Petition — Globe Linings, Inc. v. City of Corvallis

Supreme Court brief1977

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Text

Supreme Court, U.

FILED

OCT 13 1977

MICHAEL RODAK, JR., CLERK

In The

Supreme Court of the

United States

October Term, 1978

N. 37-554

GLOBE LININGS, INC., HOWARD D. WEBB

and ARTHUR M. LOCKHART,

CITY OF CORVALLIS,

Petitioners,

Respondent-Defendant and

Third-Party Plaintiff-Appellee,

S & T CONSTRUCTION COMPANY, INC.,

Respondent-Third-Party Defendant and

Fourth-Party Plaintiff-Appellee,

Uv.

FIRESTONE TIRE AND RUBBER CO.,

Respondent-Fourth-Party Defendant-Appellee.

PETiTION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCIS A. UTECHT

Suite 910 Fidelity Federal Plaza

555 East Ocean Boulevard

Long Beach, California 90802

Attorney for Petitioners

TOPICAL INDEX

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IE A Wan 5:60:06 0sctdncnenaneucedansiersdamnsese

QUESTIONS PRESENTED ...............cseeeeeeevees

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RULES INVOLVED ..................006..

SURES HE BEE SEMEED 6 06 o cdccresevcccsccecssces

REASONS FOR GRANTING THE WRIT ................

A. Petitioners have been deprived of their prop-

erty (the patent in suit) without due process of

law in violation of the Fifth Amendment by the

failure of the Ninth Circuit Court of Appeals to

interpret 35 U.S.C. 103 in accordance with the

directions set forth by this Court ...............

B. The conduct of the Appellate Court calls for an

exercise of this Court’s power of supervision to

prevent a grave miscarriage of justice not only

in this case, but also in future patent cases ......

ENT oh eno 58.0bh 00006 eeesanseaeNsceaceteeeeanen

APPENDIX

1. Opinion of the District Court ...................

2. Opinion of the Ninth Circuit Court of Appeals ...

3. Order of the Appeals Court denying petitioners’

PN eT WII oo cn bcc sccccesccasacecedss

4. Allen U.S. Patent No. 2,497,850 ................

5. Feild U.S. Patent No. 2,461,537 ........cccccees

6. Dial et al Patent No. 3,313,443 .................

Page

TABLE OF AUTHORITIES CITED

Cases

Page

Anderson '’s-Black Rock v. Pavement Salvage Co.,

Aedes cdakadedes bene Goss buse ake 2, 10, 14

Blonder Tongue v. University Foundation,

RR ES ee ere 9

Cuno Engineering Corp. v. Automatic Devices Corp.,

ee oe eee ee ieeaekabasyeees 8,13

Graham v. John Deere Co.,

EE coe as cea ee umes seueadauenne 2, 4, 10,11

Grannis v. Ordean,

re oo cae Cee banabse eee eseres 9

Iowa State University Research v. Sperry Rand Corp.,

ee Sk rere 9

Kamei-Autokomfort et al v. Eurasian Automotive Products,

cde sheeee hhh 6dt0cs6e'acusabursnbecss keene 16

Regimbal v. Scymansky,

Ne a Se ot i cael poe e eae Re Keeeds 8

Sakraida v. Ag Pro,

DPM io ouch Guus uubetalesr des badanceys 06% 2, 10, 14

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

U.S. Constitution, Fifth Amendment ...................4+- 2,9

U.S. Constitution, Article 1, Section B, Clause 8 ........ 11,17

BD BT. BIGED cc ccc cccavctvccsccncesedzscnvscevseescs 2

Fe Wr EE hocks Se vcsccccencs 2, 3, 6, 9, 10, 11, 13, 14, 16

CN NGS EEE EE RAL OLCOTT TET 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

GLOBE LININGS, INC.,

HOWARD D. WEBB and

ARTHUR M. LOCKHART,

Petitioners,

CITY OF CORVALLIS,

Respondent-Defendant and

Third-Party Plaintiff-Appellee,

U. No.

S & T CONSTRUCTION COMPANY,

INC.,

Respondent-Third-Party Defendant and

Fourth-Party Plaintiff-Appellee,

FIRESTONE TIRE AND RUBBER

CO.,

Respondent-Fourth-Party

Defendant-Appellee.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to review

the Judgment of the United States Court of Appeals for

the Ninth Circuit entered on June 14, 1977, affirming the

Judgment of the United States District Court for the

onli

District of Oregon and the Order denying petitioners’

Petition for Rehearing entered August 4, 1977.

Opinions Below

The opinion of the District Court is reported unofficially

at 185 United States Patents Quarterly 807 and appears

at Appendix 1 herein. The opinion of the United States

Court of Appeals for the Ninth Circuit is reported

unofficially at 194 United States Patents Quarterly 415

and appears at Appendix 2 herein. The Order of the

Appeals Court denying petitioners’ Petition for Rehearing

appears at Appendix 3 herein.

Jurisdiction

The Judgment of the Court of Appeals was entered on

June 14, 1977, a timely decision for rehearing was denied

August 4, 1977, and this Petition for a Writ of Certiorari

was filed within 90 days of that date.

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1254(1).

Questions Presented

1. Did the Court of Appeals deprive petitioners of their

property (the patent in suit) without due process of law in

violation of the Fifth Amendment by refusing to interpret

Section 103 of Title 35 of tae United States Code in

accordance with this Court’s direction set forth in Graham

v. Deere, Anderson’s-Black Rock v. Pavement Salvage Co.

and Sakraida v. Ag Pro.

2. Did the conduct of the Court of Appeals call for an

exercise of this court’s power of supervision to prevent a

grave miscarriage of justice, not only in this case but also in

future patent cases.

Constitutional and Statutory Provisions

and Rules Involved

This case involves the Due Process clause of the Fifth

Amendment of the Constitution of the United States and

Section 103 of Title 35 of the United States Code.

Statement of the Case

This is an action for infringement of Claim 5 of Dial

et al United States Letters Patent No. 3,313,433, filed

June 26, 1964, and issued April 15, 1967, for a “Floating

Cover For A Liquid Storage”’ (Appendix 6). The invention

was developed by plaintiff Globe Linings, Inc., a small

business located in Long Beach, California. The invention

consists of a floating cover for an open water reservoir to

prevent contamination of the stored water by deleterious

substances such as dirt, falling leaves, chemical sub-

stances in the air, bird and animal waste and refuse thrown

in by vandals. Although smaller water reservoirs can be

provided with fixed protective roofs, such a roof construc-

tion is too expensive for reservoirs of large surface area.

The patented invention solved the vexing problem of

removing rainwater from a flexible floating reservoir

cover.

This action arose when the defendant City of Corvallis,

Oregon, had an infringing cover constructed for its Baldy

—

Reservoir by defendant contractor S & T Construction

Co., Inc. The latter defendant utilized materials and

engineering provided by defendant Firestone Tire and

Rubber Co.

For the purpose of this Writ, it is important to note that

the invention of the patent in suit had no trouble meeting

the ‘“‘secondary considerations” referred to in this Court’s

direction in Graham v. John Deere Co., 383 U.S. 1, at 35-

36. Undoubtedly, the most striking evidence in this regard

was the failure of the U.S. Army and large manufacturers

(including the defendant Firestone herein) to solve the

problems inherent to a floating roof cover. Such failure

was well documented by a confidential Army Report which

detailed the unsuccessful attempts to solve such problems

from 1943 to the subsequent abandonment of the project

in approximately 1965. The Army Report summarized the

failure of the whole project as follows:

‘There does not appear to be a simple method of

handling water removal” (page 129); and “patterns

of rainwater accumulations on the surface of a

reservoir cannot be predicted or controlled with any

degree of certainty” (page 132). (Emphasis added)

Further evidence of nonobviousness was the skeptical

attitude those skilled in the reservoir art assumed towards

petitioners’ patented reservoir cover, the three-year

period required to develop such cover and the commercial

success achieved by the cover for the struggling plaintiff

Globe Linings, Inc. Yet another indication of nonob-

viousness was provided by the recognition by defendant

City of Corvallis that the patented cover of Globe Linings,

Inc. could solve the City’s contamination problems, such

recognition taking the form of an invitation to Globe

Linings to bid on the City’s reservoir cover. Unfortunately

for Globe Linings, defendants Firestone and S & T

Construction Company, Inc. made a lower bid. The lower

bid reflected the fact that neither of such defendants

needed to recoup the cost of developing and promoting the

infringing cover, but instead could merely copy plaintiffs’

patented cover.

There appears herebelow a copy of FIGS. 1 and 3 of the

patent in suit with the basic elements of Claim 5 at issue

thereof identified:

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FLOAT MEANS CONTINUOUS SHEET

RESERVOIR PERIPHERY RAINWATER COLLECTION SUMP

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RAINWATER COLLECTION

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CONTINUOUS SHEET FIG.3

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RESERVOIR PERIPHERY

Such asic elements of Claim 5 at issue are:

(1) a continuous, flexible relatively thin sheet

which completely overlies the stored liquid - this

provides an inexpensive cover for large surface

areas and one which is conformable to the reservoir

configuration;

(2) the side of the sheet being larger than the

reservoir periphery - this provides excess material

capable of forming depending folds; and

(3) “float means”’ on the sheet and supporting

the sheet such that (or “whereby’’) the unsup-

ported sheet portion “forms a depending rainwater

collection sump” outwardly of the supported sheet

portion.

After the trial at Portland, Oregon, the trial court held

Claim 5 of the patent in suit invalid and unenforceable for

obviousness under 35 U.S.C. 103 based solely upon the

three references set forth herebelow. The court did not

rule on the issue of infringement:

— oa

1. ‘The U.S. Army Report describing the aban-

doned experiments referred to hereinabove, such

report being dated December, 1965.

2. Allen U.S. Patent No. 2,497,850, issued

February 21, 1950, Appendix 4 (cited during the

prosecution of the patent in suit).

3. Feild U.S. Patent No. 2,461,537, issued

February 15, 1949, Appendix 5 (not cited).

In finding obviousness, the trial court particularly relied

upon the Army Report, since such report was directed to

the rainwater collection problem, while Allen merely

discloses a rigid floating cover for a petroleum storage

tank, and Feild merely discloses a floating cover for a

closed tank. The trial court also ruled that applicants’

claimed combination of old elements failed to “produce an

unusual or surprising result”’.

On appeal, petitioners pointed out that since the patent

in suit was filed June 26, 1964, and the Army Report was

not published until December, 1965, such report could not

possibly constitute prior art, and accordingly that it was

error for the trial court to utilize the Army Report in

holding the patent claim invalid for obviousness and in

evaluating whether or not plaintiffs’ invention produced

unusual or surprising results over the prior art.

In its opinion (Appendix 2) the Court of Appeals agreed

with petitioners that the Army Report could not be

considered prior art. Rather than remand the case to the

trial court, the Court of Appeals then proceeded to hold

the patent in suit invalid for obviousness on the basis of

solely the Allen patent or the Feild patent! Specifically,

the Court of Appeals held that:

(1) since both Allen and Feild utilized covers

having a peripheral sump wherein liquid could

gather, the applicants’ use of such a sump was not

patentable “‘because a change in use is not a

patentable quality unless it is patented as a

process’”’;

(2) the use of the trough together with the inner

floats which automatically diverted rainwater from

the main body of the roof into the sump involved

insufficient ingenuity and was “no more than that

to be expected of a mechanic skilled in the art”

citing Cuno Engineering Corp. v. Automatic Devices

Corp., 314 U.S. 84; and

(3) the claimed invention consists only of a

combination of ideas which produces results that

would be “expected by one of ordinary skill in the

art and hence the patent claim did not exceed the

sum of its parts in “an unusual or surprising way”

so as to meet the “rather severe test’ for the

patentability of a combination patent required by

the Ninth Circuit Court of Appeals in Regimbal v.

Scymansky, 444 F.2d 333 (1971).

The invalidity ruling of the patent in suit by the Ninth

Circuit Appellate Court has destroyed a valuable property

right of plaintiffs. In particular, plaintiffs’ competitors can

now sell copies of plaintiffs’ floating roof cover at a lower

price than plaintiffs, since plaintiffs’ competitors need not

amortize the cost of developing and promoting their

covers. With respect to a large competitor, such as

defendant Firestone, plaintiffs do not have a country-wide

marketing organization. Accordingly, plaintiffs cannot

possibly meet Firestone’s competition now that plaintiffs

have been deprived of their legal monopoly afforded by

the patent in suit.

Reasons for Granting the Writ

A. Petitioners have been deprived of their property

right (the patent in suit) without due process of

law in violation of the Fifth Amendment by the

failure of the Ninth Circuit Court of Appeals to

interpret 35 U.S.C. 103 in accordance with the

directions set forth by this Court.

Patents have the attributes of personal property: 35

U.S.C. §261. The patent owner has a vested property

right that can be cancelled, revoked or amended only by

judicial proceedings that afford due process of law: Jowa

State University Research v. Sperry Rand Corp., (C.A. 4,

1971), 444 F.2d 406, 409.

The fundamental requisite of due process of law is the

opportunity to be heard: Grannis v. Ordean, (1914), 234

U.S. 385, 394. Petitioners submit that due process

requires not only that judicial proceedings be held, but

that they provide the patent owner with a “fair opportunity

procedurally, substantively and evidencially to pursue his

claim”: Blonder Tongue v. University Foundation, (1971),

402 U.S. 313. A holding of patent invalidity, in effect,

destroys a patent owner’s property. It amounts to a taking

of his property. If the holding of invalidity is based upon

substantive interpretations of the applicable patent

statutes which so far depart from the standards set by this

Court that they do not offer a patent owner such a “‘fair

opportunity”, petitioners submit that the property, the

patent, is taken without due process of law. In this case,

petitioners were deprived of a fair opportunity substan-

tively to pursue their claim. The Ninth Circuit Court of

Appeals, rather than interpreting 35 U.S.C. 103 in

accordance with the direction set forth by this Court in

Graham v. Deere, 383 U.S. 1; Anderson’s-Black Rock v.

Pavement Salvage Co., 396 U.S. 57, and Sakraida v. Ag

Pro, 425 U.S. 273, applied its own standards of ob-

viousness in holding the patent in suit invalid. Addi-

tionally, the Appellate Court went off on a legal frolic of its

own in holding the claimed combination invalid because

one of the claim elements had been used for a different

purpose in the prior art.

It is true that the Appellate Court, as usual, paid lip-

service to Graham v. Deere, stating that the well-known

mode of analysis set forth herebelow should be followed:

“While the ultimate question of patent validity is

one of law . . . the §103 condition . . . 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 the claims at issue are to be ascertained; and

the level of ordinary skill in the pertinent art

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resolved. Against this background, the obvious-

ness or non-obviousness of the subject matter is

determined.”

After approving the above language, the Appellate

Court then ignored one of the most critical directions

thereof, i.e., a determination of “‘the level of ordinary skill

in the pertinent art”. A review of the Court’s opinion

(Appendix 2) reveals that the Court did not make any

attempt to evaluate the level of ordinary skill in the

reservoir art.

The failure of the Appellate Court to determine the level

of skill in the reservoir cover art made it quite impossible

for the Appellate Court to intelligently apply the re-

maining factual criteria of Graham v. Deere. This is true

since what may not have been obvious to one having a

lower than ordinary level of skill might be obvious to one

having a higher than ordinary level of skill.

In this case, it is clear that the Appellate Court did not

bother to determine the level of skill in the art for the

simple reason that such Court had no intention of applying

the statutory test for patentability set forth in 35 U.S.C.

103. Instead, the Court applied a hindsight test based

upon the Court’s “‘gut’’ reaction that the cover con-

struction of the patent in suit was so simple as to not be

entitled to the legal monopoly promised by Article 1,

Section 8, Clause 8 of the Constitution. Such hindsight

approach was demonstrated by the Appellate Court’s

dissection of the Feild and Allen patents and rearranging

the elements thereof to synthesize Claim 5 at issue.

=< =

In particular, the Appellate Court seized upon the

peripheral flexible sump of Feild and Allen as being usable

to collect and remove rainwater, even though the stated

purpose thereof was to act as a vapor seal. Based upon this

premise, the Appellate Court held that since such

peripheral sump was in the prior art, its use to collect

rainwater would not be patentable, holding:

“(A] patent claiming a device that has already

been put to use, albeit in a different manner, is

invalid; in order to be valid over the prior art, it

must claim not novel use, but novel conception.”’

Significantly, the Appellate Court did not base such

above contention upon any statutory provision. It will be

readily apparent that such holding completely ignored the

fact that the peripheral rainwater collection sump of the

patent is but a single element of Claim 5 at issue. If the logic

of such holding is adopted in future Ninth Circuit

decisions, Ninth Circuit Courts will feel free to invalidate

any patent claim combination merely because a single one

of the elements of such combination has been used for a

different purpose in the prior art. By way of example, a

patent claim which recited a combination of mechanical

elements such as a motor, gearing, pump and valves could

be held invalid merely because any one of such elements

had been utilized for a different purpose in the prior art.

Not content with holding Claim 5 invalid because one of

its elements was old, the Appellate Court also held that the

use of the peripheral sump, together with inner floats

which automatically diverted rainwater from the main

wittin

body of the roof into the sump involved ingenuity that was

“no more than that to be expected of a mechanic skilled in

the art’, citing Cuno Engineering Corp. v. Automatic

Devices Corp., supra. The Cuno case applied the “‘seat-of-

the-pants” subjective “flash of genius’ standard of

invention which prompted the provision in 35 U.S.C. 103

that “Patentability shall not be negatived by the manner in

which the invention was made’”’. That the Ninth Circuit

Court of Appeals still applies the “gut reaction” invention

standard of Cuno affords a clear indication that such

Circuit refuses to apply the objective factual approach

required by 35 U.S.C. 103.

Instead of applying its own subjective standard of

patentability, the Appellate Court in this case should have

looked at the clear evidence of non-obviousness provided

by the Army Report. As indicated hereinabove, such

report established the complete failure of those skilled in

the reservoir art to solve the problems of rainwater

collection in a flexible floating reservoir cover over several

years despite intensive efforts to effect such solution. The

Army Report established that a large number of skilled

persons with adequate means and facilities unsuccessfully

attempted over a long period of time to solve the rainwater

collection problem solved by plaintiffs. It seems im-

possible to conclude other than that the invention was

non-obvious. Yet this evidence was completely ignored by

the Appellate Court.

The Appellate Court also refused to look at the

“secondary considerations’, indicating non-obviousness,

“because a patentable invention is lacking’”’. It will be clear

ons Siiees

that if the Appellate Court had started its resolution of the

35 U.S.C. 103 test for obviousness by looking at the actual

floating reservoir cover prior art and the “secondary

considerations” of non-obviousness, the non-obviousness

of the patent in suit would have become apparent.

The coup de grace of invalidity was delivered by the

Appellate Court in concluding that the combination of

elements of Claim 5 did not exceed “‘the sum of its parts in

an unusual or surprising way’. In so holding, the Appellate

Court acted in direct conflict with the direction given by

this Court in a case where a patent claim is directed to a

combination of old elements. This Court does not require

that the elements of such a combination should “exceed

the sum of its parts in an unusual or surprising way’”’.

Instead, this Court has only required that such elements

provide a synergistic result.

In Anderson 's-Black Rock, this Court held:

“A combination of elements may result in an

effect greater than the sum of the several effects

taken separately. No such synergistic result is

argued here.”

And, in Sakraida v. Ag Pro, this Court held:

‘‘When a device consists of a mere aggregation of

segments of the prior art, there is an increased

danger that a patent will withdraw into its mono-

poly what is already known and add nothing to the

sum of useful knowledge. Thus, to be patentable, a

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—

combination of elements must produce something

more than the sum of the pre-existing elements;

there must be a synergistic result that is itself non-

obvious.”

The Ninth Circuit Court of Appeals does not apply this

Court’s synergistic result test, but applies its own more

severe test for the validity of a combination patent, i.e.,

that the elements of the combination not only provide a

synergistic effect, but also that such synergistic effect

operates in an “unusual or surprising way ’. It is, of course,

difficult to find many combinations of old elements which

will even provide a synergistic effect, much less an unusual

or surprising synergistic effect. Had the Appellate Court

been satisfied to apply the synergistic effect requirement

of this Court, Claim 5 of the patent in suit would have

easily met such test. Thus, the construction and ar-

rangement of the patent’s floats to locate the excess cover

material at the reservoir periphery results in such excess

material automatically arranging itself into a rainwater

collection sump for easy rainwater removal despite

changes in the reservoir water level. The synergism results

from the fact that the floats do not merely support the

cover upon the water (as in the prior art) but additionally

the floats serve the secondary function of cooperating with

the cover to automatically define a level center section and

a peripheral rainwater collection sump that collects

rainwater from such center section. Likewise, the cover

does not merely function as a cover (as in the prior art).

Instead, because it is larger than the area of the reservoir,

its excess material cooperates with the floats to define the

aforementioned sump.

B. The conduct of the Appellate Court calls for an

exercise of this Court's power of supervision to

prevent a grave miscarriage of justice not only in

this case, but also in future patent cases.

As pointed out in detail hereinbefore, the Appellate

Court in this case refused to follow the directions of this

Court in determining the validity of the patent in suit,

namely, that 35 U.S.C. 103 be applied in determining non-

obviousness, and that the synergistic result test be applied

to a combination patent. The Ninth Circuit Court of

Appeals now routinely follows its own erroneous path in

testing a combination patent for obviousness. The most

recent example of which petitioners are aware is Kamei-

Autokomfort et al v. Eurasian Automotive Products, 553

F.2d 603. In Kamei, the Appellate Court, just as in this

case, applied the ‘“‘unusual or surprising result” non-

obvious test rather than this Court’s synergistic result

test. Kamei is before this Court by means ot a Petition For

Writ Of Certiorari filed July 29, 1977 under No. 77-168.

It will be clear that unless this Court provides the Ninth

Circuit Court of Appeals with supervision, it can only be

assumed that such Appellate Court will continue to apply

its own standards of patentability in future patent cases.

Such erroneous application of 35 U.S.C. 103 will naturally

enough be adopted by the trial courts. As a result, the

patent system will be effectively emasculated in the Ninth

Circuit so as to render such patent system incapable of

performing its Constitutional purpose: “To promote the

progressof . . . useful arts, by securing for limited times

to . . . inventors the exclusive right to their . . . dis-

= =

coveries’’, as guaranteed by Article 1, Section 8, Clause 8

of the Constitution.’’ Once potential patentees become

aware of such emasculation, the wells of invention will

quickly dry up. Moreover, small businesses (such as

plaintiff Globe Linings in this case) can no longer

effectively compete with large businesses (such as de-

fendant Firestone herein). Additionally, and more im-

portantly, the public will no longer receive the benefits of

research and development generated by the present

patent system.

Conclusion

For the reasons set forth hereinabove, this Petition for

Certiorari should be granted.

Respectfully submitted,

FRANCIS A. UTECHT

Suite 910 Fidelity Federal Plaza

555 East Ocean Boulevard

Long Beach, California 90802

(213) 432-0453

Counsel for Petitioners

APPENDIX

on tiens

APPENDIX 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GLOBE LININGS, INC and

HOWARD D. WEBB,

Plaintiffs,

CITY OF CORVALLIS,

Defendant and Third-Party Plaintiff,

S & T CONSTRUCTION COMPANY, INC.,

Third-Party Defendant and

Fourth-Party Plaintiff,

FIRESTONE TIRE AND RUBBER CO.,

Fourth-Party Defendant.

Civil No. 72-290

OPINION

Francis A. Utecht

910 Fidelity Federal Plaza

555 East Ocean Blvd.

Long Beach, California 90802

Joseph B. Sparkman

1000 Georgia-Pacific Bldg.

Portland, Oregon 97204

Attorneys for Plaintiff

iin

James Eickelberg

City Attorney

P.O. Box 486

Corvallis, Oregon 97330

Attorney for Defendant and

Third-Party Plaintiff

M. H. Hartwell, Jr.

1004 Standard Plaza

Portland, Oregon 97204

Attorney for Third-Party Defendant

and Fourth-Party Plaintiff

George L. Kirklin

800 Pacific Building

Portland, Oregon 97204

Attorney for Fourth Party Defendant

Burns, J.:

This is an action for alleged infringment of Claim

5 of United States Letters Patent No. 3,313,443, is-

sued April 11, 1967, for “FLOATING COVER FOR

A LIQUID STORAGE RESERVOIR.” The alleged

infringement arises by virtue of the construction by

or on behalf of the City of Corvallis, and the use of, a

floating roof cover for the City’s Baldy Reservoir.

A third-party complaint against the construction

contractor, a counter-claim by third-party defendant

alleging invalidity of the patent, and a fourth-party

complaint against the materials supplier have also

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been filed. The issues of patent validity and infringe-

ment have been segregated for separate trial; all

other issues among the parties are reserved for later

determination.

Jurisdiction is properly invoked under 28 U.S.C.

$1338, and venue lies in this district under 28 U.S.C.

§1400(b).

Claim 5 of the patent is as follows:

5. Apparatus for preventing contamination

of the stored liquid in an open reservoir, com-

prising: A continuous sheet of flexible, rela-

tively thin material impervious to and complete-

ly overlying said liquid in coextensive relation-

ship to the periphery of said reservoir, the size of

said sheet being greater than the area encom-

passed by the upper periphery of said reservoir;

anchor means securing the outer periphery of

said sheet to the upper periphery of said reser-

voir in fluid-tight relationship therewith;

and float means on said sheet spaced inwardly

from the upper periphery of said reservoir to

raise and lower said sheet on the surface of said

liquid as the level thereof varies, with said float

means supporting the area of said sheet engaged

by said float means at a higher elevation than

the portion of said sheet spaced outwardly of said

float means and inwardly of said anchor means

whereby said portion forms a depending rain-

water collection sump.”

— =

Because it would have been obvious to a person having

ordinary skill in the art, 35 U.S.C. 8103, the patent is

invalid and unenforceable. So concluding, I do not

consider the question of infringement.

Plaintiff is, of course, entitled to the statutory pre-

sumption of validity, 35 U.S.C. §282, that attaches

to the grant of the patent here in issue. My finding

of obviousness, however, is based on three prior art

references, two of which were not considered by the

Patent Office. ‘““Where the element of patentability

being considered is the obviousness of the subject

matter when weighed against the prior art, the pre-

sumption dissipates in the face of a showing that the

prior art was not brought to the attention of the ex-

aminers.” Hewlett-Packard Co. v. Tel-Design, Inc.,

460 F.2d 625 (9th Cir. 1972). The file wrapper in-

dicates that the patent to Feild, No. 2,461,537, and

the Hasty Bulk Fuel Storage Reservoir Report of the

U.S. Army Engineer Research and Development

Laboratories (“the Army report’”’) were not canvassed

by the examiners.

Discussion of obviousness must begin with the

standard set forth in Graham v. John Deere Co., 383

U.S. 1, 17 (1966).

Under 8103, the scope and content of the prior

1. Jeddeloh Brothers v. Coe Mfg., 375 F.2d 85 (9th Cir. 1967),

cert. denied 389 U.S. 823 (1967). and Volvo, Inc. v. Cummings,

& Sander, Inc., 435 F.2d 981 (9th Cir. 1971), indicate that I

need not determine the issue of infringement, having concluded

that the patent is invalid.

nel needa

art are to be determined; differences between the

prior art and the claims at issue are to be as-

certained; and the level of ordinary skill in the

pertinent art resolved. Against this background,

the obviousness or non-obviousness of the subject

matter is determined.

The patent to Allen, No. 2,497,850, teaches the use

of a partially flexible, floating cover with an amount

of flexible material that is larger than the surface

to be covered by it, in order to follow the rise and

fall of the fluid level. Allen also teaches use of an

anchor means to attach the flexible material to the

periphery of the tank. Finally, Allen teaches that a

peripheral anchor with flexible material connected

to a float over the liquid will create a peripheral

trough.

The patent to Feild, No. 2,461,537, also combines

the elements of a peripheral anchor for flexible ma-

terial and a float means. Specifically, the patent

teaches use of a flexible material of sufficiently large

size so that, when attached at its outer periphery to

the side wall, a dependent loop will be formed in the

material. Unlike Allen, which used a large solid float

to cover most of the surface and flexible material as

a link to the wall, Feild uses flexible material over

most of the surface with only a small central float.

One embodiment, Fig III, teaches the use of an an-

nular float, for this round tank, near the periphery,

thus confining the liquid on the upper/outer side of

the flexible material to a peripheral trough.

The Army report offers extensive pertinent teach-

ing. First, a flexible material was used to cover a

large rectangular reservoir. The material was larger

than the surface, to allow for rise and fall of the

liquid, and was anchored by a means that involved

wrapping the materiai around a peripheral pipe and

securing the pipe to the ground with sandbag weights.

Second, a float tube ran the length of the reservoir

at the center of the cover. Third, ballast tubes were

placed adjacent the periphery in order to form rain-

water accumulation troughs.

We turn now to the differences between these teach-

ings and the claim of plaintiff’s patent. Claim 5 refers

to a continuous sheet of flexible material over the

liquid, with an area greater than that of the reser-

voir. All three of the references discussed above show

a continuous sheet of material with an excess at the

periphery. Allen does use a solid central portion, but

Feild and the Army report show flexible material

forming all or substantially all of the cover. Whether

the reservoir is round, square or rectangular, has

vertical or sloping walls, covers volatile petroleum

products or water, is not determinative; claim 5 is

not limited in these respects.

Claim 5 does specify a cover for an open reservoir,

and only the Army report explicitly reveals an open

reservoir. Allen does not specify whether the tank is

covered; Feild indicates a rainshed. With respect to

the critical elements of Claim 5, the fact that Feild

and Allen have, or may have, fixed roofs is immaterial.

so ecenatianettiathante tatiana ie rene nin eh et i a ee ee ee a ee ee

—I25—

Both Allen and Feild disclose an anchor means se-

curing the outer edge of the sheet to the reservoir per-

iphery in fluid-tight relation. The connection in these

patents is not at the top of the tank, but in both

cases it appears that the operation of the flexible

cover would not be affected by shifting the connection

point upward. When either the Allen or Feild tank

is less than half full, it may be noted, the connection

point is then in effect at the top of a shorter tank and

the flexible cover forms a trough in the same way,

and in the same relationship to the fluid level, as the

contested patent. The Army report shows an anchor

means different in detail from plaintiff’s specifica-

tion, but fully described by Claim 5.

Claim 5 last describes float means on the cover,

spaced inwardly from the reservoir sides to raise and

lower the cover and — by keeping the center portion

of the cover higher than the outer portion — to form

a depending rainwater collection sump around the

edge. Feild and Allen both include a float means ar-

ranged with the flexible material to form a trough

around the edge, and Feild in the embodiment in

Figure III used floats near the periphery as well as

at the center, in a way very similar to that described

in plaintiff's patent. The Army also used a central

float, together with peripheral weights to place the

trough, which differs from the disputed patent’s

specification in that the float is a single tube down

the center rather than a network of floats. Claim 5,

however, makes no reference to the size of the float

means; in addition, the Feild float means is function-

ally very similar to plaintiff's.

=— =

Allen does not mention use of the trough to collect

rainwater, and Feild, of course, would not because it

is to be covered, but the Army report discusses rain-

water extensively. Because structure rather than use

is the patentable quality, Exer-Genie v. McDonald,

453 F.2d 132 (9th Cir. 1971), it is not determinative

that the fluid-filled dependent trough in Allen and

Feild was used as a sealing mechanism: its structure

was very similar to plaintiff’s even though the latter

was used for collecting rather than retaining fluid.

John Deere, supra, directs finally that I examine the

level of ordinary skill in the pertinent art. Having

reviewed carefully the testimony of the expert and

other witnesses, I find that an ordinarily skilled de-

signer or maker of reservoir covers would have been

aware of and understood the use of flexible materials

larger in size than the reservoir to be covered, the

use of float means to raise and lower the cover, the

use of anchor means at the periphery, and the use of

peripheral floats to control the positioning of the

cover material.

From this, I conclude that, taken as a whole, the

subject matter of the disputed patent would have been

obvious at the time the invention was made to a person

having ordinary skill in the art.

Plaintiff has suggested that, even if the elements

of his claim are individually old and obvious, the re-

—_— =

sults are synergistic and the invention, therefore,

nonobvious. In this area of combination patents we

are instructed to be strict. Jeddeloh Brothers v. Coe

Mfg., 375 F.2d 85 (9th Cir. 1967), cert, denied 389

U.S. 823 (1967); Burgess v. Klingensmith, 487 ¥.2d

321 (9th Cir. 1973). And in the Ninth Circuit, the

combination of old elements must produce an unusual

or surprising result. Hewlett-Packard, supra, Regim-

bal v. Scymansky, 444 F.2d 333 (9th Cir. 1971). No

such result was achieved here; that is, no result un-

usual or surprising in light of the prior art. Plaintiff's

cover floated up and down with the fluid level, but

so did all the three discussed. Plaintiff’s excess ma-

terial gathered in folds, but so did the Army’s. Plain-

tiff’s folds were located at the periphery, but so were

Allen’s and Feild’s. Plaintiff's peripheral folds

gathered rainwater, but so did the Army’s. The shuf-

fling of old elements here produced only the results

that prior experience with the elements had suggested.

That plaintiff’s shuffle was a better one may be true,

but that is not the test of patentability.

Although some evidence was introduced concerning

“such secondary considerations as commercial suc-

cess, long felt but unsolved needs, failure of others,

etc.,” John Deere, supra, I find that evidence not

persuasive, particularly in light of the small differ-

ences between prior art and the challenged patent.

In this evidence, I do not find the clarity of unsolved

problems plus failure of others that was a “weighty

indication that at the then level of skill . . ., the

patented discovery was not obvious.” Cool-Fin Elec-

tronics v. International Electronic Research Corpora-

tion, 491 F.2d 660, 663 (9th Cir. 1794).

The foregoing shall constitute findings of fact and

conclusions of law pursuant to F.R. Civil P. 52.

Dated this 10th day of April, 1975.

JAMES M. BURNS

APPENDIX 2

GLOBE LININGS, INC., Howard D.

Webb and Arthur M. Lockhart,

. Plaintiffs-Appellants,

CITY OF CORVALLIS, Defendant and

Third-Party Plaintiff-Appellee,

Vv.

S & T CONSTRUCTION COMPANY,

INC., Third-Party Defendant and

Fourth-Party Plaintiff-Appellee,

FIRESTONE TIRE AND RUBBER

CO., Fourth-Party

Defendant-Appellee.

No. 75-2848.

United States Court of Appeals,

Ninth Circuit.

June 14, 1977.

Owner of patent brought action for

infringement. The United States Dis-

trict Court for the District of Oregon,

James M. Burns, J., entered judgment

holding patent invalid and the patent

holder appealed. The Court of Appeals,

Eugene A. Wright, Circuit Judge, held

that (1) failure of examiner to consider

pertinent prior art dissipated statutory

presumption of validity, and (2) claim 5

of patent No. 3,313,443 relating to a

floating cover for liquid storage reser-

voirs was invalid because of obviousness.

Affirmed.

1. Patents @=32

Presumption of nonobviousness of

patent dissipates upon showing that pri-

or art was not brought to attention of

patent examiner. 35 U.S.C.A. § 282.

2. Patents <=32

Even one prior art reference not

considered by patent office may be suffi-

cient to overcome presumption of nonob-

viousness of patent. 35 U.S.C.A. § 282.

3. Patents 68

Army report discussing an experi-

mental effort could not be considered as

prior art since it was not public informa-

tion. 35 U.S.C.A. § 102(a).

4. Patents 68

Where army report on experimental

effort stated that each transmittal of the

document outside the agencies of United

States government must have prior ap-

proval of commanding general and that

recipient should destroy report when no

longer needed, it could not be said that

the report fell within the realm of “pub-

lic information” for purpose of determin-

ing whether it constituted prior art. 35

U.S.C.A. § 102(a).

See publication Words and Phrases

for other judicial constructions and

definitions.

5. Patents 58

If patent not considered by examin-

er was either less pertinent than the pri-

or art he did consider or was merely

cumulative, presumption of validity of

patent issue would operate. 35 U.S.C.A.

§§ 102, 282.

6. Patents 58

Since it was determined in patent

infringement action that a particular

patent which was not considered by ex-

aminer was more pertinent than the pat-

ent he did consider on issue of prior art,

failure of patent examiner to consider

the more pertinent patent dissipated

statutory presumption of validity of is-

sued patent and court started with a

clean slate in considering question of ob-

viousness in infringement action. 35

U.S.C.A. § 282.

Synopses, Syllabi and Key Number Classification

—30—

7. Patents 18

In considering question of obvious-

ness, court must inquire whether or not

claim of patent would have been obvious

to person of ordinary skill in the art

which requires determination of scope

and content of prior art, differences be-

tween prior art and claim in issue, and

level of ordinary skill in pertinent art.

8. Patents 18

Inventor will not be denied patent

simply because his invention embodies a

solution which seems simple and obvious

with benefit of hindsight; solution must

constitute a change in structure and not

a change in use.

9. Patents <>27(1)

Change in use is not patentable

quality unless patented as a _ process.

10. Patents <=328(2)

Claim 5 of patent No. 3,313,443, rei-

ating to a floating cover for liquid stor-

age reservoirs was invalid because of ob-

viousness in view of prior art. 35 US.

C.A. § 103.

11. Patents 16.7, 36.2(1)

Where patentable invention is lack-

ing, secondary consideration such as

*Senior Circuit Judge for the Second Circuit.

1. Claim 5 of the patent defines this portion of

the invention as follows:

“Apparatus for preventing contamination of

the stored liquid in an open reservoir, com-

prising:

a continuous sheet of flexible, relatively thin

material impervious to and completely

overlying said liquid in coextensive rela-

tionship to the periphery of said reservoir

the size of said sheet being greater than

the area encompassed by the upper pe-

riphery of said reservoir;

anchor means securing the outer periphery

of said sheet to the upper periphery of

said reservoir in fluid-tight relationship

therewith;

commercial success and long-felt but un-

fulfilled need cannot fill gap.

Appeal from the United States Dis-

trict Court for the District of Oregon.

Before LUMBARD,* WRIGHT and

ANDERSON, Circuit Judges.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

Globe Linings, Inc. (Globe) is the own-

er of U.S. Patent No. 3,313,443 (the Dial

patent), which has as its subject matter

a floating cover for liquid storage reser-

voirs. This flexible cover protects stored

liquid from falling debris and sunlight.

It is also adapted, through the use of

floats, to rise and fall with the level of

the liquid. Because the cover is larger

than the reservoir, folds form adjacent

to the periphery. Rainwater is collected

in the peripheral folds and removed by

pump.

Under contract with the City of Cor-

vallis (Corvallis), the S & T Construction

Co. constructed a floating reservoir cover

for the city’s Baldy Reservoir. Globe

brought suit for infringement of claim

5' of its patent. Corvallis and other

defendants? contended that Globe's pat-

and float means on said sheet spaced in-

wardly from the upper periphery of said

reservoir to raise and lower said sheet on

the surface of said liquid as the level

thereof varies, with said float means sup-

porting the area of said sheet engaged by

said float means at a higher elevation than

the portion of said sheet spaced outwardly

of said float means and inwardly of said

anchor means whereby said portion forms

a depending rainwater collection sump.”

2. Impleaded as defendants were S & T Con-

struction Company and Firestone Tire and

Rubber Company, which supplied materials to

S & T. Because ali three defendants claimed

=— =

ent was invalid for obviousness under 35

U.S.C. § 103 (1970).2 The district court

segregated the issues of patent validity

and infringement for trial, found the

patent invalid for obviousness, and gave

judgment for defendants.

On appeal Globe contends that the dis-

trict court’s finding of obviousness is in-

correct. It argues that the statutory

presumption of the patent's validity

should not have been rejected. It also

contends that, even if its invention con-

tained no new elements, the combination

of old elements produced an unusual or

surprising result not found in the prior

art.

THE STATUTORY PRESUMPTION

The district court relied on three prior

art references, two of which were not

considered by the patent office. This

raises an initial question of whether ap-

pellant was entitled to the statutory pre-

sumption of validity. Congress has de-

clared that:

A patent shall be presumed valid.

The burden of establishing

invalidity of a patent or any claim

that the patent was invalid for obviousness we

will consider their claims together for pur-

poses of this appeal.

3. Recognized at least as early as 1851 in

Hotchkiss v. Greenwood, 11 How. 248, 52 U.S.

248, 13 L.Ed. 683 (1851), the nonobwiousness

requirement was codified in 1952 as Section

103 of the Patent Act:

“A patent may not be obtained though the

invention is not identically disclosed or de-

scribed 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 a

thereof shall rest on the party assert-

ing such invalidity.

35 U.S.C. § 282 (Supp.1977).

[1,2] We have held that this “pre-

sumption of non-obviousness dissipates

upon a showing that the prior art was

not brought to the attention of the pat-

ent examiner.” Aleor Aviation, Ine. vy.

Radair Incorporated, 527 F.2d 113, 115

(9th Cir. 1975); see also Hewlett-Pack-

ard Co. v. Tel-Design, Inc., 460 F.2d 625

(9th Cir. 1972). Even one prior art ref-

erence not considered by the patent of-

fice may be sufficient to overcome the

presumption. Jaybee Mfg. Corp. v. Ajax

Hardware Corp., 287 F.2d 228, 229 (9th

Cir. 1961).

The Allen patent was among the 10

patents cited as references by the exam-

iner. Its elements included a partially

flexible, flat cover with an amount of

flexible material larger than the covered

surface level to follow the rise and fall

of the fluid level. An anchor attached

the flexible material to the periphery of

the tank in a fluid-tight relationship.

The patent also demonstrated that a pe-

ripheral anchor with flexible material

connected to a float over-the liquid will

create a peripheral trough.

whole would have been obvious at the time

the invention was made to a person having

ordinary skill in the art to which said sub-

ject matter pertains. Patentability shall not

be negatived by the manner in which the

invention was made.”

4. In its brief Globe contends that the cover

terminated inwardly of the periphery but the

district court found otherwise. Because we

find substantial evidence to support the court's

finding we treat it as a finding of fact which is

not clearly erroneous and adopt it. Fed.R.Civ.

Pro. 52(a).

Two possible prior art references not

considered by the examiner were a pat-

ent issued to an inventor, Feild, and an

Army report discussing an experimental

effort, begun in 1943 and terminated

around 1965, to devise a system for rap-

idly building reservoirs with covers.

[3] As to the Army report, we agree

with Globe that it cannot be considered

as prior art because it was not public

information as required by 35 USS.

§ 102(a) (1970).5 Although section 102(a)

merely defines prior art as an “invention

, known or used by others,” this

provision has been held to mean “only

what was known or used publicly or was

accessible to the public.” Union Carbide

Corp. v. Filtrol Corp., 170 USPQ 482, 518

(C.D.Cal.1971), aff'd in an unpub. memo.

179 UPSQ 209 (9th Cir. 1973). See also

Carboline Co. v. Mobil Oil Corp., 301

F.Supp. 141 (N.D.III.1969) (work product

under a “security” classification).

[4] Although the district court was

not called upon to decide whether the

Army report was public information we

note that the document itself contained

this language: ’

Each transmittal of this document out-

side the agencies of the U.S. Govern-

ment must have prior approval of the

Commanding General, U.S. Army Ma-

5. Section 102:

“A person shall be entitled to a patent

unless—

“(a) the invention was known or used by

others in this country before the

invention thereof by the applicant for [the]

patent -

6. We note that on pages 3-4 of its reply brief

appellant represents that this case appears in

Federal Supplement and Federal Reporter 2nd

Series. We find no such cases at the citations

given. Rather, we have found such disposi-

tions in U. S. Patent Quarterly. We note that

terial Command, Washington, D.C.

20315.

Destroy this report when no longer

needed.

Another section of the report listed the

agencies to which the report has been

distributed. After our examination of

the record, we cannot say that this re-

port falls within the realm of “public

information.”

[5] Because of our holding that the

Army report could not be considered as

prior art, we must decide whether the

Feild patent itself was sufficient to ne-

gate the presumption of non-obviousness.

The first question is whether the Feild

patent was either “less pertinent” than

the prior art considered by the examiner,

or was merely “cumulative.” In either

case, the presumption of validity would

then be allowed to operate. Saf-Gard

Products, Inc. v. Service Parts, Inc., 532

F.2d 1266, 1271 (9th Cir.), cert. denied,

429 U.S. 896, 97 S.Ct. 258, 50 L.Ed.2d 179

(1976).

Globe contends that the Feild patent is

less pertinent than the Allen patent be-

cause its design contemplates covering

the reservoir with a rigid roof, thereby

precluding the floating cover beneath

from being used to collect rain, unlike

the Allen and Dial patents, both of

the Court of Appeals’ ruling is an unpublished

memorandum decision of August 31, 1973.

We refer counsel to Ninth Circuit Rule 21(c)

which states that a “disposition which is not

for publication shall not be cited to

this Court in briefs or oral argument.” This

rule means what it says even when applied to

patent cases.

7. Plaintiff's Exhibit 43, “Development of a

Hasty Bulk Fuel Storage Reservoir,” U.S.

Army Engineer Research and Development

Laboratories, Fort Belvoir, Virginia, (Dec. 1965)

(first unnumbered page after the title page).

im Go” SLO” ae

=_ =

which are open to the rain. It notes

that its expert, a patent attorney, testi-

fied that the cited Allen patent was

more pertinent than the non-cited Feild

patent. The court, however, not the ex-

pert, determines which is more pertinent.

[6] In certain respects, the record re-

veals that the Feild patent was more

pertinent than the Allen patent. Specif-

ically we note that (1) unlike the Allen

patent but like the instant one the cover

of the Feild patent consisted almost en-

tirely of a flexible material, and (2)

again unlike the Allen patent but like

the instant one the float means in the

Feild patent consisted of floats near the

periphery of the cover as well as in the

center, thus confining the liquid on the

upper/outer side of the flexible material

to a peripheral trough. These features

were critical to both the Dial and Feild

patents. We therefore find the Feild

patent to be pertinent prior art and the

failure of the patent examiner to con-

sider it dissipates the statutory presump-

tion of validity.

With a clean slate, we consider the

question of obviousness.

Il.

OBVIOUSNESS

[7] In approaching this question, we

must inquire whether or not claim 5 of

the Dial patent would have been obvious

to a person of ordinary skill in the art.

This is the determinative test of patenta-

bility under section 103. Saf-Gard Prod-

ucts, Inc., supra at 1270. We have been

directed by the Supreme Court in Gra-

ham v. John Deere Co., 383 U.S. 1, 17, 86

S.Ct. 684, 694, 15 L.Ed.2d 545 (1966), to

adopt the following mode of analysis:

8. See footnote 1 in Exer-Genie, Inc. v. Mc-

Donald, 453 F.2d 132, 133 (9th Cir. 1971), cert.

While the ultimate question of patent

validity is one of law . . ._ the

§ 103 condition lends itself

to several basic factual inquiries. Un-

der § 108, the scope and content of the

prior art are to be determined; differ-

ences between the prior art and 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 non-ob-

viousness of the subject matter is de-

termined.

“Prior art” then plays a fundamental

role in our examination of this case. See

Chisum, “Sources of Prior Art in Patent

Law,” 52 Wash.L.Rev. 1, 3 (1976).

[8,9] An inventor will not be denied

a patent simply because his invention

embodies a solution which seems simple

and obvious with the benefit of hind-

sight. Nationa! Sponge Cushion Co. v.

Rubber Corp., 286 F.2d 731, 735 (9th Cir.

1961), cert. denied, 368 U.S. 976, 82 S.Ct.

480, 7 L.Ed.2d 438 (1962). The solution

must constitute a change in structure,

however, not a change in use because a

change in use is not a patentable quality

unless it is patented as a process.’

[A] patent claiming a device that >

has already been put to use, albeit in a

different manner, is invalid; in order

to be valid over the prior art, it must

claim not novel use, but novel concep-

tion.

Beckman Instruments, Inc. v. Chemtron-

ies, Inc., 428 F.2d 55, 561 (5th Cir.), cert.

denied, 400 U.S. 956, 91 S.Ct. 353, 27

L.Ed.2d 264 (1970), quoted in Exer-Ge-

nie, Inc. v. McDonald, 453 F.2d 132, 134

(9th Cir. 1971), cert. denied, 405 U.S.

1075, 92 S.Ct. 1498, 31 L.Ed.2d 809

(1972).

denied, 405 US.

L.Ed.2d 809 (1972).

1075, 92 S.Ct. 1498, 31

{10} Both the Feild and Allen patents

include a float means arranged with a

flexible material to form a_ trough

around the edge and the Feild patent

uses floats near the periphery in a way

very similar to that described in the Dial

patent. The major elements of claim 5

of the Dial patent were (1) the continu-

ous sheet of material extending beyond

the area of stored liquid, (2) the use of a

float means to support the cover and

form a fold outwardly from the float

means, and (3) the use of a perimeter

sump to collect and remove rainwater.

The collection of rainwater in the periph-

eral sump was accomplished by the rais-

ing of the inner floats, thus causing the

rainwater to flow downward to the deep

peripheral fold or trough.

Because the main significant elements

of the Dial patent claim 5 were already

found in the prior art, the final inquiry

is whether the raising of the height of

the inside floats and the use of a pump

to drain the water from the trough were

obvious. We conclude that they were.

There was testimony by appellant's ex-

pert ® that the Allen patent arrangement

would collect rainwater, whether or not

that was its stated purpose. The use of

the trough to collect water was therefore

a change in use, not structure. The rais-

ing of the inner floats to create a run-

off was arguably a change in structure,

but the ingenuity required to effect the

adaptation was “no more than that to be

expected of a mechanic skilled in the

art.” Cuno Engineering Corp. v. Auto-

matic Devices Corp., 314 U.S. 84, 92, 62

S.Ct. 37, 41, 86 L.Ed. 58 (1941).

[11] Because a patentable invention

is lacking, secondary considerations such

as “commercial success” and “long-felt

but unfulfilled needs” cannot fill the

gap. Graham v. John Deere Co., 383

U.S. 1, 35-36, 86 S.Ct. 684, 15 L.Ed.2d

545 (1966); Great Atlantic & Pacific Tea

Co. v. Supermarket Equipment Corp.,

340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed.

162 (1950).

III.

COMBINATION PATENT

Appellant suggests that the float ar-

rangement of the Dial patent to locate

the excess material at the periphery of

the reservoir was an unusual or surpris-

ing result not found in the prior art. It

also makes reference to the ability of the

float means to keep the cover from sink-

ing if punctured, and to the raising of

the inner floats. In so doing, appellant

attempts to persuade this court that its

invention satisfies the “rather severe

test” for patentability of a combination

patent. See Regimbal v. Scymansky, 444

F.2d 333, 338-39 (9th Cir. 1971). We

must therefore decide whether the

“whole” of this patent claim exceeds the

sum of its parts in an unusual or surpris-

ing way.

We hold that it does not, but rather

consists only of a combination of ideas

which produces results that would be

“expected by one of ordinary skill in the

art.” Hewlett-Packard Co. v. Tel-De-

sign, Inc., 460 F.2d at 629-30.

The judgment of the district court is

affirmed.

9. Reporter's Transcript at 303.

—35—

APPENDIX 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLOBE LININGS, INC., HOWARD D. WEBB

and ARTHUR M. LOCKHART,

Plaintiffs-Appellants,

CITY OF CORVALIS,

Defendant and Third-Party Plaintiff-Appellee,

S & T CONSTRUCTION COMPANY, INC.,

Third-Party Defendant and

Fourth-Party Plainiiff-Appellee,

FIRESTONE TIRE AND RUBBER CO.,

Fourth-Party Defendant-Appellee.

No. 75-2848

Before: LUMBARD, WRIGHT and ANDERSON,

Circuit Judges.

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judges Wright and

Anderson have voted to reject the suggestion for a

rehearing en banc.

The full court has been advised of the suggestion for an

en banc hearing, and no judge of the court has requested a

vote on it. Fed.R.App.P. 35 (b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

APPENDIX 4

Feb. 21, 1950 J. W. ALLEN 2,497,850

SEAL FOR FLOATING ROOF TANKS

Filed Aug. 6, 1945 2 Sheets-Sheet 1

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APPENDIX 5

Feb. 15, 1949. A. S. FEILD

FLOATING ®O0F STORAGE TANK

Filed Oct. 10, 1944

2,461,537

2 Sheets-Sheet 1

loventor: Alexander S Feild

By his Attorney:

aiiine

APPENDIX 6

H.S DIAL ETAL

April 11, 1967

3,313,443

FLOATING COVER FOR A LIQUID STORAGE RESERVOIR

Filed June 26, 1964

3 Sheets-Sheet 1

ATTORNEYS

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April 11, 1967 H. S. DIAL ETAL 3,313,443

PLOATING COVER FOR A LIQUID STORAGE RESERVOIR

Filed June 26, 1964 3 Sheets-Sheet <

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April 11, 1967

H. S. DIAL

ETAL 3,313,443

FLOATING COVER FOR A LIQUID STORAGE RESERVOIR

Filei June 26, 1964

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United States Patent Office

3,313,443

Patented Apr. 11, 1967

3,313,443

FLOATING COVER FOR A LIQUID STORAGE

sy , = Placentia, and

William B. mare Wha Calif., assignors to Globe

Linings, lac., Beach, Calif., 2 corporation of

Filed June 26, Ser. No. 378,469

s Chee te 220—26)

The present invention relates to a floating cover for a

liquid storage reservoir, and more particularly to a float-

ing cover adapted to rise and fall with the level of the

stored liquid, according to the consumption and replen-

ishment thereof

It is an object of the present invention to provide a

floating cover which will protect the liquid in a storage

reservoir from small animals and birds and from dele-

terious substances such as dirt, radioactive fallout, and

the like, and which is strong enough and sufficiently well

supported by flotation means to support relatively heavy

loads, such as the weight of snow. The invention is par-

ticularly adapted for use in conjunction with conven-

tional water reservoirs characterized by sloping side walls,

although it can also be used in conjunction with reservoirs

and tanks having vertical walls. Such water reservoirs

usually contain large volumes of water and it is impor-

tant that the cover utilized to protect the water be rela-

tively inexpensive and yet be capable of accommodation

to the varying water areas as the water level rises and

falls in the slope-sided reservoir.

Another object of the invention is to provide such a

floating cover which is adapted to define a drainage and

expansion section or sump for concentrating rain water

so that it may be periodically removed, as by pumping

or the like.

Yet another object of the invention is to provide a

floating cover for a water reservoir which is supported

upon the surface of the water by a plurality of sets of

flotation units, and wherein each sect of flotation units

defines an unsupported area therebetween which tends to

collect rain water. A system of drainage pipes or lines

is provided with inlet openings in communication with

each of these unsupported areas for removing the col-

lected rain water.

It is also an object of the invention to provide a means

for anchoring the floating cover relative to the bottom

of the reservoir to constrain the cover against lateral

movement, which might occur by virtue of strong winds

sweeping laterally across the surface of the reservoir.

Another object of the invention is to provide a floating

cover which can be installed in a water reservoir for pro-

tection of the stored water without the necessity of re-

moving any of the water therefrom, and which includes

a fap or flaps which can be opened to afford access to

the umlerside of the cover and to the interior of the

resei voir for maumenance purposes and the like.

A further object of the invention is to provide a float-

ing cover which can be installed in a water reservoir for

protection of the stored water without the necessity of

removing any of the water therefrom, and which is adapt-

ed for support by a plurality of cables or the like dis-

posed therebeneath during emptying of the reservoir for

maintenance or repair of the reservoir.

Other objects and features of the invention will become

apparent from consideration of the following description

taken in connection with the accompanying drawings, in

which:

FIG. 1 is a plan view of a floating cover in accordance

with the present invention;

FIG. 2 is an enlarged view taken along the line 2—2

of FIG. 1;

ja: 3 is an enlarged view taken along the line 3—3

of FIG. 1;

FIG. 4 is an enlarged view taken along the line 4—4

of FIG. 1;

FIG. 5 is an enlarged view of the area designated by

the numeral § in FIG. 1;

FIG. 6 is an enlarged view taken along the line 6—6

of FIG. 1;

FIG. 7 is an enlarged view taken along the line 7—7

of FIG. 6;

FIG. 8 is an enlarged view taken along the line 8—8

of FIG. 1;

FIG. 9 is a plan view of another form of floating cover

in accordance with the present invention;

FIG. 10 is an enlarged view taken along the line

10—10 of FIG. 9;

FIG. 11 is an enlarged view taken along the line

11—I1 of FIG. 9; and

FIG. 12 is an enlarged view taken along the line 12—12

of FIG. 9.

Referring now to the drawings, the floating cover of

the present invention is designated generally by the

numeral 10 and is illustrated in association with an

earthen reservoir 12 which in the present instance is

rectangular in shape. The particular reservoir 12 is char-

acterized by downwardly and inwardly slanting or slop-

ing side walls 14, as best viewed in FIGS. 2 and 3, which

are usually formed by a compacted subgrade 13 of earth

covered with a relatively thin layer 18 of asphalt of

cement treated material.

By virtue of the fact that the reservoir 12 has sloping

side walls, the area at the upper extremity or periphery

of the reservoir is greater than the corresponding area

at the base or bottom of the reservoir and the cover 10

must be adapted to accommodate itself to the difference

in area as the level of the water rises and falls accord-

ing to the Consumption and replenishment thereof.

The cover 10 is continuous sheet of material, such as

flexible, relatively thin butyl rubber shecting or vinyl,

polyethylene or like film impervious to and adapied tw

completely overlie the water in the reservoir 12 in co-

extensive relationship to the reservoir periphery. The

sheeting or film is preferably fabtic reinforced for im-

proved tear strength. The size or area selected for the

cover 10 is such that it is appreciably greater than the

arca of the reservoir periphery, that is the periphery of

the reservoir at its upper extremity. With this arrange-

ment, wrinkles or folds 16 are formed in the cover 10,

and tend to develop adjacent the periphery of the reser-

voir 12 for reasons which will become apparent herein-

after.

The peripheral or free edges of the cover i@ are

anchored in position in substantially air and fluid-tight

relationship by a peripherally continuous sheet anchor 18

adjacent the uppermost extremity of the reservoir. Any

suitable shect anchor 18 for maintaining the cover 10

in position in substantially fluid-tight relationship is satis-

factory. One exemplary form of sheet anchor 18 is illus-

trated in FIGS. 1, 3, and 4. In this cunstruction, the

anchor 18 comprises a fixed puriion 22 which extends

about the periphery of the reservoir 12 and is convenient-

ly made of concrete firmly embedded in the subgrade 13.

Facing elements 26 are arranged coextensive with the

fixed portion 22, and are constituted of elongated lengths

of timber arranged in abutting relation at their ends.

Each anchor 18 also includes a plurality of movable por-

tions which each comprise an elongated concrete block

3 and a coexiensive facing element 32 made of a wooden

timber or the like. The plurality of blocks 3@ and

associated elements 32 are arranged in confronting rela-

tionship to the facing elements 26 and the fixed portion

22 of the sheet anchor so that the wooden facing ele-

3,313,:4%

ments 26 and 32 define jaws initially spaced apart to re-

ceive the outer margin of the cover 10. The movable

and fixed portions of the shect anchor are then moved

together to clamp the edge of the cover 10 therebetucen

by operating a plurality of nut and bolt asseniblies, one

of which is illustrated at 34 in FIG. 4. With the pro-

vision of the continuous shect anchor 18, ut will be ap

parent that the cover 10 may be quickly installed with-

out having to remove any of the water from the reservour

and without having to make any special anchorages of

provisions for anchorages in the botiom of sides of the

reservoir. In addition, a fluid-tight relationship is pro-

vided between the cover 1@ and the periphery of the

reservoir.

In order to obtain access to the underside of the cover

10 and the interior of the reservou, four flaps are

provided at the four corners of the cover 10, each flap

36 being defined by a right angular cut in the cover 10,

suitably strengthened by reinforcing strips and secured in

closed pusition by lacing 38 or the dike.

The cover 1® is floated or buoyed upon the surface

of the stored water by a plurality of float units 40 so

that in the event that the cover 10 1s accwentally torn,

it is prevented from sinking to the bottom of the reservoir

and thereby complicating repair of the cover. The cover

10 could also be floated by employing the float arrange-

ment of FIGS. 9-12, as will subsequently be described,

or the cover 10 could itself be made floatable by making

it of a material such as fcamed plastic having positive

buoyancy and characterized by marginal flexible portions

of the neutral or negative buoyancy. However, utiliza-

tion of the float units 4@ is preferable where it is desired

to drain water from the cover 10 from a number of

different points over the surface thereof

Each float unit 40 is made of buty! rubber and is

provided with ag inflation valve 43 extending above the

surface of the cover 10. That is, each float unit is affixed

to the underside of the cover by three straps 42 secured

to the underside ot the cover by a plurality of suitable

fasteners 44, the inflation valve 43 for cach float unit ex-

tending upwardly through a suitable opening in the cover

so that the unit may be easily inflated or deflated.

The float units 40 are preferably arranged in sub-

stantially uniformly distributed sets of four, the four units

of each set being oriented to define a rectangular bay

41 or unsupported area therebetween. With this arrange-

ment, rain water tends to collect in the unsupported areas

defined by the sets of float units, making it possible to

pump or otherwise drain this water off the surface of

the cover by pumping from each bay 41, as will be seen.

In addition, it is particularly noted that the float units

4@ are spaced away from the outer periphery of the

cover 1@ to define an unsupported peripheral area con-

stituting an expansion and drainage section or sump, which

is designated in FIG. 1 by dash-dot lines extending about

the periphery of the cover 1@ and identified by the numeral

46.

The area of the sump 46 is completely unsupported by

float units so that the excess material in the cover tends

to develop the folds 16. Then, as rain water collects

upon the surface of the cover, the rain water tends to

flow to the lower, unsupported arcas of the cover, com-

prising both the bays 41 and the sump 46. The water in

the sump 46 forces the folds 16 more deeply into the

stored water as the volume of rain water increases. Drain-

age of the rain water to the sump 46 may be increased

by selectively inflating the float units 4@ so that the more

interiorly disposed float units ride higher on the reservoir

water cause the rain water to flow exteriorly or oulward-

ly into the sump 46.

In certain applications water collection in the area of

the sump 46 is sufficient without resorting to the inflatable

float units 4@, and in these instances an arrangement like

that illustrated in FIGS. 9-12 can be used. as will be

more particularly described hereinafier.

A plurality of flexible drain lines 48 are arranged to

extend across the cover 1@ as best illustrated in FIG. 1,

and afe each provided with inlet openings $@ in com-

munication with the unsupported bays 41 defined by

each set of the float units 40. One extremity of each of

the drain lines 48 is capped or closed, as at 49, and the

opposite extremities of the lines are connectej to a mani-

fold drain line $2 extending transversely of the lines 48

at one end of the reservoir. In addition, a continuous

sump drain line $4, normally located at a level below

that of the line $2, extends about the periphery of the

cover and is provided along its length with openings (not

shown) in communication with the sump 46.

The manifold line $2, as best illustrated in FIG. 2,

is connected by a flexible drain line $6 to a drain conduit

$8 secured by a bracket $9 to the facing element 32 in

the berm 2@ of the reservoir. The drain conduit $8 is

made of a length sufficient that it will reach the manifold

line $2 at the lowest level to which the water in the res-

ervoir falls. The drain conduit 58 is connected to any

suitable pump or drainage means (not shown) whereby

the rain water collected in the bays 41 can easily be re-

moved.

The sump drain line 54 is connected by a flexible drain

line 6@ to a drain conduit 61 which is located alongside

the drain line $6 and is connected to the facing element

32 by the same bracket $9 which secures the drain con-

duit 58. Like the flexible line $6, the line 6@ is made of

a length sufficient that it will reach the sump line $4 at

its lowest leve! within the fold 16 defining the sump 46.

The drain conduit 61 is connected to the same pump or

drainage means (not shown) to which the drain conduit

58 is connected so that the pump can take a suction on

either or both of the conduits, as will be apparent to

those skilled in the art.

The cover 1@ is constrained against lateral movement,

as might occur by virtue of a wind sweeping across the

surface of the reservoir, by a plurality of anchors 62 rest-

ing upon the bottom of the reservoir. Each anchor 62

is connected to the cover by a flexible line 64 made of a

length sufficient to accommodate the rise and fall of the

cover 10 during use of the reservoir, the upper end of

cach line 64 being secured to a fitting 66 which is adhered

or otherwise secured to a reinforced section 68 of the

cover 10.

Referring now to FIGS. 9 through 12, there is illus-

trated another cover in accordance with the present inven-

tion, designated generally by the numeral 70. The cover

in °

The size of the cover 7@ is greater than the area of

\he reservoir at its upper periphery so the

are formed at the outer margin of the cover 70, as was

the case with the cover 10. The cover 7@ is fabricated by

securing to:ether a plurality of elongated strips of the

cover material, the seams between such strips being best

illustrated in FIG. 11. The adjacent margins of the

cover strips are arranged to form a lap join any

able adhesive 72 is interposed between the lap portions

of the strips to secure them together.

A plurality of elongated floats 74 and 75 are secured

to the underside of the cover 70, as best illustrated in

FIGS. 9 and 10, by a suitable adhesive 76. The floats

74 extend perimetrically along the sides and ends of the

cover 7@ in a rectangular configuration and, in one em-

bodiment, are approximately 12 inches wide. Each float

74 is elongated and abuts the adjacent floats at its ends.

Each float 74 and 75 includes a central portion 78 made

of buoyant material such as one of the well known pias-

$3,313,443

tic or rubber foam materials, and also includes an outer

casing 80 made of butyl rubber and completely envelop-

ing the portion 78.

The peripheral band of floats 74 are spaced from the

edge margin of the cover 70 and define the unsupported

sump portion 46 between the marginal floats and the edge

of the cover 70. In addition, the plurality of floats 75,

preferably of lesser width than the marginal floats 74,

extend across the cover beneath each of the seams be-

tween the cover strips. Thus, the pattern of floats 74 is

a rectangular perimeter of floats, the floats 75 constitute

a plurality of strings of floats across the cover in parallel,

spaced relationship to one another.

Rain water collects in the sump 46, as previously de-

scribed in connection with the first embodiment, by forc-

ing the folds 16 deeper into the water stored in the

reservorr.

Referring now to FIG. 12, the edge margins of the

cover 70 are secured in position adjacent the berm cf

the reservoir in substantially fluid-tight relationship by a :

peripherally continuous concrete footing 82 firmly em-

bedded in the subgrade 13. The footing 82 includes a

plurality of equally spaced siuds 84 embedded therein, and

a plurality of elongated anchor elements 86 are arranged

in end-abutting relationship along the length of the foot-

ing 82 and are each provided with suitable openings for

receiving the uprer ends of the studs 80. The margin

of the cover 7@ is also provided with similar openings

for the studs 80 so that the cover may he secured in po-

sition by first disposing the margin thercof in position

upon the studs 80 and thereafter placing the anchor

clements 86 in position so that the cover 70 i, sandwiched

between jams constituted by the elements 86 and the

upper surface of the footing 82. A plurality of nuts 88

are then threaded upon the plurality of studs 8@ to

firmly secure the cover 7@ in position.

With the arrangement just described, no provision aeed

be made for pumping rain water from the central por-

tions of the cover. Rather, the arrangement of floats

74 has been found to float the cover high enough in the

reservoir water that rain water can drain into the sump

46 for removal by any suitable pump (not shown).

Thus, the sump 46 can be drained merely by disposing a

flexible drain line in any portion of the sump and taking

a suction until the collected water is removed, as will be

apparent.

The footing 82 also includes a plurality of peripherally

spaced and embedded |-bolts 98, each I-bolt on one side

of the reservoir having its counterpart located in the con-

fronting footing 82 on the opposite side of the reservoir.

With this arrangement supporting cables 92, indicated in

dash-dot outline in FIGS. 10 and 11 can be disposed be-

neath the cover 70 and connected at their opposite ex-

tremities of the I-bolts 90. The cables 92 thus extend

bencath the cover in parallel relationship, as indicated

by the paralici dush-dot lines 94 in FIG. 9, so that when

it is desired to repuir the bottom or side walls of the reser-

voir, the stored water can be emptied and the cover 70

supported or suspended above the reservoir floor. The

cables 92 may be installed beneath the cover and attached

to the I-bolts 90 when the cover is first installed, if suffi-

cient slack is provided in the cables to permit the cover

to rise and fall with the change in level of the stored

water, or the cables may be installed only when it is

desired to empty the reservoir. In this case, skin divers

can easily install the cables in their proper positions.

Although not shown, the underside of the cover 70 in

the area of the cubles ix preferably suitably reinforced

by adhesively securing an eatra thickness of buty! sheet-

ing, thereby reducing possible abrading of the underside

of the cover by the cables 92.

From the foregoing it will be apparent that a floating

cover has been provided which is adapted to not only ac-

commodate itself to the rise and fall of the water level

in a reservoir, but which is also adapted to define a sump

area adjacent the periphery of the reservoir for the col-

lection of rain water whereby the rain water may be

easily pumped away or otherwise removed. In addition,

the cover completely overlies the water in the reservoir

and prevents contamination of the water by deleterious

substances or by small animals and birds.

Various modifications and changes may be i

regard to the foregoing detailed description without de-

parting from the spirit of the invention or the scope 0

the following claims.

We claim:

1. A floating cover for a liquid storage reservoir

wherein the level of the stored liquid varies, said cover

comprising:

a continuous sheet of flexible material impervious to

and adapted to completely overlie the liquid in the

storage resservoir in coextensive relationship to the

reservoir periphery for attachment thereto, the area

and flexibility of said sheet permitting formation of

depending folds in said sheet;

a plurality of anchors adapted to rest upon the bottom

of said reservoir;

a plurality of flexible lines connecting said anchors to

various portions of said sheet to constrain said sheet

against lateral movement over the surface of the

stored liquid;

outer periphery of said sheet, rain water tending to

collect in said depending folds and force said folds

deeper into the stored liquid as the volume of rain

water increases.

Le E

2 tis 4

3,313,445

sheet, the peripheral edges of said sheet being dis-

posed between said jaws and firmly held thereby in

the closed position thereof;

a plurality of anchors adapted to rest upon the bottom

of said reservoir;

a plurality of flexible lines connecting said anchors to

various portions of said sheet to constrain suid sheet

against lateral movement over the surface of the

stored liquid;

and flotation means on said sheet interiorly of the outer

periphery thereof for supporting said sheet upon the

surface of the stored liquid whereby said depending

folds tend to define a sump section adjacent the outer

periphery of said sheet, rain water tending to collect

in said depending folds and force said folds deeper

into the stored liquid as the volume of rain water

increases.

4. In combination:

a liquid storage reservoir having sloping side walls and

a peripheral berm;

anchor means located about the periphery of said

reservoir adjacent said berm and including fixed and

movable portions constituting jaws, and further in-

cluding means for urging said jaws closed, said an-

chor means mounting u plurality of cable mounts;

continuous sheet of flexible miuterial impervious to

and adapted to completely overlic the liquid in the

storage reservoir in coextensive relationship to the

reservoir berm, the area and flexibility of said sheet

permitting formation of depending folds in said

sheet, the peripheral edges of said sheet being dis-

posed between said jaws and firmly held thereby in

the closed position thereof;

flotation means on said sheet interiorly of the outer

periphery thereof for supporting said sheet upon the

surface of the stored liquid whereby said depending

folds tend to define a sump section adjacent the

outer periphery of said sheet, rain water tending to

collect in said depending folds and force said folds

deeper into the stored liquid as the volume of rain

water increases;

and a plurality of cables extending between said cable

mounts and beneath said sheet in positions to sup-

port said sheet in the absence of liquid in said reser-

voir,

5. Apparatus for preventing contamination of the

stored liquid in an open reservoir, comprising:

a continuous sheet of flexible, relatively thin material

impervious to and completely overlying said liquid in

coextensive relationship to the periphery of said

reservoir, the size of said sheet being greater than

the area encompassed by the upper periphery of said

reservoir;

anchor means securing the outer periphery of said

sheet to the upper periphery of said reservoir in

fluid-tight relationship therewith;

and float means on said sheet spaced inwardly from the

upper periphery of said reservoir to raise and lower

said sheet on the surface of said liquid as the level

thereof varies, with said float means supporting the

area of said sheet engaged by said float means at a

higher elevation than the portion of said sheet spaced

outwardly of said float means and inwardly of said

anchor means whereby said portion forms a depend-

ing rainwater collection sump.

References Cited by the Examiner

UNITED STATES PATENTS

ON (“rr 220—26

2,497,850 2/1950 Allen .....--..-.-... 220—26

2,815,809 12/1957 Jacobs et al. ....-..--- 4—172

2,867,346 1/1959 Champagnot _.....-_- 220—26

2,970,716 2/1961 McCammon .-.....-- 220—26

I MS 220—26

3,120,320 2/1964 Wissmiller _.......-.- 220—26

NN ( yy 4—172

FOREIGN PATENTS

888,975 9/1953 Germany.

1,154,765 9/1963 Germany.

THERON E. CONDON, Primary Examiner.

JAMES R. GARRETT, Examiner.

CERTIFICATE OF SERVICE

I, FRANCIS A. UTECHT, a member of the Bar

of this Court, hereby certify that on October 6,

1977, three copies of the attached PETITION FOR

WRIT- OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT were mailed, postage

prepaid, to attorneys for Respondents, addressed as

follows:

JAMES EICKELBERG

City Attorney

Post Office Box 486

Corvallis, Oregon 97330

KOLISCH HARTWELL & DICKINSON

M. H. HARTWELL, JR.

1004 Standard Plaza

Portland, Oregon 97204

DEZENDORF, SPEARS, LUBERSKY & CAMPBELL

GEORGE L. KIRKLIN

800 Pacifie Building

Portland, Oregon 97204

I further certify that all parties required

to be served have been served.

Francis A. Utecht

Suite 910 Fidelity Federal Plaza

555 East Ocean Boulevard

Long Beach, California 90802

— Counsel for Petitioners

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.