# Petition — Clark Equipment Co. v. Keller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1026%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 825 ## Text Supreme Court, U. = EILED MAY 18 1978 IN THE | Supreme Court of the United States rooax, sr. CLERK OCTOBER TERM, 1977 No. @7- 1640 CLARK EQUIPMENT COMPANY, Petitioner versus LOUIS J. KELLER AND CYRIL N. KELLER, Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT JACK E. TOLIVER Circle Drive Buchanan, Michigan 49107 FRED E. SCHULZ and Wildman, Harrold, Allen & Dixon One IBM Plaza Chicago, Illinois 60611 JOHN D. KELLY, Vogel, Brantner, Kelly, Knutson, Weir & Bye P.O. Box 1329 Fargo, North Dakota 58102 Attorneys for Petitioner INDEX TO PETITION Page 7 EE Se ee ee 2 : CE 46466400000 000066064600005000K0080800008 2 EE a Ee 2 Constitutional and Statutory Provisions Involved .......... 2 RTGS dv cucevcesecaceccssssecesocess 3 CS ne 4 POPSET TOTCTT TU TT TTT TUT TTT TT TT TTT 15 Appendix A — Court of Appeals Opinion ............ Al-42 Appendix B — District Court Opinion .............. B1-96 Appendix C — Notice — Commissioner of Patents ...... C1-2 Appendix Index (separate volume) Exhibit Title of Exhibit Pages: Number* 1. Keller et al Patent No. 3,151,503...... 14 ise 2 2. Loyd Patent No. 1,623,929 .......... 510 ... 84 3. Schreck Patent No. 2,336,642 ........ 11-18 ... 85 , 4. Hellwarth Patent No. 1,470,078 ...... 19-25 ... 86 5. White Patent No. 2,936,840 ......... 26-35 ... 75 PEED cc cccccascesecscoces 36 ... 100 *Trial exhibit numbers are used in the District Court’s opinion appearing in Appendix B. TABLE OF AUTHORITIES Aluminum Company of America v. Amerola Products Corporation, 552 F.2d 1020 i Cn 6 ccna cedacecdaeraudeeew een Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57 (1969)......... Burland v. Trippe Manufacturing Company, 543 F.2d 588 (7th Cir. 1976)............... Dann v. Johnston, 425 U.S. 219 (1976)......... Digitronics Corp. v. The New York Racing Association, Inc., 553 F.2d 740 CE Git. BET ED cece ccccccsccescccccceces Fred Whitaker Company v. E. T. Barwick Industries, Inc., 551 F.2d 622 GEG. BTU cc cccccscccccescesecsceee Hotchkiss v. Greenwood, 11 Howard 248, 52 U.S. 248 (1851)... 2... cee eee eee eees Graham v. John Deere Co., 383 U.S. 1 DD sce c Kt byob bsduseneswenecesees.es Great Atlantic & Pacific Tea Company v. Supermarket Equipment Corporation, 340 U.S. 147 (1950) ..... ccc eccceceeces ii Page Page : Kamei-Autokomfort v. Eurasian Automotive Products, 553 F.2d 603 (9th Cir. 1977) .............. 6 . Kearney & Trecker Corporation v. Cincinnati Milacron Inc., 562 F.2d 365 (6th Cir. 1977) ........... 6 | Lincoln Engineering Company of Illinois v. ' Stewart-Warner Corporation, ' 303 U.S. 545 (1938) 2.2.0... eee cece ccc cceeeeeee 7 se eeeees 6 Reiner v. I. Leon Co., 285 F.2d 501 ea 1s unloaded, approximately 70% of the weight of the loader is on the rear axle and 30% of the weight of the loader acts on the steer the loader. When the maternal handling member ss loaded. the weight distribution shifts, with approximately 70% of the weight acting on the front axle and 30% on the rear. Again the steering. 8. The 117 patent embodies the features of a commercial Tl. Reduction to Practice of the Structure A M-400 9. By December, 1960, the M-200 Melroe Loader was modified by adding a rear axle and two driven wheels. This loader and was identical im all other respects to the M-200 loader (Exhibits 155, 162, 173, 200). 10. The M-400 loader was demonstrated to representatives of the Farmhand Company (hereinafter “Farmhand™) at Gwinner, North Dakota, December 1, 1960. The M-400 was in commercial production not later than December 1, 1960, and was later sold both as the F2 (Farmhand) and the Melroe M-400 loader (Exhibit 200). 11. The following trial exhibits disclose the structure of the M-400, or Farmhand F2 loader: (a) Exhibit 155, “Operatoc's Manual — Melroe M-200, M-400 B35 Self Propelled Loader”. See also Exhibit 256. (>) Exhibits 276-289 inclusive are photographs of the M-400 loader. (c) Exhibits 225 — Farmhand Sales Literature. (d) Exhibits 159, 160, 162 and 173 are blow-ups of drawings included within Exhibit 155, the M-200 M-400 Operator's Manual. 12. The essential features embodied within the 18 claims of the 117 patent (and as enumerated in Findings 3-7 above) were not reduced to practice or contained im either the M-200 or M-400 loader. B Preproduction M-440 Loeders SS OW at ay 1961, ‘the Melroe organization was due partially to the insistence of Louis Keller, Melroe decided market. leaving loader 14. The new loader eventually became known as the M440. and in contrast to the old M200 and M400 ~tegrnetestite to make it more appealing to the fertilizer industrv. 15. The evidence established Mel on built in 1961. Olson, an engineer with Melroe, and Louis Keller. It is depicted in Exhibits 125-128, 341 and 342 (hereinafter referred to as the “Clyde Olson” machine). 17. The second preproduction machine was the machi tested by Louis Keller at the gravel pit near Gwinner, North Dakota, and is depicted in Exhibits 130-132, 381-384 and om jing slides (hereinafter referred to as the “gravel pit” machine |. 18. Sa a ee type”). 19. The fourth loader (hereinafter referred to as the Fourth Prototype) was built for tooling purposes and is allegedly evidence is inconclusive and the Court is unable to conclude which, if any, photograph depicts the Fourth Prototype. C. Ciyde Olson Loader ae. Sie pte Giese hasihn wns Oahlind wat Rtas Gon Ge 21. ‘Tee informal minutes of 2 meeting between Meroe personnel and Farmhand make reference to “ . a new four unit ....” Based on the sparse evidence surrou this meeting, any significance attcched to this allusion by ether 200). (Exhibit 22. The Clyde Olson loader clutch system had slide cam type M-400 loaders (Exhibits 155, _ 199). The first prototype portions of the stanchions used on the M-200, M-400 machines (Exhibits 125-128, 155). Pe per-pla gad . and the side compartments extended back: they were enclosed to contain fuel, hydraulic oil, and lubricating oil A with the Clyde Olson configuratio put into production. 25. The prototype machine known as the Clyde Olson loader B37 had few, if any, of the elements of the 18 claims of the 117 patent. D. Gravel Pit Loader 26. Between the Fe a Mp ew Banter Hag 1961", and the inference would arise the machine was con- structed pnor to or during that month. 28. The Gravel Pit Loader was tested extensively by the employees of Melroe, including Louis Keller, in a gravel pit near Gwinner, North Dakota, as well as at the home of Cyril Keller in Rothsay, Minnesota. 29. The Gravel Pit Loader differed from the Clyde Olson ene Sh nee apes eye somewhat trangular shape to a rectangle, and (b) The structure of the boom bucket mechanism and upnghts were redesigned. 30. The prototype machine known as the Gravel Pit loader, did not include all the elements of the 18 claims of the 117 theended chatch actuators. E Third Prototype. 3i. A Third Prototype was completed sometime after July 4, 1961, and probably before August 1, 1961. It was constructed jointly by Louis Keller, Gordon Irwin, a Melroe engineer, and Cliff Melroe. The Third Prototype was painted white. 32. The Third Prototype had the slide cam type clutch 33. The Third Prototype was sent to Imperial Eastman Company in Manitowac, Wisconsin, for the imstallation of found necessary after testing at the home of Cyril Keller over the July 4th weekend in 1961. (See Exhibits 433, 433A, and Exhibit 137, a drawing dated 62-61 relating to the lower eee enim, Ge Sind Cates ws end te tes Oe we testing machine im the gravel pit area at Gwinner, North Dakota. The machine was tested in Gwinner during August, 1961, and The most dramatic problem was the sticking of the slide cam actuators which would cause the machine to cant or jerk psa asa nag egg toaster shane operator. In addition, the clutches would “oil can™ and the side _ plates bow, causing the clutches to slip. 35. The evidence shows the first threaded actuator mechanism was probably installed im a loader in September. The evidence is inconclusive. A testing program commenced some- made to go into production with a new loader line, the M-440, which production began in December, 1961. F_ Threeded Rotery Actuetor. 36. The concept for the right and left hand threaded rotary actuators to operate clutches was developed by Louis Keller and Chitford Metroe. 37. An Orval O'Neil drawing, Exhibit 141, of a clutch Senn tp Geeneen eb is Gee Ge een. Gs drawing is dated July 24, 1961, and shows an approval date of October 13, 1961. 38. Cliff Melroe constructed a model of the threaded actuator assembly prior to the drawing of Exhibit 141 by O'Neil. 39. The threaded actuator assembly was placed imto a loader which had flat clutch plates, but there was difficulty in to slip and could not be solidly engaged. This loader was the fourth prototype and was referred to at trial as the Cy Keller demo. 40. As a result of the difficulties with the flat clutch plates, a problem was caused by the “oil canning™ of the clutch plates. (The term “oil canning™ refers to the flexing of the clutch plates in a manner similar to the bottom of a round oil can when pressure is apphed at the center). 41. The assembly, depicted in Exhibit 141, was designed by Oral O'Neil as a means of eliminating the oil canning problem. The design of the clutch plates was changed to the shape of a dome to gain strength along the axis of the clutch lining. 42. Exhibit 147 is a detailed drawing of Item 8 on Exhibit 141, the input clutch. Exhibit 147 also depicts the oil pickup slots on the input clutch which was designed to pick up oil for the clutches which would be thrown about the imside of the gear case by the chains. The concept was to lubricate the clutch the input clutches would be used on both sides of the machine and would be turning im both directions. Exhibit 147 is dated July 29, 1961, and has an approval date of October 13, 1961. 43. The type of drive in a loader could be recognized by the type of nut on the outside of the side compartment. The B40 hexagon nut as seen on Exhibits 135, 136 and 133. The threaded clutch actuator had a castigated nut as illustrated on drawing Exhibit 141. 44. The dates on Exhibits 141 and 147, July 24 and July 29, 1961, respectively, are not accurate dates as to the reduction to practice of the dome shaped clutch plate or the oi pickup slot. These two developments were in response to problems incurred in operation of the Fourth Prototype in which the threaded practice” occurred at least after the first experience with the threaded actuator. The best evidence shows Exhibits 141 and 147 were drawn over a period of several months, during the for the purpose of a check out on the final production tooling. This machine included the dutch and drive asembly a depicted in Exhibit 141, including im particular the threaded clutch actuators identified as element 6 and the oil caps identified as element 14 of Exhibit 141. 66. O'Neil, the Matroe engineer who dew Exhie 141 to eusbic to cecal any quent which weal daw Ge Geathantte- type was built prior to the fourth quarter of 1961. In any event, the construction of the clutch assembly in drawing Exhibit 141 would have taken 2 period of time to construct since i was being made for the first time and the designers were dealing 47. The 4th Prototype was completed after the third proto- type but pnor to the mass production of the 440 loaders. Like the third prototype, it was painted white. B-41 48. The 4th Prototype also had vertical ribs on its side plates which stiffened them and prevented them from bowing. 49. There was a great deal of contradictory evidence sub- mitted to date the construction of the 4th Prototype. That date is crucial since the parties do agree this loader was the first to imcorporate all elements of the threaded clutch actuator concept eventually put into the M-440 production. The most credible evidence establishes that date to be near the end of the third quarter of 1961. 50. Clark suggests the fourth prototype machine was delivered not later than August, 1961, to Cyril Keller for use as hos pemremarg! machine. The conclusion is based on the oral, sorroborated testimony of John Sayers. 31. The Court attributes little weight to the testimony of John Sayers, a former salesman for Melroe, for the following reasons. (a) On direct examination the witness had a remarkable facility for remembering precise details relating to events 14 years back. On cross examination he was vague, indefinite and evasive. The Court’s impression is that he was a partisan advocate and contributed little or nothing to the Court in its responsibility for searching out the truth. (b) The witness’s testimony regarding the demonstration activities of Cyril Keller in the summer of 1961 is rebutted by Keller and considering the record as a whole, the Court attributes credibility to Keller’s testimony rather than Savers’. (c) Cyril Keller denied having given John Sayers Exhibit 208, 2 picture of the gravel pit machine at Keller’s home in Rothsay, Minnesota, on July 4, 1961. Keller’s testimony is that he gave certain slides of that event to Melroe’s patent attorney, John Swindler, at his request for use in the Universal lawsuit, including the slide of Exhibit 208. The slides were never returned. B-42 (d) Cyril Keller also testified he did not receive a M-440 type demonstrator until the end of November or the first part of December, 1961. Prior to that and during the summer of 1961, he demonstrated an M-400 M-200 model. (e) Cyril Keller testified there was no new type white loader at the 1961 Minnesota State Fair. The loaders exhibited at the 1961 Minnesota State Fair were M-400 and M-200. In 1960, the M-400 would not have been available and by 1962, the M-444 model was in production (Exhibit 434). (f) Keller further testified he did not transport a white loader to Minneapolis in the summer of 1961, and further it would have been physically impossible to transport a loader, two loader buckets and a manure fork in a pick-up truck as Sayers testified had happened. (g) Keller specifically testified he did not have a new type white loader in the summer of 1961, nor could he ever recall demonstrating any type of Melroe loader with John Sayers. (h) Sayers’ testimony is also contradicted in part by the testimony of Orval O’Neil. (i) Sayers’ testimony is further contradicted by demonstrative evidence. (j) Sayers’ testimony that he received a new white loader for demonstration purposes in July, 1961, is not corroborated by any of the other evidence in the case and is not credible. 52. At different points in the trial, a number of photographs were admitted into evidence purporting to be photographs of the fourth prototype. Among those are Exhibits 21-25, 27, 103-118, 165-167, 208-213, 214-218, 236-259. In most cases, the photographer was unknown. Their significance was related to the testimony of various witnesses who in one way or another attempted to date the entry of the fourth pre- production loader into the loader market. 53. In all cases, the witnesses made identification on the basis of outward appearances. None of the photograph exhibits expose the insides of the side compartment and only one witness, John Sayers, alleges he examined them. B-43 54. Exhibits 165-167 were identified by Orval O'Neil as the fourth prototype loader, noting specifically the location of the instrument panel and the construction of the side panels with vertical stiffening ribs. However, O’Neil was unable to date the construction of the fourth prototype. There was no further oral testimony, other than Sayers’ allegation, that this fourth loader was used by Cyril Keller as a demonstrator, nor was there any testimony that it was constructed at such a time that Cyril Keller could have used it as a demonstrator prior to the last quarter of 1961. 55. O'Neil identified the machine depicted in Exhibit 24 and Exhibits 214 through 218 as also being the fourth prototype, this time citing the presence of vertical ribs on the side plates, the configuration of the fabricated rear grill, the configuration of the seat mounting brackets and the location of an hourmeter. And based on a comparison of these components to the same elements on the machine depicted in Exhibits 103-118, O’Neil testified that machine was not the fourth prototype. The machine in Exhibits 103-118 is presently owned by David West and has the Serial Number 1599. It is Clark’s contention the West machine is the fourth prototype. The owner of the machine refused to permit it to be disassembled. 56. The West machine depicted in Exhibits 103-118 does not have an air scoop, a feature included on the fourth prototype according to O’Neil. 57. John Sayers identified the machine depicted in Exhibits 209 through 213 as photographs of a loader which Cyril N. Keller had in his possession in July or August, 1961. This is a loader Sayers alleges he inspected in detail. However, a comparison of Exhibit 210 (identified by Sayers as Cy Keller’s Demonstrator), Exhibit 215 (identified by O’Neil as the fourth prototype) and Exhibit 114 (the West machine also said to be Cyril Keller’s Demonstrator), show these machines to be differ- ent from each other. The configuration of seat reversing brackets in Exhibit 215 are different from the configuration of B-44 the seat reversing brackets shown in Exhibit 114, while the machine depicted in Exhibit 210 has no seat reversing brackets. Further comparing Exhibit 213 (identified by Sayers as being the Cy Keller Demo), Exhibit 216 (identified by O’Neil as the fourth prototype) and Exhibit 115 (the West machine asserted by Clerk to be the Cy Keller Demo) clearly shows that the fabricated rear grills of these three machines are different from one another. The grill depicted in Exhibit 216 is different in construction and configuration from that depicted in Exhibit 115 and Exhibit 213. Further, an examination of the grill of the machine depicted in Exhibits 211 and 213 shows the small centrally located power take-off plate is on the exterior rear surface of the grill bars, while the small centrally located power take-off plate shown on the rear grill of the West machine in Exhibits 111 and 115 is located on the interior surfaces of the grill bars. However, an examination of Exhibits 214 through 218, and Exhibits 209 through 213 shows both machines are provided with the side plates having vertical ribs. 58. The machine depicted in Exhibits 236 through 239 (alleged by Sayers to be his Demonstrator) discloses a machine provided with side plates having vertical ribs while the machine depicted in Exhibits 133 through 136 (also alleged by Sayers to be his Demonstrator) discloses a machine provided with side plates but having horizontal ribs. The machine depicted in Exhibits 133 through 136 is not the machine depicted in Exhibits 236 through 239. An examination of the machine depicted in Exhibits 236 through 239, the machine depicted in Exhibits 209 through 213, the machine depicted in Exhibits 214 through 218, and the machine depicted in Exhibits 111 and 115 show that the respective rear grills of these machines are entirely different one from another. Yet, the machine depicted in Exhibits 236 through 239, the machine depicted in Exhibits 214 through 218 disclose loaders provided with side plates having vertical ribs. The record does not support a finding that the loader B-45 depicted in Exhibits 166 and 167 was ever delivered to Cy Keller, nor does it support a finding that the loader depicted in Exhibit 165 is the same loader identified in Exhibits 166 and 167. Further, the record does not support a finding that the loader depicted in Exhibit 24, Exhibits 214 through 218, 166 and 167 was ever deiivered to Cyril Keller prior to the fourth quarter of 1961. III. Sale Activity Surrounding a New Melroe Loader Incorporating a Threaded Clutch Actuator. A. 1961 Minnesota State Fair. 59. There is conflicting testimony as to whether there was a white Melroe loader at the Minnesota State Fair in 1961. 60. The Minnesota State Fair in 1961 was held August 26 through September 4, 1961. 61. In 1961, Robert A. Christopher was employed by Gould, Brown & Bickett as its public relations director and as such was in charge of all product news publicity. 62. Gould, Brown & Bickett was retained by Melroe no later than August 19, 1961, to commercially promote “the redesigned Melroe loader . . . .”. (Exhibit 177). 63. Lynn Bickett of Gould, Brown & Bickett, Roger Melroe, Cliff Melroe, Syl Melroe and Les Melroe of the Melroe Manufacturing Company were present at a meeting which took place on August 19, 1961, at Gwinner, North Dakota. [14] 64. The stated purpose of the August 19, 1961, conference was to make basic promotional plans for intro- duction of the redesigned Melroe Loader in the industrial field.” The minutes did not reflect a modei number, nor did they set out any details with respect to the “redesigned Melroe Loader”’. The minutes do not constitute an “offer for sale” of the M-440 Loader within the meaning of 35 U.S.C. § 102(b). 65. At the August 19, 1961 meeting, Sylvan Melroe agreed B-46 to provide Gould, Brown & Bickett with information and photugraphs of the new loader. Photographs were sent in September and were attached to a News Release dated October 20, 1961. The photographs had been retouched by Gould, Brown & Bickett to depict the new “Bobcat” logo in place of the old Melroe logo (See Exhibit 181, pg.4 and Exhibit 204). 66. Christopher testified he observed a loader such as the one depicted in Exhibit 204 at the 1961 Minnesota State Fair at the Melroe exhibition. 67. The tradename “Bobcat” was not adopted for any Melroe product until sometime after the Minnesota State Fair and before the October 20, 1961 press release. 68. As with a great deal of the documentary evidence in this case, most of the exhibits relating to the activities of Gould, Brown & Bickett came from Clark files. The records of Gould, Brown & Bickett had been destroyed sometime after the company had been sold in 1965. 69. Christopher was unfamiliar with front end loaders in general and had never heard of Melroe Manufacturing until August of 1961. He was unfamiliar with the Model Number designations. He recalled no other Melroe products at the Fair. 70. There are no photographs of a white Melroe loader at the Minnesota State Fair in 1961 nor is there any documentary evidence supporting such a finding. The only photograph of the Melroe Exhibit at the Minnesota State Fair in 1961 is Exhibit 434 and 434A, which depict the M-400 Melroe loaders. 71. Sylvan Melroe testified there were no white loaders at the 1961 Minnesota State Fair. 72. On August 25, 1961, Sylvan Melroe wrote to M. K. Ruesch of Cominco Products, Fergus Falls, Minnesota, relating to the Melroe Loader line. The letter made reference to the M-440 series and added as a postscript: “The M-440 will be on display at the Minnesota State Fair Block #30 — Lot #5 & #6.” (See Exhibit 497). Melroe’s testimony was inconclusive as to the letter’s origin or B-47 meaning. He continued to insist no white loader was present at the 1961 Minnesota State Fair and that the first photographs of any white loader were those sent to Gould, Brown & Bickett in late September, 1961. 73. Cyril Keller testified that no white loaders were at the 1961 Minnesota State Fair. 74. Charles Brown, formerly of Gould, Brown & Bickett, testified he observed and operated a white loader such as the one depicted in the photographs in Exhibit 181. 75. The evidence relating to the presence of an M-440 at the 1961 Minnesota State Fair is inconclusive and is not sufficient to support a finding that a White Melroe loader was on display at the 1961 Minnesota State Fair. B. Advertising Activity 76. The critical statutory bar date on the 117 patent under 35 U.S.C. § 102(b) is October 23, 1961. Robert A. Christopher prepared a draft of a news release concerning a New Melroe Loader in September of 1961. The draft (Exhibit 79) was dated September 29, 1961, and was sent to Sylvan Melroe in Gwinner for his approval. 77. After certain changes, a final draft of the news release was completed and at a date very close to the critical date of the 117 patent, was distributed to a large number of trade publications and newspapers. (Exhibit 181). The distribution was a Sales effort. The news release is dated October 20, 1961. There was no direct evidence as to the date of mailing. 78. The October 26, 1961 edition of the Sargent County Teller published information about the M-440 Bobcat, together with a picture. (See Exhibits 73A, B, C and D). The article was almost a verbatim recitation of the contents of the Gould, Brown & Bickett news release. 79. In a letter dated October 27, 1961, New Equipment Digest indicated they would publish the news release in their publication (Exhibit 190). 82. A substantial number of sales inquiries resulted from the issuance of the News Release (See Exhibit 196). Sl. Exhibit 181, the News "lease, indicated the M-440 Bobcat loader would be sold fo. $2,750. C. Farmers Union Central Exchange. 82. Howard Hull, manager of the Soil Service Centers for Farmers Union Central Exchange (now CENEX), on October 4, 1961, authorized the purchase of “3 Loaders with Fertilizer bucket Model 440” from Melroe Manufacturing Company, (Exhibit 29) The price was $2,750 each and a November 83. Exhibit 29 was a Farmers Union Purchase Order dated October 3, 1961. Exhibit 28 was a Melroe order form relating to the same transaction and covers several points: (a) Reference is made in it to Farmers Union Central Exchange Purchase Order No. $-02947; (b) The salesman was Wallace Shelly: (c) “3 Model 440 Loaders with Fertilizer Buckets” at $2,750 each were ordered. and (d) The loaders were to be for the following Farmers Union Central Exchange Plants, which were fertilizer plants then under construction: (i) 1 unit Casselton (ii) 1 unit Lake Presston (iii) 1 unit Britton. 84. The purpose of Exhibit 29 was to buy three loaders. Model number M-440. 85. The Melroe order form, Exhibit 28, predates the Farmers Union Central Exchange Purchase Order, Exhibit 29. by one day. Exhibit 28 was prepared based on information given during a telephone call, it carmes the same purchase order number as Exhibit 29 and states “confirmation will follow”. Bas 86. The order from Farmers Union Central Exchange was acknowledged by Melroe on October 4, 1961. (Exhibit 30). 87. Howard Hull testified Exhibit 29 was prepared and handled in the ordinary course of business. 88. There is no direct evidence that Melroe ever received a copy of Exhibit 29, nor is there direct evidence that Farmer's Union Central Exchange ever received a copy of Exhibit 28. (Exhibit 29) representatives of the Melroe Manufacturing Company demonstrated a white front end loader to him and other representatives of Farmers Union Exchange in St. Paul and Dundas, Minnesota. 90. Hull further testified the machine he saw demonstrated Exhibits 21, 22, 23, 24, 25 and 27. 91. The first production model of the M-440 was delivered to Farmers Union Central Exchange at Britton, South Dakota. The Bil! of Lading is dated January 4, 1962 (Exhibit 33). The machine was Serial No. 1601 (Exhibit 122). 92. Hull's testimony relating to the demonstration at Dundas, Minnesota, of a white front end Melroe Loader called the M-440 was corroborated by the testimony of Elden Evjen. attended the Dundas demonstration “in the late summer or early fall” of 1961. 93. The testimony of both Hull and Evjen was supported by the testimony of Victor B. Gehrman, who was a service manager for Farmers Union Central Exchange in 1961. 94. Gehrman testified he saw two demonstrations of a white Metlroe front end loader in 1961. One demonstration was in St. Paul, and the other at Dundas, Minnesoia. 95. Gebrman testified as did Evjen and Hull that Farmers end loaders without a demonstration since the loader was a new product. 96. Gehrman also stated the loader depicted in Exhibits 21-24 were similar to the loader he saw demonstrated. indicated that the loader would be available about January, 1962. 98. Neither Gehrman, Evjen nor Hull could testify to to the structural features of the white loader they saw demonstrated. D. Midiend Cooperetives. 99. During 1961, Midland Cooperatives was engaged in the construction of bulk fertihver blending plants in Minnesota, 100. Ora Alvin Messick was employed by Midland Cooperatives from February, 1961, to February, 1965, and one of his duties was the task of establishing numerous company owned rural fertilizer plants. The initial step in establishing the plants was to request an “Authority for Expenditure” (See Exhibits 8, 10). 101. Representatives of Melroe demonstrated a new white front end loader to personnel of Midland Cooperatives. The loader was observed by Mr. Messick during this demonstration prior to an alleged offer to purchase a number of the new loaders by Midland Cooperatives. Messick identified the machine demonstrated to be similar to the drawings in Exhibit 26, which depicts an M-440 Bobcat. 102. Messick testified generally a to the date of the demonstration — in the late summer or early fall of 1961 before the construction of the fertilizer plants commenced and prior to ordering the machines. appeared to solve problems Midland had encountered with ability to “turn short” enabling t to maneuver in boxcars. B51 clutch system was enclosed im an oil bath, a missing feature on other loaders. The new Melroe loader demonstrated did have an enclosed oi bath clutch assembly. to be the sale and purchase of the new Melroe loader. 105. Messick identified the loader depicted in Exhibits 21-24 as “similar™ to the one demonstrated. 106. Exhibit 12 is a purchase order for nine M-440 with fertilizer buckets placed by Midland Cooperatives on September 29, 1961, for loaders to be delivered to Mountain Lake. Exhibit 12 was described by Ardell Hansen, Melroe’s traffic manager in 1961, as a purchase order. Hansen was familiar with Melroe’s salesman’s order forms and invoices. His job in 1961 required him to handle copies of all sales invoices since he had the responsibility of shipping all Melroe products. 107. In a letter from Lynn Bickett of Gould, Brown & Bickett to Sylvan Melroe, dated September 29, 1961, Bickett steted: “Incidentally, Les got over a 20,000 order out of Midland this morning.” (Exhibit 490). The order from Midland Cooperatives was taken by “LWM™, who was identified as Lester Melroe, who was in charge of the Minneapolis office of Metroe at the time. 108. The order for the loaders was processed in the normal course of business of Melroe (Exhibits 13-20). 109. The following M-440 loaders were shipped to Midland Cooperatives. Nndland Cooperatives Plant Serial No. of Loader Baldwin, Wisconsin 1602 Park River, N. Dak. 1607 Portland, N. Dak. 1609 Wausau, Wis. 1624 Warren, Minn. 1637 Barnesville, Minn. 1661 Britt, lowa 1667 Herman, Minn. 1668 (See Exhibit 122) 110. A former employee of Midland Cooperatives, Dale B. Swenson, who was the branch operating manager at the Midland fertilizer plant at Waseca, Minnesota, in 1961, testified to a demonstration of a white front end loader by Les Melroe. After examining Exhibits 21, 22, 23, 24, 25 & 27, Swenson stated they were photographs of the white front end loader he saw demonstrated at the Waseca Midland Cooperative facility. The demonstration took place in September or October of 1961, and the individual operating the machine in Exhibits 21, 25, 27 was Rebert Hilderbrandt, a Midland Cooperative employee at the Waseca plant in 1961. The loader which was demonstrated had clutches which operated im an oil bath. 111. On September 12, 1961, Sylvan Melroe wrote to Lynn Bickett and stated: “We did stop at the Midland Plant in Waseca on the way to Albert Lea, and I did get some pictures of the Midland impressed with the Loader. | hope some of these pictures will be suitable for a literature sheet. It seems to be the feeling of everyone here that we should try to crack the fertilizer market first.” (Exhibit 489). Exhibit 471 is a copy of a portion of a calendar purporting to B53 be that of Cyril Keller's in 1961. This was another document which left Keller's possession to attorneys for Melroe in the prosecution of prior law suits. An entry on Friday, September 8, records the words “Elbert Lee”. Cyril Keller identified his writing. 112. Sylvan Melroe testified he did not take photograph Exhibits 21-25 and 27, and has no recollection of making any photographs at Midland’s Waseca plant on or about September 12, 1961. 113. Exhibit 205 appears to contain three photographs of a White loader at the Midland Cooperative’s facility in Waseca, Minnesota. The photograph in Exhibit 205 above the caption “Bins, Boxcars, Etc.” was identified as the same as Exhibit 27. The center photograph on Exhibit 205 appears to correspond with Exhibit 25 and the lefthand photograph on Exhibit 205 appears to correspond to Exhibit 24. E. Other Sales 114. Evidence of possible sales to Christiansen Equipment Co., Elbow Lake, Minnesota, and Rich's Fertilizer Service, Roy, Minnesota, prior to October 23, 1961, is imsufficient to establish an offer of sale or sale was im fact made to either of these concerns. TV. Issue of Obviousness The Scope and Content of the Pertinent Non-Cited Prior Art. 115. The features of the 18 claims of the 117 patent are substantially identified and described in the Operator's Manual for the M-440 Loader (Exhibit 149). 116. The M-400 was “publicly used™ and “on sale” more than one year prior to the filing of the application which led to the 117 patent. The M-400 was not listed as prior art and cited BS by the examiner. 117. The application for the 117 patent was filed and prosecuted by John R. Swindler of the law firm of Irons, Birch, Swindler and McKie, 1000 Connecticut Avenue, Washington, D.C_, patent attorney for the Melroe Company. 118. Exhibit 323, the file wrapper (Patent Office record) for the 117 patent contains a statement on Page 90 thereof that a collection of advertising literature relating to the vehicle was presented by Mr. Swindler to the Examiner at an interview. 119. With respect to the claimed features upon which Claims 10-16 and 18 were allowed, the M-400 machine as embodied in Exhibit 155 is no better prior art than the prior art of record. 120. With respect to the claimed features upon which Claims 1-8 were allowed, the M-400 machime as embodied in Exhibit 155 is no better prior art than the prior art of record. 121. With respect to the claimed features upon which Claims 9 and 17 were allowed, the M-400 machine as embodied in Exhibit 155 is no better prior art than the prior art of record. 122. The following was suggested by Clark a: relevant non- cited pnor art patents. Trial Exhibits P_tentee U.S. Patent Number Exh:bit 82 Bailey 1,027,027 Exhibit 351 LeTourneau 2,683,318 Exhibit 352 Zevdler 2,931,476 Exhibit 353 Voss 2,973,876 Exhibit 354 Walstrom 2,731,162 Exhibit 355 Garrett 2,800,188 Exhibit 356 LaTourneau 2,630,638 Exhibit 367 Gerst 2,707,057 Exhibst 358 Burrus 2,789,711 Clark, through its expert, Hobbs, alleges the features of these patents combine to make the 117 patent obvious. Specifically B-55 Hobos testified: (a) The Burrus Patent relates to a small loader in which the location of the operator’s seat is at a high position, mid-way between the rear and forward part of the vehicle with the operator's legs in the forward part of the vehicle and the control means im front of the operator (Exhibits 358, 359). (b) The Dunham Patent shows side compartments of a vehicle which are fluid tight and which can contain either fuel or lubricating fluid. (Exhibits 328, 361). (c) The LeTourneau Patents show vehicles’ with compartments on the side of a vehicle; power transmitted into the compartments from a central transmission; four wheels which are driven; wheels which are mounted on stub axles; and with wheel tracks greater than the wheel base. The patents also teach skid steering (Exhibits 356, 362, 363). (d) The Gerret Patent shows how to place a stub axle into an enclosed side compartment together with sprockets and chains. (Exhibits 355, 364, 365). (e) The Schreck Patent shows how to achieve forward and reverse drive by use of a chain which is driven ¢ontinuously in one direction. A separate “over and under” chain is arranged with respect to the clutch plates so as to achieve forward or reverse drive. An actuator is shown which causes alternative enlargement of the two clutches with the additional choice of a neutral position. (Exhibits 85, 90, 91). (f) The Bailey Patent is part of the clutch art. It shows the transmission of torque about a common axis. The Jailey Patent contains clutches which operate in pairs so that when one clutch is engaged, the other clutch is disengaged. The clutches are actuated by a cam mechanism which uses three point loading and which has right-hand and left-hand inclined cam surfaces. (Exhibits 82, 366, 368). (g) The Welstrom Patent demonstrates the use of a material handling device on a vehicle. It describes an upwardly extending stanchion located at the rear of the vehicle; a forward extending B-56 arm or boom and a pivot point at the stanchion. (Exhibits 354, 369, 370). 123. With respect to the various features upon which the claims of the 117 patent were allowed, the non-cited art set forth by the Plaintiff with respect to the 117 patent is no better prior art than that relied upon by the United States Patent Examiners. Differences Between the Non-Cited Prior Art and the Claims of the 117. 124. The essential features embodied within the 18 claims of the 117 patent were not reduced to practice in the M-400 loader. a. Claim 9 and dependent Claim 17 of the 117 patent define the particular location of the upright stanchions adjacent to the rear end of the body on each side of the engine space (See Finding No. 4). The reasonable construction of the language of the two claims also locates the pivot point of the lift arms completely rearwardly of the rearmost portion of the operator’s seat. These structural features are not found in the M-400 nor are the operational and functional benefits which inhere from these features. b. With respect to Claims 10-14 and Claims 15 and 16, as well, it is not merely the presence or absence of enclosed side compartments and stub axles which distinguish the claims from the M-400 loader, but the specific construction and relationship of these features as well as the advantages flowing from them. (See Finding 6). c. The M-400 does not have hollow side compartments for containing fluids, nor does it have side walls or any comparable structure which extends the entire length of the vehicle, upon which to mount the stanchions. This factor deprives the M-400 of an important functional advantage of the M-440 design with the tractor design of the M-400. The B-57 weight distribution of the M-400 machine which is exerted on the front and rear pairs of wheels is approximately 55-45%. When the weight distribution on the rear and front pairs of wheels of a skid steer type front end loader is other than approximately a 70-30 ratio, th< loader is flatfooted in operation and it is difficult to cause such a loader to skid steer or pivot about its own axis. (See Findings No. 7). d. The M-400 does not incorporate threaded elements to actuate the clutches. 125. Neither the Clyde Olson prototype nor the Gravel Pit Machine were prior art with respect to any of the claims of the 117 patent. Further, the machines were being used in a non- public experimental program. 126. The United States Patent Office cited the most pertinent prior art patents when it allowed the claims of the 117 patent. The prior art relied on by Clark is no better than that considered ard rejected by the Patent Office. 127. The file wrapper of the 117 patent (Exhibit 323) reveals at Page 107 a search of various art classes and subclasses. Specifically in December, 1964; Class 180, Subclass 6.66 and 6.2; Class 74, subclasses 361, 720.5, 664 IV and Class 214, subclasses 131 and 140 were searched by the patent examiner. The searches were brought up to date both in May of 1965 and again in September of 1965. 128. The Garrett Patent, 2,800,188 (Exhibit 355) which Clark alleges as uncited prior art is classified in Class 180, sub- class 6.2, a class-subclass searched by the patent examiner in the prosecution of the 117 patent. 129. The Keller 503 patent (Exhibit 53) was also cross- referenced into Class 180, subclass 6.2. 130. Three other patents, Walstrom 2,731,162 (Exhibit 354); Gerst 2,707,057 (Exhibit 357), and Burrus 2,789,711 (Exhibit 358) which Clark alleges as uncited prior art are classified in Class 214, subclass 140, a class-subclass searched by the patent examiner in the prosecution of the 117 patent. B-58 131. The Schreck patent 2,336,642 (Exhibit 85) which Clark alleges as uncited prior art is cross referenced in Class 74, subclass 361, a class-subclass searched by the patent examiner in the prosecution of the 117 patent. 132. The Burrus patent (Exhibit 358) was cited by Clark as more pertinent than Albert (Exhibit 331) cited by the Examiner. Clark’s technical expert, Hobbs, found the significant feature on the Burrus patent in relation to the 117 patent to be the location of the operator’s seat enabling the operator to have 360° visibility (Exhibit 359). A comparison chart of the Albert Patent, prior art cited by the Examiner, with the non-cited art relied upon by Clark is found in Exhibit 552. Clark has failed to show the Burns patent is more pertinent prior art than Albert. 133. The Voss patent (Exhibit 353) was not cited by the Patent Office in the prosecution of the 117 patent. Voss presents a vehicle for loading and unloading manure with an engine space in the rear and a forward space for the operator’s legs and a seat. In comparing Voss with the cited patent Dunham (Exhibit 328, See comparison 551 Clark has failed to show that Voss is more pertinent prior art than Dunham or Albert in this respect. 134. The LeTourneau patents (Exhibits 351 and 356) were alleged by Clark as more pertinent art than the cited Blackmore (Exhibit 324), Leedom (Exhibit 334) and Albert (Exhibit 331) for several reasons: (a) the enclosed side compartments of the LeTourneau machine absent in Blackmore (b) The general arrangement of the LeTourneau machine indicates the track width is greater than the machine’s wheel base. (See also Exhibits 362 and 363). The cited and uncited patents are compared in Exhibits 558, 559, and 560. Clark has failed to show that the two LeTourneau patents are better prior art than Blackmore, Leedom and Albert. B-59 135. The Garrett patent (Exhibit 355) was alleged by Clark to be more pertinent prior art for enclosed side compartments on a skid-steered machine having a chain drive. Exhibit 555 compares a drawing of the cited Leedom patent and a drawing of the Garrett patent. The Leedom patent discloses and specifically states that the side compartments on each side of the vehicle contain lubricating fluid and in these side compart- ments are mounted stub axles which are propelled by chains around sprockets and receive driving force from a driving member extending into that side compartment. The side compartments described in Leedom are better prior art to the claims of the 117 patent than that of Garrett. 136. The Schreck Patent (Exhibit 85, blowup Exhibits 90, 91) is concerned with the drive means for a tractor unit for industrial trucks. The uncited Bailey patent (Exhibit 82, blowup Exhibit 366) relates to a type of clutch actuator consisting of a fixed non-rotatable element and a separate rotatable element. Clark proposes that the combination of the two is pertinent prior art to the threaded actuator concept set out in the 117 patent (See Exhibit 368). There is nothing in either Bailey or Schreck which would lead one of ordinary skill in the art through the progression of Exhibit 368 to the claims of the 117 patent. 137. The Walstrom patent (Exhibit 354) is no better prior art than the cited Guignard (Exhibit 326) and Dingley (Exhibit 327) patents in relation to the material handling members in the 117 patent. (See also Exhibits 556, 557). 138. Clark’s expert did not testify with respect to several of the “non-cited prior art” it contends was better prior art than that cited by the Patent Office. Level of Ordinary Skill {15] 139. A person of ordinary skill in the small loader art in 1961 would have been a college graduate with an engineering degree or a person with technical experience equivalent to the B-60 training possessed by a college graduate. Clark’s Attempt to Market a Front End Loader Prior to Acquiring Melroe 140. Clark manufactured a small front end loader known as the Michigan 12B which was offered to the same market as the Melroe M-60 and M-200 loaders (Exhibits 429, 511). A modified version of the Michigan 12B was manufactured by Clark and sold as the Clark loader 340. 141. In January, 1967, Clark began an investigation relating to the prospective development of a skid steer loader. This investigation was prompted in part by the commercial success of the one half cubic yard skid steer loader manufactured by Melroe Manufacturing Company (Exhibit 526). 142. Donald A. Holtkamp, an engineer with Clark, became involved in this Clark skid steer development project in 1968 and a skid steer test unit was developed and built under the direction of Holtkamp at Clark’s Hancock Division in Lubbock, Texas. This test machine was later designated the Clark 1500 loader and is depicted in Exhibits 528A-528N and in Exhibits 929-529H. 143. The development and testing program of the Clark 1500 loader was brought to a conclusion at a meeting on July 11, 1969, at Clark’s facilities in Lubbock, Texas. 144. Exhibit 531 is an evaluation report (hereafter Texas report) prepared by Holtkamp for evaluating the Clark 1500 loader and was presented to management personnel of Clark and personnel of Melroe Manufacturing Company at the meeting in Lubbock on Juiy 11, 1969. The Texas report includes comparative data of the Clark 1500 loader, Hancock Radial 500 (another Clark test machine), Melroe M-600 machine, Universal uni-loader, Owatonna Model 1000 loader and others. 145. On the afternoon of July 11, 1969, a competitive test B-61 demonstration of the Clark 1500 loader, Hancock Radial 500 loader, Melroe loader, and Universal loader was conducted at Clark’s facilities in Lubbock, Texas. Shortly after the meeting in Lubbock on July 11, 1969, Clark purchased Melroe Manu- facturing and no further development or testing was done on the Clark 1500 machine. 146. The stanchions on the Clark 1500 machine were located intermediate the length of the machine and the pivot point of the lift arms was located forwardly of the seat. (Exhibit 528A). The location of the pivot point of the Clark 1500 machine is in approximately the same location as the pivot point on the Melroe M-400 r-_.chine. 147. During the competitive demonstrations at Lubbock, Texas, the Clark 1500 machine was found to be less stable than the Melroe loader with respect to the tipping load. It was also found that the Clark 1500 machine pivoted too much on the front axle in a loaded condition. 148. Steve Jacobson, an employee of Melroe Manufacturing Company in 1969, attended the demonstrations at Lubbock, Texas, on behalf of Melroe Manufacturing Company as an operator. Jacowson testified that he operated the Clark 1500 machine depicted in Exhibits 520A-520N and found it to be flatfooted with a tendency to tip forward. 149. Steve Jacobson testified that he attended a meeting on the morning of July 11, 1969, at the Clark facilities in Lubbock, Texas, and received a copy of the Texas report (Exhibit 531). 150. Steve Jacobson testified that during the course of the demonstration on July 11, 1969, he operated the Melroe Bob- cat loader in competition with the Clark 1500 loader, Hancock Radial 500 loader, and Universal uni-loader. With the exception of straight ahead speed, Jacobson testified that the Clark 1500 loader could not perform competitively with the Melroe Bobcat machine. 151. The failure of the Clark 1500 machine as a satisfac- B62 torily operable skid steer loader resulted in the Clark of Melroe Manufacturing Company. Conclusions of Law The Court concludes that in considering the most pertinent prior art and the allowed claims of the 117 patent, the subject matter of the 117 patent taken as a whole would not, at the time the invention was made, have been obvious to a person having ordinary skill in the art to which the subject matter pertains. {16} The Court further concludes that a machine incorporating the elements of the 117 patent was “on wk” poe ethcsonedpth- ease Deg of the patent application, pursuant to the provisions of 35 U.S.C. § 102(b), the patent 117 Patent Discussion of the Facts and Application of the Law A. 3S USC § 10276). The Validity Issue. The evidence relating to the creation of the M-440 loader was to a great extent inconclusive, particularly in establishing the Ne ee tudi he copatet Pole of the 117 pate Clittord E. of a small, relatively four wheel drive self seaedinih teats Gee teinaatah Ghai Uatihia We eines ek of 1958, Melroe Manufacturing Company, well known for its iplements, had never had a loader line. By the nid 2900's the Maher hid steer loader controlled over 30% of the small loader market in the world, a market essentially ns een Serer ae arene It is clear to obvious. Clark alleges that the claims of the 117 patent are invalid under 35 U.S.C. $102(b) since a machine embodying the patentable invention was in public use or on sale more than one ye gle & Gee SO, & ho a & pplication for the 117 patent was filed. The critical statutory bar date under 35 U.S.C. $102(b) was October 23, 1961. Clark's proof of validity of the 117 patent under 35 U.S.C. $ 102(b) rests with the alleged public use activity and public Company. Re ched um & aly Si: we ed Gh pty cea capitate ma a-g anim an: Gath ian sends eae deat <4 tein aaumentine Ge Guten of Gn 82 eaten & Go Wee State Fair im late August and early September of 1961. {17} The statutory bar of 35 U.S.C. $102(b) is invoked whenever the subject matter of the invention is in “public use” or “on sale” more than one year prior to the filing of the patent Cs. See See eee aning of § 102(b) In fact, it is only necessary the invention be “essentially” oungnan at the time of the Dart Industries Inc. v. E. L DuPont DeNemours and Co., 489 Bo4 F.2d 1359, 1364-65, 179 USPQ 392, 395-397 (7th Cir. 1973) cert. den. 417 U.S. 933, 182 USPQ 1 (1974). 1961 was a hectic vear for Melroe. Judged by the standards of 7 manufacturing concerns, its operation lacked sbaniinteheiah, Galimramabetadiaiemmielinn a bench model before it was placed on a drawing board. If the bench model proved satisfactory, it was placed in a working model. Changes were continuous if the earlier model loaders as well as the M-440 line. ir fact, after 1500 M-440 models were 1 new model number degnation, the M444, Meroe crested which there was a need. In the summer of 1961, Melroe management was dissatisfied with its efforts im the loader field and were about to discontinue manufactunng them. The Kellers and the sales department were SS ee eee satiees eunthin’ eth Ge 18480 bade cme oth Gs invention of the features embodied im the 117 patent. Kellers and Les and Sylvan Melroe were anxious to sell. It appears the for the sale of machines embodying the elements of the 117 patent were in fact entered into prior to the § 102(b) bar date, which im this case was October 23, 1961. Delivery was set for anate SO casey Se Sees. tusen Gat Gn O00 tender orn cident On aie te Baan Umon Central Exchange and Midland Cooperatives prnor to the October 23, 1961, $ 102(b) statutory bar date, and that orders to October 23, 1961. The Court, with some hesitation, has B65 from the fact that the evidence is circumstantial. None of the of the documents relating to that period, and under the control of Clark, were destroyed by Clark. Further, Clark, with the documents available to it which it now relies on to invalidate the patent, and perhaps other documents not known to this Court, was able to successfully defend the validity of the same patent in the Owatonna lawsuit to the extent that Owatonna dismissed its action without prejudice, and took a sub-licensing agreement from Clark. All of the documents were under the control of Clark, and Kellers were not privy to them. are copies of sale documents which are more specifically described in the following paragraphs of this Memorandum. The authenticity of the documents was established through being used at that time. Because there is no evidence im the record to rebut or explain the documents, the Court has given Clark the benefit of the inference and has found all of the 18 claims of the 117 patent have been rendered imvalid by reason of the provisions of § 102(b). This finding is buttressed by the evidence of a September, 1961 press release, Exhibit 181. The relevant documents relied on by Clark to indicate sales to the Farmers Union Central Exchange are: (1) Exhibit 28, which is a Melroe Purchase Order, No. 13008, taken from the Farmers Union Central Exchange for three Model M-440 loaders with fertilizer buckets at $2,750.00 each: (2) Exhibit 29, which is a Farmers Union Central Exchange Stock Purchase Order, No. SO2947, dated October 4, 1961. for three loaders with fertilizer buckets at $2,750.00 each: (3) Exhibit 30, which is a Melroe invoice, No. 40651, with an acknowledgement date of October 4, 1961, for three (4) Exhibit 33, which is a bill of lading showing delivery of one 440 S_P. [an M-440 Bobcat] loader with fertilizer scoop to Farmers Union Central Exchange on 1-4-62. From the exhibits and the testimony of witnesses Hull, Gehrman and Evjen, former Farmers Union employees, the miéerence arises that an offer of sale was made prior to the The relevant documents relied on by Clark indicating sales to (1) Exhibit 12, which is a Melroe purchase order No. 00174 taken from Midland Cooperatives for 9 Mode! 440 loaders with fertilizer buckets for future delivery at different (2) Exhibits 13-19 imclusive, Melroe imvoices No. different dates but each with an acknowledgement date of 9-30-61, and each covering the sale of an M-440 loader with Minnesota, for delivery to seven of the locations indicated on Exhibit 12. Metroe’s former traffic engimeer, Ardell Hansen, testified as to the procedures Melroe followed in processing orders by its salesmen. The testimony of Ora Alvin Messick, a former employee of Midland Cooperatives, was consistent with and the sales were processed prior to September 30, 1961. 1961 Minnesota State Farr Clark has also alleged that Melroe displayed a Meiroe loader embodying the patentable feature of the 117 patent at the Minnesota State Fair in 1961. The evidence surrounding this allegation, as seen in the Court's findings, is inconclusive and B67 facts. There was no substantial evidence that a Melroe loader embodying the features of the 117 patent was at the Minnesota State Fair in 1961. Cyril Keller denied the presence of a new loader at the 1961 Fair. Exhibit 434 and 434A show four M-200 and M-400 type identified the shide and photograph as a scene at the Minnesota State Fair. employees of the advertising firm of Gould, Brown and Bickett, testified as to the presence of an M-440 loader at the Fair and more importantly as to the advertising activity relating to this of the 440 loader they “saw™ at the Fair causes the Court to Sylvan Melroe denied the existence of an M-440 loader at the Fair; however, im a letter dated August 25, 1961, to M. K. Reusch of Fergus Falls, Minnesota, he gave a general description of the socalled new loader. (Exhibit 497). The letter has a postscript that the “M-440” will be on display at the Minnesota State Fair. The Court concludes that Melroe intended to display a 440 loader at the Fair, but for some reason did not. B 35 USC. $103. Velidity issue. Scope and Content of Pror Art [18] The law im the Eighth Circuit, as it is im other juris- dictions, is that the presumption of validity is rebuttable and can be weakened, “if not completely destroyed,” by Plaintiff's proof of pertinent prior non-considered art.” American Infra-Red Radiant Co. v. Lambert Industries, Inc.. 360 F 2d 977, 989, 149 USPQ 722, 730, 731 (Sth Cir. 1966). Clark B68 of the 117 petent. (a) The preproduction “Bobcat™ loaders used as demon- strators: (b) The M-400 Melroe loader; and (c) The Bailey (Exhibit 82), Schreck (Exhibit 85); LeTourneau (Exhibit 351); Zeider (Exhibit 352); Voss (Exhibit 353), Walstrom (Exhibit 354), Garrett (Exhibit 355); LeTourneau (Exhibit 356), Gerst (Exhibit 357; and Burrus ( Exhibit 358). [19] The Supreme Court in Graham requires under § 103 a factual inquiry imto the scope and content of the prior art. Clark's expert, Hobbs, admitted that on the basis of the patents cited and relied on by the Patent Office, “it was proper in render the subject matter of the 117 patent obvious and there- fore invalid. The Court has concluded that Clark failed in its The testimony of Hobbs, Clark's expert, related specifically to a comparison of the details of each alleged pertinent, non- cited art, with the claims and features of the 117 patent, and Office. Keller's expert, Barnes, made direct comparisons of the features of the non-