# Appendix — Kimberly-Clark Corp. v. Kalman

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0969%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1026

## Text

* EO na egy 2
= +e

No. COERK

In The

Supreme Court of the United States

an
October Term, 1983

KIMBERLY-CLARK CORPORATION,
Petitioner,
vs.
PETER GABOR KALMAN,
Respondent.

Petition for a Writ of Certiorari to the United States Court of
Appeals for the Federal Circuit

APPENDIX

LEONARD J. SANTISI
CURTIS, MORRIS & SAFFORD, P.C.
Attorneys for Petitioner
530 Fifth Avenue
New York, New York 10036
(212) 840-3333

7843

*NJ (201) 257-68S0°NY (212) 840-9494¢PA (215) 563-5587
: MA (617) 542-1114*DC (202) 783-7288°USA (800) 221-0008

ar Tre a

APPENDIX

Page
le. Opinion of the Court of Appeals . . . +. + + «© «© « « 1

District Court Decision and Order,
August 17, 1982 > > * *. * hall * > > . > . 7. o — 7. oo > 28

» District Court Decision and Order,
mapener: 5S, . tReLs. «ee 4 oe 8 ee eo ew eee 46

4. Judguent of the Court of Appeals ...+.-e«+«-e-vee 56
5. Order of the Court of Appeals Denying Rehearing. . 57
6. Judgement of the District Court . .....+.+ee-s 58
= Patent in Issue, Kalman, U.S. Pat. No. 3,471,017. . 59
8. Moziek Patent, U.S. Patent No. 3,112,525 ..... 65
9. Garrahan Patent, U.S. Patent No. 1,195,576 .... 74

10. Excerpts of Trial Testimony, Kalman's
Expert Pickering ..+
GN A 3 pre ens
its }
M4 * 7 i - ae e
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-

ae er 4 ¥ , tw. OD + ‘ “s ae po - See et aR ee ee 7 ‘.
; a a ee Se, RE ae

material may have been put." The patent shows a long ‘filter
plate m extending out of the filtering device. This construc-
tion, shown below, enables the operator to move the strainer
“from time to time so as to shift one part of the straining
atea out of the straining position and another into straining
position to enable cleaning of the former while the straining
operation proceeds uninterrupted.” Movement is accomplished

through attached screw z.

r¢

U.S. Patent No. 3,007,199, issued November 7, 1961, to
Curtis for an "“Extruding Head Filter," discloses a slide screen
changer which has “a plurality of filter screens within a plas-
tics extrusion machine arranged in a manner so that the screens
may be alternately placed into operation very quickly by
hydraulic means so that one of the screens is always in opera-
tion while the other is exposed to permit cleaning.”

KC maintains that the pertinent teaching of Lodge patent
No. 2,507,311, issued May 9, 1950, for a "Strainer," is "the
ure of, tong bento eo: ofIih of PEReE secnme one. My Mle

i

and 32 from rolls 33, 34 and 35." Kalman emphasizes that "the
machine disclosed by Lodge must be shut down to effect a screen
change." Below is Fig. 1 from Lodge showing the strainer as

part of a tubing extruder.

Z
KC states that patehts to Joukainen, Welt, Thomas, and

Lehner were cited "merely to show that the thermoplastic
working art recognized one could use cooling to make a thermo-
plastic material or a heat-softenable material act as a seal
when it is. solidified by cooling.” Emphasizing that the
patents disclose rotary screw extruders or rotary pumps for
plastic material, Kalman counters that "none of these four
patents discloses or suggests that the plastic material can
form seals by being solidified, for any purpose, and certainly
not for sealing filter members."

4. Proceedings in the District Court

Without waiving any of its defenses respecting validity,
KC stipulated that the asserted ciaims “read on" the accused a;
infringing devices, but for the limitations in claims 1 and 18 2”
which speak of a filter “in the form of band of ribbon.”

-~

Since all other claims depend from 1 or 18, this limitation is.
common to all claims in suit. On his motion for summary judg-
ment on both validity and infringement, Kalman presented the
affidavits of two experts, both of whom concluded that both the
Kalman and Berlyn devices have a band of filter material.
Kalman also presented the testimony of three KC employees, two
of whom seemed to accept Kalman's attorney's suggestion that
the accused screen structure was like "a train of screen
pieces" connected end to end moving through the apparatus. The
other employee agreed to characterize it as “one long plate,”
or "like a band of filter material along the entire length of

"no

this plate, but for [the] dividers." Because KC presented
affidavits or other documents which controvert this testimony,"
the court concluded “that no facts are in dispute on the issue
of the band or ribbon." The court also concluded that "the
filters used in the Berlyn device are equivalents of those
described in the patent," and granted in part Kalman's motion
for summary judgment, ruling that the Kalman patent was in-
fringed but declining to rule on its validity. 215 USPQ 158
(E.D. Wis. 1981). The conclusion of equivalence is not chal-
lenged on appeal.

Because the district court felt that KC's arguments
regarding validity presented genuine issues of material fact
for trial, the court denied the remainder of Kalman's motion.
In addition to arguing that the Moziek patent casts doubt on

the validity of the claims in suit, KC asserted that the +

“effecting movement" language of claim 1 “must be interpreted * )

as being the type of movement for the filterscreen which relies
on a differential pressure acting on the plugs formed in the
filter inlet and outlet ports to impart movement to the filter-
screen device." If the claim is not so limited, KC argued, it
is invalid over the prior art; if it is so limited, KC asserts
that there is no infringement.

After a four-day trial, the district court found all

claims directly infringed by the Berlyn devices:

These claims contain no reference to movement
of the filter by hydrostatic pressure. Method
claim 1 refers merely to “effecting movement"
of the filter. When one looks to other claims,
it becomes clear that “effecting movement" in
claim 1 does not refer to one means of moving
the filter. Alternate means of effecting move-
ment are set forth in claims 5, 6, and 7.
Claim 7 states that a "tractive force” may be
applied to the filter to effect intermittent
movement of the filter. I read claim 7, as
does plainciff, to mean that a tractive force
alone may be used to move the filter.

The court emphasized that “the Berlyn devices must be compared
to the claims of the Kalman patent, not to a preferred, in this
case, more sophisticated embodiment as described in the speci-
fication." In conclusion, the court commented on the manner in

which the Berlyn devices advance the filter assembly:

That the Berlyn devices push rather than pull
the filter is not a difference of enough signi-
ficance to escape the charge of infringement.
Defendant's employee * * * testified during his
deposition that it makes no difference in the
Berlyn device whether the filter trays are
pushed or pulled.

Turning to the issue of validity, the court noted that
Moziek only :

n
zy.

: a 12 —

4 ee Ww
."
ws

* * * discloses a variation on the screen
changer method of filtering plastic. It does
not call for continuous movement of the filter;
rather, as in screen changers, the change is
done all at once--that. is, an entire new filter.
is placed across the flow. Furthermore, Moziek
makes no provision for a band or ribbon or any
length of filter. Rather, as is typical for
screen changers, two filters are called for---
one being used, one bei cleaned. Although
Moziek teaches that the valves can be cooled to
prevent leakage, the theory of the cooling is
different from that in the Kalman patent. In
Moziek, leakage is primarily prevented by using
closely fitting metal parts. The cooling helps
prevent leakage past the valves. is is
vastly different from relying on the plastic
itself, as in Kalman, to form plugs.

Characterizing Moziek as disclosing a sliding "screen changer”
method while “the essence of the Kalman invention is the con-
tinuous filter," the court concluded that “The Moziek patent
falls far short of anticipating the Kalman patent [sic, claimed
invention] under 35 USC §102. * * * Moziek, as written, does
not teach what Kalman does." Because “specific problems not
provided for by the prior art” are solved by Kalman, for
example, “prevention of leakage; continuous filtering; and
maintenance of constant temperature and pressure in the plastic

upstream, the court also concluded that the claimed invention

meets the requirement of nonobviousness under 35 USC 103.
5. Atguments on Appeal.

KC argues that the district court gave the claims in
issue too narrow a scope and that, properly construed, each is
invalid under 35 USC 102(a), 102(b), 102(e), and/or 102(g) in

view of Moziek.- KC also asserts that the claims are invalid

under 35 USC 102(a) (known or used by others in this country

before Kalman's date of invention) in view of evidence which
shows that prior to “the effective date of invention of the
Kalman patent [sic, invention], Monsanto built and operated a
number of filter devices corresponding to the disclosure of the
Moziek patent."

Avering that all claims are also invalid under 35 USC
103, KC states that, following its anticipation analysis, “it
is clear that very little, if any, differences exist between
the prior art Moziek patent and the claims at issue. The only
difference is that the same filter band of the Moziek device is
not in both the inlet and outlet ports at the same time. Dean
Fischer [KC's expert] testified that the Kalman patent claims
do not require that this be so.” KC suggests that additional
expert testimony compels the conclusion that the claimed inven-
tion would have been obvious within the meaning of §103 in view
of Moziek taken with Garrahan, and that it was error for the
court both to discard Garrahan as a relevant reference and to
ignore that testimony. Moreover,

the recognition in the Curtis patent of supply-

ing cooling coils along with the recognition

that seals may be fo by cooling thermoplas-

elt, Thess ond Lebuet patente indicates chat

the level of ordinary skill in this art clearly

PP ty og Meek Boe rg of seals by chilling

KC concludes its arguments on validity by emphasizing
that the court erred in dismissing Moziek on its belief that
“che filter does not move continuously" and that “leakage of

plastic is to be minimized, not used as self-sealing plugs."

‘KC contends that the claims do not require continuous movement _

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and that they only require prevention of substantial leakage.
Further, it is argued, “if Moziek is discounted because leakage
is ,rimarily prevented by using closely fitting metal parts,
that is precisely what the Berlyn device uses as well. * * * If
Moziek is discounted because the major portion of the slot is
filled with the filter cartridge assembly, why shouldn't this
distinction apply to the accused Berlyn device which utilizes
this concept to a greater degree?"

Arguing that "Mere application of claim phraseology or a
word by word correspondence is not alone enough to establish
infringement"; that "the language of the claim must be read in
light of the specification and the file wrapper"; that the
“monopoly granted to the inventor can never be broader than the
invention disclosed to the public"; and that a specification or
its prosecution history "may not be used to enlarge the claim,”
KC contends that analysis of the actual invention Kalman
regards as his “leads inescapably to the conclusion that the
invention disclosed, relative to the advancement of the filter
when it is desired to effect a screen change, is the concept of
utilizing the internal hydrostatic pressure differential in
some manner." Thus construed, KC contends the claims are not
infringed. If the claims are not so construed, KC maintains
here -- as it did before the district court -- they are invalid.

Kalman asserts that resolution of the issues of infringe-
ment and validity revolve around the scope of the claims,
specifically, whether they must be read to include an unwritten
limitation that requires movement of the filter by differential

v

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me,

¥ hydrostatic pressure. Noting that KC bas not shown ve of the

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findings of the district Saunt including infringement, to be
clearly erroneous, Kalman maintains that the court correctly
answered tiiis question in the negative, saying that the Kaiman
claims in issue “contain no reference to movement of the filter 4
by hydrostatic pressure."
Jurisdiction

Our subject matter jurisdiction over this appeal is a
provided by section 127(a) of the Federal Courts Improvement Act
of 1982, Pub. L. No. 97-164, 96 Stat. 25, which gives this court of
exclusive jurisdiction of appeals from final decisions of the ‘
federal district courts if the subject matter jurisdiction of
the district court was based, in whole or in part, on 28 USC at
1338(a), with exceptions not relevant here. 28 USC 1295(a)(1)
(1983). The district court's jurisdiction was so based.

OPINION aa

l. Infringement
As noted above, on Kalman's motion for summary judgment,

KC failed to introduce any evidence to rebut the affidavits a
submitted in support of Kalman's position on the meaning of the Ba
only claim language left in dispute by the parties’ stipulation
regarding literal infringement. Accordingly, the district court
gtanted the motion with respect to this issue, stating that “the
linked filters in the Berlyn continuous filter devices are
equivalents of the ‘band or ribbon’ described in the patent." ae
It also correctly noted that because of this holding, if the aa
claims are not read as KC wishes, it "has in effect admitted =
that it has infringed the patent."

ve?
mes
iy P . A. Bes

KC argues that, in light of the Kalman disclosure, the

independent claims must be read as limited to a process and ap-
paratus which"[effect] movement" of a filter band or ribbon by
differential hydrostatic pressure. The district court properly
rejected this contention, for dependent claims 2 and 33 (not in
issue) contain that very limitation,+/ and it is settled and
proper law that “Where some claims are broad and others narrow,
the narrow claim limitations cannot be read into the broad
whether to avoid invalidity or to escape infringement." Deere &
Co. v. International Harvester Co., 658 F.2d 1137, 1141, 211
USPQ 11, 16 (7th Cir. 1981); Cameron Iron Works, Inc. v.
Stekoll, 242 F.2d 17, 21, 112 USPQ 411, 415 (5th Cir. 1957)

(cases cited); Western States Machine Co. v. S.S. Hepworth Co.,
' 147 F.2d 345, 350, 64 USPQ 141, 146 (2d Cir. 1945) (cases

cited). See Maccarone v. Pincus & Tobias, Inc., ll F. Supp.
248, 251, 27 USPQ 104, 106-07 (ED NY 1935), aff'd mem., 82 F.2d
1015 (2d Cir. 1936). :

Because the accused devices fall within the scope of the

' asserted claims, as interpreted, the district court's factual

finding of identity of "invention," a question “chiefly to be

1/ Claim 2, which depends from claim 1, adds the limitation,
“wherein the filter band or ribbon is keyed to the sealing plu

within the outlet port and wherein the hydrostatic pressure o
said substance within said passage acting on said pee pt
il

within the outlet port is utilised [sic] to move said
let sealing plug."
Claim 33,

| mr pnare age “wher a the oueset “ tTesents a greater |
_ five area to said passage ti niet t to provide
hydrostatic fo for moving said filter through said device.

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other passage and of sealing the edges of the same against the
passage of unfiltered air and/or other gaseous body"; a contin-

vous filter “useful in the manufacture of paints, enamels. var-

Boras
io
pow
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aise
I

"

nishes, lacquers and the like"; an automatic fluid testing
mechanism "for periodically depositing on a porous tape samples
of solid particles which are filtered from measured quantities
of fluids to be analyzed"; and an apparatus for filtering
liquid, “and more particularly, to improved apparatus for
filtering undesirable matter, impurities and the like from a
liquid solvent being used for cleaning material in a dry
cleaning operation or process.”

As the district court pointed out, although the examiner
cited the above five patents, he based no rejection on them.
Indeed, he allowed the claims as filed except for a few
examiner's amendments. 215 USPQ at 159. KC's principal
reliance is on the patents of Moziek and Garrahan. Like the
district court, we recognize they are more pertinent on the
obviousness issue than the art cited by the examiner and must be
carefully examined to determine whether KC has sustained the

burden placed on it by 35 USC 282.2/

Maem
~ 2

ae
*
en

Ce 5

3/ The trial court referred to §282 as shifting the burden of
: roof to the party attacking validity, which is a mistake.
eae t places it there and there it stays. It may become more 7~
= or tase difficult to sustain as evidence is peeenen. bots GE
ae the burden never shifts. oe ide v. Cr Fe eal
Se Packi +» 523 F.2d 452, : (7th-

Of course, where the PTO has hae: considered facta "
televant to an issue in suit, nme, io no ne and to Rb tam
deference to its action in issuing the :

ony te find Bs facts controll in det

den of proof has has been fading wy ‘
ware at 546. a ab
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ches

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The trial court gave extensive consideration to Moziek
both on Kalman's motion for summary judgment and again at the
trial, heard testimony about it and about a machine allegedly
built according to its teachings and even heard testimony from
Moziek himself. We agree with the court's appraisal of that
reference as a typical screen changer type of machine with no
provision for a band or ribbon.

With respect to Garrahan, the trial court put ic in the
same catagory with Moziek, and we agree. We have one minor
point of disagreement which is that Garrahan was further
distinguished from Kalman on the ground that it dealt only with
straining rubber which the court seemed to _ exclude,
erroneously, from the category of "thermoplastics." It is
clear from Garrahan that his rubber was thermoplastic.
(softening with heat) since he discloses keeping it “as soft as
possible during the straining" by heating it. Furthermore,
Kalman's own specification refers to the filtration of
"Plastics, rubber and other materials which are usually
extruded." Nevertheless, the fact remains that Garrahan is no
closer prior art than Motiel. which specifically deals with
straining "plastics."

Though there is nothing to show that these two patents

Paar ne eee

oer.

were considered by the PTO, the burden of establishing facts to

support a conclusion of obviousness in view of the prior art as
remained on KC. Solder Removal Co. v. International Trade =
Commission, 582 F.2d 628, 632-33, 199 USPQ 129, 132-33 (CCPA |
ie). | 1978). | J eee ae

KC points to its cross examination of Kalman's expert,
and argues that his testimony reveals that "It would be obvious
to combine the teaching of Garrahan, that a long filter plate
extending out of a filter device could be used, with the device
disclosed by Moziek." The following exchange is relied upon:

Q. So, if I saw the device I had constructed [a

Moziek-type device] worked without leaking and I saw

Garrahan, could I say why can't I use Mr. Garrahan's

ergy te with a device that Mr. Moziek taught me to

build, because I know it would work?

A. What is Mr. Garrahan's teaching that you're
postulating?

Q. Use of a long filter band that extends out -- out
of my extruder pad or my screen changer body.

A. All right.

Q. Would that be a fair combination of the teachings
of Garrahan and Moziek?

A. Well, yes, I'd say so. This is a slide changer,
and that's a slide changer. Why not use this instead
of that.
In other words, KC’s argument is that it would have been obvious
within the meaning of 35 USC 103 to open the valves of the
Moziek device, leave them open, and combine it with the so-
called “long filter band,” which is not very long, that extends

through Garrahan to arrive at Kalman's claimed devices and pro-

cesses. With respect to the sealing plug claim limitations, KC
suggests that the prior art “indicates that the level of ordi-
nary skill in this art clearly recognized the formation of onete:s
by chilling of a hot thermoplastic."

We cannot agree, however, that this is anttnenane ss
defeat Kalman's claims. KC's ae are pet ry bok

hypothetical combinations of prior art features and amount to
nothing more than hindsight reconstructions. They fail to focus
on other evidence respecting the nonobviousness of Kalman's
claimed invention.

The district court found, based upon testimony given at
trial, that several long-standing problems were solved by
Kalman. At that time, the court concluded, “those persons of
ordinary skill simply did not see a solution to the problems
inherent in filtering plastics." Although KC responds that
"None of these elements form a part of the claimed Kalman
invention,” it has not established that these advantageous
results are not attributes of (i.e., that they have no nexus to)
the elated invention, which resides in a combination of steps
or elements. Accordingly, we hold none of the findings of the
district court to be clearly erroneous. Its decision holding

that the claims in suit have been infringed by KC and that KC

has failed to sustain its burden to show them invalid is

affirmed.

at of - ’ _ « ie 4 Zz te edits Pt, a es ee ad
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

AUG 17 1088

Plaintiff,
v. Civil Action
Bo. 78-C-721
KIMBERLY-CLARK CORPORATION,

Defendant.

DECISION and ORDER

A four-day court trial in this patent
validity-infringement case ended on April 2, 1982. The case was
very ably presented by lead counsel for the parties, I. Irving
Silverman for the plpgintite and Leonard J. Santisi for the
defendant. The following constitutes sy findings of fact and
conclusions of law.

There are two issues in the case. One concerns the
validity of the patent in suit, U.S. Patent 3,471,017. If it is
valid, the second question is whether the sccused Berlyn
continuous filters sodel nos. CF3539 and CF4549 owned and used
by the Kimberly-Clark Corporation infringe the patent's process
p claims numbered 1, 3, and 15 and its apparatus claims numbered = |
18, 20, 23, and 25. “

The pleintiff Peter Gabor Kalman is « citizen of the —
United Kingdom. He resides in London, England. Keleen is oe a
patentee and owner of the patent in suit. His corporation, —
Process Developments Ltd. of London, sanufactures and bape
filter devices constructed according to the te
patent. ‘Kalman has also licensed Mobil O11 nee |
end use filter devices under the patent in the United &
The filter devices e>14 inthe United States ender the ps

=) 4

_ 2s ee ee

a!

The Gefendant Kimberly-Clark Corporation of Seenah,
Wisconsin sanufactures, among other things, products fros
lwat-softenable plastics which it obteins in bulk, feeds to
apparatus which soften and extrude it through dies, spinnerets
or the like. The heat softened plastic is filtered during the

process. The end product is sheet saterial sade of plastic.

|

The Kalman Patent

The patent in suit describes a filtering process and
apparatus. It was issued on October 7, 1969 to Mr. Kalman based
on an application filed June 20, 1967. The date of the
invention is February 21, 1967, the filing Gate of Mr. Kalean's
corresponding British patent application.

The Kalman patent has two independent clains, clains 1
and 16, the first directed to the method of the invention and
the second to the apparatus of the invention. The invention
provides a seans of filtering molten plastic to remove
contaminants while the plastic is being forced through s central
bore toward # die or mold. The gist of the invention is the
provision of a continuous filter device in the fors of a “band
or ribbon” for heat-softened flowing plastic.

The invention operates when a length of filter is
passed across the flow of plastic. The filter is incrementally
moved to bring fresh filter areas into the flow path and resove
cloeqed filter areas from the path. ~ Controlled temperature heat
exchangers are positioned at the inlet and outlet ports through
which the filter passes. The heat exchangers cause the
formation of sealing plugs of rigid or semi-rigid plastic which
always surround the filter ends and sove with the filter. The
plugs sare continuously self-maintained or re-formed fros the

molten plastic to maintain seals as the filter soves. They

prevent leakage without the need for high pressure sealing or
extremely close tolerances during the operation of the device.

In the Kalean petent the filter is «a roll of
unsupported filter screening. Backup support for the screening
is provided by a fixed breaker plate that is built into the Me
enclosure and through which the filtered plastic: passes after it aa
has passed through the filter. . hr

The Kalman patent discloses examples of the means by a
which the filter is soved continuously into and through the 4
inlet port, scross the stream of flowing plastics, and into and :
through the outlet port without stopping the flow of plastics
and without stopping the operation of the extruder. One of
these procedures involves saking the outlet port larger than the
inlet port. As a consequence, the rigid or semi-rigid plug of
plastic material in the outlet port is under greater hydrostatic
pressure than the plug at the inlet port. Because the sealing 4B
plugs ere connected to the filter, the proseure causes the plugs "ie
and filter to move together toward the outlet port. The
movement slowly carries the sealing plug of the inlet port into .
the enclosure and expels the other one. The filter gradually a
moves across the stream of flowing plastics while the plastic is oe
being filtered through the A, The sovement is
accomplished without significant leakage because the sealing
plugs are always being formed and saintained.

Another procedure for soving the filter ribbon involves
increasing the forward sovement of the filter by pulling at the.
emerging end of the ribbon with « direct external force.
Sivsilarly, the forwarding movement of the filter ribbon say be 4
retarded by the application of # direct force to the ribbon at

the inlet port. ts * eG

Prior to the design and construction of the Berlyn BY:

devices of the type owned by the defendant, the ruronerean : Mi
devices were the only cont invous filter Setar seatianie oo a

.

i.) ets,

q

The file history of the Kalman petent indicates no

prosecution of the claims other than a sinor asendment by the
Examiner. With the minor amendzent, the clainus were sllowed as
filed. ‘The application upon which the patent issued wae filed
with 43 claims including the independent process claim 1 and the
independent apparatus cleis 18. Mone of the claias were
rejected by the Patent Office. Mo amendzents to the application
were made to distinguish the invention from an prior art. The
Patent Office cited five U.S. patents in the Kalman patent
application, but applied no art to the clains.

The language “band or ribbon” was never discussed or
argued between the applicant and the Exasiner, nor was ther® any
Giscussion of the use of hydrostatic pressure for soving the
filter or of the difference in size between the inlet and outlet
ports. The Patent. Office aid not object to any of the claizs in
suit which do not include references to the movement of the
filter by internal pressure or to ports of different sizes.

The Exazmifer's amendzsent inserted the phrase
“heat-softened” before “substance,” inserted the word
“temperature” before “condition” and changed the word “slot” to
the word “port” in Claim 1. Claim 18 was asended to insert the
phrase “for filtering a heat-softened substance” after “device,”
to change “can be passed and“ to “is passed and can be ...," and
to insert after “substance” the phrase “and means to provide
temperature conditions at said ports to form said plugs.” The
Examiner's amendment includes the statement, “The above
amendments have been authorized by applicant's attorney, Mr. Leo
Rosetta, via a telephone interview on January 30, 1969." The
application was issued following the amendment. The amendments
were made to claridy the claias, not to distinguish thes from

any prior art references.

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trie mite” me Pi) & eh Been’. 7 oer o i Perr NS

The Berlyn Filters

The accused devices, Berlyn Continuous Pilters Model
numbers CF3539 and CF4549 were sanvfsctured by the Berlyn
Corporetion of Worcester, Massachusetts, and sold to the
defendant Kimberly-Clark in 1977. They were in use prior to the
filing of this lawsuit and during the pendency of the suit.

The Berlyn screen changer Gevices operate without
stopping the extruder and without producing great variations in
the back pressure of the plastic in the extruder. The accused
devices have heated enclosures connected between the extruder
and the dies. The enclosures have a slot or channel transverse
of the plastic flow that intercepts the flow, an inlet port at
one end of the channel, end an outlet port at the other end.

Each of the accused devices has a string of three trays
in the channel ast ell times and the trays are soved from the
inlet port to the outlet port under the influence of an external
force, @ hydrevlic ras, pushing the string through the channel
in emall increments. Each tray is divided into small
compartments separated by narrow dividers. A small rectangle of
filter ecreening material is inserted into each of the
compartments before the tray is introduced into the channel.
Each tray is coupled to its neighbor so that all trays in the
channel sove simultaneously éuring the filtering process. The
trays have a number of perforations which are larger than the
interstices of the screen elements. ‘

A stream of sir at the ports controle the tesperature = |
eo that a solidified sealing plug is maintained and re-formed as
the string of trays moves ‘hrough the channel. The solidified i
plugs “surround the trays at the inlet ana outlet “en

-

The Cleins

In a stipulation files June 30, 1980, the defendant
agreed that clainas 1, 3, 15, 18, 20, 23, and 25 of the Kalsan
patent read on the accused Berlyn devices but for the
Gescription of the filter as a “bend or ribbon” and “in the form
of a band or ribbon.” Based in part on the stipuletion,
plaintiff moved for summary juégeent on both issues, velidity
and infringement. In a Gecision and order filed November 5,
1961, and hereby incorporated by reference into this decision, I
Getermined that the filters used in the accused Berlyn devices
were equivalents of the band or ribbon described in the patent.
I also dGetersined, however, that defendant had, although
somewhat belatedly, inserted another issue into the lawsuit,
thus preventing summary judgment. That issue was whether the
claims of the Kalsan patent sust be read as limited to a sethod
of moving the filter across the plastic by differential pressure
acting on the plugs formed in the inlet and outlet ports. If
so, Gefendant argued, because the accused devices depend on an
external hydravlic ram, there could be no infringement.
Defendant also argued, relying primarily on U.S. Patent ;
3,112,525, the so-called Moziek patent, that if the limitation |
is not read into the Kalman clains, the Kalean patent is ter
invelid. Following trial, the issues remain nearly the sane as * rad
choy wenisibe: damaeie debenbin. The controversy swirls around | as
the scope of the patent claias.

wc

Infringement :

Plaintiff asserts infringesent of cleins is

2

20, 23, and 25. Infringement of Clains

a

at said ports and, when Gesired, effecting
movement of seid filter through said ports under
conditions providing for self-maintensence of said
sealing plugs to introduce another part of said
filter bané or ribbon into said passage.

3.

7 a Cet te i oe . CE ae Fee rm ee, ae OO Las ee SS POG Oe Pt ee Pd, Va, a> eee
+ RS ey ee. ee eee ate A air es | ~ i eS
- 7 ~ ,

As on summary judgment, defendant asserts that the Kalean clains

> “sust be read in light of the patent specification and thus the
Y : claimed step of ‘effecting movement’ sust be read with the
é limitation that the movement is effected by differential

internal hydrostatic pressure.“ Defendant's Proposed Findings
Bo. 30, p- 12. Because the Berlyn device does not rely on
Gifferential pressure to effect sovement, but rather uses «
hydraulic ras, Gefendant ergues that there can be no

j infringement.

I finé thet claims 1, 3, 15, 18, 20, 23, and 25 are
directly infringed by the Berlyn devices. These claims contain
no reference to sovement of the filter by hydrostatic pressure.
Method claim 1 refers merely to “effecting movement” of the
filter. When one looks to other claims, it becomes clear that
“effecting movement” in claim 1 does not refer to one means of
moving the filter. Alternate means of effecting sovement are
set forth in cleims 5, 6, and 7. Claim 7 states that a
“tractive force” may be applied to the filter to effect
intermittent movement of the filter. I read claim 7, as does
plaintiff, to mean that a tractive force alone say be used to
move the filter.

In Getermining whether an accused device infringes a
patent, one must first examine the claims. If the seccused
Gevice falls within a claim, infringement exists. Graver Tank
vs Linde Co., 339 U.S. 605 (1950). ‘Thus the Berlyn devices must |
be compared to the claims of the Kalman patent, not to « Bats.
preferred, in this case, sore sophisticated qubadianes, as iS
described in the specifications. See: Beith v. Snow, 294 v.82 ;
(1998). Srtnedaeh Suatinn weet Seaeseimnbat; te Segtenee ba a

aE

we

when the less sophisticated method here te, in effect, found in|

eR ee he SRE

pull the filter is not a difference of enough significance to
escape the charge of infringement. Defendant's employee, Edward
BH. Ruscher, testified during his deposition that it sakes no
4ifference in the Berlyn device whether the filter trays are
pushed or pulled. Thus, the Berlyn filters infringe clains 1,
3, 15, 18, 20, 23, and 25 of the Kalean patent.

Validity

The next issue is the validity of the patent. At the
time of the invention, it was

“known art to employ two distinct filter uzes
s separate perforated becking discs
and when one becomes clogged the other is sade to
continue filtering. This is achieved either by
redirecting the flow from one filter disc to the
other by means of a valve or by incorporating the
two filters and their supports in a slide which
can be periodically reciprocated transversely to
the flow of the plastics material. Eventually
however the clogged or damaged filter discs still
require replacement and this is an essentially
manual operation ig he | work with hot and
sticky objects and ~ attendance by
personnel. These usuelly involve
metal to setal sealing See stoting high
actuating forces and the use of costly hydraulic
equiment if leakage is to be minimized.” Kalman
Patent, Column 1, lines 54-68, emphasis added.

The Cowen patent, number 642,814, is an exasple of the

slide screen changer known in the art prior to the Kalsan
invention. _

One of the problems with « slide screen changer
filtering device was that it could not, with sufficient speed,
provide fresh filter to the streas of saterial that was

v*

heavily contaminated with impurities. In 2 i

‘ee

plastic meteriels cosh 00 ehece ence used ty
quantity of impurities must be removed.
a a ae reese

oe
:

a

pressure in the material upstream from the filter then results,
requiring @ constant changing of filters. The problems with
slide ecreen changers sre further described in « brochure
published by the Berlyn Corporstion called “Continuous
Pilters.” Trial Exhibit #¢56.

The seals of a slide screen changer were usually sade
with metal-to-metal contacts, including a soft setal bushing.
The slide screen could be pushed from one side to another with a
reasonable amount of force.

In 1967 plastics were being filtered at temperatures of
up to 600° Fahrenheit and at pressures of up to 5,000-6,000
pounds per square inch. Then, as now, in order to maintain a
consistent product eperging from the filter, there was a need to
keep the temperature and pressure of the plastic saterial
constant.

The problems addressed by the Kalean patent were how to
maintain constant temperatures and pressures, how to avoid
production delays for screen changes, and how to avoid excessive
leakage of the hot plastic material. Before the patented Kalean
devices were made, there was no screen changer or filtering
device for heat-softenable plastics. that moved slowly, a little
at a time, across « stream of plastic material.

Defendant argues that prior art references not before

reference relied on is U.S. Patent 3,112,525 (Moziek).
Defendant also relies on U.S. Patent 1,195,576 (Garrahan); U.s.—
Patent 2,507,311 (Lodge); U.S. Patent 3,007,199 (Curtis); v.85.

Garrahan and Curtis disclosed modified screen any, * baggie:
Garrahan is Geecribed as a rubber reclaiming enchine. ‘ % Pain
a

the Patent Examiner invalidate the Kalman patent. The principal

Patent 2,920,347 (Joukainen); U.S. Patent 3,278,986 (Welt); Es
Patent 3,331,101 (Thomas); end U.S. Patent 3,354,504. ae WA

_——s Ps

Sse eS oS eS

a |

Clamping the filter between setel perts. However the
extruder must be shut down to present « new filter to the streas
of material, which is described as rubber, compovnds, or the
like. Joukainen Giscloses « seal for as rotary pusp of an
extruder Gevice. Joukainen has little or no relevance to
filtering.

Welt Giecloses « seal for « rotery pump of an extruder
Gevice. It is G@ifficult to see the relevance of Welt to
filtering. Thomas discloses Gouble-acting screw flights to
collect plastic material which leaks past the rotary shaft of an
extruéder. Joukainen, Welt and Thoses #11 require leakage of the
plastic material from the seal because the saterial has become
Gegraded ané must not reenter the streams of plastic saterial.
Lehner Giscloses @ stuffing box forming s seal st the high
pressure end of an extruder screw.

The Moziek petent is the one on which defendant
primarily relies. Mosiek discloses « process for filtering «
heat-softened substance. The patent discloses s heated extruder
barrel through which solten thermoplastic material flows. A
slidable cartridge assembly into which «a filter is placed is
positioned within « slot ecross the flow of the plastic and
against a fixed internal supporting breaker plate. At each open
end of the transverse channel Moziek discloses rotatable valve
assemblies. The valve assemblies are cylindrical with an
intermediate segment cutout. Provision is made to rotate these
valves 90°. When the valves are positioned in one position the
cylindrical portion of the valves serves to seal or block the
Sscuset opening Dut when they are rotated 90° the intermediate |
cutout segsent Se aligned with the channel opening eo 20 te, sa
permit ineertion of « new filter cartridge assembly through one
side and permit ® dirty or clogged filter serene sme 0e

x . of
:

Be one an tae eee? ; ee felt. Fes he gee

«
4
‘

Moziek discloses operating the filter with the filter
cartridge assembly fixed in the flow passage until the screen
becomes clogged and « filter change is necessary. At this point
Moziek indicates thet both valve cores must be open eo that a
channel or slot is completely open and a new fresh filter
cartridge is pushed through the slot with « retractable ras or
rod. This action pushes the fresh cartridge essembly until it
abuts the clogged essesbly within the filter body and soves the
new cartridge into the flow passage while forcing the clogged
assembly out of the outlet port. After this is completed,

Moziek discloses closing the valves until the next filter change —

is required. In the disclosure, the filter change occurs while
the extruder keeps operating so that there is no interruption in
the extrusion process. However, the inventor, John Moziek,
testified that the sachines built according to his
specifications by the Monsanto Corporation were stopped for
filter changes to avoid the excessive leakege which otherwise
occurred.

The Gescription of the valves which ere closed when the
Moziek device is in operation. includes a sethod of circulating
a cooling sedium in order to prevent leakage past the valves.

I find that the Moziek patent discloses « variation on
the screen changer sethod of filtering plastic. It does not
call for continuous sovement of the filter; rather, es in screen
changers, the change is done all at once--that is, en entire new
filter is pleced ecross the flow. Furthermore, Mosiek sakes no
provision for « band or ribbon or any length of filter. Rather,
ss is typical for screen changers, two filters are called
for~one being used, one being cleaned. Although Mosiek teaches
thet the valves can be cooled to prevent leakage, the theory of

Moziek, leakage ie primarily prevented by using closely

AL j *
or =
"

31 f 7 ; et
: jt an B i
» eae “@ a,

2

.
oP and
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us
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the cooling is different from that in the Kalman patent. ce “2, "1

ES ee Tee eee MS So ee eee ae
. ic ® a 7 , ¥ %

-

metal perts. The cooling helps prevent leskage past the
valves. Thies is vastly 4ifferent from relying on the plastic
iteelft, as in Kalean, to form plugs.

Defendant built @ model ecreen changer, Genonstrated at
trial (Exhibit €@73), which it cleims was constructed in
accordance with the teachings of the Mosiek patent. The sechine
was constructed in 1961 in the factory of the Berlyn
Corporation. Plaintiff objectes to the demonstration at trial;
the exhibit was received subject to sy determination es to
weight. I find, as indicated below, that the demonstration has
very little probative value. The sachine, constructed in 1961,
with adjustsents made in 1962, is not constructed under the
teachings of the Moziek patent. At best it is a hybrid sachina,
constructed by use of as much of the Moziek patent as possible,
but with tremendous overlays of knowledge ecquired subsequent to
Mosciek and, sore tellingly, subsequent to the Kalean disclosures.

The machine differs significantly from the teaching of
the Moziek patent. The Moziek sachine is to be run with the
valves closed; in the demonstration the valves were open. in
Moziek the filter is not a long filter extending through the
velves--indeed, how could it be if the valves are to remain
closed. In Mosiek, the filter does not sove continuously,
rather the ecreens are changed #11 at once. In Mosiek leakage
of plastic is to be sinisized, not used as self-sealing plugs as
in the Gesonstration. Defendant claims that it sade only sinor
modifications to Moziek to arrive at the demonstration machine.
I find that those sodifications were not sinor: they were
-'=-4#!==n¢ innovations taught by the Kalman patent. i

Although # patent is presumed valid under 35 U.S.C.

+

262, the preeuaption is not conclusive. St. Regis Paper Conve
Benis Co., $49 F.24 833 (7th Cir. 1977); cert. den., 434 mee

833. It shifts the burden of proof to the party nan 4,

ca

validity of the patent. Republic Industries, Inc. v. Schiege

Leck Co., 592 7.24 963 (7th Cir. 1979). It is stated,
however, that the presumption does not exist in the face of

prior art not before the Patent Office. Republic Industries,

supra, Chicago Rawhide Mfg. Co. v. Crane Packing Co., 523 F.26
452 (7th Cir. 1975); cert. den., 423 U.S. 1091. In order to

weaken the presumption, the prior art references, cited to the
Gistrict court must be sore pertinent than those cited by the
Examiner. Uarco, Inc. v. Moore Business Forms, Inc., 440 F.2d
$80 (7th Cir. 1971); cert. den., 404 U.S. 873. Defendant argues
that the pstents cited sbove, especially Mosciek, Garrahan,
Curtis and Lodge, are more pertinent to the claised invention of
the Kalman patent than the prior art references cited but not
applied by the Patent Office. Defendant's argument with regard
to the prior art cited by the Examiner is that it is not
relevant to the Kalman invention because it does not desl with
filtering thermoplastic saterial. I must note that the sane
could be said of Garrahan ané Lodge, which on their face deal
with etraining rubber products.

The citations to privwr art in the Kalman patent include
statements regarding the prior art in Column 1 of the patent in
which is detailed the problems inherent in ecreen changers. The
patent explains in Columns 1 and 2 that the purpose of the
invention is to overcome the problems by use of a band or ribbon
of filter and to make use of the “temperature dependent
viecoelastic properties of the materials ... being filtered.”
Through the language in Column 1 regarding previous sethods of
filtering plastics, the Examiner was made aware of previous
patents on machines to filter plastics. Mogiek and Curtis are
simply variations on the many machines in which an attempt is

made to filter therreoplastic material while effecting screen .

changes without interfering with production.

4 te

Mosiek, as glossed by defendant, is of course such sore
pertinent than any of the prior ert citations. However, Moziek,
as written, without benefit of defendant's hindsight, recedes in
significance to its value as ancther example of @ slide screen
changer, whose presence on the scene is acknowledged at Column 1
of the Kalsan patent.

The essence of the Kalzan invention is the continuous
filter. It seems clear to me that the relevance of the prior
art cited by the Examiner was that the patents cited involved
continuous filters. To # degree greater than the prior art
cited by the defendant, Mickle, U.S. Patent 2,218,453;
Doubleday, U.S. Patent 2,675,129; Avery, U.S. Patent 3,138,015;
and Beduhn, U.S. Patent 3,310,172 are relevant to the essence of
the invention. They #11 involve seans of continuous sovement of
a ffiter so as to afford continuous filtration.

Even assuming, however, that Moziek and/or the other
citations relied on by defendant overcome the presumption of
validity, defendant has not shown that the Kalean inventior is
invalid under 35 U.S.C. § 102 or § 103.

The Moziek patent falls far short of anticipating the
Kalman patent under 35 U.S.C. § 102. To be in anticipation a
prior patent sust include all the teachings necessary to
accomplish what the allegedly invalid patent succeeds in doing.
T1linois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.26
ars (7th Cir. 1971). As explained above, Moziek, as wettiane a
ous apt ‘teeth ane Maden eecd, — =
that any of the other prior art citations are an anticipation of % a
wc Tolzan patent. A es ea 3

The Kalman patent is not invalid for obviousness under © |
35 U.S.C. f 399, ige2 een Sater ors te. he

a

.

e ere), SS aha
7 > >

Looking to the first criterion, I conclude that the :
prior art shows variations and incresental improvesents on the
slide screen changer for filtering thermoplastics ané includes
various forms of continuous filters for other sedia which are

somewhat easier to handle than thermoplastics. SHowever, none of
the prior art reveals a way to use a continuous filter with
plastics. Specific problems not provided for by the prior art
include, for instance, the problem of how to prevent leakage st
the inlet and outlet ports. The step forward teken by Kalzan
solves several problems at once: prevention of leakage;
continuous filtering: and saintenance of constant teuzperature
and pressure in the plastic upstreas.

The level of skill in the art is revealed in a nusber
of ways. In Malsbary Mfg. Co. v. Ald, Inc., 447 F.2d 809 (7th
Cir. 1971), the court stated that:

".e+ the usual way of deteraining such level is

by referring to the subjective reaction of «

person thoroughly fasiliar with the particular

art, ané if possible, one who practiced the art

at the crucial tise in question.”

Mr. George Pickering, plaintiff's expert, is such @ person, and
his testimony leads me to conclude that Kalaan's invention would
not have been obvious to a person of ordinary skill in the art
at the time of the invention. Those persons of ordinary skill
simply 4id not see a solution to the probleas inherent in
filtering plastics.

After an initial analysis regarding obviousness is
made, Graham, supra, at 17 and 18, indicates that secondary
‘tems may be considered: ’

2
é

“Buch seconiary considerations ss cossercial
y= canna longfelt but unsolved needs, failure of
others ««- ;

The autoscreen devices, built under the Kalman patent, have
enjoyed commercial success. Mr. Gerald Berlyn, in fact,
attempted to become a licensee for Autoscreens before he built
his own machines.

Finally, the United States Court of Appeals for this
circuit hee recently sade an observation which is particularly
relevant to the defense of obviousness in this case. In L. E.
Saver Machine Co. v. Cor ted Finishi + 210 U.8.P.Q.
Bl, 83 (7th Cir. 1981), it stated:

“The courts must take care not to conclude that

an invention is obvious because it has becouse
obvious by hindsight.*

Conclusion

Defendant's argument in this case is that the patent a
must be read to include « requiresent for sovement of the filter
by differential pressure. S60 read, defendant argues, the patent
is not infringed, but read without the requiresent the patent is
invalid for obviousness. The argument is undoubtedly ebuyer and
if the premise is accepted, defendant wins either way. However, ert
my examination of the evidence convinces se that the argument
rests on faulty premises and, like #11 such arguments, sust fail.

The Kalman patent does not require movement of the

filter by 4ifferential pressure, rather differential pressure is
used in the preferred embodiment of the invention. Thus, the |
Berlyn devices infringe the patent. It does not follow that the “y
mecers fe invalid. The patent takes great steps beyond the oy
prior art, including Moziek, and by itself, sets forth solutions ;
to several of the problems inherent in filtering heat-softened

> --

plestic. gen ck

In sccoréance with this decision, counsel for the
parties ere directed to confer and, if possible, agree on what
#3 further proceedings will be necessary to bring this case to its
conclusion in this court. Both counsel are to subsit a report
within 30 days outlining their view of further proceedings. 60
ORDERED.

Dated at Milwaukee, Wisconsin, this /7
Gay of August, 1982.

UNITED STATES DISTRICT JUDGE

6 RE: C1VED FILED £

Nov 5 ii «3 Mg) NOW'S 1981
UNITED STATES BLMERPCS COURT ‘neeeg -
EASTERN DISTRICT OF WISCONSIN

PETER GABOR KALMAN,
Plaintiff,
Vv. Civil Action
No. 78-C-721
KIMBERLY-CLARK CORPORATION,

Defendant.

DECISION and ORDER

Plaintiff Peter Gabor Kalman, owner of U.S. Patent
3,471,017, has moved for’ summary judgment establishing (1) that
the Berlyn continuous filter machines owned by defendant Kimberly-
Clark Corp. and used in their Neenah, Wisconsin plants infringe
Claims 18, 20, 23, and 25 of his patent; (2) that the process
used by the same machines infringes Claims 1, 3, and 15 of his
patent; and (3) that the patent is valid.

U.S. Patent 3,471,017 teaches a filtering process and
apparatus for filtering molten plastic to remove contaminants
while the plastic is being forced toward a dye or mold. It in-
cludes both apparatus and method claims and was issued October 7,
1969, to Mr. Kalman, the inventor. In the device a length of
filter is continuously moved across an enclosure through which
the melted plastic is flowing. The movement insures that a fresh 2 ;
filter is placed in the path of the flow and that the clogged
filter is removed. At the entrance and exit of the filter's
pathway are control temperature heat exchangers which solidify —
the plastic at that point and form-seals to prevent leakage a
melted plastic. Diagrams in plaintiff's brief filed en? 19," :
1981 are useful in envisioning the process. _ 5 ae
ur. Kalase is 9 cittsen of che Matted

opments Ltd. of London to manufacture and sell the filter devices
throughout the world, including the United States. The devices
are sold in the United States under the trademark “Autoscreen.”
Plaintiff has also licensed Mobil O11 Corp. to make and use
devices as described in the patent.

Kimberly-Clark is a Delaware corporation with a place
of business in Neenah, Wisconsin, in the Eastern District of Wis-
consin. It manufactures products from heat softenable plastics /
by using a device called the Berlyn continuous filter, Model Nos.
CF3539 and CF4549, manufactured by the Berlyn Corp. of Worcester,
Massachusetts. Kimberly-Clark used these devices prior to the
filing of this lawsuit. It has continued to use them during the
pendency of the lawsuit, with the defense being financed and
conducted by Berlyn.

Other undisputed facts as presented by the plaintiff
and accepted for purposes of the motion by the defendant are the
following. A publication of the Berlyn Corp. (Ex. MSJ-4) is an
illustrated advertising brochure which explains the operation of
the accused devices. The brochure refers to’ plaintpff's patent
and commercial devices embodying the plaintiff's patent. Although
plaintiff has not been permitted access to Kimberly-Clark plants
to view the accused devices in operation, photographs have been .
taken by the defendant and have been sepresented as truly depic-
ting the accused devices and the filter trays and filter medium
used in the devices (Ex. MSJ-7).

Defendants also agree that the file history of the |
patent (Ex. MSJ-11) shows that the patent application was allowed —
as filed with all claims and with minor Examiner's amendment of
the claims. The language “band or ribbon” was never discussed or
in controversy during the prosecution of the patent application. —
The U.S. Patent Office cited five U.S. patents in the appl at
but applied none of thea to the claius.

Defendant has stipulated (Ex. MSJ-2) that method Claims
1, 3, and 5 of the patent as well as Apperatus Claims 18, 20, 23,
and 25 read on the accused device and method but for the descrip-
tion of the filter as being “in the form of a band or ribbon.”

It is also undisputed that prior to Kalman's invention
filtering was done by screenholders or screenchangers. In one
type the screen was placed in a holder that crossed the flow of
the plastic and which required that the plastic flow be stopped
and the apparatus cooled before the screen element could be
changed. Another type included two screenholders and a slider.

One screen would cross the flow of the plastic. When that screen
became clogged, the other screen would be forced across the
channel into the flow. This device operated much like the famil-
iar old slide projector. According to plaintiff, disadvantages
are apparent in both devices. The first required shutting down
the production line, and the second was difficult to operate,
required careful surveillance, and had to be manually changed "
when the filter became clogged. Both devices leaked excessively
because of the back pressure of the plastic.

Both the Kalman device and the Berlyn continuous filter
operate without stopping the extruder or producing great varia-
tions in the pressure of the plastic in the extruder. The patented
device involves a long screen which is drawn across the path of
the plastic. The Berlyn filters have a string of three trays in
the screenchanger st all times, moving in very small timed incre-
ments across the flow of plastic. The trays are divided into
small compartments separated by narrow dividers. There is a
filter screen element in each compartment that is carried across ~~

the flow of plastic. The trays are coupled together anc move as.

a unit without coming apart through the filter enclosure, At thie
entrance and exit of the slots artugh Silah sie eorents win deaes
air-cooled heat exchangers that are adjusted to provide cool

plugs to prevent leakage of the molten plastic. SBoth plugs are
continuously renewed as the filters move through the enclosure.
In resisting the motion for summary judgment, defendant
emphasizes that in patent cases, in which it is necessary for the
court to consider expert testimony to translate and interpret
material and technical facts, summary judgment should be ap-

proached with trepidation. Citing Advanced Hydraulics, Inc. v.

| Otis Elevator Co., 525 F.2d 477 (7th Cir. 1975).

Even approaching the motion with trepidation in that
case, however, the court of appeals affirmed the district court's

granting of the motion. In Research Corp. v. Nasco Industriés,

Inc., 501 F.2d 358 (7th Cir. 1974), the court indicated that on
the issues before me, infringement and validity, summary judgment
should be entertained in a proper case:

“There is nothing in Rule 56 to forbid the use
of summary judgment procedures to determine
whether a genuine issue of fact exists, con--
cerning the factual foundation for determina-
tion of the ultimate issue of law: obviousness.
Although care must be exercised to assure that
controverted fact issues are not ignored, see
Tee-Pak, Inc. v. St. Regis Paper Co.,; 491 F.2d
1193 (6 Cir. 1974), *. . . @ suit concerning
the validity of a patent over the prior art is
not immune from disposition on motion for sus-
mary judgment even though, in addition to prior
art patents, deposition testimony of the appli-
cant and affidavits are involved, if no genuine
issue of material fact is present.’ A BR Inc.
v. Electro-Voice, Inc., 311 F.2d 508, 511 (7
Cir. 1962). ‘Further, it is well settled that,
in a proper case, the validity of a patent may
be determined by use of ig § sedqniet -.
Technograph Printed Circuits, Ltd. v. Methode
Electronics, Inc., 356 F.2d 442, 446 (7 Cir.
1966), cert. denied 384 U.S. 950, 86 S.Ct.
1570, 16 L.Ed.2d 547 (1966)."

Summary judgment is appropriate, the court goes’ on to state, in
instances “where the structure and mode of operation of the ac-
cused device may be readily comprehended by the court and compared
with the patent without need of technical explanation by expert
witnesses." At 362, Py.

WEE

ala Sa 5
;

One of the difficulties presented by summary judgment
motions in patent cases is determining whether the moving party,
whose burden it is, has established that no matcrie] facts are in
dispute. If the subject matter is technical, it is difficult for
a court, without the benefit of hearing expert testimony, to make
that initial determination. Because of that difficulty, plaintiff
has requested oral argument on this motion. That request is
being denied, however, ae my study of the moving papers convinces
me that though the determination is difficult, the result would
not be different after oral argument than it is here.

A patent is presumed valid (35 U.S.C. § 282) and the
burden of establishing invalidity by clear and convincing evi-
dence is om the defendant. 35 U.S.C. § 282; Helms Products v.
Lakeshore Mfg. Co., 227 F.2d 677 (7th Cir. 1955); Reese v. Elk-
hart Welding and Boiler Works, Inc., 447 F.2d 517 (7th Cir.

1971). A patent may be invalid because it is anticipated in a
prior art reference or because it is obvious. 35 U.S.C. 102 and
103. Before a determination of obviousness can be made, a court
must determine the scope and content of the prior art, the differ-
ence between the prior art and the cle‘ms at issue, and the level
of ordinary skill of a person in the pertinent art. Graham v.
John Deere Co., 383 U.S. 1 (1966).

For summary judgment to be appropriate as to the patent's
validity, then, no factual dispute must exist as to these rather
amorphous issues. Determining the proper result on summary judg-
ment becomes more difficult, in my view, when the movant seeks a
finding of validity rather than invalidity. For invalidity, it
wight be easy to judge that the patent at issue and one or two
citetions to prior art ere so similar that no dispute as to 5
mecerial facts could exist. A finding of tovelidity in sucha
case would be appropriate. When the sovant ome ete
validity, however, 0 setae meee ee ai

Oe.)

Sn ee ee

genuine issue is presented, and that determination requires an
understanding of the context of the invention -- the state of the
art.

Here, defendant argues that a certain patent, in this
case the Moziek patent (U.S. Patent No. 3,112,525), describes «a
device in which very little plastic is lost as the filter is
moved. On the other hand, plaintiff states that the invention it
teaches could not operate as disclosed due to the excessive
leakage of hot, high pressure plastic. To determine whether that
difference of opinion presents a genuine issue of material fact,
to say nothing of what the significance of those facts is, requires
expert testimony. I find that it would be improper to grant
summary judgment in this case on the issue of the patent's valid-
ity.

The issue of infringement also presents the preliminary
problem of determining whether facts are in dispute.

Plaintiff argues that any differences between the
Berlyn continuous filter devices and the autoscreen device made
under plaintiff's patent are insignificant and do not prevent a
finding of infringement. Defendant, on the other hand, argues
that there are two ways in which the Berlyn device differs from
the autoscreen, and that on the basis of these differences there
is no infringement. One of the differences perceived by the
defendant is that the continuous filter “in the form of a band or
ribbon” is not present in the Berlyn filter. Rather the iatter
uses discrete separable filcerplates pushed end to end through
the filter device. They have been described as linked as railroad
cars. The second difference defendant perceives is in the method |
of moving the filter acrose the plastic fiow. ; Ks

On the issue of the “band or ribbon,” pleintiff has > f
presented lengthy affidavits of two experts. One, John S. O'Brien

r : , J 4 at

,.

7 7: al —- 7 ~~ Fe Cite oe , = iil a in 2s ry 2 ™ ro” =. 2" Bee - in =
ed — . 7 —_—"" a ed De’ he 3 “= ae — -+-. ~.. era” fe ? pie. noes al a ‘ “ ie att a cll °
; re

an attorney specializing in patent lew, after much discussion of
the devices in question, concludes:

“Defendant's filter formed of inter-connected

portions 1A, 18 and 1c. . . satisfies the fore-

going requirements of the patent for « filter

and or ribbon and, therefore, constitutes «

"filter band or ribbon,’ in ay opinion.”

The other expert, George E. Pickering, an engineering consultant
in plastics and plastics machinery, concludes, again after lengthy
analysis:

“I have said above that I consider that both

devices have a band of filter material so that

the language which has been alleged to signify

a difference namely a ‘band or ribbon’ as op-

posed to a side by side eee’ of filters

to me does not define « difference that has any

strength at all." MSJ-16, p. 25.

In addiction, plaintiff has presented testimony of
Richard M. Peterson (MSJ-5), Edward H. Ruscher (MSJ-8), and Carl
Sherman (MSJ-15), employees of the defendant, all of whow conceded
that the accused screen structure was the same as a band or «
train connected end to end moving through the apparatus.

Defendant presents no affidavits or other documents
which controvert this testimony. Rule 56(e) of the Federal Rules
of Civil Procedure provides:

“When a motion for summary judgment is made and

supported as provided in this rule, an adverse

party may not rest upon the mere allegations or

denials of his pleading, but his response, by

affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there

is a genuine issue for trial. If h@® does not so

respond, summary a ig gh if appropriate. shall

be entered against hia.”

On the basis of defendant's failure to controvert the
evidence presented by the plaintiff, I conclude that no facts are
in dispute on the issue of the band or ribbon. On the basis of
the facts which sre in the record, I conclude that nothing in the
prosecution of the patent requires « limitation on the meaning of

these words. I also conclude that the filters used in the Berlyn

devices are equivalents of those described in the patent. See
Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339

U.S. 605 (1950).
At least as to Claim 1, however, defendant perceives «

second difference between the devices:

“Briefly, it is defendant's position that the
limitation in Kalman patent claims 1 which re-
cites ‘effecting movement of eaid filter through
said ports under conditions providing for self-
maintenance of said sealing plugs’ must be in-
terpreted as being the type of govement for the
filterscreen which relies on a differential
pressure acting on the plugs formed in the
filter inlet and outlet ports to impart move-
ment to the filterscreen element. The accused
devices do not utilize this feature to effect
movement of the filterscreen element. Instead,
the accused devices rely on an external hydraulic
ram pushing on the combined filter-filterscreen
support to inctementally advance the filter
through the device. Since the meaning of the
words in « claim must be determined with refer-
ence to the specification as a whole. . . and
the monopoly granted the inventor can never be
broader than the disclosed invention, .. . it
follows that a clear factual issue is present re-
garding the disclosure of the Kalman patent at
ssue.

Therefore, the argument goes, there is no infringement.

Plaintiff argues thet this theory is new to the lawsuit
and therefore presented in an untimely manner. In any case,
plaintiff argues, the scope of a patent claim is a question of
lav.

I am somewhat bewildered by defendant's argument.
Through the stipulation previously referred to (MSJ-2), defendant
has agreed that the Berlyn devices have « structure, which liter-
ally reads on the modified forw of the patent claims but for the
words “band or ribbon.” Defendant has stipulated that ite devices
literally read on the words “effecting movement of said filter
through said port under conditions providing for self-maintenance
of said sealing plugs to introduce another part of said filter
- + « into said passage.” It would seem chet the time for reising

an issue as to these words was when the stipulation was entered
into. In any case, however, defendant has presented no expert
evaluation of the phrase. Furthermore, plaintiff points out that
in Column 6, lines 53 through 58 of the patent, reference is made
to the fact that “the forwarding movement may be caused or in-
creased by pulling at the emerging end of the ribbon.”
Defendant's response to all of this is that “despite
the fact that the literal words of the stipulated amended patent
claims ‘literally reads on’ the accused machines, that the patent
claims when read in conjunction w'th the disclosure of the patent
and as limited by the prior art must be given an interpretation
which precludes a finding of infringement.”
To support this argument, defendant presents the affida-
vit of Leonard Santisi. The affidavit itself presents problems.
Santisi is principal trial counsel in this case, not an expert
witness. In addition, hie affidavit is conclusory. He briefly
discusses the effect of the prior art, specifically the Moziek
patent, but does not detail what information in the “disclosure
of the patent” requires the result defendant seeks.
As to the Moziek patent, defendant seems to be saying
that if the claim is not read as limited, then the patent is
invalid. I might add, if it is not read as limited then defendant
has in effect admitted that it has infringed the patent. Because
I have declined to rule here on the validity of the patent, the
issue will almost inevitably be presented et trial. Therefore,
nothing is gained by « ruling here on the scope of the claim as
to the movement of the filter through the plastic. Therefore,
plaintiff's motion for summary judgment will be denied in part
and granted in part. The finding on which plaintiff has poovesiet
is that the linked filters in the Berlyn continuous filter Bhi
are equivalents of the “band or ribbon” described in the peceee.

rs
Ay
_

IT IS THEREFORE ORDERED that plaintiff's motion for
summary judgment is denied in part and granted in part.

IT IS FURTHER ORDERED that local counsel appear for «
brief conference with the court to discuss further proceedings in
this case on December 10, 1981, at 8:30 a.m. P-

Dated at Milwaukee, Wisconsin, this > day

} of November, 1981.
BY THE COURT:

Cea es

TERENCE T. EVANS
UNITED STATES DISTRICT JUDGE

Rnited States Court of Appeals for the Federal Circuit

PETER GABOR KALMAN, No. 83-540
Appellee, Dist. Ct. No. 78-C-721

v.

KIMBERLY-CLARK CORPORATION,
Appellant.

Judgment

ON APPEAL from the U.S. Dist. Court for the Eastern Dist. of Wisconsin
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED: AFFIRMED.

DATED __ July 19, 1983 ___ ENTERED BY ORDER OF THE COURT

Petition for rehearing and :
suggestion for rehearing G E. Hutchinson, Clerk

i en banc; rehearing Denied,
> suggestion for rehearing

. en banc Declined,
September 20, 1983.

ISSUED AS A MANDATE: September 29, 1983
COSTS: Appellant

_- Printing Costs----- -$129.22 $e ei

_ Total---------- ~--=-$129.22 ee ee

United States Court of Appeals for the Federal Circuit

:

PETER GABOR KALMAN, )
Appellee,

v. ) Wo. 83-540

KIMBERLY-CLARK CORP.,
Appellant.

)

)

ORDER

A petition for rehearing and a suggestion or rehearing
_ @n banc having been filed in this case,
UPON CONSIDERATION THEREOF, it is Ordered by the court that
the petition for rehearing be, and the same is hereby, Denied.

The suggestion for rehearing en banc is declined.

FOR THE LOURT

»

September 20, 1983
Date

cc:1 Irving Silverman
Leonard J Santisi

KIMBERLY-CLARK CORPORATION

ea

consideration
This action came un for%*SEAKANBT before the Court, Honorable TERENCE T. beans

. United States District Judge, Peeeding ARTE
EKAFSK and a decision having been duly rendered,

It is Ordered and Adjudged (1) Claims 1,3,15,18,20,23 =F 25 of plaintiff's
United States Letters Patent No. 3, 471, 017 oe = val
(2) Defendant, by its use of the accused Mode Nos. “cr3s39 and CF4549 — q
Berlyn Continuous Filters, has infringed cleias 1,3,15,18,20,23 and 3
3.080 ° Sesres. States Letters Patent No. 3,471,017.

*s decision and order of t 17, 1982, is
pede Fone herein as the Findings of t and Conclusions of
pursuant to Rule 52,
(4) Pursuant to Rule 54(b), FRCP, the court finds that there is no
just reason for delay for the entry of this judgmenc. :

Approved as to form:

=

ite tates strict

3,471,017

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P. G. KALMAN

Oct. 7, 1969

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UNITED STATES PATENT OFFICE.

FREDERIC B. GARRAHAN, OF PATERSON, NEW JERSEY.
RUBBER-RECLAIMING MACHIVE

Specification of Letters Pateat. 8 Patented Aug. 22, 1916.
Aprlication Sled January 25,1996. Serial We. 74,338

1,195,576.

may ’

Be it known that I, Faupenic B. Ganna-
HAN, @ citizen of the United States, residing
at Paterson, in the county of Passaic and
State of New Jersey, have invented certain
new and useful Improvements in Rubber-
Reclaiming Machines, of which the follow-
ing is a specification.

1is invention relates to means for strain-
ing scrap ru and the like materials to
remove therefrom foreign bodies, such as
netal, wood, stone or other hard pieces or
particles that have been incor ted there-
in in the previous uses to which the material
may have been put.

One of the objects of the invention is to
provide 9 straining head which mar be at-
tached to any euitable apparatus, such es a
rubber insu ‘ting machine, having meanis to
force the material into and through the
straining head and sthich shall nave a
strainer or strainers slidable therein in its
or their own planes, together with means
to move said strainer or strainers frora time
to time so as to shift one part of the
straining area out of the straining posi-
tion and another inte straining position
to enable cleaning of the former «hile
the straining operation proceeds uninter-
rupted, the said means in the preferred
furm of the invention being carried by the
straining head so thet live strains and
stresses incident to the operation of said
means shall be aseumed wholly by the heed.

Another object is to provide & vorapsct,
practical and effective means to shift the

tote thor ates te pretliaiiak ai
r of ‘
re of the strainer or strainers

attsch- Bor i “rs |

head; Fig. 5 is an inside elevation of one
of the penne * ai thereof being shown
bruken away; Fig. 6 shows fre
the members of a strainer in longitudinal
section; Fig. 7 is a front elevation of said
attachment; Fig. 8 is a horizontal sectional
ry mpg view of the part of the strainer-
shifting means which includes a certain
-bos ; Fig. 9 is a vertical sectional tiew
reof; and. Fig. 10 is a detail illustrating.
rtly in section and partly in elevation. «
isconnective connection in sid means
@ is the tubing or in-nlating machine. aud
b its snitebly rotated stuck screw projecting
therefrom.
¢ is a suitable hend provided. with a pas-
sage d which, when the head is bolted
erly in place to the frame of the muchine ¢.
forms a continuation of the passage ¢ of the
machine in which its said stock-screw ro-
tates, and receives the outer end of said
sciew, the head being chambered fer the
circulation of « heuting Suid for D
the rubber or the like material as sit as &
tet during the straining operation. as
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in the rubber, and the latter of which holds
back the finer particles and shreds of fabric,

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The thickness of plate m is a trifle greater
30 then the depth of groove A (Fig. 4) co
that as wear occurs on the bronze
plates 2 the tightening of the wcrews & will
reestablish that intimate sealing contact be-
tween the strainer and the outer and inner
88 faces of the guideway which is necessary to

rent escape of the com and more
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fact extends continuously around each out-

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Not shown.

Q -- because of the drafting céchadaen’ But he would
turn this valve and would be open all the way across, wouldn't
it?

A It would.

Q Would you look at Moziek in that frame of reference
for me, please, and have that in your mind? This valve open,
that valve open, a new screen pack assembly coming in and
pushing the other one out?

A Right. That's what happened.

Q In that frame of reference --

A Right.

Q -- I'd like to ask you some questions on that. Does
Moziek disclose a process for filtering a heat sottened
substance flowing through a passage?

A Yes.

Q Passage being here, right?

A Right.

Q At least to that respect, Moziek is just as
pertinent as the file wrapper references that we were
discussing before, isn't that true?

A He's as pertinent.

Q At least as to the disclosure of being applicable to

a heat softened substance it is more pertinent, is it not?

A It's as pertinent.

Q It's not more pertinent than Avery, Beduhn -- let me
get them -- Moreton, Mickle, Doubleday, Avery and Beduhn, at if

least to the purpose of ee a heat softened substance

» aes

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7 ee f

ee

that one principle?

A

Q
filtering

A
patent.

Q

you.

2.8

Q
operative

A

Q

To the questions or to the, to the --

To the pertinency of being related to a device for
a heat softened substance?

Well, that's differenc than being pertinent to the

I realize that. But that's not the question I asked

Related to that substance, that subject, yes.
Moziek's more pertinent?

It's more pertinent to that subject.

Sure it is. You have pictured Moziek in the
mode I've given you, haven't you?

Yes, sir.

Does Moziek use the step of introducing a filter by

passing it through inlet and outlet ports flanking the passage

through which the material is being filtered?

A
Q
A

Q
A

when it isn't open.
We are discussing it when it's open. im
Yes, and I'm reminding you that it is not always

Q
A

4

i) y abe is 84

Well, he takes it through the valve opening.
So, your answers are yes? ;
If you equate a valve opening to a port.

You don't want to call that a port?

Well, it's a port when it's open and it's not a port

oe | +: 5
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Q

Well, let me pick out another patent. You picked
How about Garrahan 5? EA:
Yes. I'm familiar with Garrahan.

Does he show a long plate extending out?
He shows having a band, if you will.

He shows having a band, if I will. Yes, I will have’

that as a band. Do you have Garrahan 5?

EXCERPTS OF DIRECT TESTIMONY
OF K-C'S EXPERT DEAN DON A. FISCHER

Appearing at pages 518-26 of Trial Transcript:
Q I would like to put up a chart of the claims of the

Kalman patent with the Moziek device. And ask you, Dean
Fischer, if you can provide your opinion as to whether the
invention claimed in Claim 1, taken in conjunction with the
prior art, particularly the Moziek patent, can be read element
for element on the prior art devices that you have rapidly
explained?

A The Claim 1 calls for a process for filtering a
heat-softened substance flowing through a passage comprising
the steps of. That, of course, is what Moziek is about. Then
it states introducing a filter in the form of a filter band or
ribbon by passing it through inlet and outlet ports flanking
said passage so that a part of the filter extends across said
passage. Well, I believe that the, that through the cartridge
in Moziek with the screen in the, is in the form of a band or
a ribbon. And then you do pass it through inlet and outlet
ports when you're changing screens.

both of these patents are about changing screens.
And, so, you, when you put it in and move it across through to
the outlet port, it goes through the inlet port and when it
moves it goes out the outlet port. Even with the size shown.
And, as a matter. of fact, with even with the size shown igh
the, in the other view of the Moziek patent, this 32, this |

ree OY 2 ele Sh tie Tf
, -"

aa ard

side of the screen is over on this pink abutment. So, it does

extend across the breaker plate.

But at any rate, you do pass this filter through the
inlet and outlet ports. There's no requirement in the claim
that it has to extend into the inlet and into the outlet port
at the same time. And, as a matter of fact, if you said that,
you wouldn't have to use the word “part” in here.

The claim says so that a part of the filter extends
across said passage. Then the claim goes on to state, forcing
the substance through the filter part to filter said substance
whilst providing temperature conditions at said inlet and
outlet ports resulting in the formation within said ports of
sealing plugs of said substance of adequate rigidity to
prevent substantial leakage at said ports.

Well, there's cooling, as we've all seen, there's
cooling in the valves of the Moziek patent. And whether the
valves are opened or closed, you do form, you do form hardened
material which forms a seal around the exit port and around
the inlet port. Now --

Q Does Moziek teach cooling both valves?

p

A Both valves, yes. It's plainly stated in the patent
that you cool -- it would be 50A and 50B, they use different
numbers because they're referring to the first figures, but foe
there's not the slightest doubt that both valves are cooled, ae

inlet and outlet valves. [It says, to prevent substantial

leakage at said ports.

. er

Well, this is sort of a functional limitation, and
the only way you could tell if you had that was to make a
model and try it out. Well, I saw the model work. And, in my
opinion, there was not substantial leakage. So, this is a
very indefinite term. What is substantial leakage? But, in
my opinion, there wasn't substantial leakage. a.
Then the claim goes on to state, when desired
effecting movement of said filter through said ports under ;
conditions providing for self-maintenance of said sealing
plugs to introduce another part of said filter band or ribbon
into said passage. Well, Moziek does this, and, to me, the
demonstration confirmed my opinion, because he did
self-maintain the sealing plugs to prevent any leakage and we
introduce another part of said filter band or ribbon into said
passage.
Now, when you put two of these together, just
pushing each other. Of course, that's part of the band like a
watchband, if you have three, you have a longer band. And if
you should decide to link them together, you still have a
band.
Q Do you --
A So, in my opinion, Moziek shows the things called
for in Claim 1, if there's one condition. However, I believe
that this phrase says, when desired effecting movement of said :
filter through said ports, I believe that refers to the 4g 4

t : vie

difference of pressure in Kalman which moves the filter back
and forth. 4 fe ae

Q And Moziek does not show it?

A And Moziek does not show that. So, if this claim
were interpreted as I would interpret in the means that you
need the difference of pressure to do the moving -- and that's
based on my reading of Claim 7, also -- you need a difference
in pressure to do the moving. And Moziek does not use a
difference of pressure to do the moving. But if you make this
claim broad enough that this covers a ram or anything else,
then Moziek would fulfill the requirements of the claim.

Q Do you feel among all the prior art that we have
briefly discussed here today that there is a fair teaching to
ultimately end up with a system that we saw demonstrated
today, that is, the linked plates passing through the Moziek
ports?

A Yes, I do. I don't believe -- I believe it would be -
obvious to almost anyone, let alone a man skilled in the art,

that if the plates were separating you could link them

together.

Q And that would be prior to 19, February 21, 1967, - 4
based on the prior art available to you?

A Yes.

C Because that is the critical date for the Kalman
patent?

A Yes.

7 er.

«a

Q Would you now give us your opinion as to your .

interpretation of the applicability of the Moziek patent,

Exhibit 35 against Claim 18?

a Yes. Claim 18 calls for a filtering device for
filtering a heat-softened substance. And that, of course, is .
what Moziek is. Then the claim states, a body defining a
passage through which said substance can be caused to flow.
Well, that would be the body, screw 14 is in the body, and the
substance flows through that body and down through and out the
bottom of Moziek. So, Moziek has that.

Slotted inlet and outlet ports flanking said
passage. Well, there's a port on the left and there's a port
on the right. And they're labeled, I would guess 56A and 56B.
Would point to a part of the ports. The ports are plainly
shown. There's one on the right and one on the left. So,
they flank the passage. And the passage that they're talking
about is through here, from top to bottom, the wav the plastic
flows. And they flank the passage.

Through which a filter in the form of a band or
ribbon is passed and can be moved to introduce different parts
of said filter across said passage. So, there is a filter, of

course, and it's in the cartridge 32 and it's in the passage,
as the claim calls for. and this is if this claim is
interpreted to be so broad that it's not limited to the

difference in force causing the movement. _ :

Then the claim goes on to ataye said a poets being

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re, ; ; fi f x, i) fir Soh ia a oe Ag >

the substance being filter permitting movement of said filter
through the slots without substantial leakage of said
substance. It uses the word "adapted," the ports being
adapted. Well, Moziek's ports are adapted to do that.
Whether he -- whether it's explicitly stated or not, we saw in
the demonstration today that the ports could work to form
sealing plugs even though they were left open. And there's
nothing -- if you have a Moziek device and you, and you left
the valves open, then it, it would infringe this claim;
whereas maybe if you close the valves it wouldn't infringe the
claim and that, of course, would be a difficult thing. You'd
have a difficult time deciding whether it infringed or not.

So, the ports in Moziek, in my opinion, are adapted
for formation therein in use of sealing plugs of the substance
being filtered permitting movement of said filter through the
slots without substantial leakage of said substance. And what
I said about substantial leakage, is, I'd state it here again,
I don't think there was what I would call substantial leakage.
And the term is really indefinite. And that's the way the
Moziek patent worked. I means, I saw the device demonstrated
and I have previously checked the device to see if it conforms
to that, the Moziek patent.

> Q I think you forgot the last element.
What?
The means --

I'm coming to the last column.

Ke

ae A And means to provide temperature conditions at said q
.. ports to form said plugs. And the temperature condition in
pS Moziek is formed by coolant going through those tubes shown in r
Z Figure 4, the tubes 63B and 63A is the tube for the coolant.
: So, that's the last element in the claim, and it's met by
a Moziek.
a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0969%3A2. Public record. Not legal advice.