Petition for a Writ of Certiorari — Whitcomb v. General Dynamics Corp.

IN THE

Supreme Court of the United States

Ocroser TERM, 1971

No. 71- o 03 :

RicHanp T. Wurrcoms, Petitioner,

v.

General Dynamics CorRPORATION AND AMERICAN

Aretrvgs, Inc., Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Car. G. Love

Wuuuam K. West, Jr.

DownaLp J. Brep

CussMaN, Darsy & CusHMAN

Washington, D. C.

Attorneys for Appellee,

Richard T. Whitcomb

Epwanrp L. Breeven, Fil

Barepen, Howarp & MacMm1an

Norfolk, Virginia

Of Counsel

October 8, 1971

Pease ov Breoe S Ansnes Pecrrose Dec. Wasmmweros, D.C

=.

INDEX

Page

Citations To Opinions Below ...................00.- 2

PEE bdnedécvashdenocsesaceconesxentsdawuns 2

TD vncistidenennceneumendaembeniuen 2

DEE © Gcevcdtitunndaaeaecdenscmacuaias 2

CTL 1 ccbtxenbscddcdeededsbedaneneiana 3

Statutory Provisions Involved .............. peeones +

i 5

Reasons for Granting the Writ in This Case ........ 9

Prior Decision by This Court Uniformly Adhere to

Long-Standing Principles of Equivalency Disre-

garded by the Court of Appeals Below .......... 9

The Decision by the Fourth Circuit Below Is in Di-

rect Conflict With the Decisions of At Least Six

Other Circuits, All of Which Follow the Opinions

of the Supreme Court ...............0.ccccceees 12

The Decision of the Fourth Circuit Is in Further

Conflict With Decisions of This Court and Other

Cireuits in Departing From the Principles That

a Patent Claim Is To Be Read With Its Specifica-

tion, and Infringement Determined by Then Com-

ring the Accused Device With the Claim As

DGD sctnGndscsenudeakeauneneuacuds 20

GED Scdcconesccnsnetcscandseedecscewescesecs 27

INDEX TO APPENDIX

District Court Opinion ..............ccccccccccecs A.1

SEE A.-«

Court of Appeals Opinion ......................... A. 26

Court of Appeals Order on Rehearing ............. A. 32

Petitioner’s Patent in Suit ........................ A. 33

ii Index Continued

TABLE OF CASES

Page

Aluminum Company of America v. Sperry Products,

Inc., 285 F.2d 911 (6 Cir. 1960) ................. 18

American Safety Table v. Schreiber, 269 F.2d 255 (2

ERE ea 13

Anderson’s Black-Rock v. Pavement Salvage Co., 396

ie inte ete nehnakeeesseeusece 4

American Technical Machinery Corp. v. Caparotta, 339

i incicinkneennsheaeeeseessc 22

Aro Mfg. Co. v. Convertible Top Replacement Co.,

(I) U.S. 336 (1961); (II) 377 U.S. 476 (1964) 3

Black, Sivalls & Bryson, Inc. v. National Tank Co., 171

U.S.P.Q. 17 (10 Cir. Aug. 9, 1971) ............... 26

Blonder-Tongue Laboratories v. University of Illinois

Foundation, — U.S. —, 28 L.ed.2d 788 (1971) ... 4

Borg-Warner Corporation v. Mall Tool Co., 217 F.2d

ee et enemabennsenkesecens 15

Church v, Kinkead Industries, Inc., 138 F. Supp. 954

(D.C. TIL 1955), aff’d 234 F.2d 573 .............. 22

E-I-M. Co. v. Philadelphia Gear Works, 223 F.2d 36

lt diinstbnpiddaiananeestesbeeseocece 14

Graham v. John Deere C. , 383 U.S. 1 (1966) ....... 4

Graver Tank & Mfg. Co. v. Linde Air Produets Co., 335

a idueeeeess 3, 9,17

Hansen v. Colliver, 282 F.2d 66 (9 Cir. 1960) ........ 15

International Latex Corp. v. Warner Bros. Co., 276

i ED et eckesancsooneenes 13

Keller v. Sprout, Waldron & Co., Inc., 129 U.S.P.Q.

ieee ckbbeciseeeeueseee 22

Kromer v. Riegal Textile Corp., 227 F.2d 741 (7th Cir.

th see ee ese seRenensesesce 22

Lear v. Adkins, 295 U.S. 663 (1969) ................. 4

Machine Co. v. Murphy, 97 U.S. 120 (1877) .......... 27

Magnavox Oo. v. Hart & Keno, 73 F.2d 433 (9 Cir.

tt ce eteehet heahabebawedecatesseosecesse 22

Marvel Specialty Co. v. Bell Hosiery Mills, 330 F.2d

BED GE GR BED cccccccccccccccccvccccccccecs 21

Tool v. Well Surveys, Inc., 343 F.2d 381

CRG BREED ccccccccccccseccsecccsccccccccecs 16

Index Continued ili

Page

Neff Instrument v. Cohu Electronics, 298 F.2d 82 (9

St wD Sckbsinkekecedsiadsakemeenasasaaamer 16

Palmer v. United States, 423 F.2d 316 (Ct. Cls. 1970). 16

Q-Tips, Inc. v. Johnson & Johnson, 207 F.2d 509 (3 Cir.

SEE Sakd6eunedeandecsoeveunanctbsuceunaunsanns 13

Reiner v. I. Leon Co., 285 F.2d 501 (2 Cir. 1960) .... 21

Sanitary Refrigerator Company v. Alexander F. Win-

ters, 280 U.S. 30 (1929) ......... ccc ccceees 10, 11, 17

Standard Industries, Inc. v. Tigrett Industries, Inc.,

396 U.S. 885 (1969) and 397 U.S. 586 (1970) ..... 3

Taylor-Reed Corp. v. Mennen Food Products, 324 F.2d

es cccccnavushossusaudewenmusd 22

Temco Electric Motor Co. v. Apeo Mfg. Co., 275 U.S.

Dt Pt Cisccchetdauesassvadsdaeasseaaen 10, 11, 17

United States v. Adams, 383 U.S. 39 (1966) ......... 4, 21

Upright, Inc. v. Safway Products, Inc., 315 F.2d 23

DPT dcskidshdacteuanesedsanddeanwanees 14

Walker Process Equipment Co. v. Food Mach. Corp.,

PD scicrcenssoeaseccedeueseuces

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

ucts, 399 F.2d 628 (5 Cir. 1968) ................ 15

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

SE ED 4 ncdancdesbouscensedeescesbenas 4

United States Code,

Title 28, Section 1254(1) ..................00.. 2

ces ccvecdeekebesebeen 4

ED og oc cccubeccseeceaees< 5

CS ren pre 5

Text AUTHORITIES

Walker on Patents, Deller’s Ed. (1937), § 450, p. 1681

IN THE

Supreme Court of the United States

OcrtoBer TERM, 1971

No. 71-

Ricuarp T. Wxu1tTcoms, Petitioner,

v.

GENERAL Dynamics CoRPORATION AND AMERICAN

AIRLINES, Inc., Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petition:r, Richard T. Whitcomb, plaintiff patentee

and appeliee below, prays that a Writ of Certiorari

issue to review the judgment of the Court of Appeals

for the Fourth Circuit, entered June 15, 1971, in the

above-entitled case, adjudging that Pefitioner’s U. 8.

patent No. 2,967,030 issued January 3, 1961, was not

infringed by the manufacture, use and sale of Re-

spondents’ Convair 990 commercia! transport airplanes.

2

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals is reported at

170 U.S.P.Q. 242, and is reprinted in the Appendix

hereto at pages A.26 to A.31*. Its unreported decision

on Petition for Rehearing is presented at page A.32.

The Findings of Fact and Conclusions of Law of

the District Court are reported at 164 U.S.P.Q. 610,

and reprinted herein at pages A.1 to A.23, the unre-

ported Order of that Court being reprinted at pages

A.24-A.25.

JURISDICTION

The judgment of the Court of Appeals was entered

on June 15, 1971 (A.26), and its order denying rehear-

ing was entered July 14, 1971 (A.32), this Court’s

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

QUESTION NO. 1

Whether in reversing the District Court under the law

of the “Doctrine of Equivalents”, the Court of Appeals

erred in reasoning that an accused device which allegedly

includes a variation from the patented structure avoids

infringement of a valid patent if the variation is thought

to add to the effectiveness of the device. even though the

allegedly modified accused structure simply follows the

same inventive principles taught in the patent itself, and

continues to perform the same function, in the same man-

ner, for the same purpose, to achieve the same wholly

novel result of the patent.

* Page numbers preceded by capital letter ‘‘A.’’ refer to the

pages of the Appendix to this Petition for Certiorari. Page num-

bers preceded by Capital letter ‘‘R.’’ refer to pages in the printed

Appendix before the Fourth Circuit Court of Appeals. The

symbol ‘‘FOF’”’ refers to Findings of Fact, below. Petitioner

Whitcomb trial exhibits are designated ‘‘W-’’, and Respondents’

trial exhibits are designated ‘‘GD-’’. Emphasis in quotations is

added throughout.

3

QUESTION NO. 2

Whether the Court of Appeals erred in departing from

the basis this Court has directed for the determination of

patent infringement, i.e. by a comparison of the accused

device with the patent claims and specification, as con-

strued in light of the prior art—and instead basing its de-

termination of non-infringement solely upon a comparison

of the accused device with certain of the inventor's re-

search investigations, extraneous io the patent documents

themselves.

Substantially, the same issue as is presented by

these Questions, the legal tests for the determination of

infringement of a valid patent, was recognized by this

Court to be of substantial importance, when it granted

certiorari in Standard Industries, Inc. v. Tigrett In-

dustries, Inc., No. 445, October 27, 1969, 396 U.S. 885.

The importance of, and widespread interest in, these

issues 1s underscored by the fact that both the Depart-

ment of Justice and the American Patent Law Asso-

ciation requested, and were granted, leave to file, and

did file, briefs amicus curiae in Standard Industries,

supra. However, that case was then affirmed by an

equi lly divided court, without opinion, 397 U.S. 586

(1919).

It has now been 21 years since this Court last ren-

‘dered lan opinion on these issues, by Mr. Justice

Jackson in Graver Tank & Mfg. Co. v. Linde Air

Products Co., 335 U.S. 605, (1956) (which opinion was

prior to the enactment of the presently controlling

statute, 35 U.S.C. 271).

In the twenty-one (21) years since Graver Tank,

supra, this Court has considered questions of ‘‘con-

tributory infringement”’ (Aro),’ standards of patent-

1 Aro Mfg. Co. v. Convertible Top Replacement Co., (I) 365 U.S.

336, 5 L.ed 2d 592 (1961); (II) 377 U.S. 476, 12 L.ed 2d 457

(1964).

ne ——

4

ability and obviousness”’ (Graham? Adams; Ander-

son’s Plack Rock),* “license estoppel” (Lear),° “‘col- '

laterai estoppel’’ (Blonder-Tongue),° and antitrust

issues based on ‘‘fraud’’ in the procurement of a patent

(Walker Process),’ and on ‘‘misuse”’ of issued patents

(Zenith Radio).* Thus, beginning about 1961, this

Court has addressed itself to and rendered significant

opinions on most of the important questions and issues

in the patent law—ezcept for the substantive interpre-

tation of what constitutes infringement of a valid

patent.

The absence since Graver Tank of more recent guid-

ance by this Court on this issue has led, predictably, to

the occurrence of confusion and conflict between the

Circuits as to the proper construction and interpreta-

tion of patents in determining the existence of infringe-

ment, and particularly with respect to the Doctrine of

Equivalents.

STATUTORY PROVISIONS INVOLVED

Untrep States Cope, Title 35:

112 The specification shall contain a written descrip-

tion of the invention, and of the manner and process of

— OEE AA EET NE Cen e ore mae atte

2 Graham v. John Deere Co., 383 U.S. 1, 15 L.ed 2d 545 (1966).

8 United States v. Adams, 383 U.S. 39, 15 L.ed 2d 572 (1966).

4 Anderson’s Black-Rock vy. Pavement Salvage Co., 396 U.S. 57,

24 L.ed 2d 258 (1969).

5 Lear v. Adkins, 295 U.S. 653, 23 L.ed 2d 610 (1969).

® Blonder-Tongue Laboratories v. University of Illinois Founda-

tion, — U.S. —, 28 L.ed 788 (1971).

7 Walker Process Equipment Co. v. Food Mach. Corp., 382 U.S.

172, 15 L.ed 2d 247 (1965).

8 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,

23 L.ed 2d 129 (1969).

5

making and using it, in such full, clear, concise, and

exact terms as to enable any person skilled in the art

to which it pertains, or with which it is most nearly

connected, to make and use the same, and shall set

forth the best mode contemplated by the inventor of

carrying out his invention.

The specification shall conclude with one or more

claims particularly pointing out and distinetly claiming

the subject matter which the applicant regards as his

invention. A claim may be written in independent or

dependent form, and if in dependent form, it shall be

construed to include all the limitations of the claim

incorporated by reference into the dependent claim.

* * * * *

271 Infringement of patent

(a) Except as otherwise provided in this title, who-

ever without authority makes, uses or sells any pat-

ented invention within the United States during the

term of the patent therefor, infringes the patent.

281 Remedy for infringement of patent

A patentee shall have remedy by civil action for

infringement of his patent.

STATEMENT OF THE CASE

The present case commenced as an action for in-

fringement of Petitioner’s U.S. patent No. 2,967,030

against Respondent, American Airlines, Ine. Sub-

sequently, Respondent General Dynamics, brought a

declaratory judgment action against Petitioner Whit-

comb. The two cases were consolidated, and the par-

ties aligned with Petitioner as plaintiff and the Re-

spondents as co-defendants. (A. 2)

Petitioner, Dr. Richard T. Whitcomb is one of Amer-

ica’s most valued and honored aerodynamicists, whose

é

earlier invention of the ‘‘ Area Rule”’ is now the funda-

mental basis for the design of all supersonic aircraft.’

More recently, he is the inventor of the ‘‘supercritical

wing’’ which has been heralded as revolutionizing all

future airplane wing design.”° The invention of the

patent in suit similarly received substantial publicity.”

Dr. Whitcomb holds absoiute title to the patent in

suit, by determination of the Government Patents

Board, acting under Executive Order 10096, his rights

being subject only to his previous voluntary grant of

a royalty-free irrevocable, non-exclusive license to the

United States for all governmental purposes.”

Thé patent in suit is for an invention which Re-

spondent’s own experts acknowledge to be ‘‘an im-

portant milestone’’, and the ‘‘breakthrough’’ they had

been seeking ‘‘in aerodynamic theory’? (FOF 18, A.

90), in the design and develepment of Respondents’

accused airplane.*

In brief, the invention provides entirely novel aero-

dynamic antishock bodies, which are ‘‘special elongate

bodies’’ added on the upper surface of an airplane wing

(FOF 7, A. 5), to enable subsonic transport aircraft

to ‘‘fly faster before the speed-inhibiting drag rise

phenomenon occurs”. (FOF 9, A. 6). This ‘‘drag

rise is [otherwise] virtually a specd barrier through

®See W-1, R. 985a-991a.

10New York Times, February 9, 1969, Front Page; Time Maga-

zine, February 21, 1966, page 66 ‘‘Science’’.

. See W-13, R. 1010a and W-105, R. 1227a-1230a, FOF 15, A. 8.

12 See GD-8 and GD-9, at R. 778a-780a, FOF 14, A. 7.

13 Respondents admittedly derived their knowledge of the inven-

tion entirely from Petitioner Whitcomb and publications describ-

ing specific embodiments of his invention, (FOF 15-23, pages A. 8

to A. 11).

7

which the airplane may not pass’. (FOF 4, A. 4).

Never before had the result of Petitioner’s invention

been achieved. Previously, “it was well accepted

among aerodynamicists that the addition of structure

to an aircraft would result in an increase in the drag

of the airplane in subsonic flight,’”’ (FOF 5, A. 4).

By contrast, the Whitcomb bodies had the opposite

effect of delaying the drag rise and thus increasing

the speed of the airplane. (Court of Appeals, A. 28).

Respondents’ own technical documents (W-49, R.

1068a) showed that the use of Dr. Whiteomb’s in-

vention was ‘“‘the only way’’ to achieve the valuable

speed increase they needed for this airplane (FOF

24-30, A. 11 to A. 13). As the District Court put it

in a finding unchallenged by the Respondents or the

Court below, this pioneering invention of Whitcomb’s

patent was, at the high subsonic speeds contemplated,

so radical as to constitute “‘a contradiction to the abso-

lutes of [aerodynamic] theory,” (FOF 5, A. 4).™

After an eight day trial, and hearing testimony from

eight “‘live’’ witnesses and receiving over two hundred

and ten exhibits, as well as depositions and affidavits,

the District Court below ruled in Petitioner’s favor

as to all defenses,” and found there was literal in-

14 Not unlike the nature of the invention and patent involved

in United States v. Adams, 383 U.S. 39 (1966).

** The District Court upheld the validity of the patent, gen-

erally observing that Respondents’ extensive prior art defenses

(see A. 14) were completely unrelated to the invention of the

patent in suit (see FOF 36-53, A. 15 to A. 21). Other rejected

defenses included (i) General Dynamics’ vigorous contention that

they operated under the patent with an implied license (based

on their admitted derivation of the invention from Whitcomb),

as well as (ii) their accusation Dr. Whitcomb had retained title

to his patert by fraudulent conspiracy with high government

officials.

8

fringement of the claims in suit, specifically stating

further, in a subsequent ruling written shortly after

the decision, that infringement of the patent was ‘‘un-

doubtedly’’ present.

The Fourth Circuit Court of Appeals reversed, but

solely on the issue of infringement (not reaching the

other issues). The Fourth Circuit not only reversed

the finding of undoubted /iteral infringement by the

District Court, but went on to hold that infringement

under the ‘* Doctrine of Equivalents”’ was also avoided.

The Court’s reasoning was that Respondents had

altered one of the several specified positions of the

patented structure and that this change did ‘‘add”’

to the effectiveness of the device. Accordingly, be-

cause the accused device allegedly had an ‘‘improved’’

performance over the form ef the invention as shown

in the patent, the Court held it was not an equivalent

—even though there was otherwise no change in the

form, shape, position, purpose, function, mode of op-

eration or result of Respondent’s structure as com-

pared to that of the patent.*®

16 The Court of Appeals itself recognized, and did not question,

the effectiveness of Petitioner’s antishock bodies, observing, ‘‘It

was Whitcomb’s theory that such bodies, by decelerating the air-

flow over the wing, would enable a plane to reach higher speeds

before experiencing drag rise. Subsequent wind tunnel tests

confirmed that the antishock bodies smooth the flow of boundary

layer air at transonic speeds, and that a wing without antishock

bodies experiences drag rise at a lower speed than the same wing

with the bodies added. On January 3, 1961, U.S. Letters Patent

No. 2,967,030 were issued to Whitcomb for his invention.’’ (A. 28)

The Court of Appeals also recognized and stated that ‘‘Each

General Dynamics Convair 990 employs 4 wing bodies very similar

to Whitcomb’s,’’ and it was never really challenged that Respond-

ents used their bodies for the purpose of performing the same

function to achieve the same result in the same way as Whitcomb

described in his patent.

9

This case thus presents to this Court, in a clear-cut

factual setting, the most important question of what

are the proper legal tests for the substantive deter-

mination of what constitutes infringement of a valid

U.S. patent.

The Court is also presented with an opportunity for

unraveling the conflict which now exists between thé

circuits, and for restating its views as to the proper

substantive legal tests for determining the answer to

the question of whether an accused device infringes a

valid U.S. patent.

REASONS FOR GRANTING THE WRIT IN THIS CASE

PRIOR DECISIONS BY THIS COURT UNIFORMLY AD-

HERE TO LONG-STANDING PRINCIPLES OF EQUIVA-

LENCY DISREGARDED BY THE COURT OF APPEALS

BELOW

As noted above, Graver Tank & Mfg. Co. v. Linde

Air Products, Co., supra, is the most recent opinion

by this Court on the ‘Doctrine of Equivalents”? and

the applicable law of infringement. In Graver Tank

(opinion by Mr. Justice Jackson), this Court stated,

inter alia:

But courts have also recognized that to permit

imitation of a patented invention which does not

copy every literal detail would be to convert the

protection of the patent grant into a hollow and

useless thing. Such a limitation would leave room

for—indeed encourage—the unscrupulous copyist

to make unimportant and insubstantial changes

and substitutions in the patent which, though

adding nothing, would be enough to take the

copied matter outside the claim, and hence out-

side the reach of law. One who seeks to pirate an

invention, like one who seeks to pirate a copy-

righted book or play, may be expected to intro-

duce minor variations to conceal and shelter the

piracy. Outright and forthright duplication is a

10

dull and very rare type of infringement. To pro-

hibit no other would place the inventor at the

mercy of verbalism and would be subordinating

substance to form. It would deprive him of the

benefit of his invention and wouid foster conceal-

ment rather than disclosure of inventions, which

is one of the primary purposes of the patent

system.

The doctrine of equivalents evolved in response

to this experience. The essence of the doctrine is

that one may not practice a fraud on a paient.

Originating almost a century ago in the case of

Winans v. Denmead (US) 15 How 330, 14 L ed

717, it has been consistently applied by this Court

and the lower federal courts, and continues today

ready and available for utilization when the proper

circumstances for its application arise. ‘‘To tem-

per unsparing logic and prevent an infringer from

stealing the benefit of the invention’”’ a patentee

may invoke this doctrine to proceed against the

rroducer of a device ‘‘if it performs substantially

the same function in substantially the same way

to obtain the same result.’’ Sanitary Refrigera-

tor Co. v. Winters, 280 US 30, 42, 74 L ed 147,

156, 50 S Ct 9. The theory on which it is founded

is that ‘‘if two devices do the same work in sub-

stantially the same way, and accomplish substan-

tially the same result, they are the same, even

though they differ in name, form, or shape.”’

Union Paper-Bag Machine Co. v. Murphy, 97

US 120, 125, 24 L ed 935, 936.

A span of, again, twenty-one years had occurred

between Graver Tank and the two earlier leading cases

by this Court on the question of interpretation of

patents under the ‘‘Doctrine of Equivalents”. Those

cases were: Temco Electric Motor Co. v. Apco Mfg.

Co., 275 U.S. 331 (1928), and Sanitary Refrigerator

Company v. Alexander F. Winters, 280 U.S. 30 (1929).

11

In both, the issue of infringement under the ‘‘Doc-

trine of Equivalents’? was considered, infringement

was found, and definitive expositions of this doctrine

were announced:

In Temco, supra, this Court held:

“* * * * Tt is well established that an ir -rover

can not appropriate the basic patent of another

and that the improver without a license is an in-

fringer and may be sued as such. Cochrane v.

Deener, 94 U.S. 780, 787, 24 L. ed. 139, 141;

Cantrell v. Wallick, 117, U.S. 689, 694, 29 L. ed.

1017, 1918, 6 Sup. Ct. Rep. 970; Yancey v. En-

right, 145 C.C.A. 51, 230 Fed. 641, 647; Reed

v. — Tool Co. (C.C.A. 5th) 261 Fed. 192,

194.’ |

“* * * * We must consider that the [defend-

ant’s structure] was really an appropriation of

the original design of the Thompson patent,

whether it be, as we think it was, a patentable

improvement thereon, or the mere equivalent of

the casing and hanger.’’ (275 U.S. at 328)

And, in Sanitary Refrigerator, supra, this Court

stated :

‘x * * * A close copy which seeks to use the

substance of the invention and, although showing

some change in form and position, uses substan-

tially the same devices, performing precisely the

same offices with no change in principle, consti-

tutes an infringement. Ives v. Hamilton, 92 U.S.

426, 430, 23 L. ed. 494, 495.”’ (280 U.S. at 42)

(Emphasis Added)

Each of these cases clearly indicates that whether

or not an infringer changes the ‘‘form or position”’

of a patented structure, and thereby makes some ‘‘im-

provement’’ thereon, so long as his acts constitute

12

an appropriation of the basic patented idea and his

device continues to perform ‘‘precisely the same offices

with no change in principle” (280 U.S. at 42, supra)

—he has inf~naed the patent.

The present ruling by the Fourth Circuit is in direct

conflict with an’ contrary to each of these foregoing

decisions by this Court—both in logic and result.

Moreover, the reasoning and result of the Fourth Cir-

cuit is in direct conflict with recent decisions of at

least six other Circuits, as well as the Court of

Claims—

THE DECISION BY THE FOURTH CIRCUIT BELOW IS IN

DIRECT CONFLICT WITH THE DECISIONS OF AT

LEAST SIX OTHER CIRCUITS. ALL OF WHICH FOL-

LOW THE OPINIONS OF THE SUPREME COURT

The Fourth Circuit’s decision in this case is also

in clear and direct conflict with the rulings and opin-

ions rendered in ut ieast six other Circuits, as well

as in the Court of Claims.

Cases from the Second, Third, Fifth, Seventh, Ninth

and Tenth Circuits all show that in those circuits it

has been recognized that an accused infringer cannot

avoid liability under 35 U.S.C. 271 merely because

he introduces some variation in the precise form of

the patented item which may ‘‘add to the effectiveness

of the device’’ but, which otherwise in no way alters

or departs from the purpose, function and result of

the otherwise cumpletely copied patented structure.

In general, these other Circuits have held that even

if such a modification of the patented structure con-

stitutes an ‘‘improvement’”’ to the exact form of the

device shown in the patent this “‘ts irrelevant to the

question of infringement”’’.

13

Such was the view of the Second Circuit, as it was

stated in American Safety Table v. Schreiber, 269 F. -

2d 255 (2 Cir. 1959), cert. denied 361 U.S. 915:

‘“*. . . if [defendant’s device] be deemed an im-

provement, it 1s irrelevant to the question of in-

fringement.’’ (269 F. 2d at 264)

The Second Circuit expressly pointed out in a later

decision, International Latex Corp. v. Warner Bros.

Co., 276 F.2d 557 (2 Cir. 1960), cert. denied 364 U.S.

816, that findings of non-infringement should not be

based on the “‘unreal’’ issue of whether the accused

structure was an improvement over the patented struc-

ture:

‘“* * * neither the superiority of [defendant’s

modification] nor its being more expensive, in an

unstated degree, would require a determination

that it passed the bounds of equivalence in a proper

case ... that issue 1s an unreal one arising out

of the attempted dichotomy of ‘‘equivalancy”’ as

between fact and law.’? (276 F.2d at 563)

Using the same reasoning, the Third Circuit Court of

Appeals has likewise pointed out that findings of non-

infringement are not to be based on the notion that

because defendant may have ‘‘improved’’ the patented

structure infringement of the patent is thereby avoided,

eg. Q-Tips, Inc. v. Johnson & Johnson, 207 F.2d

009 (3 Cir. 1953), cert. denied 347 U.S. 935:

“< , .. to the extent it was only an improvement,

the District Court could not have concluded against

infringement.’’ (207 F.2d at 511)

The Fifth Circuit has similarly repeatedly recognized

that infringement based upon a theory of equivalency

is to be upheld even though the accused device in fact

14

functioned more effectively than the patented struc-

ture. This was expressly so held in E-I-M Co. v.

Philadelphia Gear Works, 223 F.2d 36 (5 Cir. 1955),

cert. denied 350 U.S. 933, even where there was—

** ... convincing testimony ... based upon actual

tests, that the [accused] device actually fune-

tions more effectiveiy [than the device under the

patent].’’ (223 F.2d at 40)"

The Fifth Circuit made the same point again in Up-

Right, Inc. v. Safway Products, Inc., 315 F.2d 23

(5 Cir. 1965), cert. denied 375 U.S. 831, where infringe-

ment of the patent based upon ‘‘equivalency’’ was

upheld even though—

‘* |. . the accused device was simpler, safer and

more efficient in operation, and also that it was

substantially and materially different in structure,

mode of operation, and result from the device of

the patent.

** ... we adhere to the established rule that the

patent was not limited to the preferred embodi-

ments shown in the claims or drawings.

> * = * =

“The law is that substance is not to be subordi-

nated to form so as to deprive one of the oy

of his invention. And it is settled that if the

aceused device performs substantially the same

function in substantially the same way to obtain

substantially the same result, it infringes.’’ (215

F.2d at 26, 27)

17Jt should be noted here that in the present case no such

‘‘eonvincing testimony”’ or ‘‘actual tests’’ are present. The ‘‘com-

parison’’ the Court of Appeals relied upon was between two forms

of the patentee’s structures, one of which was ‘‘slightly superior’’

to the other. Respondent's structure corresponds to neither of

these, but most closely resembles the structure of the drawing of

the patent.

15

Even more recently, the Fifth Circuit again similarly

upheld infringement in Williams Bit & Tool Co. v.

Christensen Diamond Products, 399 F.2d 628 (5 Cir.

1968), pointing out that while defendant’s device—

““ ... may well be an improvement . . . it is not

a departure from the patent principle. Likewise,

we regard the other features of the accused [de-

vice] . . . as, at the most, improvements of the

structure rather than departures from it. As

such they do not avoid infringement of the patent.”’

(399 F.2d at 635)

The Seventh Circuit is also in accord with these de-

cisions, as can be seen from Borg-Warner Corporation

v. Mall Tool Co., 217 F.2d 850 (7 Cir. 1954), cert.

denied 349 U.S. 946, wherein infringement was upheld

even though the defendant’s device varied from and

was an improvement over the teaching of the pat-

entee’s.

‘‘From an examination of the evidence and the

Court’s finding, it seems clear that defendant’s

variation from [patentee’s] teaching in this re-

ym represents merely the improvement of a

skilled mechanic, while still erry the exact

teaching of [patentee].’’ (217 F.2d at 852)

The Ninth Circuit has also similarly ruled, as in

Hansen v. Colliver, 282 F.2d 66 (9 Cir. 1960) wherein

infringement was again upheld even though the ac-

eusea device was an improvement over the patented

structure, the Court stating:

““It may be, as indicated by the trial court, that

appellees’ device is superior in its simplicity in

the use of a table top instead of a guide. Jf the

table top is an improvement it is nevertheless

the equivalent of the guide and is merely a change

in form.’”’ (282 F.2d at 69)

16

A year after the Hansen case, the Ninth Circuit reem-

phasized this same approach and understanding of the

law in Neff Instrument v. Cohu Electronics, 298 F.2d

82 (9 Cir. 1961), pointing out:

‘* At best, then, it appears that the accused ampli-

fier is an improvement over the plaintiff’s ampli-

fier. And it is well established that an improver

cannot —— the basic patent of another,

and that improver without a license is an in-

fringer, and may be sued as such.

And defendant’s own advertising . . . evidences

the fact that its amplifier performs the same func-

tions (but better) that the plaintiff’s amplifier

performs. ‘Whether the two devices are iden-

tical in this respect [the design of an element J

is not relevant for they are identical functionally.”’

(298 F.2d at 89, 90)

Such also is the interpretation of the law of the Doec-

trine of Equivalents by the Tenth Circuit as can be seen

from, for instance, McCullough Tool v. Well Surveys,

Inc., 343 F.2d 381 (10 Cir. 1965) cert. denied 383

U.S. 933, 385 U.S. 990, 384 U.S. 947, 385 U.S. 995,

which succinctly states:

“ |. . infringement cannot be avoided the

AE cage y Hey peel ME

efficient or orms additional functions.”’ (343

F.2d at 402

Only last year the Court of Claims followed the same

reasoning of the above Cireuits and upheld infringe-

ment, under the “‘ Doctrine of Equivalents’’, in Palmer

v. United States, 423 F.2d 316 (Ct. Cls. 1970) cert.

denied 400 U.S. 951, even though the accused devices

were acknowledged to be improvements:

**While no doubt the accused structure is a a

tical improvement over the embodiment

17

in the patent, its means, function and result are

essentially the same.”’ (423 F.2d at 323)

Each of the eleven (11) cases just cited, variously

from the Second, Third, Fifth, Seventh, Ninth and

Tenth Circuits, and the Court of Claims, relied on

the views expressed by this Court in Graver Tank,

supra, as the basis for their reasoning. Many of them

also cited and rely on Sanitary Refrigerator, su pra, and

Temco, supra. Each clearly holds that it is improper

as a matter of law, to conclude non-infringement simply

on the basis that,

(a) the accused device has some variation from the

patented structure, which variation,

(b) contributes some improvement or adds to the

effectiveness of the structure devised by the

patentee, where,

(c) the accused device performs the sume function,

by the same means for the same purpose as

taught by the patent.

Each of these eleven (11) cases recognizes that when

the accused device simply follows the teaching of the

patent and incorporates the same means, function and

result of the patented device, it is at least an infringe-

ment of that patent under the “Doctrine of Equiva-

lents’’. This result is reached whether the patent

involved was of the nature of a pioneering invention,

or involved only a ‘‘narrow’’ contribution to the art.”

Of course, nearly all cases recognize that a patent for a

“‘pioneering’’ invention such as is petitioner Whitcomb’s patent

in this case (see page 7, supra), is entitled to a broader range

of “‘equivalents’’ than are patents for narrower inventive con-

tributions.

18

Such has been the law consistently pointed out by

this Court, as the Sixth Circuit observed in Aluminum

Company of America v. Sperry Products, Inc., 285

F.2d 911 (6 Cir. 1960)—

An infringement said the court in Westinghouse

v. Boyden Power Brake Co., 170 U.S. 537, 569,

18 S.Ct. 707, 723, 42 L.Ed. 1136, quoting from

Burr v. Duryee, 1 Wall. 531, 573, 17 L.Ed. 660,

‘tis a copy of the thing described in the specifica-

tion of the patentee, either without variation, or

with such variations as are consistent with its

being in substance the same thing. If the invention

of the patentee be a machine, it will be infringed

by a machine which incorporates in its structure

and operation the substance of the invention; that

is, by an arrangement of mechanism which per-

forms the same service or produces the same effect

in the same way, or substantially the same way.

(285 F.2d at 923)

The opinion and decision by the Fourth Circuit Court

of Appeals in the present case is in direct conflict

with each of the above decisions from at least six

(6) other circuits, as well as the Court of Claims.

It is also in direct conflict with the decisions by this

Court in the Graver Tank, Temco and Sanitary Re-

frigerator, all cited, supra.

Even if it is assumed that the accused antishock

bodies used by the Respondents on the General Dy-

namics’ Convair 990 airplanes, are an ‘‘improvement”’

over the precise structure shown in Petitioner’s patent

drawings-—it remains that the accused antishock bodies

are not only admittedly ‘‘very similar’’ to the bodies

of Dr. Whitcomb’s patent, but unquestionabiy also

that their ‘‘means, function and results are essentially

the same.”’

19

The similarity of the accused bodies to the patented

bodies can be readily seen from the fi gures of the patent

(page 33a) and from a re-produced picture of Re-

spondent’s Convair 990 airplane (page 38a). The

patent claim defines the form and shape of the bodies

as having:

(1) an elongated body, with

(2) a forward region of progressively increasing

cross-sectional area approximately the same

as a cone, while

(3) the body then increases to a maximum cross-

section; and thereafter,

(4) the body has a rear, tapered portion.

There is no difference between the “‘form and shape”’

of Respondent’s accused antishock bodies and the

teaching of the patent, and none was pointed out by the

Court below. The accused bodies each have the conical

forward region, the maximum cross-section near the

trailing edge of the wing, and a tapered rear portion

extending aft of the trailing edge just like in the patent.

The patent also teaches a placement of the antishock

bodies on the airplane wing such that they are,

(1) on the upper surface of the wing; with

(2) the conical ‘‘forward region”’ extending “‘just

forward” of the region of maximum thickness

of the wing; while,

(3) the maximum cross-section of the bodies lies

“near the wing panel trailing edge’’; and,

19 While the patent drawing shows 4 bodies on each wing, and

the 990 airplane has two, the patent’s disclosure and its claims

teach the possible use of only one such body. The issue of non-

infringement does not depend on the number of bodies on the

airplane.

20

(4) the rear tapered portion of the body extends

aft of the trailing edge of the wing.

Respondent’s bodies admittedly comply fully with

three of these four specifications, viz Nos. 1, 3 and 4.

The infringement issue thus turns solely on the

alleged change of a single position of Respondent’s

bodies (the second criterion above), and the question

of whether the accused structure with that single varia-

tion remained at least an ‘‘equivalent’’ of the patented

device.

There is no prior art, or Patent Office history, which

requires any restriction of the scope of the patent to

uphold its validity, and none was cited by either court

below—but, in nonetheless placing an improper narrow

construction on the claims, the Fourth Cireuit Court of

Appeals below fell into further conflicts and errors of

law, as follows:

THE DECISION OF THE FOURTH CIRCUIT IS IN FURTHER

CONFLICT WITH DECISIONS OF THIS COURT AND

OTHER CIRCUITS IN DEPARTING FROM THE PRIN-

CIPLES THAT A PATENT CLAIM IS TO BE READ

WITH ITS SPECIFICATION, AND INFRINGEMENT DE-

TERMINED BY THEM COMPARING THE ACCUSED

DEVICE WITH THE CLAIM AS THUS CONSTRUED

The failure of the Court of Appeals to follow the

principles of law laid down by this Court, and the other

Cireuits, is further dramatically revealed by the fact

that its construction and interpretation of the claim

of petitioner’s patent in suit is so narrow that the claim

would not be infringed by even the specific embodi-

ments disclosed in the patent itself.

To reach this result, the Fourth Circuit again failed

to heed, and placed itself in direct conflict with, the

decisions of this Court and those of the other Circuits.

styer

21

What the Fourth Circuit did was to construe the patent

claim without reference to the patent specification

itself, and then to determine nou-infringement by a

comparison of the accused device with the patentee’s

initial research investigation—while, again, ignoring

the disclosures of the patent itself.

By contrast, this Court recently pointed out that,

‘it is fundamental that claims are to be construed

in the light of the specifications and both are to be

read with a view to ascertaining the invention.”

United States v. Adams, 383 U.S. 39, at 49 (1966). The

same point was earlier stated in Graver Tank ¢: Mfg.

Co., supra:

“What constitutes equivalency must be deter-

mined against the context of the patent, the prior

art, and the particular circumstances of the ease.

Equivalence, in the patent law, is not the prisoner

of a formula and is not an absolute to be consid-

ered in a vacuum. It does not require complete

identity for every purpose and in every respect.”’

(339 U.S. 605, at 609)

Indeed, prior to its decision below, the Fourth Circuit

itself had similarly stated, Marvel Specialty Co., Ine.

v. Bell Hosiery Mills, 330 F. 2d 164, (4 Cir. 1964) :

“Of course, equivalency in patent law cannot be

determined in vacuo The question of infringement

must be considered in the context of the prior art

and with an eye to the contribution made by the

patented invention.”’ ,

(330 F. 2d at 176)

The Second Circuit also pointed out in Reiner v. I.

Leon Co., 285 F. 2d 501 (2 Cir. 1960):

“A claim must of course read upon the specifi-

cations, but the specifications, unless so declared,

22

are only an example of what the claim is intended

to cover; it is a species of a broader genus, else no

claims would cover anything not literally described

in the specifications.”’

(285 F. 2d at 504)

Moreover, it is ‘‘axiomatic’’ in the patent law that

infringement depends, not upon a comparison of the

Defendant’s accused product with the patentees’ prod-

uct, but upon a comparison of the accused device with

the patent itself. Walker on Patents, Deller’s Ed.

(1937), § 450, p. 1681; Magnavox Co. v. Hart & Keno,

73 F. 2d 433, 455 (9th Cir. 1934). Obviously, a paten-

tee’s experimental or commercial devices may not cor-

respond with the actual invention patented, and are

thus well recognized as providing only a misleading

basis for comparison.”

Departing completely from the principles of these

decisions, what the Fourth Circuit did in this case was

to refer to the Petitioner’s earliest research investiga-

tions of his invention, and then limit the patent claim

to the specific embodiment of Petitioner’s initial ex-

periment! It was from this analysis that the Court of

Appeals derived its statement (A.31), that,

«|, . the original Whitcomb bodies . . . extended

forward only 4% of the distance from the region

of maximum wing thickness to the wing’s leading

CR... 0"

20 See American Technical Machinery Corp. v. Caparotta, 339

F.2d 557 (2d Cir. 1964) cert. den. 382 U.S. 842; Taylor-Reed

Corp. v. Mennen Food Products, 324 F.2d 108 (7th Cir. 1963) ;

Kromer v. Riegal Textile Corp., 227 F.2d 741 (7th Cir. 1955) cert.

den. 350 U.S. 1007; Keller v. Sprout, Waldron & Co., Inc., 129

U.S.P.Q. 465 (S.D.N.Y. 1961) ; Church v. Kinkead Industries, Inc.,

138 F.Supp. 954 (D.C. Ill. 1955), aff. 234 F.2d 573.

—s

Evrae porary WA Se gpepine mee ope he

a et ce |

TID REI NO

23

And, on this observation, the Fourth Circuit clearly

based its view that it was

‘“‘more reasonable to read claim 1 as describing a

forward region that extends to just forward of

wing panel region of maximum thickness and no

farther”. (A.30)

The Fourth Circuit ther compounded its error by re-

ferring to a second, subsequent, research investigation

by Dr. Whitcomb, where entirely different wing bodies

were tested, which wing bodies happen to extend

“*64%,”’ of that same distance." Dr. Whitcomb had

testified that these subsequent bodies were “slightly

superior”’ to the ‘‘original bodies” of his first experi-

ment.”

But, throughout its reasoning the Court of Appeals

completely ignored the actual teaching and disclosure

of Dr. Whitcomb’s patent specification—-which is not

limited to the specifie bodies of the original research

investigation.

To the contrary, the unchallenged, incontrovertible

evidence as to the illustrative embodiment of the patent

drawing itself showed that in that example of the: in-

vention, 14 percent of the total body length extended

forward of the region of maximum thickness (R. 354a).

*1 Its erroneous comparison, ignoring the teachings of the patent,

also caused the Court to overlook the point that the “‘percentages’’

compared (i.e. relating to the distance between the leading edge

and the maximum wing thickness) were themselves not relevant

to the patent and not a limitation of any of its claims.

*2It was from this that the Court of Appeals concluded that

a ‘‘further forward’’ closed position was an ‘‘improvement’’ over

the patent—ignoring here that the ““improved’’ results were un-

related to the accused airplane, but rather a comparison between

two embodiments of the invention of the patent itself.

24

The comparable figure for the accused Respondent’s

antishock bodies is an extension of 16 perceit of the

total length of the body (R. 354a)—again estahlished

by unchallenged, incontrovertible evidence.

Thus, when the accused infringing device is com-

pared with only the illustrative example of the patent

drawings, there is at most a two percent difference in

the forward extension of the body. Translatec into

actual dimensions on the airplane, this 2 percent differ-

ence amounts to less than 6 inches—again, an unchal-

lenged, incontrovertible figure.

It will be observed, however, that the Court of Ap-

peals gave greater emphasis to the ‘‘four feet for-

ward’’ position of Respondent’s wing bodies. (A.30)—

but in so doing the Court of Appeals wholly ignored the

fact that the wing bodies disclosed and illustrated in

the patent specification itself, and clearly covered by

the ‘‘just forward’’ recitation in the patent claim,

embodied a comparaiie extension of over 40 inches

forward of the line of maximum thickness on the

wing.”

There is seen from these incontrovertible figures the

mischief which is wrought when the Fourth Circuit, in

this case, departed from the principles of patent in-

terpretation long laid down by this Court, and fol-

lowed by the other Circuits. The result is a denial of

the protection intended to be provided by the patent

23 The trial court, Judge MacKenzie, recognized that claim 1 of

the patent specified that it was that entire portion of the body

defined as the ‘‘forward region of a progressively increasing cross-

sectional area approximately the same as that of a cone,’’ which

the claim places so as to be ‘‘extending just forward of the wing

panel region of maximum thickness’’. Literal infringement was

thus found by the trial court.

25

clause of the Constitution,” and the intent of Congress

in enacting Title 35 United States Code. In this case,

an individual inventor, title to his patent having been

acknowledged by all proper authorities of the U. §.

Government, has seen his invention admittedly pirated

by a large, highly patent-conscious corporation; he has

seen that invention used exactly in accordance with the

teachings of his patent to the great value of that cor-

poration*—and has now seen his right to recovery of

damages, (as provided in 35 United States Code 284),

denied by the Fourth Circuit Court of Appeals; which

limited his inventive contribution solely to the scope of

his original experiment—while ignoring the broader

and more complete disclosure Dr. Whitcomb provided

in his patent specification.

Had the specification of the patent in suit been con-

fined to that original disclosure, there might be some

rationale from which to say that the inventor’s rights

were limited to that single embodiment. But, there is

no such rationale under the circumstances of this case

where, under the classic ‘‘contract theory” of patent

law, the inventor has clearly made a full and eomplete

disclosure in his patent dozument—in return for which

the law has provided that he is entitled to a commen-

surate scope of protection for his invention (except,

always, to the extent the same might be limited by

*4 Article I, Section 8: ‘‘The Congress shall have power...

To promote the progress of science and useful arts, by securing

for limited times to authors and inventors the exclusive right to

their respective writings and discoveries.’’

7° Uncontroverted testimony, indeed admissions in open Court by

American Airlines’ Vice-President that American Airlines paid

General Dynamics an additional sum of $400,000 per airplane for

the added speed benefit contributed by the use of Dr. Whitcomb’s

invention (see FOF'’s 24, 25, 28-30, at A.11 to 4.13 ), and wouid not

otherwise have bought the airplanes.

prior art).* In a decision reported just this week,

Black, Sivalls & Bryson, Inc. v. National Tank Co.,171

U.S.P.Q. 17 (10 Cir. Aug. 9, 1971), the Tenth Circuit

<orrectly states the accepted principle of law in these

words:

Equivalency miust be determined against the con-

text of the patent, the prior art and the particular

circumstances of the case aud complete identity for

every pu and in every respect is not pone. Hs

Jones v. ness, supra.

A primary or pioneer patent, such as Bender, is

to be given a broad and liberal construction and,

also, a broad and /Jiberal range of equivalence and

it is not to be limited to the precise device and in-

strumentality disclosed. Mason Corporation v.

Halliburton, 10 Cir., 118 F. 2d 729, 49 USPQ 7;

Prievbe & Sons Co. v. Hunt, 8 Cir., 188 F. 2d 880,

89 USPQ 299, cert. dismissed, 342 U.S. 801, 72

S.Ct. 92, 96 L.Ed. 607. A combination patent

which constitutes a marked improvement in the

2* Note, here, that Dr. Whitcomb’s patent was prepared and

prosecuted by patent attorneys of the U.S. Government who had

full access to Dr. Whitecomb’s work and made full disclosure of

his inventive embodiments. While it is true that subsequent

to the filing of the patent Dr. Whitcomb conducted further investi-

gations, including the ‘‘64 percent’’ wing bodies revealed to the

Court of Appeals, the uncontroverted evidence shows that while

those later bodies hed certain purely aerodynamic advantages,

principally resulting from the presence of additional ‘‘fillets’’ in

their structure, those bodies were actually ‘‘impractical’’ because

of interference by the ‘‘fillet’’ structure with other mechanical

operations required on the airplane. The General Dynamics ac-

eused antishock bodies in suit omit any fillets’’ from their strue-

ture. and are unrelated to Dr. Whitcomb’s subsequent research

investigation. (R. 358a, 1295a)

27

art, such as Fearon, is entitled to a substantial

range of equivalents.

(171 U.S.P.Q. at 19-20)

The decision of the Fourth Cireuit in this case, con-

struing Petitioner’s patent so narrowly as not to be

infringed by its own illustrative embodiments, is thus

also in direct conflict with this above decision from the

Tenth Circuit.

CONCLUSION

The opinion of the Fourth Circuit below relied on an

extract from an 1877 opinion by this Court in Machine

Co. v. Murphy, 97 U.S. 120, at 125 (See A.31) while

ignoring that mere ‘‘form”’ is not “‘the essence of the

invention’’ of Dr. Whitcomb’s patent, and that, in any

event, there was actually no difference in “‘form and

shape’’, but at most only a slight change in one position

of the accused structures. In Machine Co. itself, how-

ever, infringement, was found on much the same basis

as was used in the District Court in this case, this Court

then stating:

A primary or pioneer patent, such as Bender, is

of a thing, in the sense of the Patent Law, is the

same as the thing itself; so that if two devices do

the same work in substantially the same way, and

accomplish substantially the same result, they are

the same, even though they differ in name, form

or shape.”’

(97 U.S. at 126)

Because of the great importance of the Questions

presented herein, the widespread interest therein by

others, to say nothing of the emasculation which has

been committed on a valid patent for a significant in-

ventive contribution by a renowned scientist, we submit

this Court should grant this petition for certiorari.

Respectfully submitted,

Cari G. Love

Wrwuam K. West, Jr.

DownaLp J. Brrp

CusnMaN, Darsy & CUSHMAN

Washington, D. C.

Attorneys for Appellee,

Richard T. Whitcomb

Epwarp L. Breepen, IIT

Breepex, Howarp & MacMiLLan

Norfolk, Virginia

Of Counsel

October 8, 1971