Petition for A Writ of Certiorari — Deere & Co. v. Hesston Corp.

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FILED

- SUPREME, COURTS Us. Ss. _ ce

H- 2 F3

— Zn the

| Supreme Court of the Gnited Miates J

Octosrs Term, 1970

DEERE & COMPANY,

7 : Petitioner,

US,

HESSTON -CORPORATION, HESSTON OF TEXAS,

INCORPORATED, and JOE ED CRAWFORD, d/b/a ;

CRAWFORD EQUIPMENT, COMPANY, —

_ Respondents.

PETITION FOR A WRIT.OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

| FOR THE FIFTH CIRCUIT ~—

.

Ducatp S. McDove@at

THropore R. Scorr

135 South LaSalle Street

. Chicago, Illinois 60603

— Tel.: 346-0338

Attorneys for Petitioner

The Scheffer Press, Inc—ANdover 3-6850

*

TE II nent sstcrssinanlechsetcitna

STINT aaisiinstisinininiessinagssininenn oitiowsiaasinioionn

QUESTIONS PRESENTED CORRE Se at

STATUTORY PROVISION INVOLVED ...ccicsscsscee

STATEMENT OF THE CASE uuiccsiesssssssscpessscessseee .

The Problems Experienced With The Air Elevators

a Employed In Prior Art Cotton Strippers soSeennnennen

Sanderson’s Solution Of The Problems Experie

With Prior Art Air Elevators ......... Sensunasenapithonces olhsin

~ Commercial Sucecess Of The Sanderson Patent sain

*Hesston’s Copying Of The Sanderson Air Elevator

The Prior Art Patents Upon Which The Courts”

Below Held The Sanderson Patent Invalid saunas |

1. The Harazin Patent ...........0.0..... hiorsvsincerssens ee

2. The German Patent eee eee LZ Oe

' T.-The Majority Decision Of The Court Of Ap-

peals Is In Direct Conflict With This Court’s

Decisions Holding That A Valid Patent May

Be Obtained On A Combination Of Individn- -

alty .Old Elements Which In Congress: Pro- |

duce A Synergistic Effect. ............ccccccectessscsseees

II. This Court Should Not Permit Different Panels ©

Of The Same Court Of Appeals To Apply

Different — And Contiicting — a oF

ERE LR ON OY STE TEE 5 ie

CI, siccsictsissncninsninnisnteinisiuicinaai soihaiisinabiibadisiiaidiadeiis

li Pi

| PAGE

he APPENDIX : ) lin

“A Opinion: ‘of the Court of Appeals <aateenaieie nme as

- B_ Judgment of the Court of Appeals seainicababicluinias 9a

C Court of Appeals Order denying. Petition for ,

* PICU | a ccccicsanmsadsiicniniesiiiadbinian Siniotiabicckeshinieukasnaiadiecs - 10a

D Decision“of the District Court : ek Teen Spsoseseen lla

E Sanderson patent No. 3,397,522 (PX 16) . arabe :. 21a

_'F ° Herz patent No. — 719 (DX ene wees 298

G@ = Harazin patent No: 1,885 437, MON IY cccstinscicc Bey |

H German — No, 453,358 (DX 38 and 39)

. : TABLE oF Cases _ a ane

| ‘hia 's Black Rock, Ine. v. Pav ement Salvage Co.:

(1969), 396 U.S. 57 ......... sli sdiasenniidndemetsaaaasmiiie secDy By DB, 24

Blonder-Tongue Laboratories Ine. v. University of Tili-

nots Foundation. a ea I css , 39 Law

TE I eb hedickceentontassinttenaeaaaiasepladlacsmiataameipsas 27.

Graham v. John Deere Co. (1966), 383 U.S. 1... 2, 3, 20, 23, 24°

Gray ‘Company v. Spee-Flo Manufacturing ‘Corpora- 2

tion (1966), 361 F.2d 489 wiiccsccccccssesssesseeseesesseesee weedy 26

Great A. & P. Tea Company v. Supermarket Equip-

ment Corp. (1950), 340 U.S. 147 ........... soaks 2, 3, 23, 24

Hensley Rinkienes: Co. v. Esco Corp. (1967) 383 F. 2d

2

F: 2d SII sissicteiedainotalcaicekalcbatianpaaiaoosatenitonsonines aap Shaina Means 25

Sisko v.. Southern Resin a Fiberglass ikon |

(1967), 373 F.2d | See icciceaiitinienandbiiahininnapa ..20, 21, 23, 26

Smith Industries International v. eascitte Tool Co. |

_ (1968), 396 F.2d 735 ........... Meastiaiaapamandaieaaes Lhe sichs 25, 26 .

ini Lighting, Inc. v. Allied Pecsviont Supply, Inc:. ° -

(1970), 431 F.2d 539 ilshiidnnsninsebdanilageitesealuisiaauisidiainidphibaincel 25, 26

iii |

. PAGE

United States v. Adams (1966), 383 U.S. 39 ....2, 3, 20, 23, 24

Up-Right, Inc. v. Safway Products, Inc. (1966),- 364

sg hag EES a ieee 20, 21, 22, 26

Williams Bit & Tool Co. v. Christensen Diamond Prod-

ucts Co. ( 1968), 399 F.2d 628 ooo... {reeeeseasasesteecs .25, 26

Z ero Manufacturing Co. v. Mississippi Mak Pro. Ass’ n,

° (1966), 358 F.2d 853 POE AR TOR OD stseeeenseeneseneqnenseens 20, 21, 26

In Toe”

OcrToBER TreM, 1970 —

—,

i SUPREME ‘COURT OF THE UNITED STATES

DEERE & COMPANY,’

/ : Petitioner? ?

Vs.

HESSTON CORPORATION, HESSTON OF TEXAS,

INCORPORATED, and JOE -ED CRAWFORD, d/b/a

CRAWFORD re COMPANY,

Respondents.

—_*

— PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

: " the judgment of the United States Court of Appeals for the

Fifth Cireuit in its case. No. 29768.

_ OPINIONS BELOW

The opinion of the Court of Appeals is reported at 169 -

USPQ 132. and reprinted as a A to, this petition

(la, infra).

“The decision of the District Court for the Nort mm Dis- -

trict of Texas, embodied in its findings of fact nd con-

clusions of.law, is reported at 316 F.Supp. 866/ and re-

printed as Appendix D to this petition (1la, infra).

aoa 2—

J URISDICTION

| The judgment of the Court of Appeals, printed as Ap-

pendix B to this petition (9a, infra), was.entered on March

12, 1971, and that Court’s order denying petitioner’s peti-.. |

tion for rehearing en banc, printed as Appendix € to this

petition (10a, infra), was entered on April 13, 1971. “This

Court has jurisdiction under 28 USC %$ 1254(1) .and

2101(c).

Quzstions dalaiiies

This case presents important questions relating to (1)

the standard of patentability to be applied in cases where

the patent in suit covers a‘combination of individually old

elements, and (2) ‘the necessity for uniformity~in, tha de-

cisions of any given Court of Appeals on that subject. Spe-

cifically, the questions presented are:

1. Is the standard of patentability applied in this

case by the majority decision of the Court of Appeals

(which: held that the combination of a jet pump and

air regulating means in the manner shown and claimed

in the patent in suit would have been obvious as a mat-

ter, of law because both the jet pump and the air regu-

lating means were individually old and in the pub-

lic domain, notwithstanding that their combination

2 achieved a truly synergistic result and ‘had not been

— -obvious as a matter of fact to the skilled engineers of

respondent Hesston Corporation or to anyone else in

the materials-separation field in which both the pump .

and regulator, separately, had been used for some 30

years) waryanted by § 103 of the Patent Act (35 USC

§ 103) tod consistent with this Court’s decisions in

the A. €P., Graham, Adams and Black Reck cases? |

_ 2.. Should not this court exercise its supervisory

authority to insure that different panels of the same

nog ey

Court of Appeals do not apply different—and con-

flicting—standards of ‘patentability in judging the

validity of patents which cover combinations -of .indi-

vidually old elements? 7

The answer to both of these questions is, petitioner sub-

mits, self-evident. A standard of patentability which fails

to consider whether a combination of individually old ele-

ments produces a new and unexpected result or achieves.a |

synergistic effect is. not warranted by $103 of the Patent

Act or consistent with this Court’s decisions in the A. &P.,

‘Graham, Adams and Black Rock cases. And elementary con-

‘siderations of justice require that the same standard of

‘patentability be applied by all panels-of any given Court

of Appeals.

STATUTORY PROVISION INVOLVED

The statutory provision involved in this case is § 103 of

the Patent Act (35 USC § 103), which provides:

“A patent may-not be obtained though the invention

is not identically disclosed or described as set forth in

_ section 102 of this title, if the differences between the

subject matter sought to be patented ‘and the prior art

are such that the subject matter as a whole would have

been obvious at the time the invention was made to a

person having ordinary skill in’ the art. to which said

_ subject matter pertains. Patentability shall not be

negatived by the manner in which the invention: was

made.” a: .

STATEMENT OF THE CASE

The patent in this case relates to a cotton harvesting

machine of the type known iri the farm equipment trade as

a “cotton stripper” (as distinguished from a “cotton

_ picker”) because it strips both ripe and green. bolls from

—_ an

the cotton plants, instead of picking only the ripe or mature

cotton fibers.

The claims in ott covered the cotton stripper’ s so-called —

“air elevator”, which employs a jet pump ‘to:

1. Separate the ripe cotton bolls from the heavier green

cotton bolls after they have been stripped from the

-cotton plants. (Such separation ‘is achieved by‘adjust-

ing the flow of the jet pump’s secondary air stream to

a velocity sufficient to raise the lighter ripe bolls out

of the separation zone or chamber, but not sufficient

to lift the heavier green bolls, which are allowed to

fall into a refuse bin known as the “green boll box”.)

2. Deliver the ripe holls to a collection basket or trailer

after they have been separated from the green bolls.

(This delivery function is performed by the jet -

pump’s primary air stream, which picks up the ripe

bolls as, they emerge from the separation chamber

and carries them along on a blast of air, up and out

of the discharge chute to the collection point.)

Petitioner Deere & Company (“Deere”), which manufac-

tures a full line of farm machinery and equipment, includ-

ing cotton strippers, is the owner of the patent in suit

(Sanderson et al. patent No. 3,397,522 (21a, infra), herein-

after referred to as the “Sanderson patent”).

- Of the three respondents, the primary party in interest

is Hesston Corporation (“Hesston”), which manufactures

a variety of farm machinery, including cotton strippers

marketed in competition with Deere; the other parties are .

a wholly-owned subsidiary of Hesston (Hesston of Texas,

Incorporated) and a Levelland, Texas farm equipment

dealer who sells Hesston equipment (Joe Ed Crawford,

doing business as Crawford qelpmant Company).

7

— soe |

The Problems Experienced With The

Air Elevators Employed, In Prior

Art Cotton Strippers _

The evidence at the trial established that cotton strippers

using air elevators had been produced and sold by several

U.S. manufacturers of farm machinery prior to Sander-

son’s development of the air elevator shown and described

in the patent in- suit (108-113 and 316-320).* Such com-

panies included International ‘Harvester, Hesston,’ Case,

Oliver and Deere itself (108).

BNE RL MEN AID) ATE AT MRS ERIE Se SINT STI

Discussing the’ nature of the problem encountered in

using an air elevator to separate green cotton bolls from

ripe bolls, petitioner’s engineer G.. Russell Sutherland testi-

fied (106) : : ;

a

“The problem is to distinguish the specific» weight

of the green boll and the open boll and separate one

from the other. It is not too difficult to do during the

early part of the season when the green boll is liter-

ally green and very wet, and therefore heavy, but after

a frost occurs, well, the green boll dries up and it is

still an immature boll even though it is no longer green

in color, and you still want to separate the immature

boll from the ripe boll”. ra

Ba Bc se NAME IONE DIEZ I AACA 05

* In this petition, references to the printed joint appen-

-dix filed in the Court of Appeals are in the form “( 327)”.

References to exhibits reproduced in the exhibit books pro-

vided for the use of the Court of Appeals, as authorized

.by Rule 30(e) of the Federal Rules of Appellate Procedure,

are in the form “(PX 15)” in the case of exhibits repro-

duced in Plaintiff’s Exhibit Book, and in the form “(DX

29)” in the case of exhibits reproduced in Defendants’ Ex-

hibit Book. References to exhibits not reproduced in the

exhibit books,.whether because of their size or unsuitability

for reproduction, are in the form “( original PX 20)”, All

emphasis in quotations is added unless otherwise indicated.

NENA ETE EE NEES ALO SRG ALERTING Ce RADI RII es Nn BVA is BADR

s

en ee

Sutherland then explained how the so-called “wagon

elevator”, used in many prior-art cotton strippers, had

attempted to solve that problem. In such machines, a belt-

" type elevator carried the mixture of green and ripe cotton

bolls up to a discharge point where the bolls were dumped

across an air. stream delivered by a fan (109-111; original

PX 20). As Sutherland expressed. it (110):

. the attempt was to have the green boll thrown

across the air stream and hit the bang board, which -

was adjustable, and ‘then have it drop out and have

*the air stream carry the mature cotton back into the

| trailer”.

‘The 1 wagon dew ator construction did not do the job, how-

ever. Sutherland observed (111):

“There were two basic problems. One, you are always

compromising the amount of air you put on to get the.

best delivery into the trailer. You want to put a lot

of air in it, and when you did that you blew the green

bolls into the trailer. You did away with the boll

separation you were after.

. “Secondly, the trajectory of the green boll,, the

cotton coming over the upper-end of this boll was not

precise, so you had to compromise in where you ad-

justed the bang board to catch the maximum number of

green bolls.. You were compromising the delivera y and |

the boll separation at the same time”.

Sutherland also told of a second prior-art air elevator

ealled a “station separator” (111-113; original PX 21).

Describing that construction, Sutherland said (111): ’

. it operated on the principle that took the mixture

‘.of the green and ripe cotton from some kind of a de-

_ vice at the bottom of the elevator, conveyed it up and

- dumped it into a vertical air stack which had the dis-

charge of a fan, producing a velocity up the stack

—

—_ 7 —

at this point. At this point the velocity of this air

stream could be regulated either by dampers on this.

fan or by the speed of the fan so that the velocity

was sufficient to carry the mature ‘cotton out the dis-

charge, either into a basket or into a trailer, depending _

on which way discharge was aimed, but the velocity of

— _ .the air stream was regulated so that the green boll

would drop through the air stream and the mature

cotton would be carried off”.

Sutherland testified that the station separator construc-

tion also failed to do the job for which it was designed,

commenting (113): a

“The basic problem, that was encountered with this"

.1s that the discharge velocity of the fan is essentially

_ that which is subjected to the ripe and green bolls so

that velocity has to be the separation velocity late in

the season. When the differential in specific weight

between the mature and green boll is very little, well,

this velocity has to be slowed down in order to get

Separation. This usually leaves you in the position of

having inadequate velocity to deliver into the basket,

so here, again, you had to compromise between delivery

. . capacity and boll separation”.

Sanderson’s Solution Of The Problems Experienced.

With Prior Art Air Elevators

After discussing the disadvantages encountered with the

‘earlier air.elevators used: in commercial cotton stripping

machines, Mr. Sutherland described the construction and

operation of the air elevator in the Sanderson patent, used |

‘in Deere’s Model 282 cotton stripper (113-116; 2la, infra;

original PX 22). He explained how the bléed-in door posi-

tioned on the separation chamber can be adjusted to regu-

late the velocity of the secondary air stream induced by

the jet pump employed in the Sanderson construction to

ee

or ee

achieve precise Separation | of the ripe and green. bolls,

— (114):

- you open or close this to the sala where the ripe

: cotton is carried upward and the ‘green bolls fall out.

You can determine this, if you want to have less ripe

cotton in. the boll box—In other. words, if you want

to increase the velocity to carry more ripe. cotton up, —

you restrict this opening and reduce—or increase the

velocity in the separation chamber conversely if you

are getting too much green bolls in the load”.

The problems and disadvantages encountered with the

earlier air elevators were overcome by the Sanderson air

elevator; as Sutherland explained (114), with the primary

and secondary air streams produced. by Sanderson’s jet

pump, “you can always tune in the velocity you want in the

separation chamber and still have the. delivery velocity

that you want to maintain the capacity”.

Independent and impartial tests coudineted at Oklahoma

State University on November .21, 1967, after a killing

freeze had occurred and at a time when efficient green boll

separation was accordingly difficult to achieve, conclu-

_ sively proved that the difference in green boll separation

achieved by the Sanderson air elevator employed in Deere’s

Model 282 cotton stripper, on the one hand,-and by the

prior-art elevators then being marketed by Hesston and

‘International Harvester, on the‘other hand, was so great

that it amounted to an altogether new and useful result

(PX 12), rather than a mere difference in degree. In those

tests, the Sanderson air elevator sepatated more than 120 -

' _ pounds of green bolls from the cotton harvested by Deere’s

cotton stripper, while the International Harvester air eleva-

tor separated less than ‘10 pounds of green bolls and the

Hesston air elevator failed to separate any (PX 12, p. 38).

—9—

Commercial Success Of The -

' Sanderson Patent |

The dramatic superiority in green boll separation demon-

strated by the Sanderson air elevator in the Oklahoma.

. State University tests (PX 12) insured the commercial

Success of Deere’s Model 282 employing the patented air

elevator (21a, infra; PX 47-18). The composite schedule of

(a) official government figures relating to. cotton stripper

factory shipments for the entire farm machinery industry

and (b) petitioner’s own records relating to shipments of.

- Deere’s cotton strippers provided with the Sanderson air

elevator conclusively demonstrates that: such: success was

achieved promptly and has continued over’ the: years since

Deere began marketing the patented air elevator (PX 19;

116-118). ;

Thus, since 1965, when -Deere’s: Model 282 cotton strip-

pers equipped with the Sanderson air elevator were in-

troduced, petitioner’s annual sales of cotton strippers have

increased substantially in the face of a steady decline ©

in annual sales by the entire industry, with the result that

petitioner’s share of the total U.S. market was; at the time

of the trial, more than double its share of that market in

1965 (PX 19).

Hesston’s Copying Of The

Sanderson Air Elevatog

Hesston’s own sales organization—like the researchers

who conducted the comparative tests at Oklahoma State

University—quickly became aware that the Hesston cotton

stripper provided.with an earlier type of air elevator

(the so-called “wagon elevator” construction, as shown _

in the Hesston brochure received ‘in evidence as PX 5) .

could not be sold in competition with Deere’s Mode] 289

cotton stripper equipped with the Sanderson air elevator

= os

(162-164). Hesston’s engineering department was accord-_ .

ingly ‘requested to design a cotton stripper ‘that would

* provide more efficient green boll separation, so as to make

. the Hesston machine competitive with Deere’s Model. 282

(162-164), Be

" Hesston’ s engineering department first produced and -

‘tested a. new air elevator designed by one of its own engi-

neers, but found that it did not perform satisfactorily and |

discarded it (130-132). Hesston then decided to adopt

an air elevator substantially like the Sanderson air eleva-

tor employed in Deere’s Model ..282 cotton stripper, one

of which had previously been purchased by Hesston for use

in the redesign ‘of its own machine (164-166; PX 3 and

5-15; original PX 1, 2 and 4; 133-157). :

Thus, with Hesston having copied the Sanderson air |

elevator, respondents did not contest petitioner’s charge

. of infringément.of claims 15, 16, 18 and 19 of the Sander-

son patent, but conceded that Hesston’s model 24-A cotton

\ strippers —— those clayns if they were valid (25-26).

: The Prior Art Patents

‘Upon Which The Courts Below.

Held The Sanderson Patent Invalid

‘Long after Hesston’s engineers had copied the Sanderson |

air elevator, Hesston’s attorneys began a search for .prior

patents upon which Hesston might rely to justify its copy-

ing. | . )

Since the Patent Office had consideréd all of the relevant

prior art patents relating to cotton harvesters in its ex-

amination of the application upon -which the Sanderson _

patent issued (DX 25, 27, 29 and 32-37), respondents’.

_ attorneys were driven to look for justification in unre- .

lated fields. Eventually, they turned up a 1927 German -

—ll—.

patent on a machine which used a jet pump to separate

garbage or other waste material into its heavier and

“lighter components ‘(German patent -No. 453,358; 37a,

infra) and a 1932 patent on a device which employed air

to separate coffee or cocoa- beans from stones and other °

denser materials (Herz patent. No. 1,850,719; 29a, infra).

In holding the claims in suit invalid, the District Court

relied on those two patents and the 1932 Harazin patent.

which had been considered by the Patent Office during the

prosecution of the Sanderson application (Harazin patent

No. 1,885,437; 34a, infra). This is what the. evidence estab-

lishes with respect to those patents:

1. The Harazin Patent

The Harazin patent (34a, infra), which was before the

Patent .Office ‘at the time it allowed the Sanderson appli-

cation, discloses a “eotton harvester” designed to be used

as a cotton picker (as distinguished from a cotton strip-

per), in which a jet pump (6) is employed, but only for

the purpose of transporting the cotton fiber to the collec-

tion point. (A cotton picker does not remove green or-im-

mature cotton from the plant; it picks only mature cotton

fibers. Thus, in a cotton picker, the separation of ripe

from green cotton takes place before the.cotton gets to the

air elevator.) Hence, as the District Court expressly found,

the Harazin machine had neither a separating chamber nor

any regulating means for adjusting the volume of secon-

dary air (14a, infra). | |

2. The German Patent ° |

The German patent (37a, infra) discloses the use of

a jet pump (k) ina machine for separating relatively

Pa)

Lee

-

—

—12—

heavy waste materials (such as cinders) from ‘relatively

light waste materials (such as paper). In the German

machine, the waste material to be separated is introduced

into the jet pump’s secondary air stream at a point (c), .

immediately above a spinning paddle (b) which breaks up

-" the garbage. Thereupon, the heavy components fall- into

a collection area (1) at the bottom of the machine. The

light components are carried upward to the jet pump’s

primary air stream, which delivers them to another collec-

tion area (h) at the upper end of the machine. The Ger-

‘man machine also has a louvered opening (e) below the

_ zone in which the separation of the heavier and lighter

materials takes place.

Respondents’ expert, Professor Razak, initially testified

that he believed the machine shown in the German patent

could be operated to separate ripe and green cotton bolls

(259); but he subsequently conceded, ‘on créss-examina-_

tion, that opening or closing the louvers shown on the

German device would have no appreciable effect on the |

volume of the secondary air stream drawn through the « :

separation zone and hence could .not be used to “tune” the

secondary air stream to the proper value for effective boll

separation (306). And petitioner’s expert, Professor

Powers, unequivocally testified that the device shown in

the German patent would not successfully separate green

and - cotton bolls (337).°

. Both experts agreed (303-306, 326-327) ‘that thé volume

of air drawn through the oer pug pipe of a jet pump

is essentially constant, governed by the volume and velocity

. of the primary stream. In consequence, both men testified,

the air stream in the separation zone cannot be regulated

by means of louvers located below that zone, although it.can

be so regulated with sere or — located _— the

‘separation zone.

—'13 — |

Even so, the District Court found that the German patent

-~

“anticipates all of the four claims” in suit of the Sanderso ;

patent (16a, infra) .

The Court of Appeals, : however, clearly indicated that

the District, Court had erred in so finding, for it acknow}-

edged that none of the jet pumps used in prior art air ele-

vators or: materials-separating applications would achieve °

the result attained by: the air- elevator of the Sanderson ©

_ patent—not even a jet pump provided with auxiliary air

inlet means tocated at the point shown in the German pat-

ent. Thus, after ee Harazin and German pat--

t

ents, Judge. Bell’s majorit opinion expressly states :

“Tt will be seen at this point that the prior art teaches

the use of the jet pump to separate and to elevate. .

- This leaves the air regulating means as a method gf a ce

e —

maintaining an upward force sufficient to move t

- light material without interfering with the separation . °

process in the separation chamber” (5a, infra).

; ites pe

3. The Herz Patent ©

The Herz patent (29a, infra) discloses a device. for sepa-

rating coffee or cocoa beans from stones and other foreign

matter. It did not employ a -jet pump; or the contrary,

it operatéd in precisel¥ the-fashion of the so-called “sta-—

tion separator” used in cotton strippers prior to the birth

of the Sanderson invention. ( Compare Mr. Sutherland’s

description of the station separator (111) with Herz’

~ description of his machine (32a, infra, lines 69-85).) The.

Herz-machine used the Sugtion created by a conventional -

exhaust fan both to separste the coffee or cocoa beans and

to lift them to a collection point. It had a pair of open-

ings (18) near the top of the zone in which separation of .

a

Fe

i th

the coffee beans and foreign material occurred, provided

. with adjustable flaps (19) which, on being opened or closed,

would simultaneously vary both the air current used for

separation and the current available to transport the coffee

beans to the collection bin. :

The Herz patent was emphasized by both the District

Court and the majority judges of the Court of Appeals, —

in their decisions holding the Sanderson patent - invalid.

Thus, the District: Court held that the Sanderson air

elevator as defined by the claims in suit could be repro-

duced simply by adding the air inlet means shown in the

Herz patent (a) to the machine shown in the German

patent, immediately above the point at which the pro-

~ ..eessed garbage is introduced (15a-16a, infra), or (b) to

the Harazin cotton picker, above the point at which the .

cotton enters the Harazin air elevator, provided the

Harazin, elevator were additionally modified: by adding a

green boll bin (15a- 18a, infra).

‘In so holding, the District Court did not take into account:

either the synergistic result obtained by Sanderson through

his combination of the jet pump and air regulating means

which were each individually old, or the fact- that their

combination was not suggested anywhere i in- the art and had

not occurred to any of the skilled engineers who struggled

- with the problem of green boll separation before Sander-

‘gon solved it.

The majority judges of the ee of Appeals com-

pounded the District Court’s error when they equated

the air regulating means in the Herz and Sanderson

y patents, stating:

“We can perceive of no substantial difference in the

' use or result obtained from the means of air regu-

lation in Herz and in Deere’s patent”. (5a-6a; infra).

vie Ha,

That conclusion ‘is unsound. The évidence in this rec-

ord proves, beyond any doubt, that the ‘Herz air regu-

lating means does not operate in the. same manner or

. obtain the same result that is achieved by the air regu-

lating means described and claimed in the Sanderson

patent—as will readily appear from. a brief comparison

of the two devices. and review of the expert testimony ©

regarding their operation. : ;

‘The separation job for which Herz designed his ma-

chine was, of course, child’s play compared to the boll ©

separation problem which Sanderson solved. Herz was

separating roasted coffee beans from such materials as

“stones, nails and other foreign materials of a denser

composition”. (31a, infra),-and it is: fortunate for Herz .

that he had such a simple task, for his machine, in- |

herently, was incapable of wide-range control of suc-

tion in the separation chamber. The reason is found in ©

a fundamental scientific property of suction fans pointed

out by Professor Powers in his testimony at the trial—

namely, that-if any additional air passages are’ opened

on the suetion side, this. reduces the total resistance : to

' flow of.air in the fan, and, as a consequence, more air

: will flow on the suction side (327). By virtue of. that

suction-fam characteristic, opening the side-entry doors

on a machine like that of. Herz, will result in a greater

air flow through the riser but, at best, will only ‘slightly

(if at all) reduce the air flowing through the separation

chamber. (327-328). a :

An intrinsically different type of action occurs when, ~ |

. as in the invention of the Sanderson patent, the upward

air flow is induced by a jet pump; and the explanation

involves a scientific principle . which distinguishes the

operation of jet pumps from that of suction fans. As

"oe

"both trial:-experts agreed (303-306, 326-328), the volume

| of air drawn through the secondary pipe of a jet pump

is mainly a function of the speed and volume of pri--

mary air, and hence is essentially constant so long as

the bottom opening of the secondary pipe is unrestricted.

Therefore, if the secondary pipe has an adjustable air

inlet in its side, every unit volume of air that enters the

secondary pipe through that side inlet reduces, by an

approximately equal amount, the quantity of air enter-

ing the secondary pipe at its bottom opening.

In consequence of that distinctive jet-pump char-

acteristic, an adjustable air inlet ,on the separation

chamber of a machine such as Sanderson’s has a vastly

greater effect on the suction in the separation zone than

such an air inlet can exert in a maehine, such as that

of Herz, which utilizes a suction fan, If one has a jet

_ pump providing the suction in a secondary air stream,

one can, as Professor Powers put it, “control . . . the

distribution of that secondary air, ‘where it comes ‘Seies*

(327).

There is no dispute about the:scientific facts which

underlie the points just made; they were attested by

Deere’s expert, Professor Powers (326-328), and con-

firmed by Hesston’s expert, Professor Razak (303-306).

What they mean, as applied to the facts here, is that

Sanderson achieved a ‘real break-through in separation-

zone: suction control when, for the first time, a sepa-

ration zone equipped with adjustable air-inlet means (ad-

" mittedly old, per se) was combined with a jet pump as

a source of suction (also admittedly old, per se). It is

only by utilizing those two mdividually old elements in

combination (a wholly novel concept) that the new result

achieved by the ‘air elevator of the Sanderson patent can

; : ’ .

a J

be attained—to-wit, “the velocity you want in the sepa-

ration chamber,” along with “the delivery velocity that.

you want” (114)... | a ae

That new result truly does ‘exceed the sum of its

parts—ie., it is more than the sum of the individual

functions of the old elements in their prior-art environ-

ments. Thus, the jet pump used alone affords no means

of suction control in the Separation zone except by vari-

ation of such things as fan speed and pipe size, and

‘under those conditions the suction available, for carrying .

the crop upward through the secondary pipe is always

the same suction as that present in the separation zone.

Again, adjustable inlets on the separation zone, in their

Herz prior-art setting, afforded little or no control of

suction jn the separation zone, since opening or closing

them results, primarily, in changing the total flow of air

through the riser above the separation zone rather than -

changing the air flow through the separation zone.

True, the Herz patent states that adjustment of the

Herz dampers or air regulating. means will have the ef-

fect of “reducing the amount of air passing up the boot” .

_ (32a, infra, lines 83-84), but the testimony of: the expert

witnesses called by both Deere’ and Hesston shows that

assertion td be erroneous (303-306, 326-328).*

The view of the majority that there is “no substan-

tial difference in the use or result obtained from the

means of air regulation in Herz and in Deere’s patent”

(da-6a, infra) is, therefore, also shown to be clearly erro-

neous; the expert testimony establishes that there are

substantial differences indeed—namely, that use of the

* An unsworn assertion in a patent obviously can have

no probative value as against the sworn testimony of.

two experts, representing opposing interests.

—18—

a P AY oo ;

- air regulation means employed in the Herz device in-

creases the total flow of air im the riser above the regu-

lating means but has no appreciable effect on the veloc-

ity of the air stream in the separation.chamber, whereas

use of the air regulation means employed by Sanderson

‘reduces the velocity of the air stream in the separation

_ chamber without affecting in. any way the velocity of -

either of the air streams tn the elevator above the regu:

lating means. his ; 7

_ Uncontradicted evidence thus proves that andotanits

combination of a jet pump and air regulating means

positioned on the separation chamber did achieve a truly

' synergistic result, far exceeding the sum of the indi-

vidual functions separately performed by the jet pumps

and air regulating means that had been employed in the

prior art machines. Sanderson’s combination produced

a machine with which optimum boll separation could be

achieved by precision adjustment of the velocity of the

air stream in the separation chamber, without impairing,

or affecting, in the least degree, the velocity of the jet

pump’s primary air stream, relied on to deliver the ripe

bolls. to the collection point after the green bolls have.

been separated out and deposited in the refuse bin.

a

REASONS. FOR GRANTING THE WRIT

I. The Majority Decision Of The Court of Appeals Is In

Direct Conflict With This Court’s Decisions Holding

That A Valid Patent May Be Obtained On A Com.

bination Of Individually Old Elements Which In

Congress Produce A Synergistic Effect. :

The legal theory underlying the majority. decision

‘holding the patent in suit invalid is clearly set forth in

the following excerpt from the majority opinion filed

March 12, 1971: :

“Thus it appears that the jet principle was old

in a similar field of endeavor as was the air regu-,

lating means. Both the - jet principle. and the air

regulating means principle are in the public do-

main. Thé combination of these known elements

' produced a useful function but the district court did

not err in concluding as a matter of law on the fact

* a

presented that the combination would have been ob- —

vious to those skilled in the art. It is clear that the -

claims in suit did not constitute an invention by the

: obvious-nonobvious Standard. - aaa

“Tt is a. peculiarity of patent law that it avails

Deere nothing to point out that the combination was

not obvious to defendant's. engmeers who gave up

and copied Deere’s machine. The patent -monoply

may not be extended to remove existent and avail-

able knowledge from the public domain” (6a, infra).

As Judge Jones pointedly observes in his dissenting -

opinion, the net result is that “The patent whieh is the

subject of this appeal has béen hindsighted by the ma-

jority into invalidity” (6a, infra)—despite the-fact that the

device covered by its claims was a “unique and useful .

. discovery which had . . . long eluded the searches of the

experts” (8a, infra). — ;

—20-

Implicit in the majority decision is a standard of

patentability that cannot be met by any invention which

comprises a combination of individually old elements, re-

gardless of the result their combination achieves. Sim-

ply stated, the majority judges of the Court of Appeals

‘held that, because both the jet pump and air regulating

means were in the public domain, their combination

would have been obvious as a matter of law, despite’ the

uncontradicted proof that. the combination (a) was not

obvious as a matter of fact and (b) achieved a true

— result.

A survey -of the patent ae of the Court of Ap-

peals for the Fifth Circuit since this Court’s decisions in

_Graham v. John Deere Co. (1966), 383 U.S. 1, and. United

States v. Adams (1966), 383 U.S. 39, indicates that the |

standard of invention applied by the majority judges

in this case, or a closely comparable standard, has been

applied in three other cases (Zero Manufacturing. Co. v.

Mississippi Milk Pro. Ass’n. (1966), 358 F.2d 853; Up-

Right, Inc. v. Safway Products,” Inc. (1966), 364 F.2d

580; and. Sisko v. Southern Resin & Biberglase Corpo-

ration (1967), 373 F.2d 866).

. The decision in the. first of eae three cases was writ-

ten by District Judge Dawkins, sitting by designation as

a member of the Court of Appeals. The basis on which

the patent there in suit was held invalid was summed = ©

up by Judge, Dawkins when he said:

“What moves us, in the last unlosié, 1s that ap-

pellant’s device has added nothing to the sum of

knowledge in the industry which is so new and use-

ful as to entitle it to a monopoly upon that item. It

‘consists of nothing more than-a combination of ideas

drawn from the existing fund of public knowledge.

a

oe

As was said in Graham, the claims in issue ‘must

fall as not meeting the test of § 103, since the dif-

ferences between. them and the pertinent prior art —

would have been obvious to a person reasonably

skilled in that art’. 86 S.Ct. at 703.~ That appellant

was the first skilled in the art who actually produced

a refrigerated vacuum bulk milk tank apparatus does

not amount to patentable invention under our: law”

(Zero Manufacturing Co. v. Mississippi Milk . Pro.

Ass’n. (1966), 358 F.2d 853, 859)... ,

The opinions of the. Court of Appeals in both of the

other cases were, like the opinion of that Court in this —

case, written by Judge Bell (Up-Right, Inc. v. Safway

Products, Inc. (1966), 364 F.2d 580; Sisko v. Southern

Resin & Fiberglass Corporation (1967), 373 F.2d $66).

In one of those cases, moreover—again as in the ease at

bar—there was a vigorous dissenting opinion (Up-Right,

Inc. v. Safway Products, Inc. (1966), 364 F.2d 080, 584-

_ 086). | ae :

Judge Bell’s opinion in the Up-Right~case makes it

clear that the majority decision there was based, in

large part, on the fact that the structure. covered by

the claims of the patent in suit could be produced by

combining two prior art references (just as the device

covered by the claims of the patent in suit in this case

can be produced by combining the jet pump Shown in the |

Harazin. prior art patent and the air regulating means

employed in the Herz patent).. Thus, Judge Bell’s opin- .

ion states: _ ; 7 aoe ;

“The structure of the patent in suit would be ob-

vious from an overlay of a sketch of \the Boewg

scaffold or the Southern California wind, tunnelling

scaffold on a sketch of the structure of \the Ceder-

quist patent ... .

—

“We are under the pres ie impression that this

prior. art, when considered together, would furnish

a sufficient basis for a person skilled in the scaffold- .

ing art to achieve the desired result of a. portable

and foldable scaffold with interior stairway for sup-

port and safety which might be constructed in a>

manner so as to stack one upon another to achieve.

any desired -height.. This result is.the structure of

the claims .in suit. Therefore, it follows that the

— District Court was not in error m holding them. in-

valid. The subject matter .of these claims did not

rise to the level:of an invention within the meaning

of the patent laws for want of ‘nonobviousness’ over

the prior’ art” (Up-Right, Inc. v. Safway Products,

'. Inc. (1966), 364 F.2d 580, 583- so

| Senior Judge Marvin Jones of the United States Court

of Claims, sitting as a member of the Court of Appeals

in the Up-Right. case, dissented from the majority deci-

sion, stating :

“J ‘feel strongly that the patent in suit passes the

. test of nonobviousness, formulated by the Patent

> Act of 1952, 35 U.S.C. § 103 (1964), and construed

by. the Supreme Court in Graham v. John Deere Co.;

383 U.S. 1, 86-S.Ct. 684, 15> L.Ed.2d 545 (1966).

The majorit y of this court, and ‘the court below, al-

though professing to be guided by the factual in-

quiries specified in Graham, in my judgment misap-

ply these tests and thereby — an erroneous legal

conclusion.

: a = € : ;

“The test is obviousness. to a skilled mechanic: in the |

field. In Graham, the Supreme Court twice empha-

sizes that the standard of patentability has not —

changed. 383 U.S. at 17 and 19, 86 St.Ct. 684.. The

test has simply been clarified: If what the claims in ©

issue did’ was obvious, then the majority decision

this Court has measurably changed the possi 4

which in the light of Graham it . not . to do” \.

- (364 F.2d 584-585). 7: .

7

cer

The standard of patentability applied in tHe afore-

mentioned decisions of the Court. of Appeals over the

objection of ‘the dissenting judges (and also applied in °°

Sisko v. Southern Resin & Fiberglass Corporation ( 1967),

373: F.2d 866) is not the same as—but much more strin-

gent than—the standard of patentability enunciated by

this Court in its decisions in ‘the A. &P.,‘Graham, Adams

and Black Rock cases. ~ 2

Thus, in Anderson’s-Black Rock v. Pavement Salvage

Co, (1969), 396 U.S. 57, this Court made it clear that

“A combination of elements may result in an effect greater

than the sum of the several effects taken separately,” in

which event the combination would be patentable, although

pointing ont that “No such synergistic result is argued

here” (396 U.S. 61). -

While the term-“synergistic” was apparently first used

in that context by this Court in the Black Rock case, the

standard of patentability inherent in that term had previ-

ously been articulated in A. &P.-Tea Co. v. Supermarket

Equip. Corp. (1950), 340 U.S. 147, where Justice Jackson

ae mea tae a

“The conjunction or concert of known elements: must

contribute something; only when the whole In some

way exceeds the sum of its parts is the accumulation

of old devices patentable” (340 U.S. 152). )

That same standard of patentability was reiterated in

Graham'v. John Deere Co. (1966), 383 U.S. 1, and a com-.

bination \of individually. old elements which achieved a

new and junexpected result (i:e., a synergistic effect) was

held patentable by this Court in United States v. Adams

(1966), 383 U.S. 39. 5 : ; me

- In short, the Court of Appeals has. failed to heed—and

refused to follow—this Court’s decisions in the A. &P.,

‘Graham, Adams and Black Rock cases. This Court should,

a ae

_ therefore, exercise its certiorari jurisdiction to eliminate

. the conflict between the decisions of the Court of Appeals

and the controlling decisions of this Court regarding the

standard of patentability to be applied in cases where

the patent in suit covers a combination of individually old.

elements which produce a sy nergistle result. ‘

II. This Court Should Not Permit Different Panels’ Of

The Same Court Of Appeals To Apply Different—

And Conflicting—Standards Of Patentability.

’ The decision of the majority judges of the Court of

Appeals in this case not only fails to follow. the control-

ling decisions of this Court in the A. €P., Graham, Adams

and Black Rock cases, but is’also in conflict .with recent

decisions handed down by other panels. of the Court of _

Appeals for the Fifth ‘Circuit subsequent to this Court’s

decisions. in the Graham and Adams, cases,

Thus, in Gray Company v. Spee-Flo Manufacturing ©

Corporation (1966), 361 F.2d 489, the Court of Appeals

' for the Fifth Circuit, in an opinion written by Chief Judge

Tuttle, held that the patent there in suit was not invalid

as obvious, despite the fact “that ‘the use ofa pre-orifice

in approximately the same position as shown by the patent .

in suit, in itself, is not new”, pointing out that the “con-

tribution of the invention -was ascertainment and recogni-

tion. of the fact that if the pre-orifice is reducéd in size:

. to approximately the same as the spray orifice, the im-

__ provement in the spray pattern is weoersa al (361°

F.2d 491).

- Patents whose validity had been-attacked on the ground

of obviousness were also held valid by other ‘panels of

‘-. the Court of Appeals for the Fifth Circuit in Hensley .

Pn,

> ae

ments, is obvious as a matter of law and, hence, un

. ¥ om

J

. —25—.

Equipment Co. v. Esco€orp. (1967), 383 F.2d 252, Smith

Industries International v. Hughes Tool Co. (1968), 396

F.2d 735, William Bit. &-Tool Go. v. Christensen Diamond

Products Co. (1968), 399 F.2d 628, and Sterner Lighting,

Inc. v. Allied Electrical Supply, Inc. (1970), 431 F.2d 539.*

. Perhaps the best statement of the standard of patent- |

ability applied in the latter group of cases—and the stan-

dard that should be applied in all cases involving patents ©

whose. claims ‘cover a ‘combination ‘of individually old ele--

ments—is found in the recent decision of the Court of

Appeals in Sterner Lighting, Inc. v. Allied Electrical

Supply, Inc. (1970), 431 F.2d 539; where Judge Thorn-

berry ‘said: — * rE | | |

“Obviousness is a difficult, elusive standard to apply.

The Supreme Court has recently dealt with the con- —

cept in several opinions. In one such case, United -

States v. Adams, 1965, 383 U.S. 39, 86 S.Ct. 708, 15

L.Ed.2d 572, the Court considered a patent on a spe-

cial kind of battery. The patent specifically described. -

the components and their relation to each other. The

components were all known, but the combination was

a. specific solution to technical problems that required

the exercise of some skill “because the components

had to be chosen so that they worked together.. The

Court therefore held the patent valid. By contrast,

~in Anderson’s-Black Rock, Ind. v. Pavement Salvage.

Co., 1969, 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258,

"In Metal Arts Company v. Fuller Company (1968), 389 |

F.2d 319, the Court of Appeals, in an opinion written by

Judge Bell, sustained the validity of still another combi-

nation patent, pointing o. “at the rior art device “could

not have been used, with «¢ modification, to accomplish

the ends” achieved by the pacented device (389 F.2d 323)—

an explanation consistent with Judge Be'’’s apparent view .

that a combination which ean be duplica'-d by an assembly -

of old elements, without modification of any of oe ele- .

tent- .

able. :

—6— |

the Court held a patent on a device to lay asphalt

pavement invalid. The device was the first successful

machine of its kind. But it was merely a combination

of known elements that produced no synergistic result,

te which the patentee had contributed no novel ar-

rangement. His patent was invalid because it required

him to do nothing but adopt known components, and

it was not saved by the fact that no one had ever so

used them before. ‘See also Graham v: John Deere &_.

Co., supra;.eg. Beckman Instruments, Ine. v. Chem-

tronics, Inc., supra. Our question on this appeal is

“whether the Sterner patent is closer to. the Adams

or to the Anderson’s-Black Rock - situation, and it

appears from the decisions ‘that. the key. to this ques-

_ tion.is whether the patentee has solved ‘nontrivial

technical problems by purposefully. manipulating vari-

ables so as to elicit a synergistic result from his

materials” (431 F.2d 541- 542). .

Applyi ing that test, the Court held that the patent involved

in that case was “not invalid for obviousness” even though: '

“the relevanf. art is. not highly _ sophistic ated” and the

“invention itself is not very sweeping or — eo” (451

«F.2d 542). ie .

There can be fo doubt. that re standard of patent-

ability applied inf this case by Judges Bell and Simpson,

with Judge Jones dissenting. (and by other panels of the

same Court of Appeals in the Zero Manufacturing, Up-.

s

Right and Sisko cases), is not the same standard of patent- —

ability that was applied in the Sterner Lighting case by

Judges Gewin and Thornberry, with: Chief Judge Brown

_ dissenting (and by the particular panels of the Court of

Appeals which heard and decided ‘the Spee-Flo,. Hensley,

—— and Williams Bit. cases).

At the ‘present | time, therefore, lawyers. cannot advise

' their’clients what standard of patentability may be . applied .

by the Court of. Appeals for. the Fifth Circuit ixi-vases

| —27—

where the wateat in suit covers a combination of individu-

ally old elements which, in congress, produce a synergistic

effect. a .. he i

This oe should exercise its supervisory authority to.

end that situation, and insure that all panels of the Court

of Appeals for the Fifth Circuit apply the same standard

of patentability in | such. cases.

Conclusion

This Court’s recent decision in Blonder- Posie. Labora-

tories Inc. v. University of Illinois. Foundation, ...... US.

lasek , 39 Law Week 4506, eliminatés—for all practical pur-

| piece possibility that two Courts of Appeals will here-

after'reach differemt-¢ onclusions regarding the hun of

the same patent. .

With that traditional avenue of certiorari effectively

‘closed, this Court should now take a more liberal attitude

toward petitions for certiorari in cases where a Court of

Appeals has handed down a decision which fails to heed the

- controlling decisions of this Court or is in conflict with

other decisions handed down by hess tales panels of the

same Court of Appeals.

The petition for certiorari in this’ case should accord-

ingly be granted, and the decision of the Court i Appeals

reversed,

_ Respectfully submitted, ie.

. Ducarp 8. McDoveaun

Turopore R. Scorr

135. South LaSalle Street

Chicago, Tllinois 60603

Attorneys for Petitioner

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—la—

APPENDIX A

Opinion of the Court of Appeals

) IN THE © | |

UNITED STATES COURT OF APPEALS

| For tae Fiera Circurr -

- No. 29768

Derre & Company

Plaintiff-A ppellant,

versus

Hesston Corporation, HEsston oF

Texas, Inc., Er Ax, ie

: _Defendants-A ppellees. -

Appeal from the United States District Court for the

. Northern District of Texas -

(March 12, 1971 )

Before Jonzs, Bet, and Stmpsoy,’ Circuit Judges.

- Betz, Cirenit Judge: This appeal: arises out of liti-

gation over a patent. Deere & Company brought an

action - against defendants charging infringement of

Claims 15, 16, 18 and 19 of its patent, (U.S. Letters

Patent No. 3,397,522 entitled “Cotton Harvester”). By

way of a counterclaim defendants sought: a declaratory

judgment that- the claims in suit were invalid. Infringe-

ment was subsequently admitted by defendants, thus

leaving only the validity issue for trial. The district

court concluded that the claims were invalid and-we af-:

firm. : ras

/ — 2a —

.The device of the patent is the air elevator - portion

of a cotton stripper wherein ripe and green cotton bolls ©

previously stripped from the cotton stalk are to be sep-

-arated. The essence of the invention is to eliminate

the green bolls in a separation-chamber while advanc-

ing the ripe bolls through an air elevator to a collection

point.. The ripe bolls are drawn from the separation

chamber by an air system through a blower duct extend-

ing vertically in an upward direction from the chamber.

The problem in. the industry had been the inability

to separate the green and ripe ‘bolls once the green

bolls began to dry out during the latter part of the sea-

son. The practice in the industry was to. discharge the

ripe bolls through the vertical air duct by, producing an.

_. air velocity through the use of a fan. In‘so doing the

lighter green bolls were carried through the’ duct to the

collection point along with the ripe bolls. This could be

avoided by reducing the air velocity but.this resulted in

‘a velocity which was inadequate to. carry the ripe bolls

upward through the duct.

Under Deere’s patent, a jet pump - was “gulbltated

- for the fan thus creating a primary and secondary. air

stream. The secondary air stream created a_ suction,

thereby pulling the bolls upward through the duct to-

be moved to the collection point.in combination with

*. the primary air stream. In order to solve the problem

of moving only the ripe bolls, Deere employed a means ~

‘of regulating | ‘the velocity of the secondary‘ air stream . °

which was induced by the jet pump. It. is a part of

. the Ded¢re invention to use an air regulating means in

the.form of an opening above the separation’ chamber

to control the intensity of the secondary stream so as

to maintain differing velocities between the air in the '

separation chamber and in the duct above the opening.

This air regulating means or opening is in the form of

a window on the vertical duct and above the separation

chamber. The velocity = the airstream as between _

— on

separation chamber and the duct is regulated by the

degree to which the window is, opened.

The evidence demonstrated that the result of the Deere

device was such that in a test it separated more than

120 pounds of green bolls from the stripped’ bolls - while

the nearest competitor separated less than 10 pounds

.of green bolls. The Deere harvester, employing the

patented air elevator, enjoyed’ immediate commercial

success. ‘i

Hesston became aware that its cotton stripper could

not compete with Deere’s stripper as equipped with the

_.new air elevator and its engineering department was

‘requested to design a competitive machine. Their efforts

were finally discarded as unsuccessful and it was decided

to eopy Deere’s air elevator. This fact is not contested

and it is conceded that Hesston’s’ model 24-A eotton

stripper infringes tlie claims in suit if..they are valid.

The district court found that the patent in suit was

a mere combination of. elements found in the prior art;

that certain prior art patents were more pertinent ref-~

erences against the claims in issye than those con-—

--. sidered by the Patent Office; that the lack of invention —

was plain; and that commercial success was not a sub-

stitute for invention. .The prior art patents which the

court deemed’ more pertinent were the Harazin Pat-—

ent No. 1,855,437; Herz Patent No.. 1,850,719, Gerson

Patent No. 453, 358, a. German patent. Of these, only

_ Harazin was called to the attention of the Patent Office.

The court concluded: that the claims in suit would have

been obvious at the time the alleged invention was

made to a person having ordinary skill in the art in

question. in light of these patents.

The approach to be used in determining obviousness

or nonobviousness under the patent statutes, 35 USCA,

ts

—

§ 103, was stated in Graham v. John Deere Co., 1966,

7 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, as follows:

“ . Under § 103, the scope and content of the

prior art are to be determined; differences between

the prior art and the claims at issue are to be as-

certained; .and the level of ordinary skill in the

pertinent art resolved... . .” 383 U.S. at 17.

See also Anderson’s-Black Rock v. Pavement Salvage

Co., 1969, 396 U.S. 57, 90°S.Ct. 305, 24 L.Ed.2d 258; Sisko

v. Southern Resin & FiberGlass Corporation, 5 Cir.,

1967, 373 F.2d 866; Up-right, Inc. v. Safway Products,

- Inc., 5 Cir., 1966, 364 F.2d 580.

We turn then to assaying the pertinent prior art in

an effort to determine the correctness of the conclusion -

of the district court. As will be seen, the pneumatic

elevation of cotton and other material as well as pneu-

matie separation of heavy and light materials was old

in the art. Deere combined a jet pump with an-air regu-

lating means to solve an extant problem in the cotton

harvesting field. It is undisputed that this combination

performed a useful function and achieved wide commer-

-eial success. The question is whether the combination

was “. . . an invention by: the obvious-nonobvious stan-

dard.” Anderson’s-Black Rock v. Pavement Salvage Co.,

supra, 396 U.S. at 62-63.

The Harazin patent, cited to the Patent Office by

plaintiff, teaches the use of a jet pump in an air ele-

vator to convey cotton. The secondary streams of air

*§ 103: ites : : .

- _ “A patent may not be obtained though the inven-

- ‘tion is not identically disclosed or described ds set

forth in section 102 of this title, if the differences

between the subject matter sought to be . patented

and the prior art are such’ that the subject matter

as a whole would have been obvious at the time the

invention was made to @ person having ordinary

skill in the art to which said:subject matter pertains. |

Patentability shall not be negatived by the manner

in which the invention was made.” = |

‘

—5a—

lifts.the cotton out of a chamber and into the primary

air stream which operates, in turn, to blow the cotton

upward through a duct into a collection. point. Harazin ©

did not ‘teach the use of the-secondary stream to ‘sepa-

rate light and heavy materials in conjunction with a

separation .chamber. Harazin did not embrace the

-prime essential in Deere’s patent: a regulating means

for affecting the intensity of the secondary stream in

-connection with the separation chamber. _ oa

Gerson, a German patent, was not cited by the Pat-

ent Office. It covered an invention to separate the dif-

ferent ingredients in processed garbage by -weight. It

employed the jet pump principle for use in the separa-

tion chamber and to elevate the lighter materials

through a duct to a collection point. There is some

indication of an air regulating means in the form of

louvers but no indication of regulating the intensity of

the secondary ar stream as betweeri the force below and :

above the regulating means as in the patent in suit. It |

will be seen at this point that the prior art teaches the

use of the jet pump to. separate and to elevate. This

leaves the air regulating means as a method of main-

taining an upward force sufficient to move the light ma-

terial without interfering with the separation process in

the separation chamber: mag ec

This brings us to the Herz patent. It uses a suction

' fan as distinguished from a jet pump to separate stones

.and the like from coffee and cocoa beans, peanuts,

grains and similar materials and to elevate the lighter

materials. It teaches the use of windows between the

separation chamber and the vertical air duct as air .

regulating means to maintain the velocity of the air

stream above the windows while reducing the velocity

below the windows. The result is different velocities

in the same column of air; ie, as between. the lower

level (the. separation chamber) and the upper level

(the elevator or vertical duct). This is the point where

Deere fails in its effort to sustain the validity of the

claims in suit. We can perceive of no substantial dif-

——

ference in the use or result obtained from the means

of air regulation in Herz and in Deere’s patent. .

-Thus it appears that the jet principle was old in a

similar field of endeavor as was the air regulating ©

means. Both the jet principle and the air regulating

means. principle are in the public domain. The com-

bination df these known elements produced a_ useful

function. bit the district court did not err in concluding

tter of law on the fact presented that the com-

tion would have been obvious to those skilled in —

the art. It is clear that the claims in suit did not consti-

tute an invention by. the obvious-nonobvious standard.

It is a pecularity of patent law. that it avails Deere

nothing tq point out that the -combination was not ob-

vious to defendant’s engineers who gave up and copied

Deere’s machine. The patent monopoly may not be ex-

tended to remove existent and available knowledge from

the public domain. Graham v. John Deere Co., 383 U.S.

‘at 5-6. *

AFFIRMED. |

JONES, Circuit Judge, dissenting: The patent which »

is the subject of this appeal has been hindsighted by

‘the majority into invalidity. We-do not here have a

dormant field where no one was attempting to ‘advance

the art. The need for a device which would do an ef-

ficient job of boll separation had been apparent for a

long time. Hesston and others had sought for years to

effect a mechanism which would: accomplish this pur-

pose. After years of effort, Deere, through the mecha-

“nism covered by the Sanderson patent, achieved the val ,

sired. result.

Although the device is now obvious to the majority,

it eluded for a long time the searches and researches. of

the experts in-the area: of the art. ;The language of the

Supreme Court in the Goodyear- Ray-O-Vac case is perti- |

nent. There it is said:

“Viewed after the. event, the means Kithiony |

adopted seem simple and such as should have been

> >

% :

9

(en

obvious ‘to those who. worked in the field, but this

is not enough to negativé invention. During a pe- ae

riod of half a century, in which the use of flash- 1

light batteries increased enormously, and the manu- | \

facturers of flashlight cells were conscious of the de- \

fects in them, noone devised a method ‘of curing \

~ such defects. Once the method was discovered it | - :

commended itself to the public-as evidenced. by

marked commercial suecess. These factors were en-

. titled to weight in determining whether the improve-

ment amounted to invention and should, in a close

ease, tip the scales in favor of patentability. Ac-

cepting, as we do, the findings below, we hold the

patent valid and infringed.” Goodyear v. Ray-O-

Vac Co., 321 US.. 275, 88 L.Ed. 721, 64 S.Ct. 593.

See also Graham v. John Deere Co.,. 383 US. 1, 15

‘L.Ed.2d 545, 86.S.Ct. 684, |

Pertinent also is the, following language of the Su-

preme Court: * ee

“Many things, and the patent law abounds in il-

lustrations, seem obvious after they have been done,

and, “in the light of the accomplished result,’ it is

often a matter of wonder how they so long ‘eluded >

the search’ of the discoverer and set at defiance

the speculations of inventive genius.” Pearl v.

Ocean Mills, 11. Off. Gaz.-2. Knowledge after the

event is always_easy,-and problems once. solved pre-

sent no difficulties, indeed, may be represented as

never having had any. . . .” Diamond Rubber Co.

v. Consolidated Rubber Tire Co., 220 U.S. 428, 55

L.Ed. 527, 31 S.Ct. 444. ; | |

The principle which ought to furnish the guide to the

decision here is stated by the Fourth Circuit: in this

language: oes e

“Obviousness does: not mean that one skilled in-the ._

art can perceive the solution after it has been found °

and pointed out by someone else ; the test of obvious-

- = a

ness is as of an earlier time, when the search is on.’

Honolulu Oil. Corporation v. Shelby Poultra y Co., mi

Cir. 1969, 293 F.2d 127. :

This Court has said:

In determining whine invention. exists in

a. given device, courts. should guard against over- —

simplification through a hindsight view of the prob-

lem as originally encountered.” Graham v. Jeoffroy,

Sth Cir., 1953; 206 isan 769. :

The patented devine - was dianeenid after years of

fruitless search by experts on behalf of both of the par-

. ties to this appeal and others. Upon its discovery and

_ manufacture it met with marked commercial success.

I am not persuaded that the early patents show any

anticipation of the device of Deere. It seems to me.

unjust and not in. keeping with the spirit or letter of

the patent law to deny protection to the unique and

useful discovery which had so long eluded the searches

of the experts. I dissent.

\

= —9a— .

APPENDIX B

> Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS-

ca For tHe Firry Circuit.

October Term, 1978

No. =

D.C. Docket --GCA- 5-66

| Deere & CoMPany, |

Plaintiff- Appellant,

versus.

Hesston CorporaTion, HEsston oF —

Texas, Ixc., Er At., be

: Me Defendants. Appellees.

Appeal from the United States. District Court for the .

Northern District of Texas

Before Jones, Bett and Simpson, Cireuit Judges.

“JUDGME NT

| °

. This cause came on "to be heard on the transcript of

the record from the United States, District Gourt for the |

Northern District of Texas, and was argued! by counsel;

On Consideration Whereof, It is now here ordered and

_ adjudged by this Court: that the judgment of the -said

District Court in this cause be, andthe same is hereby,

affirmed; —

It is further ee plaintiff-appellant ’ pay to ,

defendants-appellees, the costs. on, appeal to be taxed by.“

the Clerk of this Court. é

JONES, Circuit Judge, dissenting: March 12, 1971

\ gt, Issued As Mandate:. April 21, nigt

se nin Silas

& APPENDIX

; oo “ ‘ ‘ - %

| Court of Appeals

Order ai Petition for Rehearing

. 1N THE :

UNITED STATES COURT OF APPEALS | ~

No. 29768

at °

Derre & Company

, — Plawntiff-Appellant,

versus .

‘Hesston Corporation, Hesston or

‘ Texas, Inc., Er AL., )

| Defendants-Appelles.

o-

Appeal from the United States District Court for the

N orihere. LetCes of ‘Texas

Vv

ON PETITION FOR REHEARING AND. PETITION

FOR. REHEARING EN BANC gente

"Opinion Mar. 12, 1971, 5 Cir, 1911, —— F2d mee

_ (April 13, 1971) .

Before Jones, Bett and Simpson, Circuit Judges. -

Per Curiam: The Petition for Rehearing is Denied

*and no member of this panel nor Judge in regular ac-

tive service on the Court having requested that the

Court: be polled on rehearing en banc, (Rule 35 Federal |

Rules. of Appellate Procedure; Local Fifth Circuit Rule:

12) the Petition for. Rehearing En Banc’ is Denied.

pan | eas

the

APPENDIX D

Decision of the District Court _—

In THE Unitrep Sraves Districr Courr |

For The Northern District of Texas

‘Lubbock . Division

* *

(Caption—C ivik. Action No. ees cal Te

FINDINGS OF FACTS -

| : and ; .

\ . CONCLUSIONS OF LAW

. (Piled Mar 23 1970)

The above-entitled cause having come-on for trial and

the Court having duly considered the evidence, and being

fully advised in the premises, the Court now makes the |

following: :

FINDINGS OF FACT.

1. This is an action charging infringement ~ defen-—

dants of Clainis 15, 16, 18 and 19 of plaintiff’s: A. &.

Patent No. 3,397 522, entitled “Cotton .Harvester, * in

which defendants have filed a counterclaim for a declara-

tory judgment holding that said claims are. invalid.

2. Plaintiff Deere & Company is a Delaware corpora-

tion having its principal place of business at Moline, Illi-

nois; defendant Hesston Corporation is a Kansas corpo-

‘ration having its principal: place of business at Hesston,

Kansas; defendant Hesston of Texas, Ine., is a Texas

corporation having a place of business in Dallas, Texas;

and defendant Joe Ed Crawford.is a resident of Level-

land, Texas, doing business as Crawford - Equipment

Corfipany in that city.

3. Defendants do not contest plaintifi’s scnae that “

Model, 24-A cotton harvesters .of the ‘type marketed by °"

defendant Hesston Corporation prior to Septerhber, 1969 .

~

— 12a —

‘infringe chia 15, 16, 18 and 19 of plaintiff's U. S. Pat-

ent No. 3,397,522; ‘they conceded that if said claims are

valid, said Model 24-A cotton harvesters infringe them.

4. During the prosecution of the application which

_matured into plaintiff’s patent in suit, the following prior

art. patents were’ cited by the Examiner (Def. Exh. 25,

p, 29):

Baldwin - No. 911,802 (Def. Exh. 27)

‘Boone No. 2,406,058 (Def. Exh. 32)

Miller, et al No. 2,673438 (Def. Exh. 33)

“Andrews No. 2,807,925. (Def. Exh. 34)

.Bopf ; _ No. 2,820,989 (Def. Exh. 35)

Sisulak No. 2,833,409 (Def. Exh. 36)

Fowler. _ No. 2.861, 298 (Def. Exh. 37)

5. Claim 15 of said application was initially rejected

under 35 U.S.C. 103 as unpatentable over Andrews No.

2,807,925 (Def. Exh. 34) in view of Baldwin No. 911,802

(Def. Exh. 27). (Def. Exh. 25, p. 28).

- 6. Tite-Patent Office failed to cite Harazin No. 1,885,-

437 (Def. Exh. 29) whereupon plaintiff. called this patent

to the attention of the Patent Office (Def. Exh. 25, p. 42).

7. Claims 15, 16, 18 and 19 here in issue were revised

by plaintiff in its response. to the rejection (Def. Exh. -

25, pp. 39,. 40).

8.. In its argument for the allowance of Claim 15,

plaintiff represented to the Patent Office as follows:

“The air regulating means that is provided in the

present structure ajfd as set forth in.claim 15 is in

the separating chamber and does in effect adjust the

intensity of the secondary stream_in relation to the

mixture. This feature is important for if the air in

the separating chamber is fed entirely from the

exterior, there will be no suction created in the

mixture. * * * It should be noted in the references

cited the air regulating means has been for the _

purpose of adjusting the air in the primary duct

and not in a chamber in which air is. being. drawn

. . 3

' : : .

| — 13a —

by the primary duct. Therefore’ it is believed that

the references cited do not-teach the principle of

claim 15.” (Def. Exh. 25, p.45).. - }

9. The Court finds that the limitation of the claims —

in issue reading: “air reguiating means on the separating

chamber ‘for effecting the, intensity of the secondary .

stream in relation to the mixture” was a feature im-

portant to the allowance of the claims in issue based on

the prior art considered by the Patent Office.

10. The Court finds additionally, that the references

cited by the Patent Office disclose and describe air regu-

lating means for the purpose of adjusting the air in the

primary duct and not in a chamber in which air is being

drawn by. the primary duct. .

_ 11. The Harazin patent No. 1,885,437 (Def. Exh. 29)

illustrates and describes the same arrangement as that

illustrated and as described in the patent in suit ‘and as

set forth by claim 15 in issue with respect to the follow- .

ing parts and limitations: | —- é

a cotton harvester having discharge means. in’

which cotton is discharged in a commingled mixture

of ripe and green. bolls, — en

a chamber in material receiving relation to the

discharge means for receiving the mixture, 3

"a duct structure projecting from the-chamber and

having an intake end offset from the chamber,

a blower having an outlet directed into the in- —

_, take end of the duct directing a primary stream of —

air through the duct,.and eco pute

_communicating, means between the chambér and

duct opening into the duct ‘whereby the primary

stream of air will induce a secondary stream of air -

in the chamber. : | _

12. The Harazin patent No. -1,885,437 (Def. Exh. 29) . ©

also illustrates and: describes the same arrangement as

that illustrated and described in the patent in suit and

as set forth by claims 16, 18 and 19 in issue with respect

to the following limitations: : |

— 14a —

the duct is vertically. disposed,

the chamber is at the base thereof,

the blower outlet is directed upwardly,

the communicating means is an opening between

the chamber and duct above the blower outlet,

the blower outlet’and the opening of the communi-

cating means open into the duct and

are closely adjacent to. one another |

with one being. substantially on the. main axis of -

the duct and -

the other being offset from the axis and adjacont

said outlet, and wherein

the primary stream of air is introduced into the

duet through the blower outlet and

- is directed along the primary axis of the duct and

the opening of .the communicating means | into the —

- duct is offset from the axis.

13. The air elevator for cotton as disclosed and VG

scribed in the Harazin patent No. 1,885,437 (Def. Exh.

29) does not separate the ripe from the green bolls of

' the mixture discharged into the chamber in which secon-

dary air is induced by the primary stream of air, and

does not provide for air regulating means on such

chamber.

14,- Air regulating means for effecting ihe intensity

-of a stream of air used to separate and elevate light .

materials from a commingled mixture had, however, been ~

disclosed and described long prior to the effective date

of plaintiff’s patent, as evidenced by the disclosures and

descriptions of the following prior art patents not one

or considered hy the Patent Office:

Gillette "No, 888,158 (Def. Exh. 26)

Gerson: - No. 453,358 (Def. Exhs. 38, 39).

Hers... No. 1,850,719 (Def. Exh. 28)

issmann No. 2,478,088 (Def. Exh. 30)

Randolph No. 2,205,173 (Def. Exh. 31)

15.’ Herz No. 1,850,719 (Def. Exh. 28), for example,

diseloses apparatus for separating light and heavy ma‘

seis

terials wherein a fan induces the flow of a stream of air

upwardly in a separating chamber, into which chamber

the commingled mixture is discharged, for’ separation

and upward flow of the light -materials, and gravitation

of heavy materials below the discharge means, together

with air regulating means on the separating’ chamber

above the discharge means for effecting the intensity

of the air rising in the separation chamber in relation

to the mixture. |

16. ‘The. German patent, Gerson No. 453,358 (Def.

Exhs. 38, 39), illustrates and describes. essentially the

same components and geometrical relationship of parts

as outlined in Findings 11 and 12 above with respect to

Harazin No. 1,885,437 (Def. Exh. 29), and discloses and

describes additionally the separation of light from heavy

- materials, the elevation by induced air of only the light

materials from the separation chamber into the dis-

charge duct, the. gravitation of the heavy materials from

the separating chamber, and’ Herz Patent No. 1,850,719

shows the use of air regulating means on the separating

chamber for effecting the intensity of the induced sec-

r ondary air in relation to the mixture. (Finding 15

/ " - above). | :

_ 1%. The Herz patent, _No. 1,850,719 (Def. Exh. 28),

fully discloses and describes the way in which the cotton

elevator of Harazin No. 1,885,437 (Def:Exh. 29) may be:

used, without exercise of invention, to separate ripe from

green bolls by .merely providing on the induced air. .

chamber of Harazin .the’ air regulating means on -the

separating chamber of Herz, and the outlet for heavy

, materials ‘as illustrated and described by Herz. - 3

18. To the extent that it may be contended that the

alleged invention as set forth.in claims 15, 16, 18-and_

19 of plaintiff’s patent No. 3,397,522 in suit is riot identi- x

_ cally disclosed, . illustrated or described by the’ German ©

patent, Gerson No. 453,358. (Def. Exhs. 38, 39), the dif-

ferences between the subject matter of said claims ‘and

the German patent are such that the subject matter as a

whole would have been obvious at the time the alleged °

= |

invention was made to a person having .ordinary. skill

in the art to which said subject matter pertains (35

U.S.C. .103), and the Gerson patent No. 453,358 antici-

pates all of the four claims of the Plaintiff’s patent

which are involv ed in this: suit. |

19. By providing, in asiaiiies with Harazin’s air

elevator in patent No. 1,885,437, an air regulating means

on the separating chamber. and the means to discharge

heavy materials as disclosed, illustrated and described

by beth Herz patent No. ‘1,850,719 (Def. Exh. 28) and by

the Gerson patent No. 453, 358 (Def. Exhs. 38, 39), for

the purpose of separating -ripe from. green bolls, the

alleged invention set forth in claims 15, 16, 18 and 19°

in issue would have been obvious (35 US.C. 103).

20. The provision in the air elevator for cotton dis-

closed by Harazin No. 1,885,437 (Def. Exh. 29) of the

air regulating means on the separating chamber and the

means to discharge heavy materials as disclosed, illus-

trated and described by Herz No. 1,850,719 (Def. Exh.

28) for the purpose of separating ripe from green bolls

would have been obvious at the time of the alleged inven-

tion set forth in claims 15, 16, 18 and 19 in issue: (35.

US. C. 103).

21. The provisions on the iene dliamntier of the

air elevator of Gerson No. 453,358 (Def. Exhs. 38, 39)

of the air regulating means on the: separating chamber

as disclosed, illustrated and described by Herz No.

1,850,719. (Def. Exh. 28) would have been obvious at the.

time of the alleged invention set forth in claims 15, 16, ©

.18 and 19 in issue (35: U.S.C. 103).

22. The prior art patents relied - on by defendants

in this action (Finding No. 14 above) and not cited or

considered by the Patent Office, disclosing and describing

air regulating means for effecting the intensity of a

stream of air used to separate and elevate light materials

from a commingled mixture, constitute better and more

pertinent references against claims 15, 16, 18-and 19 of

plaintiff’s U.-S. patent No. 3,397,522 than any of the

Ree

an $76

prior art patents relating to air regulating means for

adjusting air in the primary duct cited and eonsidered

_by the Patent Office during the prosecution. of the appli-

eation for plaintiff's patent.

23. :The German patent, Gerson”. No. 453, 358 (Def.

Exhs. 38, 39), relied on by defendants in this action and

not brought to the attention of or considered by the

Patent Office during: the prosecution of the application

for plaintiff’s patent constitutes a better and more perti-

nent reference against claims 15; 16, 18 and 19 of plain- .

tiff’s U. 8S: patent No. 3,397,522 than Harazin No. 1,885,-

437 (Def. Exh. 29).

24. The Herz patent No. 1,850,719 (Def. Exh. 28)

relied on by the defendants in this action and not cited

or considered by the Patent Office, disclosing, illustrating °

and describing air. regulating-.means on a_ separating

ehamber in which air is induced by a fan for the purpose

of effecting the intensity of the stream..of. air in the

separating chamber in relation to the mixture, with the

light materials separated and elevated by such air, and

with the heavy materials gravitating from the separat-

ing chamber, constitutes a better and more pertinent .

reference against claims 15, 16, 18 and 19 of plaintiff's

U. S. patent No. 3,397,522 than any of the, prior art

patents Telating to air regulating means for adjusting

air in the primary duct cited and considered by the Pat-

ent Office during the prosecution of j= ,*pplication for

plaintiff’s ‘patent. .

25. The German patent, Gerson No. "453, 358 (Def.

Exhs. 38, 39), discloses a machine in which the separa-

tion of materials of different specific, weights (or the

separation of green cotton bolls from ripe bolls) is

-achieved.by the use of a secondary or induced air stream, ‘-

the veloeity of which can be regulated by adjustable

means positioned : on the separating chamber as shown in’ -

Herz patent No. 1,850,719 (Def. Exh. 28), and in which

the desired materials (or ripe cotton bolls) are then

transported to a collecting area by the primary air

t

mary. ic — i ‘

deine whieh induces the secondary air stream in ‘Bia

separating chamber.

Based on the foreoing Findings of Fact, the Court |

now makes the following : » \ s

CONCLUSIONS OF ‘LAW

1. The Court hes jurisdiction .of the parties aiid the

subject’ matter of this. action (Pre- ca as Order, page ae

stipulation 1).

2... Plaintiff is the owner of U. S: patent No. 3,897,522

(Pre-Trial Order, page 4,. stipulation 2).

3. Claims 15, 16, 18 and 19 of plaintiff’s U. S. patent

4 No. 3, 397,522 are invalid. (3g U.S.C. §§ 102 and 103).

Defendants have not coitested plaintiff’s charge of

_ infringement of claims 15, 16, 18 and 19 of. _ plaintiff's

Ms { S. patent No. 3,397,522 by the manufacture, use .or

sale of defendants’ Model 24-A cotton harvesters of the

type marketed: prior to September, 1969; if said claims

were valid, therefore, such Model 24-A cotton harvesters

would infringe them (Pre-Trial ene page 4, stipula-

tion 3). nat ie

5. The ultimate issue under 35 USC. 103 is one. of

law. Great Atlantic & Pacific Tea Co. v. Supermarket

Equip. Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed.

162; -Graham v. John Deere Co., 1966, 383 US. 1, 17, 86

S. Ct. 684, 694, 15 L.Ed. "Od 545, 556; Swofford v. B. &

W., Inc. (5th Cir. 1968), 395 F.2d 362, 368; Kiva Corp. -

v. Baker Oil Tools, Inc., (5th Cir. 1969), 412 F. 2d 546, 552.

6. Any unpatentable machine lacking the levél of in- ;

vention required for , federal patents and representing

too slight an advance to be properly patented belongs

‘to the public and may be followed in every detail at. will

’. by. whoever pleases regardtess of the motives. Sears,

Roebuck & Co. v. Stiffel Co.,-1964, 376°U. S. 225, 11

L.Ed. 2d 661, 84 S.Ct. 784; Compco Corp. v. Day- -Bright

_ elaghting, Inc., 1964, 376 US. 234, 11 L.Ed. 2d 669, 84

S. Ct. 779.

—

7. To establish invalidity. it is not necessary ‘that

ail of the elements of the combinations of the claims in’

issue be found in a single prior art patent; it is sufficient

to show ‘that the evidence, taken as a whole, discloses

' that all of the claimed elements are: found in different

prior art patent. Zero Mfg. Co. v. Mississippi Milk Pro.

_ Ass’n. (Sth Cir. 1966), 358 F.2d 853, 857:: ~ Fairchild v.

Poe (Sth Cit" 1958), 259 F.2d 829, 332.

' 8. Whether or not prior art patents have ever been

reduced to commercial practice or put to use is wholly

~ irrelevant to the question of whether or not such patents

constitute anticipation. Edward Valves, Inc. v. Cameron

| Iron Works, Inc. (5th Cir. 1961), 986 F.2d 933, 939;

National Filters, Inc. v. Research Products Corp. (5th

7 ~ Cir. 1967), 384 F.2d 516, 518.

ae

§. The presumption of patent validity provided by _

35_U. Ss. C. 282 is weakened, if not totally destroyed, when,

as here, the prior art patents relied on by defendants

constitute better and more pertinent references against.

_ the claims in issue than those considered by the Patent

Office, and the ev idence shows that the Patent Office did

not have all such relevant art before it when the patent

in suit was issued. Rosaire v.. Baroid Sales Division (5th -

Cir. 1955), 218 F.2d 72, 75; American Seating Co: v. >

“quunienicl Metals Co. (5th Cir. 1969), .412 F.2d 756,

10. Commercial succéss is not a substitute for inven-

tion, is not sufficient.evidence of invention where lack

of invention is: plain, and does not alone prove non-

' obviousness. Mannia Co. v. Healey (5th Cir. 1965), 341

F.2d 1009, 1015; National Filters, Inc. v. Research Prod-

ucts Corp. (5th Cir. 1967), 384 F.2d o16, 520.

11. Accordingly, judgment will be entered diinidaateae

Plaintiff’s suit and declaring claims 15, 16, 18 and .19

of U.S. Letters Patent No. 3,397,522 invalid. '

The Clerk will furnish a copy hereof. to all attorneys.

Entered this 23rd day of March, 1970.

4s/ Halbert O. Woodward nee

United States District Judge

—_—

In ‘Tae Unrren Sraves -Distirer Court

For The Northern District of Texas

Lubbock Division | 0

(Caption—Civil Action No. CA-5-662) * *

JUDGMENT

(Filed: M

e 1970) ;

On the 16th day of March, 1970, there speared in

open Court the Plaintiff through its’ attorneys and the

Defendants by and through their- attorneys, and each

party announced @eady for trial, and a jury was waived

by each party, and the testimony, exhibits and evidence

were presented to the Court without the intervention

of a jury, and the Coyrt, after hearing and considering

all of the testimony and the evidence, and having further —

examined and considered the pleadings on.file herein and

having heard and considered .the arguments of counsel,

is of the, opinion that judgment should be entered de-

claring claims sll 16, 18 and 19 of United States Patent

No. 3,397,522, Ginvalid, and further providing that the

Plaintiff’s suit for alleged infringement be dismissed;

It ‘is accordingly Ordered and Adjudged that the Plain-

tiff’s suit for alleged infringement of. claims 15, 16, 18 -

and 19 of the United States Letters Patent No. 3,397,522

‘ is hereby ‘dismissed for invalidity, and each of said |

ery 15, 16, 18 and 19 are hereby. declared to be in-

vali

All coats herein are hereby adjudged and taxed as

against the Plaintiff.

The Clerk will furaieh 6 a copy hereof to the attorneys

for each. party.

Entered this the 23rd day of Marchi 1970.

/s/ Halbert O. Woodward

United States District Judge

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APPENDIX E -

Aug. 20,1968 LF. SANDERSON ETAL — - 897,522 ;

COTTON HARVESTER

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_ INVENTORS :

- LL. F, SAYDERSOW

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| _. ATTORIEY | a ‘

Aug. 20, 1968

Filed July €, 1965

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iL. F. SANDERSON ETAL

" COTTON HARVESTER

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ATTORNEY

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Aug. 20,1968 L. F.SANDERSON ETAL —s_- 3,397,522

es COTTON HARVESTER

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3,397,522

COTTON HARVESTER

Leon F. Sanderson ond Richard W. Hook, Des Moines,

and Myron L. McCunn, Dalias Center, Iowa,

te Deere & Company, Moiinz, lll. a corporation

Filed Ji 1965, Ser. No. 469,484

28% ume (CL 56—30)

; ABSTRACT OF THE DISCLOSURE

A material conveying and separating structure for use

On a cotton harvester that includes a chamber that re-

ceives a mixture of ripe ard grecn bolls from a cotton

harvester, a blower duct extending vertically from the

chamber and with a blower directing air through the duct,

and a communication duct that extends between the cham-

ber and blower duct that operates to induce or draw the

ripe bolls from the chamber.

This invention relates to a cotton-harvester and more

particularly relates to the discharge conveying mechanism

for a cotton harveste?.

In a conventional type cotton harvester in which there

is provided a pair of row units on opposite sides of a

United States Patent Office

Patented Aug. 20, 1968

32

upwardly and outwardly to a trailer. The heavier or green

bolls are permitted to gravitate into -the green boll con-

tainer. _ ;

Another object of the invention is to provide an adjust-

of & blec-air inlct in the duct extension above the stream of

commingled ripe and green bolls to thereby regulate the

separation between the ripe and green bolls. :

Other objects and advantages of the invention will be-

come apparent to those skilled in the art as the nature of

the invention is better understood from the following de-

scription and as shown if the accompanying drawings.

FIG. 2 is a side view of a harvester incorporating the

Present discharge conveyances and including a portion of

a tractor.

FIG. 2 is a rear view of the combination tractor and

harvester. : :

FIG. 3 is an enlarged vertical sectional view through

@ portion of the discharge conveying mechanism.

FIG. 4 is a sectional view taken substantially aloug the

line 4—4 of FIG. 3. : ‘3

FIG. 5 is a sectional view similar to FIG. 3 but showing

a slight modification in the form of the invention.

FIG. 6 is 2 view similar to FIG. 2 but showing the modi-

fication of the invention. :

25 A cotton harvester herein to be described is supported -

tractor body that harvests and feeds harvested cotton ’

bolls rearwardly to a discharge mechanism at the rear of

the tractor, it has been conventional to provide an in-

clined elevator that feeds the material upwardly and rear-

wardly to a trailer also being pulled by the tractor. The

directs a primary stream of air along the principal axis of

the duct and towards the discharge spout. In combination

mingled materials and extends therefgom upwardly and

opens into the base of the vertical duct above the blower

discharge and to one side of the discharge. Positioned

beneath the stream of matérials is a green boll, catching

container that opens upwardly into the stream. The high

Pressure of the primary stream of air induces a secondary

stream of air in the duct extension. The induced secondary

stream of air draws the ripe cotton bolls upwardly into

the base of the duct and from thence the bolls are driven

8

30

.. units may be

40

on a main support or tractor 16 having a fore-and-aft ex-

tending body 11 and carried at its rear on rear traction

wheels 12, 13 on opposite ends of a transverse axle struc-

ture-14. The tractor body is supported at its forward end

by front stecrable wheels 15. An operator's station, as in-

dicated by a seat 16 and steering wheel 17, is provided on

the tractor body 11. ;

The harvester is composed of a pair of row units 20, 21

positioned on ofposite sides of the tractor body 11 and

forwardly of the axle structure 14. The harvesting row

of any of many conventional units, In this

respect, U.S. Patent 2,533,510 which issved to M. W.

Roscoe Dec. 12, 1950 shows and describes Orie.of the

more popular types of harvesters now on the market. Gen-

erally the harvester is composed of a forward harvesting

mechanism disposed forwardly of the traction wheels 12,

. 13 that contacts the cotton plants and dislodges the cotton

45

35

6S

70

bolis from the plants. The cotton bolls are then trans-

ferred into a cleaning mechanism on the side of the

harvesting mechanism and dispatched rearwardly to a pair

of elevators 22, 23 extending from lower intake ends

« beneath the axle structure 14 upwardly and rearwardly

to a pair of transversely spaced discharge ends rearwardly

of the traction wheels. “>

A transverse auger structure 25 extends between the

discharge ends of the elevators 22, 23 and includes an

auger housing having a front and overhead closed por-

tion 26 and a rear underlying grille portion 27, the lat-

ter forming with the housing portion 25 a transverse tube

for receiving an auger device 28. The auger device 28 in-

cludes a pair of spiral helical flightings 29, 20 that feeds

material from the discharge ends of the ¢levators 22, 23

to a central impeller portion 31. The impeller 31 is com-

posed of a serics of radial paddles that receives the cot-

ton from the helical fiightings 29, 30 and drives it rear-

wardly through a centrally located rear outlet 32.

Positioned rearwardly of the transverse auger structure

25 and directly in line with the outlet 32 is an upright

cotton conveying mechanism including a vertical duct

structure 35 having at its upper end an elbow 35 for di-

recting material horizontally rearwardly through a dis-

charge spout 37. The duct structure 35 includes upper

and lower junctures 38, 39 at Opposite, ends of a central

upright portion 34 that niay be adjusted so that the clbow

36 and spout 37 may be directed forwardly, rearwardly’,

or to the sides. In many cotton harvesters there is Ppro-

vided a cotton receiving basket in an overhead relation ;

ae 8,397,522

3

to the tractor 19 and conssquently it is desired to have the

duct structure convertible for either this type of cotton

basket or for discharging into a trailer..The portion 34

diverges outwardly in respect to the duct axis from the

. lower juncture 39. Continuing downwardly from the j junc-

ture 39 is a short vertical conveying section 40. The

lower portion 49 may be treated as the bas¢ of the ver-

tical duct structure 35. Provided bencath the base 40 of

the duct structure 35 is a blow¢r 41 having a housing 42

fixed to the waste slightly above and cay of the

—tal rotor or. or fat po 43 that directs a stream of air

through a vertical discharge duct or nozzie 44 terniinat-

ing at an upwardly opening discharge 45. The discharge

duct 44 is axially aligned und is located centrally in re=

spect to the cross scction of the duct structure.35 and is

considerably smaller in cross section. The duct nozzle 44 -

directs the air upwardly substantially on the primary axis

of the Guct structure 35.-The duct porticns 3-4, 40 diverge

above the nozzis opening 45 to accommodate the expand-

ing air stream above the opening.

The base 40 of the duct structure 35 and the blower

housing 42 have common side panels 46, 47 at the entire

lower portion of the conveying mechanism. Extending be-

tween the side panels 46, 47 and continuing downwardly

from the base 40 of the conduit structure 35 is a pair of.

downwardly and forwerdly ‘inclined pancis 48, 49,-The

* panel 48 continues downwardly and forwardly from the -

rear side of the basc 40 to the upper rear cdge of the con-

duit 44. The inclined pane! 49 extends forwardly of the

conduit 44 and has its rear undcr surface forming with

the upper forward edge of the conduit 4-5 an inlet into the

base 40 of the conduit above and to the fgrward side of

the blower outlet 45..A vertical panel 50 extends down-

wardly from the lower edge of the inclined panel 49 to

the overhead portion 25 of the transverse conveyor struc-

ture 25. The panels 49'and 50 fori, theicfore, with ‘the

forward upright pancl of the housing 42 a vertical duct

extension J chamter that opens into the base 40 of the

duct ‘structure 35. The chamber or duct eatension opens

downwardly into and receives the stream of material

being discharged laterally’rearwardly by the paddle mem-

bers 31 through the outiet 32. The extension or chamber

Serves as Coinmunicating mcans and operates to draw .

the ripened cotton boils upwardly through the extension

or chamber into the base 40 of the duct structure. The

chamber or duct extension includes, therefore, a vertical

portion between the pancl 59 and the forward side of

the housing 42 and an upward and rearwardly inclined

portion formed between the panel 49 and the upper and

forward Wall of the duct 44, the latter inclined portion -

Opening as a ripe boll outlet, as previously mentioned,

into the base ‘40 of the duct structure 35 above and to

the side of the outlet 45. A noise muMing member 51 ex-

tends between tie walls 46, 47. above the opening 45 and

tends‘to deviate the movement of air to reduce the hum or

roar -of the air moving through the duct structure 35, A

baffle member 52 is pivoted on the wall 50. It is between

the material outlet 32 and nozzle opening 45. By adjust- |

. ing the baffle 52 the amount: and velocity of air moving

through the duct extension may be regulated. °

A pair of upright brackets £5, 56 is fixed to the respec-

tive sides 46, 47 snd has lower ends depending bencath

the lower edges of the sides. Pivotally mounted on the

lower ends of the bratkets $3, 56 is a green boll catcher

or container 57 composed of a pair of upright sides 58,

59 that lic alongside the brackets $§, $6 and are pivot-

ally connected thereto at their forward upper edges. The

sides 58, 59 are interconnected by a pancl 60 at their

lower edges and rear edges respectively. A cable 61 is

connected to the upper edge of the panel 60 and ‘cx-

tends upwardly over a pulley 62 to a forward or remote

end connected to the seat 16. The container 57 opens for-

wardly. At the forward end of the cuntaincr $7 and ex-

. tending between downward’ extensions 46a, 47a uf the

sides 46, 47 is a panel 63 inclined Po and rear-

wardly. A horizontal parcel 64 extends rearwardly from

the under edge of the outlet 32 to a rear ede spaced for-

; wafdly from the surface of an inclined transversz baile

S member 65 that may be adjusted in an angular slot 66.

As may be readily apparent from viewing FIG. 3, the

opening or green bell outlet defined by, the rear edge of

the pancl 64 and the forward surface of the buMe 65

underlies the stream of lateraily rearwardly directed ma-

ier boits 1 gravitate onto the inclined pancl 63 and

from thence into the green boll catcher 57. The adjust-

abilty of the panel 65 serves to determine the size of

the opening so as to regulate the amount of air mo:ing

15 through the lower. fortion of the duct. Since separation

cf the ripe from the green bol!s may ozcuf in this area

it may be considered as a separating charter.

Positioned beneath the container $7 is 2 drawbar ex-

19 terial being thrown by the paddlzs 31 and permits tse—— L

“tension 68 connected at its forward end to a tractor draw- . .

20 bar 69 mounted on the tractor 10. The rear end of the

drawbear. extension 63 may be connected .to a suitable

trailer. It should also be noted that the cabie 61 may op- -

erate to lift the container $7 without interference with

the drawbar extension 65.

25 - There has thus been described an apparatus that re- _

froma

ceives and conveys cotton bolls Tvéstcr

-~which comprises a transverse auger structure that receives

harvested bolls from a pair of harvesting row ufiits and

moves the bolls inwafdly to a cefitral outlet 32 that opens

30 rearwardly. The auger ‘flights 29, 30 move the material

inwardly to radial paddies 31 that drive the cotton bolls

in a lateral rearward d street into a blower-conveyor. The

conveyor is. composed upright or vertical duct sys-

tem 35 having a base yy for receiving the cotton bolls

335 and further insludes a blower 41 with a veftical discharge

conduit or nozzle 44 beneath the base 40 and centrally

located relative to the cross section of the base 40 and

directs a high velocity stream of air axially ia respect to

the duct structure 35. The duct extension, composed of

40 the panels 49, 50 and the forward panel of the housing

42, is offset to one side of the rozzle 44.and opens down-

wardly into the stream of materials leaving the outlct 32.

The differential in pressure between the primary stream

of air and the surrounding area induces air moventcnt

43 upwardly in the extcnsion and guides the ripe bolls up-

wardly into the duct structure 35 with entrance therein

ata point above the outlet 45 and to one side of the out-

let. The ripe bolls then enter the main stream of air and

are driven through the duct structure 35, the elbow 36,

80 ‘and spout 37. The amount of air bied through the opening.

at the baffle 52 controls.the air velocity beneath the baffle

and thereby regulates the scparation of the ripe and green

bolls. The’ green boll container 57 is disposed beneath the

stream and opens upwardly -to gather the green cotton

*55 bolls and other heavier material gravitating thrcugh the

stream. The container $7 may be emptied by an operator

. on the seat 16 pulling on the cable or rope 61 so as to

raisc the rear end of the container 57 and tilt the container

downwardly so that material is discharged dover the for-

60, ward edge ofthe container. Upon slack being applied in .

‘the line 61, gtavity will return the container 57 to its hor-

izontal or boll-catching position,

In the form of the intention shown in’ FIGS. 5 and 6,

a blower 75 is positioned directly above the transverse

65 housing structure 26 and is supported thercon. The blower

75 includes a blower housing 76 having a vertical dis-

charge conduit or nozzle 77 centrally located relative to

the lower or base cnd of a diverging vertical discharge

duct 78. The duct 78 and blower 75 have common verti-

70 cally extending sides 79. A duct extension ‘is positioned

. rearwardly of the housing 76 and conduit 77 and includes

an upper downwardly and rearwardly inclined transverse

wall 80 and a vertical lower wall 81 extending down-

wardly from the lower end of the inclined wall 80. Both

75 walls 80, 81 are spaced rearwardly of the conduit 77 in

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8,397,522

6 -

Opposiic intention ‘to limit or narrow the invention beyond the

portion that ex- broad concepts set forth in the appended claims.

outlet 32 of the transverse What is claimed is: °

pro- ‘4. A discharge conveying structure for a vehicle-

and mounted cotton harvester, comprising: a cotton recciv-

guides.the stream of material being discharged - ing transverse Ouger structure including a transverse hous-

by the central paddle portion 31 of the transverse con- ing supported on the vehicle and having an outlet; auger

veyor rearwardly. The primary stream of air leaving the means within the housing for driving material to the out-

nozzle 77 induces a secondary stream of air iri the vertical * let and a material impelling portion moving material in

portion of the duct extension, as defined by the rear wall 10 4 lateral stream through the outict; a discharge conveyor

$1 and the rear panel of the housirg 76 and partially by including a discharge duct with an intake’ end, and a

the panel 82. The duct extension opens downwardly into blower having a‘blower discharge located adjacent the

the stream of material for the purpose of sucking or draw- intake end to direct a primary slream.of air through the

ing the ripe cotton bolls upwardly into the secondary duct, the blower discharge being offsct from the outlet;

stream of air. The inclined panel £0 is spaced rearwardly )5 and_a duct extension extending from the transverse hous-—

of the upper discharge edge of the conduit 77 and forms ing outlet to the duct and opening into the duct down-

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front and rear upright sides

extending pivot rods 93, 92. As

from viewing FIG. 6, the container portions

separable along a vertical fore-and-aft extending p

substantially on the fore-and-aft center line of the tractor.

ir of brackets 93, 94 project rearwardly from the rear

of the respective portions $9, 90 and are suitably

as to receive a line or rope 95. The rope has

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the containers will caus: the central or inner Portions of

the container portions 89, 99 fo tilt or to dump the mate-

tial. When it is desired to again place the portions 89, 99

in transverse horizontal*ali nt, tension is applied in

the. rope 95 and the two move into the desired

Position.

Thus in the modified form of the invention there has

been described a material conveying means that includes

a blower 75 supported directly over the transverse auger

“Structure 25 and having a discharge conduit 79. directed

' Upwardly centrally and axially into the duct 78. The duct

* extension is disposed fcarwardly of the condvit 77 ard

Ia both forms of the invention there has thus been

described apparaius that includes a boll catcher or con-

tainer that is pivotally mounied on the conveying struc-

ture to be tilted so that material may be discharged there-

from. In both forms of the invention the container is oper-

ated by a cable that extends to a remote Position, in the

present instance the opcrator’s stfiion dn the tractor, and

. Operates to position the container between the dump ‘and

Material receiving positions. .

While only two forms of the invention have been shown,

it should be recognized that other forms and Variations

. Will occur to those skilled in the art. Therefore while the

preferred forms have been shown and described for the

purpose of clearly and conciscly illustrating the principles

of the invention, it should be understood that there is no =

stream of the blower discharge to thereby induce a sec-

Ondary stream of air through the extension.

2. The invention set forth in claim 1 further charac-

20 terized by a material container supported on the vehicle in

underlying relation to ard in communication with said

, duct extension adjaceat said housing outlet -for gathering

heavy particles gravitating from the stream, ’

3. The invention set forth in claim 1 in which the

23 blower has a vertical discharge conduit axialhy coexten-

sive with the primary axis of the duct and substantially

smaller in cross section than the duct.

4. The invention set forth in claim 3 in which the duct

extension opens into the base of the duct offset to one side

30 of the conduit and above the mouth of the conduit dis-

charge. P .

* &. The invention set forth in claim 1 further charac-

- terized by an adjustatle opening in the duct extension

- above the outlst and between the outlet and intake end

33 of the duct for regulating the effectiveness of the sec- ‘

ondary stream in respect to the materials moving in the

stream of materials.

6. The invention set forth in claim 1 in which the

blower is supported on the vehicle above the transvérse

housing and has a vertical di conduit terminating

in the blower Cischarge; and the duct extension is com-

posed of a lower vertical portion alongside the conduit

_ and an upper portion at least partially above the conduit

and inclined toward and opening into the duct above the

45 dlower discharge.

7. The invention set forth in claim 1 in which the

blower is supported on the vehicle above the transverse

housing and has a vertical discharge conduit terminafing

in the blower discharge; and the duct extension is com-

50 posed of a lower vertical portion rearward and alongside

the conduit and an upper portion at least partially above

the conduit and inclined forwardly toward and opening

into the duct above the blower discharge.

8. The invention set forth in claim 1 in which the duct

$5 is rearwardly offset from the outlet and: the blower is

supported oa the vehicle and has a Vertical discharge

conduit rearwardly of the outlet and terminating in the

blower discharge; and the “duct extension is composed of

a lower vertical rortion alongside the conduit and an

60 upper portion at least Partially above the conduit and in-

clined toward and opening into the duct above the blower

- discharge.

‘9. The invention set forth in claim 2 in which the con-

tainer is pivotally supported on the vehicle to move. be-

tween a tilted position for discharging the material and

&@ non-tilted position for retaining the matcrial.

10. The invention set forth in claim 9 in which the

container is an upwardly opening box-like structure com-

79 Posed of two transversely coextensive complementary -

Parts and ¢ach part is supported on a fore-and-aft ex-

tending pivot whereby the parts may tilt downwardly for

discharging the material. -

11. The invention set forth in claim 9 further char-

5 ecterized by a control element operable from a remote. -

i a

Treceare Connected to the container for elfecting position

12. A cotton harvester adapted to be supported on a

mobile-vehicle having an elongated fore-and-aft extending

body supported on traction wheels spaced from the body,

‘ Comprising: a pair of fore-and-aft extending row units

Supported on the vehicle on opposite sides of the body

' and forward of the traction wheels. and including a pair

of fore-and-aft extending conveycrs dissosed between the’

wheels and body and having a pair of transversely spaced

discharge ends rearwardly-of the traction wheels; a trans-

_ verse auger structure extending betwech the discharge

ends including a trarsverse housing sugport:d on the ve-

hicle rearwardly of the traction wheels and including a

central outlet opeaing rearwardly; auger means within

.-the housing for driving material inwardly from the’ dis-

charge ends to the outiet-and including a central materia!

impelling portion for moving maierial through the out-

let; a discharge conveyor including. a vertical duct; a

blower at the base of the duct having a blower discharge |

+ 8,397,522

ge” an

3 7 ;

separating chamber and duct opening into the duct where--

by the primary stream. of air will- induce a secondaty

stream of air in the chamber for drawing the ripé bells

from the mixture and moving them into the ~— and ‘

air regulating means cn the separating chamber for ef-

festing the intensity of the secondary stream it" relation

- to the mixture.

located for directing air atially upwardly in the duct, the |

blower

wer discharge being vertically offset above the cen-

tral outlet; and a vertical duct extension exteasdiag up-

wardly from said housing adjacent the central outlet to

the base of the duct and opening into the duct beyond the

13. A cotton harvester adapted to be suppotted on a

mobile vehicle having an elongated forc-and-aft extend-

ing body supported on traction wheels spaced from the

body, comprising: a pair of fore-and-2{t extending. row

units supported on the vehicle on Opposite sides of the

ody and forward of the traction wheels and including a

pair of fore-and-aft extending Conveyors disposed be-

tween the wheels and body and having a pair of trans-

versely spaced discharge ends rearwardly of the traction

wheels; @ transverse auger structure extending between

to the cross section of the duct and directing air upwardly

14. A discharge conveying structure for a vehicle-

mounted cotton harvester having a material outict and a

material impelling means for moving material in a stream

through the outlet, the conveying structure. comprising a

discharge conveyor including a vertical duct and a blower

at the base of the duct having a blower discharge located

in respect to the duct for directing air axially upwardly of |

the duct, the blower discharge being offset from the out-

let; a.duct extension extending from the housing adja-

cent the outlet to the duct and opening into the duct ad-

jacent the base; and a container supported on the vehicle’

beneath the outlet so as to underlie the streamaf material

and opening upwardly to receive the heavier material

gravitating from the stream. .

take end of the duct directing a. primary stream of air

through the duct; communicating .means between the

35

Go

16. The invention defined ia claim 13 im’ which the

duct is‘ vertically disposed, the Seperating’thamber is at

the base thereof, the blower outlet is directed upwardly.

and the communizating means is an gpening between the

chamber and yiuct sbove the blower outlet. -

17. The invention defined in claim 15 further charac-

terized by a sound sup- Nr

the duct adjacent to the blower dutlet and in the path of

the primary stream. , oy a

..18. The invention defined in claim 16 in which the

biower outlet and the opcring of the communicating

means open into the duct and are closely adjacent to one

another with one being substantially on the main axis of

the duct and the other being offset from the axis and ad-

jacent said one outict.

19. The invention defined in claim 15 in which the pri- |

mary strcam of air is introduced into the duct through

to the cross section of the duct to direct ai¢ upwardly

along the primary axis of the duct, the blower discharge

being vertically offset above the outlet: a vertical. duct

outlet in a downstream relation thereto whereby air will

move from the outlet throvgh the duct; and an extension

' duct opening into and extending from the conveying ducf

to a material intake end Adjacent the discharge means

whereby air flow may be induced into the extension duct

by air flowing throuzh the main duct to thereby-draw off -

the ripe bolls from the ripe and green -bo'b mixture and

move the ripe bolls into the conveying duct while permit-

ting the green bolls to be deposited in the iner.

23. A discharge conveying and separating mechanism

for use with a cotton harvester with discharse means dis-

charging in a stream a commingled mixture of Tipe and

green cotton dolls comprising: a chamber in communi-

‘cation with the discharge means and having an upper

ripe boll outlet and a lower grecn bol outlet; ang up- -

wardly extending cunveyor duct having-a base in com.

Dressing aneinber disposed within .

»

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3,397,522 s

munication with the .upper outlet; a blower having a | ; References Cited "4

blower discharge in communication with the base of the UNITED STATES PATENTS —

. , duet and for directing air upwardly through the duct and 911,802 2/1909 Baldwin.

to thereby effect an induced air flow through the chamber ~ 9 gy@'nsg 8/1946 Boone $6—33

5 . & >

and upper outlet; and a material confainer beneath and in 5 ~ 9673438 3/1954 Miller et al...-.-.--.- 56—30 ©

communication with the lower outlet for —s piesa "2,807,925 10/1957 §6—12

cotton bolls. 2,820,989 1/1958 . Bopf: ......-..- a--- 56—30X

24. The invention defined in claim ia which the 2,833,409 $/1958 $6—12 X

blower duct is vertical and has at its upper end 2,861,298 11/1958 « 209—137

with a horizontal extension that directs the cotton into a '® 1,885,437 11/1932 302—21

ee | RUSSELL R. KINSEY, Primary Examiner,

&,

’ *

f

: — 29a —

| a APPENDIX F |

March 22,1932. ° Génerz . _—_+'1,850,719

APPARATUS FOR CLEANING COFFEE, COCOA BEANS, ETC —

r Filed Dec. 16, 1929 2 Sheets-Sheet —

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’ March 22, 1932. G. C. HERZ 1,850,719 -

APPARATUS POR CLEANING COPPEE, COCOA BEANS; ETC | * |

Filed Dec. 16, 1929 2 Sheets-Sheet 2

Patented Mas 2, 18 | «1,850,719

| UNITED STATES PATENT OFFICE

GEORGE C. HERS, OF FLUSHING, NEW YORK, ASSIGWOR TO JABEZ BURNS & SONS, INC, 8 - —__

OF NEW YORK, N. Y, A CORPORATION OF NEW YORE

invention relates to apparatus for the beans and separate them from the rapid-

in their whole, cracked, granulated or to control the amounts of air used, in

Ce Seccentdk pattion hg apm ty BA section,

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employing air to Tiser; so that the cleaning or separating op-

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known as stoning roasted coffee, that is & tion enables ai

separation from roasted coffee beans of such ‘stoner boot and the riser. The amount of % —

;

J

a

-

ees Fs — 32a —

permit the rapid and accurate regulation of

the air.

The invention will be described in connec-

tion with the accompanying drawings in

6 which:

Fig. 1 is a vertical section through an air

separator embodyirg the invention;

ig. 2 isan enlarged vertical section

through the adjustable openings for admit-

10 ting air at a poin€ between the boot and the

63

riser ; } :

Fig. 3.is a transverse section taken on the

line 3—3 of Fig. 2; : -

Fig. 4 is a vertical section showing a modi-

fied form of adjustable-air inlet;

Fig. 5 is a vertical section through a <le-

vice adapted for removing chaff or other

light material from granulated coffee, etc.;

and .

Fig. 6 is a similar view showing a modified

‘arrangement for feeding the material to the

apparatus. ;

eferring to Fig..1, the separator com-

prises a boot 1 having a screen bottom 2 for

receiving the goods to be cleaned, a riser 3

substantially higher than the boot, hopper

4, exhaust main 5, adjustable gate 6, air dis-

charge pipe 7, and exhaust fan indicated gen-

erally at Sant operated by pulley 9 and belt

10 driven from any suitable source of power.

‘The goods to be cleaned are fed to the boot

by a pipe or chute 11 having an adjustable

gate 12 to regulate the flow of material to

the boot. An opening 13 is provided in the

bottom of the boot and is normally closed by’

a hinged door 14 by means of which foreign

materis! left in the boot may be dumped into

the wa ‘e pan 15. The adjustable gate 16

in the boot may be positioned to spread the

goods evenly over the hottom-of the hoot.

and produce a uniformly distributed. flow.

Asight glass 17 is provided in one side of the

boot to permit observation of the weighing

action which takes place. :

The boot 1 is preferably rectangular in

cross section and the riser.3 is usually a

round pipe, the connection between them he-

ing tapered to prevent disturbance of tle air

currents as much as possible.

In order to increase the capacity and cf-

fect a more thorough separation hetween the

beans and the ‘foreign material, I provide

an opening between the boot and the riser at

a substantial distance above the point at

which the goods Are fed into the. boot. -In

the preferred fofm shown in Figs. 1 to 3,

air inlet openi 18 are provided in oppo-

site sides, preferably extending across the

full width of the pipe and the amount of air

to be admitted to the bottom of the riser 3

is determined by the position of flaps 19. To

cont position pf the flaps, flap guides

20 are provided at each end of each opening

18, and the flaps are hinged between the flap

guides and provided with wing nuts cooper-:

1,850,719

ating with arcuate slots 21 in the flap guides.

Wire cloth screens 22 are placed over the flap

guides 20 to prevent escape of any of the

product. ‘. a

In the operation of the apparatus, the flaps

19.are first closed and the gate 6 on the inlet

of the exhaust: fan is adjusted so that the

amount of air passing up ‘the riser is suffi-

cient to lift all the beans into the hopper at

the desired rate of coffee flow. With sucliad-

“justment, some of the smaller or less dense

oreign materials would be carried up with

the beans. To prevent this, the weighing ac-

tion which takes place in the space interme-

diate the lower opening in the boot and the

openings 18 is watched through, the sight

glass 17 and flaps:19 adjusted to admit air at

this point, thus reducing the amount of air

passing up the boot until it is the minimum

amount that will lift all the beans without.

hfting the foreign matter. Since, in the pre-

ferred form of the invention, the openings 18

70

| aah

extend me mnepens a ¥ fulj dlistance across .

the weighing portion df the pipe, on opposite

sides thereof, the additional air will be ad-

mitted with as little velocity as possible and ~

as uniformly as possible, thus preventing

eddy currents from being set up. ‘The weigh-

ing action taking place in the boot can be

clearly perceived through the sight glass 17.

Heretofore, any increase in the amount of

air in a separator of this type would cause

@ corresponding. increase \in the boot as well

‘as in the riser, making it impossible to lift

the beans Without also lifting smaller or less

dense foreign material; and if the amount of |

below a certain point,- the

air was reduced

beans would fall back into the boot and

clog ‘it.

Another modification of the invention is to

place the flaps 19 upside-down, that is, hinge

them at the top instead of at the bottom,

this moditication being shown in Fig. 4.. This

permits of easy entrance of the additional

amount of air required as the,air does not

have to change its direction to the extent

that it does in the form shown in Figs. 1°

to 3. -In this form of the invention wire

screens 23 are secured «directly over the air

inlet openings 18. ; 2

The invention as outlined above permits

of an accurate separation of a product such

as roasted coffee from denser foreign matter

such as stones, nails, etc. It is-evident that

it is — valuable in separating a product

from

case the comparatively lighter material is

lifted in the beot, the denser product re-

maining below. For instance, loose chaff and

hulls can be separated from roasted coffee

beans; loose hulls and shells from raw cocoa

beans; chaff can be separatéd from roasted

granulated coffee; shells can be separated

from roasted cracked cocoa beans, etc. In

each of these cases the less dense foreign ma-

ess dense foreign material and in this:

95

100

105

110

116

wT

— 38a —

1,860,719 3.

terial is lifted in the boot, the aren pass- means adjacent the of said boot and

ing through the opening in the bottom into a riser portion to admit air to said pipe where-

container or bin or conveyor, or otherwise by to reduce the flow of air in said 200 -

disposed of. ; tion relatively to the flow in said riser por-

5 This modification is shown in Fig. 5, in tion. 70

which the lower portion of the boot is ex-

tended below the point at which goods are fed

to it and the bottomi 24 left open so that the

denser product falls into a bin or receptacle

10 or other receiver. The amount of extension

of the boot below the feed point is affected by

' the accuracy of the weighing action ———-

and by the particular product being trea

Another moditication is shown in Fig. 6,

in whieh the product is — below the

open lower end 24 of the ‘by a

15

4. In an apparatus as claimed in claim 2,

said air admitting means comprising air in-

let openings located on opposite sides of aaid

ipe. .

igned at New York, in the county of New 75

York and State of New York, this 13th day

of December, A. D. 1929.

2 GEORGE C. HERZ.

sta

inclined blank sheet or perforated sieve 25, :

or by a perforated. or unperforated travel-

ing belt or other similar means. The posi-

‘20 tion of the lower end of the boot is adjustable

‘with relation to the means conveying the

product. « As the latter passes under the

the air passing upward through the boot lifts

the less dense foreign material, the product

2 passing on. The amount of air ired to

remove the foreign material can be very ac-

curately regulate i

by means of the flaps d

It will be apparent that the invention is

30. capable of various modifications and adapta-

tions without departing from the scope and

spirit of the invention as defined in the ap-

pended claims, ’

The invention claimed is:

35 1. Apparatus for separating materials of

different demisities comprising an air pipe

having a feed opening a apted to receive

materials to be separated, means for drawing

air upwardly through said pipe to lift mate-

4¢ rials therein, and air inlet openings in op-

. posite sides of. yay at a substantial dis-

- tance above the feed opening and i

substantially the full width of the pipe.

2. Apparatus for separating materials of

4 different densities comprising an air pipe

having a lower boot portion and an upper

riser portion, means to feed the material to

be separated to the lower portion, means to

draw air upwardly thro said portions,

50 said drawing means dra sufficient air

through said upper portion to move the ma-

terial therethrough, and means-between said

upper and lower portions to admit air to the

bottom of the upper eer whereby to re-

55 duce the flow of air through said lower por-

tion to substantially the exact amount neces-

sary to separate and lift the material of the

. desired low density.

_3. Apparatus for separating materials ma.

60 <lifferent densities comprising an air pipe in- -

cluding a lower boot portion and an upper

riger portion substantially higher than said

boot portion, means for feeding materials to

be separated to said portion, means to

, & draw air.upwardly through said pipe, and

by as the openings

100

120

120

125

30

APPENDIX G

Nov. 1, 1932. C.MARAZIY | 1,885,437

Er, COTTON ELEVATOR .

Filed May 21, 1932

Duvonivor:

Lerner.

Patented Nov. 1, 1932 | ; | ; 1,885,437 oe

UNITED STATES PATENT OFFICE aff

CHARLES HARAZIN, OF CHICAGO, ILLINOIS, ASSIGNOR TO G. R. MEYERCORD, OF

CHICAGO, ILLGVOis : :

: COTTON ELEVATOR |

Application filed Mey 11, 1931. ferial No, 526,324.

Machines have béen devised to harvest cot-

ton automatically, the cotton being collected

_ from the plants as the machines pass across

- the field. The cotton thus gathered must be

s carried away from the gathering point intoa

receptacle that mzy Le located at a consider-

able distance from such poirt. About the

simplest way of c2xtrying away the entton is

to cause it to be drawn by suction throvgh a

10 Conduit extending away from a trough or

other container inte which the cotton is ini-

tially delivered from the picking clemenis.

Considerable volumes of air are requized for

this pays and, therefore, it has been pio-

16 posed to place the inlet egnduit of a blower

in position to take up the cotion with the in-

coming air; the cotton —- through the

blower and being discharged through ‘an

outlet conduit which delivers it to the stor-

20 ave point. However, in passing through the

blower there is more or less tearing of the

fiber of the cotton and crushing of the cot-

ton seed. While there is more or less tearing

of the fiber at all times, when the cotton is

25 handled in this way, it becomes a serious mat-

ter where the cotton is wet. The object of

the present invention is to make it possible

to convey the cotton preumatically in a sim-

le and efficient manner without injury to

30 the fiber or to the seed.

In carrying out my invention, I cause the

cotton to take a path that carries it-through

a conduit without passing through che

blower; the blower simply forcing air

35 through the conduit in'the direction of the

-outlet from the conduit at a point spaced at

some distance inwardly from the inle: end

of the conduit. The nir forced through the

conduit in this way lovers the pressure with-.

40 in the inlet eid, so that outside air, and with

~ it the cotton, is drawn in until it enters the

stream of air by which the suction is in-

duced and is then carried along with such

stream to the discharge point. ;

45 The various features. of novelty whereby

my invention is chu:acterized will hersin-

efter be pointed out with particularity-in the

elaims; but, for a full understanding of ny

- _ invention and of its objects and advantages,

$0 reference may be had to the following de-

tailed description inken in connection with

the accompanying drawing, wherein:

Figure Lis aa elevation of so much of my

improved pneumatic cotton handling appa-

ratus as is nece:sary. to explain the consiruc-

tion and principle thereof; and Fig. 2 is a

View siinilar to biz, 1, parts being in section.

Referring to the drawing, 1 represents a

trough, ciosed at one end and opzn at the top

st said end. This trough, in a cotton har-

vesting machiue, will be placed in the pro er

position to receive. the cotton as it is doffod

by the picker cloments. Within the frough

is a suitable coi:vejor 3 that carries the cotton

nlonz the trough toward the closed end. Ex-

tending across the open top of the trough, at

said closed end, is a conduit 3 of large cross

scctional area. If desired, there may be an

opening in the side of the trough just below

the conduit, this opening being spanned by a

suitabie screen 4. At sonie ‘distance above the

— the conduit is stepped laterally, pref-

erably a distance equa! to bout half the diam-

cier of the coaduit. Therefere, the lower end

of the upper section 5 of the conduit may be

said to overhang or project beyond one side

of the lower section. In accordance with my

invention, I force air upwardly through this

overhanging portion of the coaduit. This

‘may be conveniently accomplished by em ploy-

ing a suitable blower 6 whose discharze con-

duit or pipe 7 extends upwardly beside the

lower section of the conveyor conduit and

opens upwardly into the overhang. The vol-

ume an pressure-of the air delivered by the

blower being great enouch, the cotton will be

drawn up until it enters the stream from the

biower, wherenpon it will be forcibly im-

pelled along the conduit. The outlet ar dis-

charge pipe from the blower preferably de-

creases in cross section area toward its out-

Iet end so as to incre: the velocity-of the

air before it is.finally delivered into the con-

duit. a —--

Tt-will be thus seon that the cotten is picked

up and carried slong the conduit throrgh the

action of air curreyts 2'one and without beine

subject~! to blows such as would be en.

countered in passing through the blower: and,

consequently, there will be no damage to the

‘

7%

— 36a —

2 : areas 1,885,437.

fiber or to the seed. It will also be seen that,

if the blower is kept running, the cotton wilt

be removed from the trough as fast:as it is

delivered by the picking mechanism, so that

the eetton will not be given an opportunity to

become solidly packed in the trough with re- — -

’ sulting injury to the fiber and sced and-elog=——

__ - ging of the-pneumati¢ conveyor. Notonly is* ~

» ~~. the cotton effectively handled by my im--

proved pneitnatic apparatus but, in the case

of wet cotton,-an important drying action

takes place, due to the flow of air past and

es My through the loose masses of fiber in transit.

4 One of the purposes of my invention, there- |

5 fore, may be said to dry wet cotton by means

of air which carries it from one point to_

another. ‘

While I have illustrated and described with

particularity only a single preferred form

of my invention, I do not desire to be limited:

to the exact structural details thus illustrated

and described; but intend to cover all forms

and arrangements which come within the

definitions of my invention. constituting the

appended claims.

I claim: a ,;

1. In a cotton handling apparatus, a con-

tainer for cotton. a conduit of large cross see-

tional area rising from and stepped laterally -

at some distance above the container. a blow-

er, and a discharge pipe leading from the

blower upwardly into the overhanging por-

tion of the conduit at such step.

35 2. In a cotton handling apparatus, a con-

tainer for cotton, 2 conduit of large cross sez-

tional area rising from and stepred laterally

at soine distance above the container. a blow-

er. and a discharge pipe leading from the

@ blower upwardly into the overhanging por-

tion of the conduit at such step, said discharge

Pipe decreasing in cross sectional area as the |

distance from the blower increases.

8. In a cotton handling apparatus, a con-

tainer for cotton, a conduit of large cross sec-

* tional area rising from and stepped laterally =

a distance about equal to one-half ofitsdiam- .‘ ”

eter at.a point above the container, a blower,

and a discharge pipe extending -from the

blower beside the lower -part of the conduit :

‘and epening into the bottom of the overhan;s-

ing portion of the conduit. 2a

4. Ina machine of the character described,

a trough. a conveyor for moving cotton along

88 the trough to one end thereof. a conduit open”

at the bottorin extending across the top of and

rising from said end of the trough. said con-

. duit being stepped laterally at a point above

the trough, a blower, and a discharge pipe ex-

tending from the blower aleng the lower part

of the conduit and opening upwardly iato

the bottom of the overhanging part of the .

conduit.

In testimony whereof, I sign this spccifi-

cation.. m :

: CHARLES HARAZI N.

be J

OL SN eR RTC ee Te NE REN IT IE

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An a ee Sef:

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— 37a —

. APPENDIX H

~ ie.

DEFENDANTS’ EXHIBIT 39

[Translation] _

' GERMAN REICH

(Seal) - Released

December 5, 1927

REICH PATENT OFFICE

PATENT DESCRIPTION

#453 358

Class la Group 28

G65375 VI/ia

Patented in the German Reich from September 25, 1925 on.’

The invention deals with equipment used for the separa-

tion of mixed composition material components into two

the bottom to the top.

Equipment corresponding to the invention differentiates

itself from. known apparatus of this type through an ar-

upper discharge opening of the divider shaft from the

side either immediately or a short distance above the

‘ici

By so constructing the equipment, further movement of

‘that portion of the material having lighter specific weight

through the connecting tube can be guaranteed, in that

this further movement is obtained by means of air under

pressure at the same time that the advantage of suction.

separation of the mixed composition material in the divider

shaft is obtained* .

Equipment: such as this invention is particularly suited —

to the separation of processed garbage into parts because

garbage is a mixed. composition material made - up of

paper, cardboard, rags, cloth remnants, food which has

been discarded and othér cellulose wastes in addition to

cinders and other mineral components..

The sketch shows one example of how equipment eould

-be constructed to conform with the invention. -

The sketch shows a vertical shaft, marked “a”, which may

be of greater or lesser height depending on the require-

_ments in the upper portion of which is an arrangement,

“b”, which could, for example, be equipped with paddles,

the purpose_of ‘which arrangement would be to loosen up -

materials entering the shaft; this arrangement could be

driven by a belt or in some other manner. At about the.

same height as this device is a supply channel which could

be constructed in an} desired manner through which

channel, “c”, the mixed materials could be introduced.

Beneath the device for loosening up the material—device

b—and on the side of the divider shaft “a”-is a louver,

“e”, made up of a number of fil&ps, “d”, which opens in

such a manner that the flaps, “d”, are directed in a down-

ward angle into the shaft, “a”. The size of the opening

in the side wall through the louver, “e”, can be regulated

_ by opening the flaps, “d”, as needed.

The upper end of the shaft “a”, is moderately funnel-

shaped, and at its dischargé opening, “f”, connects tightly

with a tube, “g”, which leads to a device, “h”, which may

be constructed in any known manner for the purpose of

reducing the material to smaller particles; such a device

—

— 40 —

may be, for example, a cross- haavenet - mill. The discharge

tube “i of the fan “k” or other producer of pressurized

air white producer could also be driven by a belt enters

shaft “a” in the sketch immediately above the upper dis-

charge “f” of the shaft “a”. The lower. end of the shaft

“a” connects immediately with the intake of a mill or other.

device for reducing the size of the material; this device,

“1”, can also be driven by a belt. :

In working with a piece of. equipment : inteniaine to that

described the mixed composition. material, such as pro-

cessed garbage, is introduced into shaft “a” through supply

_ channel “e”, and is loosened up shortly after introduction

by the loosening device, “b”. The airstream produced by

= fan,’ “k”, ahd moving in the direction of the arrow,

| ”, pulls air from shaft “a” by injection in the direction of

arrow “p”, which then causes a flow of air through the ad-

- Justable louver opening “e” in the side of shaft “a” into

Shaft “a”. A current of air thus flows through shaft “a

pulling. components having lighter specific weights. aa ra

as paper scraps, cloth seraps, rags, light-weight food

_ scraps and so ‘on along and carry them through ‘the upper

discharge point “f” of, shaft “a” into tube. “oe” through

which they-are forced “by the air coming from fan “k”

into. the closely attached reducing device “h”. Here the

lighter components of the mixed composition material,

being made up almost entirely of materials containing

cellulose, are torn and transformed into a matted cellulose

raw material which could be further transformed into such

things as paper or cardboard, distilled, or used in any

_ other manner desired.

Heavier specific weight: materials in shaft “a” which are

not pulled along by the air current ‘fall down through

shaft “a”; here, the flaps “d” of the louver “e” prevent, by

their inward- downward orientation, the exit of materials

out through the louver “e” as they fall through shaft “a”.

Components having heavier specific weights fall out of

shaft “a” into the intake of mill “1” or other size-reducing

apparatus in which they are ground to powder or dust.

comprised partly of mineral and partly of cellulose ‘content

—4la——

-materials. Instead of having the specifically heavier _com-

ponents fall into a mill or other size-reducing apparatus,

they could instead fall or be introduced directly into a

slag oven or dry- distillation apparatus for reduction. to

building materials...

PATENT CLAIMS

Equipment for separation of material made up of mixed

components having various specific weights and sizes into

two portions characterized by different specific weights

through means of a separating -shaft in which a current

of. air courses from the bottom to the top. Characterized

by the following: a fan.or other pressurized air generator

(k) blows air from the side into a tube (g) at or imme-

diately above the upper end of a divider shaft (a) at its

upper discharge opening (f) through which air. in the

* . divider shaft (a) is sucked by an injector effect, which air

\’ Translator Assoc.

then pushes components having lighter specific weights on .

through the upper discharge opening and ‘the connecting —

tube...

Attached one page of sketchings

Berlin, printed in the Reich’s Printing Office

CERTIFICATION OF TRANSLATION |

< e : March 2, 1970 —

This is to certify that~ the foregoing translation from

German into English is to the best of my knowledge a

_true and complete rendition of the original document.

/s/ Hellmuth. R. von Schwarzbek

~ Hellmuth R. von Schwarzbek

Overland Park, Kansas. 66207

Executed in my presence this 2nd day of March, 1970.

. /s/ Louisa EK. Baxa

“Notary ‘Publie

‘Notary Public, State of Missouri

My Commission Expires

August Z, 1973 —=C«.