of water to do approximately the same job
the boy in the other picture was doing which required
72
many minutes. The girl didn't even leave the pit or
stop milking to accomplish this clean up job. All ofthe
water from the parlor flush clean up and from the hose
that the girl had in her hand is accumulated on the
floor of the holding pen behind this hinged steel water
dam located at the rear. This accumulated water will
be used a little later to clean up [33] the housing and
feeding area. Understand that this is waste water that
has already been used one time. This shows a general
view from the rear of the holding pen forward towards
the parlors. The floor slopes in this direction so all of
the flush water ends up contained in this tank behind
the hinged steel water dam that that cow is standing
by. This crowding device here moves the cows forward
as the holding area fills with water so they don't stand
in the accumulated waste water. This shows a general
view of the housing and feeding area and this shows
the stations where the cows rest. Coming on around it
shows one of the lanes with an accumulation of waste
on the floor in a feeding building. Here again is a
general shot showing the transfer lanes. Now this
milking operator is coming down to get his next group
of cows. This is a 100 cow group. He opens this gate.
Notice the gate has a steel plate along the base which
will divert the fresh water down this particular lane.
You can see the accumulated waste on the floor. The
cows are waiting in the transfer lane to go into the
milking parlor. This is a shot of the low end of the cow
housing and feeding lane and it shows the accumula-
tion where the flush water is collecting. This steel
plate is over a ditch. The steel plate can be raised or
lowered to allow cows to pass over it. This shot is
taken from the low end of the cow housing and feeding
area looking up hill. These are shots of the dirty lane
73
and you can see the manure on the floor. Again, there
is quite an accumulation of manure on the floor and
that cow is adding to it right there.
[34] This is a general view of one of the cows in the
lane. Now the accumulated waste water is being re-
leased to accomplish the flush and the clean up is com-
plete. The advancing face of this surge of water is able
to dislodge and carry the waste water along a great
distance, several hundred feet. An interesting point
there is the ability of this system to clean up with the
cows in place. You notice it is washing right around
their feet. The water that follows the initia] abrupt
release gets the floor quite clean. There is literally one
hundred per cent removal of the waste and the debris
from the floors when these systems are layed out prop-
erly, in terms of grade and slope and volumes of wa-
ter. The alley we are looking down is approximately
400 feet long and will average four feet wide, and this
alley was cleaned up literally in the time we watched
this film; not more than one or two minutes. There are
no scoopmobiles involved in the job: no boys walking
around for hours at a time with hoses. The system is
relatively inexpensive to install and requires only the
proper grade and installation. The system is quite
conservative of water in that it reuses already wasted
water. That is the end of the film.
MR. KOLISCH:
I will offer this film as plaintiff's exhibit nine.
THE COURT:
All right.
Q (MR. KOLISCH) With respect to that last show-
74
ing of the cleaning which you said took a matter of
what, a couple of minutes to clean this alley?
135] A Yes.
Q Do you have any estimates from your experience
as to how long it would take to doa comparable job
with the known methods of cleaning barn floors?
A Well. most people would not doa comparable job
because that would involve hosing after the scraping.
A feature of our system is the extreme cleanliness we
are able to maintain. Generally the housing and feed-
ing areas shown in the last portions of the reel would
be only tractor scraped, which leaves a thin film of
deposited waste on the floor, and to get a comparable
job you would have to tractor scrape, followed by hos-
ing, which would be a very long and tedious job. I
would say four or five hours of work would be in-
volved to clean up a comparable area in a like manner.
137 CROSS EXAMINATION
BY MR. HULSE:
Q Mr.Gribble, your counsel went down each clause
of claim one of your patent with you and asked you if
each one of those elements as described there were not
to be found in the Jessup Dairy at Bakersfield, Califor-
nia and I believed you answered each one of them is to
be found there.
A Yes, sir.
And do you claim that you havea patent on each
one of those elements that are listed there in claim one
of this patent?
75
A No, sir. The patent hinges around the manure
flush system and its equipment.
Q Each one of those elements of the flush system is
old in the dairy business, long before 1963, wasn't it?
A Yes, sir.
And you so answered when I took your deposi-
tion some time last year. That is true, isn't it?
A Yes, but I hate to make a blanket statement for
every- [38] thing.
Q I am talking about each and every one of those
elements as described in claim one until you get down
to where you talk about the nature of the flush system
— until you get down talking about a pool and dam,
everything else before that is old, isn't it?
A Yes, sir, descriptive literature to frame the pa-
tent system.
Q And youdon'tclaim that because they have these
holding pens and rest pens and the place where the
cows stand while she is being milked and all that sort
of thing, you don't claim you have a patent on that that
gives you any exclusive rights to those, do you?
A No sir but they are essential just to frame the
situation. The cow is essential to produce the waste to
be cleaned up.
Q And the great problem in the dairy business
about getting rid of manure if they use any kind of a
flush system is the disposal, not only of the manure
but of the water, isn't it?
A Yes, but this is true of any system.
Q I say, whenever you use water that is one of the
big problems, is disposing of the water, isn't it?
A Yes, sir.
Q And that is one of the problems of the system
where you use a tank that holds a certain amount of
water?
76
These tanks on dairies you built. what do they hold.
2,000 gallons?
[39] A _ It varies with the design requirements.
And the size of the dairy?
A Right.
Q And — what size tanks have you built, by
gallons?
A From 300 to 4,000 or 5,000 gallons.
* * * *
1411 Q This matter of washing off dairy barn floors
is old in the dairy business, is it not?
A Using hoses and those methods are.
Q They have used the hose system, have they not?
A Yes.
Q They have used it where it drains from a tank or
someplace by the means of pipes. have they not?
A Pipes and valves to introduce water in spray
form, you mean?
Q Either in quantities or in sprays, they have done
it [42] both ways?
A Yes, with the pipes.
Q They have done it by spray or shower systems?
A Sprinklers, yes.
Q They have done it by introducing water onto the
floor of the dairy barn from a nearby creek or some
other river or whatever they had handy, have they
not?
A I suppose. I am not familiar with that.
Q Have you not seen any of those in operation
where they have been used?
A Where a creek was diverted into a dairy barn?
Q Yes.
77
No.
You have heard of it?
Just now.
Your counsel just now mentioned Hercules this
morning back in Greek mythology?
A Sir, I don't go to church as often as my counsel.
Q I see. Anyway you heard of that?
A Yes.
Q And the only thing about this patent you claim
here is you have a group of things that are all old in the
business except when you come down to how the water
is introduced into the floor of the dairy barn and it is
the method of introducing the water to the floor of the
dairy barn that you claim to be unique, [43] is it not?
A It is one of the key elements of our patented
system, yes.
Q And — but it is true that water has been intro-
duced to the floor of the dairy barn to wash them off by
various and sundry means over many years, back
long prior to 1963?
A Yes.
Q You suggested out there the use of pipe, did you
not?
A Not at Dawn. In my early discussion with Mr.
Sakraida I described some experimenting we did at
the Sweet Dairy in Oregon.
Q At the Sweet Dairy in Oregon?
A Yes.
Q Had you used pipes up there?
A This was one of the systems that we experiment-
ed with. We experimented with sprinklers and we ex-
perimented with hoses.
Q I believe you have built into the Sweet Dairy. by
least the spring of 1962, a tank with an opening to let
OSN O
78
this water cascade over the floor such as you claim in
your patent?
A On an experimental basis. yes. we had begun
that type of work.
Q You had actually built one that was being used in
1962?
A Yes.
Q And this was — was it written up in magazines or
papers.
A No, sir.
[45] Q Now these tanks that this water is stored in
where it is collected, as you described it in your patent,
is a pool, and those tanks also can be used, at least in
some places they are used as a water trough, are they
not?
A Yes, sir.
Q And in fact they are the same kind of metal — ei-
ther metal or cement water trough like has been —
long been used in the dairy business, are they not?
A Yes, with the exception of the paraphernalia to
obtain the abrupt release of the contents of the tank.
Q And that is true and what is described in your pa-
tent here is the — I believe you call it a gate?
A Or water dam, hinged water dam.
Q That consisted merely of a — is described as a
steel sheet that is hinged in the floor with a latch up at
the top so that the latch can be knocked loose and this
gate will fall down and the water will rush out?
A This is the description.
Q That is the description of it, isn't it?
[46] A Yes.
79
Q Is that the way you actually make them and build
them?
A Sir?
Q Is that the way you actually make them and build
them? Like I have described it?
A Yes sir, with refinements for mounting it in the
concrete and other requirements.
Q But all it took, actually, was this piece of sheet
steel with the hinge that was placed into the floor there
at the opening of the tank and the latch at the top to
hold it, that is what it consists of?
A This is one of the ways of obtaining an abrupt
release of water.
And you don't claim there is anything too
imaginative about this dam or gate, do you, and the
way it is hinged into the floor and the way this latchis
up there at the top to hold it and open it?
A Well, Mr. Hulse, you should have been an engi-
neer. You grasp these things in a second. It took us
months to conceive and develop it. Yes, there was a
good bit of thought and time and energy and trial and
error type work that went into the development ofthis
System as it evolved.
Q Well, a hinged gate, there is nothing new about
that, is there?
A No, sir.
[47] Q Generally speaking, for use?
A You mean like a gate to a garden or something
like that?
Alam talking about this gate or dam. if you want
to call it a dam that has a hinge on it that falls down and
lets something out.
A have never seen a gate hinged in that manner.
Q Well, it is very similar to the ones on many of
these old dump trucks you have had around here for
the last thirty years, isn't it?
A No, they hinge at the top so the gravel can run
out.
Q Some of them hinge at the bottom, don't they?
Haven't you seen any of them hinge at the bottom
where the gate falls down?
A Yes.
Q It doesn't raise up, it falls down?
A I have — we never thought of using the dump
truck body as a flushing tank. I have never seen it used
in that way.
Q You never saw it holding water, in other words?
A No.
Q But the gate, essentially operates the same way
as those on the dump truck where they hinge at the bot-
tom?
A Essentially the same way.
Q Those things have been in existence for many
many years, long before 1963, haven't they?
A Yes, sir.
Q Your patent also described another method that!
don’t [48] believe you have mentioned here and I sup-
pose it is because maybe it isn’t really used but under
claim two you have a tank or a vat or tub or something
of the sort in which water can be put and it is built —
there are pivots so it can be tilted?
A Yes, sir.
Q And have you actually used that any?
A Yes, sir.
Q And where do you use that?
A At the Sweet Ranch in Oregon and at the Jack
Daley Ranch in California.
Q You actually use these things?
81
A And at the Oakdale Farm which is known as
Hollandale (PHONETIC).
Q Now there is nothing to the idea of this thing
other than the idea of having a tank or vat mounted on
a frame so that these pivots can be put to the side of it
so it can be swung and dumped; that is all it is?
A That is basically how it works.
Q That is not a new idea, is it?
A There were elements I considered new at the
time. We built those devices so that they would work
automatically by shaping the end section of the tank in
such a way that as it filled the tank became over-
balanced and would rotate and dump, and then it was
counter-weighted in such a way that it would set back
up and we introduced water at a controlled rate so we
could obtain an [49] automatic flush every four hours
or six hours or whatever rate we wanted it to be in-
troduced.
Q Is any of that described in the patent?
A Yes. That is a basic description of the tank.
Q Doyou have it in claim two? Is it recited in claim
two, those refinements you were just talking about?
A The illustration of the tank in the patent shows
this construction.
Q But you will agree, will you not, there have been
many vats or tanks built in the past, long prior to 1963,
that worked on this pivot principal where you fill it
with something that flows, liquid and simply tilt it on
this pivot to dump it out; that has long been in use, has
it not?
A For what use?
Q For dumping?
A I can't think of any installation. I have never
seen one.
Q Well, I don’t know whether you have ever seen
one but probably you have seen a picture of a con-
verter in a Bessemer steel furnace, such as in a steel
mill where it is filled with molten meta] and it can be
dumped?
A Yes.
Q That has been in use for a hundred years, hasn't
it?
A Yes, sir.
Q It was in use long before that, back in Roman
times [50] when they made those things up on top ofa
fort and put hot oil and water in them and they would
dump it out on the enemy when they approached.
A Iam afraid you are back in the Bible again.
Q Iam not trying to get back to the Bible. We will
stick to the secular. You have heard of that, haven't
you?
A Of the Romans, no sir, I haven't heard of that.
Q Too far back, is it?
Anyway, you do know about the Bessemer principle.
A That would be similar, but of course Bessemer is
not used for an abrupt release of steel or anything like
that.
MR. HULSE:
I believe that is all, if the Court please.
THE COURT:
Do you have anymore questions at this time?
RE-DIRECT EXAMINATION
BY MR. KOLISCH:
Q In your experience and knowledge did you ever
know of a use of water in an accumulation in a dam,
whether it is behind a dam or in a tank, in a dairy or
similar establishment which could be released
suddenly for purposes of washing?
A No, Mr. Kolisch, we did not know of such a use. If
I had known of such at the time we developed this sys-
tem we certainly would not have gone tc the expense of
getting patents and the trouble and trials we have gone
through.
Q And since 1963 have you ever found a single in-
stance of such use in a dairy any place?
1511 A Inthe travels Ihave done since that time, and
they have been extensive — last year! travelled 90,000
miles in the capacity of designer, as a consulting serv-
ice to the dairy industry, and I have not found a single
installation that was in use prior to our initial work
that anticipated that work.
Q The initial work you did, you are referring to the
work at Sweet’s, and this was experimental] in nature?
A Yes.
[52] ROBERT B. PRICE, JR.
having been first duly sworn on oath to tell the truth,
the whole truth, and nothing but the truth, testified as
follows, to-wit:
[53] DIRECT EXAMINATION
BY MR. HULSE:
Q Will you stute your name please?
A Robert B. Price, Jr.
Q And where do you live, Mr. Price?
84
I live at 7345 Northloop Drive, El Paso.
How long have you lived in El Paso, Texas?
All my life.
And in what business are you engaged?
I am inthe milk production business, primarily.
How long have you been engaged in that
business’?
A Actively since I graduated from college in 1949.
Q And from what college did you graduate, then?
A That was the University of Wisconsin, the post
graduate. My primary college education was at Texas
A. & M.
Q Did you graduate from Texas A. & M.?
A Yes, sir.
Q Followed by how much time at the University of
Wisconsin in post graduate work?
A One year post graduate work.
Q And I will ask you whether or not you in-
dividually or through a corporation operate a dairy in
El Paso, Texas?
A Yes, sir.
And what is the dairy's name?
A Price’s Producers, Inc., doing business as Price's
[54] El Paso Dairy.
And is that located in El Paso County, Texas?
A Yes sir, at the same address where | live.
Q And just for the purpose of indicating whether it
is a small or large operation in dairy terms would you
say it is small or a large dairy?
A It would be a substantially large dairy.
Q And how many years have you been engaged in
the business of producing milk through dairies?
A Going on 22 years.
Q_ I will ask you whether or not you have had occa-
OY OO
sion during that time to become familiar with the
dairy business in the United States?
Al feel that I have, yes sir.
Q Iwill ask you, have you had at your dairy cattle
that you show at various and sundry cattle shows?
A Yes, sir. We do show cattle.
Q Over various parts of the United States?
A You might say nationally, yes.
Q Have you had occasion to visit other dairies over
the United States so as to be familiar with dairies
generally?
A Ihave visited quite a few dairies.
Q I will ask you whether or not you are familiar
both from what you know from your own dairy here in
El Paso County, Texas and from other dairies you
have seen, with the kind of dairy [55] barn in-
stallations that were used, at least in places in this
country prior to 1963?
A Yes, sir.
Q I want to ask you, Mr. Price, about the various
and sundry elements as they are set out in a patent
which is described as being patent number 3,223,070
granted to Donald Joseph Gribble and Henry E.
Bennett on December 14, 1965.
I want to ask you about some of the elements that are
set out in this patent and with respect to each one of
them I will ask you as to whether or not the items de-
scribed there in the dairy barns had been in use prior to
1963 in the dairy business and the first item is - says a
dairy barn for cows and the like, including a smooth
evenly contoured paved surface forming a floor
providing a walking surface for cows in the barn. I
will ask you whether or not — what we have described
there — what I have read to you was used in the dairy
business prior to 1963?
A I think as a general description of a barn floor
this would adequately fit.
Q And specifically had they or not been in use in
the dairy industry prior to 1963?
A Yes, sir.
Q Do you have any idea how far back floors of that
kind have been used in dairy barns?
A Well, of course even prior to 1963 for a good
many years a smooth concrete floor had been re-
quired to produce grade [56] A milk by the United
States Public Health Service.
Q And the next item is a drain means for draining
wash water from such floor opening to the top of the
floor. Are you familiar with a drain such as described
in that clause I have just read to you?
A Well, every barn floor would have to have a drain
because you have to make a provision for drainage to
qualify as a grade A producer, yes sir.
Q Iwill ask you specifically whether a drain as de-
scribed in the clause I just read to you was in common
use in the dairy business and dairy barns prior to
1963?
A Definitely, yes sir.
Q And the next item is said smooth, evenly
contoured surface which forms such floor sloping
towards said drain means whereby wash water dis-
charged on the floor may be collected and disposed of
through said drain means
Does that describe a floor of a barn such as was in
use prior to 1963 or not?
A Yes, sir. This would apply to our own barn for
many years.
Q For many years? How far back would you say?
A Back to — well, the original El Paso Dairy was
87
built in 1911 and had this very provision, same provi-
sion.
And the next item. said barn further in lud-
ing multiple rest areas with individual stalls for each
cow and with [57] each of said stalls having a bottom
which is also of smooth pavement... .”
Was that in use or not in the dairy barns prior to
1963?
A It was in many parts of the country, primarily in
the Northern part of the country.
Q And were you familiar with — from having seen
them?
A Oh, yes, I have worked in barns of that type.
Q And this is all prior to 1963?
A Yes sir.
Q And then it continues, this is all one long sen-
tence and I have broken it down into parts, it continues
with the next clause. . but which is disposed at an
elevation above the paved surface forming the floor
Was that also in use in the dairy barn prior to 1963?
A I don't quite follow that sentence.
Q Let me go back and pick up the clause imme-
diately ahead of that because I guess they are tied
together: including multiple rest areas with in-
dividual stalls for each cow and with each of said
stalls having a bottom which is also of smooth pave-
ment, but which is disposed at an elevation above the
paved surface forming the floor
A Oh, yes, yeah.
Q Was that in use in the dairy industry before 1963°
A Yes, sir.
And then it continues: “... said stalls being [58]
dimensioned so that acow can comfortably stand or lie
in the stall, but offal from the cow falls outside the stall
bottom and onto the floor providing the walking sur-
face in the barn .. Iwill ask you whether or not that
was in use in dairy barns prior to 1963?
A Yes, sir.
Q And it continues: said barn further includ-
ing the defined feeding areas having feeding troughs
with means for discharging feed to the troughs...”
Was that used in dairy barns prior to 1963?
A Yes, sir.
Q It was used?
A Yes, sir.
Q Then it says: a cow holding area...” were
those in use or not prior to 1963?
A Oh, yes.
Q Did you find them in all dairy barns?
A Most dairy barns would have acow holding area.
Q The next one: a milking area...” Did you
find those before 1963?
A Very definitely, yes sir.
Q And the next item: and a transfer area all
bottomed with the walking surface forming said floor
in the barn...” Did you find those prior to 1963?
A Well, depending on what is meant by a transfer
area. If it is the area between the holding area and the
milking area, [59] certainly, those have existed before
that time, yes sir.
Q “... and floor-washing means for washing the
floor providing the walking surface in the barn where
said floor bottoms said feeding, holding, milking and
transfer areas operable to send wash water flowing
over the floor with such water washing any cow offal
thereon into said drain means, said floor-washing
means including means located over a region of said
floor which is up hill from said drain means con-
structed to collect water as a pool above said floorand
operable after such collection of water as a pool to dis-
perse the water as a sheet of water over said floor
Were you familiar with anything that fits that descrip-
tion?
A I hadn't seen or used prior to 1963 a holding
device but as far as the use of flood water. yes, we have
used that ourselves to replace the holding device, a
number of high pressure water hoses and of course I
have also seen and also seen pictures of operations
where water was diverted, natural flowing water was
diverted from a stream, natural stream through a barn
to wash in a sheet of water, to wash the offal.
Q Iwill ask you whether or not prior to 1963, was
the washing with water of the floors of dairy barns in
common usage and practice in this country?
A Most definitely, yes sir.
Q And I will ask you whether there were several
different means of introducing water onto the dairy
barn floor in order to wash it?
180] A Yes.
Q Could you tell us what some of those means
were?
A Well, as I said, by hose, by flowing sheets of
water such as diversion of a stream, and in colder
climates, use of lime to sprinkle on the manure where
the dairymen didn't want to wash offal away because
of the coldness.
Q Do you know whether or not it has also been done
by the use of putting the water on the dairy barn floor
through pipes, either through the end of the pipe or
through perforations that sprinkled it or sprayed it?
A Oh, yes.
Q Have steel tanks and concrete tanks been used in
the dairy business prior to 1963 as water troughs?
A For many years, yes sir.
Q And some of those are, I assume, would be
sizable? What size tanks, in gallons, would you say
you knew have been used as water troughs, either steel
or concrete?
A I would say holding from 100 to 500 gallons.
MR. HULSE:
I believe that is all.
Your witness, Mr. Kolisch.
CROSS EXAMINATION
BY MR. KOLISCH:
Q Mr. Price, I believe you said that you had seen or
heard of the use of water from a stream to wash the
floor of the dairy barn?
1811 A Yes, sir.
Would you describe for us how that took place
and where?
A Yes, I would be happy to. I have an associate in
our business, a nutritionist who travels extensively
and he had an account in central America — in Coastal
America and on his tour of dairies in Costa Rica, in the
mountains he came across several instances where
water was diverted from a stream through a barn to
clean out the offal, to do the washing and he brought
back pictures. I do not have the pictures myself but he
brought back pictures of this and I was very much in-
terested to see this method of cleaning.
Q You have never seen these installations
yourself?
91
A Not personally, no.
Q And they are not in this country, this is in Costa
Rica?
A Well, Ihave seen reports of others in the country.
The one you are talking about, the ones you were
telling me about, those are in Costa Rica?
A The one! have seen the pictures of, yes sir.
Q And where are they in Costa Rica?
A In the mountains of Costa Rica. It is not a very
big country. It wouldn't be hard to find.
Q You have no local —
A l can get the address.
Q You don't have it?
1821 Al didn't come —
Q — did you give it to your counsel prior to
testifying?
A I believe the counsel, I believe Mr. Hulse has
seen pictures of this, seen copies of the pictures.
Q Iam asking with respect to the address.
A The address, no, I have not given the address.
Q What year was this supposed to have taken place
in Costa Rica?
A lt did take place. It is taking piace now, and this
was two years ago when Dr. McDaniel, our
nutritionist was there.
That would have been 1967?
Yes.
These pictures of this installation were in 1967?
The installation was a number of years old.
How do you know that?
All right. It is hearsay
As far as you know?
I wasn't there.
The pictures you saw were something that took
place in 1967?
OPrOrororo
A That's right.
Let's talk about this country. Did you ever know
of a barn cleaning system that existed in this country
prior to 1963 in which the water was collected as a pool
on or above the floor of the barn?
[63] A My own knowledge?
Q Tell me about your own installation.
A I have a large storage tank that holds 50,000
gallons. We have a pressure pump connected to this
and using two or three hoses with at least 50 pounds of
pressure we flood the water — flood the floor and wash
the offal.
Q Through hoses?
A Through hoses, yes, which are outlets to the
tank, as far as I am concerned.
Q The water comes out from a nozzle of a hose,
doesn't it?
A That is the means of transportation, yes.
Q Did you ever hear of any barn where there was
such a tank and the tank and the water were suddenly
released to flood, to wash down as a sheet of water?
A Prior —
Q — to 1963?
A No, I have not.
MR. KOLISCH:
That is all I have.
MR. HULSE:
That is all, Mr. Price.
May this witness be excused?
THE COURT:
Yes.
MR. HULSE:
If the Court please, I stated to the Court before noon
that I might have two witnesses but I am going to put
on the stand only this one and I want to check about the
papers to be sure. My understanding is the deposition
of Mr. Gribble, which [64] was taken before the time of
the summary judgment is considered in evidence and
therefore part of the record in this case. Do we consider
the things that were in the transcript when this case
went up to the Court of Appeals as being in the record
here today?
THE COURT:
Yes, I will consider the entire transcript for
whatever use counsel may want to put it to and
whatever use I may want to put it to for determining it.
Either one of you may refer to anything in there you
want to.
MR. HULSE:
Is the Court's file in here?
THE CLERK:
Yes, sir, but there was no transcript of evidence in
this record on appeal.
MR. HULSE:
No, there would not have been one because it was a
summary judgment.
I filed in there a request for admissions about cer-
tain items and I would like to use the file.
THE COURT:
The clerk will find it.
MR. HULSE:
If the Court please, if I may, I would like to offer
those in evidence from that file.
THE COURT:
You may offer them and you may read them if you
want to or you may just offer them.
MR. HULSE:
I will just state what they are, if the Court please.
This was the defendant's request for admission of the
genuiness of document one, the application of D. J.
Gribble for the patent bearing patent office number 3.
223,070, together with the applicant’s admendments
thereto, the patent examiner's [65] opinion on the
original application and each one of the
admendments, all being marked exhibit A attached
hereto.
Number two are the documents attached to this re-
quest and marked exhibits A-1 and A-2, copies of Cat-
tle shelters and equipment for South Carolina”, Ex-
tension Agricultural Engineering Handbook Number
Two, December 1958, pages 21 and 26. published in
1958 by the Clemson University Agricultural College,
Clemson, South Carolina.
Three, a document marked exhibit B, being acopy of
page 13 of a document published by Babson Brothers
Dairy Research Service in 1959, entitled “The Way
Cows will Be Milked On Your Farm Tomorrow.”
Four a document consisting of nine pages, marked
exhibit C and being a copy of the K. Luks patent, bear-
ing patent office number 1,968,564 and dated July 31,
1934.
Five, a copy of a document marked exhibit D and
consisting of eighteen pages and being a copy of the F.
J. Kreutzer patent bearing patent office number 1.981.
417 and dated November 20, 1934.
Six. a copy of a document marked exhibit E and con-
sisting of ten pages and being a copy of the F. J.
Kreutzer patent bearing patent office number 1.981.
418 and dated November 20, 1934.
Seven, a copy of a document marked exhibit F and
consisting of twenty pages, being a copy of the H. Mc-
Cornack patent bearing patent office number 2,081,947
and dated June 1, 1937.
The genuiness of these copies of documents was ad-
mitted by the plaintiff and they are attached hereto and
I offer them in evidence, without reading the details of
all of these documents [66] themselves.
THE COURT:
All right. They will be admitted. The transcript, as I
said, will be available to either one of you if you want
particularly to call the Court’s attention to some item
in there.
NR. HULSE:
i patent which was not on that list, Mr. Kolisch, but
with which I think you are familiar —
MR. KOLISCH:
I am familiar with the Bogert patent, but you haven't
complied with section 284 of the statute. You haven't
given me the proper notice.
MR. HULSE:
Well, I understand. I am just now showing it to you
but you have long been familiar with it. I will ask you
if this is a copy of the Bogert patent?
MR. KOLISCH:
Yes, sir, that is a copy of the Bogert patent.
MR. HULSE:
Then I will offer it also. patent number 2,233,766,
dated March 4, 1941.
7 * — 7
[67] THE COURT:
Well, the Court will admit it but if you need time —
you say you are familiar with it; if it is necessary for
you to have more time to rebut it I will give you that
time to do it or if you want to supplement it or offer
something to the contrary I will permit it.
MR. HULSE:
I want to offer two statements from the brief filed by
counsel for plaintiff in their supplemental memoran-
dum in opposition to defendant’s motion for summary
judgment. I will offer the entire document, I suppose
would be the proper way to get it in. and point out to the
Court the two statements that I offer it for. They are to
be found at pages 9and 13 respectively. I offer it forthe
statement on page 9 — I was mistaken, it is page 8,
beginning at line 27, the statement “Plaintiff does not
deny that the patent is made up of a combination of old
elements, just like most other patents. However,
plaintiff's position is that the combination of elements
called for in claims one, two and three of the patent
(listed in simplified form above) had never been com-
97
bined as specified, and the result of combining these
elements was to produce a completely new dairy barn
construction which was not only different from
anything that had existed prior to it, but so far
superior and produced such unexpected results that it
achieved wide spread commercial success and
recognition among persons, institutions and
businesses who are the most knowledgable in this
field.“ And that is offered for the purposes of the ad-
mission that it was made up of things that were old,
merely a combination patent.
[68] And for the same purpose and to the same effect,
the statement on page 13 of this supplemental
memorandum where it states, beginning with the last
word on line 21 and proceeding thereafter: ‘Plaintiff
admits that all the elements are individually old, but
no one prior to the inventors ever combined the
elements as called for in the claim.“
THE COURT:
All right. Mark that as a defendant’s exhibit.
THE CLERK:
Defendant's exhibit C. Your Honor.
THE COURT:
All right. We better include the entire transcript so
that either one can refer to it, the record on
appeal.
* * * *
DARRELL LLOYD REE D
having been first duly sworn on oath to tell the truth,
the whole truth, and nothing but the truth, testified as
follows, to-wit:
98
DIRECT EXAMINATION
BY MR. KOLISCH:
[69] A No, sir.
What business are you engaged in?
I am a milk producer. I am a dairyman.
Where do you have a dairy?
I have a dairy at — just north of Waco, Texas.
Could you tell us roughly about the size of your
dairy?
A We milk 325 cows with an assortment of dry
cows and heifers come into all dairies for a combined
total of about 600 head of cattle on the premises.
Q How long have you been in the dairy business?
A Oh, basically — of course I was reared in Wiscon-
sin on a dairy farm. I grew up on a dairy farm and out-
side some years spent in the service and so forth, why,
I have basically been in the dairy business all my life,
outside of those interim periods.
Q How old are you now?
A Iam 51.
Q Do you belong to any dairy organization?
A Yes, I am a member of the Associated Milk
Producers, Inc.
Q Tell us what that organization is.
A Well, it is basically a milk marketing organiza-
tion. I believe it has 43,000 members, dairymen. This is
the only — you have to be a bona fide producer to be a
member of this organization. It covers — goes from the
Gulf of Mexico to Canada and it covers, I believe, about
21 states. I have served on the board of directors[70] of
the various milk associations. I have traveled quite a
ON OO
bit with that and for this milk association. This is an
offshoot of many organizations, actually. I was on the
original board in the original group that started the
founding of this large organization and it, of course,
has continued to grow from there. At the present time!
am a voting delegate for the southern district or south-
ern division in area seven, which is the area I repre-
sent.
Q Have you been a delegate to conventions of this
organization?
A Pardon?
Q Have you been a delegate to conventions?
A Yessir, I am at the present time a voting delegate
for this. We just returned from Chicago from our last
annual meeting which was over Labor Day.
Q Is this the meeting President Nixon addressed?
A Yes, sir.
Q Now in the course of your business have you act-
ed on any panels? Have you been active in educa-
tional institutions or conferences involving your
business?
A Yes, sir. I have been — let's see, last November I
was on a panel down toA & M College at College Sta-
tion, Texas. I have been on some panels.
Q What was the subject that you had under discus-
sion at that last conference at A & M that you referred
to?
A Well, this was on liquid manure disposal sys-
tems and [71] I was on the panel to the fact that we have
one and our experiences with it and so forth. This is
what they were trying to bring out.
Q Now going back to the period prior to 1963, will
you tell us from your knowledge what was the best
available way of cleaning and removing manure from
dairy barns?
100
A Well, going back to when I was dairying in the
north, your mechanical cleaners which was a series of
chains that runs through a gutter that elevated it up
into an outside spreader. We used tractor blades, scoop
shovels, scrapers, high pressure hoses, brooms.
Q How satisfactory were those systems?
A Well, they were never a hundred per cent
satisfactory. It wasn't quite such a problem in years
back, and this was kind of the accepted way to do it.
Labor was a little more plentiful, a little cheaper, but
as this — as the dairy industry grew this problem
became more acute from the standpoint of labor, get-
ting somebody to do it, and our health standards, of
course, during this same interim period were con-
stantly becoming more stringent and what was good
enough ten, twenty years ago is not good enough to-
day. We had to find better methods of cleaning, to do a
better job of cleaning. This all had a part in it.
Q Do you have a patented Ag Pro system in your
dairy?
A Yes, sir.
Q When did you get it?
A We started milking in the barn in April of 1970.
We [72] started construction in August of 69.
Q Prior to purchasing the Ag Pro system what
investigation, if any, did you make with respect to
barn cleaning systems?
A Well, I had, of course, gone into many types of in-
stallations. I checked to the best of my ability pretty
thoroughly and I checked with A&M College. In fact
this was my first stop, to see what they had to offer and
also with various feed companies and some of them
had some planning services, and our own milk
association, to a limited degree, has a planning serv-
101
ice. I went to some research farms up to Kansas City.
Missouri. Farm Land Industries has a research farm
where they have free stall housing which! was also in-
terested in, but there again they had the concrete and
tractors and blades plus the fact of — I have seen
dairies over a good portion of the United States and
they just never quite come up with the answer to this
cleaning problem where it was completely satisfac-
tory.
Q Where did you see the first working Ag Pro in-
stallation?
A I seen my first working Ag Pro installation at
Cameron, Texas at Elm Creek Farms.
Q Roughly what year was this?
A This was in approximately February or March
of the year 1969. One of the representatives of Ag Pro
heard that I was going to build a new installation and
came by to see me and consequently picked me up and
took me down and this is where I seen my first flush
system.
Q Will you relate to us as completely as you can
what your impression was when you saw the Ag Pro
system?
[73] A Well, of course this was so revolutionary
from the methods we had been using over the years,
and like I say, I think I was kind of born on the end of a
manure scoop. We had done this since childhood and
the thing I think that probably impressed me the
greatest was the cleanliness of the thing after the
flush. This was, as I was referring to it later, it was the
clean, clean, you know, much better than what we had
been able to do with our scrapers and hoses and so
forth in the past.
Q Under the old system the scrapers and the hoses
102
— did you hose down areas other than those in the
milking and immediately adjacent to the milking
areas?
A No, sir.
Q How were those areas cleaned?
A Well, those areas were just bladed, usually, with
a blade on a tractor, just bladed it off and loaded it,
usually, with a front end loader on spreaders and car-
ried it out.
Q Now from your experience with the Ag Pro
system can you make any comparison with respect to
the length of time it would take you to clean an area in
a confined type of barn operation such as I under-
stand you have for say 100 cow group?
A Well —
Q —I would — excuse me, I would like for you to
compare cleaning under the old — the best old method
that you were familiar with and how long it would take
to do a comparable job with the Ag Pro system.
[74] A Well, I will have to speak for my own cow
group. We have 62 cows to a group. They are housed,
fed and everything within this area. The physical time
involved in cleaning that with this system is two or
three minutes. In other words, the length of time it
takes to drop our gates and close them back up. Now to
try to compare that to a comparable cleaning job isa
little difficult but to blade it off and hose it down and
come to the same degree of cleanliness, I would say, it
would take a minimum of about three hours to drag
this out and hose it and broom it down to this degree.
Q Asapractical matter, did you, under the old sys-
tem, ever maintain all of these areas, not just the milk-
ing area but all the living areas under these conditions
of sanitation?
A No. sir.
103
Such as you have with the Ag Pro system?
No, sir.
Why didn't you?
It was just not feasible.
You are talking about the economics of it?
From an economic standpoint. you never could
accumulate that much labor to clean and hose and
brush that large an area. It was just not feasible.
QI don't know if you have testified to this or not,
but when an area such as you have described is clean-
ed by the Ag Pro system is it entirely cleaned so that
you would say it is shining clean?
1751 A Yes.
Q Putting yourself back to the period of 1963, was
the Ag Pro patented system what they did? Was that
obvious to you at that time?
* O OD O
MR. HULSE:
If the Court please, what was obvious to this man, I
don't think is material.
THE COURT:
That's right. I will sustain that.
Q In 1963 was it ever suggested to you by anyone or
any publication or anything you had ever heard of to
have a barn cleaning system like the Ag Pro system?
A No, sir.
104
M. G. HUBER
having been first duly sworn on oath to tell the truth,
the whole truth, and nothing but the truth, testified as
follows, to-wit:
DIRECT EXAMINATION
BY MR. KOLISCH:
Q Can you hear me all right, professor Huber?
A I think so.
Q You havea little trouble in hearing in this court-
room?
A Yes.
Q Will you please state your full name and your ad-
dress?
A My full name is Milam George Huber, signed M.
G. Huber, [76] generally. I live in Corvallis, Oregon.
Q What is your present occupation?
A I am presently retired and doing some con-
sulting work.
Q Prior to retirement what did you do?
A I was an agricultural engineering specialist
with the Cooperative Extension Service at Oregon
State University.
Q Will you tell us generally what the nature of your
work was and if there was any particular field in
which you specialized?
A Iwas — I worked with county agents. I worked
with farmers and I worked in the area of farm build-
ing, planning, layout, designs, animal waste dis-
posals, anything that had to do with farm building,
although this did not take all of my time. Probably 40
to 50 per cent of my total time was devoted in this area.
Q Will you give us your educational background?
105
A Iam a graduate from the University of Wiscon-
sin in Agriculture — with a major in agriculture. It
was a major at that time. Now it is a degree. I graduat-
ed in Mechanical engineering from the University of
Wisconsin and I did some graduate work there and at
the Pennsylvania State University.
Q What is your present age?
A 66.
Q Will you tell us briefly about the nature of the
work that you have done since you have completed
your degrees at the institutions that you mentioned?
A After I completed my degree work at the Univer-
sity of [77] Wisconsin, of course, this was during the
depression years and I had a few miscellaneous jobs
up until 1935. Then I was appointed as an instructorin
agricultural engineering at Pennsylvania State Uni-
versity, at that time Pennsylvania State College. In
1936 I accepted a position at the University of Maine in
the school of agricultural engineering and I was there
until 1945. From 1945 until my retirement I was at
Oregon State University.
Q Are youamemberofany professional societies?
A I was for about 30 years a member of the
American Society of Agricultural Engineers.
Q Are you the author of any publications in the
field of agriculture?
A Yes, numerous publications in my field. I do not
recall the number but I know that it is at least 30 or
more and that includes, for example, dairy housing
and animal waste disposal. I published the first
publication in the United States on free stalls or in-
dividual stalls as they are now used and used in this
layout and worked on poultry houses, beef animals.
sheep, hogs, everything I guess, all kinds of livestock.
106
Q Have you studied the Gribble patent which is in
litigation here?
A Yes, I have read it and re-read it.
Q Have you also studied the prior art publications
which the defendant gave us notice he was going to
rely upon at this trial?
A I believe there were six of those. There were two
publications [78] and four pate..is. I have read all of
those and looked at them very carefully.
MR. KOLISCH:
Iam going to offer Professor Huber as an expert. Do
you wish to question him?
THE COURT:
What opinion are you going to ask him?
MR. KOLISCH:
He is going to be asked with respect to the prior art
in this field and with respect to the patent in suit and
with respect to the prior specific instances of prior art.
THE COURT:
Well, go ahead. We will pass on each question when
you get to it.
Q (MR. KOLISCH) Now considering the situation
prior to 1963, what was, or were there any problems
with respect to — specifically to dairy barn construc-
tion and the removal of waste products and manure?
A I think all dairy farmers considered that one of
their major problems in the dairy enterprise, removal
of manure from the cow area.
Q Is there any particular reason why this is sucha
problem or was a problem?
107
A Most people don't like to work at the particular
job. Not only that, there is a considerable volume of
this material to be moved and of course if the farmers
don't do a good job the milk inspectors will be after
them. Hence, it meant it had to be reasonably clean.
Now of course that can be argued, what is reasonable,
but it had to be clean enough to comply with the milk
inspector's [79] requirements and it took some time —
not only that, but took a considerable amount of time. I
did that when I was a boy and I just hated the thing.
Q You refer to volumes. Do you have any informa-
tion concerning the amount of manure that is produc-
ed on a daily basis by a cow, for instance?
A Yes, there are tables that have been prepared
and, incidentally, I prepared the first table on that in
the United States, on the volume of manure produced
by various animals. It has been changed somewhat
since. For example, let’s take a large dairy animal, a
1,600 pound cow, and it will produce, probably, 16 to 17
gallons of manure per day. That means solid material
plus the urine plus the liquid. Now this can be a little
more or a little less, depending on whether the cow isa
big producer and takes in a lot of feed or whether the
cow is dry. It just depends on the cow. Also, what she
may be fed at the time. Those are variables, but those
are guidelines that we use. Then too, if we want to look
at it another way it will take probably about 16 cows to
produce one ton of manure and if we have a hundred
cows we have got 6 or more tons of manure to handle
every 24 hours, which is considerable weight.
Q And what was the situation in 1963 with respect
to the best known ways of removing manure?
Al don't believe that there was any one best way,
although all the people in the state of Oregon used
108
scrapers in a loose housing layout. We need to dis-
tinguish between the type of housing. For [80] exam-
ple, whether it was loose housing with free stalls or
just plain loose housing or a station type barn. In loose
housing they use scrapers and supplement it with a
hose under pressure and in some types of barns they
have the gutters and conveyors and some still use the
hand shovel or fork.
Q When did you first personally become ac-
quainted with the Gribble-Bennett invention?
A About early 1963, I believe. That is when it was,
somewhere around that time. I am sure I am not very
far off.
Q And do you recall what the circumstances were
and where you saw it?
A I saw it at Sweet’s Dairy at Sixes, Oregon.
Q What impression did the invention make on you
when you first saw it?
A It made a great impression on me. It was a com-
plete new concept in manure removal, in cleaning the
dairy barn, different than anything that had ever been
used. I might add, with your permission, that the key
to this concept is this: water has energy and it can be
used in many different ways. In a hose the energy is
used by impact, under pressure, external force that is
applied to this pressure — to this water, whereas the
water that comes down as a sheet or wall of water has
built in energy because of its elevation and as this wa-
ter is released it does the same thing water does ina
flooded stream. As this water — I will try to make this
clear, and I hope! can, on the surface of this pavement
there are [81] these piles of manure droppings. This
pavement is smooth and this water moves down over
this manure. The water at the bottom has more friction
109
than this water on the top and it keeps moving ahead
and as this water keeps moving ahead we get a rolling
action of this water which produced the cleaning ac-
tion. That is the key to this method of cleaning. You do
not get this in a hose. You do not get it in a gutter as has
been used in the past. I might just mention a little bit
about the hose. This squirting water on a floor — prob-
ably have done it on our own sidewalks or walkways,
and I just mention that, that unless that water is con-
tinuously directed towards the cleaning area the
cleaning action almost ceases instantaneously. Now
the movie that was shown earlier very dramatically il-
lustrated that point. The cleaning action — as soon as
the hoses moved to one side the cleaning action ceased
here and that is why this hose was moved back and
forth, to drive this stuff on down to where we want it. I
am wondering if that explains it?
Q Yes. I think that is correct. This is what you ob-
served in the movie that was shown here, plaintiff's
exhibit 9?
A Yes.
Q In 1963 had this concept ever been suggested to
you?
A Not to my knowledge, in no way whatsoever.
Q Will you refer now to the prior art relied upon by
the defendant?
The first is an article entitled “Cattle Shelters and
Equipment for South Carolina“, Extension
Agricultural Engineering Handbook No. 2, [82]
December, 1958, pages 21 and 26. What comment do
you have to make with respect to that publication?
A This shows nothing more than the conventional
floor plan that was used about that time in many areas
of the United States. There is nothing in this plan that
has anything to do with cleaning or washing floors. It
110
is simply a conventional type of plan. That is all it is.
Q Will you now refer to the second publication
which is entitled The Way Cow’s Will Be Milked On
Your Farm Tomorrow” by Babson Brothers Dairy
Research Service, 1959, page 13. Here is a copy.
A Well, all this does — it is just another plan for
conventional loose housing which had been in use for
some time. The same cleaning methods are used here
that have been in use for quite some time, either scrap-
ing — scraping is required and if further cleaning was
required then water under pressure — external
pressure was used. That is about all. There is nothing
in this that is new or different compared to the Gribble-
Bennett method of flushing.
Q Would you look at the Luks patent, patent num-
ber 1,968,564 dated July 31, 1934?
A Yes.
Q What comment do you have to make about it?
A This patent shows a milking apparatus on a
moveable plat form which carries cows in a circle -
through a series of positions where it is sprayed and
then milked and then released. It has a [83] gutter
which is something that has been in use for a long
time. It has drain pipes which is no different and has
been in use for some time. It uses wash water and the
refuse from the cows is carried away in this wash wa-
ter and there is no — that teaches nothing new. In other
words it is, again, just using the old conventional
methods of a little water washing it away, the manure,
which is exactly the same as has been done over a
period of years.
Q Refer to the Kreutzer patent, number 1,981,417.
What does that patent show?
A All this shows is a combination animal housing-
feeding structure. This is a fire- proof construction and
111
of course it is ventilated in such a way where it was to
store, let's say, maize, hay or partially dried hay. I
don’t think they ever put green hay. but partially dried
hay to obtain drying in the storage by additional air
movement or natural ventilation. This did not work
satisfactorily under all conditions. It has nothing todo
with the barn cleaning whatsoever.
THE COURT:
Excuse me just a minute.
(SHORT RECESS)
Q (MR. KOLISCH) I believe I asked you about the
Kreutzer patent number 417. Would you tell us about
the Kreutzer 418. Have you testified concerning that
patent yet?
A No, I don't believe I have. That particular one,
again, calls for fire-proof buildings or metal build-
ings and the buildings are arranged in different pat-
terns and units put together in different [84] com-
binations. Now there is nothing in this that concerns
barn cleaning at all.
Q I will call your attention to the Mc Cornack pat-
ent, number 2,081,947?
A Yes.
Q What comment do you have to make with respect
to it?
A Again, this one uses water pipes to various por-
tions of the barn such as the milking area, the out-stall
areas, and gutters are provided for leading away the
water. This barn, as I see it, does not have anything
pertinent to this particular case because it has gutters
and a system of water pipes throughout various parts
112
of the barn. This is nothing more than a conventional
barn that uses hoses and pipes at various locations.
This has been done, I am sure, prior to this patent and
also, until rather recently — and is still being done.
Q With respect to this Mc Cornack patent can the
manure and other waste products be removed simply
by the use of water, according to this system?
A Well, as an engineer, that would be a hard ques-
tion to answer without knowing specifically how
much water we were using, how much pressure there
was back of the water, the type of nozzles and every-
thing. It probably could be done but I would need to
know some of the things that I haven’t been able to
determine out of this patent. It has probably been done
in this particular instance but whether anybody else
could take this patent and duplicate the same [85]
thing, I don’t know whether that would be possible or
not.
Q According to the Mc Cornack system, would it be
necessary to use hand labor?
A Maybe in some instances, yes, I would expect
that it would be necessary.
How about using the hoses?
A Either that or portable hoses in order to get the
complete cleaning job such as we get from the Gribble
patented flush system.
Q Is there any suggestion in that Mc Cornack pa-
tent of collecting water as a large pool for sudden
release?
A No, I did not run across anything like that and
the patent itself mentioned that brooms may be neces-
sary in some instances. This reverts back to hand
labor.
Q Would you look at the Bogert patent, 2,233,766?
A Yes.
113
Q Have you looked at that patent before?
A I have looked at this patent and again it has a
gutter and it is a gutter system layout. The gutter sys-
tem — and it does some washing of the stalls, by, I
believe — probably I should look at this a little more, I
am not thoroughly refreshed on this but I believe it
uses a system of hoses or sprinklers in doing the
cleaning.
Q Does the Bogert patent have any suggestion of
collecting water as a large pool for sudden release to
flush the barn floor areas?
A No, not in the same way as used in the Gribble
and Bennett [86] flush system.
2 Considering all of these prior art references
about which you have testified, do any of them either
individually or in combination, that is taking any one
patent as such or taking various elements from all
these patents about which you have testified, do any of
these teach the patented Gribble-Bennett invention?
A No.
CROSS EXAMINATION
BY MR. HULSE:
[90} Q Now you said awhile ago that — speaking of
water rolling down the floor in a sheet that the water
contained energy because of the fact that this floor is
sloped and it starts out at an elevation higher than the
other end of the floor, is that the size of it?
ͤͤ ³˙¹V.ꝛͥ m;A ES TN | œͥͤ-⁵ .. . get ne CO TTT
114
{91} A The water contained energy.
And you said it had energy in this instance
because of its elevation?
A Right.
Q And that means the energy is used to wash
manure Off the floor as this water flows down the slope
or grade of that floor?
A Right.
Q And it is due to the elevation where it starts that
it gets this energy that accomplishes this purpose?
A Yes.
Q And if water were introduced at the same slope it
would have the same energy, wouldn't it?
A The same quantity of water. May I ask you a
question?
Q Well —
A E the same quantity of water. The same quantity
introduced the same way would have the same energy.
Q So the fact that this energy is derived from this
water flowing down a slope — that is part of the proc-
ess of gravity, isn't it?
A Yes.
Q And one of the essential things about this whole
system is really that you are using a gravity system of
water flow, isn’t it?
A We are using the force of gravity.
Q And really it is just that simple, that it is a gravi-
ty [92] system, isn’t it?
A No, absolutely not.
Q This matter of washing dairy floors of a dairy
barn off with water introduced to the floor one way or
the other is an old thing, isn't it?
A It all depends on how we are using the water that
is introduced onto the barn floor.
115
Q Well, —
A — and the quantity of water.
THE COURT:
Answer the question. You can explain your view.
Repeat the question.
A All right. Yes.
Q And water has been introduced onto the floor of
dairy barns in the past over many years by different
methods such as, number one, the diversion of water
from a nearby stream across a dairy barn floor?
A I never heard of that.
Q You never heard of it?
A No one ever called it to my attention.
Q Well, you have been in the courtroom all morn-
ing and you heard counsel for the plaintiff in his open-
ing statement refer to Hercules cleaning the augean
stables. You have heard of that, haven't you?
A Yes.
Q And that is the way that was done in that story so
long [93] in existence, was it not?
A That is what the statement says, yes.
Q That is what the statement says, so at least tl
idea is not new, is it, of washing a barn floor out with
water?
A The idea of washing with water has been done for
a good many years, using hoses.
Q I was going to say it has been done by using
hoses.
A It has.
Q It has long been done by using pipes in one
fashion or another?
A Yes.
Nou as a matter of fact for a considerable length
of time this business of washing dairy barn floors with
116
water in one way or another to get them clean has been
required by law in various states if you are going to
produce grade A milk. hasn't it?
A Yes.
Q So they have had to be washed off one way or
another over many many years?
A Yes.
Q And that is long prior to 1963?
A Yes.
Q Now you were asked about what was called the
prior art filed here, about these two publications and
about several different ones, but let me ask you,
professor Huber, about the elements as described in
claim one of the Gribble patent. I want to ask you [94]
about these things described here having been in use
long prior to 1963, and first — here is the place so you
can follow me. I see you have a copy of it there with
you. It says “A dairy barn for cows and the like includ-
ing a smooth, evenly contoured paved surface form-
ing a floor providing a walking surface for cows in the
barn...”
The item described there has long been in use prior
to 1963, has it not?
A Yes.
Q And the next item: drain means for draining
wash water from such floor opening to the top of the
eves.
These drains as described have long been in use,
have they not?
A Yes.
Q When! say long been in use I mean, in each in-
stance, at least prior to 1963.
The next item: said smooth, evenly contoured
surface which forms such floor sloping towards said
drain means whereby wash water discharged on the
117
floor maybe collected and disposed of through said
drain means, said barn further including —”
I am going to break it off.
That has long been in use?
A It has been.
Q Iam just talking about the floor and drain?
A Yes.
Q And the next item then says: said barn fur-
ther [95] including multiple rest areas with individual
stalls for each cow and with each of said stalls having
a bottom which is also of smooth pavement...”
And those have long been in use, have they not?
A Yes.
Q And the next item says:. but which is dispos-
ed at an elevation above the paved surface forming the
floor...” and that has Ing been in use?
A Yes.
Q “...said stalls being dimensioned so that a cow
can comfortably stand or lie in the stall but offal from
the cow falls outside the stall bottom and onto the floor
providing the walking surface in the barn...”
And that has long been in use?
A Yes.
Q “... said barn further including defined feeding
areas having feeding troughs with means for dis-
charging feed to the troughs.. .”
And various means of doing that have long been in
existence, have they not?
A Yes.
Q And next: a cow holding area...”
That has long been in existence, has it not?
A Yes.
Q “...amilking area...”
[96] And likewise that has been in existence a long
time, has it not?
118
A Yes.
Q “...anda transfer area...”
That likewise has been in existence many years, has
it not?
A Yes.
Q “...all bottomed with the walking surface form-
ing said floor in the barn, and floor washing means for
washing the floor providing the walking surface in the
barn where said floor bottoms said feeding, holding,
milking and transfer areas...”
Down to that point about having a floor there which
can be washed off, before we get down to the means,
that has long been in use, has it not, washed by one
means or another, whether hoses or pipe or spray or
whatever?
A Yes.
Q And then continuing, it says: “... operable to
send wash water flowing over the floor with such wa-
ter washing any cow offal thereon into said drain
means, said floor washing means including means
located over a region of said floor which is uphill from
said drain means, constructed to collect water as a
pool above said floor and operable after such collec-
tion of water as the pool to disperse the water as a
sheet of water over said floor...”
And that part, I understand you to say you haven't
seen until you got down to the Sweet farm sometime
early in 1963?
A That's right.
[97] Q The use of a tank for the purpose of holding
water at a dairy installation —
A — pardon me, I am not following you. Is that
number two?
No. I am not looking at the patent now, professor.
The use of a tank for the purpose of holding water at a
119
dairy installation is, of itself, as a water trough or
whatever purpose they wanted to collect water for is
not new?
A No.
And neither are steel tanks or concrete tanks?
They have long been used as troughs, have they not?
A Yes, for drinking wate»
Q For drinking water?
A Yes.
Q And some of them have sizes equal to sizes of
tanks which are used in this instance at that Sweet in-
stallation you were talking about?
A Could be.
Q Now if you wash the floor by whatever means,
either the water should be introduced at the upper end
of a floor that has some slope or grade to it, should it
not — I am not talking about from a tank, I am talking
about from any means?
A Will you repeat that question again?
Q Let me re-state it.
If you are going to wash a dairy barn floor off by
whatever means the water is introduced, you need to
have a floor that slopes [98] so the water will be car-
ried away to the drain, do you not?
A Yes, indeed, sloped to carry away the water.
120
[46] DEFENDANT'S MOTION FOR A NEW TRIAL
[Title Omitted in Printing]
Filed: Jul. 27, 1973
Comes now BERNARD A. SAKRAIDA, Defendant
herein, and moves the Court to grant him a new trial
herein, and as grounds therefor says:
1. This cause was tried before this Honorable Court
on the 13th day of September, 1971, following which on
September 23, 1971, this Court entered a judgment for
Defendant holding Patent No. 3,223,070 held by Plain-
tiff does not constitute invention, is not patentable,
and is nota valid patent, it being a combination patent,
all the elements of which are old in the dairy business,
long prior to 1963, and the combination of them as
described in said patent being neither new nor
meeting the test of nonobviousness.
2. Plaintiff appealed from said judgment to the
United States Court of Appeals, Fifth Circuit, which
on February 5, 1973, entered its judgment holding said
Patent No. 3,223,070 was valid.
3. Defendant, who was the Appellee in the said
appeal, thereafter and in due time, filed his Petition for
a Rehearing in the Court of Appeals, Fifth Circuit, one
of the grounds therefor being newly discovered
evidence, it being alleged in said Petition for Rehear-
ing:
121
Defendant-Appellee petitions for a rehear-
ing, and prays the Court to remand the issue of
the validity of the Gribble and Bennett patent
to the Trial Court, on the ground of Defendant-
Appellee’s discovery of new evidence since
the date of the entry of the Trial Court's judg-
ment. and while this appeal has been pending.
which new evidence shows that a floor
washing means constructed to collect a pool of
water uphill from or on the floor so that, when
the water is abruptly released, it will flow asa
sheet to wash almost instantly the barn floor
area was designed, installed, and in operation
prior to November 5, 1963, the date of filing of
Plaintiff-Appellant's application for a patent.
Such a system was designed by Herbert G.
Meyer, of Carmel, California in 1962, and was
installed by him in the Mission Dairy at Gon-
zales, California, the contract therefor having
been let in September, 1962, with the said Mis-
sion Dairy Barn having been completed and in
full operation in October, 1963, and which is
still in operation at this date (1973).
The affidavit marked Exhibit “A”, of
Herbert G. Meyer, owner and operator of the
Mission Dairy, Gonzales, California, to said
facts is attached hereto and made a pa i.ereof
in support of this petition. Pictures of thu gate.
or dam, and of a part of the tank behind the gate
or dam, and a picture of the surging flow of the
water, when released, are attached to the said
affidavit. The specific information about such
a floor washing means being installed and
used by Herbert G. Meyer at the Mission
Dairy, in 1962-1963, did not come to the atten-
tion or knowledge of Defendant-Appellee until
January, 1973, when he was told of it by
Herbert G. Meyer, as stated in said affidavit at-
tached hereto. Defendant-Appellee says the
said newly discovered evidence is material to
the issue of use of a water-flush system, on a
dairy barn floor, prior to the filing of the
application for the Gribble and Bennett patent,
and that Defendant-Appellee should be en-
titled to place evidence concerning same
before the Court in order that all relevant facts
be made known to the Court for its considera-
tion, and that justice may be done. He therefore
prays this Honorable Court to remand to the
Trial Court the issue of the validity of the said
patent. Since the case is being remanded to the
Trial Court on the question of infringement,
the cause of justice and the rights of
Defendant-Appellee will best be served by
remanding both issues to the Trial Court.”
4. A copy of the said affidavit of Herb
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