# Brief in Opposition to Petition for a Writ of Certiorari — General Plywood Corp. v. United States Plywood Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0544%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for a Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 820 ## Text ene FILED No. www 25 | JUL 1 1967 N ° In THE yan Court uf the Buited States OCTOBER TERM, 1966 GENERAL Piywoop CoRPORATION, | : aed Sh -Petitioner, v. Unrrep States Puywoop ConPoraTION, a Respondent. _ BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Morrts REtson, . 405 Lexington Avenue, New York, New York 10017, _ Attorney for Petitioner. Of Counsel: ’ James M. HEiLMan, om Fifth ‘Averiue, / New York, New York 10017., Wim F. Duping, JR., 405 Lexington Avenue, New York, New York 10017. July 3, 1967 « . — \ ‘ . oa en — ‘ - > . ‘ AL - [2 . . . . ¥ . . i . ‘ : : = ~~ =) © os ft es 2. TABLE OF CONTENTS: hy Opinions Below and Jurisdiction ...... ‘ Eee te Question Presented ... cee se ebbas TTA EME SH _ ‘Summary of Argument 2 ise tes The Concurrent Findings of Noninfringement Below Are Correct ........: ceteenbaedines ae -_ A. The Accused Processes Are Not Abrasive B. The Accused Processes Do not Seay the MEE ca Ut bck otacawiecue theese ts C. The Accused Processes Do not Use ‘‘Heat *Insulating’’ or “‘Yielding’’ Belts ....:.: D. There is No Infringement Because the Ac- | cused Process Uses Kinde Prior Art aaa : PF vc dginccustnedtrasdbacdvestweseds «ai - Ww DO dD ii | ‘TABLE OF OONTENTS PAGE 3. Petitioner’s 5 Bien Is. Fanciful and Not , Supported by the Record ........ccccsssere 24° 4. There Are No Conflicts or Public. Questions _ or Other Reasons Warranting Review Here.. 28 Conclusion. ..... Siselaes eee tas Es ee 31 APPENDIX: Reply Brief for Defendant-Cross-Appellee on Cross-Appeal No. 16,195 ........ nsua eaanes 32 | . Crrations Cases: Allen v. Trust’ Company of Georgia, 326 U. Ss. “630, 636 (1945) see eeeesveescesececceccecees 2 Casco Products Corp. v. Sinko Tool & Mfg. Co., 116 F. 2d 119, 121 (7 Cir. 1940) ...... 000.02. 23, Comstock v, Institutional Investors, 335 U. S. SEL, TEA (IDET) ccc vevess yee pe mee 2 Exhibit Supply Co. v. Aes Patents Corp., 315 | We Ws Sate Mee GIOUED braces censcesaioeasins 30 General Talking Pictures Corp. v. Western Elec. '- Co., 304 U..S. 175, 178-9 (1937) .......... ee, Graham v. John Deere Co., 383 U.S.1,17 (1966) 26 Graver Tank & Mfg. Co. v. Linde Products Co., Se Ge: Ws BE Ee BOW CEOS ccc cnnctycanapecss 2,16 Great A. & P. Tea Co. v. Supermarket Beds. Corp., 340 U. S. 147, 152 (1950) ..:.......... 22, 23 - Just v. Chambers, 312 U. S. 383, 385 (1940) .... 2 ’ TABLE OF CONTENTS =. iii PAGE Keller v. Adams-Campbel Co., 264 U. S. 314, 319 CHEE ceccccdvctinesdiednnabduseearvonsins 1 _ Knapp v. Morss, 150 U. S. 221, 208 (1893) ciocee’ 2B _Kwik Set Ine. v. Welch Grape Juice Co., 86 F. 2d 945, 947 (2d Cir. 1986) ......cccccesecces 20. Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387 (1922) seetasouns wan nbned ones 1, 16 Magnum Import Co. v., De Sporturno Coty, 262 U. S. 159, 163 (1922) . onendsetcveuysssnadiens ‘3,16 Ocean Insurance Co. v. Fields, 2 Story 59, 18 Fed. Ce ity BI ks cic eatettcecesieesssnare 31 Smith v. Magic City Kennel Club, 282'U. S. 7 84, | 789 (1930) FADE oe cesdeRinesenresxanens 30 - | S. S. Kresge Co. v. mere 112 F. 2d 708 (8th | Cir. 1940) FD ti HH A MN ly Cf uled -21 Stilz v. United maanes, 269 U. S. 144, 147-8 CADNE) : vavcesccevevbdowrenicessttesssesate 2,3, 21 | Toledo Scale. Co. v. Computing Scale Co, 261 ome U. S. 399, 425 (1922) siaeaeiunelats waeitd a «BL United States v. Yellow Cab Co, 338 U. S. 338, , et eet rrrrs rere jecnna cea preeeeees 11, 115 , Statutes: 96 WRG MOND: oon vskicdadecys coh cece Mee © No. 1351 *) oi Supreme Crt of the Rated States OCTOBER TERM, 1966 . “4 GENERAL Piywoop CoRPORATION, — oy Petitioner, v. Untrep Srates PLywoop Conronariom, Respondent. és. 4 BRIEF FOR RESPONDENT IN OPPOSITION TO - PETITION FOR WRIT OF CERTIORARI Certiorari is not granted merely to review evidence in.an ‘‘ordinary patent case, with the. usual issues of in- vention, breadth of claims and non-infringement.’* That - is all this petition seeks. This is an ordinary cause of action for alleged patent infringement in which the Dis- trict Court correctly found the patent in suit to be not infringed. The Court of Appeals affirmed the District Court, and re-affirmed its own decision of non-infringement by denying petitioner's petition: for seaaoeiay, 1 Keller v. Ademe-Compbell Co., 264 U. S. 314, 319 (1923) ; (822) Bowler Corp. v. Western Well Vv erks, 261 ) $i 387 2 Petitioner is ‘sometimes hereinbelow called General hie ae Corporation or G.P.C. ao . Zz a 2 The lower court decisions do not*tonflict with decisions ~ of this Court or other Courts of. Appeals. Nor do they: present any unusual questions of law or clea ers of any public importance. : Petitioner’s real complaint i is that it was Cee in meeting its burden of bringing forth ‘sufficient ‘evidence to support its clajm of infringement. It seéks by this peti- tion to reargue the weight of the evidencé on the factual issue of patent infringement,™ in direct contravention of this Court’s oft repeated rule that ‘‘concurrent findings. of the two lower courts will. be accepted. without re-exam- ination of the evidence. 99 ! In short, this petition presents no “special and important © reasons’ for this Court to intervene by’ granting. a writ ~~ a certiorari. ‘ Opinions Below and Jurisdiction .. The opinions below and jurisdictional requisites. are ~ adequately set forth in the petition. _ . The petition asserts a fanciful question.’ It is.premised on ‘four assumptions, which as will be shown below have Ps aw soa at BE , is 4 question of fact has been éstab- ;: i oMe¥. United States, 260 U. S. 144, 147 - * Allen v. Trust Compan f Georgia, 526 . £ Ge ey Mere Talk. "emees. Corp..v. Western. Elec. 4 . 175, 1 1937) ; Comstock v. Institutional Investors, 3 S. 211, shiz eral Just v. Chambers, 312 U. S. 383, 385, j (ioe). Mfg. Co. v. Linde Products Co, 336 U. S. “ee a ae 19 of this Court, (1940) ar ° 3 i it ; 1 no basis in. the record here. These invalid assumptions are: Le That the patented process represents a “‘substan- tial. advance in the art.’’ ' 2. That the lower courts held. that patent infri ment was avoided merely by ‘‘varying the of the apparatus employed in performing process.’’ 3. That the accused processes involved ‘‘no departure © . from the mode of operation or the result” of the patented process. ©” 3 ‘4. That the ‘patent claims .do not preclude’? the variations employed in the accused. processes. f> In addition, the Question i is premised on the patent’s being | valid. This prémise is challenged by the companion peti- . tion for writ.of certiorari in United States org Cor-_ poration v. General Plywood Corporation, No. 1 : The only possible question here. is one of fact, ie, whether the patent in suit has been infringed.* Thus, the real\issue is whether petitioner, who lost on the fac- ° tual issue’-of infringement in both courts below, should. be given still another hearing: to. reargue this issue before this C This Court has: already answered. this ques- tion in: mae megative i in the same situation.” - ~Stimmary of Argument ake , The petition should be denied because 7 1..Certiorari is not ‘ta be granted merely to: review ~ the weight of evidence. © ~ °%* : 2. The concurrent garnet of non-infringement helow a “are: econ eh ep for 6. oh Sport yen ). it reduces absorbency for liquids used in , finishing opete. 3 tions; absorbency is reduced as -the surface . becomes : smoother, because the shallower remaining grooves of the. finer scratch pattern can trap less liquid and because the ‘smoother surface presents less area for absorption than the - more deeply grooved surface produced by coarser — (570a-71a ; PX 1027, 2914a). As- would be expected, the properties of the wood sur- face change gradually as the grit size used for. sanding is progressively reduced; there is no abrupt transition. . The. progressive sanding by. finer and finer grits leads to greater smoothness, evidenced by more shininess and glossiness (2163a, 2259a-61a, 2271a, 1978a, 344a-45a, 1714a- 15a, 305a-06a). The major result desired is greater smooth- ness; the glossiness is\ the evidence of smoothness, and decreased porosity and absorbency are a consequerice of greater smoothness.” The evidence offered at the trial” overwhelmingly es- tablished that USP’s sanding belts used in‘ the accused processes are abrasive. . USP’s expert" made enlarged photos of denones sanded with different grits, such as 3/0, 6/0 and 10/0 (524a-26a; _PX 1024). These photos showed clearly that wood was cut away in all cases, leaving a grooved scratch pattern, which was merely finer for ‘the finer grits. No significant ** Buffing is to be distinguished from sanding; it involves rub- ' bing or, polishing with a cloth or the like, which does not remove wood or cut the surface, but pushes’ down any fine projecting fibers or ridges. “Burnishing” signifies only that shininess or polish is imparted, regardless of how that result is attained (448a, 456a). 4 Prof. A, G. H. Dietz of the Massachusetts Institute of Tech-. nology, active in the field-of wood erat wd over 30 years, and a consultant to the U. S. Forest Products Laboratory and the Na- tional Lumber Manufacturers Association. He has also lectured wneny both in the: United States and abroad (517a-19a). 10 difference existed as between new and worn sanding belts ; both were abrasive (632a-39a, PX 1039-1051). | Abrasiveness was also shown by using 10/0 belts for sanding panels held stationary for differing periods of time. In each case the belt gouged the panel (even to | . the extent of sanding through the entire face panel), showing abrasiveness (199a-207a; DX Gen, 348, lla; PX(USP) 138-142; PX 1004, 2891a; 232a-43a). This was the same test by which GPC persuaded the Patent Office that the worn sandpaper of the prior art MacDonald pat- ent was abrasive (2985a) in contrast with what happened when GPC’s cork belt was substituted (2989a). The very standard for non-abrasiveness proposed by - GPC to the Patent Office established abrasiveness here. That standard required absence of sanding dust and ab- sence of wood removal, for non-abrasiveness to exist. Operations observed by the District Court himself and observed. by and testified to by nearly a dozen witnesses -(ineluding GPC witnesses) showed that.clouds of sander dust were produced by the accused processes, so that special dust removal equipment had ‘to be used with each accused operation, while users of the patented process needed no such equipment." Testimony was given of actual measurements of the amount of sander dust produced, and 314. pounds of col- « lected dust were offered in evidence (250a-55a, 577a-80a ; __PX 1006, 2908a-09a; PX 1028). . : ote Abrasiveness was also shown by the removal of wood. The same panels were successively sanded with a 10/0 © belt (the finest grit belt accused) until the entire face ply ‘was removed. This required 19 passes with a new belt and 28 passes with a used belt (2452-50a). The testimony 561 oe 2186, 255a-56a, 266a-67a, 3392, 405a-06a, 472a, Stes, "Mons: 96te, $7 975a-78a, 990a-93a, '1125a-26a,,. 82a, 3827 a- - ee en re ees 11 a was unequivocal that in USP’s production wood is cut away from the face of.every panel (218a). : It was on such a record that the Court of Appeals held that there was ‘‘substantial evidence’’ that USP did re- move ‘‘significant. amounts of stock’? in the accused processes, and that the trial court’s view of the evidence was ‘‘at least a L areca 16 one’? (Patios, p. 58). A. The Accused Preniees Do Not Density the Wood Since the accused operations are abrasive, they cannot densify wood in the manner described and claimed in the _ patent, because they remove rather than densify the top surface of the wood.. As GPC emphasized to the Patent Office (see pages 4-7 above), an abrasive sanding op-— eration cannot ‘densify: wood. | | But more direct evidence of absence of densification in the accused processes was presented tod the courts be- low. Specimens of wood finished by the accused opera- tions were microscopically examined and photographed. Analysis of these photographs showed that there was no densification present (536a, 537a, 543a, PX 1024). Also the density of a thin top slice. of these specimens was actually measured, and the density compared with that of normal-density wood. This comparison definitely proved that no densification occurred in the accused processes (611a-632a, PX 1037, PX 1038, 2920a-33a). As further proof of the absence of densification in the accused processes, the patent specifies a minimum of 400° F . as the temperature required for densification (3059a, . col. 6, line 23), while temperature measurements: on the accused operations showed that’ the requisite. 400-degree minimum temperature for the wood. to;. soften’ was : not reached (675a-79a, PX 1029, . ‘MilSe-0e). This. was also © | oo oting this ‘Court’s dailtin in Onited. States. ve “Yellow Cob om 342 (1939). » 12 . confirmed si the fact that the accused processes operate at far below the temperature set by GPC, which ‘is just below the scorch point (2109a); no significant scorching ‘is experienced i in the accused operations (2509a-11a), only a 2 or 3 isolated instances having occurred in 7 years of “operations (584a). | Thus, the direct idea of microscopic examination, density measurements, and temperature measurements, all — demonstrate absence of densification in the ‘accused processes. . ee Do Not Use “Yielding” or “Heat Insulating” Belts - ; In addition to requiring ican of a buffing means which is nonabrasive, the patent also requires that the buffing means must have a surface which is ‘‘yielding’’ and ‘‘heat insulating.’”". The purpose of the ‘‘yielding”’” , *" Pages 4-7 above. Logs ner 18 also clear from the patent itself and from GPC’s arguments in the Patent Office that the expression ‘‘non-abrasive’’ as applied to the buffing medium means just what one would think it means, i.e., a buffing surface which does not ‘‘re- move a noticeable amount of wood”’ or ‘*produce a notice- able amount of sander dust’’ when it is rubbed —— the -wood. (Pages 6-7 above. sh “ The District Court recognized the cinta faa ee of the patented process, and held that the accused processes — were abrasive and thus did not infringe. The District Court _ held that the patent ‘‘clearly contemplates the use of buffing belts that are non-abrasive’’, as opposed to the accused processes which the Court held involved the use of ‘‘abra- sives’”. The District Court concluded that there was ‘‘no foundation upon which an infringement could be based.’ The Court of Appeals expliditly affirmed this finding and supplemented it by holding: '¢¢General Plywood described its julie belt as ‘non- abrasive’ or ‘relatively non-abrasive,’ ‘non-metallic,’ ‘flexible’ and ‘yielding.’ None of these descriptive . ‘terms are appropriate to describe the 10/0 aluminum oxide grit sandpapers which Umipes States . Plywood . employed.’’” The Court of Appeals ‘dite discussed apc ’s argument that the abrasive belts used in the accused processes became _ non-abrasive with use and thus began to infringe after some indeterminate period of use, and held: _* “We do not ignore General. Plywood’s argument that JU. 8. Plywood’s results were really: achieved by either ~ the crushing of the grit on the ‘modified’ belts, or the use 2 of worn belts, or by the en filling of the belts = Petition, page 41. *° Petition; page 57. 4 = ‘ / 19 - with wood particles Vie to terminate any substan-~ tial abrasive action. We have, however, noted in the record testimony which certainly constituted substan- tial evidence that the 10/0,sanding employed by U. 8. Plywood did remove significant, amounts of stock. Observers testified to visible dust and the necessity of. dust collectors on the ‘Micro-Fine’ process where Gen- eral Plywood contends such were not a in. microsealing. ‘was , The District Court had implicitly rejected this same argu- ment by GPC by holding that no GPC witnesses ‘‘were ever able to give the Court a satisfactory formula by which it could be told’’ when these belts ‘‘ceased to be abrasive and became an _—— of the process in the Alexander patent.’ Despite these rebuffs by both lower courts on. this con- tention as to assertedly specially ‘‘modified’’ belts which supposedly fill with sander dust in use, GPC submits the same argument to this Court on this petition (pp. 10-14). These findings by the lower courts are fully supported bythe record. As shown above, abrasivity of the accused processes was proved by photographs,” by measurements _ of wood removal,” by plant demonstrations for the Court * Petition, page 58. 5 Petition, page 42. * Petitioner propagandizes by calling USP’s belts “special dulled”. (Petition, p. 11). In this art “dulling” does not nen diminishing’ the chradvemnie or sanding ability of the individual grits in any way, but refers only to crushing of those few grits which may temporarily project above the others so as to score too deeply the first few panels being sanded (18219-18278). ** PX 1024, explained at 519a-543a. * PX D Gen’l 348 (2509a) explained at 196a-230a : PX 1004 (28872) ‘ 232a-243a - PX 1005 (23893a “ & 245a-249a PX 1006 (2900a “ © 250a-255a PX 1039-51 (Physicals) “ — “ 623a-640a 20 during the trial, by courtroom demonstrations including microscopic inspection” and by the testimony of numerous witnesses about ‘the clouds of dust produced by the ac- cused processes.” _ The Court of Appeals concluded its discussion on non- - infringement by pointing out that: ‘*¢W)hat U. S. Plywood did was essentiaily to move a fine sanding operation which was already being used © | ‘in the industry for finish polishing to an earlier point in the production process and apply it to wood in the ’ white panels. If ‘Alexander’s patent should be broadly enough construed so as to apply to this op- eration, then-it would be hard to ascribe to it the novelty, as opposed to the prior art, which is required | for invention.’ Mie This also is supported by the record. - GPC affixed to the inside back cover of its petition a small piece of the finest sandpaper (10/0 grit) used in some of the accused processes.** This was apparently done as an invitation to this Court to touch the sandpaper to de- termine its — GPC would apparently ‘substi- USP plant demonstration at 975-9784; re plant ye stration at 1465a-1490a. %° PX 1019-1020 (Physicals), 406a-419a ; 258a-273a, ** Footnote 15, supra. * GPC’s contention that pressures and sae are different from the prior art is irrelevant. Merely the adjustments built. into the prior art Timesavers machine to in desired results is These differences are controlling here; they constitute a basic ‘‘departure from the mode of operation [and] result’’ '., ‘of the patented. process. As to the fourth and final false premise of GPC’s ques- tion, the patent claims do both ‘‘preclude” and. exclude the differences employed in the accused process. GPC itself here violates the rule which it blames the lower | courts of. violating, ‘namely, that the claims are the ‘‘meas- ure of the invention.’ All of the claims require the use ’ pis Ibid. “88 See pages 14-15 and 22-24, supra. 83 See pages 4-11, supra. * Petition, page 23 - 8 Ad of a nonabrasive rubbing mioiienn, Alt claims require rubbing non-abrasively.. All require densifying. Most require a ‘‘yielding”’ and ‘‘héat-insulating’* rubbing sur- : face. Both lower courts held that the rubbing belts used ‘in the accused process were. abrasive, not yielding, and | ' not heat-insulating.“*. The patent claims therefore do directly preclude any possible infringement by the accused - processes. These differences go to the very’ essence of the - patented invention. — , Thus, petitioner’ s question is ‘wholly fanciful. It has no _ relation to. the facts here. No writ should be — upon it. '. 4. There Are Ne Conflicts or Pablic Questions or Other Reasons s Warranting Review Here GPC states a number of reasons for requesting certiorari (Petition, pp. 22-23), none of which has merit here. For its first reason, GPC asserts that the decision ‘below is in supposed conflict with the rule that ‘‘infringement of a process patent is not avoided by using apparatus other than that disclosed in the patent. so long as the nature of the process and its results remain the same.’’ The lower court decisions do not conflict ‘with this rule; the rule is simply not applicable here. It may apply in the case of a process which is independent of apparatus, as in the citations given by petitioner. Here, however, the process is necessarily limited -to specific apparatus, namely, - the nonabrasive belt, whose characteristics as already patent. 3 The rule coferved to is therefore not pertinent. _ Moreover, as shown above, the lower courts found non- infringement because of the basic difference between. the patented nonabrasive densifying: process and the accused _ abrasive sanding processes. This difference is basic to the patented process. It is far more than a mere difference in the apparatus. This first reason is thus non-existent. 4 See pages 4-13 and 17-22, supra. 29 GPC’s second reason given for requesting the writ is that the question presented is of *‘major -importance’’ because it ‘‘is very likely to be faced’ with respect to every. valid process patent’’ particularly insofar as it concerns the problem of determining a patent scope ‘‘commensu-- rate’’ with the ‘‘substantial advance’’ of the patent. As shown above, the question presented by this petition i _ wholly fanciful. =~ xt Moreover, beyond making the nage assertion, GPC fails to show any public importance to this question, or tliat the courts below failed to follow: the principles laid down by this Court, so as to create any ‘‘need to affirm’ any prin- _ ciple, Neither the lower courts, nor any other courts have failed to follow this Court’s rules. There is thus no need © for this Court to ‘‘reaffirm’’ any rule, as sought by GPC. Virtually every patent case involves the problem of deter- mining the scope of the.patent with regard to the value | . of the patentable contribution. Suck a determination is completely factual in‘ character. This Court cannot review - the facts in all of these cases simply because one of the. parties is, dissatisfied with the determinations below. GPC’s third reason is that the decisions below are clearly. erroneous. It is not the function or policy of this Court to review findings of fact which are concurred in by both lower courts. Certiorari is not just another avenue ‘for rearguing ‘the evidence on the multitude of factual issues that are. embodied in the concurring Jndgments below. : No effort i is mode! in this brief to rebut all the argumen- tative ‘facts’? asserted in the- petition; however, it has been shown above that the basic finding of nonabrasiveness of the patented process and abrasiveness of the accused ° processes is not only not clearly erronegus, but is clearly correct. Suffice it to say as to thé other ‘‘facts’’ urged by GPC, they have all been urged before in the lower courts, and the lower courts have rejected GPC’s contentions. Petitioner’s contentions (Petition, pp. 22-23) that the courts below failed to follow three stated ‘‘rules’’ are equally without merit. As to the first two ‘‘rules’’, relat- ing to the claims being the measure of the ‘‘invention’’, and construing the claims according to the disclosure, the courts below specifically found that the very language of the patent claims finds no response in the accused proc- - esses, in any particular vital to the patent process... ‘Petitioner’s attempts to argue at’ page 29 that the deci- sions below are wrong because’ (petitioner asserts) its Tubbing belts. supposedly remove as much-~wood as the __ ’ accused sanding belts, and because (petitioner asserts) _ the courts below supposedly: fail to consider this point, . place petitioner squarely on the horns of a dilemma. If ~ petitioner is wrong on this ‘‘fact’’, there can be no in- fringement. If petitioner should be assumed right as to. ‘the “‘fact’’, then petitioner perpetrated a fraud on: the Patent’ Office by falsely representing (and vehemently so) that no wood removal or sander dust is produced, and 3 the. patented process then becomes equivalent to and thus . invalid over the prior art sanding processes. ' ‘The fact is that the accused ‘processes produce substan- ‘tial sander dust and remove. substantial stock, as the Court of Appeals held.* .Heré again GPC seeks. to have this Court review merely the weight of evidence, and thus there is no merit to this a sega reason \ for the writ sought — ey engine / As ‘to the third “ple”? of liberal denstraciion for which petitioner pleads, it is sufficient to note that the estoppel . created by GPC’s amendments’ and arguments in success- fully: persuading the Paten Office: to ‘grant the patent preclude ‘enlarging the patent seopé, even if it were ' (incorrectly) assumed that there is any a aeerepe be- ‘tween the re ae oe. ry: sists eens _ Mt sai _pibstantial A eat pers hae ie e = _ + This petition inyolves no more than the narrow-question of patent infringement, which is of interest ofly to the - parties. The concurrent judgments of noninfringement below were reached by correctly applying rules of claim — construction which are in complete accord with principles enunciated by. this Court. In sum, there aré no conflicts or important questions | presented by this Buen. which warrant review by this Court. ere In the words of Mr. Justice Story, in Oosen seeaiaanay Co. v. Fields, 2 Story 59, 18 Fed. Cas. No. 10,406, quoted _ in Toledo Scale \ Co. v: Computer: Scale Co., 261 U. 8. 399, 425 (1923) : his Faq et ‘*It is for the public interest and policy to.make an *-' end to’ litigation, or, as was pointedly said bya great jurist, that suits may not be immortal, while men are mortal.’ ) i, ; . The petition should be denied. Respectfully submitted, July 3, 1967. ae yee . Morris Retson, : 405 Lexington Avenue, | _ New York, N.Y. 10017, Attorney for Respondent. — Of Counsel: ; James M. Herman, 601 Fifth Avenue, _ . New York, N. Y. 10017. Wuuiasm F. Duprnz, JR., “405. Lexington Avenue, . ° _ New York, N. Y. 10017. . . SUPPLEMENTAL APPENDIX —/ - Reply Brief bes Defendant-Cross-Appellee on | 4 se censiiian Na, 16,198. | me Sha Sorte 9s rovngin that if theists 00 donsifon tion the patent is flatly invalid on that fact alone, for the patent requires.it. If there were no- densification in the practice of the microseal process, the patent would be in- valid and USP would not have to turn to some distorted - argument of fraud on the Patent Office in order to estab- lish that invalidity; and-if there were no densification in the praetice of USP’s aceused_process, theré would be no infringement and USP would not have to turn to a ersatz argument it présents in this section of its brief, for the question of infringement would be resolved. * * * a et Bi NIP oe et ach Oe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0544%3A2. Public record. Not legal advice.