# Appendix — Architectural Models, Inc. v. Neklason > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0230%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 393 U.S. 999 ## Text (Ex 2, pages 43-50 and 71-73) Petition to Make Special fPrnewne ie _ Appendix Patent Office Proceedings on Petition to Make Special "Affidavit of Leila M. Johnston..... GTB Vi Seice sence __Affidavit of Karl“A; Limbach..... er Order of Board of Appeals Opinion of Distriet Court (R-31-51).... , _, Judgment of District Court (R-52, 53).. Opinion of Court of Appeals (B-69, 70) Claim 4 of Green et al Patent (Ex M) Judgment of Court of Appeals (R-71).: Claim 14 of Green et al Patent (Ex M) > « 4 oi ; ; $ asthe Soe 3 § @ s : r) POLAT. 8” + “Agpeniie | ie PETITION TO MAKE SPECIAL Honorable Commissioner of Patents _ Washington 25, D. C. Cir: . 5 eal eens cig i Applicants in the above identified application hereby petition to have this application made special for the reason that one of applicants’ competitors is infringing claims. which applicants hope to have allowed in this application. ©)The existence ‘of this infringement. is: shown by ‘the attached affidavit of Leila M. Johnston, one of the appli- cants, and the affidavit of one Karl A. Limbach, one of appli- _ cants’ attorneys. - XB _ This application has received full examination on the merits and all of the claims in the application are now under final rejection. As far as applicants are aware, the most per- tinent prior art references are of record in the application. A full response to the Examiner’s final rejection i is enclosed . herewith by way of a notice of appeal and applicants’ brief — on appeal. The granting of this petition is requested so that the application may be considered special during the pen- ‘dency of the appeal and any further delay in the i issuance of applicants’ patent may be avoided. a The attached affidavit indicates that applicants lave : been diligent in prosecuting this application and in present- ing this petition to make special ever since learning of the 7 intringiag activities of applicants’ competitor. ‘ For these reasons, it is respectfully, submitted that this =: | cad should be granted. . bi Respectfully submitted, _ Naytor & Neat By Karz A. Limpacn Attorneys for Applicants : AFFIDAVIT OF LEILA M. J OHNSTON State of California 2 City and County of San Francisco—ss. Leila M. Johnston, being duly sworn, deposes and — : oe as follows: \: OL She is one of the applicants j in this application. and _ » one of the owners of Architectural Models, Inc. of ‘San Francisco, California. - : +2. .On or about August 5, 1963, affiant learned that two | ‘ex-employees’ of Architectural Models, Inc. were engaged in a competing business under the name of Scale Models. _ - Unlimited in Fast Palo Alto, California, and affiant sus- — pected that these ex-employees were using apparatus simi- - lar to that. disclosed in this - application because Scale ‘Models Unlimited had bid on a job of making a topographi- - - cal model on which Architectural Models, Ine. had also bid. 3. On August 6, 1963, affiant accompanied by her patent attorneys and a professional photographer visited the offi- ees of said Scale Models Unlimited to determine whether or not these ex-employees were using apparatus similar to that disclosed in this application. When affiant and her at- torney and the photographer reached the offices of Scale __ . Models Unlimited, the ex-employees refused to permit said attorney or said photographer to view the equipment with _ which they made topographical models, but said ex-employ- - ees permitted affiant to examine: such equipment. : 4 Shortly. after this examination, affiant prepared a ~. sketch of the equipment which she was permitted to exam- -ine, and“this sketch is attached hereto. The equipment con- sisted of a table on which a. topographical map. may be mounted with, an overliead support mounted on the wall of the building adjacent to the table and supporting a block of styrofoam in inverted position over the table with a free-. : ly movable tool mounted on the table as illustrated. i in the its ’ y 3 .* oy : | Appendiz. ee : a route bit while a coaxial stylus followed. topographical lines on the map on the table. The height of the router bit: above the table was accurately adjustable by accurate ad- _justment of the position of the router up and down inside of a cylinder supported on a tripod. 5, Affiant is informed and believes that said ka = ‘ees continue to use the apparatus described above though _ affiant has informed said ex-employees that such use. con- _ stitutes appropriation of the. trade secrets of Architectural | Models, Ine. and will infringe patent claims which affiant / hopes to obtain through this siiplindbe! Said ex-employees / refuse to discontinue use of such apparatus prior to tie issuance of'a patent on, this application. 6. Immediately following August 6, 1963, the day on which affiant inspected the above identified apparatus, affi- - ant requested her patent attorneys to do everything possi- le to speed up the issuance of a patent on this application. 7 Affianit is advised by her attorneys that. responsive: to such i advice, said attorneys had their Washington associate in- terview the Examiner handling this application to acgéler- ate prosecution of the application. Such interview was\con-_ ducted as soon as it could be arranged following August 6, _ 1963, and subsequent interviews were conducted as soon as they could be arranged after new references cited by the Examiner in‘the interview could be discussed with affiant’s . attorney. Following such interviews, affiant’s attorney filed -- an amendment on September 12, 1963 and the accompany- _ ing petition to make special is being filed as soon as possi- ble following the final rejection of October 10, 196% . | 2 Lema M. Jounston Leila M. Johnston — Subseribed sai sworn ‘to before me, a notary public, this 7th day of November, 1963. es | /s/ Frepertck Wiiu1aM Rors, JR. - . Notary Public eit Zi ep aoe a ae materwedl, or arontenm: a Gases: cil Upside. dour 3 tdown ‘i nude tylinden, Au pported ew . Catpoo desis " dppenie gs ee AFFIDAVIT OF KARL A; LIMBACH ee | State of California City and County of San Francisco—si Karl A. Limbach, being’ duly worn, de teen can says as ‘ follows: fe 1, .-He is one of the siitiennve sia in the above’ , '” identified application. __ a 2. He has examined the sketch attached to the affidavit of Leila M. Johnston and has made a rigid comparison of "the device illustrated in that Sketch and described.by Miss" Johnston with the claims of this application. } 8. In his opinion, some of the claims in this satiate Za ~ are unquestionably‘ infringed 7 said device. 3 . 4, Prior'to the filing G this application he caused to be made a careful and thorough search of the prior art, and he . believes that all of the claims in this‘application are patent- able over such search art and over the references’ found _ in the Examiner’ s independent search of the art. Js/ Kas, A. Unsenace ee ea eee: Karl A, Limbach ‘ ; _ . Subscribed and sworn to before me, a notary public, this: 24th aa of October, 1963. , a /s/ BarBara Ann Ety s Notary Public AG : Appendiz U.S. DEPARTMENT OF COMMERCE eed . Patent Orrice @ | ap | Washington ‘ N ovember 27, 1963 On Petition To Make Special The applicants petition that the above identified applica- tion be made special on the ground of infrmgement. — Inasmuch as the above identified application was acted upon by the primary examiner on October 10, 1963, and now awaits response by the applicants, the petition, to make it special is hereby dismissed. be Epwin L, Reynoips e First Assistant Commissioner Attention: : Appendic = a | December 4, 1963 : : Commissioner of Patents Washington 25, D. C. Edwin L. Reynolds First Assistant Commissioner Re: Ex parte Virginia Green et al * Serial No. 127,211 ' Filed July 27, 1961 “2 Apparatus for Making Topographical Models On Petition To Make Special — (Our file 914) Dear Mr. Re¥nolds: This letter is sent in response to your letter of November 27, 1963, dismissing applicarits’ Petition To Make Special. Applicants hereby renew the Petition To Make Special and - request that it be considered on its’ merits sinee applicants had responded to the October ‘10, 1963 action of the pri- . - mary Examiner. The primary Examiner’s action of October 10, 1963 was a final rejection, and at the same time the Petition To Make Special was presented; applicants filing Notice of Appeal - from the final rejection together with Appellants Brief on Appeal. It is believed that such appeal constitutes 4 com- plete response to the final rejection. No further response to the final rejection short of appeal was made since the merits of the application had been exhaustively considered with the Examiner in numerous interviews and both appli- cants and the Examiner felt that-the application was in condition for final rejection and t appeal. Very truly yours, ! /8/ Karu A. Loysacn For Naytor & Near ( | U.S. Department of Commerce Patent Office _ Usrrep Stares Govenwaent | MEMORANDUM TO: Examiner, Division 340 af aie . S. | DATE: Dec. 6, 1963. FROM: First Aasistent Commeledonee _ SUBJECT:, Petition to Make Special Applicant: Virginia Green et al. Serial No. : 127,211 The examiner will please send the file of the above iden- - tified applicatjon to the office of the First Assistant Com- missioner, Room 3898, indicating hereon when the appli- cation will be reached for action. — If an amendment or other paper is attached, it should be entered before the file is forwarded. ‘ ' This application was forwarded to the Board of Appeals on December 6, 1963: tay [longhand endorsement] This application will be acted upon. /s/ Frances I. Suir Signature of person reporting Dee, 16,1963 — Date of Report Mailed Jan.—8 1964 : Rs Sais 9:8 e ae U.S. Patent Office Boardof Appeals © Appeal No. 269-73 RHI In the United States Patent Office & & BEFORE THE BOARD OF APPEALS ‘\ Ex parte Virginia Green ‘and Leila M. Johnston Application for Patent filed July 27, 1961; Serial No. ts - 127,211. Apparatus for Making i ot Models. Naylor and Neal and Cushman, Darby & Cushman for. ) appellants. Appellants have renewed their petition to make this case _ special for the reason—infringement—set forth in ” prior petition .and supporting affidavits. 8 To the extent that the appeal will be expedited before the Board of Appeals, the petition has been granted. * - ‘The application is herewith forwarded to the Examiner for reply to appellants’ brief. By Order of the Board sala q Nicnotas Hann Administrative Officer gt es | Decision of the District Court for the Northern District of California — _ (caption omitted) 3 | MEMORANDUM OF DECISION AND ORDER . This suit invoices the validity and: alleged infringement _ of U. S, Patent No, 3,137,209, a device for making topo- graphical models. It is a combination patent involving some 14 separate claims, four of which are being sued. upon by the plaintiff, those claims. being Nos. 4,,5, 11 and 14. The plaintiff also charges the defendants, in'a separate cause of action, with appropriation of a trade secret. ‘The defendants have denied infringement ‘and chal- lenged the validity of the patent on the grounds of prior art — and obviousness, faulty inventorship, prior public use and , failure of the plaintiff to comply with formal statutory re- quirements, Misuse is also asserted as a defense to the pat- ‘ent infringement. claim. Defendants have filed two counter- _ Claims. The first is for declaratory judgment that the patent _ sued upon is invalid, to include all 14 claims, and the second _ charges the plaintiff with unfair competition. . Reaarpnro THE ALLEGED INFRINGEMENT, With Particuar Rersrence to Craims 4, 5, 11 and 14: "These four claims, of the 14 encompassed by the patent, © are the only ones to which the infringement suit is directed and the only ones about which plaintiff has presented evi- dence. It follows then that the remaining specifications are _not in-issue as to the infringement suit. Mindful of the advice ‘of the United States Supreme Court that usually the better practice is,to inquire fully into _ the validity of a patent, Sinclair v. Interchemical Corp., 325 - U.S. 327, 330 (1944), this court concludes that the circum- stances and factual background of the case dictate a dis- position on the ground of non-infringement without deciding . the question of validity of the patent. | : ” Agneta $e. The aleve statement in Sinclair in the words of Judge Learned Hand “was certainly not put in the form of a per- emptory: direction, but rather of cautionary admonition, to be followed when that is the more convenient course . There are good reasons for allowing some latitude of. halos A decision resting npon ea rnc is generally much - more secure than one on invalidity. .. . That issue is a fugi- tive, impalpable, wayward, and aii a phantom as exists . in the whole paraphernalia of legal concepts ... A declara- tion: of invalidity may therefore prove an ignis fatuus, as fictitious a security to those who wish to infringe the claim, as a declaration of validity may be a fictitious menace.” Harries v. Air King Products Co., 183 F.2d 158, 162, 163 (2nd Cir. 1950). See also, Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1938) ; Altavater v. Free- man, 310 U.S. 359 (1942) ; Cover v. Schwartz, 133 F.2d 541 _ (2nd Cir. 1943); Lockwood v. Langendorf, 324 F. 2d 82, 91 (9th Cir. 1963). Claitns 4 and 5 define in substance the frame ‘used to support the material, a ‘table adapted to support a reverse. print of a topographical map, and a free moving tool car- rier with an electric motor mounted thereon. These claims were at first rejected in the patent office because of the Shaver patent but were amendéd to incorporate the use of a reverse print as a distinguishing feature. Based upon this amendment, the claims were approved. Defendants do not employ such a reverse’ print. Instead, they use a light table and a rightside print. However, it is- plaintiff’s contention that the accused machine functions © -* on the print in ex&ctly. the- same way plaintiff’s machine functions on a reverse print, that is, either the same result is achieved by a different means, or both processes are the. _ same-or substantially the equivalent of each other. Both |. procedures, in effect, are adapted to support a reverse. print. Apparatus for making threé dimensional topographi- | cal models which comprises: a support frame having; a generally horizontal table _ _ thereon adapted to support a reverse print of a topo- graphical.map representing the model which is t® be made; work holding means rigidly mounted on said frariie above said table for supporting above said table - a mass of. material from which said model is to be made; a tool carrier resting on said table and freely | * A382 — Poe Agpindle , ‘movable over the surace of said table; an édectvio motor _ mounted on said tool carrier an having; a tool receiv- * ing chuck mounted hereon rotation about a gen- ~ erally vertical axis respaaSive to operation of said moter, a rotary tool received in said chuck and pro- jecting*upwardly from said motor and movable over ° . ae sail table with said carrier, said tool generating a cylindrical cutting shape responsive to operation of _ said motor, a generally circular,stylus mounted on «~ said carrier adjacent to said ‘table with said stylus e being coaxial with said axis of rotation of said chuck and having a diameter substantially equal to the di- ameter of said cutting shape and with both said chuck and said stylus positioned between said table and _ said work holding means; and, adjusting means form- , ing a part of said carrier for changing the distance be-- ' tween said cutting tool and said canes | CLAIM 14 OF PETITIONER’S PATENT EX M . A tool for making three. dimensional topographical’ models which comprises : a frame having; a base portion adapted to rest on and : be moved freely over a flat. surface;'a body portion ~ °* © mounted on the base portion; a router mounted on | .said body portion and having; a cutting tool thereon facing away fromm said base portion with said rofffer- _—— -}-— ‘ positioned for rotating said-tool about an axis general-° ly perpendicular to the flat surface on which said base portion rests; adjustable connecting means intercon-. . necting said royter and said body for adjustably posi- tioning said router as a plurality of different positions along said axis; and, a generally cylindrical stylus mounted on said base portion adjacent to the surface on which said base portion rests with said. stylus having a circular end coaxial with said axis and bcc in, di- ameter to the diameter of said tool. 4 ad 3 rar , \" 4 , _ OE OR es re, LE et Nit aed He a aN = PELOSI Pred 4 Bali tide 4 Crees 5 - ? e ONIN SR RN “ Pm Hypmncemer rates YY ih POPS A oe — a es plas pos ste Aone eae ne oor oe afk : 4 q . : j - | -@ ' ‘ e i 2 % ; : npc, cm eM * ‘ oe f Pe he re eye j é | P e , ° = : : 2 o ‘ e ‘ ‘ . ° . ‘ e -_ bd . a ? . ° = ‘ * Mg 7 ‘ ‘ . é ‘ >» o . . 6 ~ : “ Na : « ‘ ” 4 e s 4 . a , ’ , . & A ‘ : ‘ ,@ ° : ? a * ; P ° g : . * | PS ° ® Z s d . : . . ‘ e . - of . . J r ‘ “ . 7 id s eo oe - ° Ld . a ° ° : e . . e 7 ‘ e ed ° é 2 \ e ; . « My | x . bd ° A * > : e. ° 7 > J : ° e ° . bd ‘ H ° ° . a . i p . ° . ' ® ° -a7 2 a 2 . ‘ : & i * a ac” . . \ . ig ° ~~ es 2 ® . . * ». +. " . . . e . : . , €. . . / psig . ’ ics a ee” < ° , . . . e . . * . » es o a | ma the SupremeC Carnet of the ‘United. “States 7 - - Ocronen ‘Tunic, 1968 No. 600 ? ARCHITECTURAL Movais, wi a California ——s ot | ’ Petitioner, . Me i Mites: _ Nuays.C. Nexkiason ‘and DonaLp Nussaum Ca _ doing dnsiness as’ Scats MopELs Ustam- ce “Respondents. Brief in Opposition.to ” Petition for Writ of Certiorari 8 INTRODUCTION. ) Respondents et submit that the Petition should. es _ be denied for the following reasons : poses - 1: The Petition omits facts swhich are *cistibiad to fon- , sideration of the questions presented. Therefore, the Peti- tion does’ not comply with Rule 23°(1) (nhs of the | Rules of 3 this Court. 3 .: Q- No conflict of authorities is asserted except for an ~ alleged (but nonexistent) conflict between the Patent Office on the one hand and the lower courts on the other hand as" to the interpretation of a statute (35 USC 112, last para- o etd graph). No authority and no reason are given why. the clear’ ‘and unambiguous ae of this statute means anything - else than it says.. _ 3.. No important question of law is 2 ae ; no Teason’ _ is given for departure from the “fwo-court rule” of Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 US 271, "274, 275 (1949) ; and no reason is given for departure from ” the rule of file wrapper estoppel as’stated in Exhibit Supply — Co. v. Ace Patents Corporation, 315 US 126, 135, 136 (1942). - These reasons are elaborated ‘below. An appropriate’. introduction is the following paragraph from the opinion — of the Court of Appeals.in this case which appears in the Petition at A 30' and which is reported at 158 USPQ 583. “In view of the care with which the trial court ap- proached the problem and tried the case, the oral | testimony which was taken as to the entire contro- versy, the credibility of the witnesses and-thé weight to be given to their testimony, which were entirely for . decision by the trial court; and in further view of the ~ _ fact that the patent. was a combination patent in a crowded field, we cannot say that the trial oo was clearly wrong.” ° DISCUSSION hk The Petition Omits Facts Material to Consideration of the As to Claims 4 and 5, the question, setsieeed is whether the language “adapted to support a reverse print” limits these claims to apparatus which requires and uses a reverse print. Petitioner’s apparatus requires and uses a reverse 1. Reference to Appendix to the Petition is given by the letter . A followed by the page. Reference to the Reporter’s Transcript, _ Vols. 2-6 of the record here, | is given by the letter Tr. followed a the page. ©: a” -pendix hereto. This relevant fact—omitted from the estoppel and the authoriti¢s relied upon in the print; Respondents’ soparstan does o< won and does not use a reversesprint. ‘The Petition omits mention of the ms that. this leagungs (more particularly, the reference’ to “reverse print”) was inserted by amendment in response to. arid to overcome a rejection by the Patent Office. See Finding of Fact. No. 10 at A 18, 264 F. Supp. at 318, 319. The importance of a reverse print was ra th® Patent Office; see Ap/” tion—brings into the play, doctrine of file (See this Brief, pages 6 and Timfra). . — ed The Petition also omits mention of the fact that Respond- ents’ apparatus, because it employs a light table and there- fore dispenses with the need for a reverse print, provides advantages. These advantages are referred to in the opin- . ion of the District Court-in Finding No. 10 at A 18, 264 F. Supp..at 319. These advantages were the subject of testi- | mony at the trial. Tr. 683-687. As to Claim 11 the question presented is whethee the | _ rack and pinion adjustment of Respondents’ machine is the equivalent of the screw-in adjustment ‘of Applicant's ma- chine.and of Claim 11.: _ The Petition omits mention of the fact that Respondents’ device has advantages over Petitioner’s device; and that there was testimony and a demonstration at the trial of . of the differences between the two machines, of the advantages _ of Respondent’s machine, ‘and of the disadvantages of — Petitioner’s machine. Tr. 704-711 ; 170-171; 174-177; 423- 424; 177-178. The Petition also omits mention of the holdings by both’ lower courts that the prior art is close. See opinion of Dis- trict Court at A 13, 264 F. Supp. at 316; opinion of Court of Appeals RAS, 158 ae , o *, | \__ As to Claim 14, the question presented is whether its “means” clause is entitled to a broad literal interpretation (according to which there would be infringement) or re- quires a narfow interpretation under 35 USC 112, last paragraph (according to which there is no infringement). The Petition omits mention of the fact that Claim 4 was an afterthought which was introduced into the patent ap- plication only aft& Petitioner had demanded and received access to Respondents machine and had inspected it. Def’s. Exhibit 2, pages 45-47 ; 28-29; Tr. 611-612. ' As to both Claims 11 and 14, the Petition leans heavily on Graver v. Linde, 339 US 605 (1950)? and quotes at length from that case at pages 14 to 16. However, the quotation 4n the Petition. stops one sentence short and is limited to that aspect of the doctrine of equivalents. which favors Petitioner’s side of the case -and entitles a ‘patentee to a broad, non-literal interpretation of his claim. But the next ‘sentence of. Graver II, following case citations, presents the other side of the coin. This side of the coin was relied upon by the courts below. The applicable sentence (which was omitted from the Petition) reads as follows: * “The wholesome realism of this doctrine is not al- . ways applied in favor of a patentee but is sometimes ‘used against him. Thus, where a device is so far changed in principle from a patented article that it ‘ performs the same or a similar function in a substan- tially different way, but nevertheless falls within the literal words of the claim, the doctrine of equivalents may be used to restrict the claim und defeat the pat- 2.* This is the second Graver case (Graver II) which dealt with _ the issue of infringement. The earlier Graver case (Graver I), | which is discussed below in connection with the two court rule, dealt with validity. The parties and the patent were the same in ‘ Graver I and Graver IT. . — ee ne | dithe, Po entee’s action for infringement. Westinghouse v. Boy- den Powet Brake Co., 170 U.S. 537, 568, 18 S.Ct. 707, 722, 42 L.Ed. 1136.” _ It is, therefore, clear that many facts were adduced at the trial which influenced the decision of the District Court _— in favor of Respondents and which influenced the Court of Appeals in its per curiam affirmance of the decision of - the District Court. Clearly this is a case decided upon . particular facts developed at a trial and falls clearly within ; the two-court rule of Graver I. See page 6, infra. ll. No Conflict of Authorities Is Asserted Except for an Alleged | (but Nonexistent) Conflict Between the Patent Office on the One Hand and the Lower Cou:ts in the Present Case on the Other Hand as to the Interpretation of a Statute (35 USC . 112, Last Paragraph) . ae \ The only asserted conflict is a supposed conflict betweea the Patent Office interpretation of the claims, or some of ther, and the interpretation placed upon these claims by the courts below. Assuming that the Patent Office did in fact interpret Petitioner’s claims, or some of them,* no authority is cited for the proposition that a Court in an infringement suit is bound by that interpretation. Prosecu- tion of a patent application in the Patent Office is ex parte; a defendant in a subsequent infringement suit is not a party to this proceeding; and at a subsequent trial where a defendant is represented, new facts are usually brought out (and were brought out in this case) which were not 3. Mr. Limbach’s affidavit in support of Petitioner’s’ petition to make special, which is reproduced at A5, merely asserts that “some of the claims in this application are unquestionably infringed by said [Respondents’] device”. No specific claims were identified; therefore we do not know whether the Patent Examiner regarded any of Claims 4,‘5, 11 and 14 as being infringed. KAREN es LORE NTR EEE NPRM EAR AS ll RETIRE IO. ASICS ESTE at NR before the Patent Office. Graver II is ample authority for the proposition that the literal language of a patent claim - providgs only a prima facie basis for determining infringe- a ment or non-infringement and that the particular facts and circumstances developed at a trial may lead to a construc- . - a tion of a claim which is broader or which is narrower than . a literal reading of the claim. In the present case, the facts and circumstances developed at the trial: persuaded both courts below that the claims are entitled‘only to a narrow, non-infringing construction. The present case is clearly one calling for application of the two court rule of Graver I. Ill. No Important Question of Law Is Presented; No Reason Is __ Given for Departure from the Two Court Rule of Graver |; and No Reason Is Given for Departure from the Rule of File Wrapper Estoppel in Exhibit Supply v. Ace Patents | No important question of law is stated in the Petition. All the Petitior says on this point is that the case should fl have been decided differently. _ The “two court rule” is stated i in Graver I at 336 US 275 as follows: on _ “4 eourt-of far such as this Court is, is, "lion than a a court for correction of errors in fact finding, cannot _ undertake to review concurrent findings of fact by o courts below in the absence of a very obvious, and exceptional showing of error. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 64 S.Ct. 593, 88 L.Ed. 721; District of Columbia v. Pace, 320 . U.S. 698, 64 S.Ct. 406, 88 L.Ed. 408; Williams Mfg. * Co. v. United Shoe Machinery Corp., 316 US. 364, 62 * — §.Ct. 1179, 86 L.Ed. 1537; Baker v. Schofield; 243 U. S. rm 37 S.Ct. 333, 334, 61 L.Ed. 626.” That rule is applicable here. Regarding file wrapper estoppel, this Court in Eechibit * Supply Co. v. Ace Patents Corporation, 315 US 126, 136 . . (1942) stated the ‘ila that when a » tateahes ‘itrodnons lan- See guage into his claim to overcome a rejection by the Patent ~*~ Office he may not i ignore that language in subsequent litiga- tion. See also Lockwood v. Langendorf,’324 F.2d 82, 88 ‘(9th Cir., 1963) and Top-Scor Products, Inc. v. The H. C. Fisher Company, 257 F. Supp. 775 (D.C., N.D., Ohio, 1966). No reason is given for departing from that rule in this case. CONCLUSION | a It is apparent that the Petition is without merit bind: : should be denied. Epwanp B. GREGG ? Peis tts for Petitioner Harvey G. LowHurtT Lippincott, Grecc, HEnpricson & Smpnam Of Counsel ah --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0230%3A2. Public record. Not legal advice.