Appendix — American Seating Co. v. National Seating Co.

Supreme Court brief1979

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IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

no. 7£-/Z04

AMERICAN SEATING COMPANY,

Petitioner,

Vv.

NATIONAL SEATING COMPANY

Respondent.

PRICE, HENEVELD, HUIZENGA & COOPER

Attorneys for Petitioner

By: Lloyd A. Heneveld

BUSINESS ADDRESS:

P. O. Box 2567

Grand Rapids, Michigan 4950!

BN AS

(No, 417) De 1

TEXT

PATIENT. PRADIENEARIS & COPYRIGHED JOURNAL.

Bn the

Cited States Court of Appeals

For the Seventh Circuit

No, 77-1872

Rerubuic Inpustries, INC.

PlaintiyfAppellant,

SCHLAGE Lock Comiany,

Defendant-aA ppellee.

Appeal from the Pirated States Dh treet Court for the

Seathern Detrat ef Theo, Tere Dianen

Mo PCaeT6 1 Rebert DD Morgan, Jeter

AkGUED June 5, 1978—Decioun Feeruary 1, 1979

Refore SWYGERT, CUMMINGS, and PELL, Crrenit Judges,

Swrarki, Coreait: Juda Republic Industries, Ine.

assignee and owner of the Slaybaush patent, OLS.

Patent No, 3.852.848, instituted this infringement action

ayrainst Sehhye Lack Company. Schlare counter:

Claimed, sllegung invaleinty of the patent: and) non:

infringernent. Without reaching: the titringrement issue,

the distiat court in’ a therough opimen held the

Slavbauyh patent: davahd) for obvieusness under 25

USC. S308 and entered judiment for defendant.

Re puhlre Joehustrios, dune. vw Sehlage Lack Ca, 483°.

Supp. G6e (SD. TL 177). We affirm

This appeal presents a recurrent problem: the proper

criteria oy whieh a combrution patent is measured for

nonebviewsiess, Increasingly, the distriets courts in this

cireuit, net without seme confa don enuunating: from: this

court, have taken the view Chat synerpism and not the

criteria articniated in Grade vo daha Deere Ca. 882

US. 2 (1986), is the controlling: test in) combanation

patent claims. Before addressime Uiis question, we

review the chaims of the patent: inwolved in’ his

appeal.

‘The Slavbauyeh patent compres nine claims. Chums |

through TF oof that patent were nat placed an suit by

Republie; only chums Rand Y are alleged to be

infringed. Sinee Republie concedes that the validity of

claim © is dependent upen the validity of claim 6, only

the latter claim will be discussed?)

‘ See, ea. ACE Lermeyer Menutactaring Cor Loter

national Components Conpe, (Na, (8 2int (Nt). DL. June 8

VYTS): Pderveee Prentvcts, Ine. eo WOOL Lee Co. 195 UES PQ au

(ND TL LOTT Sectors ae Bile Compan, 435 F.Supp

BOS (ND End. LOTT Repettie Dutustrees, dae rn Schlage Lock

Oo. A F.Supp. eee is bi wi

£ Cham 0 sunply provaies: “Phe combination of chum 8

where saad means der resiliently holdings enid valve are elec:

trically operated”

The invention of Slaybausgth’s chim § is a door closer

used to hold open and to close fire doors in hospitals,

institutional health care faciuties. and other publi

buildings. Republic arjrues that the Slavbaujh device

achieves a unique combination of two funetians ina

single unit: (1) mulaple-peint hold open, whereby a

deor can be held open at any point along the are

belween its closed and fally epened positions: and (2)

momentary manual release, wherehy a door in any open

apo becomes self closing when a person mormnentars

y pushes or pulls the door.' The Slavbaugh oatent we.

the first device in the history of door closers which

combined these two foatures

As illustrated by the schematic diagram below, claun

8 of the Slaybanugh device ts essentially comprised: ot

seven elements, each of which Repubhe concedes to be

old and known:!

(1) a deor-closingg main spring;

(2) a piston geared te the door and siding within

an enclosed cylinder, which is activated by the

main springs,

(3) hydraulic fluid in the evlinder anead of fin the

diagram, to the ryght side of) the pistan:

(4) a fluid escape passage to the right of the piston:

(5) a dual area valve* which closes the fluid eseay

passage:

Y Phe momentary manual release feature thereby ay

frome toanaal release on that Ube hate t's ¢ fhe y ?

quaning: manual force to clos the door comploteiy. Aiton

the manual relense fescire is offen caweected ta an wectrr

contre) circuit sueh as @ stnoke detector whi when ac

tivated. will cloww the cloor, the { wspeet ood fhe mores

tary manual release feature KR Hie Agaies ts that pe

deers can be closed quaicnty amd easin rewarediess af sme

detector eperahion, eg. when a detector moht io. to operate

* Clarn S elaims as cnventien

A combdned door cheek and div device 4

Chradings tecahiant tests far args red closti

Upon expansive thercef tess itot ’

eviinder, a piston there conn te tese towope

end of sand eviinder with the PRpTNSIN ¢

Trreates, Smuned pe calaerit tenesems estiet

mnit aren om fund sucad of cai

with stud ome end ef sand ext

the escape of fad from: said ane end having a valve seat

therem, a valve ad ued ton otheese® iagrainst

fron the downstream side thereaf, sant valve hi

; ira

ah Theat

‘

face larger thaw stad valve seat a waive ebae t

downstream oof sal seat, a geartiem af saad) waive

diewnstreatin of scued fie Closely comtarmed> on Scud eh oor

fo Subestantially prevent thuared flaw past wd wanlves aod

allow prescne cleo genes cited eave sehen said wale ts

Cpr, treats prowadange ca flea ee ere pra age’ sogeteasaa® ten"

stud Viive: ehuaneber apestrecumal ‘ se) bide eal 4%

Pre trends oof Siuad Sigdver, resent. prresstdange aa flue ¢ ¢

peissayte fram sand valve eboaniter feline th ebesely eon

tainedt portion of sud valve when on sand open peasat

And omeans aAd‘wpted to dold sard valve resdentin avacat

said seat with a foree un excess of the product af cord

pressure ated sand salve seat area ated less than the

product of saul pressure and said face area

§ Plydeauhe fad una

Which flews within the doer eh cer estinder te

Openings and closemge speed eontral as web a

lubrication for the movings mechanical parts ef the unit

Opening: or Lloehinw the prossave wate a meet ite center

tal area valve fanetions the

has two faeces, each a different sve

Mubliehed by THE NUREAU OF NATIONAL AFFAIRS, INC WASHINGTON DC 27 (QOQCVGY

ter SAN, Once that the valve

- Na, |

2 (Na, 417) ara)

: (3) FLULD

()) SPRING

i neseare, (DRAIN

PASSAGE

(6) a solenoid’ which, by exerting a force on the

valve, maintains the valve ina closed position

overcoming the opposing force of the doar-

closing: springy and

momentary pull tovetner with the force of the

springs are suffied nt to overcame the soa!

to close by itself.

(7) a drain behind the dual area valve to insure ‘

free valve movement, since accumulation of u

fluid behind the valve would block or interfere Schiage contends that the Slayhaush device is

with valve movernent, because it is merely a combination of ald

having: no synerjristic effeet It takes this 7

regardless of whether a synergism test as defi

terms of a combination that pre

unpredictable. or surprisings recut or in. ter

tdividual elements of a combination fanetioni

new and different manner, Aitheseh it ist

whether Schlae understands senervisin ta bea

tute for or an addition to the statute ry re

In its commercial embodiment, Republic's unit. called

Fire Bue 1 MR. is completely encapsulated.

As the door is opened to any desired position (the

multiple-point hoeld-open feature), ao gear meehanism

attached to the door eases the piston in the diagram to

nieve te the left, thereby compressinge the elosinr Sprint,

The electrically controlled solenoid exerts a force on the

valve to close off the fluid eseape passage, thus

Preventing: the fluid interposed between the piston and to

Valve from escaping. Even though the closing Springs is ,

urging: the piston toward the rurht. movement of the

piston is blocked because fluid eannot escape from its

chamber through the fluid eseape passage when the

valve is closed. The door remains open as long as the

equilibrium between the opposings forces of the spring

and solenoid is maintained. ;

SYNerpism om rey

Pavers nt Ce, A Tae |

Pro, Ine. 425 US. BTR UNTO dee

tetens, A res

context, demonstrates otherwise

The Batent Aet of LTH) required that a device

be both new and useful te be patentable

February 21, 1708, eho X18 1. 1 Stat

third criterion was judienlly created

An open door tay be closed either automatically ar

manually. The door is closed antematically by deactiva:

tion of the solenoid. The solenoid is connected to an

external cireat which usually melades sinoke or fire de:

tectors, When the erenit is opened. eq. tw the trigareririy

of the smoke detector, the solenond relenses the force on

the valve. thereby unseating it Once the valve is open

the closings spring forees the piston righteard The

preston ain turn forces the hsdraulie flaw Guterposed

2s. There

a device

be an “invent

to be elusive, Noariv a

said as much about the

Ih.” Pdefteinige “tave

manner as toe afford any substantial and oan

vnomds « ff

and unseat the valve, whieh. when open, allows the duar

ren

minis; whether a partieutar destee qavely

2-28-79

’

invalid

of ald elements

wsition

ned in

thes AN nen pected,

‘tins af

ge. 30F 2

mewear

substi

wnt oF

nenobvieusness as interpreted in Gresham vo Jota Lhere

SSB US. 1D 98H at nonetheless arjene

s that

ured by the audersan’s Back Nock

PUSS. ST clita, and Sadraida wn Ag

Tt ad nf

these cases, particularly when placed in’ historical

had to

Act of

after a

ention” proved

iat the Supreme Court

The truth is the word eannet be defined in sueh

deter.

x AN

between the piston and the valved past the valve throng exerene of the inventive fealty or net In agave

the eseape passate, The gear mechanim attached to the case we may be able to say that there is present

piston swings Uhe door toward elasure ie bh ola NOY hivh oreter in } we Sen

: The allesedhy ania fs heipe of the Shavhanyh pute ni oe Ah iaisiaL ag Daag (cen s Race: iteatetes ee ; * nod

Hane, rata aga oar Cade pre we | eal Sh Carts adhgtine at prea

i WUE assistance? the Shay. eide, have by oa proces of exclusion determined

baugh deviee requires only a brief pull or push on the

door, whereby the door closes hy itself. The force of the

that certain variations on old. oe

‘

involve inventions but whether the variaties

A solenoid is a device whieh aoes eloete ival energy ta create

Amaynetic held mn a eo so that aomevagle esre as deawn inte

the cou when a carrent flows, Elere the solenoid ts attached to

the dual area valve.

ordinary mechameal skill as

a qQhestion

In the case of manuab operation. the force of the manual

ballon the deer teansnitiod throaeh the gear meehanise,

Supple ments the preecstioge force of the closings Spring “The

combiuned resultant foree mmeaxe theopasten ruvhtward. ‘Vhis ;

HStOM Presi rent pemerites cattrenenthy tageh pressure ino the ’

aid chamber te the rysht ot the piston to overcome the force

of the solenow) and unseat the valve

general definition,

MeClain + Ortmapr, VAL US $19, 427 C80]

imprecision of the “invention” standard resuited

A Its generally recameited that Mat ihe e Gree

U.S. (UE How SES CISA) as the earliest statement of

quirement of “uacention

Publeohed by DHE BUREAU OF NATIONAL AFFAIRS. INC | WASHINGTON fC 2AO4T OOOE

viees door de nat

i relied

Upon in a particular ease is anything? more than

which

cannot be answered by applying the test of any

The

in an

wig S08

the re

»?

ao |

2-e2-79 (TED ‘ TEXT

inconsistent and unpredictable body of bee beeaase ot

required that the decision of pateatability be based

ultimately upon the subjective whims of the reviewing

court.!

Congress revised the patent laws in 1852." The

novelty and ulility requirements were maintained and

recodified 25 1 S.C §$ 101, lag The retention of these

requirements did not however, completely define the

concept of patentidality: missing was that essential

quality whieh joes beyond mere newness oF usefulness

the “something” that the courts had unsuecessfully

strived for by the use of the term “nivention.” In order

te start afresh ino a semiintic sense and toa promote

uniformity in the appheation of the patent laws,

Congress added section 10302 ‘That provisten replaced

the judically imposed requirement of “invention” with

that of “nonobviousness”:*

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

differences between the subject matter songht to be

patented and the prior art are sueh that the subject

matter as a whole would have been obvious at the

time the invention was made to a persan having

ordinary skill in the art te which said subject

matter pertaias, Patentability shali net be nesa-

tive by the manner in which the invention was

made,

35 U.S.C. § 103.

Section 108 received its definitive interpretation in

Graham v. John Deere Co. B83 US. (19565). There, the

Court, in calling for “strict observance” of its require:

ments, laid out the analysis te be followed in cases

involving the obviousness standard:

While the ultimate question of patent validity is

one of law [citation omitted], the § 103 condition,

which is but one of three conditions, each of which

must be satisfied, lends itself to several basic

factual inquiries Unader § 10%. the seape and

content of the prior art are to he determined;

differences between the pri and the clits at

iesuie are to be ascertained: and the level of ordinary

skill in the pertinent art resolved.

Id. at 17. Wis against this backdrop that Black Rock and

Sakraida nust be read ‘

Black Rock invelved & combination patent in which

each ef the elements were knewn in the prior art. In

that ease the Court recited that it would adhere to tae

guidelines at had developed in Grate nm aon US. at 61.

hf this repard, Jude Rich. one of the coauthors af section

VOR, stated

In the final gamalysis. all it amemnted te was that if the

Cornet thovagelet thee reevetitien, theeaate tess and useful, was

Tut porate titcatote thers at cdeed met areveel “gnventoan” amd vice

versa The peaguivernent fae “miveritis was the plaything

Of he puddges whe dee Chey fecatme inatt dante its

mysteries, deltebted to devise ame exgwnited their awn

inde as of what pt rent, sore Very lovely pPruse resltine

Primeples of Patentubdita 28 Geo (Vash. 1. Rew. S04. doa

Cyt

1 Patent Aet af Tite eho 840, G6 Stat. 78, codifed oe i

US. §8 LOD ef seq

n The Lev gserr’S pretes fee Set nen qent pre thes

Theve os tee perenne rote Comes gent Larne Gor the: feet secmtennes

eagle atts stated ate Qbear perersent otatites beat the refusal of

watent. by the T t OE free, ard thee betebang: af geutents

prvartacd bey thee eecrerts.. eetr fear greener Veflad of ipventoon or

Lack of patentable meavelty has baer followed since at least

as carly as ISSO. This patraggraph os added wath the view

that an explicit statement mn the statute mity have some

stabilizing «fleet. and alse Ge serve ae a basis for the addi:

tien at a later time of some eriteria whack may be worked

out

Seo ales WR. Rep. Na Ts, sud Conse, 2 Sees, 7 (1952),

qpacted: in (irae, sapere, 3N8 US. at 1

Under the He Aet, the word “povention™ was statutorily

defined as any “rvention er divcoveny sc § latin)

Thus, an anventien whieh be novel metal camel remben aes as

patentable mention. a deviee whieh pe lackime one or more of

the criterias an unpatentable invention

be hs he eee Ok A A

(Na, 417) be A

G3. Usingr such analysis, the Court held) the patent at

issue dnwaled beeause “the combination was reasonably

obvious to one wath ordinary <kill un the art” dd. at 64.

Although during the course of its discussion the Court

neted that a cambination “may recat” ina synergustie

effect.” the Court went on te held that the device ai

question “was net oan invention by the obvieus nen

obvious standard.” ad at 8c. this phrase could only refer

to Greham and sertion 1038

Similarly in Sudravda, the Court scrutinized the

combination patent in issue by cansudering the scope and

content of the prier art teeether with the differences

between that art and the chated mvention.! In helding

the patent invalid. the Court held: “PU ,his partionlar

use af the assembly of old elements would be obvious to

any person skilled in Uae art of mechanical appleatian.”

425 US. at B82. Although the Court again discussed

synergism, itis apparent frou the context of the opinion

that the Supreme Court raised the topic oniy in respense

to the court of appeals’ assertion that synersusm was

present; the Court sunply dad net agree that the effert

produced by the clauned invention in that case was

synergistic.)

Neither Sakratde nor Black Roek ean be cited as

prescribing: seme other, Speen test for the evaluation of

combination chums. Nawbere in these two decisions did

the Court hold a synergistic effect to be a necessary

condition of patentability: nor dad it hold thats)

stisay supersedes a finding af nunobeiousness under the

Graham analysis, To the contrary, each case qisted

Groban with approval, Each turned on whether the

claimed invention was nenobvions on the basis of the

three-pronged test in Greham. In short. we believe that

Sakrasia and Black Rock rather than establisiongy an

additional, different, om substitated test for nonobwincs-

ness under section 104, reaffirmed Ute comunuing

vitality of Graken

The distriet court. while agreeing that Mires Rock and

Sokraida dud nots ish synersistn as a requisite: to

patentainlity, nonetheless interpreted eases from) this

Court as requiriys that every ceeniimation invention

must have a synergistic effect toa be patentable

The synergism test necessarily involves a teo-pronited

hypothesis: (1) the subject matter of the patent claim

comprises a combination of several elements, exch of

The elacmed ine

a radiant heat t

Aegehaalt sbaagee apy

were eld an the saevuagye art. dhe allegeet contri

combauninge ef these three elements ota a Singtie paangs

machine

‘

~ Mee athe

® The extent of the Caonrt’s ere cn st

Danrvitecd tee tena cermetetnces ON te seetereias

result in an effect greater than the sate

taken together, No sach s) nergtistas result is argued nere.

US. at 61

i The patent. in Sufracia. a dessce desyned te remove

anima’ Wastes fren a elaine barn, ivelved the combrration of

ze ptrauteed Clee fn che treatin, cuned ge tavecares far Moriy, Water

for a flee} effect release ante the tearm Cher,

The bafth Circuit vy Sefeaueda had held that the unventey

ity issn “[elid? aetue ve ta sy nee cestie re eo aca Fd WaT AT

(ithe Ce VUE RD bee Citas catenins the 3

wd “We ‘ agree that the ce

element cute pee rly bee ebnare

te ae <i S at ZS? Ut os thes ageeasent hast the reteret

to Svnergism aries et as a Stcute tte tirtaative re

quirement of putentatolity, but rather as a regeciion of the

Fifth) Coreuit’s balding

mete Cova respon H

nr Of these aid

a SL MTEC

™ We believe our view 1 supported ta the Court's action in

Dann ov. dette. Alo ToS. SE ebetee dec theo

weeks befare Nera, der Ten Pieper, the tarrets of

atl one of the aeces argued that sp rergtietta is esse

— Loidite: avtaed Chaat Che goatermt ite tsaue Was teat synen aristae

Nee Herref of Petitioner at 2% Brief of tee Cure for the

Comiprter & i has Eaeqeuagerneenrat Mar ifactarers Av.n at“

Trngeortantio. the Conart lid niet dscns. ner adeeb at ever

tian. svanergtr th Tousteated, thee elaaatreeed geate rst im that es

evaluated exveliooavely under the Gorafene pattern wf sats

425 US. at Qk, dl

alys >

Published by THE HURBAU OF NATIONAL AFFAIRS, INC . BASTINGTON, ne wer

ee hia lle si casts ites se ihn sn a OLIN SS

ia the ay

Wirier, aces Kens tean Chie perder pertinent cart, comet Clo) the

combination ds ssnenactie cer at feast) produces a

synergistic “effeet” Ome premise ef thr. hypothesis. at

least as applied to mechomenh or bvdraahe clewiees. rs

that all such aavention. are ierei ones apphenation. of

known elements and materia: on ab fferent combinations,

As Judge Learned Hand ohsarverd

tis idle te say that cersbinations of old element.

Cannot be inventions, sub-tantialis every invention

is for such a “combination”: thatis to say. at consist

of former elements in a new assemblajce.

Reiner oc. LE Lene Can 8st Ftd Sod, 5038 (2d Cir, iin,

cert, dennd, 266 US oe (on p Tf this be true Gand of

new noenoebviows combinations are net patentabley then

almost nothings world be patentable. See Reeves Lustre

nent Carp 0 Be ehman Dictements, due, VA Fitd 265,

270 (Mth Cir. cert. denied. tay CLS. UAL aged

Onee it has been determined that sll of the ejements

in the combination are knewn, the next inquiry under

the synerpisin appreneh i. whether the cbumed patent is

synergistic or preduces a synernistic effeet. ihis has

been ne easy tisk. Court. have jong eo restled sath the

meangne: of synenjristn and have forrnnlated a number of

definitions. “The twoO mest comunan have heen that one of

the elements funetians different! in combination the

did previowste ea. Rete Trine Menafaetar

Ce, DIB Fd Ass, See ih Cir, WITH). and Shar the

combination results 2 ain effeet vreater than the sum of

iv ie Ten Si. qh wes Pape r

Co. vr. Bemis Ca. 540 Fh af ene (ein. Cation

denied. ASL ULS. Sa8 Get A realistic appraisal of

these formulations, however, reveals that synergism. is

only a figure of speech. for in its literal sense synergism

never has existed and never can exist in mechanical or

hyaraulic inventions when the term is defined as a

whole result greater than the sum of its constituent

parts *!

There is, im feet. mo such thing as a mechanieal or

bvdranhe element: fanet: edifferentiv ino combina

tion thanat did outside the caret nation. A spring ar valve

will always function as a spring or valve. alone or in

concert with other components -? Moreover. mechanical

elements can do no mere than contribute to the com:

bination the mechanical fanetiuns of whieh they are in-

herently capabie See Apylieatran of Menough, 925 Folks

1OLI, 11H CCLCLUPLAL 2963). Thus. the overall perfor-

™ Nee alten Sotty Car Meartivg & Louiteng Cor Geer!

Bilectiie Ca Va Fo ee enced Cin Mi: Latent Cond

sor Coe Cape beaned Retrug ration Corp. So Fotd akT. SUL (ld

Cir, Metey ceet emer? ou US. en eyeny

Other dhe finitians

a Sup presinge epaelity, le vovranr Abvvavrefene dco aces, fae io. Leven

"N Spoet Sd Ftd PE De ith Cie Uo, the comtunatien

rave t peeadrieg t

samedi ferd the elements must tke an

oa re cudt otter than the antierpated sum of the

separate parts 8 7 *e her Carp O84

Poveda, Guy cath tar 7 TSR STA

the elements tmiust oon the aggereseaat wew. unnsual er

stroking: recults, Bareiait Corp ev dts jo. WT Pd os

Beach Cie deceet. ofa, At Bs. ust (Ie Tor the re outt

ret be uredieseed bey parson dart tee tare Reese o bUPhaet

Woeledrneg ae Bardee Werk dos the F 2d SUT, S26 Cth Cor

wih

2M At tent an one bade sense, ne result is cctually gereater

threats the carn of vt peotet [rv the a gion? tt

af eoprses tentrebpgticn

of eleonents stptpwnaee Vneeps tte, ow a wetiem of aur tt

perfeer knot tedpe ef the prenert fede parts. Uf ne coal

trvly pet oneare ent of a oriatinctwn th Sas put ante at at

womb coment te erect eee thane eat oat te ee

world eanteavene the bs sah mate as we cmon tind

ther » Dawes remain § Pheer Vg peeerahee of sn. merge

trerely peyetbe ates peerer prreranee otmetesd of eréation te

noranee or tack of Koowtedve is. hewecer, but part of the

Question ef obyiensness Tha at hest. the appearance af svn

erjtism os stibeamaed within the question of nonebyjousness un:

der section LOR and the Grates eriterin

MS Assnaring: ace nuefo that Chere exist. an excepitian three meres

frarvestacnty sHeemabed geersecrt bie des runt dee ca cere porn neeee Ven a fortedanear

of peitentabality. bat nierely be talcen os es e to be eon

stiered along: sath other evidence asulable in the ebviou.

noneb viens maquiry.

TEXT Pa i 0

seanee of the cerebanation ds cbwaes eqant te the cum vf

the funetion. of ats indivedial ee As Digee

Willian Conner of the Southern Pustret af New York

observed: “Tn the real ork) too pias te

fine” Seone Hola Percent ies rin we

Ani Pat. 1, TL NIT, Con rn nah awe P Tet

| eae Nujermartel hoje pret tly bid | i > Lis ie

C1050) CoP aed te hace been adeedd tops ther and they

still make onix four)

A definition of synergic tint refleets rs etsinen is

that the elements in the combination mitt cooperate ar

interact with exch others! Se

tingraishes thease

Iy asstresateds? ane these am whieh the pourts ceatet wy

wo that the result esnes fran the car baed

eftned. semersism dis

ventions my th Ute pris AS ertere-

euch othe :

effect of the severnl parts anedo net sits

senarate action ef each Viuder

presence or abscnee of svneryistn,

proves hitthe. Toray. al

sist of parts which interact cots

teraction has littie i amsthirg. ¢

Nonebeviaisness + :

absence of interaction may

of the corm bans

does mot owmpart omerobstenes

surest. they Che prior’

fear the

simply tue bread ta pravid

Which to measure pouentabilits

finitional asy

‘

SE PR Pe pee es ah Ev auiwus

Bin the use of svmergsisn as a dard

Putting the ¢

fundamental fl:

for patentsialits In enacti

expressly miundated: nenobying ness, het symeryisim. as

the sole test for the patentaiality of navel and useful

inventions: in! svnersrisin is net even mentioned in

the Patent Act of 1952. Moreover, as seetion 103 applies

to all patent eciuams, there is one sastification why

patentabnhity of ace i

sured by a diferent

invention

epee rnportaativ,

tae treute

proach ta deter:

differentiy ar wh

parts, one is requar

the elements att

vonre combined must neeessacls oe p

on the assumption that it is amass ¢ “I~ to take

Known elements 3 fined Uines

assumption un wif omar be

that in certain w overs choice af the

elements ta he seleeted is met obvious Ava:

Hand thoatert:

All machines are nude

’

rocks. pads. patna. ae sre

wand the like, cil setime Chen

ane always rmiust. Aid earipees

samme substances, retaining chem teed enemneal

properties Put the element. nee en { in-

Piette cat peerenatiatiay. ced ibe see ae it

sroup Shieh proves sereieshbe ted oven need tie

require a high deyree of orinality. [os nat act ot

colewters ue be ty She beter

Rte, Cosape Uor’* A at’ ¢ 4 ad Oe tions kane

Cir, UN berratiasts telderdy Ses ‘ 3 Sree ak

Menangh, Sen Ftd YOM Wat eClell, Thess

The seconed and more tins d

Uhisat section TOG sets as the stare

Nonabwiewsmess of Che enventian

The tern svmergeman ela cives free the Cremek sae. tags ther

amd ere, mark. te voark te, Ceperat The Cunard

Bayelich Dhet Wlarendan Pres PP See Rien Lae

;

the taht at the “fuvention” Repevesccet, L Am, Pat LQ. 2s

SAT CHL.

Phe etascie example of ayy is tars lead pencil

and rubber eracer see decks Pubes; OSU dS) Ate

(ISvs)

Published by THE BUREAU OF NATIONAL AFFAIRS, INC . WASHINGTON, DC 20047

ONO?

a2. jn ‘ abe 4)

ton was mite toa person hasiege ordinary skull in tn

art 2 This provision there fore ee ‘hs thee covirt~ te

View the invention fron the vantages ps med the field of

TU ete Speen fie peer in tire ee the time toe invention

wis. made. See Kueh. d'raene rp et Patentahadety, 23 Geo

Wash. L. Rev. 202) 405-06 1900), From. this vantage

point the eritical question becomes whether the level of

skill in the art was such that the combining: of the

Ciements in the manner claimed would have been

obvious, not in recrespect. bat at the time it was done by

the inventor. As the Supreme Court stated in Unorteed

States ro Adams, 223 U.S. 39, 50 (1966), a companion

case to Graham:

It begs the ouestions . 2. to state merely that

Inagnesinm and euprous chloride were individualiy

known battery compone

navel, the issue is whether bringing: them together

as taught by [the inventor] was obvious in the light

of the prior art.

Synergism, however, pre s this analysis. Recanse

synergism centers exclusively on the performanee of the

elements after combination and without reyard to the

obviousness er nenobviousness of murkovg Combine.

Gon, synergism does net comport with the Grakam man-

date to apply section 103.

Reprettaily, we have heretofore failed to provide clear

and consistent ! reysurding the standards ap-

propriate for carn atents. Although we have in

fact continued, ether expheitly or impheitly, to judge

patent validity ordiniy te the Graham analysis. we

have alse from time te time commented an the presence

or absence of a requirement alan to synergism in the

claimed invention under review, And in St. Kens. we

" .

stated our conclusion in such aw ay that it may seem

that we regard svnerisin ay a test separate from and

coequal to that for nenobviousness under section TOR

Tnastiuch as Crrahem and seetion 108 continued ta he

the jruiding light, the reenits of these eaces were notin

error, Rat as the forests iseis en tas

cae lent,

this court: newer intended that vaergst be applied

. “ ; |

literally or Chat rym ods the sue per onan af

patentibal ts

a fiyrure of Speeeh fo eX pres

the parts of a claimed

combination (and the acto

Cather. the comeept ways empleved only as

sm that when all

are known, the

ye) ts hkely to be

more obvious to ane reasonably skilled in the art..* See

Neeves du sent Os ry Lhekman Prstruments, Jne.,

444 Ftd 284, 271 (9th Cir cert de need, 404 US. 95}

(UOT) Hewever. because syuergism has prevented the

development of a eonsistent. predictable body af law

under section LO% and bees 4

Corres st does net bear

any logieal pen facte celationsnyy to obsiousne ss. the

term bas btthe if any. utiles Therefore until Congress

shall otherwise leishate or the Supreme Court. shall

otherwise Sparc rfiesily bolel, this court will cont

HSIS fs the exe dusive menuns hy

mine to

apply the Gorm

which to measure nonebviousness under section Lng,

”- r

eaete

Perhaps a caveat is in order: by ous ry today we

w high standared of

pettentabihty whieh as reflected inthe Mack Rock ane

= th rerede tle cys)

have no intentian of depeurting

‘ys

ns. Thonith rendered nearly aes ntury

are, the Supre tree Corts eliseus sort an eillamtie Works os

Brady yay us 12 BUMP ETS Ty of

the purpose behind

the patent kuws remauney trie tuts

The desu of the patent hows is to rewnrd these

who make some sub fantial discovery or invention,

Which adds to our knowledge and makes a Step in

advance ino the usetul arts

worthy of all favor. It was neve

laws to prant a mone i

h mventors are

@ obwet af those

Muy lor

* ‘The Sunre er ar t bh “| ot thie : "

Suprerne Wt Pas ey parersce iS 1a lin Sirnlar

terms: “Courts should serurmice MATION satent clams

WH A Care Prepertianed tet sated im probabal

frrvedinge fa puttentablel

“an bes 2 | \ "

elements “Ferent oh at

Supermarket Corp, }

Te e180 deen. Sakraeia v Ag Pro, Jue... 42h

BS, aes,

US. 273, E81 (108),

1 ; . uabslashere k SAU OF NATIONAL AFFAIRS. INC . BASHINGTON, DC 20

Published by THK HUREAU OF NATIONAL AFFAIRS INC . ®ASHINGTON DC 20017 OOOGBS Published by THE BUREAU

TEXT

left with the question

valid. 25 USC. S$ 2s

F.2d &383, S38 «7

(IYTTH it merely snaft

attacking: the v:

harner Co 4

S08, 312 (7th Cir.

(W972) Furthermore,

ayainst evidence af

Offices, The Aen ton

Elisom Ca., S325 Fd

prior art reference ne

Manutictaring Cu 8.

criteria

The parties

| the Marton

pertinent prior get pe!

hydraalie de

without momentar

feature of the Martin

electrically controlled

hsdraulie flute

blocked passage of the

tnovernent of th

the solencid-operated

profits made in grood faith,

Having thus disposed of the s¥nergism issue. we are

begin this analysis by ne

not conclusive, St died.

(7th Cir, 178) Goer curiam)

can suffice ta overthrow the

Fi2d lunes, “2018 (ith Cir

} Considerstions. we new evaluate

determine whether ato is ObvvieUs

The Martin patent. ake awnee by Republ

moan the elastin direction > Use ef

1) si WN, 8074 TEXT (PLC ty dea eg

(Na, V7) fy =f

; : by hold cqen valve apparatn. Ao oa result uote has th The ase and effect of dual area valves an hidrauhe

every shindow of a shiade of a4 theca whch sensi Itapl | tei ie Hee esis tes : Gh te is taal em ty ‘eer: tiptoe gr

naturalls nnd spantanear ' : thane at lier! mu Apr Peery Peenred expaerny athe a TEANEU EET Se otersptage fecatipper mY tennis ils oefe ld we al wea ws warty ty > am oe

meehaunie or operate in the erdinas a SiR an The distinetive aed ain Repabtie’s ie. the innovative prblestion entutled Pace dy drerubenc Phat ortiebe

as ay Tl Nuch hae Ni ebtari cond A ing haan feature of the Shavbanyn device a3 the addition of eephaned: the pemveundes of operation Anvolved! in a

Path intdeerinansate cre, ment : momentary manual release to the dear closer art. bivalocusslie pores ater redie€ cades re the aren af the

exehusive privileges tems rather te obstruet than te : . nelve seca aller than the at f the valve facean

Stimulate invention Uereates a els ef Speratative Republic argues that Shotevih's contribation te ce iii a a oy Cth: baftfor ee gat a pies

Schemers who make it their beaomness ty wate: the ; art momentary manual rele sas achieved by ace: dhisctisserd the: « {feet o us edifferential area ont - valve

advancing wave of provement. and jeather its ' ing Components te the Martin yaitent and by proportion operation. Nero nate 3n crepe. It showed that tv

foam in the form of patented Monopolies, whieh ing key elements. The crax of Sho buach’s unprovement intentionally proportioning: the force of the wpe inget -

enable them to lay a heavy tax upon the industry of ever Martin and the principal difference which allows nee, renee wat area, the valve fare area. aml the amount

the country, without contributing anvthine te the tementiry manual release is the employment of a dual’ of force holding the valve clo hone ¢: Ms by thementari-

real advancement of the arts. [t embarrasses the area valve. As Wustrated in the diagram below. a dual ly adding PFEssure, open & closet valve. then remove

honest pursuit of business with fears and ap: area valve is constructed witn a face area (B) which is that added pressure and vet have the valve remain open.

pigs agro of concealed bens and unknown labili- larger than the area of its seat when the valve is closed A number of patents’ have emplosed the concepts

ties of lawsuits

and vexatious accountings for (A)"

articulated in Posie Hieirarades and have used them to

advantage in fluid control relief waives. Although the

valves described in these patents vary int racture

Il and preeise mode of operation. each of them teaches use

‘ept to keep a valve open ata

of the differential area cone

reduced pressure onee it has been epened ata hisher

pressure. The valves in these patents are constructed im

asimilar fashier perform: similar funetions, and achieve

A B results similar to those achieved by the valve construe:

of the instant patent’s vahidite, We

thal & patemt is pre.

t presumption. however, rs

Ca. « Bemis On, 54a

tion defined in claim S of the Slarbaugh invention.”

> the Repubhe argues. however, that these patents are not

v of in the pertinent prior art beesie the v related to the

QT csrt denna 2 Poco

tleat Peesnpengyt ye . justified. (f Graham vy doh

a | pr Ua C168) see also Juan re Johar, 4

Once the valve is opened by the combined force of the (1876), The sla as ys i by

closing spring and the mementary push. the fi claim of absigieness as defired by

Prior art not he

pr Nu Ntor

Teevan’

37s. 38:

pressure acts on a larger face area than it did when the problem caine dosages Tier Wontiiedene

t consis valve was closed. Since force is the product of pressure lem Cor eAG LE: =? aus bat aot, oe een mcd

} : times area, the hich pressure find actiae on the entire manual release was to devise as ay the dour contre!

4 comprare re. projected valve far © areal expo ed whea the valve is i valve would er eopresy teter it Tasaes en Man tally & Hy :

open, develops ai force sufficient to overpower the } open, Once he opretilem wit ada tag. ge =. ”

Opposing: farce exerter! on the valve hy the solengid find the Seoliat teri saead cparent, A ssint heart

j Because the selencid is overpowered, the valve stays Abas sinha wll Lp dis en eee

open until the fhiid eseapes and the door closes by itsell, the Avid - aia art

trict court £ that Without sviditional manual assistance." te: sed gen rage aaa

‘at a 3A Me The Martin patent, however. is not the only pertinent pertinent to the clumed mventio

Shing: te the Shaviatageh ipeenttan : prior art. Other patents, which Repubtic failed to Having

crihes : disclose to the Pacent Office. teach the concept of dual Shas bauyh .

sath manktiple peut h area valves.” | ise Republic did not disclose these, end our in

Ths the presumption of validity does net obtain for the thich

thes * introduction ¢ a7 SI: viaugrth prsaternt ayrainst this evidence of prior art, The seme elomer ;

valve y CSCAPO PAssajpre ne alien Croup. tne a NoeStar, Iie supra; Ropat Corp. &. - difference betsvern thee in

ws ersized by a solenoid, ‘ Metiraw Bdison Co. supract ques is a difference simed

} ;

finid. thereby presenting farther cable

nternal

aed . Stibyect matter aruote jars

7 ‘This diapram ois, of course, but oa twe dimen sbi ey Rape or bet

representation of the eonmecal structure in the Slaybaugh de- art. Chana vr. doknses nhl iaiet

this manner vice quotes omitted) In making tha

oth, CPEIN fee bse

* : ae - k oat, ’ : : ae : " “s 5 cust i by what we to one

had two er effeets: €)) ; year son dele ° The principie of dual area is aliustrated: by the pach oP = ty { ee, * anphentie orto net <s “nat

Buteriatic uly au contre! ried folls ving ewangl if the area vative stat (A) is UD Teasanaleiv Silos a UM 4 ed rT a ‘ iS wa

} Valve crrenit was interr Vigne. «4 DY trisvertngy af ia square meh and eree (everteal fy ccietoud, for ex

smoke detectar’’ and (i tie ecomtinainee ho vad amds as suffer ta Keegy the salve closed. the Valve Seat areal the waive fires ares aimed the saice acesage

STOR : R= ye ’ Nie ih } ~ ; sd : ;

smenow on the vate Sf punssitsie fie " : erack open when the hydrauhe poessure exceeds S00 pounds foree, The Martin potent

hai acleEa i 2 BIAS ne K e an ; per Square ineh €P Sd) sonee So PSD tumes OS square inch rtertionally pacgeer trend

AVE A multiple page emise af tt ;

irs: em ede aan pea ties pd bai acs equal QoO pounds ot foree Onee the valve has cracked open, prevsuire camed thaw stes

aciitition oft the Valve-sobenoid ire, othe Martin however, the S00 PSE (laid is expesed te the larger aren of the pressure « fleet oom Mie sadee face dtropes: te a predtetersaaieed

vite * ’ etn three ae “wart. - “ST ce j

fe , 6 “arte dio’ . ede Bla etlPnd Undo valve UR LO square inch. ter exanple SOO PST tir schist ‘a debian ,

wd 4 Mat pie poi Hea open fentire ated whieh could DOO Srare ineh equal G00 ponds of farce then holdi uk *y

be Cis d cerborpeatieia ee valve ‘oan amennt for on exces. of the 250 peund psislesanibee ani '

’ 1 a] 3 ani i.) . Hy ° \

‘The Shaybaneh pea ' COTE Ga f) Mee eat eT oe atherrgetinge ter elece the wahoo Ae welingely. mrseies Hows out of ether ola raek Pen ahr bh eae

7 as ‘ th , Sen the Teer seed guaet thee sabee camtel the badganuhe pressure val serene aPt Phigg das Picaragets

pd reatienn te Viner Naser bray afeen ers ee ae drop. fram So PSt te Ve PS > Uaarel that uw the valve Altherugl wt valves vere sed as ding

Shite tin ™! ijt tal Tey ‘ renin. apen allowing: Che flutd toe eeu and theret ¥ clasings ‘ tee > Are Pee? ces) :

eviincder t Like ’ the deor dump all the flied ont of a Hah Partrerg ker Ree

Shen aod -_ Ie “pas ? i 7 - _ : owing eu of 3 Prarrrbecr + pressure mm the eh:

Slaybauvi also uses ar uly operated ! WS ea. Prigatel etal, US Patent Noe. 2.080 182: Parker, 7 pped t ‘I — a pred termine! level. Sew eg. Pryatel. eta

~ . is er aaa 5 . Z . « ” elropeper wri) q peter ? tee VUE, aes, £9... 3) ‘ a.

4 Martin was net the first Patent te Usea Sulentalonwrsted US. Patent Neo 2.34..760: Hubbard. US. Patent No. 3.117. Parker.

“nth th £y Oe Nica ; “ See eee, dal is ‘ c

cont a valve Karler p ip, ise treertested Le . * During the preseenution of patent. the |

sarst in? . tht e* FM <0 : ‘« o) ¥ ante ’ - 4 * i “de ge ;

ae ll do shih oe bimata hs * gee shies Uh Ley girs *% Republic argues that Martin. in using a ball valve. alse ented several patents te » abisek

* Drexsiure eee eo or tl ee ; ’ ‘ : “0 . lee ; ”

us! if Err Late eats US. Patent Ne. 2294005. Rech had a dnal area valve construction. As a result, Regoablic x hha Cited in nate Les

pe MEN No ESSA, tends that the Marte patent is omere pertinent prmr art than Closer art. Interestingly. S

Gustry’s need for a dear bealtedeen aes 4 beyee In offeet. Re pubhe trycitess Cheat Martie: eeetions the scame hand F Waerres cweet Ubier scantaes

watateete ff fire or smoke vere Gotected area Valve construction and femetionm thot Prantel et alo did pressure fron ew gstrecamn «

SOAs with prion dear closers, the Martin eesiee contd also he The fact is that most valves do nave Lager valve face areas it agen STEW AN

. : P > as ete i sendshans so Dhue Bia Lene :* ’

Chesed mann tthe deer had to be pushed or railed eon than valve seat ares: Hout such valves. incheling the ball tL ee

tinuously all the w;

tre clostpe valve employed ty Martin cto not cetoteaetin propertion the that pressure dropped to a predeterme

e722 7-™ mba

;

weld he erbex pangs te ou fave “an id mt phen Noe alto

Coritham, supra ASUS at RT And obviousness ts

Measured mot hy camsadering: what was obvious to actual

trtsans bat by considertnge whether a hruethetien

person. havens all of the prior art at hand. would have

found the sane solution wien addressing himself to the

same problem Papel Brothes fue oe Sebuek Bheetrie,

dre, AGS E20 182. IGT CU Car LNT dp sce Sustenirtec

Tee! & Machim Co. rv. Welter Nudie & Ca. dow. Bar 7

Fe2d 482, 298 n& etd Cir dd, cont, denied. ANY US. £57

CUNT Malstara Manutarturinyg Cucv Ald, ine ANT

Fo2d SO8, SES (7th Cir, 197, iStevens, J, dissenting)

The district court: found, and we agree, that such 2

hypothetical person in the dear closer art would have

Knowledge of basic hydraulies. This know ledge would

have included safety and pressure relief valves which

teach use of the dual area conrept to keep a valve open

after the initial pressure is reduced.”

Even with this awareness. Republic arjrues that

Slaybaugh advanced the art because of his proportion-

ing of the force of the main sprini, the valve seat area,

the projected salve face area, and the counterforce of the

solenoid. This, however, amounted to little more than the

mathematical task of filling in the variables of a given

yaation. We find this proportioning sunply to be “the

* Slarhangh himself adeutted ona deposition that he was

famihar with relief valves of the type disclosed by Prijatel, et

. Sgt a Sag | in

al. Defendant's Trial Exnitit No. &8 at 15g.

TEXT

(Na, AES) fo- @

work of a skillful mechanic. not that of the ameenter”

Hatehhiss ov Greenwood, Se US. (1) Tew.) 2as, ust

(IR5S1)

Republic strenueusly ares that we should oweash

such secondary considerations as eommercial suceess,

long felt need. and failure of ethers. See Graham. Soaperey,

B83 US. at P7-18. Even acoimunge the Presence of thee

factors in this case--of which we have come doubt ove

decline this invitation. Whale such secondary considera:

Gens nay be “indicia of obviousness or nonobviousne-s,”

td. aL TK “those matiers “without invention wall not

make patentability,“ Anederson’s-dack Berk, Ine. r.

Pacement Sulrage Ca. 306 U8. 570 a8) Only ina

close case, in whieh application of the prunary eriteria

of nonohviousness under section 103 does not produce a

firm conclusion, can these secemdary eonsid

used to “tip the seaies in fiver of

’

‘

denied, 4230.8. UST (YTA Beenuse we hold that the

claims made here are clearly obvious under section 1.

We deem at unnecessary to examine these secondary

considerations.

The judgment of the district court is affirmed.

A true Copy:

Teste:

Clerk af the United States Cuare of

Appeals for the Seventh Crreurt

-- Kud of Section D --

Published by THE BUREAU OF NATIONAL AFFAIRS, INC . ¥ASHINGTON DC 20047

0907

F °

' i

vce ,

; ae .

\ Pe:

*. .

a * \

Reinke Manufacturing

Company,

Apsellant-Cross-Appellee,

Sidney Ua

United States Court of Appeals pane she)

POR Lik EIGHTH CIRCUIT

aaa t No. 78-1341

' ies ad oe No. 78-1301

Be ofa

+2 + 4+ Oe 6 H+ OH &

Appeal

States

Dal

rein

from the United

District Court

the District of

Vis for

Nebraska

nufecturing

Corporation,

Appellee-Cross-Appellant.

Before ST

STEPHENS

Submitted:

Filed:

sony

November 15,

February 26,

1978

1979

BPHENSON, HENLEY and McMILLIAN, Circuit Judues.

IN, Circuit Judge.

This case involves two patents, No. 3608826 ('826) ana

No. 3750953 ('953), on a circular irrigation system known as

the Elect

Company,

the trial

for reasons of obviousness.

facturing

primarily

rogator. Plaintiff-appellant

Reinke

Manufacturing

the assignee of the patents, primarily appeals from

court's!

Corporation, the alleged infringor of the patents

determination that the patents are invalid

Defendant-appellee Sidney Manu-

Cross-appeals from the trial court's determination

Line

Judge for

Honorable Robert F. Denney, United States District

the District of Nebraska.

00071

| Ni teng

| i

poet if cs - 1} >. . ; .

that, if the patents are valid, Sidney infringed the claims

of the patents in questio - ;

ie : or nonobviousness of the subject matter is deter-

wined. Guch secondary considerations as commercial

success, Tong felt but unsolved necds, failure of

O'hers, etle., might be utilized to give licht te

Ss under 35 U.S.C. tir: Circumstances surrounding the origin of the

subject matter sought to be patented. As indicia

of obviousness or nonobviousaess, these inguiries

- He y =) -s> 2uU we * *

valid patent. may have relevancy. .

Because we affirm the district court's finding that the

patents are invalid for reasons of obviousne

cata. Sior ‘

§ 193,” it is not necessary to consider the issue of infringe-

mene, There can be no infringement of an in

Greening Nursery Co. v. J & R Tool & M

fg. Co., 376 F.2d 738, This: is, not to say, however, that there will

742 (8th Cir. 1967). not be difficulties in applying the nonobviousness

Ne $e ter Uae een A A ial test. What is obvious is not a question upon

- ’ which there is likely to be uniformity of thought

The Supreme Court set out the section 103 standard in in every given factual context. The difficulties,

Graham v. John Deere Co., 383 U.S. 1, 17-18' (1966); eg os ne

eae in gence and scienter, and should be anenable to a

Walle the ultimate question of (6 — (G7 Gt

patent validity

\ case-by-case development. We believe tnat strict

1S one Of law, * * * the § 103 condition, which is observance of the requirements laid down here will

but one of three conditions, each of which must result in that uniformity and definiteness which

be satistied, [4] lends itself to several basic Congress called for in the 1952 Act.

factual inquiries. Under § 103, the scope and

& atone t2 the prior art are to bre determined:

Wiaserences between the prior art and the Slaime While a presurption of validity is accurded to patents th

Pe | . es ery ee ° sae i.

et 258548 are to be scert: ae P }, Te . . ‘ ae . > -

PRET PA SE dae BOCERE TSO, and the level of have “urvivec the scrutiny of the Patent Office," Weodstrean

eulhary Srxitil in the pertinent art resolved, Sc. res

Avtinse this background, the obviousness Cor. v. Herier's, Inc., 446 F.2d 1143, 1149 (8th Cir. 197]),

and while the primary responsibility for initially makin

Sidney aiso raises several other issues, but in light determinations inherent in approving patents lies with the

of our holdings, a discussion of

£ ¢} hy We ee ene ne ae hts ‘ - “

those is not necessary. Patent Office, the reviewing court has the responsibility of

35 U.S.C. § 103 provides: applying the strict and invariable standard of section 163 as

A patent may not be obtained though the in- randated by the Supreme Court in Graham v. Joha Decre Co.,

vention is not identically disclosed or Gescribed 283 U.S ; / em tli. | “fi #

S set- forth & tne : 5 ay Supra, 363 U.S. at. #19. /**.. eke ces = meen BO! es eae

a5 see forth in section 102 of this titiec, if the ¢

differences between the Subject matter sought to

be patented and the prior art are such that the

subject matter as a whole would have been obvious

at the time the invention WaS made to a person

having ordinary skill in the art to which said sub-

in applying section 103, it is important to keep in mind

that the test is not wh cher the object is an improvement in

: ‘ . ares. 5 is whether the ject works better; “* Lmprove-

ject mattar pertains, Patentability shall not Me Sens |e Peete er eee EO SCE WOE UEC ER “ae emule

be negatived by the manner in which the invention ment which is obvious to those skilled in the art is not

was made, a . : : a : ; = 3

te entitled to protection." Airlite Plastics Co. v. Piastilite

In addition to being nonobvious, an invention must also ai Corp., 526 F.2d 1078, 1082 )(3th Cir. 1975), cert. denied, 425

be useful and novel in Order to be patentable, 35 C2858 ce U.S. 938 (19753 ; : : :

- > ie G x - i > = ed : ee - bs = m é a ‘ = 7, ee 2394 - i

102, 103; Clark Equip, Co. v. Keller, 570 F.2d 778, 785 (Sth, i ee i a ed ot A

Cir. 1978), cert.

Genied) AT UTS Lowy 3222 (uct. 3, 1978, No. 77-1640). ,

~2 y the district court's factual discussion of the Reinke

Hs) ee a

See ee a \ 09073

pucentls provides an excellent understanding of the subject

macters

the subject of the Reinke patents is an electri-

Cally driven circular irrigation system in which the

water ae Carrying Sprinkler heads serves as part of

a traveling sectional boom. One end of the boom is

connected to a stand assembly PERE Lone? in the center

of « eyvare area to be irrigated. The boom moves in

a circular path around the stand ni anab ie: Such

Machines are generally known as center pivot irrigation

systems, because the boom carrying the sprinkler heads

travcls around the central stand or pivot location

containing the water supply pipe.

In the Reinke patents, the boom is propelled in

a circular path by electrically driven wheeled towers,

i.e., “drive units,” spaced at intervals. ‘The wheel

pipe eng) (otc also provide support so that the boom is

ained in a Straight line as it rotates. ‘The boom

assembly underneath and interconnected with the water

Genccally, the truss is constructed as follows[:]}

tnt water pipe forms the top chord of the truss

ana the bottom or tension chord is formed by cables or

tis rods. Qn cither side of the water pipe, brace

chords in the shape of a "V," attached to the pipe at

the upper ends of the V, extend downward with the apex

of cach V connected to a bottom or tension chord. The

races form the web members of the truss. A trans-

versely extending brace, or connector bar, is attached

to the apices of the V's at the points where the apices

are fixed to the bottom or tension chords.

int

itself consists of the water pipe and a supporting truss

Reinke Mfg. Co. v. Sidney Mfg. Corp., 446 F. Supp. 1056, won

(b.

Neb. 1978).

Fig. 2a of Patent '826

Side Sketch of Electrogator

hb V damien Fe PTE

hcniepatinntygeosaa o£ oD bh es

of the

which

p Sketch of Truss Section of

Close-u

1‘

rogator

The dispute in this case centers around claims 4 and 11

‘ . Tae ]

e'826 patent, and claims 1, 3, 4 and 5 of the 953 patent,

primarily describe the truss which supports the water

ait tal attachliyg devices used in conjunction with the

~ " ’ I“™- {Ye ; le ; Ie E TANS wae

Mne Ciains provide 1n pertinent part:

The '$26 patent:

4. AD irrigation apparatus comprising an eclonga-

ipe{;,] * * * said clongated pipe including a

ructure disposed along the undersurface

hereof batween the wheeled means, said structur

including a plurality of pairs of V-shaped brace

having the upper ends connected to the pipe in

longitudinally spaced relation with the braces in

each palr depending downwardly in converging relation

to cach other and in diverging relation to the braces

in an opposed palr, means interconnecting the apices

of the pairs of braces to retain them rigidly in

Speced-apart relation, and tension rods connected

longitudinally of the apices of the braces along

each side of the pipe with the ends thereof being

connected to the pipe at the end of each section

thereof thereby rigidifying and supporting the pipe.

ll. * * * that improvement comprising a

= 09075

The district court stated the issue as follows:

} ; ; ; & | ; mor » + « ~4 + ron

Center pivot irrigation cqulpment 1s subject

supporting truss structure tor the pipe including

a plurality of longitudinally spaced brace aszom-

bites fixed to said pipe and depending therefrom,

brace assembly including a pair of opposed

members of V-shaped configuration having the

upper ends thereof att ached to the pipe and depend

in Giverging reletic-, means retaining the lower

apices of opposed pairs of brace members in spaced

relation, and tension members connected to the

apices of said brace members and extending and ;

attached to the pipe points for rigidifying

at remote

i ike c - “ho Foe

the pipe and forming a truss support therefor.

each

brace

The '953 patent:

ll. * * * that improvement comprising a Sup-

portin:: truss structure for the pipe including ae

plurality of longitudinally spaced brace assemblies

fixed to said pipe and depending there from, each

brace assem!: including a pair of 0; posed brace

; Veshaped configuration having the upper

attached to the pipe and depending in

»lation,means retaining the lower apices

airs Of brace members in spaced relation,

C members connected to the apices of the

brace mombers and extending and attached to the pipe

at remote points for rigidif fying the hipe and forming

a truss support therefor, said pipe being sectional

with the ping ips being joined Dy abutting end .

flanges, Said tension members belng att iched to the

pine by exter ding through and being secured to a

peir of ahrutting flanges.

3. * * * that improvement comprising a sup-

porting truss structure for the pipe including nf -

plurality of longitudinally spaced prac. pet ies

fixed to said pipe and depending therefrom, cach

br-ce assembly including a pair of Oppose brace

m. bers of V-shaped configuration having the upper

ASSCMe

ends thereof attached to the pipe and depending - R

diverging relation, means retaining the riegragh 4 barvend

of opposed pairs of brace inembers in ath relation,

and tension members connected to the apices of the

brace members and extending and attache a to the

pipe at remote points for rigidifying the pipe and

Bilt U9076

to a variety of loads and stresses » Such as the

weight of its own Structure, natural forces such as

wind, stresses arising from the dynamics of travel

over rough terrain, uneven loads as water passes

through the pipe. All such se rami therefore,

must include features to maintain the pipe in align-

ment and avoid breakage or collapse of the pipe

Spans

and drive units.

Mr. Reinke asserts * * * that his truss struc-

ture prevents

S Or withstands Socal, Or "whipping"

| Sucit stresses by the “manner in which the

and pipe are arranged and interconnected with

each other and the tying rods [which] produces an

prschailed ame: which rigidifies the assembly. Defendant

ontends that even if the Reinke v-brace configuration

witha cena loads and

stresses more effectively thon

truss Structures previously used on pivot spri ohters

the Reinke trussed pipe represents an obvious e3 en-

Sion of the prior art.

f-armi’ Pr fvuss support therefor, the Upper ends

Of the brece members being secured to angular clip

rigidly affixed to the exterior surface of the pipe,

4. * * * a supporting truss structure for the

pipe including a plurality of longitudinally spaced

brace assemblies fixed to said pipe and depending

therefron, each brace assembly including a pair of

oppesed brace members having the upper ends thereof

attached to the pipe and depending in diverging

relation,

means retaining the lower ends of opposed

pairs Of brace members in Spaced relation, and ten-

Sion members connected to the lower ends of the

brace members and ex ‘tending and aaa

at remote points for rigidifying the pipe and forming

a truss support therefor, the upper ends of the brace

eee °-s be ing secured to ‘clips rigidly affixed to the

xterior surface of the pipe, said tension inembers

ner ie attached to the pipe by being secured to

flanges on the pipe,

ied to the pipe

5. The structure as defined in Claim 4 wherein

Said pipe is sectional with the sections being joined

by abutting end flanges, said tension members

extending

through and pean secured to a paix of abutting end

flanges, each of said opposed brace me: bers including

two depending members defining a substantially V-shaped

configuration having their lower end portions connected

with ea we other and the tension menbers being connected with the

lower end portions of the brace members,

09077

Pe, BA

“281 °)(1976),

Reinke Mfg. Co. v. Sidney Mfy. Corp., Supra, 446 F. Supp. at

lv48 (footnote omitted).

id ‘

As the district court noted, the patents in question are

combination patents and "[cJourts should scrutinize combina-

tion patent claims with a care proportioned to the difficulty

and improbability of finding invention in an assembly of old

Clements. .. . A patent for a combination which only unites

old elements with no change in their respective functions ...

obviously withdraws what already is known into the field

of its monopoly and diminishes the available to

425 U.S. 273,

v. Supemmirket Kyuip,.

resources

skill€éul—men ...." Sakraida v. Ay Pro, Inc.

quoting from Great A. & PP. _Tea Co.

Corp., 340 U.S. 147, 152-53’ (1950) -

a structure that combines old and well known elements, one of . .:

— * o - rte Bees ak a ik, f

Thus , if the claims cover

fs ae

° ° ° ® ® ‘ uv

the factors this court must look for in determininy whether ,

synergism: that

"in an effect greater than the sum of the several

the: patents meet section 103 requirements is

which results

effects taken

separately Anderson's-Black Rock, Inc. v.

rage Co., 396 U.S. 57, 61'(1969).

Pavement Sa als

(-714 -b "Is

In our examination we will not only consider whether it

was obvious that by

putting together the various elements used

the result would be the effect achieved in the Electrogator;

we will also consider Whether the effect is a new effect, or

Simply cach of the items performing its cxpected function.

As directed by Graham, we shall examine the prior art,

the differences between the prior art and the claims in issue,

and the le@ével of ordinary skill in the art.

A, > PEZOS AES

Initially we note that principles of truss design are

Q9075

egy

—

long Known to the structural arts of bridge, roof

and related designs, A truss is essentially a

structure consisting of Straight pieces joined to

for’: a series of triangles in a single plane. Con-

tinuous triangles may also be built into more than

one plane, in which case the truss will have sta-

bility in each plane in which triangular support is

' found,

"Shear" consists of forces acting along a

planar surface, If the shear load is more than the

material can stand, it will fracture along the plane

where the shear load is too great. Under tension,

molecules spread or expand. Under compression, they

compress. Ina truss, members of the triangle re-

Sist by tension the tendency of other members to

compress, and vice versa.

In general, the truss is based upon the geo-

metric principle that the shape of a triangle can-

not be deformed without Biter tig the length of its

sides, i.e., the sides of a triangle cannot move

WIth pesenst LO enon other. The web members of

a truss, the diagonal and vertical elements,

assuming aGegquate connection features, maintain

Sta’ ‘lity between the horizontal upper and lower

chorus of the truss. Therefore, as the triangle is

the most cuabic planar configuration, the more

planes into which triangulation is introduced, the

greater the stability of the structure, |

Reinke Mfg. _ Co. Vv. M

aT es. oeee

1070.

Claims in dispute,

Sidney ! fg. Corp., Supra, 446 F. Supp. at

Further, the connecting device is described by the

i.e., the angle clips connecting the V-

braces to the waterpipe and the method of connecting the

ends of the tie rods ,7 are not new connecting devices or

methods; all were known as part of the art prior to construc-

tion of the Electrogator.

6 ou ,

There was sufficient evidence to support the conclusion

that "trusses" are obvious, There was testimony from two

expert witnesses concerning principles of truss construction

and there was evidence of the use of truss structures in other

Simibers irrigation systems and in bridge construction.

This consisted of extending the ends of the tie rods

ao | 09079

Sidney relies upon (1) the "“Raincat" system; (2) the

"Modified Mel Brown" system; (3) the Wallace U.S. Patent No.

3,335,958; (4) the Allwood Australian Patent No. 227737; and

(5) the. illustrations in the Swiss Klasse Patent No. 201557

as evidence of prior art pertaining to the mechanical function

of the irrigation system.

Whe Raincat is a pivot irrigation system with the water-

pipe supported underneath by a simple truss design of tri-

angular braces in vertical planes transverse to the pipe.

The lower corners of the braces are connected by longitudinal

tie members extending between the corners and up to the pipe.

throuyh holes in the pipe coupling flanges at the end of

the boom section,

See picture in text, p. 5, Figure 14, #102 for an example of

the angle clip.

«i.

UV9080

si \|

There 15 a 90-foot Span between the drive units.

Example of

triangular braces

Although the Raincat was built somewhat differently over

a period of years, there was testimony that indicated thi

the arms of the triangles in the truss system were cither

attached to the waterpipe with clamps that were fastened

around the machine or fastened to the flange that hocked to-

gether the pipe spans. In subsequent machines, the arms of

the braces were welded to lugs.

At the beginning of production of the Raincé

ats, the tie

rods were fastened to the pipe with U-bolts‘

The Modified Mel Brown--in essence, a modified Raincat--

came about as a result of experimentation with the Raincat.

Because the U-bolts connecting the tie rods slipped on the

Original design, the arm of the machine would go into an S-

curve and consequently bend the waterpipe.

The first step toward correcting this problem was to

«ii.

00051

put a V-brace at the center triangular brace, in order to keep

the waterpipe and the tension rods from going in different

directions (causing the S-curve).

ue .

=m -"OoOe

y Pe etek S&S

‘

Sues a] e

Crampleo the

. . 2 ’ - ~

added to trianyular braces

The V-brace, depending upon the novement of the pipe and

tension rods, will go into either tension or compression,

Later still, the V-braces were eliminated when the U-

bolts were changed; the tension rods were instead welded to-

gether at a common point onto the pipe, solving the S-curve

problem in a Giffercnt manner.

Bone of Reinke's contentions on appeal is that th

dence was insufficient to establish the Modified Mel Brown

as prior art. We hold the evidence was sufficient; Mel

testified that he had built at least two of the modified

Structures and that they were shipped out to be used by custo-

mers, There was corroborating evidence of a drawing reflecting

the modified design, which was initialed by Mel Brown and

dated March 26, 1963. ‘ihe Reinke Patents are dated 1971 and

1973. Although Brown did admit that the structure as built

brown

al2«

VVOS82

The Wallace U.S. Patent No. 3335958 and the Allwood

Australian Patent No, 227737 are irrigation systems similar

to the Raincat and the Electroygator. ‘Ihe Swiss Patent No.

201557 discloses the truss Structure of what was referred to

in testimony as a bridge. It was admitted as evidence by the

district court but limited to the illustrations; the text is

not translated into English.

Thus the scope and content of the prior art as shown at

trial is, at its most refined point, generally included in

the Raincat and Modified Mel Brown systeins,

B. The Differences Between the Prior Art and the Claims

in Issue

Reinke's primary argument is that none of the prior art

discloses an arrangement in which the pipe between each pair

of crive units is rigidified laterally, vertically, and tor-

Sionally by joining it with a plurality of assemblies of

Opposed Praces of V-shape so arranged from one another and

interconnected by the tie rods as in the Electrogator.

It is true that the Allwood, Raincat and Modified mel

Brown units all have vertical supports--the Electrogator does

not. However, the Modified Mel Brown, in addition to the

vertical supports, also has V-shaped braces similar to those

on the Flectroyator. In addition, truss design in general

makes use of triangular braces in different planes in order

to provide the support strength for which trusses are used,

ee ee

was somewhat different than the drawing, the differences

were minor. The primary modification, the added V-brace,

was reflected in the drawing and Brown testified that the

change was made to the two structures on which he worked,

sii UYO83

Reinke Still contends that the effect of its invention

was to achieve a self-propelled irrigation system with a Span

between drive units in excess of 90 feet (120 feet) with the

same attributes of strength, alignment and economy as the pre-

viously marketed irrigation systems with only 90-foot spans

between drive units. Reinke partially attributes this to the

connecting devices used in the Electrogator. The connecting

devices fur the truss support and the tie rods were different?

in the Electrogator from prior art insofar as irrigation

Iie note that Mr. Reinke did not attribute a great deal

of importance to this at trial:

@. (Mr. Thomte] I believe, Mr. Reinke, that

yeu testified that the location of the openings in the

flanges for the tie rods, were, I think in using your

words, located at a very critical or strategic place,

Would y's elaborate on that, please?

A. {[Mr. Reinke) They are located in the flanga

One-third From the bottom because that is the

most ecencmical way to do it that I know of and as

another pipe is attached to it, which there always

iss in this system, you have two flanges to go through,

and that maxes the cheapest, the most cconomical,

the stronrgest way to attach the end tie rod.

abort

Q. Could the tie rod be attached at the upper

portion of the flange or at the bottom of the

flange?

a ft could be,

Q. It wouldn't matter really where you attach it?

A It would matter; it would make a difference,

e) Significant difference.

Q. No Significant difference where it is attached?

A. Well, I wouldn't make it that broad,

Q. I think that is just what you said, Mr. Reinke,

that there wouldn't be any significant difference?

A. What I am Saying is that it is located at the

most ideal location, one third up.

afte

VOO84

systems are concerned, Beeause Reinke alleges that the com-

bined cffect of all of the elements was new--new in that it

Created an effect heretofore undiscovered which enabled the

Span distance between drive units to be increased to 120 feet--

Reinke contends that this complies with the concept of syner-

gism,

We do not agree that this is synergism.

When the resulting new combination produces a 4dtotally

new functional aspect, to deny patentability in every

case would be to sanction the use of "hindsight" in

light of the claimed patent, liowever, at the same

time, to deny patentabi) ity where the combination of

eloments is an obvious step, where no inherent diffi-

culties or deterrents are involved in making the step,

where the new combination results in a natural pheno-

menon, even though all of the advantages were not

Fargccaan

EOTCE Cee ar

shonld not bring into play the tnlrospook ive

conformation of using “hindsight.” ‘The test of obvious-

ness, again, must turn upon a case by case analysis,

Natlional

aaumestor Corp. Vv. Malco Mfg. Co., 392 F.2d 766, 771,

(Sth Cir.), cert. denicd, 393 U.S. 923 (19638). ) a

: a ae or)

Thus, the difference here, even when considered most

favorably to Reinke, must be confined to the fact that Reinke

used a better and different truss design than had been used

before in irrigation systems; Reinke used better and different

connecting devices than had been used before in irrigation

Systems; and Reinke achieved a longer span between drive

units--without compromising other qualities--than had been

achieved before in irrigation systems,

C. Level of Ordinary Skill in the Art

Testimony at the trial indicated that a person of ordin-

ary Skill in the structural arts in 1967 would have been a

a LOSS

“it * ‘

“lod. dos,

i she ry ski in d

person "with somewhat more than clementary skills in an

“th — s el Hy S \ AS conver- .

knowledg> of the structural engineering arts who was

, P oa a . : Te aps would havi: been

sant with irrigation equipment. Such person woulc

avare of basic principles of truss design," Reinke Mfg. Co.

v. Sidney Mfq. Corp., Supra, 446 F. Supp. at sects Cane Sk ee

The question that must be resolved is whether this hypo-

thetical person of ordinary skill in the art could have

created the Electrogator with the differences as noted in

Part B, supra. If such an ordinary person could have achieved

the advancements discussed, the Electrogator is not a patent-

able invention as anticipated by section 103.

ers Bo te oy =} 5

i AS we stated 3 in University of Ill. Foun ydation v. Winegard

Box): 402 Yr. ad pn. 127)(8th Cir. 1968), ort, denicd, 394 U.S.

~917)(1969) , quoting Atlantic Works v. Brady, 1lO7 U.S. 192,

2992200 lesz):

The process of development in manufactures

creates a constant demand for new appliances, which

the skill of ordinary Jar aaah and engineers esl

generally adequate to devise, and which, indced, are

the natural and proper pinta ct of such developHant.

Each stdp forward prepares the way for the next, an

each is usually taken by spontancous trials ane

attempts in a hundred different places. To eee a

to a Single party a monopoly of every cape we sschehwiltgiaa

made, except where the exercise of Invention, ori ik,

what aleve fe lygataiors mechanical or engineering ski

is distinctly show is unjust _in principle and in-

jurious in its aaah HO pe

stated in

90):

as the Supreme Court Busell aoe

137 U.S. 423 (18

10 or example,

Trimmer Co, v. Stevens,

The most that can be said of [the patent batore

us) is that it shows * * * great industry gy

quiring a thorough knowledge of what others 1ac

done in the attempt to trim shoe soles ina be

and @mproved mode, by the various devices perfec ed

-l6=-

QV0Sb

AS we Stated before, the truss design in the Blectrogator

appears to be a better truss design than the Modified Mel

the angle clip appears to be a better connecting device;

Brown;

and

the attachment of the tension rods to the pipe in the L

gator de

lectro-

Sign appears to be a better way of connecting them,

Because of these improvements, the span between the

gator drive units

Electro-

can be greater while still maintaining all

other desirable features Yet,

sults

the improvements and the re-

achicved by those improvements are no more than those

which a “hypothetical person skilled in the art, who has

thought about the subject matter of the patent invention in the

light of that art" could have accomplished, Flower City -*

Architectural Metals v. Alpana Aluminum, Prod., Inc., 454 F.2d

98, 108 (8th Cir. 1972),

There is substantial evidence to Support the trial

court's

by patents for that purpose, good judgment in

selectins: and combining the best of them with no

little mechanical skill] in their applications but

it presents no discoverable trace of the exercise

Of original thought.

Busell Trimnc r Co. v. Stevens, Supra, 137 U.S. at 435, quoted

in Univer petty Or AIT. Foundatioi ve j Winegard bo, 402 Pr lad

igs, 327 44 (8th Cir. prety! So cert. denied, 394 U.S. 917 (1969).

Reinke argues that the testimony of the fabrication a Aa

manager for Layne & Bowler (manufacturer of the Raincat), Mr. 7% -

Walker, is in direct conflict with the trial court's finding

of obviousness. walker's testimony indicated that’ Layne &

Bowler experimented with various truss designs in order to

achieve a 120-foot span while still keeping other desirable

features, Under the mandate of Graham, this "failure of

Others" is certainly a factor which may be considered as in-

‘dicia of obviousness, Graham v. John Dee ts Co., supra, 383

-—— me ‘ -- ——, oe .

USS. at 17-18. "But where, as here, the facts establish con-

vincingly that the jven' ie: obvious against the back-

ground of the relevant prio t, [this] cannot

be controlling."

Cummins Engine Co. v. General Motors Corp., 299 F, Supp, 59,

89 (DL MdT L965) catt'd, 4247 72d 1368" (4th Cir. 1970), cao

quoted in Hadfield Ve “Pyan Equip. Co., 456 F.2d 1218, os > ae

(8th Cirl 1972) > yee WG

. Ngo” a

J A: xt, o3Z2%

' ms Ph 32] 3

f — ~

V9087

tir bf \ i)

K\ YN) PUBLISH BNA Bes GFF

a Y Bo

s } iss } = N i i , ak od wn ws 227 e Oote Pecel ands 2 - & ;

f. : nding { hat the 326 and ‘953 patent cla ims an a2550UC are 2h : U) ITED STAT Eo COURT OF APPEAI > £4 ; AF

a | i 4 I 4 / }H

Val 1, id ER reasons Of ob\ lhousnc ¢ x 5 & i - . tt } eo ox

Tenth Circuit

Nos. 77-1561 and 77-1562 MAR 9 1979

HQSVARD K. PHILLIPS

A true copy. (lesa

DEERE & COMPANY, )

)

Attest: Plaintiff-Appellee and )

Cross-Apoellant, ) Appeal from the United States Distric

) Court for the District of Utah

" > babe 337" Me ; ig 3 ° a ak

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT, Vv. ) Central Division

) (D.C. No. C 299-73)

HESSTON CORPORATION, )

)

Defendant-Aspellant and) &

Cross-Appellee. )

Ducald S. McDougall, Chicago, Illinois ‘(Dennis McCarthy and

‘ . Rand L. Cook, Salt Lake City, Utah, and Theodore PR. SCOtt, TALreseo,

Illinois, on the briefs), for Plaintifi-Aappellee and Cross-Apoelienk.

] Gordon D. Schmidt of Schmidt, Johnson, Hovey & Williams, Kanses

City, Wissouri, for Defendant-Appellant and Cross-Apvelice.

Before HOLLOWAY and DOYLE, Circuit Judges, and STANLEY,* Senior

District Judge.

DOYLE, Circuit Judge.

bd Of the District of Kansas, sitting by designation.

09058

09059

—_,-

THE PLEADINGS AND PROCEEDINGS

Plaintiff-appellee Deere & Company instituted this action in

the United States District Court for the District of Utah. A

declaratory judgment to declare certain patents invalid was

prayed for against the Hesston Corporation of He

7))

pe |

“

the owner of United States Patent No. 3,556,327, entitled "Loose

Hay Wagon," issued January 19, 1971, and filed by Harold

Garrison April 14, 1969; also, United States Patent No. 3,728,349

entitled "“iiay Loader," issued April 24, 1973, on application filed

November 14, 1969, by Ezra Cordell Lundahl.

From further allegations in the complaint it appears that

Deere has designed and built a hay wagon, has exhibi

otfered it for sale at meetings of farm implement dealers anc

is now manufacturing and selling in competition with a hay wagon

manufactured and sold by Hesston, named Staxi!

It is further alleged that Hesston notified Deere that it

considered the Deere implement to have infringed on beth the

Garrison and Lundahl Patents. Deere maintains

its complaint that the Hesston and Lundahl Patents are invalid and

so not infringed; aiso, it maintains that the Garrison and Lundahl

Patents were obtained through fraud on the Patent O that

ry)

ie)

#8)

pe |

they are invalid because of the sale of a prototype of the hay

loader in the Lundahl Patent.

The answer on behalf of the defendant-appellant denies the

allegations as to the invalidity, fraud and prior sale of a

prototype and contains a counterclaim alleging infringement.

YVOIU

A supplemental counterclaim lists a series of Hesston Patents.

These include those mentioned above together with improvement

patents.*

Plaintiff-appellee Deere has filed a reply to the fourth

supplemental counterclaim as a result of which all matters are

fully in issue.

This matter was tried to the court before United States Districts

Judge Anderson, District of Utah, who ruled all eight patents of

Hiesston: Corporation invalid under 35 U.S.C. § 102(b) ana s> U.S.C.

§ 103. The district court essentiaily ruled that tne patents in

issue were invalid for obviousness as provided in 35 U.S.C. § 103

and known to the public for more than one year before the pate

application under § 102(b).

= =

1. The numbers, name and dates of issue are as follows:

Number Title ; Patented

3,556,327 Loose Hay Wagon January 19, 1971

3,728,849 Hay Loader April 24, 1973

3,757,687 Press Mechanisin for Septenber ll, 1973

in s

e ie)

g Implements

3,828,535 Hay Loader August 13, 1974

3,842,732 Tailgate Control for

Stackers

October 22, 1974

3,847,072 Loose Hay Wagon

3,878,670 Stack Forming Loader April. 22, 1975

3,899,966 Machine for Loadins, August 19, 1975

Stacking and Unloading

Crops

oa a

YVOO91L

The trial court said that the controversy centered around

four patents: Lundahl Patent No. 3,728,849, a haystacking method;

Lundahl Patent No. 3,828,535, a haystacking machine(Lundahl I

Patent and Lundahl II Patent, respectively). The other two

primarily involved are the Garrison Patent No. 3,556,327, a

haystacking machine, and the Garrison Patent No. 3,847,072, a

haystacking method (the Garrison I Patent and Garrison II Patent,

respectively).

HISTORY AND BACKGCROUSD

This controversy had its origins in 1960 and the years

following.

The Lundahls, Cordell and Ezra, son and father respectively,

were engaged in the manufacture of loose hay wagons. Cordell,

the son, saw the need for a machine that would transform loose

hay into closely packed haystacks which could either be

tete in

the field or moved to a storage place.

Lundahl's first machine was a simple wagon which compressed

the hay. It was loaded by a machine known as a Farmhand grapple

fork or a Farmhand. This latter was pulled by a tractor through

the hay field where it would pick up loose hay and deposit it into

the wagon. This wagon had high side walls and a front panel which

moved toward the rear and in so doing compacted the hay against the

rear doors. Lundahl discovered that this mechanism loaded the hay

unevenly and without a uniform density. The reshlt was disintegratic

of the hay stack. There were other deficiencies. The loading was

O9092 '

_——««~

a separate function; there was a lack of integrated method of

pulling the wagon down the windrow. The operation was in two

separate steps, in other words.

After the loading there followed

the horizontal compaction which was also in stages. Each time some

hay was loaded it had to be compressed and then more hay would be

added and compressed until the wagon was filled. While producing

one complete haystack, this process resulted in a stack which

tended to separate and fall apart. To overcome this,Lundahl added

vertical compression units consisting of two gate-like top presses

which would be set as extensions of the side walls and would swing

down from the top on hinges powered by hydraulic compressors.

Notwithstanding this, though, the principal compression was the

horizontal force created by compressing the crop against the back

walls of the wagon.

In February 1966, Lundahl advertised in a farm journal a one-

man automatic feeding system for long hay. While the advertisement

Said that the machine would stack and compress loose hay from the.

windrow into neat uniform stacks without any manual handling, at this

time an integrated system had not been developed: The wagon still

had to be loaded separately. One Warren DePuy purchased one of

these incomplete machines. It lacked the attachment which would

make the machine self-loading. This was promised at a later date.

This is here referred to as the DePuy machine and it was put to use

during the 1966 haying season and for part of the 1967 season, but

had mechanical difficulties as a result of which DePuy sued the

Lundahl Corporation for breach of warranty. After this the machine

was abandoned by DePuy.:

QV09G

In 1966, the Hesston Corporation, defendant-appellant here,

bought the assets of the Lundahl Corporation. Hesston was very

much interested in the stacking machine idea and pursued it through

one of the engineers for Hesston, Keith Garrison, who worked with

Cordell Lundahl on improving the design. Prior to this, Lundahl had

come to the realization that vertical compaction was desirable. This

led to the development of the swinging top-gates which came down on

the loaded haywagon and also the addition of the tuckers to the

undersides of the hinged gates on the earlier prototype. So the

research was pursued along the line of developing the vertical

compaction. Testing along this line continued through 1968 with

several prototypes, including a 1966-67 prototype with recesigned

top-presser gates integrated with a crop pick-up and distribution

System. Eventually Garrison came up with a method of continuous

loading of hay into a moving wagon by using the blower duct system

with a dispersal mechanism which served to spread the hey evenly.

Garrison also discarded the two-gate approach and adopted a single

unit, described as an inverted U, which is used to apply downward

pressure. These innovations were said to have preduced “real good"

results which yielded stacks of uniform density and having a self-

Supporting nature. Also, the stacks were better shaped from the

Standpoint of shedding water. This machine was ultimately marketed.

Hesston, in the year 1969, commenced the production of the StakHa.

60, which made six ton stacks. Some smaller editions or models were

2. A bricf description of the Hesston Corporation is set forth in

Appendix I.

09094

added later, such as the StakHand 30, for forming three ton Stacks,

and the StakHand 10, which produced a one ton stack. Improved

models were identified with. an "A" after the number.

Deere and Company started selling machines which made one ton

stacks, three ton stacks and six ton stacks, all of which appeared

to be based on the same design as the Hesston machine. This

activity produced the present controversy. t

The application for patent on the Garrison I was filed in

1969. It matured January 19, 1971.

At the very outset the Garrison II Patent was rejected on

the basis of prior art. The Patent Office ruled that Garrison II

was the same as the Sutherland British Patent, the only difference

being its blower conveyor. After this, Hesston offered an

amendment claiming that it was not based on any prior art and

Saying that "it is absolutely new to provide a hay gathering

er collection feature in a press as its initial functicn in

cooperation with the main crop receiving body." The Patent was

finally issued August 13, 1974.

The Lundanl Patents I and II suffered somewhat the same fate.

Lundahl I was filed in 1969 and rejected in 1972. The rejection

was based on the prior issuance of Garrison I. Lundahl, by

“swearing back, established that he had completed his invention

prior to the date the Garrison I Patent was filed. The application

was accepted and the patent matured in 1973.

QOOYS

The Lundahl II, which was also based on the Garrison I, was

rejected by the examiner. Again, this objection was overcome by

BWwearing back, but ultimately some but not all of the claims were

allowed,

These four described patents, together with four so-called

Minor patents, were all ruled invalid, and basically these rulings

are the issues for consideration on this appeal.

III.

THE JUDGMENT OF THE TRIAL COURT

Judge Anderson's opinion, which is published in 456 PF. Supp. 52C

(D. Utah 1977), constitutes thorough and careful workmanship, end

in writing this opinion we have made full use of it. The Opinicn .

considers the following issues:

A. Fraud on the Patent Office.

The contention of plaintiff-appellee Deer

—

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was perpetrated On the Patent Office.

B. The patentability of the Garrison, Lundahl and improven..

patents, Included was the nonobviousness under § 103,

and prior sale or use under § 102(b).

Essentially the contention of fraud perpetrated on the Patent

Office is predicated on Hesston's failure to disclose in the

application for the Garrison I and II Patents the prior art conraine

in the Lundahl prototype haystacking wagon which was merely mechanic

improved by Lundahl originally, and also the failure to aisclose

in the Lundahl I and II proceedings the sale and development of

the bePuy machine,

—*

QOUYb

The trial court pointed out that under McCullough Tool Co.

v. Well Surveys, Inc., 343 F.2d 381, 394 (10th Cir. 1965),

Deere

had the burden of eStablishing the obtaining of the four main patents

by the use of fraud. Here the form of the fraud was nondisclosure

rejected the Hesston application but for the fraudulent n

See Norton v. Curtiss, 433 F.2d Tia, Cee (€C. 259.4. E970).

“

judge waS not convinced that the Patent Office would have

the four major patents but for the nondisclosure, nor was

able to conclude that there was any willful, intentional,

or even reckless conduct in the failure to disclose. The

concluded as follows:

Based on the present state of the record,

the court concludes that the evidence is

insufficient to impute to Hesston and its

attorncys a fraudulent intent or gross

and reckless conduct that would justify a

finding of patent invalidity due to a r

purported

fraud on the Patent Office iesston and its

attorneys exercised good faith judgment on

whether to include the prior Lundahl wagons

as prior art in the Lundahl I, II and Garrison

~ I, II patent applications. That good faith

judgment, based on a strict notion of the

Scope of the intended patent in reference

to the prior art, though erroneous, will not

render the patent invalid. The cbur

therefore, denies Deere a declaratory Judgment

-¢

that the four major patents in issue are

invalid due to Hesston's alleged fraud on

the Patent Office.

On the question of invalidity of the patent as having been

ondisclosure

The trial

rejected

the court

wrongful

courte

unpatentable under the prior art, the trial court reviewed the

history of the particular provision noting that

Act of 1952, the requirements were that the device was to be

and useful." Cited was Hotchkiss Vv. Greenwood, 52 U.S. (1

prior to the Patent

"new

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00997

EEE EEE EEE

the he Sur ec in defining the term "new ik

248 (1851), where the Supreme Court in J unsolved needs, failure of others, etc., might be utilized to

at ™ a vice must demonstrate ‘Skill and ‘ . 3 eee

Stated that “to be patentable a devic ; give light to the circumstances surrounding the origin of the

inc ‘ - ss C y ‘the skillful mechanic. '" ; ;

ingenuit,’ beyond that possessed by ‘the ‘ Subject matter sought to be patented." 383 U.S. at 18-19. These

could not, however, substitute for lack of invention.

52 inted out, reenacted the "new and

The 1952 Act, the court pointed ' F In subsequent cases the Supreme Court has continued to apply

s ility j he form of the terms novelt 273

useful" formula of patentability in th > 5 the Graham test of patentability under § 103. The more important

1d ility i a requirement of the invention test by : :

and utility in place of the 4 ' of the Supreme Court cases on the subject are Sakraida v. Ag Pro,

introducing nonobviousness. Inc., 425 U.S. 273, 280 (1976), and Dann v. Johnston, 425 U.S. 219,

} ided that the standards for determinin

The trial court concluded a g 230 (1976).

ak ility of tl esston's Patents were, then, utility, novelty \ ‘ id j

patentability of the H ™ eee : ‘ The court then goes on to consider the Hale, Isom and

7 sness. The court also concluded that Deere had not A ‘ °

and nonobviousness ae Sutherland Patents cited as prior art by Deere. Hale dates back

ds . enged the patents as not having utility. ; se %

seriousiy challengec the Pp Pe ee oe 3 to 1887 and describes a hay-cocking machine, the main function of

which was to gather hay or other fodder up from a field and discharge

the fodder to the ground in compact piles or cocks for protection

WHETEE? ERIN

PATENTS FALL FOR OBY r US

FACTS aND THE

against storms. It sounds familiar. The Haie claims 1 through 4

State that the machine gathered the hay from the ground, elevated,

; — . - ica } = ran mv. Joh Joere a ' - a F ‘ a P F P

The trial court relied on the case of Granam v. John D Co., it into an open bin, provided distribution reciprocating back and

383 U.S. 1 (1966). Obviousness under § 103, it was said in John

forth over the open top together with a hinged bottom to drop the

. . ; } ; 3 ; - Vaicehe € , ; tt bv stuc vi

Deere, is to be determined in the light of the prior art oy stucying hay "cock" on the ground.

y }- «! & } ic - ne ne } ims iSsi ; - . a ae 2 3 a

the differences between the prior art and the claims at issue and The Isom Patent, which is dated in July 1918, describes a

»solving the re £ y skill in the pertinent art. \ 1; ; ;

by resolving the level of ordinary skill in the pertinent art mechanical hay shocker which, in combination, comprised a hopper,

this background > ilousness or nonobviousness of the ' ae , ; ere

Against this background the obviousness or nonobviousness delivery means discharging into the hopper, tamping members within

subject matter is determined. The Court, in John Deere, said that

the hopper, a draper forming the bottom of the hopper and a facility

" : ary considerati Ss as unmercial 5s ess, long felt but . : : : ‘

Such secondary considerations as commercial success, long sis for stopping the delivery means. The tamping member operated, the

doors opened, and the draper started in motion.

3. Apvoencded to the opinion is a discussion of the operation of the

pundahl and Garrison machines. We hope that it will provide a better

understanding of the functions of the patents in sult.

The Sutherland Patent described a harvesting machine which

provided an improved construction and a method

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Y0IV0U8 QV09S

by which the hay can be compressed to form a stack and then deposited

on the ground. This Sutherland Patent, dated in 1964,

was t examiner's prior art reference for rejection of the Garrison

II Patent application. This British patent was said by the trial

court to clearly teach vertical compression of the hay to form a

Stack. Sutherland had a wheeled trailer attached to a tractor with

a compression chamber mounted on the trailer into which hay could

be "charged," the chamber being open at the top and having a rear

wall which could be opened, and a hydraulically operated compression

member by which the hay introduced into the chamber could be

compressed so as to form a stack which could then be ejected from

y .

the chamber when the rear wall was opened.

shumber of other prior art patents were cited, particularly

s .

the DePuy machine and the Lundahl prototype from which Garrison

and Lunéanl worked in order to perfect the vertical compression as

well as pickup, elevation, even distribution, compaction and

discharge.

McCullough Tool Co. v. Well Surveys, Inc.., 343 F.2d 381, 393

(10th Cir. 1965), articulated a somewhat liberal test governing an

aggregation of old parts so as to produce a patentable invention.

The opinion said:

The test of whether a particular patent is a

mere aggregation and invalid or a combination

and valid has been variously stated. Generally,

where elements old in the art are united in

such a way that a new and useful result is

secured or an old result is attained in a more

facile, economical and efficient manner, there

is a patentable combination. DBewal, Inc. v.

Minnesota Mining and Mfg. Co., 10 Cir., 292

F.2d 159; Oliver United Filters v. Silver, 10

Cir., 206 F.2d 658, cert. denied, 346 U.S. 923,

74 S.Ct. 308, 98 L.Ed. 416.

343 F.2d at 393.

= 12 «

; 09100

It is noteworthy that this court also said, just prior to the

above quote, that:

.It is universally held that a mere aggregation

of a number of old parts-or elements which, in

the aggregation, perform or produce no new or

different function or operation than previously

performed or produced by them, is not a patentable

invention. Great Atlantic & Pacific Tea Co. v.

Supermarket Equipment Corp., 340 U.S. 147, 71

S.Ct. 127, 95 L.Ed. 162; Admira’? Corporation v.

Zenith Radio Corp., 10 Cir., 296 F.2d 708;

Consolidated Electro. Corp. v. Midwestern

Instruments, 10 Cir. 260 F.2d 8ll.

343 F.2d at 393.

it would appear that the Supreme Court has recognized in Dann

Vv, Johnston, 425 U.S. 219 (1976), that commercial success and failure

of others may be relevant in determining obviousness or nonobviousnes

However, the Supreme Court in Dann v. Johnston, supra}; Saxraida v.

Ag Pro, Inc., 425 U.S. 273 (1976); and Great Atlantic & Pacific Tea

Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950), also

emphasized that commercial success without invention dces not suffice

in Sakraida, the invention, a system to flush cow manure from barn

floors, was held to be obvious. In Dann v. Johnston, supra, a

computer system which provided recordkeeping for bank checks and

deposits coded into categories by the bank customer was not patentab]

because it was obvious. The point was also made in Sakraida that in

order for the combination of old elements to prevail, there must be

a synergistic effect, that is, an effect greater than the sum of the

several effects taken separately. The trial court was mindful of the

Supreme Court's admonition in Great Atlantic & Pacific Tea Co. v.

Supermarket Equipment Corp., supra, that courts should scrutinize a

combination of patent claims with care proportioned to the difficulty

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VO9OLO1L

and improbability of finding an invention in an assembly of old

elements. The patent is supposed to add to the sum of useful

knowledge, the Supreme Court said, and patents are not to be

sustained when their effect is to subtract from former resources

freely available to skilled artisans. The trial court was cognizant

of this in determining whether the differences were obvious to one

reasonably skilled in the art, pointing out that one who makes such

an invention is charged with awareness of the existing technology.

The trial court was not incorrect, as we view it, in its holding

that the Hesston Patent? did not achieve a synergistic result that

would be nonobvious to one reasonably skilled in the art. On the

contrary, the court concluded that Hesston's Patents demonstrated

the work of a skilled mechanic, the difference being that these

patents do not achieve a nonobvious patentable difference from the

prior art since they have combined old elements which continue to

function as they did previously. “The Old elements do not in

combination perform a new and different function even though the

wagons did succeed in producing a striking result by combining the

old elements.

In our view, the strongest point in Hesston's case rests in

its contention that a new and different result, which realized great

commercial success, flowed from the combination of the old clements

and that this overcomes the argument that the result was invalid

for obviousness. Nevertheless, we must disagree with tiesston's

position. It is our conclusion, as indicated above, that the trial

judge correctly appraised the prior art and the combination in the

light of the commercial success of the patents.

= }4 «

VOLVOZ

The issue in question has iver usS pause and concern, but

we are in a less favorable position than was the trial court in

terms of making the present evaluations.

The other issues determined by the trial court, which we have

described in detail, fraud on the Patent Office and prior sale or use

(09)

ie)

under § 102(b), are supported by the evidence. Although w

examined them for possible plain error, none is

One further matter which we deem it necessary to consider is

whether the trial court erred, as Deere contends, in denying the

request for lawyers' fees. Here again, our disposition is to

accept the finding and conclusion of the trial court, which was

not convinced that this was an extraordinary case, whereby Deere

would be entitled to fees. After all, Hesston was the patentee in

this case and it surely had the right to litigate without being

assessed Deere's attorneys' fees, in the absence of any extraordinar:

actions, like fraud, by Hesston.

“ + . ,c a fey ~ Q

The judgment of the district court iS afftirmec.

APPENDIX I

The Hesston Corporation, of Hesston, Kansas, is a rapidly

growing corporation which primarily manufactures farming and

industrial equipment. In the past ten years it has grown nearly

tenfold. In fiscal 1966, Hesston reported net sales of $25,466,000,

a net income of $1,148,000, and total assets of $13,440,000. In

fiscal 1975, it reported net sales of $207,857,000, a net income

of $9,572,000, and assets totaling $161,641,000. In the same

period the number of persons it employed rose from an average of

1,050 to an average of 4,581.

By way of comparison, in fiscal 1975 Deere & Company reported

net sales of $2,955,204,000, a net income of $179,073,000 and

total assets listed at $2,440,829,000. At the close of 1975

Deere had 53,794 employees.

Both companies produce a wide range of products in general

categories which include farm equipment, industrial equipment,

and office and consumer products. Both operate in the United States

and abroad. As an example of the level of diversity of these two

corporations, Deere makes machines ranging from snowmobiles and

lawn tractors to heavy duty graders, large tractors, and combines.

Hesston also has a wide range of products. It makes, inter alia,

back-hoes, waste disposal units (compactors, incinerators, ete. }4

snowblowers, harvestors, office furnishings, and of course, windrowe:

and stack forming machines.

“ Hesston's largest division is farm equipment which, in 1975,

accounted for 96% of Hesston's net sales. The hay stacking machines

Q0104

Bois

APPENDIX I (continued)

here at ansue fall into this category. The hay SA sa" eauionent

product line, in 1975, produced 37%: of Hesston's net sales. This

37% is a figure which rose from 168 in 1971. Hesston's second

leading product line consists of windrowing machines, which, in

1975, accounted for 24% of Hesston's net sales.

Hesston is a corporation of global scope.

lants i j j

Pp in France and Italy, has licensees in Australia, Argentina,

and Brazil, and distributors throughout the world.

OOTOS

AVPENDIX II

OPERATION OF THE LUNDAHL AND GARRISON MACHINES

The Lundahl Machine.

In this design, two parts, a loader and a compressing wagon,

comprise the machine. The loader loads the hay from the windrow

by a rotary pickup unit which has tynes or {Pipers rotating on

a horizontal axis. This unit delivers the hay to an "endless"

conveyor belt which elevates the crop. Neither aspect is particularl

novel and the applicant notes this by providing that these elements

may be powered in any suitable fashion.

The elevator unit consists of two parallel endless chains

connected by cross Slats. This unit inclines up towarc the conveyor

assembly which extends horizontally rearwards, from the elevator,

and is located over the chamber in which the hay is to be dropped.

An endless belt which runs up the elevator anc over the conveyor

actually carries the crop. At the back end of the conveyor is a

roller which moves longitudinally back and forth and serves to

skaceces the hay to the front and rear of the chamber boc

The elevator/loader housing and the main body are connected

in a pivotal fashion allowing the body to be shifted from side to

side without shifting the loader. This allows the hay to be

dispersed from side to side in the wagon as the wagon is shifted.

(This pivotal nechanisin also permits better operation over uneven

terrain by allowing the unit to twist on a longitudinal axis so that

while the loader cants go the left the body lists tothe right, and

vice versa.)

00106

—

APPENDIX II (continucd)

The compression is achieved by the suingoble gatos, and

tuckers attached thereto, which are a part of the main body.

In the loading stage each gate is set in an upward position, as

an extension of the side of the body, and aids in channeling hay

from the conveyor into the body.

In the comoression stage, the gates swing in and cown,

compressing the hay towards the floor. The tuckers add pressure

to the hay near the walls. The resulting stack is packed and

rounded on the top thus having the desirable cuality of readily

shedding moisture.

In unloading, the loader/elevator housing and the main body

can be separated. This allows the operator to tow only the body

to the unlaading area. Offloading is accomplished by tilting the

body down so that the rear rests on or near the ground, opening the

tail gate, and pushing the stack by means of the false front.

The Garrison Machine.

In this machine the loading component is again housed at the

front of the body. The crop is picked up by a drum rotating on a

horizontal axis. The drum has projecting tynes which actually pick

up be crop. The hay is then delivered to another rotating drum,

placed superjacent to the pickup drum, which has retractable fingers

which carry the crop. This latter device delivers the hay into the

path of a fan. The fan, housed in a duct, blows the hay upward.

The hay, channeled by the duct housing, is directed up and*then

back into the wagon.

090107

APPENDIX II (continucd)

The loading system moves laterally back and forth at all APPENDIX III

times during the loading thus causing the crop to be dispersed

DIAGRAMS OF THE LUNDAHL AND GARRISON MACHINES

from side to side in the wagon. At the outlet of the duct is a .

deflector plate which the operator may cause to swing up and Figures one and two portray the Lundahl machine in the

down, as the blower swings back and forth, allowing the hay to compression stages. The view is from the rear. In figure one

‘be distributed to the front and back of the receiving body. _ the side gates are swinging down to press the hay. In figure

These two oscillating elements are calculated to produce even : two the gates are down and the manner in which the "tuckers"

distribution of the crop in the body. compress the crop near the side walls of the wagon is shown.

The body has, as an integral part, a press. The press Figures three and four are Side depictions of the Garrison

consists of a pitched roof (one that slopes down from both sides machine. In figure three the press is raised for loading. In

of the longitudinal center line), sides, and a rear wall which figure four the press has been lowered to form the stack.

also functions as a gate. When the press is raised, the body and Figure five shows the Garrison machine from the rear, figure

the press form a closed chamber into which the hay is blown. Six the front. One can see, in figure five, the Sloping

When the chamber is full, i.e., when the hay reaches the blower . Characteristics of the press roof. In figure six the blower/

L ; a e Bhan ae : : me ae : A ss We

outlet near the top and front of the body, the loading is halted levator loading apparatus can be seen. The fashion in which

and the press activated. The press descends vertically upon the the duct oscillates from side to side is'also shown.

Mass of hay. This process is repeated until the wagon is full of

pressed hay.

When the stack is ready to be offloaded, the press does not

have to be raised as both the back wall of the main chamber and :

the back wall of the press open as gates. The gates are raised and

the body tilted so-that the rear rests on or near the ground. The

wagon is pulled forward and, at the same time, the stack pushed back

rsand out. This last maneuver is achieved by means of a push bar

which is located at or near the front of the wagon, near the base,

and runs from one side to the other. The bar is attached to chains

whieh yun the length of the body and, when engaged, pull the bar

towards the rear.

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: 09109

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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.