# Appendix — Sakraida v. Ag Pro, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0752%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 425 U.S. 273 ## Text 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 — . 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 Mission Dairy, or when it was installed there, and when it began operation. Affiant says that this is newly discovered evidence to him, because although he had heard that there might be something of the kind at the Mission Dairy, on making inquiry at said dairy, the manager thereof refused to give affiant's representative any informa- tion whatsoever, and your affiant was unable to learn what kind of a flush system was in use at the Mission 129 Dairy, or how long it had been in use there, or to obtain any other information about it. Affiant further says it is hie understanding that Ag Pro, Inc. has never instituted any legal proceedings against the Mission Dairy for alleged infringement of the patent claimed by Ag Pro, Inc., which indicates Ag Pro, Inc. knows the Mission Dairy flush system anti- dates its patent. Affiant further says he had no knowledge of the water flush installations referred to in Frank F. Souza’s telegram attached hereto prior to March 27, 1973. FURTHER AFFIANT SAYETH NOT. /s/ BERNARD A. SAKRAIDA BERNARD A. SAKRAIDA SUBSCRIBED AND SWORN TO before me this 29 day of March, 1973. /s/ RUTH J. WALDREP Notary Public in and for El Paso County, Texas My Commission Expires: June 1, 1973 130 Exhibit D WESTERN UNION TELEGRAM EPA194(1844) (1-031063C086) PD 03/27/73 1844 ICS IPMSFSD SFO ZCZC 04235 TURLOCK CA 114 03-27 332P PST PMS SCOTT HULSE MARSHALL FEUILLE, DLR ATTN STEVE TATEM 11TH DLOOR EL PASO NATL BANK BLDG EL PASO TX 79912 FRANK F. SOUZA., BLDG. CONTR., 28 YEARS EX- PERIENCE IN DAIRY CONSTRUCTION AND DEVELOPEMENT HAS USED WATER-FLUSHING METHODS SINCE 1946 FOR CLEANUP AND LABOR-REDUCTION IN IN DAIRY IN- STALLATIONS. ORIGINAL INSTALLATION BE- ING ON HARRY SOUZA RANCH, BRADBURY AND BLAKER ROADS, TURLOCK CALIF. IN 1946, USING THE WIER/BOARD SYSTEM, WHEREBY WATER IN DAMMED BY USE OF WIER/BOARDS, AND RELEASED WHEN SUFFICIENTLY AC- CUMULATED, TO FLUSH OR WASH-DOWN CON- CRETE CORRALS AND LANES. ANOTHER IN- STALLATION WAS INSTALLED IN 1949 AT FRANK MACHADO DAIRY AT 26234 SOUTH UNION RD MANTECA CALIF AND AGAIN IN 1950 AT HOFF- MAN RANCH MANTECA CLAIF. THESE HAVE SINCE BEEN FOLLOWED BY MANY OTHER IN- STALLATIONS, UTILIZING THE SAME WATER/FLUSH SYSTEMS. RESPECTFULLY YOURS FRANK F SOUZA INC PRESIDENT * 131 1511 DEPOSITION OF W. C. FAIRBANK [Title Omitted in Printing] Filed: Sep. 17, 1973 * * * * [4] ONTARIO, CALIFORNIA, THURSDAY, AUGUST 16, 1973 1:30 P.M. W. C. FAIRBANK The examination of the deponent, called as a witness by and on behalf of the plaintiff, pursuant to the provisions of the Code of Civil Procedure, State of California, after being first duly sworn by the Notary Public to testify to the truth, the whole truth, and nothing but the truth; and after entering into the usual stipulations, the witness was deposed and testified as follows: EXAMINATION BY MR. KOLISCH: Q Will you please identify yourself, Mr. Fairbank, with respect to your residence and occupation. A Iam Extension Agricultural Engineer with the Agricultural Extension Service, University of California. My office is at the University of Cali- fornia, Riverside Campus. I reside at 2835 Iron Hills Way, Riverside. Is that all right or do you want — 132 Q Yes, that is a sufficient explanation. Will you give us briefly your educational and professional background. A lam a graduate agricultural engineer from the University of California, 1950; I have been — after graduation I — or since graduation I have been with the International Harvester Company, the pineapple division of Hawaii, Food [5] Machinery Corporation, a food and vegetable cannery engineer, and I joined the Agricultural Extension Service in 1958 with primary responsibilities ever since in the area of lifestock mechanization and related matters. Q Can you — A Oh. I might add to this. Q Yes. A Il am a past officer in the United States Agricul- tural Engineers and hold committee appointments in that professional society. How long have you been located in the River- side area professionally? A July; since July, 1965. Q And where were you before that? A Officed on the Davis Campus of the University of California. > | Q And that was commencing in 1958 then? A Approximately. There was a period of time there when I was out of the County adjacent to Davis but ac- tually moved onto campus in — 1960, I think. Q You are talking about the Davis Campus? A Yes. 133 {6} A BY MR. KOLISCH: Well, I would like to have the best date that you can give me as to when you were first contacted by anyone connected with it. A Well, let me see. I think —I think the first contact was by telephone, though I can’t attest to that. The first communication I see here is in June of 69. Let me see. Letter from Mr. Hulse dated June 24, 69. Yes, that seems to be the introductory communication. Q And now you are referring to your file which you have kept on this matter, I take it, is what you are referring to? Is this what you are referring to? A Yes. IfI — Q To use with — A Iam referring now to my chronological file on this general subject of — All right. May I see the letter that you are [7] referring to? I take it that you want to keep this file? A Yes. Q I will simply read into the record a letter dated June 24, 1969, addressed to Mr. Fairbanks at the Agricultural Engineering Department, University of California, Riverside, and the letter reads as follows: “Dear Mr. Fairbanks, I represent Bernard Sakraida in the patent infringement suit brought by Ag Pro, Incor- porated. I understand you are familiar with Ag Pro and with Mr. Gribble who seems to be the president of that company. “Mr. Sakraida tells me that you have information which would be of great help to us in our lawsuit. From my conversations with Mr. Sakraida, I assume the in- formation which would help us and which you could give us is along the line of flushing systems more or less similar to the one patented by Ag Pro but have been in use prior to the time of said patent. If you will 134 telephone me collect so that I could talk to you about it over the telephone, I will greatly appreciate it. Very truly yours, Scott, Hulse, Marshall and Feuille, F-e-u- i-l-l-e, signed J. F. Hulse.” That refers to conversations that you had with Mr. Sakraida. Were those as you recall now? A I honestly don’t recall because at that time I didn’t realize there was any pending litigation, and I am sure when he called me the — I am sure I kept no record of all this. If I did, it would be in my file. but Iam almost certain I kept no notes on that conversation. {8} A And at the present time you don't have any recollection of what the conversation would have been? A It would have been relative to the oncoming litigation, I am sure, but beyond that — that is — I have no recollection. MR. HULSE: May I interject? The conversation with whom, Mr. Fairbank? THE WITNESS: Pardon? MR. HULSE: That is the conversation with whom? THE WITNESS: I presume Mr. Sakraida, because I do not have any recollection yet it has been referred to in this cor- respondence, and I am sure that I have just a very vague recollection, yes, of having had a contact with Mr. Sakraida, but at this late point in time apparently I 135 have no — no notes taken on that conversation. Prob- ably on my blotter pad and — no, I have no — Q BY MR. KOLISCH: Subsequent — A — note or specific recollection of that conversa- tion. Q After you received this letter from Mr. Hulse, did you then telephone Mr. Hulse? A I can only say I presume I did. I had some such telephone conversations with Mr. Hulse, but I don't know if it was as a result of that letter or some other act. Ido know I had a telephone conversation with him somewhere along the line — with Mr. Hulse, unless I can — I had it here in the file — shortly afterwards or maybe a letter where — maybe, I don’t know. {9} Q Will you tell us now what the substance of that telephone conversation was and give me the best date that you can. A It would have been in the fall of what? 69 Was that what it was? No, 68. What was it? Q It was 69. A Okay. It would have been approximately the time of this — these — this correspondence, that is all I can say. MR. KOLISCH: Off the record. (Off the record discussion.) THE WITNESS: Some place in that period of time there was a letter, and all I can say is one or more telephone calls, but I kept no records because I had no anticipation of what this was going to result in as far as content. I generally 136 outlined my experience of having seen the general principle of manure flush-out and the use of flowing water for cleaning dairy barns. Q BY MR. KOLISCH: Now, I note that on July 27, you sent Mr. Hulsea letter. June 27, 1969, and it went as follows: “Dear Mr. Hulse, this is in answer to your letter of June 24, the patent infringement suit brought against Mr. Bernard Sakraida by Ag Pro, Incor- porated. Rather than try to sift through my files for specific details, 1 have chosen to send you the complete letter file which seems relevant (am enclosing 21 letters). As you can see, I have been involved directly in this situa- tion since 1966 and have certainly had an acquain- tance with the concept [10] of flushing going back to 1960 or before. Please return the enclosed file at your earliest convenience. I shall be glad to discuss any specific question you might have, so feel free to con- tact me in this regard.” And I take it you did send this material to Mr. Hulse? A Uh-huh. Q And then subsequently was it returned to you? A Uh-huh. Q Now, what I would like you now to state, in as much detail as you can, what was said in conver- sations between you and Mr. Hulse over the telephone with regard to this subject matter. A Iknow that I discussed a meeting that I and the late Dr. Larry Borne, of the University of California — and someone else in the University — had with Mr. Gribble and Mr. Bennett at the — at their office, which was — or rather I should say at their construction of- fice which was at the Piney Hills West Dairy. Calistoga, California. 137 Well, I can get — I have — we were, the three of us from the University with — called over to discuss li- quid dairy waste handling systems with Mr. Gribble. | who was introduced as a young agricultural engineer from the State of Oregon with seemingly some new concepts for dairy waste handling, and Mr. Gribble was seeking from us technical assistance relative to the pumping and distribution of liquid dairy waste. Now, I believe I may have some notes in there giving more specifics. Okay, but I know that that meeting at Mr. [11] Gribble’s office was discussed with Mr. Hulse, or his agent, and — at or about that time, or maybe I should say at that time or shortly following I men- tioned to Mr. Hulse or Mr. Sakraida the Mission Dairy in Gonzales, California, owned — let me see — owned and operated by Mr. Herb Meyer, because that dairy was under construction at the time of the Ag Pro — at the time of our discussion. At or approximately the time of our discussion with Ag Pro, and the Mission Dairy embodied manure flush principles which later appeared in the Ag Pro patent. Q Now, what was the date of that telephone conver- sation? You said it was either with Mr. Hulse or Mr. Sakraida. A Yes, I had contacts with both of those gentlemen about that period of time and I can’t now identify them. Q Well — A There may be some recollection — or there may be some reference in there but other than that I can't identify them. Q Was it prior to October 13, 1969, which is the date of your first affidavit? A I think so. I can't give an affirmative — I think probably so, but — no definite recollection. 138 Q But anyway your recollection is that it was at or about the time that you were having your first telephone discussions with Mr. Hulse and Mr. Sakraida? A It was in that same general time period, yes. See, the trouble is I had phone calls — I should say some phone calls from Mr. Hulse and Mr. Sakraida, I do not know how many times [12] with either nor the number of times. I know that whether it was one or two, or two and one, and which came first, I have no recollection of that. Q But you do remember telling them at that time about the Mission Dairy? Telling one or the other — A Yes. Q — about the Mission Dairy? A No,I can’t see as — that is the trouble. I have no way at this time of knowing which one of the gentlemen from Texas, or — or represented by Mr. Hulse’s interests — which one was interested — which one — I mean, interested in what way. Q Let me show you a Xerox of an affidavit and see if you can identify it. A Let's see. Oh, yes. Okay. Now, see, as I was giv- ing a previous answer I hadn’t been reading this, perhaps this gives those dates. Let's see. Let's see. Yes. Okay. This is — yes, I would still — I wrote this and I would — MR. HULSE: May I see it? THE WITNESS: — not change my comments. 139 (Whereupon the Xerox copy of the affidavit was marked by the Court Reporter as Plaintiff's Exhibit No. 1 for Identification.) | Q BY MR. KOLISCH: I take it Exhibit 1 was the result of revisions between you and Mr. Hulse; is that “orrect? A Uh-huh. Q In looking through your file I see that there were {13] about two or three drafts, exchanges between you. A Uh-huh, yes. Mr. Fairbank, this is the first opportunity we have had to look at this file — A No, sir. Your partner came down and looked at the whole file. Q What was his name? Mr. Tatum? A No, somebody came down from the northwest. Oh, I have got it in here. Q Oh, Mr. Stewart? A Mr. Stewart. He went through the whole file. Q Mr. Stewart went through this (indicating), you are right, at the time that he brought you a copy of the second affidavit; do you remember? A Los, yes. All right. fine. Would it be possible to get copies of any of these documents if we find it necessary? A I think so. Q Those which would be of interest to the court and they are not — A Well — QI don't intend to pry into anything. A — some types of documents that I — ad- ministrator and my co-workers. 140 Q Iam not interested in getting into your personal matters; anything that is unrelated to this matter, and you could go through there, if we wanted to look at this, and exclude anything. {14} A Sure. I would — most of our work, as public servants, is public information and there is nothing exclusive or confidential about it. Q You mentioned a Meyer, Mission Dairy ranch in Gonzales, California. When did you first become aware of that dairy? A Approximately the same time I became aware of the Piney Hills West Dairy which was being engi- neered by Mr. Gribble. Now, by approximately the same time, I mean within — within severe] weeks one way or the other but I am not sure that I can — Q My information is that the Piney Hills Dairy was built in 1963. A Well, I can verify that. Okay, Piney Hills is November, 63. All right. Okay. Here we are. Okay. The Piney Hills Dairy was under construction in 83. and I would have to go back to my diary, which I did not bring, which actually gives us specific dates on there. December 2, 63. Mr. Borne, Mr. Harwood, and I visited the new Piney Hills Dairy, Calistoga, and met Mr. Joe Shaffer, and Mr. — probably Gribble and Bennett. That was December of 63. is when I was first on the Piney Hills Dairy. Q And that dairy was operative at that time? A I don't think it was. It was brand new, and they were just within a few days one way or the other in starting to milk at the dairy. It wasn't completed yet, but they were getting — they had brought in a few cows and — I mean, it was right there, was essentially going to start milking, but [15] I didn’t think they had milked any yet. 141 Q And did you examine the manure flush system? A No, because it was not yet installed at that date because at that time Mr. Gribble asked the three of us. Mr. Harwood, a farm advisor from Sonoma County; Mr. Borne, a former University specialist on irriga- tion and drainage and water handling equipment; and myself, Extension Engineer, technical details on — and Dr. Hare I think was on that trip — well, anyway, technical details about pumps, piping, manure sprinkler nozzles, et cetera, and it was at the official opening of the Piney Hills Dairy that I first saw the flush out system in its — essentially in its entirety. -Q When? A You asked me about the Piney Hills — Q About the Mission Dairy. Does that refresh your recollection with respect to Mission Dairy? A IthoughtI saw something in there. Oh, I saw the dam arrangement at the dairy, at Mission Dairy, Gon- zales, at 7/23/63. Seven is July, isn't it? Q Yes. A Yes, on seven — July 23 of 1963. So, I saw the dam arrangement at Mission Dairy, yes, five months prior to the examination of the dam at the Piney Hills West Dairy. Q And was the flush system operative at the Mis- sion Dairy? A On that date? I don’t know because the new dairy barn was under construction. Part of it was in use: part of it was not in use on that date, and I don’t know whether that [16] particular flush system was or was not operating at that time. Certainly it was installed to the extent that — I saw how it was to function, but whether or not it was operative, I cannot say. Q Yes. What is the first date that you can recollect 142 when you saw the Mission Dairy flush system operative? A Ihavenorecollection for dates on that because at some later time, perhaps weeks, conceivably up tio a month or even six weeks it was before I was back in that area and! do not have that information in this file. Q It would be a matter of a few months then; wais it probably sometime later in 1963? Just give me your best idea. A I am sure it was operating within — within siev- eral weeks of the date I first saw it under installatiion. Q You said you are sure it was operating; I would like to have your best recollection as to when you saw it. How often were you going back to this dairy? A Oh, let's see. It was sometime later in that — it was either later in that summer or the — or the {alll — the fall, a few months later, but I cannot answer tthat question. I would have to go back and dig out my diaries and hope I — I had some diary entry. I was traveling all of central California dairies conisis- tently; I was state-wide then asI am now, andI had fre- quent visits to Monterey County, where this dairy was located, and I don't have that information here. though, the dates. Q Would it be correct to say that you had probably seen the Mission Dairy in operation by the end of 19637 I [17] am talking now about the manure flush system. A Yes. Q And would it be correct to say that by the emd of 1963, you were aware of the similarities betweem the Mission Dairy flush system and that of the Piney Hills West Dairy, as representing the Ag Pro system? A Yes. Q Now, jumping forward to the discussion om the telephone that you had either with Mr. Hulse or with 143 Mr. Sakraida in 1969, and I take it it was at some time before you signed Exhibit 1. which was October 13. 1969 — A Wait a minute. What was the question now? Q I haven't gotten to the question. The question now is: Going to the time when you had your dis- cussions with either Mr. Hulse or Mr. Sakraida with respect to the Mission Dairy, you were at that time ful- ly aware of the similarities between the Mission Dairy and the Ag Pro system? A Definitely. Q And you testified that you mentioned that to ei- ther Mr. Hulse or Mr. Sakraida? A Yes. Q What was their reaction, or his reaction, who- ever it was, when you told him about that? A lt was indicated to me by either Mr. Sakraida or Mr. Hulse that Mr. Sakraida made occasional trips to California and would follow up on my suggestion of — of what? Inspecting or observing the Mission Dairy. Q Looking into the Mission Dairy? [18] A Looking into the matter, yes. Q Did you get any indication from either of these gentlemen, Mr. Hulse or Mr. Sakraida, that they knew about the Mission Dairy? A l got an indication somewhere along the line that one or the other of these gentlemen had heard the term Mission Dairy but they seemed unknowledgeable beyond only having heard mention of it. Q Do you recall approximately the size of Mission Dairy? A Many hundreds of cows. Q Was it classified as a big dairy? A lt would be classified as either a medium large or a large dairy. The number seven hundred cows at this 144 time sticks in my mind, but at that time it was an old dairy being modernized, so it was in an expansion. It was an expansion situation, sol don’t know what it ex- panded from to. Q You are talking now about the period 1963-4 at the dairy? A 1963. At this point when! saw — it was July of 63. it was in a modernization expansion program. Q And it might have been a seven hundred cow dairy at that time going to a larger dairy? A l don't think so; I think it was a hundred and fifty to two hundred fifty cows, in that general range, going to upwards towards seven hundred was my — is my recollection. Q At the time that you visited or the first visits that you made to the Mission Dairy after it had its manure [19] flush system, were you ever restricted or refused admission to the dairy? A Il was certainly never refused admission; restric- tion — I will not answer. Sometimes when we go toa dairy we are asked — led away from certain things, but we saw so many portions of that dairy that I can't say whether I was or was not. I don’t —I want tosay I don't think so, but I have no certainty. Q If I understand you correctly, you do not have any present recollection as to whether or not any por- tions of the dairy were or were not restricted from your viewing: is that correct? You really don’t remember? A That is correct. I should withdraw that statement because now I do remember that at the first time we saw that dairy they showed us all of their new in- novated systems including some innovations in the milking parlor, and because they were proudly show- ing us innovations it would be my presumption now 145 that they certainly did not — that there was no subse- quent restriction because it was a show place dairy. Q Is it correct to say then that as far as the manure flush system is concerned you were not denied any access or viewing of it? A That is correct. Q And as far as any of your subsequent visits to the dairy, were you ever denied any viewing of this manure flushing system or were you aware that anyone was ever denied any access to it? A No, sir, to both parts of that question. 120] Q You mentioned that you inspected certain m‘lking parlor equipment which had been or was be- ing installed in 63 of the Mission Dairy: do you recall if the Ross-Holm Company was the manufacturer of any of that equipment? A I don't recall; I have no recollection. Q On any subsequent visits to the Mission Dairy, have you had occasion to look at the milking parlor equipment? A Not specifically. Q And ifI were to ask you now whose equipment is at the Mission Dairy, could you tell me? A No. Q Do you know a Dick Ripley who was connected with the Mission Dairy? A Only casually. Q And what do you know of Mr. Ripley as far as his connection with the Mission Dairy? A I have met him on the premises and I — 1 presume — I am led to believe that he is — he isina supervisorial position; whether it is as super- intendent, herdsman. manager of the dairy. I do not know. It is probably one of those categories. Q Did he ever have anything to do with the making 146 available, access to you of various parts of the dairy for visitation or looking? Did he have any connection with that? A Ihave no recollection. Q Do you recall whether Mr. Ripley was at the Mis- sion Dairy at the time that you made your first visits and there was the new manure flush system? 1211 A have no recollection. Q Have you ever discussed with any of the Mission Dairy personnel and flush system that was installed from your observations sometime in 1963? A No. sir. Q At the time of your first visit, do you recall the names of any Mission Dairy personnel who accom- panied you in your visit around the facility? A No, sir. The only name I can attach at that — in 1963 would have been Herb Meyer. Q Youmentioned thatthe Mission Dairy was going through an expansion and was adding on to the dairy as well as getting new and somewhat different equip- ment; you also mentioned that they were using itas a show place. Could you explain to us a little more what you mean by that? A A few months, perhaps — perhaps as much as a year or more prior to my seeing the dairy in 63. Mr. Meyer was in my office in Davis and indicated that he had fallen — that he had either fallen heir to the Mis- sion Dairy through a family — through a family estate or was purchasing, I guess would be the term, the Mis- sion Dairy from its previous ownership and he had great — he held great future in the dairy industry in Monterey County and wished to make the Mission Dairy a viable show place of dairying for the Monterey Valley. That was my first acquaintance with Mr. 147 Meyer and the Mission Dairy. Then when I saw the dairy first, when I saw the Mission Dairy then under — the modernization program under way — Q Let me interrupt you for a second; did you go to [22] the dairy prior to the modernization program? A No. Q All right. A When I saw the dairy in July of 63, they had already erected a very attractive fence along High- way — U.S. 101, and with upgrading the general appearance of the dairy. of the entire dairy facility. Now, did I answer the question or did I lose my train of thought? Q I think you have answered it. I would like to ask you this: The modernization of Mission Dairy, and let's say its whereabouts in its operation, is this something that was pretty well known to people in the dairy industry in the California area? Now, I do not know how or whether you divide the northern and southern, but I would like to get your information with respect to how well known this became among people who are knowledgeable in dairy industry. A Tomy knowledge, the former Mission Dairy was not probably known outside of the county or the near- by area. Q What is the county? A Monterey County. Q Thank you. A And upon my first meeting with Mr. Meyer, we were told — I was told, pardon me, the Mission Dairy was very run down and was under threat from the State Bureau of Dairy Services of losing Grade A cer- tification. Mr. Meyer, through a family trust or estate situa- tion, had to make the determination or had to choose 148 [23] the alternative of abandoning the old Mission Dairy or modernization and rebuilding; he chose the latter, and as! recall now there were originally two — either two herds or two barns in the original earlier Mission Dairy, and he chose to consolidate it into the one large modern facility or modernized facility. Q Did the modernization of the Mission Dairy receive publicity within the agricultural industry? A As recall, it received considerable publicity in Monterey County and was acknowledged in various agricultural and/or dairy publications; but Monterey County is not a major milk producing county so as — so neither the dairy community — I should say to the dairy community of that area it received clearly state- wide attention. Q Do you have any recollection that there was any opening, public opening or announcement in connec- tion with the Mission Dairy after they had completed the modernization that you have been talking about? A I don't recall any open house or public display. Q Later, and this is after the Mission Dairy had been in operation and its modernization, did it become better known in the California dairy community? Better than the previous Mission Dairy? A Yes, yes. Q At the time that it was modernized, to your knowledge, where would the Mission Dairy have ranked among California dairies with respect to modernization? A I cannot say because I did not see the former — [24] the former dairy; I only heard descriptions of it. Q Iam only talking about the modernized Mission Dairy as compared to other dairies in the California area with which you are familiar; was it one of the 149 most modern? Or was it less? Where would it rank with respect to its — A After the modernization, do you mean? Q Les. I am only talking about the modernized ver- sion as compared to other dairies at that time. A At that time the milking area and the corral system would be much more modern than the average California dairy at that time because they had exten- sive use of steel and concrete construction as com- pared to much earthern and timber construction on the average California dairy at that time. They also putin innovations in the milking parlor including comfort features for the cows and milker and the innovative manure handling system. Q And in your opinion was the manure handling system an innovative one? A l am at a loss here to know how to define that in- novative. I myself used it. Q I used the term because you used it. A Innovative in terms of what the average waste handling system was on the California dairy. It was also innovative in that it had — it integrated the wate handling system with the crop irrigation fertilization system on the Mission Dairy because the Mission Dairy is only part or a land holding of a very large land holding that was in vegetable crop production and forage — forage production. The [25] Mission Dairy was integrated with crop production and an irrigation system. Q Would it be correct to say that the only other manure handling system like it with which you were familiar at that time was at the Piney Hills Dairy? A _ I could not make that statement because there were many dairies in California who had integrated * 150 waste handling crop production systems but perhaps not with the same embellishment as that dairy. Q Iam not talking about the manure flush system per se, but water collected, pooled and dammed and then subsequently released to wash all this; did you know of any other dairy that had such a manure flush system? A Well, not the combination of an instant flow of water, a flush system, a collection basin and an inten- sively farmed — or intensive crop land area; no, I do not know of any other combination of those elements. Q Do you recall that in March of 1973, I telephoned you concerning the Mission Dairy and as a result of the telephone conversation you prepared or you sign- ed another affidavit, and I will show you the document which I would like to have marked as Exhibit 2. (Whereupon the Xerox copy of the affidavit was marked by the Court Reporter as Plaintiff's Exhibit No. 2 for Identification.) THE WITNESS: Yes, I recognize it. Q BY MR. KOLISCH: And it is your signature? A Yes. [26] MR. HULSE: Let me take a look at it. Q BY MR. KOLISCH: And is Exhibit 2 factually correct? A Yes, it is essentially factually correct, yes. Q I think you were provided a copy of that at the time that you signed it? 151 A Yes, I was just looking now to see if there were any statements — | A Why don't you read it over and see if there are any statements in there that you would want to correct or change. A Yes, I wouldn't change it. * + * * [27] EXAMINATION BY MR. HULSE: Q Mr. Fairbank, in the early part of your testimony here this afternoon when Mr. Kolisch asked you about your having telephone conversations with me or somebody representing Mr. Sakraida in 1969, and you were asked relative to saying anything to whoever it was you were talking to about the Mission Dairy, I believe you said that you thought you had a telephone conversation either with me or with Mr. Sakraida and you could [28] not remember which one; and that is still the case, isn't it? A Yes, sir. Q You can’t remember which one? A No, sir. Q Well, then, to that extent is not this affidavit that you gave Mr. Kolisch on the 13th day of March, 1973, where you specified me, at variance with your recollection? A Not necessarily because there are some periods of months that have gone by plus some additional questions and discussion has come up now that has tended to — tended to confuse certain recollections. Q Well, it is true, isn't it, Mr. Fairbank, in trying to 152 call exactly what was said in various conversations you may have had with a person, or with several per- sons three or four years ago, it is not easy to remember, is it? A Certainly some things stand out more clearly in our minds than others, and I think I have indicated when there was doubt in my mind and when there was no doubt in my mind. I don’t know if I have answered your question. Q Well, let me go back because I do not believe you gave me a direct answer to the question that I asked about. You have just reconfirmed your statement that you couldn’t remember whether the telephone conversa- tion that you think you recall was with me or was with Mr. Sakraida. A At this time I am recalling perhaps three telephone conversations; I cannot “singulate” them out. Q With whom? A With you, or Mr. Sakraida, or either of your agents [29] whom I may or may not have talked to. I don’t know if my — Q Well, who would the agents have been by name? Can you name anybody? A No, I cannot name any names. Q Because you don't know of anybody? A Well, all right then, I said that because I don't know — I know that I had several conversations with you and/or with Mr. Sakraida and if it were your agent it would be your law partner or some party connected with Mr. Sakraida: I do not have any name, though, to offer in that regard. Q And so it is your testimony here that you think 153 you told either me or Mr. Sakraida that there was a flush system up at the Mission Dairy? A Read that question back. (Record read.) THE WITNESS: I would say yes to that. Q BY MR. HULSE: Well, your present recollection is you would not be able to say whether it was Mr. Sakraida or me to whom you were talking when you so stated? A Well, that question is out of context because I don’t know what specifically the telephone conversa- tion is that is being alluded to here; I don’t know which of the telephone conversations it was in reference to without starting this over very clearly. Well. let me ask you this about your recollection: Any telephone conversations that you had with me were relatively short, were they not? A Yes. [30] Q In the neighborhood of five minutes or something like that? A I think so. Q We never had any extended telephone conver- sations, did we? A No, sir. . Q And you do not actually have a specific recollec- tion of just what you did tell me, at least in any tephone conversation, do you? A No. sir. I would call to the attention he: that on the bottom of my affidavit of — what? The 13th, March. I referred to telephone conversations in the plural, and my memory is refreshed now to the extent that in telephone conversations, plural, without referring to 154 a specific telephone conversation, I do not recall men- tioning the Mission Dairy to you, because to my recollection I mentioned it to you at some point in time before that. I remember mentioning it to both you and Mr. Sakraida, but I do not know at which relative se- quence. Q Well, let me ask you this now: You have said in answer to questions by Mr. Kolisch something about that the system that was there at the Mission Dairy isa water flush system having some similarity to that covered by this Ag Pro patent; is that correct? A Yes. Q And did you mean by that that it had a dam for impounding water on the floor of the dairy? A Yes, and the essential or the important feature [31] was of a — a relatively rapid flowing of a large volume of water. Q Well, I do not like to belabor this, Mr. Fairbank, but I do want to get this right. You wrote me a letter on October the 8th, 1969, about that, didn’t you? A Did I? October 8, 697 Yes, sir. Q And you said there that you could not cite me the use of a tilt bucket or a dam for impounding water on the floor, didn’t you? A Oh, what was that in reference to, however? Let's see. That is right, what I said. Q And as a result of that, when this affidavit was signed by you, this Exhibit 1 that you have here, the af- fidavit that you signed dated the 13th day of October, 1969, you did not refer to the Mission Dairy, did you? A I did not refer to the Mission Dairy here? Let me see. This was — 155 MR. KOLISCH: October 13, 1969. THE WITNESS: October 13, after this letter; no, I did not. Q BY MR. HULSE: And the essence of your letter of October the 8th, that the only places that you can cite me about flowing water to clean a barn floor is that of Weed, Lodi, and Bishop, and that was the ones men- tioned in your affidavit. Just look back at your letter of October the 8th, and that is correct, isn't it? A Yes, sir. 1321 Q And that is what you told me in writing and that is what you told me on the telephone, isn't it? A Yes, sir. Q You did not say anything about the Mission Dairy, did you? A No, sir. Q When I asked you if you did not tell me in the telephone conversation when you called me back on March 27, 1973, after you had looked at your copy of this letter of October 8, 1969, and say that you could not say that you had said anything to me about the Mis- sion Dairy? A If I understand the question correctly, I would not [33] agree because in my phone call to you on the 27th, I have it noted here that the Mission Dairy was presumably mentioned in one or more of the twenty- one letters mailed to Hulse, June 27 of 69. but that was a — not of our telephone conversation, at or after the 156 telephone conversation, and I — personally can't at- tach great significance to it; it is just a log of the telephone conversation, really. 134] THE WITNESS: This is the one that was — let's see, October 8, 69. Okay. Yes, this was to my knowledge at this time, at the time of this letter — let's see. This was the affidavit of — excuse me, the 13th of 69. Let's see, does that say Weed, Lodi, and Bishop? Yes, yes. [35] Q And if you told me over the telephone you sure told me different in writing in that letter, didn't you? About the Mission Dairy. That you said you could not cite any other places? A I think the — I am a little bit here — I see part of the problem in that a citation is one thing mentioned in passing, or a casual allusion to something I would consider something rather different than a specific citation. Q Well, I suggest to you that somebody came down and talked you into giving this affidavit and got you kind of in a box as compared to that first affidavit and that letter of October the 8th, didn’t they, Mr. Fair- bank? A Ido not think so, but — Q Well, I am not boing to labor it any further. A This correspondence, these affidavits are all to the best of my — Al would assume that; I don’t attach anything eise to it, but we get back to the point that one’s recollection is necessarily not always exact, is it? A I will agree with that. 157 Q And it is also possible that there can be errors in one’s recollection? A Certainly the Bishop, Lodi, and Weed situation, or installations were the only ones I could attach names, dates, and precise detail to. My notes on the Mission Dairy are accurate; I have got diary records at the office on those visitations. Just things about the water flush system in the dairy business generally. [36] Q Mr. Fairbank, water flush systems of one kind or another to clean adairy barn floor are old in the dairy business, are they not? A I think the Hal Higgins collection at Davis has reference back probably to the turn of the century or earlier on it. Q Hal Higgins does? A Yes. Q I did not know that. A He has the most complete library on dairy mechanization in the country; it has been given or sold to the University of California. Q And where is Mr. Higgins? A Mr. Higgins? Q Do you know his address or where he lives? A Yes, Mr. Higgins resides at Woodland, Califor- nia, in a convalescent home. Q Is he retired? A He is retired. He is about ninety years old and is in failing health. Q And this collection he had has been sold to whom? A University of California. Q At Berkeley? A Davis. At Davis. It is housed in — now it is in the general library and is referred to as the Hal Higgins — Hal Higgins collection — 158 Q Oh, I see. A — on agricultural mechanization; it is the most [37] complete agricultural mechanization library, ap- parently, in the country. Q Does anyone in particular have charge of it or just the library generally? A There is a specific librarian in charge of it. Mr. Higgins is still of sound mind but he had to havea limb amputated recently and he still is — he still gets around out in the field when he is able: and he is still of sound mind and he always likes to talk about this topic, and certainly he — if you go visit him, as I did in this matter several years ago — Q I am not familiar with California; where is Davis? A Fourteen miles west of Sacramento. Sacramento is essentially in the — Q Iknow where Sacramento is. A Now, Mr. Higgins knows this whole thing. I'd just say my goodness he has written for the Old Pacific World Press, some other Chicago agricultural magazines on water manure flushing up into the north coast dairies and adjacent to the Oregon coast quite early in the century, probably about — I'd say probably in the 20’s or early 30's. Q From your research do you know anything about the history of those things back to the turn of the cen- tury? A Only what I have heard from discussions with Mr. Higgins and Mr. De Carlie. I think Mr. De Carlie may be now deceased. Mr. De Carlie lived ir stockton. Mr. De Carlie is the one that has introduced some of these modern dairy concepts several decades ago. Q How far back does your own investigations show you [38] that there -vere water flush systems used for this purpose? A My own investigations or observations? Q Either one. A Observations about — about 61. perhaps 1960. By reading and with discussions with old-timers, it is obvious that dairy cows and dairy standing platforms were hosed down to collection sumps lower than the concrete back several decades prior to that. There are many old blueprints in the University’s files showing concreted cow standing areas with suinps at the bot- tom and fire hoses, in effect, to wash the manure, hose the water down, in the 20’s, but — so there I think we we are hung up on what we interpret as flush out — Q What water flush systems were there, say, prior to 1960 other than by the use of a hose? A There were flush out systems if you go back and read Hoardes’ California Dairyman you will find reference at least as early as 1957 on flush out systems. Q Yes. A The information apparently wasn't available to the patent examiner when he granted this patent. Q One has to read what? I did not catch those names. A I said if you go back and read Hoardes Dairy — H-o-a- r- d- e- s. Hoardes Dairyman; it is published in In- diana or Wisconsin, which is it? Wisconsin. It is 3 a bimonthly. Does that mean twice a month? t is — Q Bimonthly is every two months; semimonthly comes twice a month. A Hoardes Dairyman is more or less the bible of the [39] American dairy industry. 160 It is a magazine? Magazine. Published by — Well, what is it? Hoardes Dairyman. I might have a reference here. It is published in — humph, Wisconsin, I think, and it had — I know it had articles on manure flushing systems. One was brought to my attention back in — sometime in 1957, in one of the issues of, I think, California Dairyman, or Western Dairyman, but I don’t know which — carried an article back in the late 50's. Q When you say flush out system, can you tell usor would you describe the kind of a system that was referred to? A Using a big flow of water across the floor — or, pardon me, down a cow standing platform. And you know how that water was introduced onto the floor of the dairy? A One was from a tank, as I recall, zumph. One of the articles — one magazine talked about the use of a tank to hold this water; the other one, I think, had alfalfa — piped out on alfalfa. I would not want to be quoted, but the point is that it is my — it is my impres- sion now that these things were — that those stories were not brought to the attention of the patent office. Q Now, what was this one? Well, is it your recollec- tion and opinion that these flush out systems that were referred to back in 1957 used a tank and were quite similar to the Ag Pro patent device? 140] A Very similar, yes, sir. Q Who has the file of these papers? Are they to be found there in this collection of Mr. Higgins’ that you said were given or he sold them to Davis? A Hal Higgins; the Higgins’ Library. I don't think > O O 181 — I don’t suppose he has those in his collection, but those magazines are both still in print and they are available from the editorial offices. Q Oh, yes. A Ido not think I have either of those magazines with me. I would have to get their editorial offices, and so forth, from — from my office, or refer you to somebody that has them. Q You are familiar with these flush systems or wash out systems that several dairies have up in the neighborhood referred to as Lodi, Weed, and Bishop, in California? A Yes. Q Now, those were done by the use of adjacent streams, were they? A Only the Weed was an adjacent stream: the one in Lodi used irrigation water out of an alfalfa pipeline system — just flowed up in the barn and out the back in the irrigation system, and the Bishop — Bishop! think was alongside an adjacent stream, and they just cut the stream through the barn. Q Do you recall that they used a weir in doing that at any of these places? A Both the Weed installation and the Lodi business, [41] that installation used a weir: in other words, they channelized the small stream right alongside the dairy barn so the manure would go out. They dropped a sheet metal weir across the stream and cut it into the barn, and they would bring the cows in. Q Did they have a weir to stop the stream and did they have another one then to direct the flow of it into the barn? A They didn't: it just took one weir to stop the stream. That sort of backed up the stream. The stream 162 then flowed up this Y arrangement through the barn. Q Yes. So that it diverted this water directly into the barn and it flowed down the barn floor and out the lower end? A Uh-huh. Q That is essentially like all these flush out systems, the use of the gravity flow of water in order to run the water over the floor and wash it out? A The mechanics of it, of that aspect of it in flushing operations, yes, are very similar if not precisely the same. That is why I was disturbed at cer- tain features of the patent and that is why I was one of the persons who said that patent needed to be examin- ed in the light of — because already there was a lot of prior history of that concept. Q Well, it was your opinion, was it not, Mr. Fair- bank, that there was a lot of the same old things and the same old ideas being used, was it? A Many of the same things. [42] Q Many ofthe same things, and that this use of the gravity flow of water to wash the barn floor wasn't new. A Yes. Q And isn’t the use of gravity water for flushing down manure from concrete, cows’ standing area, almost as old as dairying in California? A Yes. Q And it was long before 1963, and at times the water had been obtained by collecting it in some kind of a pond? Pool? Tank? Or whatever? A Iam hesitant to answer that question because I don’t know where the difference between, frankly, a stream, a ditch, a pond, a tank is; kind of a vague demarcation between those different hydraulic devices. 163 Q But there are different means of collecting enough water at one place so it can be released? Al want to say collecting water without specifical- ly defining whether it vs a static collection or a mov- ing dynamic situation; that is where I think we get hung up. Q Let's see, collection of water; then, let's say collected water. A Yes, it has been long used. Q Long before 1963, hasn't it? A My goodness, yes. Q It goes back, at least, to the turn of the century, do you think? A The Hal Higgins’ collection would indicate it goes certainly back towards the early California dairy; I wouldn't [43] say, specifically, turn of the cen- tury but for quite early this century dairies were using hoses. Now, see, there is my point. When is the hose stream collected water? It is — that is what we are hung up on, I think. I mean, a hose stream is coming out of water standing somewhere, a pressure tank, so whether it is dynamic or static, I don’t know. Q The Ag Pro patent used a drop gate in order to release this water on the barn floor? A And also a tilt bucket they had. Q They had both in it? A Both. Q And I believe you heretofore expressed your opinion that drop gates and tilt buckets both are oldin use, long before 637 A For other purposes. Q But there is nothing new about a drop gate, is there? 164 A Nothing. Q Buta drop gate there is nothing new, and the tilt buckets have long been in use for one purpose or another? A Yes. And the same thing can be said, generally speak- ing, about putting water in any kind of a tank whether it is made out of metal? Wood? Or concrete? A I suppose. Q The fact is they have been used on farms or ranches for — well, going back to the first of the cen- tury again. [44] A They have been used on farms and ranches, generally speaking. Q Well, they have been used by dairymen — A Nobody is questioning that. Q And you agree to it then? A Yes. Some dairy farms for long long years prior to 1963 had used a drain with a grading on it, so forth, manure to drop in, had they not? A Yes, it was required by State law. Q And had turned the water onto the drain then to wash the drain out, was the way they devised it in many of these instances? A Variations of them are required by the state for Grade A certification. Q Which was one way of doing it. It is one kind of a manure flush system although it was not on the barn floor level? A I assume the drain would be a little below the level. Q Yes. The drain was normally referred to as the gutter in the dairy barn itself? 165 A Yes, it was below the general level of the slab or the platform. * „ * * 1451 Do you know where these manure flush systems have been used? Where they are done by releasing water abruptly from some kind of a tank, or they hose it down by some hydraulic system, or they have a gate and open the gate; do you know about that? A The only one I can think of, even a manually operated gate — I can’t think of a hydraulic gate for flushing manure — it is a pull cable though from the barn out to the gate, but I can’t remember any hydraulic or circuit mechanisms. Q It is true, is it not, Mr. Fairbank, that — I am relating my time now to prior to 1963 — that the use of [46] flowing water even in sheet form for cleaning off barn floors was not new? A That is correct. Q And that the use in dairies — A To use a sheet form is a hell of a poor term. Par- don me, I would not want it on the record, but the sheet form, what is a sheet of water? How is that defined? That is — that is one of those unfortunate words. Q Well, it may be, but it has been used that way and that is the reason I used it. I want you to explain or tell me what it is for the record here. A Well, to me when I turn a fire hose down a floor to hose a floor off, it fans out and makes basically a sheet of — sheet flow of water, or if you have a drop dam twenty feet wide, a drop that — that meansadrop more or less level set, so I think it is kind of a rather am- biguous, if not nondescript, term — Q Yes. 166 A. — could lead to some misunderstanding. Q And the use of dams in manure gutters was also not new at that time? A Oh. I would have to say no, having seen those in- stallations up in both Weed and Bishop. MR. HULSE: I don’t believe I have any other questions. EXAMINATION BY MR. KOLISCH: Q Mr. Fairbank, would it be fair to say that you[47] have been for some time unfriendly toward the Gribble and Bennett patent? A I would have to say yes, I have been unfriendly with the patent since it was brought to my attention because of my prior knowledge of the state of the art. Q So, to that extent it would be fair to say that you would be a hostile witness towards the Gribble and Bennett patent; would that be fair? A That would be a fair statement. [50] Q You were testifying in connection with a series of questions that Mr. Hulse was asking you with respect to prior art flush systems which you consider very similar to the patented Ag Pro system. A Yes. Q Wasn't the substance of this information provid- ed by you to Mr. Hulse in 1969? A To my knowledge, yes. 167 Q Can you identify those twenty-one letters which you seat to Mr. Hulse? A No,I—likel say, it was this — it was — where in this section of that file that is, all I can say is I can’t specifically identify them. Q There isn't any way of your look lig through that file now and telling us which ones you did send to Mr. Hulse and which ones you didn’t? A No. Q Is there any way of determining whether in anyone of those letters there was any mention of the Mission Dairy? A Oh boy! Yes, here is one right here, June of 68. * * * * [54] Q Well. I informed you in the correspondence, or telephone conversation, that the defendant had sub- mitted an affidavit from Mr. Meyer of the Mission Dairy who said that he first talked to Mr. Sakraida in January of 73. A Okay. Now, establish now — what was — Q Now, my question is: Did you, after I had dis- cussed the matter with you, then volunteer the infor- mation that, in fact, you had told Mr. Hulse about the Mission Dairy in your conversations with him prior to your signing the first affidavit? A Iam with you. Yes, I would answer that yes to that. Q That was not something I told you; this was something that — A Right, that is — I am agreeing to that subject, to subject to — or rather in light of what Mr. Hulse brought up a little while ago. There might be some 168 question here of it as to whether I brought this to Mr. Sakraida’s attention, or his attention, or if, in fact, I ever wrote to anybody, so subject to that cross ex- amination I would agree to it. . Q Asa matter of fact — A In other words, I agree that I told you, yes, in March, that I had brought the Mission Dairy to the attention of Mr. Hulse. Q Asa matter of fact, weren't you having most of [55] your negotiations or conversations with Mr. Hulse with respect to the affidavit that you were going to submit? A Yes. Q Is there any reason that you would not have told Mr. Hulse about the Mission Dairy in the course of a five minute conversation, if that is the longest conver- sation that you had with him? Al don't know. Q. There is no reason why you could not have told him about the dairy in a conversation of five minutes? A Yes, I would say yes to that question; no reason why I could not. That is correct. Q The fact that you had brief conversations with him would not have precluded you from telling him about the Mission Dairy? A No. Q Do you recall in the course of the conversation that we had in March of 73. I mentioned to you that in your October 13, 1969 affidavit you had not made any reference to the Mission Dairy, and I asked you about this. You told me that, as a matter of fact, you were rather surprised when this affidavit was finally sub- mitted to you that there wasn't any reicrence to the Mission Dairy after what you had suggested to Mr. 169 Hulse; it was a potentially good field of investigation. A (No audible response.) Q Ifyou have lost the question, maybe shecan read it. [56] A I think I have it. Q Did you follow the question? A And I know I was — I would answer yes to that question. Q At this time is there any question in your mind that in October, 1969, you told either Mr. Hulse, or Mr. Sakraida, or possibly both of them about the existence of the Mission Dairy? A Well, lam agreeing with your — your viewpoint there, your question. I am not sure whether you had the preposition “not” in that sentence or not, earlier back, so I donot know whether that calls fora yesorno answer. Q There isn't any question in your mind that you — A Yes — Q — that you taiked to one of them, or the other, or possibly both of them about the Mission Dairy flush system? A Yes. Q My statement is correct? A Yes, your statement is correct, and I am not sure though how — whether it was phrased in the positive or negative. Q You were asked a series of questions with respect to elements of the prior art which included various flush concepts, and if I understood your testimony correctly you agreed that as far as you knew prior to the Gribble and Bennett patent applica- tion you knew of the various elements called for in the claims with the exception of a dam construction in the 170 dairy itself where the water was collected as a pool on the [57] floor, or above it, and that that was used as a flush means. A Yes, I agree with that statement, yes. Q That is the one element you were not able to find in the prior art; everything else you were able to find? A That is the only element I was not aware of was a drop dam on a dairy floor for purposes of impounding the water for that reason. EXAMINATION * 2 * 0 Q BY MR. HULSE: Well, let's put it this way: In 58] view of the state of the art and what was known among various dairy people, there wasn't a thing particularly new about it, was there? A Rather than answer yes or no — excuse me, the drop dam we just spoke of I would consider new. That feature, yes. Everything else, no. That is why I say it — I can see that one innovative feature, but that is the only innovation in it. That has been my position all along. That has been my position from the time I first read the patent application and the subsequent patent granting it. It was much too broad and that is why I was — to use your word — hostile towards the patent. Q And in what respect do you think it is too broad, Mr. Fairbank? A Well, basically a patent of running water downhill, putting — cows standing on concrete, using the flowing water as a method for cleaning the con- 171 crete, these were all prior art which were apparently not brought to the attention of the patent examiner. A In — A And I also conceded and the record will show that I had admired Mr. Gribble’s innovation of a drop dam. Q Now, when you say a drop dam, that essentially is a drop gate, is it not? As a means of — A I suppose. Q Ihave taken that word off one of your letters, so! think we ought to have a report on that, about that term drop gate. [59] A Okay. And as you have heretofore said, a drop gate, itself, is old; there is nothing new about that. A That is right; a drop gate itself. Q So, the only thing that could possibly be new in line of what you have just said would be the fact that they took an old drop gate and put it over here to release this water? A lat to me was innovative. * * * * Plaintiff's Exhibit No. 2 [Title Omitted in Printing] AFFIDAVIT OF W. C. FAIRBANK STATE OF CALIFORNIA County of Riverside W. C. FAIRBANK. being duly sworn deposes and says: 172 I am the same W. C. Fairbank who submitted an af- fidavit in the above-entitled case on October 13, 1969 and I am still employed as Extension Agricultural Engineer, Agricultural Extension Service, University of California, Riverside, California. In the mid 1960's I was quite familiar with the Mis- sion Dairy and its manure flush system, as I was ac- tively traveling that area and visited it on several oc- casions. My prior affidavit was prepared as a result of telephone conversations with Mr. Sakraida's at- torney, J. F. Hulse. The dates of those conversations were slightly preceding the date of execution of my af- fidavit on October 13, 1969. In the course of my telephone conversations with Mr. Hulse, I specifically told him about the existence of the flushing system at the Mission Dairy, which I considered to be similar to the patented Ag Pro system. I suggested to him that someone should in- vestigate the date on which the flushing system at the Mission Dairy went into operation because it might be prior to the Gribbie and Bennett invention. Mr. Hulse acknowledged the information and said that he would relay it to his client. s, W. C. FAIRBANK W. C. Fairbank 173 Subscribed and sworn to before me this 13th day of March, 1973. /s/ MARION L. MEAD Notary Public in and for the County of Riverside, State of California My commission expires: (SEAL) July 13, 1975 Defendant's Exhibit No. A University of California Agricultural Extension Service Riverside, California 92502 October 8, 1969 J. F. Hulse, Attorney-at-Law Scott, Hulse, Marshall & Feuille 1ith Floor — El Paso National Bank Bldg. El Paso, Texas 79901 Dear Mr. Hulse: Apparently our letters crossed in the mail. I like this revised affidavit better. Please note that I have crossed out several words and statements to make it correct. I can only cite prior use of flowing water across barn floors for the purpose of flushing away manure — not the use of atilt bucket oradam for impounding the water on the floor. 174 I hope this clarification is helpful. Very truly yours, /s/ W. C. FAIRBANK W. C. Fairbank Extension Agricultural Engineer WCF:acb enc. [59] ORDER [Title Omitted in Printing] Filed: Feb. 7, 1974 On this 7th day of February, 1974 came on to be con- sidered a Motion For New Trial on newly discovered evidence pursuant to Rule 60 (b) (2) F. R. Civ. P. and the opinion of the Fifth Circuit Court of Appeals on Petition for Rehearing. (See Ag Pro, Inc. vs. Bernard A. Sakraida, ___ F.2d —__.,, 5th Cir., June 25, 1973, NO. 72-1108) In that opinion, the Court of Appeals ordered this Court “to hear and determine said motion before proceeding on the issue of infringement. The District Court will then certify to this Court the entire record, including its opinion and order and the testimony taken on the new trial issue.” In accordance with this mandate. briefs have been filed by the parties and studied by the Court and a full evidentiary hearing held on the matter. As a result of 175 the hearing the Court finds for the reasons stated herein that the Motion should be granted. The testimony adduced from witnesses for the Defendant in support of the Motion for New Trial would, stand- ing alone and unchallenged by opposing evidence, overcome the presumption of validity of Patent No. 3. 223,070. This testimony clearly shows that the “flushing system” in question was not new nor novel and does not meet the nonobvious test under 35 U.S.C. 103. The evidence is replete with references to the prior art of similar, if not identical, “flushing sys- tems” that suggest to the Court that the applicant’s claim was anticipated by those of ordinary skill in the art. The Court further finds that the defendant did in fact exercise the due diligence required under Rule 60 (b) (2) and that the evidence presented to the Court at the hearing could not have been discovered in time to move for a new trial under Rule 59(b). In fact, the evidence clearly shows that the names of witnesses and the nature of their testimony was discovered pure- ly by chance by the Defendant himself at a meeting in January of 1973 by Mr. Herbert G. Meyer. Mr. Meyer and all Defense witnesses presented at the hearing testified they had never been aware of the litigation of the case at Bar at any time prior to this meeting. In light of the foregoing, it is ORDERED, AD- JUDGED and DECREED that the Motion for New Trial should be and the same is hereby and in all things GRANTED in that the evidence compels a rehearing of the issues and questions raised and that such evidence was not available to the Defendant in spite of the diligence exercised during the initial discovery of this cause. 176 It is FURTHER ORDERED that the expense of this proceeding along with the cost of furnishing the Court of Appeals the entire record and this order and find- ings shall be borne by the Defendant-Movant, but will be taxed as costs pending the final outcome of this cause. ENTERED this 7th day of February, 1974 at El Paso, Texas. /s/ JOHN H. WOOD, JR. JOHN H. WOOD, JR. UNITED STATES DISTRICT JUDGE TRANSCRIPT OF PROCEEDINGS OF FEBRUARY 7, 1974 [Title Omitted in Printing] Filed: June 24, 1974 1191 BERNARD A. SAKRAIDA, the defendant, called by the plaintiff, having been first cautioned and duly sworn to tell the truth, the whole truth and nothing but the truth, testified as follows: DIRECT EXAMINATION 177 1211 QUESTIONS BY MR. HULSE: Would you state your name, please? Bernard A. Sakraida. And where do you live, Mr. Sakraida? Okeechobee, Florida. In — I'll ask you, are you the same Bernard A. Sakraida who is the defendant in the case of Ag Pro Inc. versus Bernard A. Sakraida pending in this court? A Yes, sir. Q And how long have you lived in Florida? A About three years, approximately. Q Mr. Sakraida, I will ask you whether or not sometime [22] after you moved to Florida, did you hear anything or not about the Mission Dairies in Gon- zales, California in connection with possible informa- tion in connection with this case? A Yes, sir, I did. Q Could you tell us what you hear? A I heard they had some type of flush system similar to what we are talking about today. Q And did you — You were in Florida? A Yes, sir. Q Do you know where you got that information? A No. I don't, but someone either a dairyman or someone that I knew told me about it. Q And did you make any effort then to see what the situation was over at the Mission Dairy in Gonzales, California? A I asked Mr. Wisdon who lives in Medford, Oregon, when he came down through the area would he stop and check it for me and see if he could find me any information. Q What business is Mr. Wisdon in? OD O2 O 178 A He is the sales representative for Ross-Holmes Dairy Equipment. Q_ And did he travel that area? A He travels all over the United States. Q And did you get a report back from Mr. Wisdon then about [23] his effort to find out what they have there at the Mission Dairy? A Les. sir. He told me that he went to Mission Dairy and talked to the general manager of the dairy farm, and his name was Dick Ripley. And Mr. Ripley said that he was not at liberty to give information and did not want to get involved. Q Thereby, did you gain any information or obtain any information then from the Mission Dairy as to what they had in the way of a flush system? A No, I did not. Q And your understanding was that Mr. Ripley said that they would not disclose it because they don't want to get involved? A That's what I understood. Q All right. Iwill ask you whether or not that's the only information that you have had about the Mission Dairy in this connection. A Up until that date, yes, sir. Q And, you have seen of course attached to the response to appellant's petition for rehearing and telegram that was dated in March of 1973 from Mr. Frank Sousa; did you know anything prior to that time about Mr. Sousa’s dairies or operations? A_ I just knew that Mr. Sousa built dairy buildings. [24] Q Did you know what kind of dairies they were or what they had in the way of a floor-cleaning sys- tem? A No, I did not. 179 Q Iwill ask you whether or not at the time this case went to trial in September of 1971. did you know of any dairy at that time that actually had a floor- cleaning system that used a drop gate for the purpose of washing the floors off? A Prior to 1971? Q Yes, prior to the time this case went to trial in 1971. A Well, Dawn Dairies has them. Q Dawn Dairies? Who had built that one? A had built it with Ag Pro. Q But this was a Gribble Dairy, Mr. Gribble's dairy? Yes, sir. And when did you build it? Let’s see, I believe it was 1966. Well — Or 67. Did you know of any others? Well, I — Let me put it this way, because we can cut off some of these later ones, did you know of any that were in existence prior to November 1963? 125] A They had a similar one up at Piney Hills. Have you seen it? I went up to see it during the time I was building OY OY OSO Q A Q When was this did you say? A During the period of 1966 to 67. Q Who built that dairy? A I don't know. I think that Ag Pro did. Q You think it was Ag Pro that — the Plaintiff A I think so, yes, but I'm not sure. 180 MR. HULSE: I believe that's all. CROSS EXAMINATION BY MR. KOLISCH: Q What was the date, Mr. Sakraida, on which you first got information concerning the Mission Dairy? The date? Yes, sir. I believe I was in Florida, I believe it was in 1971. What month? I don’t remember. From whom did you get that information? That I testified before I don’t remember whom I got that information from because I talked to a lot of dairymen and a lot of dairy builders and a lot of people who [26] traveled throughout the country, and I got their information, and the reason I asked Mr. Wisdon to get it for me. Q Specifically what was the information that you received? A As I testified before, that they had some prior. similar type of flush system prior to Ag Pro — Q Did you consider that to be an important piece of information? A I considered it to be important if there was any- thing there, yes, sir, but I didn’t know what was there. Q Did you communicate that to your attorney? A Yes, we discussed it. Q And you did mention to Mr. Hulse that there was this Mission Dairy which someone told you had a similar flush system? Al told him that Mr. Wisdon had told me that the — 5 Or OO 181 that the foreman would not give the information out concerning any parts of the flushing system. Q Did you inquire from Mr. Hulse whether it was possible for you to obtain that information? A I believe about that time we had a summary judgment against it, and there wasn't any need for me to pursue it any further. Q You don't mean against you? A Against you, yes, sir. [27] A But you did discuss with Mr. Hulse getting information concerning Mission Dairies. A I don't recall just exactly what we did discuss, on the Mission Dairy. I was — Q Did you know of any other piece of prior art in- formation that was more pertinent than the Mission Dairy? A l couldn't answer you that, because I don't know how pertinent the Mission Dairy was up until now. Q Well, you had heard — A I didn’t know anything about it, even that they had a flush system. Q Yes, but you had heard that they did have a flush system, didn’t you? A Sir, I hear a lot of things about people doing cer- tain things with dairies like taking out equipment and putting it back in. Some of those things you just have to overlook. I mean some of them are true and some of them are not true. Q Did you discuss the Mission Dairy with Mr. Fair- banks in 1969? A No, I did not. Q Your testimony is that at no time in 1969 you had any discussion with Mr. Fairbank concerning the Mis- sion Dairy? 182 A I don't recall having discussed it with him in 1969 [28] about Mission Dairy. Q At any subsequent time did you have «ny discus- sion with Mr. Fairbank? A Not that I recall. Q Did you have any discussions with Mr. Hulse concerning any discussion that he had of the Mission Dairy with Mr. Fairbanks? A Seems to me like most of the discussion we had was about... (inaudible) or some other place. Q Did Mr. Hulse ever tell you that Mr. Fairbanks had suggested that Mr. Fair — that Mission Dairy was a prior art that should be investigated? A I don't recall that, either. Q Did you know Mr. Fairbank in 19697 A Iknew Mr. Fairbanks before 1969. I had met him in northern California. Q And you knew Mr. Fairbanks as what, you knew him in what capacity? A I don't think I would know him if he walked in. this room. Q Iam talking about his position. A Well, — Q Do you know what his capacity was? A Well, the only capacity I know of, he wrote cer- tain articles in magazines concerning the Department of [29] Agriculture, and so on. Q You knew he represented the Agricultural Ex- tension? A Yes, he was in Agricultural Extension, certain- ly. “a And isn't it a fact that Mr. Fairbank was cooperating with you, that is, as defendant in this case. in trying to invalidate the Gribble and Bennett patent; 183 isn't that a fact? Didn't he submit an affidavit in Oc- tober 1969 on your behalf? A Yes, I believe he did. Q And where did you get that affidavit? Or how did you get that affidavit, rather? A I don't really know how we got that affidavit. Q Didn't you talk to Mr. Fairbanks in connection with getting that affidavit? A You're talking about a long time ago. I don't remember how we got the affidavit, whether it was sent to us or how we got it; Mr. Hulse took care of it. Q Mr. Hulse must have found about it, about Mr. Fairbanks, from someone, and I am trying to find out whether you were the one who told about this Mr. Fair- banks. A Well, I probably did tell him about Mr. Fair- banks, because he wrote articles in the magazines all the time. Q Well, doesn’t this help refresh your recollection that in 1969 you would have discussed this case with Mr. Fairbanks? 130 A This case, perhaps, but not necessarily the dairies. Q That's what I want to get to, what do you remem- ber of your discussions? A I didn’t talk to Mr. Fairbanks about this case directly. Q Well, you say you didn’t talk to him directly: what does that mean? A Well, I talked — I had Mr. Hulse talk to him. Q Well, didn't you tell Mr. Fairbanks that Mr. Hulse would be in touch then with him? A I could have done that very easily. Q Well — 184 A But I don't recall whether I phoned or ho it came about. Q And do you recall that Mr. Fairbanks told you that he would assist you in trying to invalidate the Gribble and Bennett patent? A I recall something of that nature; he said sometime that he would if he could. Q And do you recall that he provided you with in- formation which he thought might invalidate the Gribble and Bennett patent? Al don't know that he put it that way. Q Well, let me ask you — A I don't recall him putting it that way. Q Ididn’t say whether he put it that way, but I just [31] asked you whether you recalled, without saying what the information was, that he provided you with information with respect to what he considered to be prior art dairies? A I honestly don’t know whether — I don't know what he provided us with that I can recall right now to tell you. Q What were your other sources of information in 1969 concerning prior art? A I don't recall any other sources. Q I'm sorry, I can’t hear you. AI don't recall any other sources. Q So Mr. Fairbanks was your principle source of prior art? A Well, I don’t know whether he is a principle source of prior art or not, since I don’t know whether or not any of these dairies he is talking about had any- thing to do with this. Q Do you recall anybody else who told you about other dairies? 185 No, sir. So the only one you recall is Mr. Fairbanks? I recall Mr. Fairbanks. Why did you select Mr. Wisdom to go to the Mis- sion Dairy? [32] A Because I know he goes everywhere and Ive done things for him. We check out something in a different territory — it's a long way from Florida to California, and I was right in the middle of a job and it was very difficult for me to get away, andI didn’t think he would have any problem. Q Why didn't you think he would have any prob- lem? A Because they had Ross Holmes Equipment there. Q It is a fact that the Mission Dairy had bought Ross Holmes equipment? A Notas you know it today. Q Iam talking about in 1969, as of 1969. A It was a different type of Ross Holmes equip- ment. Q But it was Ross Holmes equipment? A A star lines installed, made by another manu- facturer. Q Now isn't it a fact that when someone has in- stalled equipment in a dairy that he is a representa- tive, he can always have access to such installations? A Well, are you referring to Mr. Wisdom? Q Well, Jam referring — you are in the dairy busi- ness — A Are you referring now to me, orto Mr. Wisdom? Q I am referring to you and your general knowledge of this business. OS On 186 A You mean if I worked for Mission Dairies? [33] Q Ifyou installed equipment and you wanted to take a look at the dairy, would you bedenied access? A Depends on if there was something coming on a patent like this, I don’t know. Q Have you ever been denied access to a dairy where you installed equipment? A l always asked the owner, I don’t just walk into a man's house. Q Iam asking you whether you have ever been de- nied access to a dairy where you installed equipment. A No,I have never had any trouble with any dairy- man where I installed equipment. Q What is the business relationship that you have with Mr. Wisdom? A We don't have any direct business relationship with each other, any more than I have with anyoneelse who sells dairy equipment. Q And do you buy and have you bought over the years much Ross Holmes equipment? A I have never bought equipment from Ross Holmes. Q Have you bought equipment from Mr. Wisdom? A No., sir. Q After Mr. Wisdom told yon that he had been denied access to the Mission Dairy, what did you do? A I don't remember the dates or anything, I don't recall exactly what did happen. It seems to me like we had a summary judgment. After that, and there was no reason to pursue it any further. 187 Q Did you record the summary — A He is the one that got it. Q lam talking about the fact that Wisdom had been denied access. A Idon’t recall exactly what I did. Q Now — A But that was sometime after I had asked him, because it [35] was quite awhile before he got back in from the West Coast, because he was at that time on the East or Southwest, out in that country somewhere. Q Did you discuss with Mr. Hulse getting that in- formation from Mission Dairy dispite the refusal to let Mr. Wisdom have access? A Ilassume so, but I don’t recall exactly what was discussed about it. Q You don’t recall what Mr. Hulse told you with reference to getting access to that information? A We weren't sure that they even had anything. Q That's what you wanted to find out? A Yes, but we weren't sure. Gonzales is quite a ways out in the countryside, not just like stepping out of El Paso a few miles. Q Isn't it near Salinas? A I don't know exactly; not too far from Salinas, somewhere in that area. Q Mr. Wisdom told you that he had been denied access by the manager of the dairy: is that right? A Yes, sir. Q Did you inquire as to who the owner of the dairy was? A No, I did not. Q Did you yourself make any inquiry? 188 [36] A No. Q Did you discuss the Mission Dairy with Mr. Wisdom? A He just told me that Mr. Ripley was instructed by his boss not to get involved. Q Didn't you discuss with Mr. Wisdom what the flushing system might be at the dairy? A He said he didn’t know? Q Well, didn’t you know and didn't he know that that equipment had come from Ross Holmes? A There was a lot of equipment. Q Well — A There was a lot of equipment. At this time he was connectec with Ross Holmes, Mr. Wisdom, and he still is. Q Did Mr. Wisdom tell you that he had never been to Mission Dairy himself, or that he had never visited the Mission Dairy? A No, he never told me any such a thing. Q Did you ask him so to see if he could find out this information from Mr. Ripley? A I asked him if he couldn't try a second time. Q Did he ever report to you? A In the meantime we had this summary judg- ment. Q Did he ever report to you his access to Mission Dairy? A No, sir. 1371 Q And did you discuss with Mr. Wisdom that he could ask somebody in the Ross Holmes organization what was out at Mission Dairy? A I am sure he would know as much about it; there would be no reason for me to go beyond Mr. Wisdom. 189 Q Since Ross Holmes had installed it, there were persons that new exactly what was at the Mission Dairy; right? A I am not sure that he installed it, because usually they ship it and another one installs it; I haven't the slightest idea who built it. Q You knew that Ross Holmes equipment was at that dairy, didn’t you? A I knew that Ross Holmes and Parks was there. Q To find out what was at the Mission Dairy in- stallation? A No. Q Are you familiar with the publication called the “California Farmer’? No, that one I don’t get. You never heard about it? I have heard about it. All right, and — | I have heard about it, but I don't subscribe to it. What do you know about the publication? It is a farm magazine is about all I know about it. Do you know — A That's all I know about it. You have looked at copies of it, of the California Farmer? A It’s been a long time if I have at all. Q I will show you an article from the California Farmer of March the 20th, 1965, with the heading [ O2O>0O>0>0> “remodeled dairy sets some amazing records,” and this is an article on the Mission Dairy. I will ask you if you ever saw that (indicating). A This is from the California Farmer? 190 Q Yes, you will see it. It's marked below. A What do you want me to do, read it? Q I will ask you if you ever saw this article; read it over. A I don't recall seeing this article, no. Q You don't recall it? f A I don't recall seeing it, ever. Q Do you recall at any time during 1965 receiving an invitation to attend a Mission Dairy field day in February, the 9th of February, 1965? A I never heard of Mission Dairy until recently. I never heard of Mission Dairy in 1965. MR. KOLISCH: Those are all the questions I have. [39] CROSS EXAMINATION BY MR. HULSE: Q Mr. Sakraida, when you asked Mr. Wisdom to look at the Mission Dairy Farm, where were you living then? A Florida. Q And when did you move to Florida? A Let's see, I don't remember if it was 70 or 71. Q@ Then with respect to the year 1969, what occurred when you were in Florida would that have been in 1969, or 70 and 717 A What do you mean? Alam talking about when you asked Mr. Wisdom to look at Mission Dairy. 191 A _ It seems like it was 69. Q Were you living in Florida then, or not? A l believe I was living in Florida in 70. not 69. I don’t remember. Q Okay. Where did you live before you went to Florida? El Paso, Texas. El Paso, Texas. Right here. And when did you leave here? I believe in the fall of 1970. And this matter of asking Mr. Wisdom to take a look at the Mission Dairy, was that before or after you moved [40] to Florida? A After I moved to Florida. Q Did you know at that time when the Mission Dairy had begun operating or how far back it went in the matter of time? A Pardon? Q Do you know how long it had been in operation? A No. Q You said that in 1965 you never had even heard of them? A No. Q Other than what you testified about the occasion about which you asked Mr. Wisdom to check it out, when did you next hear about the Mission Dairy. Let me rephrase the question. Did you meet a Mr. Herb- myer in Florida in 1970? A Yes, sir. Q Did you previously know him? A No., sir. And I will ask you whether or not, state briefly how it was that you happened to meet him. OY O YO 192 A He came to Florida. He told me he had some business, and while he was there, he understood we were building a 22,000-cow dairy and would like to know if I would have the time to show him around. [41] Q Was that when you met him? Al met him I believe, and I am not certain ot this in Daniel's Restaurant, and I had not met him before. and so I had to ask two or three people before I found him. Q And what is his connection? A I understand he is the owner of Mission Dairy. Q And did you learn what kind of a floor-cleaning system they had from him at that time? A I did, because when I was showing him around the dairy, we went by the area with the gates and I told him there was a lawsuit over it, and he said It is im- possible,” and started from there. Q I will ask you whether or not you — whether or not that's the first time you actually had any informa- tion about what kind of a system they had at the Mis- sion Dairy. A Yes, then he told me about his system. Q And was that the occasion for obtaining the af- fidavit attached to our motion before the Court of Civil Appeals in New Orleans. A Yes, sir. I asked him why he hadn't said something about it, and he said that he had been in- structed not to say anything about it. Q Do you know where the other information came from about people like Mr. Sousa and Mr. Whitmore? Did you obtain any information yourself, or did he come to you after- [42] wards through Mr. Meyer? A Mr. Meyer. MR. HULSE: That's all. 193 REDIRECT EXAMINATION BY MR. KOLISCH: Q During what period of time did you live in California? A I believe from '64 until '68 or 69. I don't recall when I left California, whether it was 68 or 69. Q During that time were you building dairies in California? A Yes, sir. Q Were you operating as a general contractor? Al was operating as a general contractor and also as a consultant-supervisor. Q During this period of time, how many dairies did you build in California? A l don't know. Q What is your best estimate as to the number? A To what extent, completion? Q That you were involved in, whether completely or involved in the construction in some way. A It is going to take a little while. (Pause.) Most of the dairies, I built large ones. You already have [43] all this information. I built two in Hemmit, and one for Mr. Secairian, and Dawn Dairies, Jessep’s Dairy in Bakersfield, California, and some in northern Califor- nia, and I don't recall their names right now. Q But you were building dairies relatively throughout the state of California through this time? A As well as commercial buildings and churches. Q You don’t recall where in northern California? A Up in the extreme northern part of the state; they were small ones. Q Did Mr. Meyer tell you why he didn't want to get involved in this lawsuit? 194 A After he found out what was going on, he did want to get involved in it: that's my understanding. Q Well, he found out after the decision had been against you in the Court of Appeals? A No, sir. I talked to him before the Court of Appeals. I told him it was before the Court of Appeals in January; I didn’t even know the outcome would come out like it did. Q In your discussion with Mr. Meyer, apparently he told you at one time that he didn’t want to get in- volved. A Mr. Meyer never did tell me any such thing. Q Then I didn’t understand your testimony? MR. HULSE: 144] I think he is going to mislead the witness if he can. He testified that Mr. Wisdom said that Mr. Ripley said the manager didn’t want to get involved. MR. KOLISCH: I recall the witness having said that he discussed it with Mr. Meyer, and that those were his instructions. QUESTIONS BY MR. KOLISCH: Q Iam now talking about your January discussion with Mr. Meyer. A Well, I don’t know why. He didn't explain to me. Q It was in January, did Mr. Meyer tell you that he had told Ripley that he didn’t want to get involved, and not to show that dairy? A I understand he told Mr. Ripley that he didn’t want him to get involved. Q Mr. Ripley? A Mr. Ripley himself. The way I understand now. if — 195 anyone comes to see Mr. Ripley about that dairy, he would discuss it at their office: that's what | under- stand. | A Did Mr. Wisdom teil you that Mr. Ripley told him that he had to go see Mr. Meyer? Al don't know what he told him. Q Iam only asking you what Mr. Wisdom told you. [45] A I told you what Mr. Wisdom told me. Q He didn’t tell you anything more than what You have told us? A No. I am not even sure he told Mr. Wisdom that. Q Did Mr. Meyer tell you that he had shut his dairy off from others seeing it during any period of time, that it was out of bounds for people to go in and see what was going on in his dairy? A No, he didn't. A. M. WISDOM, a witness, called by Mr. Hulse, having been first cautioned and duly sworn to tell the truth, the whole truth and nothing but the truth, testified as follows: DIRECT EXAMINATION BY MR. HULSE: Will you state your name, please? Wisdom, A. M. And where do you live? I live in Oregon. And what is your business? A Dairy equipment. And who do you work for? OS OY OD O 196 A Ross Holmes. Q And how long have you been engaged in that business? A I have worked for Ross Holmes about 8 years now. Q And are you acquainted with Mr. Bernard A. Sakraida? A Yes, I have known him many years. Q Mr. Wisdom, I will ask you whether or not you had a telephone call from Mr. Sakraida at one time about your going down to the Mission Dairy in Gon- zales? A Yes. Q Where were you when you received that telephone call? A In Oregon. Q And where did you understand he was talking from? A Florida. Q And do you know when this conversation took place; can you approximate a date? A It was in 1971. Q And what did he ask you to do about the Mission Dairy? A He asked me to check and see if we had a washdown system of some kind and if it was in opera- tion when they put it in. Q And did you, pursuant to that telephone call, go to the Mission Dairy? A Yes. [47] Q And did you get to see what they had there in the way of floor washing equipment? A No. I talked to Mr. Ripley. Who is he? 197 The manager of the dairy. And what did he say to you? He said that he would prefer not to be involved. Did he permit you to go in? Well, he felt at that time that it would be — that it wouldn't be right for me to go in. Q Did he give you any information about it? A No. Q And what did you report back to Mr. Sakraida then? A Basically what he told me that he would prefer not to be involved. I honored that because 2 Did you make any further effort to find out about the Mission Dairy on behalf of Mr. Sakraida? A No, sir. > DOPOD > MR. HULSE: That's all. CROSS EXAMINATION BY MR. KOLISCH: Q Are you from Medford, Oregon? A Yes. [48] Q And is Mr. Sakraida originally from Med- ford, Oregon? A Yes, sir. Q You have known each other for many years? A Yes. Q How long have you known about the Mission Dairy? A I don't know for sure. Q You knew about it before 1971. didn't you? A Yes. 198 Q How much before? A That's what I say, I don't know. Q Were vou aware that commencing in 1962 the Mission Dairy had taken on a major remodeling program? A No. Q Were you ever aware that Ross Holmes had supplied equipment to the Mission Dairy? Was I ever aware? Yes. Yes, I was aware of it. When did you become aware of that? Gosh, I don’t know which year that would be. Prior to 1971? Yes. It might have been sometime after I went to work for them. Q When is the very first time that you ever visited the Mission Dairy? [49] A They had an open house, and I don’t recall the date. Q Would 1965 refresh your recollection? A I couldn't honestly say the date. Q Are you familiar with the publication called the California Farmer“? A Les. I've read it. Q Let me show you a Xerox copy from the Califor- nia Farmer of March the 20th, 1965 in which reference is made to the Mission Dairy, and ask you if you can identify that. Have you ever seen that? A I don't recall it. Q Does that date on the article there, does that refresh your recollection with relation to the open house? A It is possible, because it looks like a fancy ad. I mean. POP>O>O> 199 Q I will show you another document from North California Harvesters System and it is addressed to Mr. Gribble and Bennett, February the 9th, 1965. I will ask you if you ever received any notification similar to that. A Not that I remember on this. Q All right. A I think that I would have remembered that if I had seen it. Q Tell us what you saw when you visited the Mis- sion Dairy [50] in 1965. A If I visited it in 1965, well, let me rephrase that. When I was there I saw a very odd type of a Ross Holmes system. We had one milking machine in the center in the rear, two on the Stalls in front, which I certainly hadn’t seen before. Q Don't you recall anything about that as a matter of fact that they did have an automatic flushing System in 1965? A They certainly didn't. or I think I would have remembered it if it were in the area of the barn. Q What about the holding pen? A I primarily work with the milking end of it, and l can't visualize what that would be if it was there. But! think I would have noticed it if ithad been in the front. Q Did you discuss with anyone at or connected with Ross Holmes the Mission Dairy? A You mean milking at the Mission Dairy? Anything at the Mission Dairy. Yes. What individuals? With Mr. Holmes and possibly — Did you discuss with them the flushing system at the Mission Dairy? OS OY O 1511 A I doubt it. I really wasn't interested in that end of it. Q When were you asked by Mr. Sakraida tc find out about the flushing system at the Mission Dairy? And you testified that Mr. Ripley wouldn't let you see it? A I went down and asked about it, yeah. Q And didn’t you ever discuss then what that system was with anybody? A No. There didn’t seem to be any particular reason. Q Well, at the time I am talking about, 1971, Mr. Sakraida asked you to get information on the flushing system? A I don't understand your question. Q Iam now trying to find out if you discussed with anyone at Ross Homes after Mr. Ripley wouldn't let you see it? A I don't think I did; I think I found Bud and told him I couldn't get the information. Q As a matter of fact, without having seen the system, didn’t you discuss it with Mr. Ripley just what kind of flushing system they had at the Mission Dairy? A No. Q Didn't you ask him? A l asked him the time that he put it in, and I think I asked him if he had one. 1521 Q And what did he tell you? A He said that he had rather not be involved. Q I understand that, but didn’t they tell you what kind of a flushing system they had there? A No. Q You never asked him, “What is your flushing system”? a ee ern ee Tre ee 201 A No. He seemed reluctant to discuss it at all. Q What reason did he give you for not wanting to. A The original reason, that he didn't want to become involved. Q He knew about a lawsuit? A Is that a statement? Q Iam asking you, did he say that he knew that it was because of a lawsuit, or why did he not want to become involved? A He didn't say. Q After you couldn't get the information from Mr. Ripley, did you make any other inquiries from anybody concerning the mission Dairy? A (No audible answer.) Q In fact, when you went to see the Mission Dairy, or went in 1971 or whenever it was that you made your visit there, didn’t you know that they had a flush system similar to the Ag Pro system? A No. [53] Q You did not know? A No. Q You have no information concerning what the flush system was? A No, not on the Mission Dairy, no. Alam not asking you as to dates. but just as to how that flush system operated, you had no information concerning that? A No. Q And it had never been the subject of any discus- sion with anyone at Ross Holmes? A No. At least not that I recall specifically. My primary interest would be the milking machines and the operation of it. [54] EMIL ROVIE, a witness, called by Mr. Tatem. having been first cautioned and duly sworn to tell the truth, the whole truth, and nothing but the truth testified as follows: DIRECT EXAMINATION BY MR. TATEM: Q Would you state your full name, please, sir. A Emil Rovie. Q And Mr. Rovie, where do you reside? A I live at Glendale, Arizona. Q All right, sir, and where exactly is Glendale? A Glendale is about 90 miles northwest of Phoenix. Q All right, sir, and what is the nature of your business in Glendale? A Iam a dairy farmer. Q All right, sir, and how long have you been so employed? A I started dairy farming in 1943. Q Did you acquire this farm from someone in your family, sir? A I— Q Or did you start it new? A No, I started it new. Q All right, and you started building the farm in 19437 (55) A That's right. ‘ And approximately what time did you complete i A In - I might say I left the university work — I had been in extension work — and I had bought this farm from a dairyman who had about a hundred and twenty-five cows at that time, and I went on with the land and the cows. Q Allright, sir. Did you construct a barn orchange any of the operations from when you had purchased it? : A Originally, we milked in a little flat barn, and then after four or five years I built a parlour barn that we changed from the flat barn to the parlour barn. Q All right, sir, and when is your best estimate as to when your barn was complete? A That barn was completed in 47 or 48. Q Allright, sir. Other than the dairy barn, did you also raise any poultry or any other product besides the dairy? A That is right. We produce feed for the dairy, and! also have a poultry operation about that same time. Q Now was the poultry, where you housed the chickens, was that in close proximity to where the dairy barn was? A Yes, it was. It was approximately a hundred feet apart. 156] Q Now, Mr. Rovie, I want to inquire specifical- ly with respect to the dairy barn that you had con- structed in this land, and I ask you specifically, did you have any type of flushing system that you used to remove the manure off of the floor, a cleaning system to move cow manure off of the floor in your dairy barn? A Yes, we did. We took advantage of the water that we had available from the irrigation well that we used on our land. We used this water and flushed it overour barn floor. 204 [57] QA Sir, would you tell us what — with what sub- stance the floor of the barn consisted of? A All of our dairy barns were cement, concrete floors, and we used this water that we had available from the well and also from our irrigation district, and I had it in a cement-lined tch. and we would raise the water level, the height it would flow out, over the floor, and wash the manure, the droppings from the cows, and clean it out. Q Allright, sir.Would you tell the Court whether or not there was any grade or slope in the floor. A Yes. The floor was made to fall with one pass over the floor to pick up the manure and take it to a low point. and from that point the water would go back into another ditch below and go out to the field, and there we would use it to irrigate our fields. Q All right, sir, would you tell the Court the sys- tem of how you released the water into the dairybarn? A Water was released through four ports that we had into the dairy barn that we could manipulate with a wooden makeshift gate that we had, and the water level was raised, and when we wanted the cleaning ac- tion, we would release this water and it would flow over the sloping [58] type floor, and take the manure away. Q Now, Mr. Rovie, do you have any engineering plans or diagrams of this area, of this dairy system? A No, I had none particularly, other than we built it from know-how. Q Where did you get the idea of this type of flushing system, sir? A Well, I had studied it some at the university, and then from the time when I was a boy at home I knew that if we could throw a pail of water across the floor. it would do a cleaning job, and we did have this water available from our irrigation well. We had our eleva- tion was such that I got the idea that we could run this water across the floor and it would do this work for us. Q Mr. Rovie, did I ask you to make a diagram of how your barn was? | A Yes, sir. I just penciled a sketchy diagram. Q Allright. May it please the Court, I would like to have it marked for identification. I have a copy for the Court and opposing counsel. THE COURT: All right. The Court Clerk will mark it. (WHEREUPON, at this time, instrument marked for the pur- pose [59] of identification as Defendant's Exhibit A.) QUESTIONS BY MR. TATEM: Q Now, Mr. Rovie, I show you what has been mark- ed for identification (indicating) as Defendant's Exhibit “A”, and ask you what is that: can you identify that? A Yes, that’s the little sketch that I drew a rough sketch of the way the water did come in through our dairy barn and exited out carrying the manure with it. Q And this is a diagram of the dairy barn as it ex- isted what, at what point in time? A This was in the area of 1950 up through — We operated this barn from 1950 on. All right, sir. If we may, sir, we — if we could turn the diagram (indicating) where the notation of water supply is at the top, could we talk about it from that standpoint? A Yes, sir. Q Allright, sir, now tell us what that means. Tell us what that means when you say “water supply.” What are you referring to there? A This is where our water did come through down a ditch and in this kind of a holding pattern where the water was held, was impounded at this point marked “Gate”, we raised the water level at this point (in- dicating) and took it through our milk stalls and washed it [60] through. Q All right, sir. How deep was this area that you are talking about where the water was impounded? A This was probably two feet deep. Q Allright, and with respect to the side of the barn, would you tell us in your own words where this ditch was in connection with the side of the barn? A It was outside the barn, on the back side of the dairy barn itself. Q Did one side of the barn make one side of the ditch? A Almost; I think a matter of a foot or two. Q All right. Would you tell us about your dairy barn itself; that’s to the right of where you are re- ferring to? A “Dairy barn,” that’s where the milking stalls were, and where the cows would come through the milking stalls, and with that we would wash with this water coming through here (indicating). Q Now, looking at the diagram, what was the low end of the dairy barn? A The low end of the dairy barn would be the right to where it’s marked “Gates” and then the waste would go out at the lower-right of the diagram. Q Allright, sir. Now, what are these little four lines 207 that you have next to this trough by the side of the [61] dairy barn? A That's the intake of water where we would im- pound the water, raise the level and let it flush across the floor. Q A you familiar with the term “weir board“? A Yes, sir. Q Would you tell us what you know a weir board to be? A Well, it is an opening, most generally a square type of opening that water flows through. Q And how do you activate a weir board? A You have a gate, and your water is behind the | gate, and you lift or raise the gate, and the water goes through, and it flushes onto the floor and does the cleaning action of the manure. Q Now, would you tell us in your own words what type of mechanism you had in between this trough and the dairy barn that the water had to pass through? A It was just a square type of hole with a board, and you would raise the board out and let the water come through. Q What size port was it? A As I remember, the opening was probably about 20 or 24 inches wide, and maybe 6 or 8 inches in height. Q Would you tell us what kind of plate or gate it was, whether it was metal or wooden? {62] A It was wooden. Q It was wooden? A Yes, sir. Q All right. Now, how did the system work once the water got to the dairy barn floor? A Well, it would just wash off what droppings we had on the floor, because the surge of water would carry this water and manure to the gutter. Q Where would the water go? A It went down a gutter, and down by that dairy barn there, and drop into this gutter, this low point, and flow on rapidly out to the right, the low end of the barn, and go out through the manure drain and out to the waste ditch. Q Allright, sir. Now, what about near the bottom of your diagram where you had your chicken house, did you use any flush system for your chicken house? A Yes, we had two cage houses; there was cage house number one and cage house Number two, and we used the same water system and we had 10 aisles in each of these cages, cage houses, and underneath the cages there was a cement trough where the droppings would fall from the chickens and fall into this, and then the water, we had a kind of a plug that would let the water down these aisles and wash the chicken manure, [63] the droppings, would go from the upper end of the house down to the lower end of the house and drop in and drop into this same drainage line, and on out to the field, and we used the same system for clean- ing the chicken houses, also. Q What are the little arrows at the top of the diagram D-A“, right there by the chicken houses, where the little arrows are? A Oh, that’s the direction of the flow of the water that would flow down these cage rows. We had in- dividual cage rows, and that was underneath these cage rows we had it cemented, and the water would flow in that direction, a matter of about 200 — the house is about 225 feet long, and the water would flow from one end to the other and clean that chicken house. MR. TATEM: (Indicating.) Would you mark this “D-B”. (WHEREUPON, at this time, in- strument marked for the purpose of identification as Defendant's Exhibit B'.) MR. TATEM: Your Honor, do you want to see this (indicatiug.)? THE COURT: No, no. [64] QUESTIONS BY MR. TATEM: Q Mr. Rovie, with respect to the face side of D-B.“ can you identify that for us, please? A Yes, sir, this is the head end of the — of — of our chicken houses, the head end of each one of those 10 rows. In the upper part of the picture we see the cages that the birds were confined in, and the bottom there is this concrete trough, and that’s where the droppings would fall into and the head end of this trough we hada plug arrangement that we would pull out and let the water come out and proceed down this trough. This is the beginning of the trough there of each of these 10 troughs for each of the two houses. Q With respect to the visual matters portrayed on “D-B,” when was that completed? A When was this built? Q Yes, sir. A This was built, oh, me, 46. 47, 48, in those years. All right, sir. Now, prior to coming to El Paso. had you ever seen me before? A Yes. Q Can you recall approximately when it was? A It was one day last summer that you came by the farm. “oe. 210 Q Do you recall that you were there when I took that picture? [65] A Yes, sir. Q Between 1973 and when that picture was, when that installation was completed, have there been any changes in it, I mean does the picture accurately represent the way it was when it was completed? A That's right. This is correct. We haven't made no particular changes on it, and we've been using it all these years. Q All right, sir. Now, with respect to “D-B”, what are the baskets that are above this concrete trough? A These are cages that we confine our birds in, and we have birds in these small cubicles that are roughly a foot wide and about 15 inches long, sloping floor, and the feed trough in front, and a basket to catch the eggs, a typical cage operation. Q And what was the purpose of the concrete below the baskets? A Droppings would fall from these chickens, and drop down, and originally we had to take them out with a wheelbarrow, and it was hard work, and then we con- ceived this idea of washing, so we did cement these aisles underneath there and use water velocity to wash the manure through. | Q Allright, and how was the water introduced into the concrete trough? 186] A This water came from the same supply sys- tem, and through there — we piped it into an under- ground pipeline to the head of this cagehouse, and with the head of each of these aisles we had this plug arrangement and we would open this plug and let the water come through, and it would flow down through the length of the aisle. 211 Q And how did you remove the plug from the top of the trough? ; A We had a little tool that we would reach in and pull that plug out. Q All right. I want you to look at “D-B” and tell the Court whether or not the metal tool you are referring to is depicted in that? A Yes, it's here, that’s the little metal tool (in- dicating). Q All right, and tell us in your own words how you get the plug out with that metal tool. A Well, it was a bent kind of a little metal tool that | we would reach in there and pull this plug out, and it would let the water come out. Q Now, Mr. Rovie, do you know of any time that your dairy barn or your poultry operation was written up or made public in any way? A Yes, it was a matter of interest, and it was pub- lished in local newspapers, a newspaper cal’ ad the Arizona Republican Gazette, I think it was called at that [67] time, on one of the Sunday editions. MR. TATUM: (Indicating.) Would you mark this, please, as “D-C”’. (WHEREUPON, at this time, in- strument marked for the purpose of identification as Defendant's Exhibit C.“ * * * * QUESTIONS BY MR. TATEM: Q Mr. Rovie, I show you what has been marked for identification as Defendant's Exhibit C“ and ask you, can you identify that? A Yes, sir. This was an edition in the Farm and Ranch Life of the Arizona Republic, August the 2nd of 1953, and it was kind of a almost full-page of my farm and the manure handling system that we had. Q All right. Those pictures that are shown on that exhibit, are those pictures of the farm that you have been testifying about today? A Yes, sir. Q There is a picture of a gentleman in that article; is [68] that picture of you? A Yes, sir. Q And the substance of the documentary before it of how the author of that article obtained the informa- tion, did they interview you? A Yes, they did. They came in and took pictures of it. Q Have you had a chance to review that article? A Yes, sir. Q Is the article accurate about what it said that your barn did or did not do? A Yes. [69] Q Now, Mr. Rovie, I am talking just about the part of the newspaper that pertains to your farm; I am not talking about the other articles that may be in there about some other collateral matter. All right, now, let's go back to Exhibit “A”. This was the sketch of your farm. And particularly with respect to the time. 213 dairy barn, now, was the water that was in the water supply, was that continually moving, or were you able to store the water and dam it? A We were able to store that water. We would dam it up with a gate to hold our water supply. Q And it remained at rest in that position until what happened after that? A Well, we would release this water, and we could use it to clean our milk stalls and go down through the chicken house and wash wherever we were at at the Q And it was released through what, sir? A Through a gate, or weirs. 170] A All right, you are using the word “gate” as synonymous with “weir”? A Yes, sir. Q And that is with respect to what on this diagram. or where? (Indicating.) Those four little arrows? Uh huh. Did you have four weirs or four gates? Yes, sir. All right. How did you determine how many weirs to lift? A Well, that was a matter of, you know, we would milk some cows, and then we would mix them with these gates here, and we would usually — We could clean the area by opening these gates here (in- dicating). Q Would you tell us how, what's your information or what you recall as your contact with my firm, or how did we get together today, if you can recall? A Yes, sir. Herb Meyer called me and asked me and ON OO 214 asked me about this. He evidently talked to somebody at the University of Arizona, and they gave him my name and he talked to me to ask me about this washing system and so! told him what we had done, and then it was later that you and hecame to the farm to look at it. [71] A When was it that I came? A Mid-summer of 73. Q And I was introduced to you by what individual? A By Herbert Meyer. Q Do you recall that he called you and made some kind of arrangement with you? A He did call me and said that you were coming. Q At this time we would offer into evidence what has been marked “Defendant's Exhibit A“. Also “B” and C“. THE COURT: Any objection to the offer of “A”, B'. and C“ MR. KOLISCH: Yes, Your Honor. Apparently this is being offered as some kind of prior art. They — We are entitled to 30 days’ notice under the statutes, 35284, and this is the first time that the address of this individual — THE COURT: I don’t know if it’s being offered for that purpose, necessarily. I think it is just an offer to show that there is no basic novelty to ,our client's invention. MR. KOLISCH: {72] I'm sorry, that takes care of that specifically, but THE COURT: This is not a trial on the merits; this is merely to determine whether or not — The only thing that the Court of Appeals has asked me to do here is to hear and question whether or not there should be a new trial based on newly discovered evidence. And, under Rule 59 B. that's all, the then I will either find if there is a basis for it, then I will order up this transcript and send it to the Fifth Circuit and file a supplemental brief, and then it’s up to them. That’s my understand- ing. I have a very limited role in this trial. I am reading, “to hear and determine defendant's motion tor a new trial based on newly discovered evidence, to certify to the Court of Appeals the entire records, in- cluding the opinion and orders of the trial court, and the testimony taken on the new trial issue, and thereafter, it says, “We'll take over.” Then you file supplemental briefs, and that is the limit. My hands are tied beyond that. MR. KOLISCH: You are not passing on -— THE COURT: I am not passing on the merits of the [73] patent. I am going to do exactly what the Court of Appeals in- structed me to do, and I just read here — And even then I am not permitted to go into the question of the trial on the merits of the infringement; that’s got to go to the Fifth Circuit. They have to make the decision as to whether or not the patent is valid, and then if they feel like that there is a question of invalidity, it will be sent back and I will try it on its merits, afterwards, on the infringement question. 216 MR. KOLISCH: I think that the Fifth Circuit indicated that the ques- tion of infringement would first have to be decided in the district court. THE COURT: But I am not going to hear that today. MR. KOLISCH: I understand that today you are not going into that, but — THE COURT: They tell me not to. They say that I am not to touch the question of infringement. As I said, the only thing I am permitted to do is determine the defendant's motion for new trial based on newly discovered evidence, and then to certify to the Fifth Circuit Court of Appeals the entire record, including [74] the opinion and order of the trial court and the testimony taken on a new trial issue. Then thereafter the parties will go back to the Court of Appeals and will file supplemen- tal briefs, and then it goes on, and they will make the determination as to whether or not I will hear the in- fringement question. That, again, is all there is. MR. KOLISCH: I would still make the objection. {75} Exhibits “A”, B' and C“ will be received for the purpose of this hearing only, bearing in mind that! 217 am not passing on the merits. I think this would be a good time to take a recess. We'll be in recess for about 15 or 20 minutes. (WHEREUPON, at this time, Court in recess for 20 minutes.) THE COURT: You may proceed to cross examine the witness. MR. KOLISCH: Your Honor, I will limit my cross examination and not go into any of the merits in the [76] construction operation of Mr. Rovie’s dairy, because I have not had an opportunity of course to make any independent ex- amination to determine anything concerning this dairy, so I cannot examine him on the merits of the dairy as such. THE COURT: You mean as to the merits of the usefulness of the particular operation he has for cleaning out his — MR. KOLISCH: Yes, sir, and whether in fact it is in anticipation of what the patent claims are, because I have not had an opportunity to examine it. This is the first time. THE COURT: Well, as I say, this is not a trial where all the merits can be determined. This is only a question of whether or not the newly discov [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0752%3A02. Public record. Not legal advice.