# Petition for A Writ of Certiorari — Deere & Co. v. Hesston Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1369%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 829 ## Text RARY. * . | Bagrarie Coat, De" 3 ae 2. k best 2 Vv 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 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 _ a , . . P . . . ‘ ° . ® . . . - . * ‘ . ° . ‘ . . . ¥ * ’ . . ; , . **s e ‘ - . « - hel e ‘ % P . ad » . . . a * . . e a .* . - - . ” ‘ . - 5 P ° . ° . P ° ' ‘ - . a ‘ . r . ‘ . . ‘ . . . ‘ . e * . ‘ . : , - . ‘ ae es . - —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 sar = etal — 2la — ¥ . APPENDIX E - Aug. 20,1968 LF. SANDERSON ETAL — - 897,522 ; COTTON HARVESTER Filed July ¢ 1965 - 3 Sheets-Sheet 1 o - iD st 37. ae ee. 35 ay 625 : 6! : . 40 * 10. y a7 . > : —- 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 » ©@ — Co“, . 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- FE Ff x 2 F £ “3 2 3 Hy Fe - f ! ee 2 ; é f Fea : br k F “= Hi att Hl a F : F § + 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 the 4d 22? eee SeRegiees ue He i tile SS! Pharell 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 . » F ' 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 — oF ro oe P 20 Pao 3 06” @ \T- F yy 0OOCti | Al og (- 78 2rk ‘ 2 * Fad 7 oe rs fe, 46 la i 77 : Mi | LZ ‘¢ ; ii i k: A, - Be} f a: 2 i hy 7 i] * INVENT : _ OR SH ao fi Llowete i: = ’ 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, “ v employing air to Tiser; so that the cleaning or separating op- Ue BRE i Ee J 3 Ee ti : g ‘I iH i H aig il dt 4 Ts Hi u : Bg E if + FES iE b Ag Ht i u rg i if s : i : F : 7 : : i i E i ; Hl il 4 f 5 | i 4 af i ; F = ALL F a ! ty 7e3 §o& ft i i‘ au | ; al 5 Fe 3 : : f 3 chEF ‘Fz8 i f a BF an kee . F ah 2 g 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