Petition — Bolt, Beranek & Newman, Inc. v. McDonnell Douglas Corp.

Supreme Court brief1976

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Supreme Court of the United States.

Ocroser TERM, 1975.

No. fa i () a

BOLT, BERANEK AND NEWMAN, INC.,

PETITIONER,

Vv.

McDONNELL DOUGLAS CORPORATION,

RESPONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit.

Rosert H. Rives,

RinEs AND RINEs,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 482-3289

Netson H. SHaptro,

SHAPIRO AND SHAPIRO,

600 New Hampshire

Avenue, N.W.,

Washington, D.C. 20037.

(202) 338-5500

ADDISON C. GETCHELL & SON, INC. - THE LAWYERS’ PRINTER - BOSTON

Table of Contents.

Opinions below

Jurisdiction

Question presented

Constitutional and statutory provisions involved

Statement of the case

A. Nature of the case

B. The holding of ‘‘obviousness’’ of claim 13

1. The first fiat of the Court of Appeals

2. The second fiat of the Court of Appeals

3. Conclusion as to the fiats of obviousness

Reasons for granting the writ

I. The admittedly hostile environment of the

Eighth Circuit deprives patentee litigants, in-

cluding petitioner, of any semblance of the

American concept of judicial impartiality and

due process and requires swift and strict su-

pervisory action by the Supreme Court

Il. The conflicting standard as to ‘‘obvious-

ness,’’ presumption of validity and due proc-

ess for patentees between the Court of Appeals

for the Eighth Circuit on the one hand and

this Supreme Court and the other circuit

courts for appeals, requires immediate reso-

lution

Conclusion

Appendices

Appendix A

Appendix B

Appendix C

aon fF FF &O WH WH bo

ii TABLE OF AUTHORITIES CITED

Table of Authorities Cited.

CasEs.

Agrashell, Inc. v. Hammons Products Company,

413 F. 2d 89 (8th Cir. 1969) 15

C. H. Boehringer Sohn v. Watson, 256 F. 2d 713

(D.C. Cir. 1958) 18

Blonder Tongue Laboratories, Inc. v. University

of Illinois Foundation, 402 U.S. 313;

91 S. Ct. 1434; 28 L. Ed. 2d 788

(1971) 2, 14, 18, 19

Graham v. John Deere Co. of Kansas City,

383 U.S. 1; 86 S. Ct. 684; 15 L. Ed. 2d

545 (1966) 3, 6 10, 13, 17, 19

Jungerson v. Ostby & Barton Co.,

335 U.S. 560; 69 S. Ct. 269; 93 L. Ed.

235 (1949) 18

Woodstream Corporation v. Herter’s Inc.,

312 F. Supp. 369 (D. Minn. 1970) 14, 15

CONSTITUTIONAL PROVISIONS.

United States Constitution

Article I § 8, el. 8 2, 3

Amendment 5 2, 3

STATUTES.

28 U. S. C. § 1254(1) 2

35 U. S. C. § 101 3

§ 103 4

§ 282 4, 7n.

TABLE OF AUTHORITIES CITED

MISCELLANEOUS.

Boretsky, ‘‘Trends in U.S. Technology:

A Political Economist’s View,’’

63 American Scientist 70 (1975)

Gausewitz, ‘‘Brief in Support of Proposed

Amendment to Section 103, Title 35, Patents,

U.S. Code,’’ 51 J. Pat. Office Soc. 290 (1969)

Gee, ‘‘Foreign Technology and the United States

Economy,’’ 187 Science 4177 (1975), p. 622

Koenig, Patent Invalidity A Statistical and

Substantive Analysis, Clark Boardman Co.,

Ltd. (N.Y. 1974), Table 14A, 15

PTC Subcommittee Report No. 1464, 84th Cong.

2nd Sess., 1956; 51 J. Pat. Office Soc.

292 (1969)

Sease, ‘‘The Inventor’s Dilemma: Whose Fault?’’

58 ABA J. 267 (1972)

Young, ‘‘Obviousness in the Eighth Circuit,’’

14 St. Louis L.J. 672 (1970); also

25 J. Mo. Bar 633 (1969)

Zarley, ‘‘Jury Trials in Patent Litigation,’’

20 Drake L.R. 243 (1970)

iil

19n.

Supreme Court of the United States.

Ocroser Term, 1975.

No.

BOLT, BERANEK AND NEWMAN, INC.,

PETITIONER,

McDONNELL DOUGLAS CORPORATION,

RESPONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit.

To the Honorable, the Chief Justice, and the Associate

Justices of the Supreme Court of the United States:

Bolt Beranek and Newman, Inc., your petitioner, prays

that a writ of certiorari issue to review the decision of

the United States Court of Appeals for the Eighth Cir-

cuit entered in this case on August 15, 1975.

Opinions Below.

The opinion of the United States Court of Appeals for

the Eighth Circuit (App. B, mfra, pp. 23-35) has been

reported at 187 U. S. P. Q. 142. That opinion affirms an

unreported memorandum decision of the United States

District Court for the Eastern District of Missouri (App.

C, infra, pp. 37-51).

Jurisdiction.

The judgment of the Court of Appeals for the Eighth

Circuit (App. B) was entered on August 15, 1975 and

this Court’s jurisdiction is invoked under 28 U.S. C. § 1254

(1).

Question Presented.

Has petitioner, as one of many inventors litigating in

the Eighth Circuit, been deprived of its constitutional right

to fundamental due process under the Fifth Amendment and

under Art. I, § 8, cl. 8, by the Court of Appeals for that

Eighth Cireuit, which in this case has frankly admitted

it could find no prior art against petitioner’s important

patent claim,’ but nevertheless

a) made its decision in what is now conceded to be

an attitude of hostility against patents, in bold con-

travention of this Court’s recent reiteration of the

presumption of validity and public policy of inven-

tors being ‘‘favored as a class;’’?

b) imposed a free and easy fiat of ‘‘obviousness,’’

while deliberately and openly refusing to apply the

‘‘level of ordinary skill’’ proven in the case, and other

*Claim 13.

2 Blonder Tongue Labcratories, Inc. v. University of Illinois

Foundation, 402 U.S. 313, 335; 91 St. Ct. 1434; 28 L. Ed. 2d 788

(1971).

ee ee

tests specifically required by this Supreme Court as

to that claim ;*

ec) used a standard that nothing or almost nothing

is patentable, now statistically proven to be in hope-

less conflict with all the other courts of appeals; and

d) ignored all the unanimous testimony, on both sides,

as to the ‘‘surprise’’ of this invention, and deliber-

ately substituted its own unsupported fiats, thus de-

priving petitioner of the fundamental rights in its

trial, let alone judicial consideration by an impartial

judiciary?

Constitutional and Statutory Provisions Involved.

CoNSTITUTION OF THE UNITED SraTEs.

Fifth Amendment:

‘No person shall . . . be deprived of life, liberty, or

property, without due process of law.’’

Article I, § 8, cl. 8:

‘*The Congress shall have power .. . [t]o promote the

Progress of Science and useful Arts, by securing for lim-

ited Times to . . . Inventors the exclusive right to their

‘Discoveries.’ ’’

SrTaTuTss.

35 U. 8. C. 4 101:

‘*Whoever invents or discovers any new and useful... .

manufacture ... or any new improvement thereof, may

obtain a patent therefor.’’

’ Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17;

86 S. Ct. 684; 15 L. Ed. 2d 545 (1966).

35 U. S. C. § 103:

‘‘A patent may not be obtained ... if the differences

between the subject matter sought to be patented and the

prior art are such that the subject matter as a whole

would have been obvious at the time the invention was

made to a person having ordinary skill in the art to

which the subject matter pertains.’’

35 U. S. C. § 282:

‘*A patent shall be presumed valid. The burden of estab-

lishing invalidity of a patent shall rest on a party assert-

ing it.’’

Statement of the Case.

A. Nature or THE CasE.

The subject matter of this case is concerned with the

startling advance in silencing jet engine noise that made

it possible to quiet modern jet aircraft—in this case the

DC-10 aircraft of McDonnell Douglas—using sound-

absorbing duct lining structures in the jet engine nacelle

ducts, as provided to Douglas by the General Electric

Company.‘

This petition is concerned with a single, specific patent

claim 13 only® of petitioner’s sound-absorbing duct si-

lencer patent, which claim the Court of Appeals for the

Eighth Cireuit has agreed is not found im the prior art;

the court specifically conceding that claim 13 ‘‘was not

*G.E. ‘‘Double Diamond”’’ silencer, P. Ex. 20B, 20B’, 214A.

5 Your petitioner has been forced, under protest, to abandon

all the other broader claims since, as a practical matter, the Su-

preme Court has not granted certiorari (except for conflicting

decisions) in over 50 years on a single patent claim found in-

valid by a Court of Appeals on prior art.

= ——

specifically taught or disclosed in any of the publications

before the court’’ (App. B, p. 33, wmfra).

The case thus involves a highly important technology

not ‘‘specifically taught or disclosed’’ in the prior art,

the leading aircraft and aircraft engine manufacturers

of the country, and the leading modern ‘‘quiet’’ aircraft

widely used by the public including this Court.

For purposes of this petition it is not believed neces-

sary to consider the claim language in detail,® other than

to point out that claim 13 calls for a sound absorber that

does not absorb through the use of fiberglass fillings or

other fibrous or bulk absorbing fillers of prior art duct

linings, but through the action of a thin highly perforated

sheet secured to and dimensioned with a honeycomb-like

core in a critical manner.

It further calls for making some of the transverse walls

of the honeycomb that constitutes its central core acousti-

cally transparent, by introducing holes or apertures in

such walls (App. A), while specifically keeping other sets

of honeycomb walls solid or acoustically opaque. This

unusual construction of having mixed sets of some walls

with perforations, alongside other walls kept solid, was

discovered by petitioner’s inventor, Watters, to enable the

structure to absorb many different frequencies of sound

simultaneously, even though the honeycomb tubes were

of fixed dimensions and thus presumably only one-frequency

or one-tone sensitive.

It is this constr: ction in cooperative function with the

other parts that admittedly imbues the McDonnell Douglas

GE absorber used in the DC-10 with its ability to effect

the broad-band frequency silencing required in jet engine

nacelle ducts.

*In Appendix A hereof, a drawing and simple reference to

the claim language is provided.

It is this construction and result of claim 13 that the

Court of Appeals for the Eighth Circuit concedes is not

‘*taught or disclosed’’ in any of the prior art.

It is this construction of claim 13, moreover, that each

of the defendant’s technical witnesses (and, of course, pe-

titioner’s experts) never even saw in the prior art, as

later quoted.

But it is this construction that the Court of Appeals

for the Eighth Circuit has nonetheless denied to petitioner

on its holding of ‘‘obviousness.’’

And it is this action, which petitioner believes, and

will now demonstrate, is fostered by an illegal and uncon-

stitutional hostility to patents in the Court of Appeals

for the Eighth Circuit—hostilitvy .uat has not just created

a grievous injustice to petitioner, but shakes the basic

foundation of trust in our judicial system.

B. Tre Howprne or ‘‘Osviousness’’ or Cram 13.

The Court of Appeals for the Eighth Circuit frankly

concedes that the District Court made no explicit finding

as to the level of ordinary skill in the pertinent art (foot-

note 3, App. B).

It will be recalled that this Court mandated such find-

ing in Graham v. Deere, supra (p. 18):

‘‘We believe that strict observance of the require-

ments laid down here will result in that uniformity

and definiteness which Congress called for in the 1952

Act’’ (emphasis added).

When it came to claim 13, however, as to which as be-

fore stated, the Court of Appeals frankly conceded there

was no specific teaching or disclosure in the prior art,

the Court of Appeals itself also declined to follow the

requirements of Graham v. Deere, supra.

It ignored all the testimony of the defendant’s and

petitioner’s witnesses as to the actual (not hypothetical)

level of skill and knowledge of not only those skilled in

the art, but even experts; all the testimony—unanimously

concurring on both sides—of what those skilled in the

art struggled to produce until the structures of this suit

were finally evolved ; all the testimony on both sides (quoted

._ briefly, infra) as to the ‘‘surprise’’ and unexpected re-

sult involved in the phenomenon; and all the evidence as

to the success of the same.

The defendant, and the District Court in folluwing the

defendant, had tried to prove the invalidity of claim 13

by alleged disclosure in specific priv: art. This tack was

overruled by the Court of Appeals for the Eighth Circuit

in its frank concession that the system of claim 13 is not

taught or disclosed in any of the prior art before the court.

It is thus evident that the plaintiff is not being accorded

the statutory provisions of requiring the defendant to

sustain the burden of proving invalidity."

To the contrary, in the EKighth Circuit, at least, your

petitioner has been stripped of the statutory presumption

of validity and of the statutory requirement that the de-

fendant must sustain its burden of proving invalidity.

Instead, the Court of Appeals, finding nothing in the

prior art, became the petitioner’s new legal adversary in

place of the defendant, and proceeded to create its own

hindsight-conceived fiats of obviousness in utter disregard

for the record, as follows:

735 U. S. C. § 282:

‘*A patent shall be presumed valid. The burden of establish-

ing invalidity of a patent shall rest on a party asserting it’’

(emphasis added).

1. The first fiat of the Court of Appeals

(footnote 4; App. B).

‘‘any person of ordinary skill in the art [of ‘silencing

of noise in ducts’] would look to the non-fibrous tech-

niques’’ (emphasis added).

The proven facts—unanimous on both sides—as to what

those skilled in the art actually did look to for this duct

silencing problem demonstrate the complete falseness of

this fiat. The fact is, that those skilled in the art (in-

cluding the defendant McDonnell Douglas, General Elec-

tric and NASA) did not ‘‘look to the non-fibrous tech-

niques,’’ but persisted in the fibrous techniques, and des-

perately tried to make them work, but without success.

Each of defendant’s technical witnesses concurred with

the testimony of plaintiff’s witness, Dr. Leo Beranek °

(A. Vol. 1, pp. 83-94) that the structures evolved and

used by those: skilled in this art (before Watters) for

lining ducts subject to engine generated or similar aero-

dynamic forces, noise frequencies and attendant condi-

tions, relied upon fibrous absorbing layers or fillers, as in

P.E. 27 and Baruch patents P.E. 2-4:

McDonnell acoustics department head, McPike (A.

Vol. II pp. 383-384); ‘‘fiberglass material.’’

General Electric engineer, Smith (A. Vol. I, pp. 316,

340); ‘‘protected fiberglass.’’

8 Professor at Harvard and M.I.T.; fellow and past president of

Acoustical Society of America and Institute of Noise Control

Engineering; fellow of American Institute of Physics, Institute

of Electrical and Electronic Engineers, American Academy of

Arts and Sciences, National Academy of Engineering; copious

text book writer in acoustics and noise control, over a hundred

published scientific papers, and lectures all over the world (App.

Vol. I, pp. 75-80).

—

Defendant’s trial expert, Yerges (A. Vol. I, pp. 252-

253) ; ‘‘filled with a fibrous mineral or glass wool.’’

At the time of the Watters invention, indeed, as Dr.

Beranek aptly put it (A. Vol. I, p. 155):

‘‘The whole direction was in the direction of thicker

sheets with bigger holes and putting the absorbing

material behind and not going in this direction’’ (i.e.

of Watters).

Indeed, when NASA, as late as the mid-1960’s, instituted

a research program, including McDonnell Douglas (A. Vol.

Il, pp. 383-385), to try to find a satisfactory answer for

absorbing jet engine sounds, those skilled in the art did

not ‘‘look to the non-fibrous techniques’’ as hypothesized

by the Court of Appeals, but, to the contrary, adopted

initial structures that were these very prior art type of

fiber-filled structures with ‘‘stainless steel felt,’’ ‘‘sintered

woven screens,’’ etc. (A. Vol. I, p. 154); or in the words

of McDonnell Douglas’ acoustic head, McPike, ‘‘a Brillo

pad’’ (A. Vol. II, p. 383). These fiber absorber-filled

panels are shown, for example, in P.E. 26 and the NASA

report, P.E. 25, as are other structures experimented with

over the years.

The defendant’s acoustics department head, Mr. McPike,

graphically described the difficulties and failures with such

prior-art-based approaches that those skilled in the art

actually struggled with, including ‘‘fiber metals . . . scat-

tered around the City of Long Beach”’ (A. Vol. II, p. 384).

In addition, the General Electric Company did not in-

stitute until as late as 1967 its own ‘‘intensive develop-

ment effort’’ trying, in the words of their engineer Smith,

to develop an absorber with no ‘‘metal or rigid fiber glass,

no bulk absorber’’ (A. Vol. I, p. 348).

2. The second fiat of the Court of Appeals (App. B, p. 33).

‘*. . . although this technique was not specifically

taught or disclosed in any of the publications before

the court, the method was one which would be ob-

vious to a person of ordinary skill in the art... . ob-

vious alternative .. . to connect some of the chambers

by means of slits or perforations.’’ .

In the first place, the finding that this ‘‘would be ob-

vious’’ (by hindsight), is not the test of Graham v. John

Deere Co. of Kansas City, 383 U.S. 1, 86 S. Ct. 684; 1c

L. Ed. 2d 545 (1966), or of the statute, that is con-

cerned, to the contrary, with what ‘‘would have been ob-

vious at the time the invention was made.’’

Apart from this, all the acoustic and technical expert

witnesses, on both sides, agreed that the phenomenon re-

sulting from the new structure was a decided ‘‘surprise,’’

and in a direction away from what those skilled in the

art had actually been doing or even thought possible!

Only the Court of Appeals for the Eighth Circuit found

the structures of claim 13 ‘‘obvious.’’ Not a single tech-

nical witness for either side made any such statement.

The record is abundantly clear, as before quoted, that

with all the prior art before them, none of the researchers

at NASA, the General Electric Company, or the defend-

ant McDonnell Douglas found it obvious to evolve the

Watters type of structure of claim 13, even as late as

the mid and late 1960’s!

More than this, the defendant’s chief acoustics engineer,

McPike, frankly admitted that his knowledge of the state

of the acoustics art and that of his colleagues (including

specifically the prior art cited by defendant and referred

to by the Court of Appeals) initially led them away from

making the Watters discovery that broad frequency band

absorption could be obtained with a thin, appropriate

small-hole and small center-spacing sheet alone, without

absorptive filler, rigidly supported by constant-dimensioned

closely spaced honeycomb supports, as incorporated in

claim 13:

‘*[w]e in acoustics knew better ... and that in fact

we would only achieve a significant reduction at a

single frequency.’’ (A. Vol. LI, pp. 385-386.) (Empha-

sis added.)

‘*T’ll confess that those of us in acoustics were

terribly embarrassed because as a result of our tests

in our chamber of this type we found that lo and be-

hold . . . we obtained reduction over a band of fre-

quencies. And at that time, we took with us into

our discussions with G.E. the general approach that

we would want to use an installation in the DC-10

which was in fact a honeycomb core behind a per-

forated plate material.’’ (A. Vol. II, p. 387.) (Empha-

sis added.)

‘*Q. You were surprised, weren’t you?

‘*A. Yes, we were not aware... again, our state

of the art in Douglas at the time did not tell us that

we would achieve this resistance under the conditions

of the engine.’’ (A. Vol. II, p. 393.)

Mr. McPike also frankly conceded (A. Vol. II, pp. 393-

394) that others of the ‘‘ten or twelve’’ engineers in his

group having degrees ‘‘in physics and engineering and

very knowledgeable in acoustics,’’ also, ‘‘did not know

about it’’ before these surprising results were obtained.

He further stated that before his 1967 tests, he had not

seen this structure ‘‘described in any publication’’ (A,

Vol. II, p. 399).

And similar comments were made by General Electric

engineer Smith, who conceded that the concept of not

using ‘‘any of this fibrous bulk material’’ for silencing

jet engine noise ‘‘had never been done before’’ to his

knowledge (A. Vol. I, p. 349); and that prior to 1967, he

had never ‘‘seen a panel with a very thin surface sheet,

a lot of perforations, a closely-spaced cellular structure,

some of the walls of which were slotted and in between

some walls that were opaque for use as an acoustic ab-

sorber’’ (A. Vol. I, pp. 349-350) (emphasis added), i.e.

claim 13.°

It is not only significant that no technical witness for

the defendants ever testified that the Watters invention

was ‘‘obvious,’’ but also that not until the suit, was any

issue of possible invalidity-for obviousness or any other

reason ever raised by either McDonnell Douglas or Gen-

eral Electric in its communications with plaintiff (P.E.

18-D, IL.)

In the face of this uncontroverted record, the Court

of Appeals for the Eighth Circuit has boldly become the

new adversary with the new theories, and has constructed

its own ‘‘hypothetical’’ skilled worker in this art, has ig-

nored the imposing record of what the real skilled workers

had been able to do and what they had not recognized,

and has ignored the telling fact that all of the technical

and fact witnesses for both sides have testified to the

surprising nature of the phenomenon.

® The plastic perforated sheet and core structures of the G.E.

absorbers (P. Ex. 20B, 20B’, 21A)—claim 13—were not among

those held by the District Court not to be infringements; and

the Court of Appeals chose to ‘‘express no opinion, on the ques-

tion of . . . MeDonnell Douglas’ . . . infringement.’’ Even a

surface comparison of App. A with P. Ex. 21A shows the clear

infringement of claim 13.

A serious injustice has thus been done petitioner by

this destruction of its patent.

But an even greater blow has been dealt the trust in

the judiciary.

3. Conclusion as to the fiats of obviousness.

It should be reiterated, particularly with regard to

claim 13 as to which there was no prior art, that the

Court of Appeals deliberately not only refused to accord

the statutory presumption of validity and the required

burden on the defendant, but it openly refrained from

applying any of the tests required by Graham v. Deere,

supra.

Despite the finding that the level of skill was high, the

Court ignored the copious and non-conflicting testimony

of both sides that with that level of skill, the phenomenon

still surprised all the engineers at McDonnell Douglas!

All of this is a far cry from the mandate of Graham

v. Deere that the other courts of appeals are at least

trying to follow to achieve the uniformity of decision-

making sought in the 1952 Act.

While it may not be considered of sufficient importance

to grant this writ merely because the Court of Appeals

for the Eighth Cireuit was arbitrary and unlawful in this

case, adequate reasons will be apparent in the following

section demonstrating that this action by the Court of

Appeals was:

a) in furtherance of a consistent policy of the Court

of Appeals for the Eighth Circuit to destroy patents

for ‘‘obviousness’’ even in contravention of Graham

v. Deere;

b) in keeping with a now openly conceded hostility

against patents in that circuit, in direct contraven-

tion of this Court’s reiteration of presumption of

validity and the public policy of favoring patentees

(Blonder Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313; 91 S. Ct. 1434; 28

L. Ed. 2d 788 (1971));

c) the result of the adoption of a standard that

nothing or almost nothing is patentable, now statis-

tically proven (infra) to be in hopeless and not just

accidental conflict with all the other courts of appeals;

and

d) an insensitive deprival of due process to peti-

tioner by deliberately ignoring the record at the trial.

Reasons for Granting the Writ.

I. Tue Apmitrepty Hostite ENviroNMENT OF THE EIGHTH

Circuir Deprives PaTeNTEE Liticants, IncLupING PE-

TITIONER, OF ANY SEMBLANCE OF THE AMERICAN CONCEPT

oF JUDICIAL IMPARTIALITY AND Dug Process anp REQUIRES

Swirr anp Strict Supervisory ACTION BY THE SUPREME

Court.

Unprecedented is the now admitted campaign of patent

destruction to which the Court of Appeals for the Eighth

Circuit has committed itself, and which has engulfed the

petitioner as the latest patentee-victim.

From the judiciary itself we hear that:

‘‘The courtrooms within the province of the Eighth

Circuit Court of Appeals do not afford a congenial

forum to the holder of a United States patent. A

reading of the decided cases clearly reflects this. It

is especially true since 1966 following the Supreme

Court’s expressions in Graham v. John Deere Co.,

383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545, I can find

no record of the Eighth Circuit Court of Appeals

upholding the validity of a patent since Graham. It

did so sparingly before Graham.’’ Woodstream

Corporation v. Herter’s Inc., 312 F. Supp. 369, 370

(D. Minn. 1970).’°

And from the Court of Appeals itself in Agrashell, Inc.

v. Hammons Products Company, 413 F. 2d 89, 93 (8th Cir.

1969) :

‘*We are aware of the suggestion that the Eighth

Circuit has not upheld any patent since the Supreme

Court decided Graham v. John Deere Co.... This

may be so. Whether this fact should be a matter

of concern to the judges of this court is not important

on the appeals before us’’ (emphasis added).

From studies of legal statisticians," it appears that

during the period of 1953-1972, the Court of Appeals for

the Eighth Circuit heard 56 cases adjudicating the issue

of patent validity, with your petitioner’s case being the

57th through 1974.

The percentage of invalidity decisions for this period

in the Court of Appeals for the Eighth Circuit is 90 per

cent with your petitioner’s case. The average percentage

of invalidity of the other courts of appeals as a group

was 59.7 per cent with no other court of appeals as high

as even 80 per cent.

10 Responding to the District Court’s frank statement, the Court

of Appeals for the Eighth Circuit still declined in the Wood-

stream case (446 F. 2d 1143 (8th Cir. 1971)) to make its own

statement of validity, but merely ruled that the defendant had

failed to carry its statutory burden of proving invalidity.

™ Koenig, Patent Invalidity A Statistical and Substantive Anal-

ysis, Clark Boardman Co., Ltd. (N.Y. 1974), Table 14A, 15.

The probability of the Court of Appeals for the Eighth

Cireuit applying the same law, and being inadvertently

in such a variance with all the other courts of appeals,

is less than one chance in 18.

Only one case was found valid and infringed by the

Court of Appeals for the Eighth Circuit in the last 13

years, and that, as a result of faulty evidence of the de-

fendant. (See footnote 10.)

Present recognition of this open hostility also comes

from diverse legal writers in the nation’s bar journals

and law reviews:

‘*For example, the Patent and Trademark Commit-

tee’s Committee Report for 1968-1969 of the Missouri

Bar called the record of the Eighth Circuit Court,

which has ruled on seventeen patents since Deere

and has held all invalid, ‘appalling.’ ’’ *

‘*The Court of Appeals for the Eighth Circuit in

over sixteen cases since these decisions, [Graham v.

Deere, 383 U.S. 39 (1966)] has yet to find a single

patent to be valid. In the face of such precedents,

a trial judge has little recourse but to determine why

the patent before him is invalid’’ (emphasis in orig-

inal; footnote omitted).

‘*Ts it worthwhile to obtain a patent . . . ‘The court-

rooms within the Eighth Circuit Court of Appeals

' Young, ‘‘Obviousness in the Eighth Cireuit,’’ 14 St. Louis

L.J. 672, 673 (1970); also 25 J. Mo. Bar 633 (1969).

Zarley, ‘‘Jury Trials in Patent Litigation,’’ 20 Drake L.R.

243, 243-244 (1970).

do not afford a congenial forum to the holder of a

United States patent.’ ’’ **

‘The Court of Appeals for the Eighth Circuit ...

has ruled on sixteen patents since these Supreme

Court decisions. All sixteen were held invalid... .

‘an especially devastating effect upon the independent

inventor . . . Investment in inventions, in consequence,

is discouraged since the property value thereof is de-

precia 9 99 15

In the case at bar, the Court of Appeals for the Eighth

Cireuit knew that the obviousness test of Graham v. John

Deere Co. of Kansas City, 383 U.S. 1; 86 S. Ct. 684; 15

L. Ed. 2d 545 (1966), was to be used and purported to

apply the test in part to some claims; but it did not apply

the test to claim 13, where it could not find prior art and

where all the evidence was contrary to obviousness.

The Court of Appeals for the Eighth Circuit’s ‘‘appal-

ling’’ attitude towards patents can in no way provide the

impartial atmosphere that is basic to the American judi-

cial system and which has been denied petitioner. This

pre-conceived anti-patent attitude has no place in the Amer-

ican judicial system requiring ‘‘due process of law,’’ and

should be corrected forthwith by this Court.

14 Sease, ‘‘The Inventor’s Dilemma: Whose Fault?’’ 58 ABA JJ.

267, 269 (1972).

15 Gausewitz, ‘‘Brief in Support of Proposed Amendment to

Section 103, Title 35, Patents, U.S. Codc,’’ 51 J. Pat. Office Soe.

290, 292 (1969).

II. Tue Conruictine Stanparp as To ‘‘Osviousness,’’ Pre-

SUMPTION OF VALIDITY AND Due Process ror PaTENTEES

BETWEEN THE Court oF APPEALS FOR THE EicutTu Cir-

CUIT ON THE One Hanp anp Tus Supreme Court anp

THE OrHer Circuir Courts ror AppEaLs, Requires Im-

MEDIATE RESOLUTION.

As above shown, the statistics demonstrate that the

Court of Appeals for the Eighth Circuit is patently out

of line with all other circuits.

In an earlier era, the present Chief Justice recognized

the Court-imposed ‘‘barriers to patents far more stringent

than contemplated either in the first instance by the Con-

stitution or later by Congress,’’ and the Court’s ‘‘inhospi-

table attitude toward patents.’’ C. H. Boehringer Sohn v.

Watson, 256 F. 2d 713, 714 (D.C. Cir. 1958).

The late Mr. Justice Jackson spoke frankly of an earlier

United States Supreme Court’s attitude that:

‘*the only patent that is valid is one which this Court

has not been able to get its hands on.’’ Jungerson v.

Ostby & Barton Co., 335 U.S. 560, 572; 69 S. Ct. 269;

93 L. Ed. 235 (1949).

But in Blonder Tongue Laboratories, Inc. v. University

of Illinois Foundation, 402 U.S. 313, 331, 335; 91 S. Ct.

1434; 28 L. Ed. 2d 788 (1971), this Court seemed again to

have acknowledged the will of Congress:

‘*We fully accept congressional judgment to reward

inventors through the patent system. . . . patentees

are heavily favored as a class of litigants by the

patent statute.’’

It is imperative, in these critical times when national

survival depends upon re-establishing technological pre-

eminence, and when the American people—including law-

yers—need to look to their courts with confidence, that

this Supreme Court promptly and clearly tell the Court

of Appeals for the Eighth Circuit that the above pro-

nouncement in Blonder-Tongue is not mere lip service.

The damage and discouragement done by this kind of

conduct afforded your petitioner is being decried in the

technological and innovative communities.”

To preserve and to deserve confidence in our judicial

system, this Court should promptly intervene.

The Supreme Court’s supervisory authority should be

promptly exercised to insure a judicial attitude in which

patentees are favored as called for in Blonder-Tongue,

supra; to insure that patent litigants in the Eighth Cir-

cuit are provided the benefits of the same tests of obvi-

ousness as in all the other circuits and in accordance with

the Supreme Court’s mandate in Graham v. Deere, supra;

to insure in the Eighth Circuit the fundamental principles

of due process that the courts of other circuits follow in

16‘*'The large number of patents held invalid has an especially

devastating effect upon the independent inventor of small finan-

cial means. Because of the probability that infringement litiga-

tion will result in judgment for the alleged infringer, it encourages

a tendency to ignore the rights of patentees even where the patents

are valid. ... Investment in inventions in consequense is dis-

couraged since the property value thereof is depreciated.’’ PTC

Subcommittee Report No. 1464, 84th Cong. 2nd Sess., 1956; 51

J. Pat. Office Soc. 292 (1969).

Decline in the rate of growth of technological innovation and

rapid dissemination throughout the world of U.S. technology—

Boretsky, ‘‘Trends in U.S. Technology: A Political Economist’s

View,’’ 63 American Scientist 70 (1975).

Shrinking in U.S. technology-intensive products since 1970 to

the extent of negative trade balance for the first time in this

century—Gee, ‘‘Foreign Technology and the United States Econ-

omy,’’ 187 Science 4177 (1975), p. 622.

respecting the evidence adduced at trial; and to avoid a

stigma for the courts of the kind to which the Executive

branch has recently been subjected.

Conclusion.

This Court could be of no better service to America on

the eve of its Bicentennial, than courageously to restore

due process of law to patentees and thus encourage the

innovative community to build America to its former role

as the world leader in invention and technology. A writ

of certiorari should issue to review the judgment of the

United States Court of Appeals for the Eighth Circuit.

Respectfully submitted,

ROBERT H. RINES,

RINES AND RINES,

10 Post Office Square, |

Boston, Massachusetts 02109.

(617) 482-3289

NELSON H. SHAPIRO,

SHAPIRO AND SHAPIRO,

600 New Hampshire

Avenue, N.W.,

Washington, D.C. 20037.

(202) 338-5500

APPENDIX A

WATTERS

PATENT EMBODIMENT

OF P EX. 21A

SMALL SUPPORTING CELL

L. MUCH GREATER THAN a

22 23

Appendix B.

Court of Appeals, Eighth Circuit

Bolt, Beranek and Newman, Inc.

v. McDonnell Douglas Corporation

Nos. 74-1607 and 74-1608

Decided Aug. 15, 1975

Appeal from District Court for Eastern District of Missouri,

Wangelin, J.

Action by Bolt, Beranek and Newman, Inc., against McDonnell

Douglas Corporation for patent infringement. From judgment

for defendant, plaintiff appeals. Affirmed.

Robert H. Rines, Boston, Mass., for appellant.

Frederick M. Woodruff, St. Louis, Mo., for appellee.

Before Jones, Senior Circuit Judge,* and Heaney and Henley,

Cirenit Judges.

Heaney, Circuit Judge.

Plaintiff acoustics consulting firm is assignee of a pat-

ent on a silencing device issued to Bill G. Watters in 1963

[the ‘‘Watters Patent’’], which patent has never been

commercially exploited. It brought this action against

McDonnell Douglas Corporation, alleging that a silencing

device being used in the latter’s DC-10 jet engines infringes

the Watters Patent. The District Court held that the

Watters Patent was invalid for lack of invention, because

* Warren L. Jones, Senior Circuit Judge, Fifth Circuit, sit-

ting by designation. :

it was ‘‘obvious’’ within the meaning of 35 U.S.C. § 103,

and that there was no infringement in any event, because

the devices being used by McDonnell Douglas were not

covered by the Watters Patent. We affirm the District

Court’s holding of invalidity, and express no opinion on

the question of whether McDonnell Douglas’ devices would

be an infringement were the patent valid.

The Watters Patent is described as

* * * sound-absorbing structures * * * for lining ducts

and similar passages for the purpose of absorbing

and silencing the acoustic energy accompanying the

flow of a fluid medium, such as air, through the ducts.

In the form of the patent which is being litigated, a por-

tion of the internal surface of a duct is replaced by a

thin metal or plastic perforated sheet (facing), which is

backed by acoustical cavities formed by a supporting honey-

comb structure which holds the facing away from the wall

of the duct. A cutaway view of the device gives the ap-

pearance of a metal or plastic sandwich.

The plaintiff alleges that structures used by McDonnell

Douglas in its jet engines infringe the following claims

of the patent:

1 Section 103 provides:

A patent may not be obtained though the invention is not

identically disclosed or described as set forth in section 102 of

this title, if the differences between the subject matter sought to

be patented and the prior art are such that the subject matter as

whole would have been obvious at the time the invention was

made to a person having ordinary skill in the art to which said

subject matter pertains. Patentability shall not be negatived by

the manner in which the invention was made.

1. A sound-absorbing panel for lining a portion

only of a duct and the like having, in combination

with the duct, a thin limp relatively flexible porous

sheet having an impedance to acoustic energy that

is appreciably resistive, a plurality of relatively rigid

supporting members defining spaces therebetween and

secured at one end to a surface of the duct and at

the other end to the sheet, said duct having a fluid

passage therethrough adjacent said sheet with a cross-

dimension normal to said sheet, the spaces of the

suporting members being large compared to the pores

of the sheet but small compared to the said cross

dimension, the said spaces being also sufficiently small

to provide support for the relatively flexible sheet in

order substantially to prevent its sagging and flexing.

2. The panel of claim 1, said supporting members

having substantially equal height.

* a o

11. The panel of claim 1, said supporting members

being substantially acoustically opaque.

° . *

13. The panel of claim 1, some of said supporting

members being substantially acoustically opaque and

some substantially acoustically transparent.

16. The panel of claim 1, the portions of said sheet

between successive supporting members having a plu-

rality of said pores and said panel having a cover ex-

tending between said sheet and said duct surface.

17. A sound-absorbing structure having, in combi-

nation, a duct, and a plurality of sound-absorbing

panels spaced apart to define a fluid passage therebe-

tween with a cross-dimension between said panels,

each of said panels comprising a thin limp relatively

flexible porous sheet having an impedance to acoustic

energy that is appreciably resistive, a plurality of

relatively rigid supporting members defining spaces

therebetween and secured at one end to a correspond-

ing surface of the duct and at the other end to the

sheet, the spaces of the supporting members being

large compared to the pores of the sheet but small

compared to said duct passage cross-dimension, said

spaces being also sufficiently small to provide support

for the relatively flexible sheet in order substantially

to prevent its sagging and flexing.

20. The structure of claim 17, said panels being

substantially parallel.

[1] The patent examiner considered ten United States

Patents and seven Foreign Patents as prior art. The Dis-

trict Court found that there were several additional items

of prior art which were not considered by the examiner,

thus weakening the ordinary presumption of patent valid-

idy. See Ralston Purina Co. v. General Foods Corp.,

442 F.2d 389, 390, 170 USPQ 202, 203 (8th Cir. 1971);

American Infra-Red Radiant Co. v. Lambert Industries,

Inc., 360 F.2d 977, 989, 149 USPQ 722, 727-728 (8th Cir.),

cert. denied, 385 U.S. 920, 151 USPQ 757 (1966). Spe-

cifically, it found that claims 1, 2, 11, 16, 17 and 20 were

anticipated by two articles in the September, 1951, issue

of the Journal of the Acoustical Society of America —

one article by Ingard and Pridmore-Brown, and the other

article by Ingard and Bolt. It further found that claims

17 and 20 were anticipated in an article by Ira Dyer in

the May 19, 1956, issue of Noise Control, that claim 1

was anticipated by Goldstein Patent ’857,? and that claim

13 was anticipated by Kjaer Patent ‘685. After com-

paring the prior art to the patent in suit, the District

Court found that the Watters Patent comprised ‘‘only

an amalgam of known elements,’’ and that ‘‘the combina-

tion of old elements is obvious to the hypothetical per-

son skilled in the art.’’ \

The standard for our review of the District Court’s

finding of obviousness was set forth by the Supreme Court

in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ

459, 467 (1966) :

While the ultimate question of patent validity is

one of law, * * * the § 103 condition, which is but one

of three conditions, each of which must be satisfied,

lends itself to several basic factual inquiries. Under

§ 103, the scope and content of the prior art are to

be determined; differences between the prior art and

2 The plaintiff urges that the patent examiner did consider the

Goldstein Pa‘ nt as prior art. We are satisfied that the record

supports the District Court’s contrary conclusion. Until the very

end of the patent proceeding, the examiner repeatedly rejected

Watters’ application on the basis of Goldstein, and Watters re-

peatedly urged that Goldstein’s application, filed on March 6,

1956, was not relevant as prior art because Watters had filed an

affidavit swearing that he had completed his own invention and

successfully tested it prior to March 6, 1956. The record at trial,

including the plaintiff’s answers to interrogatories supports the

conclusions that the affidavit was false and that Watters did not

conceive of his device until after March 6, 1956. Although the

record is ambiguous on the patent examiner’s reason for ultimately

allowing the patent, despite Goldstein, it supports the District

Court’s conclusion that the examiner relied on the false affidavit.

the claims at issue are to be ascertained; and the

level of ordinary skill in the pertinent art* resolved.

Against this background, the obviousness or nonob-

viousness of the subject matter is determined. * * *

[2] Applying this standard to the record before us,

we find no clear error in the District Court’s factual find-

ings as to the scope of the prior art* and the comparison

of that art with the Watters Patent. We are satisfied

that the court’s legal conclusion of obviousness was proper

in light of those findings. Indeed, we find support for the

conclusion of invalidity, not only in the items of prior

art enumerated by the court, but also in various other

publications and patents which were introduced at trial.

3The uncontradicted testimony by one of defendant’s experts,

brought out in cross-examination, was that

* * * (i]n this particular art it has been demonstrated at the

trial that the level of skill is quite a high level. It is a level

of persons who have degrees and occasionally graduate de-

grees in engineering and usually related to this type of en-

gineering. * * *

Although the District Court made no explicit finding as to the

level of ordinary skill in the pertinent art, the plaintiff does not

deny that the level of ordinary skill is quite high.

4 The plaintiff asserts that the only relevant prior art concern-

ing the silencing of noise in ducts involved acoustically trans-

parent heavy-gauge facings holding a cushion filling such as fibre

glass, rock-wool or packed felt. As will be seen, however, the

prior art dealing with the silencing of noise in rooms had not

been limited to such techniques for at least thirty years. Several

witnesses testified that fibre blankets or cushions could not be

used in high velocity ducts because there would be ‘‘fuzz’’ all

over the place. This was such an obvious fact that any person

of ordinary skill in the art would look to the non-fibrous tech-

niques which were being used in rooms. Accordingly, we are

satisfied that the patent examiner and the District Court properly

concluded that the prior art directed to sound-absorption in rooms

was within the scope of the relevant art.

The obviousness of the Watters Patent can perhaps be

best demonstrated by discussing the various techniques

which Watters combined to create his device.

First, the technique of using a perforated facing with

an air cavity behind it, thus forming a ‘‘ Helmholtz resona-

tor,’’ was well known in the prior art of acoustical si-

lencing devices. Examples of its use are abundant, and

include: Trader Patent ‘180, issued in 1925; 1949 article in

a French journal by Jacques Brillouin; the 1951 Ingard

and Bolt article; the 1951 Ingard and Pridmore-Brown

article; Kjaer Patent ’685, issued in 1952; lectures given

by Ingard and Bolt at General Electric in 1955; Watters

and Baruch Patent 151, filed in 1955; Goldstein Patent ’857,

filed in 1956; and Baruch Patent ’675, issued in 1956.

Second, the technique of rendering a thin perforated

facing acoustically resistive by combining it with a non-

perforated membrane such as ‘‘tea-bag’’ paper, and the

technique of forming an air cavity Helmholtz resonator

behind such a facing were known in the prior art. The

Kjaer Patent taught the use of a facing combined of per-

forated and nonperforated elements, and both the Bril-

louin and the Ingard and Bolt articles suggested that

such a facing could be constructed. In declaring that his

preferred embodiment would use such a combined facing,

Watters’ original application openly stated that he was

taking that construction from the previously filed appli-

cation for Baruch Patent ‘675. The Baruch application

had disclosed a fa ng comprised of two thin perforated

plastic sheets sandwiching a layer of nonperforated tea-

bag paper or cellulose film. Watters’ application sug-

gested that this facing be used, stating that it was the

addition of the tea-bag paper or cellulose film which ren-

dered the facing acoustically resistive.

Third, the technique of rendering a thin facing acousti-

cally resistive without use of a nonperforated membrane,

by selecting proper dimensions of thickness, porosity and

pore size, was known in prior art. That is to say, it was

already known that a thin perforated facing could itself

be acoustically resistive if properly constructed.’ Although,

as stated above, Watters’ preferred embodiment would

involve the combined facing disclosed by Baruch ‘675,

Watters declared that, as an alternative, one could use a

single perforated sheet which was acoustically resistive.

The application instructed the reader that, if this alterna-

tive were to be chosen, the reader could copy the technique

which was disclosed in the previously filed application for

Watters and Baruch Patent ’151. The Goldstein Patent

also had disclosed this technique. Both the Goldstein Pat-

ent and Patent ’151 showed the use of such a facing in

front of air cavities which amounted to Helmholtz re-

sonators.

[3] Fourth, the technique of partitioning behind a facing

to set up a series of Helmholtz resonators was well-known

in the prior art, and the literature made it clear that the

use of such partitions made the device far superior where

5 At trial, plaintiff endeavored to show that the true break-

through in the Watters Patent was the discovery that, in a high

velocity environment, a facing which would be acoustically trans-

parent in still air suddenly became acoustically resistive. A\l-

though the record shows that defendant’s engineers expressed

surprise at this phenomenon, it contradicts the plaintiff’s asser-

tion that Watters had discovered the phenomenon. Watters did

not claim or even intimate before the Patent Office that moving

air or the velocity thereof had any effect in determining the proper

hole size necessary to render the facing acoustically resistive.

Instead, he used the identical formula for determining hole size

as had been disclosed in Watters and Baruch Patent ’151 for

ceiling devices. Moreover, the text of Watters and Baruch Patent

‘151 warns the reader that

the angle of incidence of the sound was not ‘‘normal’’

(i.e., perpendicular to the facing) and where high fre-

quencies were involved. The technique was taught in the

Kjaer and Goldstein patents, and had been discussed at

great length in the Brillouin, Ingard and Bolt, and Ingard

and Pridmore-Brown articles, as well as in the General

E}sctrie lectures. It has already been seen that Watters

was taking facings which had previously been used to

form Helmholtz resonators in ceilings and was simply

placing those facings in a duct environment. In light of

the fact that the incidence of sound traveling through a

duct is primarily not perdendicular to the facing, it would

have been extraordinary for him to have ignored the re-

peatedly published statements and mathemathical formulae

demonstrating that partitions behind the facing would

make the resonator vastly superior. Watters’ decision to

place partitions behind already known facings was, with-

out question, an obvious one.®

* * * If the openings are of the size ordinarily used in other

types of sound-absorbing ceilings * * * such as openings on

the order of 1/16 of an inch in diameter, more or less, rela-

tively closely spaced from, one another, then the resistance

presented to the incident sound energy in the audible fre-

quency range is too low to be effective to dissipate sound

energy through the action of the perforations alone. * * *

Had defendant’s engineers consulted the Watters Patent and fol-

lowed through on its reference to Watters and Baruch Patent 7151,

therefore, they would have been led away from, rather than

toward, their discovery that holes 1/16 of an inch or larger be-

came suddenly acoustically resistive in high velocity wind settings.

* As the District Court properly pointed out, the Watters ‘‘sup-

porting members’’ are not limited to honeycomb forms, but would

encompass laterally spaced apart planar walls. Such planar walls

were one obvious way to accomplish the partitioning which was

known in prior art, and, indeed, were used in the Kjaer Patent.

Even assuming, however, that the Watters Patent claimed the

Fifth, the technique of locating the partitions so that

the distance between partitions is smaller than the cross-

dimension of the duct, yet larger than the cross-dimension

of the pores in the facing, was in the prior art. The Kjaer

and Goldstein patents disclose devices which have just

such relationships between the stated dimensions. Fur-

thermore, the Brillouin and Ingard and Pridmore-Brown

articles discussed the proper sizing of the series resona-

tors at great length and disclosed much of the mathemat-

ical theory underlying the selection of proper sizing.’

From the foregoing, it is readily apparent that claims

1, 2, 11 and 16 of the Watters Patent were, as the Dis-

trict Court held, ‘‘only an amalgam of known elements.’’

Moreover, the Goldstein Patent had combined all of the

elements in virtually the same manner as set forth in those

claims. We agree with the court’s conclusion that it would

have been obvious for a person of ordinary skill in the

art to attempt to place Watters’ minor variation of Gold-

stein’s device in a duct.

Three claims remain to be disposed of. Claim 17 is a

restatement of claim 1, with the provision that there

honeycomb structure as such, that structure was equally obvious

and known in the prior art. The Goldstein Patent clearly dis-

closes such a supporting structure, and the English translation

of the Brillouin article, which was received into evidence with-

out objection, uses the word ‘‘honeycomb’’ to describe a possible

means of partitioning.

7In the origina! application, Watters in effect conceded that

the first four techniques discussed above were in the prior art

and had been used in combination. He declared, however, that

two problems remained: the flexing of the facing and the per-

sistence of high frequency resonance. He then stated: ‘‘These

problems underlying the present invention have been completely

overcome with a particular critical kind of dimensioning of the

spaces between supporting members * * *.’’ (Emphasis supplied. )

The supposedly ‘‘critical dimensions’’ had been used by both

Kjaer and Goldstein.

should be more than one of such panels placed in the duct,

and claim 20 states that the panels should be parallel.

The court properly concluded that the technique of lining

more than one surface in a duct or room is an obvious

one, and that the technique of erecting the panels in par-

allel formation is also obvious. Dr. Bolt testified by de-

position that he had seen ducts where all four walls were

lined, and the Dyer article disclosed ducts lined on four

sides and on opposite, parallel walls.

Finally, claim 13 states that some of the supporting

members can be substantially acoustically opaque and some

substantially acoustically transparent. The patent indi-

cates that this may be done by perforating some of the

partitions, and that the purpose of such perforation is

to ‘‘tune’’ the device so that it is capable of absorbing a

broader band of frequencies. We are satisfied that, al-

though this technique was not specifically taught or dis-

closed in any of the publications before the court, the

method was one which would be obvious to a person of or-

dinary skill in the art. It was well known that, in order

to deal with a broad band of frequencies, the honeycomb-

ing or other partitioning could be constructed so that differ-

ent sized chambers in the supporting mechanism resulted.

The Brillouin, Ingard and Bolt, and Ingard and Pridmore-

Brown articles discussed this concept of ‘‘tuning.’’ Given

the honeycombing structure which was already known to

the art, there would be two obvious alternative ways to

enlarge some, but not all, of the air cavities or series re-

sonators: to move some of the partitions so that different

sized chambers were constructed from the outset, or to

connect some of the chambers by means of slits or perfora-

tions. The Watters Patent application implicitly recog-

nized the obviousness of the latter approach:

If it is desired to introduce particular frequency re-

sonance phenomena, of course, the acoustically opague

[sic] supporting members * * * may, in some areas,

be rendered substantially transparent. * * * (Empha-

sis supplied.)

In sum, we affirm the District Court’s conclusion that

none of the allegedly infringed claims met the statutory

requirement of non-obviousness. The oft-quoted statement

of Justice Clark in Graham v. John Deere Co., supra at

19, 148 USPQ at 467, is once more to the point:

* * * We have been urged to find in § 103 a relaxed

standard, supposedly a congressional reaction to the

increased standard’’ applied by this Court in its de-

cisions over the last 20 or 30 years. The standard

has remained invariable in this Court. Technology,

however, has advanced — and with remarkable rapid-

ity in the last 50 years. Moreover, the ambit of ap-

plicable art in given fields of science has widened by

disciplines unheard of a half century ago. It is but

an even-handed application to require ‘iat those per-

sons granted the benefit of a patent monopoly be

charged with an awareness of these changed condi-

tions. * * * He who seeks to build a better mouse-

trap today has a long path to tread before reaching

the Patent Office.

[4] Since we affirm the court’s finding of invalidity of

the Watters Patent, we need not rule on the question of

whether or not the defendant’s structures are such that

they would have infringed on that patent, had it been valid,

and we express no opinion on that issue.

[5] The defendant cross-appeals from the District

Court’s denial * of an award of attorney fees before that

court under 35 U.S.C. § 285. The determination of whether

or not an action is an ‘‘exceptional case’’ within the mean-

ing of § 285 is a matter for the sound discretion of the

trial court. See Technograph Printed Circuits, Ltd. v.

Methode Electronics, Inc., 494 F.2d 905, 909, 179 USPQ.

206, 209 (7th Cir. 1973) ; Q-Panel Co. v. Newfield, 482 F.2d

210, 211, 178 USPQ 521, 522 (10th Cir. 1973). The de-

fendant urges that that discretion was abused because the

trial court made no ruling on the issue of fraud. Mere

failure to rule on that issue, standing alone, however, is

not objectionable for

* * * [t]he trial court need not make specific findings

on all facts and evidentiary matters brought before

it, but need find only the ultimate facts necessary to

reach a decision in the case. * * * United States v.

F. D. Rich Co., Inc., 489 F.2d 895, 899 (8th Cir. 1971).

The trial court had sustained the defense of obviousness,

and the alleged fraud was simply an alternative defense.

As was the case in Indiana General Corp. v. Krystinel

Corp., 421 F.2d 1023, 1033-1034, 164 USPQ 321, 329-330

(2nd Cir.), cert. denied, 398 U.S. 928, 165 USPQ 609 (1970),

we cannot say that the court abused its discretion in

withholding a ruling on the fraud issue and in denying

attorney fees.

The judgment of the District Court is affirmed.

8 We find no merit to the defendant’s implication that the

trial court made no ruling on its request for attorney fees. The

request was made and was not granted, despite the court’s award

of costs. Under the circumstances, the denial of the award was

clear.

eee

APPENDIX C.

UNITED STATES DISTRICT COURT

for the

EASTERN DISTRICT OF MISSOURI

ORDER

(Filed in U. S. District Court June 18, 1974)

In accy dance with the Memorandum of the Court filed this

date in this action and incorporated herein,

It Is Hereby Ordered, Adjudged and Decreed that the plain-

tiff take nothing from the defendant; and

It Is Further Ordered that the plaintiff pay costs.

Dated this 18th day of June, 1974.

/s/ H. KENNETH WANGELIN

United States District Judge

MEMORANDUM

(Filed in U. S. District Court June 18, 1974)

This matter was tried to the Court without a jury and the

Court has been duly advised by testimony, documentary evi-

= -

dence and briefs of all the parties and makes the following

findings of fact and conclusions of law:

This is an action for infringement of a patent brought pur-

suant to the Patent Act, Title 35, United States Code. This

Court has jurisdiction under 28 U.S.C., Sections 1338 and

2201. Venue is proper under 28 U.S.C., Section 1400(b).

Plaintiff is a Massachusetts corporation having its principal

place of business at Cambridge, Massachusetts. Plaintiff is the

assignee of United States Patent 3,113,634, granted on De-

cember 10, 1963, the patent allegedly infringed in this suit.

The defendant is a Maryland corporation with its principal

place vi business at St. Louis, Missouri.

Patent 3,113,634 (herein known as the Watters Patent) is

described as a sound-absorbing panel for lining a duct and

similar passages for the purpose of absorbing and silencing the

acoustic energy accompanying the flow of a fluid medium, such

as air, through the ducts. The Watters Patent claims are:

What is claimed is:

1. A sound-absorbing panel for lining a portion only

of a duct and the like having, in combination with the

duct, a thin limp relatively flexible porous sheet having

an impedance to acoustic energy that is appreciably re-

sistive, a plurality of relatively rigid supporting members

defining spaces therebetween and secured at one end to

a surface of the duct and at the other end to the sheet,

said duct having a fluid passage therethrough adjacent

said sheet with a cross-dimension normal to said sheet,

the spaces of the supporting members being large com-

pared to the pores of the sheet but small compared to the

said cross dimension, the said spaces being also sufficiently

small to provide support for the relatively flexible sheet

in order substantially to prevent its sagging and flexing.

. ais

2 ee

2. The panel of claim 1, said supporting members hav-

ing substantially equa! height.

3. The panel of claim 1 the said sheet being substan-

tially U-shaped and said supporting members having suc-

cessively increasing and then successively decreasing

height, whereby said pancl is substantially U-shaped.

4. A sound-absorbing panel as claimed in claim 3

and in which the supporting members in the region of

the crest of the U-shape thereof are of substantially uni-

form height to provide a substantially flat neck region.

5. A sound-absorbing panel as claimed in claim 3 and

in which the sheet is interrupted in the region of the crest

of the U-shape thereof to expose the panel to acoustic

energy directly and not through the resistive sheet.

6. A sound-absorbing panel as claimed in claim 3 and

in which the exposed crest region of the U-shape thereof

is bounded by acoustically opaque baffles.

7. A sound-absorbing panel as claimed in claim 3 and

in which the maximum height of the U-shaped panel is

tuned to the intermediate frequencies of the band of

sound frequencies to be transmitted along the duct.

8. The panel of claim 1 said sheet comprising a thin

carrier member having the pores of said sheet laminated

with at least one flexible acoustically resistive layer which

renders said sheet acoustically resistive.

9. The panel of claim 1 said sheet comprising a thin

member of thickness d expressed in thousandths of an

inch, having a number n of pores per square inch and a

port half-cross-dimension r expressed in thousandths of

an inch, related substantially by the expression

4 logio4 = K—log, n/d

— 53 —

where K is a constant lying within the range of from sub-

stantially 2.39 to substantially 4.39.

10. A sound-absorbing panel as claimed in claim 9

and in which the cross dimension of the said pores lies

within the range of from substantially 2 to substantially

40 thousandths of an inch.

11. The panel of claim 1 said supporting members

being substantially acoustically opaque.

12. The panel of claim 1 said supporting members

being substantially acoustically transparent.

13. The panel of claim 1 some of said supporting mem-

bers being substantially acoustically opaque and some sub-

stantially acoustically transparent.

14. The panel of claim | said sheet being secured to

said supporting members to permit resonant vibration of

the sheet portions between successive supporting mem-

bers.

15. The panel of claim | said supporting members and

the spaces therebetween being shaped to define a cellular

supporting structure.

16. The panel of claim 1 the portions of said sheet

between supporting members having a plurality of said

pores and said panel having a cover extending between

said sheet and said duct surface.

17. A sound-absorbing structure having, in combina-

tion, a duct, and a plurality of sound-absorbing panels

spaced apart to define a fluid passage therebetween with

a cross-dimension between said panels, each of said pancls

comprising a thin limp relatively flexible porous sheet

having an impedance to acoustic energy that is appre-

ciably resistive, a plurality of relatively rigid supporting

members defining spaces therebetween and secured at one

end to a corresponding surface of the duct and at the

— wa

other end to the sheet, the spaces of the supporting mem-

bers being large compared to the pores of the sheet but

small compared to said duct passage cross-dimension, said

spaces being also sufficiently small to provide support for

the relatively flexible sheet in order substantially to pre-

vent its sagging and flexing.

18. The structure of claim 17 said panels having suc-

cessi' e U-shaped portions with the crests and troughs of

one panel alternating with the crests and troughs of the

other panel, the longitudinal spacing between the crests

of one panel and the adjacent crests of the other panel

being a multiple of the half wavelength of the intermediate

frequencies of the band of sound frequencies to be trans-

mitted along the duct.

19. The structure of claim 18 the maximum height of

the panels being tuned to said intermediate sound fre-

quencies.

20. The structure of claim 17 said panels being sub-

stantially parallel.

The defendant is accused of infringing claims 1, 2, 11, 13,

16, 17 and 20 of the Watters patent by the placement of sound

attenuating panels in the surfaces of the nacelle air inlet, the

surfaces of the by-pass and in certain surfaces of the hot section

near the exhaust of its DC-10 Commercial Aircraft. Such

panels generally consist of a perforated face sheet supported

by a honeycomb or cellular core and the core is backed up

by an imperforate back plate.

Validity of the Patent

The federal patent power is predicated upon the specific

constitutional provision which authorizes the Congress “To pro-

mote the Progress of . . . useful Arts, by securing, for limited

— _

Times to . . . Inventors the Exclusive Right to their .

Discoveries.” Art. I, Section 8, Clause 8. Circumscribed by

the Constitution, Congress may set out conditions and tests

for patentability. McClurg v. Kingsland, 1 How. 202, 206,

11 L.Ed. 102 (1843). The Commissioner of Patents and the

courts are charged with the duty in the administration of the

patent system to: give effect to the constitutional standard by

appropriate application, in each case, of the statutory scheme

of the Congress. Graham v. John Deere Co., 383 U.S. 1, 86

S.Ct. 684, 15 L.Ed.2d 545 (1965).

‘Pursuant to the Constitutional grant of power and in light

of the Hotchkiss v. Greenwood, 11 How. 248, 13 L.Ed. 683

(1951), formulation of patentability,’ the Congress in the 1952

Patent Act described the three conditions of patentability;

utility,? novelty," and nonobviousness. In the case at bar there

have been but nominal challenges as to the conditions of utility

and novelty and this Court need not consider them. The epi-

center of the validity issue relates to Section 103, which pro-

vides:

' “(UJnless more ingenuity and skill . . . were required .. .

than were possessed by an ordinary mechanic acquainted with the

business, there was an absence of that degree of skill and ingenuity

which constitute essential elements of e invention. In other

words, the improvement is the work of the skilful mechanic, not that

of the inventor.” Hotchkiss v. Greenwood, supra at 267.

2 $101. Inventions patentable. Whoever invents or discovers any

new and useful process, machine, manufacture, or composition of

matter, or any new and useful improvement thereof, may obtain

a patent therefor, subject to the conditions and requirements of this

title.

* § 102. Conditions for patentability; novelty and loss of right to

patent. A person shall be entitled to a patent unless—

(a) the invention was known or used by others in this country,

or patented or described in a printed publication in this or a

foreign country, before the invention thereof by the applicant

for patent, or

(b) the invention was patented or described in a printed pub-

lication in this or a foreign country or in public use or on sale

= =

35 US.C. § 103. Conditions for patentability; non-

obvious subject matter.

A patent may not be obtained though the invention is

not identically disclosed or described as set forth in section

102 of this title, if the differences between the subject mat-

ter sought to be patented and the prior art are such that

the subject matter as a whole would have been obvious at

the time the invention was made to a person having ordi-

nary skill in the art to which said subject matter pertains.

Patentability shall not be negatived by the manner in which

the invention was made.

The proper mode of application of section 103 was described

by the Supreme Court in Graham v. John Deere Co., supra,

wherein it was said:

Under § 103, the scope and content of the prior art are

to be determined; differences between the prior art and the

in this country, more than one year prior to the date of the

application for patent in the United States, or

(d) the invention was first patented or caused to be patented

by the applicant or his legal representatives or assigns in a

foreign country prior to the date of the application for patent

in this country on an application filed more than twelve months

before the filing of the application of the United States, or

(e) the invention was described in a patent granted on an ap-

plication for patent by another filed in the United States before

the invention thereof by the applicant for patent, or

(f) he did not himself invent the subject matter sought to be

patented, or

(g) before the applicant’s invention thereof the invention was

made in this country by another who had not abandoned, sup-

pressed, or concealed it. In determining priority of invention

there shall be considered not only the respective dates of con-

ception and reduction to practice of the invention, but also the

reasonable diligence of one who was first to conceive and last to

— to practice, from a time prior to conception by the

other.

claims at issue are to be ascertained; and the level of ordi-

nary skill in the pertinent art resolved. At 17.

In considering the obviousness vel non of the patent in suit

this Court shall first examine the scope and content of the prior

art, then compare and contrast the prior art and the patent in

suit, particularly in regard to the claims alleged to be infringed,

and finally consider the level of ordinary skill in the pertinent

art.

The Examiner considered ten United States Patents and seven

Foreign Patents as prior art. However, the defendant has dem-

onstrated to this Court that several other publications and pat-

ents should also have been considered as pertinent prior art.

This Court recognizes the modern trend toward widening the

scope of prior art which can be considered pertinent. Mandel

Brother, Inc., v. Wallace, 335 U.S. 291 (1948); Gerner v. Moog

Industries, Inc., 383 F.2d 56 (8th Cir., 1967); Skee-Trainer,

Inc. v. Garelick Mfg. Co., 361 F.2d 895 (8th Cir., 1966), and

holds that the after discussed patents and publications are rele-

vant to the patent in suit. .

Perhaps the most salient of the unconsidered prior art cited

to the Court by the defendant is the article by Ingard and Prid-

more-Brown entitled “The Effect of Partitions in the Absorptive

Lining of Sound-Attenuating Ducts,” published September,

1951, in THE JOURNAL OF THE ACOUSTICAL SOCIETY OF AMER-

Ica. This article on page 589 and depicted by Fig. | discloses a

rectangular duct which is divided lengthwise by a thin per-

forated facing covered with a resistive cloth. Said facing is

supported on one wall of the duct by partitions which are placed

crosswise at regular intervals down the length of the duct. The

distance between the partitions was varied in steps from 10 cm

to infinity. Such structure when applied to the patent in suit

anticipates claims 1, 2, 11, 16, 17 and 20.

4 It should be noted that this same structure was included in a

General Electric acoustic lecture course given by Drs. Ingard and

Bolt of Bolt, Beranek and Newman on or about January 27, 1955.

A comparative analysis of the items of claim 1 and the struc-

ture of the Ingard and Pridmore-Brown article demonstrates

the following anticipation:

1. “A sound absorbing panel for lining a portion only of a

duct and the like . . .” Fig. 1 clearly shows a panel applied

to a portion of the duct wall.

2. “. . . having in combination with the duct . . .” Fig. 1

clearly shows the structure in combination with a duct.

3. “. .. a thin limp relatively flexible porous sheet having an

impedance to acoustic energy that is appreciably resistive . . .”

The structure and its description indicates the employment of a

0.4 cm thin perforated facing covered with a low resistance

cloth. Moreover, it is obvious that the cloth is acoustically re-

Sistive.

4. “...a plurality of relatively rigid supporting members de-

fining spaces there between and secured at one end to a suriace

of the duct and at the other end to the sheet . . .” According to

the plaintiff's answers to Interrogatories Nos. 100 and 101 the

Watters’ “supporting members” are not limited to honeycomb

forms but would encompass laterally spaced apart planar walls

as shown in Fig. 1. As to the method by which the supporting

members are secured to the duct and the facing such is deemed

de minimis. Watters indicates in his patent at Col. 2., lines 37

et seq. that the thin porous sheet is affixed to the supporting

members “by cementing or otherwise securing.” The phrase

“otherwise securing” is sufficiently broad to include any appro-

priate method used by a man skilled in the art.

5. “. . . said duct having a fluid passage therethrough adja-

cent said sheet with a cross-dimension normal to said sheet . . .”

The structure depicted by Fig. 1 shows a fluid passage with

such a cross-dimension.

— 9 —

6. “. . . the spaces of the supporting members being large

compared to the pores of the sheet . . .” The description of

Fig. 1 teaches that the perforation are 0.4 cm in diameter

while the spaces as defined by the supporting members ranged

from 10 cm to infinity. Such comparative dimensions meet

the size limitation of the claim.

7. “. .. but small compared to the said cross-dimension . . .”

The description of Fig. 1 provides that the cross-dimension of

the passage is 14.5 cm and the spaces between the supporting

members can be 10 cm. Accordingly, the above Watters’ limi-

tation is met.

8. “. . . the said spaces being also sufficiently small to pro-

vide support for the relatively flexible sheet in order substanti-

ally to prevent its sagging and flexing.” As the language de-

scriptive of Fig. 1 allows for 10 cm spacing of the supporting

members, such is sufficiently small to be in accord with this

limitation. | 3

Claim 2, which provides that the supporting members have

substantially equal height, is dependent on claim 1. From the

description of Fig. 1 and its depiction in the Ingard and Prid-

more-Brown articles it is apparent that the supporting members

are of substantially equal height. Claim 11.. which provides

that said supporting members are substantially acoustically

opaque, is also dependent upon claim 1. From the foregoing

article it is evident that said supporting members are substan-

tially acoustically opaque. Claim 16., which is also dependant

upon claim 1, provides that the portions of said sheet between

successive supporting members have a plurality of said pores

and that the sound-absorbing panel has a cover extending be-

tween said sheet and said duct surface. Again, from the afore-

mentioned publication these limitations are met.

Claim 17 and 20 are not distinct from claims 1, 2 and 11

and their subject matters are obvious from the teachings of

es te tn wk

—_—

the Ingard and Pridmore-Brown publication to those persons

skilled in the art.

In further connection with claim 17 an article entitled “Noise

Attenuation of Dissipative Mufflers” authored by Ira Dyer and

published in the May 19, 1956 issue of Noise CONTROL is per-

tinent. The import of claim 17 is the limitation of a plurality

of sound-absorbing panels spaced apart. The foregoing Dyer

article shows spaced apart sound absorbing panels lining the

opposite walls of a duct at Figures 2 and 3 on page 50. Fig. 4

on page 51 also shows a duct lined on four sides. Additional

corroboration for prior art anticipating claim 17 can be found

in the deposition of Dr. Bolt of defendant corporation at page

287, wherein he stated that he had seen ducts having four walls

lined with sound absorbing panels as of 1958, the year the

patent in suit was filed with the Patent Office.

With regard to claim 20, which is dependent upon claim 17,

the Dyer article discloses in Figures 2, 3 and 4 the limitation

in claim 20 of the panels being substantially parallel.

Additional anticipation by prior art of the Watters’ claims

can be found in an article entitled “Absorption Characteristics

of Acoustic Material with Perforated Facings” by U. Ingard

and R. H. Bolt of defendant Bolt, Beranek and Newman pub-

lished in the September, 1951 issue of THE JOURNAL OF THE

ACOUSTICAL SocrETy OF AMERICA. Fig. | of the article shows

a layer of porous material placed parallel to a hard wall and

Separated from the wall by an air cavity. Such air cavity be-

tween the porous material and the wall may or may not be

divided into cells by parallel spaced partitions. The article also

describes the use of a perforated plate with the porous material.

The authors further state at page 535 the case where the re-

Sistive porous layer is very thin, actually a cloth or a screen,

covered with a perforated facing.« From the aforementioned

_ 5° Though the above structure does not include the duct limita-

tion in claim 1. of the Watters’ patent, such is mot essential for the

== 6] 1.

article it is clear that claims 1, 2, 11, 16, 17 and 20 of Wat-

ters are either completely anticipated or are obvious to persons

skilled in the art.

Claim 1 of Watters teaches that the face sheet is “a thin limp

relatively flexible porous sheet having an impedence to acous-

tic energy that is appreciably resistive . . .” The specification

further describes it as “a thin, non-self-supporting relatively flex-

ible porous sheet” comprised of “a perforated, relatively thin,

preferably plastic layer carrier member . . . laminated with

either or both of outer and inner extremely flexible porous

acoustically-resistive materials, such a ‘tea-bag’ paper, porous

cellulose film, and the like.” Such sheet is either specifically

anticipated or is made obvious by the teachings of the Gold-

stein Patent No. 2,870,857, filed on March 6, 1956. The com-

parable face sheet in Goldstein is comprised of two sheets: the

outer or facing sheet made of vinyl chloride acetate plastic

and the inside sheet of tissue or foil. Said sheets are joined to-

gether by a suitable adhesive cement, or by heat-sealing or

welding."

Watters’ claim 13, dependent upon claim 1, provides the

limitation that some of the cellular supporting members are

substantially acoustically opaque and some are substantially

acoustically transparent. The specifications of Watters indicate

that the method of rendering the supporting structures acous-

tically transparent is to perforate them (Col. 5, lines 50 et seq.).

If said claim has not been made obvious by the aforementioned

prior art, it clearly is anticipated by the Kjaer Patent 2,619,685,

filed on June 11, 1946. Therein, it also provides for perfo-

anticipation of said claim. The record is replete with evidence

where the duct is equated to a chamber or a room. Moreover,

claim |. speaks of “a duct and the like .. .”

® There are differences in thickness in the sheets of the two pat-

ents, however, this Court does not consider such to be of particular

significance when viewed with respect to persons skilled in.the art.

tee teen

—=— _

rations in similar supporting members of a sound absorbing

mechanism.

In following that the aforementioned prior art is relevant,

then thought must be given to the fact that such prior art was

not considered by the Patent Office during the prosecution of

the patent in suit. Though a patent is presumed valid, Graham

v. Jeoffroy Mfg., 206 F.2d 769 (Sth Cir., 1953), such pre-

sumption is weakened, if not completely destroyed by proof of

prior non-considered art. Ralston Purina Co. v. Gen. Food

Corp., 442 F.2d 389 (8th Cir., 1971); American Infra-Red

Radiant Co. v. Gen. Food Corp., 360 F.2d 977 (8th Cir.,

1966), cert. den. 385 U.S. 920 (1966). Therefore, as the non-

considered art is relevant, the initial presumption of validity is

at least diminished and at most negated.

Juxtapositioning the prior art, both considered and non-con-

sidered, with the patent in suit, this Court can find only an

amalgam of known elements. Though it cannot be disputed that

plaintiff's aggregation results in a utilitarian product, such com-

bination is nothing new, surprising or novel, nor is a new func-

tion created or a useful addition of knowledge taught to the

prior art. Kell-Dot Industries, Inc. v. Braves, 361 F.2d 25, 28

(8th Cir., 1966). The Supreme Court in Lincoln Engineering

Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545 (1938),

teaches us:

The mere aggregation of a number of old parts or ele-

ments which, in the aggregation, perform or produce no

new or different function or operation that theretofore per-

formed or produced by them, is not patentable invention.

At 549.

Before the Court reaches the final issue of obviousness, the

penultimate question of knowledge of one ordinarily skilled in

that art must be considered. The proper viewpoint of such

knowledge as expressed by the Eighth Circuit Court of Appeals

— wa

is that “[k]nowledge of a hypothetical person skilled in the art,

who has thought about the subject matter of the patented in-

vention of that art.” Flour City Architectural Met. v. Alpana

Alum. Prod., Inc.,. 454 F.2d 98, 107 (8th Cir., 1972). This

Court finds that such hypothetical person would be able to

design the patent in suit.

Accordingly, this Court finds that the Watters patent when

considered with the prior art and particularly such art not

cited by the Patent Office is invalid because the combination

of old elements is obvious to the hypothetical person skilled in

the art.

Infringement

Even if the Watters patent were valid, the accused devices

of the defendant do not infringe. Since the Watters patent is

a combination of old elements, each of the elements must be

included to constitute infringement. Gallo y. Norris Dispensers,

Inc., 315 F.Supp. 38, 40 (E.D. Mo., 1970); Morpul, Inc. v.

Glen Raven Knitting Mill, Inc., 357 F.2d 732 (4th Cir., 1966).

Aside from the blatant difference in capabilities as the accused

devices must operate under extremes of heat, sound velocity

and sound pressure,’ claim | of Watters calls for a “thin limp

relatively flexible porous sheet.” None of the accused mecha- -

nisms have such a “limp” sheet. Rather, the counterpart in the

defendant’s mechanisms to the plaintiff's limp sheet is formed

by a heat treatment over a die, with a pulling strength exerted

* Inside the engine nacelle the temperature at take-off is 1,000°f.

the sound velocity ranger from 1,000 to 10,000 vibrations per second

(Hertz) and the sound pressure level varies from approximately

130db. to 170db. Whereas, the Watters patent is primarily designed

to be used where the temperatures, sound velocity and pressure are

considerably more mode: ate

ti nas sm cencenclll

—

on it of 20 to 25 tons. This, by no delimitation upon imagina-

tion, is not limp.*

/s/ H. KENNETH WANGELIN

United States District Judge

Dated this 18th day of June, 1974.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.