# Petition — Cole v. Continental Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2215%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 830 ## Text Ovlice-Supreme Court, US. FiLE @ MAY 12 1981 a ee Nog G- 203% - Supreme Court of the United States OCTOBER TERM, 1980 JIMMY R. COLE, d/b/a JIM R. COLE & ASSOCIATES and COLE DEVELOPMENT COMPANY, INC., Petitioners, versus CONTINENTAL OJL COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT B. R. PRAVEL ALBERT B. KIMBALL, JR. PRAVEL, GAMBRELL, HEwITT, Kirk, KIMBALL & DODGE 1177 West Loop South Suite 1010 Houston, Texas 77027 (713) 850-0909 Attorneys for Petitioners EN EE TT NE SRY SRR Alpha Law Brief Co., One Main Plaza, No, 1 Main St., Houston, Texas 77002 I QUESTIONS PRESENTED 1. Whether the complained of judgment of the Court of Appeals holding valid a patent and finding a sole distinguishing feature based on a rotatable connection of 2 depth controller to a cable, when such a rotatable connection was known in the prior art, is in conflict with recent decisions of this Court involving patent validity under the “obviousness” test of 35 U.S.C. § 103. (a) A prior patent discloses each feature of the claims of the patent in suit except a rotatable connection of the depth controller to the cable. However, this feature was old and known in the art. The combination of these known features resulted in no effect greater than the sum of prior art effects taken separately. Despite such absence of a synergistic result, the Court of Appeals held the patent in suit non-obvious over the prior art. (b) The test of obviousness used by the Court of Appeals focused on the “subject matter as a whole” under which virtually all combinations of elements would be subject to patent monopoly, and not the test of “obvi- ousness” of bringing the elements together used by this Court. 2. Whether the complained of judgment of the Court of Appeals is in conflict with decisions of this Court, in holding that proof of satisfactory testing by others under normal service conditions, prior to the work leading to the patent in suit, is not a sufficient showing of priority of invention to constitute either “prior art” under either 35 U.S.C. 102(g) or 35 U.S.C. 103, or an indicia of obviousness under 35 U.S.C. 103. (a) Prior to the alleged invention of the patent in suit, others in the art built depth controllers rotatably attached to a cable. When tested, the controllers had some problems under abnormal operating conditions, but performed satisfactorily under normal operating condi- tions. Such prior work of others was disregarded by the Court of Appeals as prior art and even as indicia of obviousness of the patent in suit. (b) The Court of Appeals ruling requires a far greater level of completion of earlier work of others in order for such work to be considered in testing the validity and the scope of patent monopolies than prior decisions of this Court have done. TABLE OF CONTENTS Questions Presented .........seceeceeececeececcseces Table of Authorities ..........ccccccccccccccccccccens Citations to the Record and Opinions Below ........... Grounds for Jurisdiction ...........eeeeeeeeeeeeeeeeees The Law Involved ....ccccccovveccceccccccccccccccece Statement of the Case ........cccccccceccccecceenines Reasons Why the Writ Should Be Granted ............. CE a. cn ce dbdclecetabe dsc aans eset enebuveek ses eee 68 GRE ovine vctcseccccaseccedncvesscceses TABLE OF AUTHORITIES CASES Adams v. United States, 330 F.2d 622 (Ct. Cl. 1964) ... Anderson’s-Black Rock Inc. v. Pavement Salvage Co., 396 TE Oe MRNEED “nonce ccdkswansabarstbaceretevseses Continental Oil Co. v. Cole, H-75-1288 (S.D. Tex. 3/8/78) Continental Oil Co. v. Cole, 634 F.2d 188 (Sth Cir. 1981), rehearing denied, 638 F.2d 1234 (Sth Cir. 1981) ....... Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. BSB (1988) ncccccccccccccscccccccsccccceescsccces Graham v. John Deere Co., 383 U.S. 1 (1966) .........5. Great Atlantic and Pacific Tea Co. v. Supermarket Equip- ment Corp., 340 U.S. 147 (1950) ......ceeeeeeeseees Hildreth v. Mastoras, 257 U.S. 27 (1921) .......seee0e- Plastic Container Corp. v. Continental Plastics, 607 F.2d BOS ERGe Sats DOFED. cocccccctsvcsecasevesveceseces Reinke Manufacturing Co. v. Sidney Manufacturing Corp., Se Fe Bee Gee Ca. FEED hive tc ce vice ciscrssces Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963 CFU GA, BUGED cckcvcsdvcdcsdccacencesessevedocres Sakraida v. Ag-Pro, Inc., 425 US. 273 (1976) ........ IV CASES Page Smith v. Acme General Corp., 614 F.2d 1086 (6th Cir. SE. vecass nd aeske les sedbreeskennscesesneedseess 8 Tveter v. AB Turn-O-Matic, 633 F.2d 831 (9th Cir. 1980) 8 United States v. Adams, 383 U.S. 39 (1966) .......... 6,7,9 STATUTES Oe EES Sica cacccnededsacsdesandoavecees 2 SR EE Savewebeddsbacdbvcecaaseetessuseces 3 ee EE ocd nee enceesencsesesaduseecestvanes 10 BP Cs BUD ve ceccpcncascstevertevescovecocns 2,4 EE (Uunkcdudendevaveendscesensnseeeade 2, 4, 7,8, 9, 10 RULES Rule 19 Revised Rules of the Supreme Court of the United BS ace dus cucdadeceewarckacsceecttersiesecetses 2 No. IN THE Supreme Court of the Mnited States OCTOBER TERM, 1980 JIMMY R. COLE, d/b/a JIM R. COLE & ASSOCIATES and COLE DEVELOPMENT COMPANY, INC., Petitioners, versus CONTINENTAL OIL COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioners, Jimmy R. Cole and Cole Development Company, Inc. pray that a writ of certiorari issue to review a judgment and opinion of the United States Court of Appeals for the Fifth Circuit entered January 12, 1981. Timely Motion for Rehearing was denied February 12, 1981. 2 CITATIONS TO THE RECORD AND OPINIONS BELOW The opinion of the Court of Appeals is reported at 634 F.2d 188 and is reproduced at Appendix A hereto. The District Court opinion is unreported but is reproduced at Appendix B hereto. Denial of Defendants’ Motions for Rehearing is reported at 638 F.2d 1234 and is reproduced at Appendix C hereto. GROUNDS FOR JURISDICTION The judgment of the Court of Appeals for the Fifth Circuit was made final by the decision rendered January 12, 1981, and Petitioners’ Petition for Rehearing was finally denied by that Court on February 12, 1981. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1), and Rule 19, Revised Rules of The Supreme Court of the United States. THE LAW INVOLVED The law involved includes 35 U.S.C. § 102(g) and 103 which provide, as applicable here, as follows: 35 U.S.C. 102: “A person shall be entitled to a patent unless— (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it.” 35 U.S.C. 103: “A patent may not be obtained though the inven- tion is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter as a whole would have been obvious at the time the invention was made 3 to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.” STATEMENT OF THE CASE Plaintiff sued Defendants for infringement of its United States Patent No. 3,375,800, “Seismic Cable Depth Con- trol Apparatus” (Appendix D) (hereafter ’800 patent). Jurisdiction in the Trial Court was based on 28 U.S.C. § 1338. The Trial Court in an unreported decision (App. B) construed Plaintiff's patent claims in such a manner that they were not infringed by Defendants’ cable depth controllers. Both Plaintiff and Defendants appealed. The Fifth Circuit Court of Appeals (App. A) reversed the Trial Court’s finding of non-infringement and held the ’800 patent valid and infringed. The ’800 patent, the validity of which is in question in this action, relates to a depth controller or paravane for a seismic cable used in exploration for submerged petroleum formations. Claims 1, 2, 4, 22 and 25 are alleged to have been infringed by Defendants. Claim 1 is exemplary and reads as follows: 1. A paravane for a seismic cable adapted to be towed substantially horizontally through water, com- prising: a housing having a bore means along its length thereof, said bore means of a size to receive said seismic cable and allow rotation of said seismic cable without rotation of said housing while transmitting upward and downward forces between the housing and the adjacent portions of said cable; 4 bearing means for securing the housing onto said seismic cable against movement of said housing along said cable; and means carried by the housing including at least one vane for maintaining the paravane at a predetermined depth in the water as the paravane is moved through the water by the cable and for counteracting upward, downward and turning forces imposed on the housing, whereby the paravane main- tains the adjacent portions of the said seismic cable at said predetermined depth. At trial, Petitioners relied on U.S. Patent No. 3,372,- 666, “Depth Controller”, (hereafter the Baker patent) (Appendix E) and a prior working device built in 1965 by the inventor of the Baker patent as prior art which invalidated Respondent’s patent claims under 35 U.S.C. § 102(g) and 103. The Trial Court gave a restricted interpretation to Respondent’s patent claims in view of the Baker patent and working device and thus did not reach the issue of patent validity of Respondent’s patent. On appeal, Respondent’s ’800 patent was held valid under 35 U.S.C. § 103 over the Baker 666 patent because the Baker patent did not teach utilization of a simple rotatable connection to connect the depth controller to the seismic cable. Further, the Court of Appeals disre- garded the Trial Court findings that Baker’s prior docu- mented research in 1965 (Appendix F) had developed an operational cable depth controller and thus a “working device” in which such a simple rotatable connection was in fact used to rotatably attach a depth controller to a seismic cable. 5 The opinion of the Court of Appeals did not mention, and therefore apparently did not consider, another prior art patent also relied upon by Petitioners at trial and on appeal (Reid—U.S. Patent No. 2,607,842), (Appendix G) which shows in Fig. 9 a rotatable connection of a cable depth controller to a seismic cable. As described in the Reid patent, the structure shown in Fig. 9 of its drawings provides: “A simple and effective device for connecting the [seismic] cable 23 and the float 33 while permitting free rotation of the cable . . .” [Emphasis Added.] The Reid patent was cited and discussed with respect to this exact Fig. 9 in the Conoco ’800 patent file history. Thus, the Patent Office Examiner could not have based allowance of the Conoco ’800 patent on the lack in the prior art of a rotatable connection of a depth controller to a cable. The Court of Appeals decision, however, is premised on the basis that it would not be obvious to one of ordin- ary skill in the art to incorporate a rotatable connection of a depth controller to a seismic cable, as was known from the prior art Reid patent as well as the prior working device of Baker, which was built and tested in the Gulf of Mexico by Texas Instruments Incorporated. REASONS WHY THE WRIT SHOULD BE GRANTED The writ should be granted because (1) interpretation of an important Federal Statute involving the validity of patents is at issue and (2) the judgment of the Court of Appeals in this case is in conflict with and is contrary 6 to the decisions of the Supreme Court in the following cases: Sakraida v. Ag-Pro Inc., 425 U.S. 273 (1976); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969); Graham v. John Deere Co., 383 U.S. 1 (1966); United States v. Adams, 383 U.S. 39 (1966) and Great Atlantic & Pacific Tea Co. v. Super- market Equipment Corp., 340 U.S. 147 (1950). Each of the above decisions of this Court, with the exception of the Adams case involving battery chemistry, has dealt with the standard of validity under the patent laws for patents involving combinations of known, old mechanical elements, of the type of Respondent’s ’800 patent in suit here. The Court of Appeals in dealing with obviousness did not, however, utilize the standard of patentability enunci- ated by this Court in these cases. Rather, the Court of Appeals in its opinion quoted with apparent approval the following language from Adams v. United States, 330 F.2d 622, 625, 165 Ct. Cl. 576 (1964), a Court of Claims case: “While the use of any of the individual components . . may have been obvious at the time of the in- vention, the invention as a whole was not obvious. . . -” Continental Oil Co. v. Cole, supra, at 634 F.2d 197. The Adams opinion of the Court of Claims cited by the Court of Appeals was reviewed by this Court. U.S. v. Adams, 383 U.S. 39. This Court, on review of Adams, used a different standard of patent validity than that adopted by the Fifth Circuit in the opinion sought to be " reviewed here. In Adams, this Court enunciated the test as follows: 7 “If such a combination is novel, the issue is whether bringing them together as taught by Adams was obvious in the light of the prior art.” Adams, supra, 383 U.S. at 50. [Emphasis added.] The opinion sought to be reviewed here simply did not recognize the existence of, or use, this standard enunciated by this Court. Further, the Adams decision was handed down the same day as Graham v. John Deere Co., supra. In Graham, this Court in dealing with the patentability of an invention under 35 U.S.C. § 103 indicated that the test to be applied was “the obviousness of the differences,” 383 U.S. at 23, between a patent and the prior art. In Graham, this Court held that the alleged “crucial differ- ence” of the patent in question over the prior art, im- proved plow shank flexing, was obvious to a person of ordinary skill in the art, even though no prior art was referred to which showed this specific feature contended to be the non-obvious difference of the patent in question over the prior art. In the present case, an e.en clearer case of obviousness under 35 U.S.C. § 102 is present, since the allegedly unobvious difference in the Conoco ’800 patent of rotation was disclosed in the prior Reid patent (App. G) and was known to others in the art (App. F). More recent decisions of this Court since the Graham and Adams cases, Anderson’s-Black Rock v. Pavement Salvage Co., 396 U.S. 57 and Sakraida v. Ag-Pro, Inc., 425 U.S. 273 have adhered to the Graham analysis and held invalid patents on combinations of known mechanical elements, as is the case here. “Rather, this patent simply arranges old elements with each performing the same function it had been known to perform, although perhaps producing a more striking result than in previous combinations. Such combinations are not patentable under stand- ards appropriate for a combination patent.” Sakraida, supra, 425 US. at 282. “We conclude that while the combination of old elements performed a useful function, it added noth- ing to the nature and quality of the radiant-heat burner already patented. We conclude further that to those skilled in the art the use of the old elements in combination was not an invention by the obvious- non-obvious standard.” Anderson’s-Black Rock, supra, 396 US. at 62-3. Thus, the Court of Appeals in this case has departed from firmly established standards of patentability under 35 U.S.C. 103 enunciated over the years by this Court.’ The Court of Appeals in the judgment complained of was apparently swayed by Respondent’s commercial suc- cess in its finding of non-obviousness of the present in- vention: “Within a short time after the paravanes became available a majority of the marine crews throughout the world were using them, including the crews of some of the largest companies.” 634 F.2d at 192. 1. Indeed, one of these cases from this Court on the issue of obviousness under 35 U.S.C. § 103 is a reversal of the Court of Appeals for the Fifth Circuit, Sakraida v. Ag-Pro, supra. Not only is the Fifth Circuit contrary to the Supreme Court in Sakraida, but it failed to even consider the lack of synergistic effect. On that issue, the circuit courts are in conflict and need guidance from the Supreme Court. For example, Smith v. Acme General Corp., 614 F.2d 1086 (6th Cir. 1980), Reinke Mfg. Co. v. Sidney Mfg. Corp., 594 F.2d 644 (8th Cir. 1979) and Tveter v. AB Turn-O-Matic, 633 F.2d 831 (9th Cir. 1980) require a synergistic effect. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963 (7th Cir. 1979) and Plastic Con- pe Corp. v. Continental Plastics, 607 F.2d 885 (10th Cir. 1979) 0 not. 9 This Court in Sakraida, supra, specifically pointed out the danger of letting commercial success become the touchstone for patent validity in determining non-obvious- ness under 35 U.S.C. § 103: “Though doubtless a matter of great convenience, producing a desired result in a cheaper and faster way, and enjoying commercial success, [the patented device] ‘did not produce a “new or different function” ... Within the test of validity of combination patents.’ [citing cases] These desirable benefits ‘without in- 9 la not make patentability.’” 425 U.S. at Thus, it is respectfully submitted that the Court of Appeals’ opinion subordinates Supreme Court law, by treating the commercial success of Respondent's device as a basis for non-obviousness over the prior art under 35 U.S.C, § 103. Further, the opinion of the Court of Appeals is reached without applying, or even recognizing, the tests enunciated by this Court in Graham v. John Deere and Adams. The test of Graham is whether a difference over the prior art Baker '666 patent of a “rotatable seismic cable” would have been obvious to a person of ordinary skill in the art, in view of that feature having been shown in the prior art Reid patent (App. G) and tested and documented (App. E & F) by prior workers in the art. The Court of Appeals’ opinion also did not regard the Baker patent disclosure instruction and cover sheet or the research work of Mr. Baker either as prior art or in terms of its evidentiary effect on the issue of “obviousness”, 10 The Court of Appeals’ opinion appears to be premised on the erroneous view of the law that a commercially marketable device must be developed before a prior in- vention by another constitutes prior art. Such a view of the law is contrary to Supreme Court law, Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S, 358 (1928): “This work was finally recorded in a carefully pre- pared contemporaneous report which Kratz left in the files of the Norwalk Company . . .” Jd. at 379. “But, even if we ignore this evidence of Kratz’s actual use .. . what he did . . . leaves no doubt in our minds that he did discover in 1916 the strength of D.P.G. as an accelerator as compared with the then known accelerators, and that he then demon- strated it by a reduction of it to practice in produc- tion of cured or vulcanized rubber, “This constitutes priority in this case.” Jd. at 382. As another decision of this Court applied the test: “It is not necessary, in order to sustain a generic patent, to show that the device is a commercial success, The machine patented may be imperfect in its operation; but if it embodies the generic principle and works, that is, if it actually and mechanically performs, though only in a crude way, the important function by which it makes the substantial change claimed for it in the art, it is enough.” Hildreth v. Mastoras, 257 U.S. 27, 34 (1921). The Court of Appeals’ opinion, if allowed to stand, would create a situation in the patent law where earlier research results of others, in order to be considered as “prior art” under 35 U.S.C, 102 and 103, would have 11 to be put into a commercially marketable form, Under the Court of Appeals’ opinion, such research results could not be relied upon as prior art by an accused infringer in an action for patent infringement unless they culmi- nated in a commercial product. The Court of Appeals’ opinion thus greatly circumscribes the ambit of activities available as prior art in a defense to a patent infringe- ment action and considerably expands the scope of a patentee’s monopoly by claim interpretation. The Fifth Circuit opinion can be argued to be deliber- ately and intentionally in direct conflict with prior opin- ions of this Court. The Petition for a Writ of Certiorari therefore should be granted so that this Honorable Court can correct these errors on the part of the Court below. CONCLUSION For the reasons set forth above, it is respectfully sub- mitted that this Petition for a Writ of Certiorari should be granted, B. R. PRAVEL ALBERT B. KIMBALL, JR. PRAVEL, GAMBRELL, HEwITT, Kirk, KIMBALL & DopGe 1177 West Loop South Suite 1010 Houston, Texas 77027 (713) 850-0909 Attorneys for Petitioners 12 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Petition has this date been served upon opposing counsel of record by placing same in the United States Mail, postage prepaid and properly addressed. May ____, 1981. ALBERT B. KIMBALL, JR. APPENDIX APPENDIX A Plaintiff appealed from a determina- tion of the United States District Court for the Southern District of Texas, at Houston, Robert O’Conor, Jr., J., that its patent for a seismic cable depth-controlling paravane was not infringed by a device patented by defendant. Defendant cross appealed, chal- lenging the validity of plaintiff's patent. The Court of Appeals, Politz, Circuit Judge, held that: (1) plaintiff's patent No. 3,375,- 800 for a seismic cable depth-controlling paravane was valid; the paravane was nei- ther anticipated by the prior art nor vere the claims obvious to one ordinarily skilled in the art; (2) the creative process existing prior to issuance of plaintiff's patent was in an embryonic stage, and it would be mani- festly unjust to characterize said patent as anything other than innovatively different and not readily obvious to a person of ordi- nary skill in the field of marine seismology; (8) defendant's accused device infringed the range of equivalents of plaintiff's patent; and (4) the doctrine of file wrapper estoppel was inapplicable. Reversed, rendered and remanded. 1. Patents @324.55(1, 3) The sine qua non of appellate review of patent litigation is the notion that validity ed only if the findings are clearly A-2 CONTINENTAL OIL CO. v. COLE 189 Ciao as 634 F.26 168 (1961) 4 Patents 226.5 One form of patent infringement oc- curs when an accused device incorporates a teaching literally read. 6. Patents o=237 An occurs when a device substantially the same way to achieve sub- stantially the same result; the “doctrine of equivalents” shields the inventor from such | { it th ! t | : 3 [ f i EF {| 11. Patents ¢=226.5 In patent validity and infringement lit- igation, the task of discerning reticent dis- similarities is as imperative as noting the more visible similarities. 12. Patents ¢=328(2) Plaintiff's patent No. 8,375,800 for a seismic cable depth-controlling paravane was valid; the paravane was neither antici- pated by the prior art nor were the claims obvious to one ordinarily skilled in the art. 85 U.S.C.A. §§ 102(a, e), 108. 13. Patents ¢=51(1) Not only is the defense of anticipation strictly a technical one, but also there is no anticipation unless all of the same elements or their equivalents are found in substan- tially the same situation where they do pabstantially the same work in the same way. 14. Patents @=66(1.20) Plaintiff's patented device, a seismic cable depth-controlling paravane, was a breakthrough in the seismic industry and was not precursored by the working model of another's cited invention and its progeny. 85 U.S.C.A. § 102(a). 15. Patents 112.1 A presumption of validity arises from the issuance of a patent, and this is espe- cially so in a case where the same patent examiners simultaneously review the al- legedly contending applications. 16. Patents 112.1 If there is no evidence that the Patent Office considered a particular prior art, the presur ‘ion of validity is mitigated. 17. Parouts @51(1) The label “prior art” cannot be ascribed to a private intracorporate communication. 18. Patents @=66(1.2) Imputing similarity of features to a prior art patent when the patent disclosure teaches otherwise would be inappropriate. > Ww judicial pen. * District etasippi. of the Northern District of Mis- by designation. 26. Patents ¢=237 Doctrine of equivalents plays an impor- tant role in protecting patent claims from the enterprising minor deviations of inven- tion “pirates.” 27. Patents =314(5) A finding of equivalence is a determi- nation of fact. 28. Patents 237 Defendant's accused device infringed the range of equivalents of plaintiff's pat- ent for a seismic cable depth-controlling paravane. tiff’s patent for a seismic cable depth-con- trolling paravane; the range of equivalents had not been so limited as to preclude a A-4 (Cine as 634 7.24 198 (1981) CONTINENTAL OIL CO. v. COLE lschaft Kohle v. in Weidman Metal Co., 616 F.2d 1815 (Sth Cir. invention the i patent to merely These principles were essentially noted by us in our recent decision Masters v. Glass Master Corp., 623 F.2d 1024 (Sth Cir. 1980), and cases cited therein, particularly to us can be Eastman Kodak of the trial in favor of Conoco is valid. We 21] iats3 udge Oil Company by lor & is not by Jimmy We that equivalent in f ‘5 paravane. ‘s patent the pT eae lor further ii ittlite PHBL AE le aH they re- U. 8. and Sporting Inc., 555 F.2d 426, 488 (6th Cir. 1977). Instead, cumin led by te tle are Aang 52a). to assure us that In this situa- by which ultimate findings were reached and in ascertaining the the trial court’s findings would remand for more However, “{tJhis failure and not a fatal error.” Corp., 624 F.2d 698, 700 “Where the evidence is weighing the credibility decide falls into of the witnesses there can be but one rea- before the court con- Conoco’s patent, us « clear understanding of City, Ine. v. Wilson 423 F.2d 91, 98 n.8 (Sth Cir. 1970). In the case sub judice we are not Ine. v. The record is replete with evidence fully (9) vored conclusion as to the result, the case Golf in the main conclusory. [103 The questions cern the validity of tion we routinely Patent 8,375,800 (the ‘800 patent), specific findings. is merely a hindrance Whitley v. Road (6th Cir. 1980). such that without sonable can Waldon, Company, t based the analytical process confronted validity tailed to give In contrast, Goods, Co., be capsulated. appellate review of fa notion that legal questions When we are free to the trial court took care 's answers and facts.” oversight. are clearly erroneous. Although 0 intertwined "omens standart ofr fact finding must resolved by the trial court cases on we now of inf fact question, legal questions can become 4 ee as eee 0 ing arly red An infringement a its innova- Hiya TTL F] A-5 192 whether it is infringed by Cole's patent, U. S. Patent 3,931,608 (the 608 patent).' A. Factual Background The invention which has bred this litiga- ations leads to educated adumbrations as to whether the area contains a structure which may accommodate commercial quantities of could survey in a routine day. In sum, not only was the pre-paravane process slow, arduous and uncertain, but costly delays were frequently encountered. The "800 patent claims a device co~in- vented by Cole while he worked for Conoco EFS {i set 1H a ii ii =F : Ht | i s §aF 2 - 2F ifi ie af ie fi Cs . ae _awvewroas. — i ee | Vimar Rar Coce £ 4 - ve Le GXLeR D-2 April 2, 1968 J.R. COLE ETAL 3,375,800 SEISMIC CABLE DEPTH CONTROL APPARATUS Filed April 7, 1967 3 Sheets-Sheet 2 . ==" : NS SS YY eo INVENTORS , Vana y. har Cone € we Le DULoe D-3 April 2, 1968 J.R. COLE ETAL 3,375,800 SEISMIC CABLE DEPTH CONTROL APPARATUS Filed April 7, 1967 3S Sheats-Sheet 5 304 " aNY URS ¥ wo, ei cS—!0 | ee" i oi! : INVENTORS, Vianar Rar Cae € Pave Le Bree Wllanese Mille 3,375,800 Patented Apr. 2, 1968 United States Patent Office pu itl cnt AHH i ate it Ht 32 HS Bie Hatt fit ut Hie i i th lk HL THe aid | te tee fie jd es “He juli a He a ag dh He bil HE fede tf} HE Hae Es ta ult] it lee at ie ie ee Hatten ie ie aunt se ii PT a hue tl ft ig ee ee ee See EG Hees ER SE shai ylhaasy isi Ce HEE Hi pete Te alia ae mF “J + TBE hile 44 at eae 3s ee if ipl Hane nl 4 eH i uals iF RHO D-5 3,375,800 ion view of the preferred paravane struc- cable being shown in crous- 5 of FIG. 4 is a sectional view taken along lines 4—4 3 seciional view taken along the detector cable. the preferred paravane structure, said of the lines S—S of lines 6—~6 of ' FIG. 5 is a sectional view taken along FIG. 6 is @ sectional view taken along FIG. 3. HU Tale [att ‘uel i aD at taal . e Sy 2" =Esezestis = Es & ee - bly included within the apparatus. Another object of the invention is to provide an appi- ratus which includes an elevator means that is ve. 10 an output [rom a pressure sensing device, Yet another object of tbe invent is to provide an apparatus which seeks a predetermined depth at a maai- mum rate and then maintains that depib. Other odjects and features of the Invention will be- * come more readily undersiood from the following detailed description and appended claims when read in conjunc- tion with the accompanying drawings, in which Jike refer- ence numerals designate like parts throughout the figures thereof, and in which: FIGURE | is a perspective view of the depth controller viewed from the top; FIGURE 2 is a perspective view of the depth controller viewed from the bottom; FIGURE 3 is a view of the Interconnection of the shafi of the pressure sensor assembly with the elevator of the cuntroller; FIGURE 4 is a cross-section of the pressure sensor assembly; FIGURE 5 shows the relatiomsbip of elevator angle to depth in the water, Referring now to FIGURES 1! and 2, the depth con- troller is indicated generally by the sefereoce numeral 10. * To this depth controller is attached a streamer 12 having | & metallic sleeve 14 a3 an integral part thereof. The metal- lic sleeve is attached to the point oo the streamer for maintaining.a portion of the streamer at a predetermined depth, for example, at a depth of 30 feet. The depth con- trolier 10 is connected to the streamer 12°by means of an attaching clamp 16 which surrounds the sleeve 14 and is bolted to a metallic Y support bracket 18. Across the upper portion of the support bracket. is a bar 20 which provides additional support and strength for the Y bracket, The ends 22 and 24 of the Y support bracket are connected to hinges 26 and 23, respectively (FIG- URE 2), which allow wing member 30 to pivot a0 amount dependent upon tbe angle of defection of the elevator 40. Wing member 30, in this embodiment, is hollow and made of plywood although it can be made of any otber suitable material, Included in the outer sections of the wing are styrofoam blocks 32 to add bouyancy or floata- tion to same. In the center section of the wing is a pres- sure sensor assembly 34, the structure of which will be described below. Elevator booms 36 and 38 are attached to wing 30 at one end, while each of the otber ends provide support for elevator 40. The elevator 40 is con- nected to each of the elevator booms 36 and 33 by hinges 42 and 44, respectively. Since the wing 30 is buoyant (due to Ns plywood mate- rial and tbe styrofoam blocks in the wing), it is neces- sary to provide additiona) weight and stability below the streamer 12 to maintain wing 30 in a horizonial position. This weight is provided by steel tube 46 attached to the end of the metallic Y support bracket under the streamer. On the other hand, the stability is provided by a horizon- tal stabilizer or tail assembly 48 which has attached to it two rudders 50 and 52, The tail assembly 48 aod rudders 50 and 52 may be made of a suitable material, such as plywood. The tail assembly is attached to the weighied steel tube 46 by means of clamps 54, By use of the weighted tube and the tail assembly, the necessary weight and horizontal stability is provided for wing member 30. FIGURE 3 shows the apparatus necessary to translate the — of — eeedton ts asembly 34 to eleva- tor 40. As was stat y, the pressure assembly 3, in this embodiment, sits io the center portion of wing 30 (as shown in FIGURE 2) with shaft $6 extending through the wing. Attached to bracket $8 and fixed at point 60 is a bell crank 62. This crank is secured at points 64 and transmitted into » substantially horizontal motion 66, this being subsequently transferred the tang 68 to the control rod 70. One end of extension rod 72 is attached to control rod 70 and the other end of said extension rod is coupled to an extension rod end 74. This rod end has a hole in it which allows the elevator hinge to pass therethrough. As shown in FIGURE 1}, hinges 42 and 44 allows the elevator 40 to rotate around the points attached to the elevator booms 36 and 33. Accordingly, if shaft 56 were to move downward from its midpoint position, this motion would be transmitted to elevator 40 which would, in turn, move the elevator upw...d to a position such as that shown at 400, An up ward inovement by shaft $6 would have the reverse effect and cause the elevator to move to a position such as that shown in 40). Thus the control rod and pressure eyed eg Getermine the angle of deflection of the elev.iw E-4 3,372,666 3 FIGURE 4 shows the preswre which senses the depth of depth controller 10. The 78 is attached to the 3 z rie se is limited by mechanical stop 100, whereas the upward movement of the shaft ’ piston cap 86 coming in contact with the of pressure uwombly cover 78. FIGURE 5 is a graphical re essary 10 position the elevator precompressed during the sensing mee Renae a lower surface of the assembly : rmost 5 the elevator be in position 40) (FIGURE 3) which will maximum dive angle of the device. This can in FIGURE 5, for at zero — mum dive angle. As t water will enter through the hydrostatic pressure to of the barrel, whereupon 3 = z2 Eri Ts Ses 4 76 i z x 2 é iu & : the elevator, will not move until a depth of 26 fect is réached; that is, at that depth the hydrostatic pressure of the water equals the 30, thus forcing the accordance with the =e : : mum downward — 40a (FIGURE 3), the maximum relore, the depth cont will climb unt that depth at which the to overcome the hydrow move the piston skirt 92 This point corresponds to a depth of 34 feet : HH silk i 73 4 in FIGURE 5), and as the streamer 12 and depth con- troller continue to climb, the decreased water pressure on the piston 90 causes a reduction of clevaior angle - until at 30 {cet the pision assembly will again be in the mid-position, with the elevator angle correspondingly being at zero degrees. Wing member 30 will be at a zero degree angle to the water flow and there will no longer be a climbing force exerted. It should be noted that the depth controller 10 auto- matically reaches that climbing of diving angle which will ccunterbslance the force acting upon it. It should be further noted that th: piston motion is not propor- tienal to depth (as can be secn in FIGURE 5). The dep:h controlicr will climb or dive at a maximum angle (whichever is necessary) to approach the desired depth. This is a:sured in shallow water by the precompression of the spring 94 eaceeding the hydrostatic pressure, therc- by maintaining the shaft £6 a1 its maximum upward posi- tion (which corresponds to the maximum elevator dive angle). If the device is too deep in the fiuid medium, the hydrostatic pressure of the medium will substantially ex- ceed the tension of the spring and force the piston and shaft against the mechanical siop 100 to its maximum | downward position, which corresponds to the maximum elevator climb angie. This means of turning the elevator 40 through a full range of 30 degrees over a depth change of 8 fcet results in control of the depth very close to the * desired 30 foot depth, even though the sireamer 12 is either too heavy or 100 light. Although the preient invention has been shown and Mvustrated in terms of a device for controlling a streamer at a 30 foot depth, it will be apparent that the device-can be made to control a body at any desired depth by select- ing a suitable spring for the pressure sensor assembly. Also, although the device has been described as being use- ful for maintaining predetermined depths for dtismic Streamer applications, it will be furtber apparent that the depth controller can be used for controlling the towed depth of other equipment, such as sonar transducers and sensors for measuring temperature, salinity, light inten- sity, and the like. It is to be undersiood that the form of the invention, herewith shown and described, is to be taken as a pre- ferred example of the same, and that various changes in the shape, size and arrangement of parts may be resoried to without departing from the spirit and scope of the in- vention as defined in the appended claims. What is claimed is: 1. A depth controller for maintaining a body at a pre- determined depth in a Nuid medium, comprising: r)) , the motion Is. transferred to the elevator contro! rod (Figure g and thus, to rotete the elevetor. The spring © Is 80 designed thet It must be compressed upon assembly Into the pressure actuetor assembly. Thus at the water surface, the spring Is holding the piston ageinst the cover - Movement of the piston does not oceur unt!! there Is sufficient pressure (depth) to over come this Initial spring force. Thus, piston motion Is proportions! to depth. The ection Is shown In graph at lower left of Figure |. At the surface, the elevator hes @ 15° angle to couse Lift of the tall; and thus, forces the wing to @ dive angle. As the device Is towed, It dives. Oue to the precompression of the spring {mn the pressure actuetor, no change in elevator engle will occur until « depth of 26 feet Is reached. As the device continues to dive, the Increased water pressure covses @ + reduction of elevator angle until et 30 foot depth the pressure actuator fiiford Mali bebe ith PDih helagy THVENTOR oe Witness Pye 2% y! r F-7 «j- piston Is In mid-position, the elevator angle is at zero degrees, the wing Is at zero engle to the water flow and there Is no more diving force, If the streamer is heevier than neutrally buoyant, the controller will be forced to « depth greater than 30 feet, the pressure ectuator will cause the elevator to move to an angle causing depression of the tall and the wing Into a climbing angle. i¢ will, thus, sutomatically arrive at climbing angle (or diving angie) such as to counter balance the force acting upon it. This means of turning the elevator through the full range of 30° over « depth change of eight feet results in contro! of depth close to 30 feet, even though the streamer is considerably heavy or light. While the explanations are confined to # device for controlling # streamer #t 30 foot depth, the device can be made to control at any desired depth by selecting @ sultable spring for the pressure actuator, Also, the device can be used for controlling the towed depth of other equ! pments such a8 sonar transducers, sensor for measuring temperatures, salinity, light Intensity, ete, Vt a WING 1S BUOYANT, PARTS BELOW STREAM ‘ARE WEIGHTED, THUS MAINTAINING WIG Hoel Zo/7Al.4 EvnRE DEVICE 4S SLIGHTLY BUOYANT]. . Mp hy 7Al1e_B0omMS wn on Conf het. Ro — hte mereant SS isn hy PRESSURE ACTURTOR WITHIN WING CovTaas Samer ANGLE ST7REAMER OEPTY CONTROLLER MODEL --38 PES 2.3 1905 . se Fe | APPENDIX G Aug. 19, 1952 A. C. REID 2,607,642 MARINE SEISUOMETER SPREAD Filed Warch 2, 1949 “7 2 SHEETS—SHEET 1 INVENTOR: ALLERNT C. REID Drwell Pring ATTORNEY G-2 2,607,842 A. C. REID MARINE SEISUONETER SPREAD Aug. 19, 1952 Filed March 2, 1949 a, ana ee SSS= INVENTOR: ALBERT C. REID ATTORNEY ” Avett, ting G-3 £&.60.Cu uy auy ASum UNITED STATES hey Pe “ PATENT OFFICE 2,607,842 MARINE SEISMOMETER SPREAD CG. Neid, Tulsa, Okla., arsignor to Stane- a Albert lind Oll and Gas Company, poration of Delaware Tulsa, Okla., a cor- Applcalion March 2, 1949, Serial No. 79,234 10 Claims. (CL 177352) 1 This invention relates ta geophysical surveying ind is directed particularly to prospecting by the seisutic method over water-covered areas such as in the Golf of Mexica. . Geophysical surveying using artificially-created selsmic waves hag becn extensively and succcss- fully used on Jand for a number of years, but it is H i zg g 3 2 fi ee i 8 E prospects. the improvement, and a of spe- Fy ff 3 5 g the proper handling of the sciamometers used for detecting the selsmic waves. Placing the sels- monvtcrs at known locations in a spread on the Marine Door es in Jand prospecting proved even more laborious and time-conswaing than on land. Towing ao spread af scismometers connected to- gether by @ conductor and tensicn cable along the marine Noor or supported by Moats behind the recording vessel from one location to another, =f ge sg s i i ee g B 3 3 ay 83 ae lis iy Fits 5 i E i 3 g Rie i i ri i “a Lie cest 16 weaker Cosired seismic refiection signals. 68 ware 2 refiecticns and make prospecting impossible. As ®& moatver of fact, there ore some seasons of the year in the Gulf of Mexico when the nolse condi- tions from the woter surface have been so troubiesome that prospecting operations were . possibie only a small fraction of the time. The resulta: delays while the crews and equipment are beld in readiness for favorable working con- ditions add very greatly to the expense of the 10 operation. It is, accordingly, a primary object of my inven- tion to provide a marine seismometer assembly which gives a greatly improved signal-to-noise ratio, permitting the detection of deeper = other object is to provide a selsmomweter sprer.d assembiy for marine prospecting in which the depth of the selsmometers is automatically con- trolled to bring them to the most effective depth 20 for signal reception, A further object is to pro- vide a marine seismometer spread capable of opcration under adverse weather or water con- ditions to obtain good geophysical data which ‘could rot hitherto be obtained under such condl- 25 tions. Stil] ar.other object is to provide a towable marine seismometer spread in which the depth of submergence of the seismometers is auto- maticaliz7 Noat-controlled fiom the water surface, but in a manner which minimizes the transmis- 30 sion vf noise signals from the water surface to the selsmometers. A still further object is to pro- specd of pecting operation. Still another and further ob- seismometer 40 compensates fur changes in Buoyancy while effee~ tively Altering out water-surface noises. Another and still further object of my invention Is to pro- vide a marine selsmometer spread suitable for use in areas where the copth of water is too great of the invention wil) become apparent as the Ccescription bu Procecds. From ovservations mede under a variety of copditicus, it has pow been fourd that the range of depihs jo water where selsmometcrs may be placed for the moat eXclent operation is relatively narrow. Due to the greaily difforent selsmic- Properties cf air and weter, G-4 « 3 . seismic wus .+.'hary uewsrd from the carth below thy wivtitr etch Une woter to i:3 surface are a:most tutaliy iciiected Usere. As a result. there is a strong probability of interference be- tween succeccing waves ina train of seismic waves ata depth in the water which is one-quarter of the seismic wave length in that medium. To mometers as close as possivie to the water sur- FERR ; | i H i Hb 3 This 30 70 4 rigid Zostisan0t tr waleresurface nolses sre attenuate by the re.clicnee of the float ma- terial which da:nars out, rather than transmits, vibrations impressed on it. This wil) be better undcrstood by reference to the accompanying drawings, forming a part of this application and illustrating typical emboci- ments of my invention, in which drawings like numerals are applicd to the same or correspond- a a In these wings, Figure 1 is a cross-section of a body of water which a marine seismometer spread, being towed by a vessel and is shown in a posi- tion suitable for making s record; trol as distinguished from support for the spread: Figure 3 is a similar cross-section showing a modificaticn of the spread of Figure 1; Figures 4, 5, 6, assembly, consisting of a separate scismonicter- supporting float and the depth-controlling fica of the invention; and. ° * Figure 9 is a cross-section showing a means of comping She Stat of the invention to the apuend ca Referring ing @ considerable tensite strength for con- nec together and towing the various com- ponents, an‘ a plurality of insulated electrical G-5 ._ ‘Hstenee teyond. These Joats 33 ore pre:s ‘7 “si'o Nexihle so that the tup end of each ...: Fee ul d : g Pt res f i Hue P = e | ! 2 ; : : g i | | | : : cable 23 and chicfiv responsible for the depth control of the scismometer units 24 are of distinctly larcer cross-s-~Jonal arca than the fiosts 33d, spaced along the cable 23 itself, between the locations of seismometer units 24. By thus making the buoyancy per-unit-lencth of the ficats 33 different depending on the amount of the cupport for the spread 22 required of them, the of these floats along the cable may be maintained reasonably uniform. Ic is preferred shat the floats 33b support cable 23 at poicts spaced from 15 to 50 feet apart-—for example, about 45 feet. Unsupported sections of cable 23 longer than 50 fect or so are undesirable. The point cf attachment of the floats 33a to the cable 23 on either cids of the seismometer unit 24 is spaced from that unit by distances of from cue to 10 feet—preferably ahout3 feet. This provides erred, however, that it possers a substantial buoyancy in the water so that its entire support is not provided by the floats 32a. It is preferred also to adjust the buoyancy per unit Ienzth of the floats 33d and their spacing along the cable so that the desired spacing interval can be main- tained recsonably uniform sithout the addition of many balancing weights 31. * Tt wil) be noted that when float 33 is in the form of a single clongated fiexible tube, it will be col- lapsed by the water pressure at its lower end, if the inflation pressure is less thar the hydrcstatic pressure at that depth. As a matter of fact, by permitting more or less of the float 33 te collapse under the pressure of the water at its lower end, a convenient m ti 3 agi ie i i nit alata ip He eT Tn HAUT eee a an pace che fizeslisti3a23 te 43 rer PEEERE EDEL ES peas i A SET La WAU eS F 33 d 3 32a 5 ei shs ys as; 1 & Bs ei rein (ace [ll va fetal iia raat ali mel a) rite a8 i Eagds a3 . : 235 pga ea. B268 gepeed3 | anelaidi Hel Hi he Ht t tet Hat atl see Co Tn eget nne pH EEr A tT et Ure tk G-7 apugegsapsaee fguee SUB Lea Ue Eee. SHES ee Hilrgtat tata ca aie He rr PR nately ay nl ial eit! ly ity Ak sy gage HH : st HERE i Hilt ij ila itll HE “ie in a3; eas hy iF He it aie italy nel _ Ge En aT AE iit He a PACA en Hi f Hl ul a a rey HF aj nH it it Et TE aul a eat Tali silat itil: HEHE Hen ARI ite BEM al eee iki el 14 inal nnieat Hat ae aE © ive buoyancy, and the other portion extending portion is not self-supporting ver~- below-surface portion but collnpses F §§ 3 Hitt ie: positive 79 ably greater or less than of exerting, where- amounts f said member are of said two portions o: ALBERT C. REID. (References on following pase) tubular, buoyant member portions, one portion 75 an elongated, flexible, having, when in use, two G-8 a sete eR as © 22 ; NLFERENCLS CITCD rete m Nome " Pm is ‘dhe followkig references are of record in the = 3/19. STUER concocccce Sept, 36, 2,405,696 Paslay .....-..---. Mar. 29, 1949 Ale of this patents 2,570,101 Parr ..--------...2- Oct 9, 1951 STATES oan aayenme UNITED STATES PATENTS : P rah Number Date 1,470,733 MBYCS cncccccccseee Oct. 16, 1933 Popular Mechanics, May 1941, pp. 728, 729 2241428 §«Gliverman ........ May 13, 1941 : Best Copy Available --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2215%3A1. Public record. Not legal advice.