Petition for Writ of Certiorari — Long Manufacturing Co. v. Lilliston Implement Co.

Supreme Court brief1972

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vic Supreme Court, U. S

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JUN 29 19/2 ©

IN THE

4 — RODAK, JR.,C

Supreme Court of the United States

OcroBerR TERM, 1972

No.

Lona MANUFACTURING Company, Petitioner

Liuiston ImpLEMENT Company, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

A. Yates DowELL, JR.

Suite 705

2001 Jefferson Davis Swy.

Arlington, Virginia 22202

Attorney for Petitioner

Of Counsel:

Henry C. BouRNE

P. O. Box 1158 x

onstant N. al 27886 4

<-—S

Ane meee

Press or Byron S. Apams Prinrina, Inc., WasHincton, D.C.

SS,

INDEX

Page

I. Orders, Opinions and Judgments Below ........ 1

II. Statement of the Grounds on Which Jurisdiction

of Tike Cieere Te. TRPONOG 2 gic ceccaccccccscces 2

Wi, Gunctines Peeeeeed 5 5 5. oi occ ccndconccsccss 2

IV. Constitutional Provisions, Statutes Involved .... 3

Ce Oe We I inn caccuseneséosswcssin 3

a rer ao wld oak be ae amaca 17

ApPENDIX TO PETITION:

Appendix A. Opinion of the United States Court of

Appeals for the Fourth Circuit Filed

BE My BE 60 hc Kicckiets tees la

Appendix B. Order of the United States Court of Ap-

, peals for the Fourth Circuit Filed May

We UE heel nak CUS OCe Rae Mala eee 2a

Appendix C. Memorandum Opinion of the Distvict

Court (EDNC June 14, 1971 as wor-

oe es or 2a

Appendix D. Judgment of the District Court (EDNC

) At NS a osceeeescae 4la

Appendix E, Constitutional Provisions, Statutes and

Rules Involved ............. Sat ee <eis 42a

Appendix F. Tabulation of Cases Involving Patenta-

bility and Infringement Decided by the

Fourth Cireuit Court of Appeals Since

1961

I. Disposition of Patent Cases by the

Fourth Cireuit Court of Appeals on

the Question of Patentability or In-

fringement for the Five Years Just

Prior to Graham v. John Deere Co.,

Se Se Oh EE cxdWGaeecnavecccis 44a

Index Continued

Page

II. Disposition of Patent Cases by the

Fourth Cireuit Court of Appeals on

the Question of Patentability or In-

fringement for the Period Between

Gra (1966) and Anderson’s-Black .

‘Rock, Inc. v. Salvage Co., 396 US 57

GUE auccacekaucesss sts ceaceunie 46a

III. Disposition of Patent Cases by the

Fourth Cireuit Court of Appeals on

the Question cf Patentability or In-

fringement for the Period Since

Anderson’s-Black Rock, Inc. Through

and Including April 7, 1972 ........ 47a

CASES CITED

en een see passim

906 US'S7 (1900)... ... cece ccccsceeccccees passim

tion, 402 US 313 (May 3, 1971) ................ 16

eg ara Co. v. Cook Chem. Co., 383 US 1

WO OE eb oh Mn as bind Xenc ac oc ebc kee

Cuno Corp. v. Automatic Devices Corp., 314 US 84

“SRR Og a Fes BERT a eo anaes 2 4

Deepsouth Packing Co., Inc. v. The Laitram Corp., No.

71-315 (May 30,1972) ........ ccc cece cece ce ceee 1

Exer-Genie Inc. v. McDonald, 453 F2d 132 (9 Cir.

1971) cert. den. April 17, 1971, No. 71-1042 ...... 13

Graham v. John Deere Co., 383 US 1 (1966) ...... passim

Hotchkiss v. Greenwood, 11 How. 248 (1851) ........ 1

1970) affirmed per curiam 450 F2d 878 (2 Cir.

ag ICR ieee rr tei 14

Index Continued

STATUTES CITED

Page

Osnstitution of the United States:

ey TT Gaon Saks ew kan KhE Lo 6 io vcs vecdd 3, 13

SE ER oc dou te ag hnnus on canee eee knkees 2,3

35 U.S.C. 103 ..... ni Sie kw veddhe Cee aunt robaescewaes 3

Ss GE 555.05 Gir L oAd e+e meteendetsiwreenes 3, 13

AUTHORITY CITED

Rules of the Supreme Court:

TIES sick teh 355 Kad eee had adeasbeaswns 3

PUBLICATIONS CITED

“Recent Developments in Patent Law’’ by D. Carl

Richards, 1971 Patent Law Annual of the South-

western Legal Foundation ..........ccccceeees 14

“The Crisis of Law in Patents’’ by Professor Irving

Kayton, George Washington University (Patent

Resources Group, Inc., Washington, D. C. 1970) .. 15

“After Black Rock: The New Tests of Patentability—

The Old Tests of Invention’’, 39 Geo. Wash. L.

Hou. 135, 200 ot 00; CIGTG) |. oo uss cence csenees 14

American Bar Association, Section of Patent Trade-

mark and Copyright Law, 1971 Summary of Pro-

ceedings, pp. 161, 162, Professor James B. Gam- —

brell, New York University School of Law .... 15

IN THE

sriceonie iaieh ae the ath Bien

OctToBER TERM, 1972

No.

Lona MANUFACTURING CoMPANY, Petitioner

LILLIstON IMPLEMENT CoMPANY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Long Manufacturing Company, petitioner, prays

that a writ of certiorari issue to review the judgment

of the U.S. Court of Appeals for the Fourth Circuit

entered in this proceeding on April 4, 1972.

ORDERS, OPINIONS AND JUDGMENTS BELOW

Opinion of the Fourth Cireuit Court of Appeals,

dated April 4, 1972, Appeals Nos. 71-2016 and 71-2017,

not officially reported, unofficially reported at 173

USPQ 321 (1a). Order concerning costs filed May 24,

1972 (2a).

Opinion of the District Court, E.D.N.C. decided

June 14, 1971, corrected July 13, 1971 (Walter E. Hoff.

man, District Judge, presiding by Special Assignment

from Eastern District of Virginia), reported at 328

F, Supp. 268 (2a).

Judgment of the District Court, E. D. N. © (8-12-71)

(41a).

STATEMENT OF THE GROUNDS ON WHICH

JURISDICTION OF THiS COURT IS INVOKED

The per curiam opinion and judgment of the Fourth

Circuit Court of Appeals dated and entered April 4,

1972 is sought to be reviewed. Jurisdiction to review

by writ of certiorari is believed conferred by 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the Courts below have decided a Federal

question in a way which conflicts with applicable deci-

sions of this Court. In particular:

(a) Whether a novel combination of elements

may properly be held unpatentable where the Court

relies on A. & P. Tea Co. v. Supermarket Corp.,

840 U.S. 147 (1950) and does not apply Graham

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

(b) Whether, assuming the question of part

(a) is answered affirmatively, the Court below

erred in its application of A & P by its failure to

make any finding as to whether Long’s admittedly

novel combination of elements ‘perform any addi-

tional or different function in the combination than

they perform out of it.”’ (340 U.S. 147 at 152).

—,

9. Whether there is a conflict between this Court’s

rulings in Anderson’s-Black Rock, Inc. v. Pavement .

Salvage Co., 396 U.S. 57 (1969) (including A & ?) and

Gyaham which should be clarified pursuant to 35 U.S.C.

103 and the stabilizing effect which Congress intended

that it have.

CONSTITUTIONAL PROVISIONS, STATUTES VOLVED

This case involves the commerce and patent clauses

of the Constitution of the United States, Article I,

Section 8 (42a), 28 U.S.C. 1254 (42a), 35 U.S.C. 103

(42a), 35 U.S.C. 282 (43a) and Rules of the Supreme

Court, Rule 19(1) (b) (48a).

STATEMENT OF THE CASE

A. Proceedings of the Case

On August 26, 1967 the petitioner instituted the pres-

ent action against respondent for infringement of Long

patents 2,974,467 and 3,007,475, the patents in suit.

Both of these patents relate to a peanut combine and

stem from a single application which was directed to

the overall combine. The Patent Office, however, re-

quired division on the ground that the pickup and.

threshing portions, or front end of the combine, should

be patented separately from the cleaning, separating

and collecting portions, or back end of the combine.

In a written opinion the District Judge held patent

467, on the front end, invalid and not infringed, and

patent ’475, on the back end, invalid and infringed.

Both parties appealed the adverse rulings. The Fourth

Circuit Court of Appeals affirmed invalidity on the

stated ground of obviousness in a per curiam opinion

without discussion and without consideration of the

infringement issues.

B. The Patents in Suit

The Long patents in suit disclose and claim a peanut

combine upon which the peanut industry is dependent,

The District Judge recognized that Long’s combine

supplants prior combines and includes a novel arrange.

ment affording at least two advantages over the prior

art (1%:,. 14a) but concluded that the combination

“does 1 © constitute an invention’’, citing A & P Teq

Co, v. « «permarket Corp., 340 U.S. 147 as the leading

ease (12a, 13a).

The patented combine (psient ’467 description at

6a) includes (1) a rotary pickup for lifting previously

plowed peanut vines from the ground; and (2) a series

of threshing cylinders which receive the vines from the

pickup and are arranged on an incline so that they

simultaneously (a) elevate the vines and (b) thresh

the vines. The vines and peanuts are then located

at the required elevation for further processing in

the combine.

The prior art combines did not have the threshing

cylinders arranged on an incline effective to elevate.

Instead, the prior art employed an additional element,

a lengthy inclined conveyor between the pickup and

threshing cylinder(s), to perform the elevating func-

tion (lla, 12a). Thus the prior art combine included

(1) a rotary pickup; (2) a lengthy inclined conveyor;

and (3) one or more threshing cylinders positioned at

the required threshing elevation.

The patented combine eliminates the lengthy inclined

conveyor (13a) by arranging the threshing cylinders

on an incline to perform the dual function of elevating

and threshing. *

The District Court’s opinion states: “The only pos-

sible evidence of a new combination in patent 2,974,467

—

is the method whereby the peanut vines are fed directly

from the rotary pickup to the first threshing cylinder”’

(lla).

Further,

“In fact the only thing that is at all different in

the front end of Long’s combine is the arrange-

ment whereby the conveyor is eliminated and the

first threshing cylinder is lowered. Even recog-

nizing, as the plaintiff suggests, that the advan-

tages of such an order are to reduce the overall

height of the combine and prevent the vines from

getting clogged at the point of transfer to the first

threshing cylinder, it cannot be concluded that this

arrangement produces a new result either as re-

lated to the entire combine or the working of the

individual parts.’”’ (13a, 14a).

The combines of the prior art were discontinued

when Long’s invention became known. The District

Court stated :

‘“«* * * we take cognizance of the fact that some

of the combines considered here as part of the

prior art had been discontinued around the time

that Long received his patent.* * * (37a).

* * *

‘“‘We are also mindful of the fact that while

many peanvt combines previous to Long’s were

not commercially feasible, Long’s machine has

as substantial commercial success. * * *”’

(38a).

The conceded novelty and advantages of Long’s com-

bine should be considered in the context of the im-

portance of such combines. Without belaboring this

petition with references to the transcript of trial, we

merely refer to the District Court’s findings, including

the reduction of hazard of rain damage to the exposed

. (plowed up) peanut crop (5a).

The second patent, 3,007,475, on the back end of the

combine, is directed to a combination of elements

_ which was described in part by the District Judge as

follows:

‘‘The back end or the cleaning, separating, and

collecting portions of the combine are embodied in

patent number 3,007,475. More specifically, this

patent involves a stepped pan which receives

peanuts falling through the openings in the second

arcuate breastplate (under the rear i

cylinder). Peanuts are also received on this pan

as they drop from the vines as the vines move

downwardly along the vine rack on their way to

being discharged through the exhaust. At the

rearward end of the stepped pan is a declining

they enter a second cleaning phase whereby, due

to air from the first blower passing through the

steps and the jiggling motion of the combine caus-

ing the peanuts to bounce from one step to the

separated from the peanuts. The stepped screen

has holes in it through which an object the size

neath, "Most of the peanuts, however, will be ear.

ri own stepped screen, through tines,

and into the stemmer saws. These little saws will

then, as they rotate and cut the vine stems, carry

the peanuts to the collecting point. * * *’’ (24a)

With reference to the above, the Judge stated:

“Of the three aforementioned elements which

the plaintiff contends makes his machine different

from the prior art, mainly relies on what he

ealls a ‘downwardly incli stepped screen.’ Al-

though it is true that the plaintiff has the first

machine with a stepped screen inclined toward the

rear, it has already been shown that this is not the

first combine to contain a stepped screen; nor is it

the first combine where the screen works in con-

nection with a blower in the cleaning process,

which Long alleges is one of the advan of his

particular arrangement. Furthermore, this is not

the first combine which has suggested a slanting

sereen. * * *”? (31a)

The District Court held both patents invalid on the

ground that each element of each was obvious and that

the claimed combination of each did not constitute in-

vention. Thus, with reference to patent °467 the Dis-

trict Judge stated:

“‘This examination of the prior art as compared

with each element of the patent in question com-

pels the conclusion that each element was obvious

te one of ordinary skill in the art, and therefore

would not be patentable separately. * * * (11a)

“‘The leading ease on the question of whether the

combination of old elements into a new device

constitutes an invention is Great Atlantic & Pacific

Tea Co. v. Supermarket Equipment Co., 340 U.S.

147 * * * (12a)

“An analysis of the facts of our case in light

of the law of A & P as applied to the facts of that

ease leads us to conclude that the combination of

old elements in Long’s patent number 2,974,467

—

does not constitute an invention and therefore the

Court finds the patent invalid under 35 U.S.C,

section 103. ***” (18a)

With reference to patent °475

‘“* * * An in-depth comparison of the prior art,

with what Long claims, will reveal the lack of

novelty and nonobviousness and hence the lack of

invention of any single element. (29a)

‘*From the foregoing survey of the prior art as

compared with each element in the patent, it is

clear that each feature of the patent was obvious

to one skilled in the art and therefore would not

be patentable by itself. It is equally clear, how-

ever, that if invention can be found in the com-

bination of these old elements, then the patent is

valid. * * * (Citing Anderson’s and Webster Loom

Co. v. Higgins, 105 U.S. 580, 1881) (30a)

* * *

«** * * Under the authority of A & P and other

eases heretofore cited, we cannot agree with the

plaintiff, but rather hold that the arrangement of

parts here was only one of mechanical skill and

Gia). be marked with the stamp of invention.”

(31a

In its Summary and Conclusions the District Court

made no mention of Graham or the obviousness test.

It said:

‘** * * Hence, even with the positive aspects of

Long’s machine taken into consideration, we must

find that each patent only evidences mechanical

skill, but is not inventive and therefore not pat-

entable. * * *’? (39a)

REASONS FOR GRANTING THE WRIT

The reasons for granting the writ are:

1. The question of patentability was purportedly

decided in reliance upon A & P Tea Co. v. Supermarket

Corp., 340 U.S. 147 (1950). Graham v. John Deere

Co., 383 U.S. 1 (1966) was not applied. Therefore, the

courts below decided a Federal question in a way which

conflicts with applicable decisions * of this Court.

2. Assuming the viability of A & P, without refer-

ence to Graham, the District Court below erred in its

application of Ad P and was not corrected by the

Circuit Court.

3. There is a basic conflict between Anderson’s (in-

eluding A & P) and Graham which a proper develop-

of the law requires be resolved.

With reference to the first ground, it is clear that

the District Judge decided the issue of patentability

in a way that conflicts with applicable decisions of

this Court. It found the individual elements to be

obvious, indicating a basic misunderstanding of Sec-

tion 103 and Graham, (‘‘the subject matter as a

whole’? or combination must not have been obvious),

but then held under A&P that the combination did

not constitute an “‘invention’’. No finding purports to

apply the true criteria of Graham. Thus, there was .

no attempt to resolve the level of ordinary skill in the

pertinent art, despite the District Court’s finding that

Long’s patented combine supplanted prior combines.

*Two companion cases, Colgate-Palmolive Co. v. Cook Chem.

Co., 383 US 1 (1966) and United States vy. Adams, 383 US 39

(1966) were decided simultaneously.

Nor did the District Court make a direct determina-

tion of obviousness or nonobviousness of the combina-

tion nor give any weight to secondary considerations

as set forth in Graham.

In short, the District Court purported to apply

Ad&P and did not apply Graham.

The opinion of the Cireuit Court states that it

agrees with the District Court’s decision on the ground

of obviousness. To the extent that the District Court’s

decision is based on obviousness it is clearly erroneous,

as pointed out above, and hence so is the affirmance.

The application of the obviousness test by the

Courts below is, therefore, clear error. The reliance

on Ad P, instead of on Graham, unless the ‘‘inven-

tion”’ criteria of Ad P has been revived by Ander-

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

U.S. 57 (1969), is also clear error and reason for

granting this writ.

Assuming the viability of A dP without Graham,

the District Court erred in its application of this case.

In Ad P this Court stated as guiding principles:

‘‘Neither Court below has made any finding that

old elements which made up this device perform

any additional or different function in the com-

bination than they perform out of it. * * *”

Further, the Court stated:

‘“* * * A patent for a combination which only

unites old elements with no change in their respec-

tive functions, such as is presented here, obviously

withdraws what already is known into the field

of its monopoly and diminishes the resources

available to skillful men. * * *”’

In its findings and conclusions the District Court

stated that Long’s combine was novel in “‘the arrange-

ment whereby the conveyor is eliminated and the first

threshing cylinder is lowered’’ (13a).

The Court then concluded:

“Even recognizing, as the plaintiff suggests, that

the advantages of such an order are to reduce the

overall height of the combine and prevent the

vines from getting clogged at the point of transfer

to the first threshing cylinder, it cannot be con-

cluded that this arrangement produces a new result

either as related to the entire combine or to the

working of the individual paris. * * *’’ (13a, 14a)

Thus, in the case at bar there was no finding whether

the elements perform any additional or different func-

tion in the combination than they perform out of it.

It is inherently certain that they do since their con-

junction performs all of the necessary functions of

prior art combines even though the prior art conveyor

has been eliminated. Furthermore, the advantages,

including preventing the vines from getting clogged,

are indicative of a new or different function. On its

face this meets the tests set forth in A & P, as well as in

Anderson’s. Both of these refer to a ‘‘new or different

function’. Thus, the decision below purporting to be

based on A & P cannot be supported since no consid-

eration was given to whether a ‘‘new or different func-

tion” is produced. While the Judge stated that ‘‘it

cannot be concluded that this arrangement produces

a new result * * *’’, (14a), this conclusion cannot be

valid without considering whether the elements pro-

duce a ‘‘new or different function” under either A & P

or Anderson’s.

A further reason for allowance of the writ is the

necessity for resolving--the conflict that has resulted

from this Court’s decisions in Graham and Anderson’s.

This has direct application to this case because the

District Judge relied on the ‘‘invention’’ test of A & P

which may have been revived in Anderson’s, despite

giving lip service to Graham. No explanation is given

in the Circuit Court’s per curiam opinion for its pur.

ported affirmance of the holding of obviousness.

The District Court’s reasoning is a return to that

which was frequently applied prior to Graham in

which this Court observed that invention ‘‘cannot be

defined in such manner as to afford any substantial

aid in determining whether a particular device involves

an exercise of the inventive faculty or not’’ (383 US.

at 11,12). A primary purpose of this Court’s instrue-

tive decision in Graham apparently was to present a

functional or objective approach to a determination

of patentability in place of the ‘‘less definite ‘inven-

tion’ language of Hotchkiss* that Congress thought

had led to ‘a large variety’ of expressions in decisions

and writings’’ (383 U.S. at 14).

Apparently due to Anderson’s, however, Graham

has been shoved aside although given lip service as

indicated by the holdings below.

Since this Court’s reversal of the Fourth Circuit

Court of Appeals in Anderson’s in December 1969, no

patent has been upheld by that Court. Furthermore,

except for three cases in which it reversed lower court

decisions upholding patents, that Court has merely af-

* Hotchkiss v. Greenwood, 11 How. 248 (1851).

firmed per curiam without explanation all of the eight

decisions against patents which it has received on ap-

peal (47a).

In the five years prior to Graham (1961-1965, inclu-

sive) the Fourth Cireuit Court of Appeals ruled in

favor of patents in seven cases. It reversed to rule

against patents in six. It affirmed decisions below

against patents in nine, but in five of these it wrote

substantial opinions with reasons, affirming per curiam

without reasons in only four (44a, 45a).

In the period between Graham (February, 1966) and

Anderson’s that Court upheld two patents, reversed

favorable holdings in three, wrote affirming opinions

with reasons against patents in four, and affirmed per

curiam without reasons in five (46a).

Thus, its attitude since Anderson’s has rigidified to

the point where there is no effective appellate review

of a decision against a patentee in the area covered

by the Fourth Cireuit Court of Appeals. That this

condition will continue until this Court speaks again

appears virtually certain. That this condition exists,

in view of the mandates of the Constitution, Article I,

Section 8, and of the Statutory presumption of valid-

ity, 35 U.S.C. 282, indicates the need for clarification

by this Court at this time.

The confusion that has resulted from this Court’s

decision in Anderson’s has been manifested in many

petitions for certiorari, in decisions of the lower courts,

and by commentators.

Decisions in other Circuits subsequent to Anderson’s

indicate shelving of Graham. See, for example, Ezer-

Genie Inc. v. McDonald, 453 F. 2d 132 (9 Cir. 1971),

cert. den. April 17, 1971, No. 71-1042, in which the Cir-

cuit Court relied on A & P and Cuno Corp. v. Auto.

matic Devices Corp., 314 U.S. 84 (1941). The over.

riding impact of A & P and Anderson’s is indicated jn

Blair v. Dowds Ince. et al., 438 F, 2d 136 (D.C. Cir,

1970), although reference is there made to Graham,

-In Hubner v. Sunbeam Corp., 320 F. Supp. 298

(SDNY 1970), affirmed per curiam, 450 F. 2d 878

(2 Cir. 1971), the Court referred to the Graham

criteria, made the initial step of determining the leve]

of ordinary skill in the art, but then applied A ¢ P

and Anderson’s. In the 1971 Patent Law Annual of

thy Southwestern Legal Foundation, the article

‘Recent Developments in Patent Law’’ by D. Carl

Richards at page 262 comments on this case:

“Such a holding is reasonably to be expected

after the Anderson’s-Black Rock decision. It is

contended by some that the two tests are. anti-

thetical and that Section 103 and Graham effec-

tively overruled the earlier A & P standard. In

any case, they are different tests and are not

easily reconcilable; consequently, one must be

subordinated to the other in a given case. In

Black Rock and again in Hubner, the Graham test

_ appears to have taken a back seat to the older,

more subjective A & P standard.”’

The article ‘‘ After Black Rock: The New Tests of

Patentability—The Old Tests of Invention’’, 39 Geo.

Wash. L. Rev. 123, 139 et seq. (1970) begins:

“In Anderson’s-Black Rock Inc. v. Pavement

Salvage Co. the Supreme Court revived the illu-

sory ‘invention’ standard as a requisite of patent

validi | ** #99

That Anderson’s has resulted in a divergence among

the Circuits is stated by authorities including Pro-

fessor Kayton of George Washington University, in

“The Crisis of Law in Patents’? (Patent Resources

Group, Inc., Washington, D. C. 1970).

Professor James B. Gambrell, New York University

School of Law stated :

‘‘Tt seems to me that non-obviousness—what the

skilled man in the art does—is in bad disarray

among the Circuits. I don’t think it is any secret

that most of the Circuits are not uniform either

within the Circuits or between the Circuits; * * *

* * *

«“* * * although the Court did not deal with the

problem specifically and indeed it did not have to

since it remanded for further evaluation by the

trial court in the Blonde-Tongue case, the point

we were trying to make is that it is an impossibility

to deal with 103 in terms of looking at what the

invention is, what the priority is, what the level

of skill in the art is, and so on, and at the same

time apply some synergistic, magical term as An-

derson’s-Black Rock and some of its predecessor

cases, Lincoln Engineering[*] and some others,

have suggested is necessary.’’ (American Bar As-

sociation, Section of Patent, Trademark and Copy-

right Law, 1971 Summary of Proceedings, pp. 161,

162)

The difficulty in Anderson’s is that the requirement

of the ‘‘new or different function’? producing a

“synergistic result’? and the requirement for ‘‘inven-

tion’’ are both essentially subjective standards whose

determination is elusive. Thus in A & P, even though

the frame and store counter cooperated, the Court re-

lied on Lincoln Engineering Co., supra, to state that

* Lincoln Engineering Co. v. Stewart-Warner Corp., 303 US 545

(1938).

the parts produce “no new or different function’ and

that “‘only when the whole in some way exceeds the

sum of its parts is the accumulation of old devices

patentable.”’

The question of a “‘synergistic result’’ (Anderson’s)

or ‘‘unusual or surprising consequences from the unifi-

cation of the elements’’ (A & P) is on its face a subjec-

tive evaluation. However, both Graham and Adams

instruct that objective standards are required by the

Statute. The subjective tests should not rest in the

law unless there is nothing better. Section 103 as

interpreted by Graham presents better criteria and is

equal to the task without being overridden by the

primarily subjective and negatively biased test set

forth in Anderson’s.

A & P and Anderson’s stand for the ‘‘improbability

of finding invention in an assembly of old elements”

(A & P, 340 US. at 152), despite the fact that ‘“sub-

stantially every invention * * * consists of former ele-

ments in a new assemblage’”’ (Reiner v. I. Leon Co.,

Inc., 285 F’. 2d 501, 503 (2 Cir., 1960, Hand, J.). There

is no logical reason to approach all combinations of

elements as probably unpatentable. Why should the

law, which zealously protects our personal rights, in-

cluding the right to use our intellects, be biased against

our intellectual property rights? Both are keystones

of this country’s greatness.

In Blonder-Tongue Inc. v. University of Illinois

Foundation, 402 U.S. 313 (May 3, 1971), this Court

declined to consider the issue of patentability. How-

ever, Mr. Justice White’s opinion referring to this

issue states:

iene For example, if the issue is nonobvious-

ness, appropriate inquiries would be whether the

first validity determination P oar’ ipa to employ

the standards announced in Graham v. John Deere

Co., * % % 9)

On the other hand, in Deepsouth Packing Co., Ince.

v. The Laitram Corp., No. 71-315, (May 30, 1972),

although the issue of patent validity was not before the

Court, Mr. Justice White’s opinion observed:

““* * * Invention was recognized because Laitram’s

assignors * combined ordinary elements in an ex-

traordinary way—a novel union of old means was

designed to achieve new ends.* Thus, for both in-

ventions ‘the whole in some way exceed [ed] the

sum of its parts.’ Great A & P Tea Co. v. Super-

market Equipment Corp., 340 U.S. 147, 152

(1950).”’ (Footnotes omitted in printing)

CONCLUSION

Petitioner respectfully requests that this petition

for a writ of certiorari be granted.

Respectfully submitted,

A. Yates DowELL, JR.

Suite 705

2001 Jefferson Davis Hwy.

Arlington, Virginia 22202

Attorney for Petitioner

Of Counsel:

Henry C. Bourne

P. O. Box 1158

Tarboro, N. C. 27886

ati Pn

Free ane

mecse 3.4

—

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 71-2016

Lone Manuracturntne Company, Appellant,

versus

Liston ImpLement Company, Appellee.

No. 71-2017

Lone Manvuracturtne Company, Appellee,

versus

Liauston Imptement Company, Appellant.

Appeals from the United States District Court for the

Eastern District of North Carolina, at Raleigh.

Walter E. Hoffman, District Judge.

Argued March 8, 1972. Decided April 4, 1972.

Before Haynsworth, Chief Judge, and Winter and Rus-

sell, Circuit Judges.

Opinion

Per Curiam:

After full consideration of the briefs and oral argu-

ment, we find ourselves in agreement with the decision of

the District Court that both of the appellant’s patents are

invalid on the ground of obviousness to persons reason-

ably skilled in the art. Long Manufacturing Co. v. Lilliston

Implement Co., E.D.N.C., 328 F.Supp. 268.

We decline to award the attorneys fees sought by the

appellee since this is net one of the ‘‘exceptional cases’’

to which this form of relief in patent cases is limited.

Affirmed. —

APPENDIX B

(Filed May 24, 1972)

Order

Upon consideration of the bills of costs, motions, ang

responses submitted by the parties through counsel,

It is Onpzxep that:

(1) the bills of costs are filed;

(2) each party shall bear its own costs.

Samvuget W. PHILuIPs

Clerk

APPENDIX C

Memorandum Opinion of the District Court

(Filed 6/17/71)

The plaintiff, Long Manufacturing Company, a corpo-

ration of the State of North Carolina, having its principal

offices in Tarboro, North Carolina, has brought this action

against the defendant, Lilliston Implement Company (now

by change of name Lilliston Corporation), a corporation

of the State of Georgia, having its principal offices in

Albany, Georgia, and a place of business at Weldon,

North Carolina, located within the Eastern District of

North Carolina. The plaintiff alleges that the defendant

has infringed claims one through four of patent number

2,974,467, issued March 14, 1961, to W. R. Long, and all

eight claims of patent number 3,007,475, issued November

7, 1961, to W. R. Long. In defense to these allegations,

the defendant asserts that (1) all the claims involved are

invalid because of lack of invention over the prior art;

(2) all the claims involved are invalid by reason of being

—.

vague, indefinite and incomplete; (3) defective oaths

render patent number 2,974,467 null and void and there-

fore patent number 3,007,475 is invalid because of pub-

lie use; (4) the claims of patent number 3,007,475 are

invalid because in the specifications and drawings of that

patent the inventor did not disclose the best mode con-

templated by him in carrying out the alleged invention;

and (5) even assuming the validity of the patents in

question, there has not been any infringement because of

material structural differences and in light of the doctrine

of file wrapper estoppel.

Both of the patents in question relate to a peanut

combine and stem from a single application which was

directed to the overall combine. The Patent Office, how-

ever, required division on the ground that the pickup

and threshing portions, or front end of the combine,

should be separately patented from the cleaning, separat-

ing, and collecting portions or back end of the combine.

The initial application filed June 12, 1958, finally matured

into patent number 2,974,467 and was entitled, ‘‘Pickup

and Threshing Unit for Peanut Combine.’’?

The second application was filed March 2, 1960. This

application subsequently became patent number 3,007,475

and was entitled, ‘‘Peanut Combine.’’* Both patents were

duly assigned by W. R. Long to the plaintiff, Long Manu-

facturing Company.®

History oF DEVELOPMENT OF THE

Peanut CoMBINE

Peanuts, which grow underground attached to.vines ex-

tending above the ground, are harvested by being plowed

1 Plaintiff’s exhibit No. 1.

? Plaintiff’s exhibit No. 2.

*Plaintiff’s exhibit No. 12. See also plaintiff’s exhibit No. 1

and defendant’s exhibit No. 18 (front page and page 74).

- wp and subsequently removed from the vines. Prior to

the combine, the plowed-up vines with the peanuts attached

were stacked around poles for a period of two to six weeks

to permit drying of the vines and peanuts before picking.

The stacking, which kept most of the peanuts off the

ground and thereby prevented rotting in the rainy weather,

was done by hand, as was the tedious task of picking.

_ At least as early as 1913, machines were employed to

pick the peanuts from the vines and remove the stems

from the peanuts. The earliest peanut pickers were op-

erated while in a stationary position, either working around

the poles or by having the stacks of vines brought to the

machine. These machines, which operated in a stationary

position, were generally of two types: (1) the carding-type

machine whereby the peanut vines would be placed ona

long chain conveyor which would draw the vines throngh

a series of fixed spring fingers which, in turn, would comb

the peanuts from the vines;* and (2) the cylinder-type

machine whereby the peanut vines placed in the machine

would be drawn through the machine by the fingers, which

were attached to the outer rim of the cylinders, drawing

the vines along as the cylinders rotated. At the same time

spring fingers extending upwardly from arcuate breast-

plates beneath each cylinder would comb the peanuts from

the vines as the vines passed between the breastplate and

cylinders.®

Although the stationary pickers substantially reduced

the labor involved in the harvesting process, they still

* Patent number 1,081,593 issued to H. W. Eisenhart and M. W.

Darden (defendant’s exhibit No. 53).

5 Examples of this type machine are the Eisenhart, et al patent

(defendant’s exhibit No. 53); Morris patent (defendant’s exhibit

No. 59) ; and the old Lilliston patent (defendant’s exhibit No. 56).

® Examples of this type of machine are the Livermon patent (de-

fendant’s exhibit No. 52); the Ronning patent (defendant’s ex-

hibit No. 54); and the two Good patents (defendant’s exhibits

Nos. 50 and 51).

—

required about twelve men for operation. Around 1945,

the idea developed that labor could further be reduced by

producing a combine which would move through the fields

and harvest the peanut vines, which would previously be

plowed up and placed in windrows, rather than operating

the machines in a stationary position. In addition to sav-

ing labor, another attractive feature about this method of

harvesting is that the peanut vines could be harvested only

a short period of time after having been dug up, since

they would dry more quickly in the windrows than while

piled up around stakes. Accordingly, the hazard of rain

damage to the exposed peanuts would be reduced. Pur-

suant to these ideas and advantages, many machines were

developed and patented, among which are the combines

involved in this litigation.

W. R. Long, the president of the plaintiff company

started working on ‘the patented combine in 1956 and, by

1957, had built his first prototype. Like the Lilliston ma-

chine which was developed around 1964, Long’s combine

is designed to pick up the vines and through a process of

threshing cylinders and cleaning and separating devices

to efficiently harvest the peanuts.

Burpen oF Proor

At the outset, we note that, under 35 U.S.C., section 282,

a presumption of validity attaches to a patent when it is

granted by the Patent Office.’ This apparently stems from

the expertise credited to patent examiners in these matters.

It is clear, however, that this presumption is not conclu-

sive. It may be rebutted by clear and convincing evidence®

Keiser v. High Point Hardware Co., 311 F. (2d) 850 (4 Cir.,

1962) ; Colgate-Palmolive Co. v. Carter Products, Inc., 230 F. (2d)

855 (4 Cir., 1956), cert. denied, 352 U.S. 843 (1956), rehearing

denied, 352 U.S. 913 (1956).

8 Neff Instr. Corp. v. Cohu Electronics, Inc., 298 F. (2d) 82 (9

Cir, 1961).

and may be overcome when pertinent prior art was not

before the Patent Office during its consideration of the

application.® This is important to note at this point be.

cause, as will be shown in the text of this opinion, the

defendant heavily relies on several combines” as references

for invalidating the plaintiff’s patents (particularly the

Frick machine) which were not cited and apparently were

not before the Patent Office during the application process,

Patent Numser 2,974,467

As previously noted, patent number 2,974,467 relates

to the front end or the pickup and threshing part of

the peanut combine. More specifically, it involves a rotary

pickup which, rotating in a clockwise direction, picks up

the vines of peanuts after they have been plowed up and

gathered in windrows in the field and are sufficiently dry

for harvesting. The vines which are picked up by the

reel are then put into contact with a large threshing cylin.

der with spring fingers which is rotating in a counter.

clockwise direction, thereby carrying the vines higher and

to the rear of the combine to a transfer cylinder. The

transfer (or stripper cylinder), also with spring fingers,

rotates in a counterclockwise direction and carries the

vines higher and to the rear to another threshing cylinder,

The second threshing cylinder also has spring fingers and

also rotates in a counterclockwise direction carrying the

vines, which are by this time stripped of peanuts, toward

the rear of the combine and out the exhaust. Underneath

each of the two threshing cylinders are arcuate perforated

® A R Ine. v. Electro-Voice, Inc., 311 F. (2d) 508 (7 Cir., 1962);

Jaybee Mfg. Corp. v. Ajax Mfg. Corp., 287 F. (2d) 228 (9 Cir,

1961); Gillette Safety Razor Co. v. Cliff Weil Cigar Co., 107

F. (2d) 105 (4 Cir., 1939).

10 These include the Frick combine (defendant’s exhibit No. 49

and exhibit No. 82); the Livermon combine (defendant’s exhibit

No. 108) ; Case combine (defendant’s exhibit No. 21 and No. 36);

and the Boesch patent (defendant’s exhibit No. 60).

breastplates with fingers extending upward which, coacting

with the fingers of threshing cylinder and the: rotating

motion, perform the threshing function. The only differ-

ence between the two arcuate perforated breastplates is

that only the second one (the breastplate under the smaller

of the two threshing cylinders) has holes large enough to

permit peanuts to fall through to a pan below. Under-

neath the transfer cylinder is a flat imperforate plate

which connects the two aforementioned arcuate perforated

breastplates.

The plaintiff alleges that of the five claims in the pat-

ent, claims one through four have been infringed. These

claims are as follows:

‘1. In a peanut combine relatively large threshing

cylinder means having spring fingers for engaging

the peanut vines, a pickup slightly ahead of and below

said threshing cylinder means, said pickup being lo-

cated near the earth and having fingers for engaging

the peanut vines and for conveying them into contact

with said threshing cylinder means, a breastplate

located rearwardly of said pickup and beneath and in

operative relation to said threshing cylinder means,

said breastplate having openings therein and a series

of spring fingers extending through said openings

upwardly into the path of movement of the vines and

operating in conjunction with the spring fingers on

said threshing cylinder means for detaching the

peanuts from the vines, the size elevation and rela-

tional arrangement of the pickup and the threshing

cylinder means permitting the combine to be made of

relatively low overall height. :

‘2, The structure of claim 1 in which said threshing

cylinder means comprises spaced multiple threshing

"See plaintiff’s exhibit No. 1 and defendant’s exhibit No. 72

and No. 73.

- eylinders one rearwardly and slightly higher than the

other,

‘3, The structure of claim 1 in which said threshing

cylinder means comprises spaced threshing cylinders

and said breastplate includes perforated arcuate por.

tions one beneath each of said threshing cylinders

with an imperforate portion therebetween and with the

openings beneath the rearmost threshing cylinder being

of a size to permit the peanuts to fall therethrough.

‘‘4. The structure of claim 1 in which said pickup is

of the reel type and with spring fingers for engaging

the peanut vines.”’

An analysis of the above claims reveals that the most

significant features of the front end of the combine are:

(1) a reel type of pickup located near the earth which has

fingers for engaging the peanut vines; (2) a large thresh.

ing cylinder which has spring fingers for engaging the

vines; (3) a second threshing cylinder located rearwardly

and slightly higher than the first cylinder; (4) arcuate

perforated breastplate beneath each cylinder with spring

fingers extending upwardly which, operating in conjunc.

tion with the spring fingers of the cylinders, detach the

peanuts from the vines; and (5) the openings in the rear-

most perforated arcuate breastplates being large enough

to permit peanuts to fall through to the stepped pan

below. With these particular features in mind, the first

question we must resolve is whether those features indi-

vidually or as a combination are anticipated by, the prior

art so as to render the patent invalid in light of 85 U.S.C,

section 103.

——

Prior Art

Title 35 U.S.C., section 103, states:

‘A patent may not be obtained through the invention

is not identically disclosed or described as set forth

—e

—— ie

in section 102 of this title, if the differences between

the subject matter sought to be patented and the prior

art are such that the subject matter as a whole would

have been obvious at the time the invention was made

to a person having ordinary skill in the art to which

said subject matter pertains. Patentability shall not

be negatived by the manner in which the invention

was made.’’

The recent case of Graham v. John Deere Co., 383 U.S. 1

(1966) established the test to be applied for cases arising

under 35 U.S.C., section 103.'% In Graham, Mr. Justice

Clark said:

“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 ascertained; and

the level of ordinary skill in the pertinent art resolved.

Against this background, the obviousness or nonobvi-

ousness of the subject matter is determined.’’

Applying the Graham test to the case at hand, it is clear

that all the working parts of the outstanding features of

Patent Number 2,974,467 appear in previous patents and

combines, which must be considered part of the prior art."

The reel type of pickup which is located near the ground

and which has fingers for engaging the peanut vines is

”In a long and complete discussion of the requirements of

patentability, the Supreme Court noted that, in addition to the

long-reeognized requirement of novelty and utility, Congress, in

enacting section 103 in 1952, added a third statutory test of non-

obviousness which must be met to establish a valid patent. Graham

v. John Deere Co., 383 U.S. 1, 3 (1966).

*Graham v. John Deere Co., 383 U.S. 1, 17 (1966).

'*2 Deller’s, Walker on Patents, section 107, page 114 (1964).

10a

clearly shown in the Frick, Krause,’* Livermon,” Case,#

and McElhoe*® combines. A threshing cylinder located

upwardly and rearwardly from the pickup appears in the

Frick, Krause, Livermon, Ronning,” Landrum,” and two

Good” combines. In the Frick and Good combines, and

possibly even the Livermon and Ronning patents, the first

threshing cylinder is ‘‘relatively large.’?* In virtually

all of the above-cited prior art combines, the cylinders

have spring fingers; there are arcuate perforated breast.

plates beneath each cylinder; spring fingers extend up.

wardly from each breastplate and coact with the fingers

on the cylinders to thresh the peanuts from the vines ag

they pass between the cylinders and the breastplates; and

the breastplates or portions thereof which are above the

pan, which receives the threshed peanuts, have holes large

enough for a peanut to pass therethrough. Like the Long

combine, the Livermon patent has a series of two cylinders

15 Defendant’s exhibits No. 49 and No. 82.

16 Defendant’s exhibit No. 55. It should be noted that this is a

combine used primarily for harvesting grain. This was, however,

one of the patents cited by the Patent Office in granting Long’s

patent (see plaintiff’s exhibit No. 1), and therefore may be con-

sidered significant for its revealing structure of combines in general.

17 Defendant’s exhibit No. 108.

18 Defendant’s exhibit No. 30.

19 Defendant’s exhibit No. 124.

20 Defendant’s exhibit No. 54. Like Krause, this is primarily a

grain combine and was also cited by the Patent Office in granting

Long’s patent (see plaintiff’s exhibit No. 1).

21 Defendant’s exhibit No. 118.

22 Defendant’s exhibits No. 50, 51 and 89.

78 At this point, the term ‘‘relatively’’ is used to show the rela-

tion of this cylinder to both the entire combine and the other

cylinders. This term will be discussed at greater length later in

the opinion in the context of whether the plaintiff, by its use, has

clearly defined his claim.

eee

lla

whereby the rearward one is a little higher than the ‘first.

It should also be noted that the configuration of the two

cylinders with a transfer cylinder between found in the

Livermon patent, along with arcuate and perforated

breastplates under each of the threshing cylinders and

an imperforate plate which attaches the two arcuate per-

forated breastplates, is almost identical to the pattern

used by Long.

This examination of the prior art as compared with each

element of the patent in question compels the conclusion

that each element was obvious to one of ordinary skill in

the art, and therefore would not be patentable separately.

Even so, a combination of these old elements could be pat-

entable if invention can be found in the combination.*®

The only possible evidence of a new combination in patent

number 2,974,467 is the method whereby the peanut vines

are fed directly from the rotary pickup to the first thresh-

ing cylinder. All previous combines that have employed

a rotary type pickup have had either a conveyor or auger

feeder of some type between the rotary pickup and the

first threshing cylinder. In essence, therefore, the ques-

tion is whether the fact that Long has eliminated the con-

veyor and brought the first threshing cylinder to a lower

height in the machine so that the vines picked up by the

**Compare defendant’s exhibit No. 52 (figure 2) (also seen in

defendant’s exhibit No. 88) with plaintiff’s exhibit No. 1 (figure 1)

(also seen in plaintiff’s exhibit No. 2-A).

*5 Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc.,

396 U.S. 57 (1969) ; Webster Loom Co. v. Higgins, 105 U.S. 580

(1881) ; Heyl & Patterson, Inc. v. McDowell Co., Ine., 317 F. (2d)

719 (4 Cir., 1963) ; Black & Decker Mfg. Co. v. Baltimore Truck

Tire Service Corp., 40 F. (2d) 910 (4 Cir., 1930).

It is significant to note that even the plaintiff’s expert, Nolan,

testified that all of the elements, with the possible exception of a

finger-type pickup, were old in the art of peanut combines. Nolan’s

primary contention, however, was that it was a new combination

of these elements which made the patent valid. (T.R. pp. 284-286)

l2a

rotary pickup are directly conveyed to the threshing cyiip.

der is an invention so as to validate the patent.

The leading case on the question of whether the com.

bination of old elements into a new device constitutes an

invention is Great Atlantic & Pacific Tea Co. v.

market Equipment Co., 340 U.S. 147 (1950). In that case

the patentee asserted invention of a cashier’s counter

equipped with a three-sided frame which would move the

groceries placed on the counter. In discussing the test of

inventiveness from old elements combined, Mr. Justice

Jackson said (p. 152) :

‘‘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. Elements may, of course,

especially in chemistry or electronics, take on some

new quality or function from being brought into con-

cert, but this is not a usual result of uniting elements

old in mechanics.’’

In holding that the counter in question did not consti-

tute an invention, the Court noted:

“*This counter does what a store counter always has

done—it supports merchandise at a convenient height

just what any such rack would do on any smooth sur-

face—and the guide rails keep it from falling or slid-

The Court then added its advice to other courts faced

with the same problem, where it said (pp. 152-153):

*‘Courts should scrutinize combination patent claims

with a care proportioned to the difficulty and im-

13a

probability of finding invention in an assembly of old

elements. The function of a paten. is to add to the

artisans. A patent for a combination which only

An analysis of the facts of our case in light of the law

of A & P as applied to the facts of that case leads us to

conclude that the combination of old elements in Long’s

patent number 2,974,467 does not constitute an invention,

and therefore the Court finds the patent invalid under 35

US.C., section 103. As previously noted, every essential

feature of patent number 2,974,467 is included at least

once in the prior art, and some virtually span all the

knowledge gathered on peanut combines over the first half

of the twentieth century. In addition, the functions of

the elements in Long’s combine are the same as the

functions they have performed in other combines. The

reel type pickup conveys the vines initially into the ma-

chine as the reel type pickup does in Frick, Krause, Liver-

mon and Case. The large threshing cylinder, arcuate

and perforated breastplates, spring fingers extending from

both the cylinders and breastplates, and the openings in

the breastplates large enough to permit peanuts to fall

through to a pan below, all do the same things im the

same way that almost every cylinder type combine known

before has done. In fact, the only thing that is at all

different in the front end of Long’s combine is the ar-

rangement whereby the conveyor is eliminated and the

first threshing cylinder is lowered. Evven recognizing, as

the plaintiff suggests, that the advantages of such an

order are to reduce the overall height of the combine

l4a

and prevent the vines from getting clogged at the point

of transfer to the first threshing cylinder,” it cannot be

concluded that this arrangement produces a new result

either as related to the entire combine or to the working

of the individual parts. While the patentee should

commended for his success in arranging old

ments into a mechanically functional and most desirable

combine, the new arrangement is only evidence of mechan.

ieal skill and falls short of the test of inventiveness”

The principle of mechanical skill not amounting to in.

vention was well-stated in Hutchinson Mfg. Co. v. Mayrath,

192 F. (2d) 110 (10 Cir., 1951), cert. denied 343 U.S. 914

(1952). That case is particularly applicable to the case

at hand since all of the elements in each of the claims

of the patent in question were disclosed in prior patents,

although no single prior patent or disclosure

of the elements in a single device. that

each of the elements in the combination patent performed

the same functions as they had in previous patents

that together they produced ‘‘no result other than

aggregate results of such functions,’’ the Court held

the combination patent did. not meet the A

whereby ‘‘the whole must exceed the sum of i

The Court then went on to say:

** And where a patentee brings together old

in a mechanism, involving no new principle,

duce an old result, although he produces a i

that is more efficient and hence more useful in

art, it is still the product of mechanical skill and not

of invention.’”’ *

| © This was found to be o particular problem in the developunt

of the Turner combine. See T.R. pp. 157-159 and 879-881.

27 Altoona Publix Theatres, Ine. v. American Tri-Ergon Corp.

294 U.S. 477 (1935).

7 Hutchinson Mfg. Co. v. Mayrath, 192 F. (2d) 110, 113 (10

Cir., 1951), cert. denied, 343 U.S. 914 (1952). This principle was ~

also adopted by the United States Court of Appeals for the

T &

[ tieeE

l5a

LypEFrNITENeEss oF THE CLAms

In addition to the contention that patent number

2,974,467 is invalid in view of the prior art, the defendant

argues that it is also invalid by reason of being vague,

indefinite, and incomplete and does not, therefore, meet the

standard set forth in 35 U.S.C., section 112. Title 35

U.S.C., section 112 states in part:

‘“‘The specification shall contain a written description

of the invention . . . in such full, clear, concise and

exact terms as to enable any person skilled in the

art ... 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 distinctly claim-

ing the subject matter which the applicant regards as

his invention.’’

The defendant contends that the terms ‘‘relatively large’’

when describing the first threshing cylinder and ‘‘rela-

tively low’’ when describing the overall height of the com-

Fourth Cireuit in Ingersoll-Rand Co. v. Black & Decker Mfg. Co.,

192 F. (2d) 270 (4 Cir., 1951), cert. denied, 343 U.S. 914 (1952).

See also, B. F. Goodrich Co. vy. United States Rubber Co., 147

FP Supp. 40 (D.Md., 1956), aff’d 244 F. (2d) 468 (4 Cir., 1957).

It is interesting to note that, as the Supreme Court indicated in

A & P, a combination of old elements in the fields of chemistry or

electronics may well take on some new quality or function and

result in patentability. See for example United States v. Adams,

383 U.S. 39 (1965), where a combination of old elements dealing

with the interaction of metals and chemicals in a battery was held

to be patentable, and Entron of Maryland, Inc. v. Jerrold Elec-

tronies Corp., 295 F. (2d) 670 (4 Cir., 1961), where a combina-

tion of old elements dealing with tap-off couplers for coaxial trans-

mission lines used for supplying impulses to individual television

sets was also held to be patentable. The Supreme Court went on

to say in A & P, however, that such was not the ‘‘usual result’’

when combining old elements in the field of mechanics.

l6éa

bine are not so exact as to enable one skilled in the art

to make use of them. These terms are both mentioned in -

claim number one. Claims number two, three and four

are all dependent upon claim number one, and therefore,

if the terms are so indefinite as not to sufficiently describe

the structure to one of ordinary skill in the art, all four

claims must be invalidated.

The immediate question that arises as to the term

‘‘relatively’”’ is, ‘‘relative to what?’’® Stated otherwise,

what is the basis of comparison which makes the first

threshing cylinder ‘‘relatively large’’ and the overall

height ‘‘relatively low?’’ An examination of the drawing

included in the patent ® reveals that the first threshing

cylinder is indeed large as compared to either the transfer

cylinder or the second threshing cylinder. It is also large

as compared to the entire machine as its diameter appears

to be about one-half of the height of the combine. Fuar-

thermore, it is large as compared to the threshing section

as it appears to encompass about one-third of the volume.

In addition to these possibilities," which all deal with

size, still another was suggested by the plaintiff’s expert,

Nolan, who said he thought ‘‘the term ‘relatively large’

meant threshing capacity as much as diameter size.’’™

Nolan admitted on cross-examination, however, that there.

was no basis given in the patent for defining the term™

2° B. F. Goodrich Co. v. United States Rubber Co., 147 F.Supp.

40, 75 (D.Md., 1956).

3° Plaintiff’s exhibit Nos. 1 and 2-A. The Court recognizes the

principle that the claims should be read in light of the specifica

tions and drawings. Reynolds v. Whitin Machine Works, 167

F. (2d) 78 (4 Cir., 1948). Even when this is done, however, con-

fusion still exists as to what the term ‘‘relatively’’ means.

81 TR. pp. 957-960.

22 TR. p. 240.

33 T RK. p. 283.

—

17a

The claim that the combine is of a ‘relatively low’’

overall height is yet more elusive, for there is no basis

of comparison one can derive by looking at this combine

alone. As compared with other combines, Long’s may

be lower in height, but where as here no measurements

are given, even this cannot be ascertained.

Courts have often looked with disfavor on terms such

as ‘‘relatively,’’ especially where, as here, it is used to

describe what the plaintiff contends are key parts to the

patent. In applying the same theory to our case, it is

important to remember that the plaintiff here relies heavily

on the contention that the strucure of his combine is

something new and therefore patentable. He also contends

that two of the main features of this structure are the

large threshing cylinder and the low overall height of the

combine. No dimensions or bases for comparison can

be found in the claims and description of the patent, how-

ever, and the various possibilities suggested by the term

‘relatively’? only lead to confusion.

In holding claims one through four of patent number

2,974,467 invalid for indefiniteness, the Court finds this

is wholly consistent with the purpose behind 35 U.S.C.,

section 112. Simply stated, that statute requires the clear

definition of the claims of a patent so that one engaging

in the same art will not run the risk of infringement dur-

ing the tenure of the patentee’s monopoly, to the end that,

when the patent expires, the claims will teach one of

ordinary skill in the art how to practice it.™ As shown

herein, the term ‘‘relatively’’ precludes this purpose from

being fulfilled.

% Todd v. Sears Roebuck & Co., 216 F. (2d) 594 (4 Cir., 1954);

B. F. Goodrich Co. v. United States Rubber Co., 147 F.Supp. 40

(D.Md. 1956), aff’d, 244 F. (2d) 468 (4 Cir., 1957).

85 Schiber-Schroth Co. v. Cleveland Trust Co., 305 U.S. 47

(1938) ; Wayne Knitting Mills v. Russell Hosiery Mills, Inc., 400

F. (2d) 964 (4 Cir., 1968), cert. denied, 393 U.S. 1064 (1969) ;

Jones Knitting Corp. v. Morgan, 361 F. (2d) 451 (3 Cir., 1966).

—ay

18a

Derective OatTus

The third defense that Lilliston raises as to patent num.

ber 2,974,467, is that the oaths, which Mr. Long made in

connection with his patent application, were defective

because material changes were made in the application

after the oath was signed and before the application was

filed. Specifically, the defendant contends that the flat

plate, which connects the two arcuate perforated breast-

plates, was originally also perforated, but in the final pat-

ent which was granted it was imperforated. Additionally,

the defendant contends that the first application did not

contain figures 17 through 20, which do appear in the

final patent. On these grounds, the defendant submits

that patent number 2,974,467 is invalid for defective oaths

and consequently patent number 3,007,475 is invalid for

public use. For the reasons stated below, the Court finds

these defenses without merit.

The evidence presented shows that Long filed two oaths

in his application which resulted in patent number

2,974,467. The first oath was executed by Long on March

28, 1958, in Edgecombe County, North Carolina,™ and the

second oath was executed by Long on June 10, 1958, in

Washington, D. C.“ Accompanying the first oath were

written and pictorial descriptions of the combine.** The

written description clearly states that the plate was to

be imperforated® and the illustration of the flat plate

in the initial application is exactly the same as the illustra-

tion on the final patent.“ Based on this, it is clear that

%* Defendant’s exhibit No. 18, p. 25.

37 Defendant’s exhibit No. 18, p. 26.

38 Defendant’s exhibits Nos. 96 and 97.

5° Defendant’s exhibit No. 96, p. 7.

* Compare plaintiff’s exhibit No. 1 (figure 59) with defendant’s

exhibit No. 97 (figure 59).

19a

there was no change in the description of the flat plate

and that it was to be imperforated. Mr. Long, however,

testified on cross-examination that he thought the plate

was to have holes in it.** In resolving this apparent con-

flict, we elect to adopt the writing and description of the

application at the time it was made, rather than the

testimony of Mr. Long as to what he thought some twelve

years later. However, even if the testimony of Mr. Long

were adopted and there was in fact a change in the char.

acteristic of the flat plate, it would not be so significant

or material as to render the oath and consequently both

patents invalid. For the same reason, the Court discards

the contention by the defendant that figures 17 through

20, which appear in the final patent, were not included

in the original application, since they primarily show the

attachment to the tractor and have no material bearing

on the actual working of the combine.

INFRINGEMENT

The final argument that Lilliston makes with regard to

patent number 2,974,467 is that, even assuming the validity

of the patent, there has been no infringement. To support

this contention, Lilliston submits that there are material

structural differences between its combine and Long’s

and, furthermore, the doctrine of file wrapper estoppel

precludes Long from alleging infringement.

The main structural difference that the defendant points

to in showing noninfringement is the ‘‘auger feeder.’ *

This is a cylindrical structure which has spring fingers

and which is located above and to the rear of the reel

pickup. The defendant states that its primary function

is to serve as a transfer system whereby the vines, which

are picked up by the reel, are delivered to the three

threshing cylinders, each successively higher and to the

“TR. p. 133.

* Plaintiff’s exhibit No. 5, figure 2, item B. See also defendant’s

exhibit No. 149.

20a

rear of the auger feeder. The alleged advantage of this

system is that it is more efficient than other ‘combines

because, being wider at the point of pickup and narrower

at the point where the vines are delivered from the auger

feeder to the first threshing cylinder, more vines can be

gathered into the machine on each run through the field,

The defendant strongly urges that the auger feeder

was not intended to, nor does it in fact, act as part of

the threshing cylinder means. The plaintiff, on the other

hand, alleges that the auger feeder is in reality part of

the threshing cylinder means and falls within claim number

one of his patent.“* The question to resolve, therefore,

is whether, even assuming Long’s patent is valid, the

Lilliston combine is the same or substantially the same as

Long’s so as to conclude that there has been infringement

under the doctrine of equivalents.

The leading case on the doctrine of equivalents is Graver

Tank and Manufacturing Company, Incorporated v. Linde

Air Products Company, 339 U.S. 605 (1950). There, the- -

Supreme Court indicated that for infringement there does

not have to be an exact copy of a patent. Rather, in-

fringement can be declared where two machines are sub-

stantially the same with particular reference to the type

of work, the method of operation, and the result. In

establishing what constitutes equivalency the Court stated

that ‘‘equivalency must be determined against the context

of the patent, the prior art, and the particular circum-

stances of the case,’’ and that ‘‘a finding of equivalence

is a determination of fact.’’

Applying the Graver test to the case at hand, the Court

concludes that there is a substantial difference between the

43 It will be recalled that Long claimed a reel type pickup having

spring fingers for engaging the vines and for conveying them into

contact with the threshing cylinder means.

“*Graver Tank and Manufacturing Company, Incorporated v.

Linde Air Products Company, 339 U.S. 605, 609 (1950).

—

21a

front ends of the two combines in question and therefore

fnds no infringement of patent number 2,974,467. The

most striking evidence which leads to this conclusion is

the difference between the concept claimed by Long,

whereby the vines are fed directly from the reel pickup to

the first threshing cylinder, and the idea that Lilliston uses

in employing an auger feeder. Based on an examination

of every other threshing cylinder in a cylinder type com-

bine in the prior art, it cannot be said that Lilliston’s

auger feeder is a threshing cylinder. The reason for this

is that under every other threshing cylinder (including

those in the Lilliston and Long combines), there are spring

fngers extending upward from the breastplates which,

eoacting with the spring fingers and rotation of the cylin-

ders, perform the threshing function. No such spring

fingers can be found under the auger feeder. It is sig-

nificant to note at this point that even Mr. Long recog-

nized this difference when, upon being asked to examine

Lilliston’s combine and point out the threshing cylinders,

he did not mention the auger feeder. Rather, he noted

that there were only three threshing cylinders because these

were the only ones with spring fingers extending upwardly

from the arcuate breastplates.“ Of course, it is true, as

the plaintiff contends, that some peanuts will fall off as

the vines pass through the auger feeder.“* It does not

appear, however, that this is a significant amount. Fur-

thermore, it is understandable that some peanuts will fall

off the vines at this point when one considers the friction

ereated as the vines pass through this narrow area.

As previously noted, if there is any novelty at all in

Long’s combine, it is in the concept whereby the vines

picked up by the reel are conveyed directly to the first

TR. pp. 39-40.

“* This was testified to by defendant’ Ss witness William D. Ken-

ney, T.R. p. 914.

22a

threshing cylinder.’ In fact, until Long came along, prac.

tically every other peanut combine employed a conveyor

system or auger feeder of some type to carry the vines

from the pickup to the first thresher.** A finding of sig.

“~“nifieant difference in the auger feeder, therefore, takes

Lilliston’s combine away from any claim of infringement

as to patent number 2,974,467, for clearly all other ele.

ments relating to this patent and which also may be found

in Lilliston’s combine are prevalent in the prior art and

freely available to those who wish to use them.

In addition to finding Lilliston’s auger feeder signifi-

cantly and materially different from Long’s as to structure,

purpose, and result, the Court notes in passing that Lil-

liston has no ‘‘relatively large’’ threshing cylinder which

Long has claimed as part of his invention. If anything,

Lilliston’s threshing units are rather small. Since this

is only a matter of degree in size, however, the Court de-

clines to find noninfringement solely on that basis. .

Frxz Wraprer Estopre.

Hand-in-hand with the doctrine of equivalents Lilliston

submits that the court should also consider the doctrine

of file wrapper estoppel to preclude Long from claiming

infringement on the front end of the combine.“® Under

*7 In the file wrapper, Long emphasized this point when he said:

‘*Applicant’s combination of elements appears to be novel and

patentable, being directed to the intimate association of the pickup

and the threshing cylinder with the pickup located near the earth

and supplying the peanut vines with the peanuts thereon directly

to the threshing cylinder.’’ Defendant’s exhibit No. 18, p. 67.

See also the testimony of defendant’s expert Shefte, T.R. pp.

998-1002.

‘8 This is readily shown in the Case and Livermon combines

where a conveyor is used and in the Frick combine where a com-

bination of a conveyor and feeding cylinder is employed.

4° Exhibit Supply Company v. Ace Patents Corp., 315 U.S. 126

(1942).

23a

the doctrine of file wrapper estoppel, a patentee who has

altered or delimited his claims during the patent appli-

cation process is bound by his limitations, and he cannot

thereafter recapture what he has disclaimed against any

equivalents.”

During the period of time when patent number 2,974,467

was being considered by the Patent Office, the examiner

raised the question of how the pickup mechanism shown

in figures 13-15 of the patent could be read in light of

claim number 21 (now claim five), which is not part of

this suit, but which does relate to claim number 17 (now

claim one) which is in controversy here.*' Figures 13-15

show a modification which can be attached to the front

end of Long’s combine in order to harvest peanuts when

the vines are piled up rather than placed in windrows.

In this mechanism, a shovel-type structure piles the vines

onto a conveyor belt which, in turn, carries them toward

a set of fingers rotating in a counterclockwise manner.

The rotating fingers then convey the vines into contact

with the first threshing cylinder.

In response to the examiner’s inquiry, Long said that

claim number seventeen (now claim one) is readable upon

Figure 13.°° In other words, Long concluded that the

rotating fingers of this mechanism perform the pickup

function and, therefore, could be read consistently with

claim one.

While the Court finds that the rotating fingers do aid

in the delivery of the vines directly to the threshing cylin-

* American Photocopy Equipment Co. v. Rovico, Inc., 257 F.

Supp. 192 (N.D.Ill., 1966), aff’d, 384 F. (2d) 813 (7 Cir., 1967),

cert denied, 390 U.S. 945 (1968), rehearing denied, 390 U.S. 1087

(1968).

*! Defendant’s exhibit No. 18, pp. 63-64.

Defendant’s exhibit No. 18, pp. 68-69.

8 Apparently, the patent examiner was satisfied with this ex-

planation and subsequently the patent was granted.

as ~~

der in this mechanism, it cannot conclude that there ig

any picking up done by these fingers. Unlike the front

end of the combine as used when harvesting the vines in

windrows, these fingers rotate counterclockwise and at most

convey the vines laterally rather than upwardly. Fur.

thermore, it is clear that if anything acts as a pickup here

it is the shovel which lifts the vines onto the conveyor,

For these reasons, the Court finds claim number seventeen

(now claim one) cannot be read on figures 13-15. Since

noninfringement has been found by applying the doctrine

of equivalents and without the use of file wrapper estoppel,

however, the Court sees no need to pursue this point any

further.

Patent Numser 3,007,475

The back end or the cleaning, separating, and collecting

portions of the combine are embodied in patent number

3,007,475. More specifically, this patent involves a stepped

pan which receives peanuts falling through the openings

in the second arcuate breastplate (under the read thresh-

ing cylinder). Peanuts are also received on this pan as

they drop from the vines as the vines move downwardly

along the vine rack on their way to being discharged

through the exhaust. At the rearward end of the stepped

pan is a declining stepped screen, which at its rearward

end has a series of tines. The peanuts, which move toward

the rear of the machine by an oscillating type motion, un-

dergo their initial cleaning due to the jiggling effect on the

peanuts as they are spread over and pass rearwardly on

the surface of the pan. As the peanuts pass off the end

of the stepped pan and onto the declining stepped screen,

they enter a second cleaning phase whereby, due to air

from the first blower passing through the steps and the

jiggling motion of the combine causing the peanuts to

bounce from one step to the next, clods of dirt and other

foreign matter are separated from the peanuts. The

stepped <creen has holes in it through which an object

25a

the size of a peanut will fall and move to the collecting

point without passing over the tines at the end of the

stepped screen or the stemmer saws underneath. Most

of the peanuts, however, will be carried down the stepped

screen, through the tines, and into the stemmer saws.

These little saws will then, as they rotate and cut the

vine stems, carry the peanuts to the collecting point. The

collecting point herein referred to is a funnel-type struc-

ture whereby the peanuts will fall into a pipe. An air

stream from a second blower will then move the peanuts

up the inclined portion of the pipe and into a position

where the air pressure is lowered and the peanuts can

be discharged in collecting bags without injury to the

collector.

The plaintiff alleges that all eight claims of this patent

have been infringed. The claims are as follows:

‘1. In a peanut combine having means for elevating

peanut vines with peanuts attached and for separating

the peanuts from the vines, a housing, vine discharg-

ing means for discharging the vines from the rear of

said housing, a stepped pan mounted in said housing

and adapted to evenly spread the peanuts and move

the same toward the rear of the machine, a stepped

screen mounted in said housing below the discharge

end of said pan for receiving peanuts from said pan,

the openings in said screen being of a size to permit

the peanuts to fall therethrough, a blower adapted to

blow air through said screen to separate pieces of

vine, dirt and trash from the peanuts, a connecting

member located beneath said housing into which pea-

nuts may fall by gravity, a peanut discharge pipe

associated with said connecting member exteriorly of

said housing and having a portion inclined upwardly

and terminating in multiple discharge openings, a

second blower on one end of said discharge pipe and

adapted to blow the peanuts up said inclined portion

and through said discharge openings, and an air vent

26a

at the top of said inclined portion having means for

reducing the air pressure so that the peanuts may be

collected in bags without injury.

‘**2. In a peanut combine having means for

peanut vines with peanuts attached and for separat.

ing the peanuts from the vines, a housing, vine dis.

charging means for discharging the vines from said

housing, means adapted to receive the peanuts after

they have been separated from the vines and to move

the same in the machine, a screen for receiving the

peanuts from the end of said peanut moving means,

a blower adapted to blow air over said screen to

clean said peanuts, a flared member lower than said

screen whereby peanuts may fall by gravity from said

screen into a discharge pipe in a minimum amount of

space, a peanut discharge pipe operatively associated

with said flared member having a portion inclined

upwardly and terminating in a discharge opening, and

means for moving the peanuts through said discharge

pipe and through said discharge opening.

**3. The structure of claim 2 in which said last men-

tioned means comprises a second blower.

‘*4. The structure of claim 2 in which said screen

has a plurality of tines to aid in cleaning said peanuts.

**5. In a peanut combine of low overall height and

including means for separating the peanuts from the

vines and for causing the peanuts and vines to pass

through the machine, the improvement of an inclined

sereen onto which the peanuts are discharged, said

sereen having openings of a size through which the

peanuts can fall, a blower having a discharge for

directing air against said screen for separating for-

eign matter from the peanuts, a discharge pipe having

one end open to receive peanuts from said screen, 8

conveyor tube connected to said discharge pipe and

extending upwardly at an angle and with a depending

—

27a

discharge extremity, said tube being provided with

air venting means at its upper portion for the dis-

charge of foreign matter and the release of air pressure

whereby peanuts will be subjected to reduced air pres-

sure upon their discharge.

‘‘§. The structure of claim 5 in which said discharge

extremity has multiple discharge openings, and valve

means for selectively directing the discharge through

said :

“7, In a peanut combine a downwardly inclined screen

on which the peanuts are adapted to be received, said

sereen having openings of a size to allow the pea-

nuts to fall therethrough, a blower for producing flow

.of air over said screen for removing foreign matter

from the peanuts, a generally horizontally disposed

discharge pipe located below said screen and extend-

ing laterally therefrom, a connection providing an

inlet into one end portion of said discharge pipe

through which peanuts falling through said screen are

received, a conveyor tube connected to the other end

portion of said discharge pipe, said conveyor tube ex-

tending upwardly at an angle and having a curved

end portion terminating in a depending discharge ex-

tremity, and air venting means in the upper portion

of said conveyor tube for the discharge of foreign

matter and the release of air pressure whereby the

peanuts will be subjected to reduced air pre sure as

they are discharged from the conveyor tube through

said depending discharge extremity.

**8. In a peanut combine a downwardly inclined screen

on which the peanuts are adapted to be received, said

screen having openings of a size to allow the peanuts

to fall therethrough, a blower for producing flow of

air over said screen for removing foreign matter from

the peanuts, a generally horizontally disposed dis-

charge pipe located below said screen and extending

—

28a

laterally therefrom, a connection providing an inlet

into one end portion of said discharge pipe through

which peanuts falling through said screen are received,

a conveyor tube connected to the other end portion

of said discharge pipe, said conveyor tube extending

upwardly at an angle and having a curved end portion

terminating in a depending discharge extremity, and

air venting means in the upper portion of said con-

veyor tube for the discharge of foreign matter and

the release of air pressure whereby the peanuts will

be subjected to reduced air pressure as they are dis-

charged from the conveyor tube through said depend-

ing discharge extremity, said discharge extremity hay-

ing multiple discharge openings and valve means

for selectively directing the discharge through said

openings.’’

An analysis of these claims shows the significant features

to be: (1) a housing; (2) a vine rack with a vine discharg-

ing means at the rear of the combine; (3) a stepped pan

which spreads the peanuts and moves them toward the rear

of the combine; (4) a declining stepped screen with open-

ings large enough to allow peanuts to fall therethrough;

(5) a blower used to blow air through the screen to aid in

the movement of the peanuts down the steps and also help

clean dirt from the peanuts; (6) a flared member where

peanuts may fall by gravity after passing through the

stepped screen or after passing through the stemmer saws

which are located below the end of the stepped screen; (7) a

discharge pipe inclined upwardly toward the front of the

combine and terminating in multiple discharge openings;

(8) a second blower which moves the peanuts up the in-

clined portion of the discharge pipe; and (9) an air vent

to reduce pressure so that peanuts flowing through the dis-

charge pipe can be gathered without harm to the individual

working with the collecting bags. With particular refer-

ence to these features, the first question that must be

answered is whether any of them individually, or all of

them as a combination, are anticipated by the prior art so

as to render any or all of the claims of patent number

3,007,475 invalid in view of 35 U.S.C., section 103.

Prior Art

Under 35 U.S.C., section 103, and the Graham case, which

sets forth the test to be applied thereto, it is clear that

all of the significant features of patent number 3,007,475

appear time and again in the prior art, and that Long has

simply combined old elements, otherwise not patentable

by themselves, into a new machine. An in-depth compari-

son of the prior art, with what Long claims, will reveal

the lack of novelty and nonobviousness and hence the lack

of invention of any single element.

Peanut combines are almost always enclosed in a housing

of some kind. Examples of this are the Frick, Krause,

Livermon, Case, Ronning, Landrum,™ and both Good pat-

ents. All of these combines also have vine racks which

feed to a vine discharging means at the rear of the ma-

chine. A structure similar to Long’s ‘‘stepped pan,”’

although called by a different name, can be found in the

Frick, Livermon,® Morris,” Lilliston,* and both Good™

combines, and a structure similar to Long’s ‘‘stepped

screen,”’ although also called by a different name, can

readily be seen in the Frick,” Case,“ Landrum,” and

Defendant’s exhibit No. 118.

% Defendant’s exhibit No. 82, item No. W 18329 (peanut grid

pan).

* Defendant’s exhibits Nos. 52 and 88, item No. 62 (pan).

* Defendant's exhibit No. 59, items No. 81 and 82 (platform).

* Defendant’s exhibit No. 56, item No. 44 (vibrating apron).

This was in Lilliston’s old carding type machine known as the

“400"’ series.

* Defendant's exhibits Nos. 50 and 51, item No. 17 (grid pan).

“ Defendant's exhibit No. 82, item No. W 19565 (cleaner grid

pan).

"Defendant’s exhibits Nos. 33 and 71.

“Defendant's exhibit No. 118, figure No. 4 (peanut chaffer).

30a

Morris® combines. Practically every peanut combine

known contains a blower which is used to aid in the clean.

ing process. In the Frick, Landrum, and Morris combines,

this blower blows air through the screen structure to clean

the peanuts of dirt and other foreign substances at that

point. The flared member, or the focal point where the

peanuts are collected after passing through the

and separating processes, has its forerunner in the Frick,”

Livermon,” and both Good” combines. Finally, the system

employed by Long which includes a discharge pipe with a

second blower and an air vent is almost an exact replica

of the Boesch™ patent and is apparently similar to the

structure found in the Frick® combine.

From the foregoing survey of the prior art as com-

pared with each element in the patent, it is clear that

each feature of the patent was obvious to one skilled in

the art and therefore would not be patentable by itself.

It is equally clear, however, that if invention can be found

in the combination of these old elements, then the patent

is valid In order to show invention in patent number

3,007,475, the plaintiff contends that the declining of the

stepped screen, the collecting point having a flared mem-

ber, and the pneumatic conveyor system are new and

significantly important ideas and the fact that these are

63 Defendant’s exhibit No. 59, items Nos. 96 and 99 (grate).

* Defendant’s exhibit No. 82, item No. W 19588 (peanut auger

% trough assembly ). ,

* Defendant’s exhibit No. 52, item No. 99 (chute).

6 Defendant’s exhibits Nos. 50 and 51, item No. 21 (pepe de-

livery auger or discharge conveyor trough).

67 Defendant’s exhibits Nos. 60, 60A, and 60B. See also the

Everett conveyor, defendant’s exhibit No. 35.

8 TR. pp. 122-123.

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

U.S. 57 (1969) ; Webster Loom Co. v. Higgins, 105 U.S. 580 (1881).

3la

all added into one combination with the other old elements

warrants credit for an invention. Under the authority of

Ad P and other cases heretofore cited, we cannot agree

with the plaintiff, but rather hold that the arrangement

of parts here was only one of mechanical skill and cannot

be marked with the stamp of invention.

In addition to the fact that every important feature

of patent number 3,007,475 appears in the prior art, no ~

new and different function or result can be found in any

of these elements in Long’s machine, either separately

or as a combination. The housing and vine discharging

means both serve the obvious purpose indicated by their

names in all combines where they appear, which are many.

The stepped pan, or similar structure, is also a standard

part of a peanut combine and, as used by Long, is em-

ployed to aid in the spreading and movement of newly

threshed peanuts to the cleaning portion and ultimately

the collecting part of the combine. The stepped screen,

or its equivalent, also serves the same purpose of aiding

in the cleaning process in Long’s machine as in the other

combines which are part of the prior art. Another usual

feature in peanut combines is a blower which, as in Long’s

combine, is used primarily to clean dirt from the peanuts

as they move toward the stemmer saws. Finally, the con-

veyor system with the blower, inclined pipe, and air vent

is exactly the same structure and serves the same purpose

as the Boesch conveyor which is to provide a safe means

for getting the peanuts from the trough, or wherever they

are collected after passing through the cleaning processes,

to the bags.

Of the three aforementioned elements which the plaintiff

contends makes his machine different from the prior art,

Long mainly relies on what he calls a ‘‘downwardly in-

clined stepped screen.’’ Although it is true that the

plaintiff has the first machine with a stepped screen in-

clined toward the rear, it has already been shown that this

is not the first combine to contain a stepped screen; nor is

32a

it the first combine where the screeri works in connegtion

with a blower in the cleaning process, which Long

is one of the advantages of his particular arrangement,

Furthermore, this is not the first combine which has sug-

gested a slanting screen. In fact, in some combines the

stepped screen, although usually horizontal, was made s9

that it could be adjusted to a slanting position.” In others,

the screen was made to be slanted but slanted toward the

front rather than toward the rear.” In light of this eyj.

dence, we conclude that not only was this not a novel idea,

but also that it was obvious to one of ordinary skill in the

art. If anything, this arrangement only showed mechanical

ability which, of course, will not suffice for invention.

The second feature which the plaintiff relies on to qualify

the rear part of the combine for an invention is the

flared member employed at the collecting point to guide the

cleansed peanuts into the trough. This was nothing nev,

however, for a similar structure can be found in other

combines, and it appears that the Frick combine uses prac-

tically the same configuration. Additionally, the nature of

this structure is such that it would be obvious to use in this

situation. Being similar to a funnel, it does what a funnel

always does and its employment here, however skillful, was

not inventive.

The third feature that Long relies on is his use of a

pneumatic conveyor in this peanut combine. As the plain-

tiff himself indicated, however, the use of such a conveyor

7 Defendant’s expert witness, Dalbert Shefte, testified that both

the Case patent (defendant’s exhibits Nos. 21 through 34), and the

old Lilliston patent (defendant’s exhibit No. 56), had screens

which could be adjusted to vary the inclination. T.R. p. 1074.

1 Shefte testified that this is shown in both the Eisenhart (de-

fendant’s exhibit No. 53) and Carroll (defendant’s exhibit No.

125) patents. T.R. 1075. It also appears that the Frick combine

shows this although the slant, if any, is very slight. Defendant’s

exhibit No. 82.

33a -

js not new to peanut combines and, in fact, is used in the

Massey-Harris machine.” Furthermore, Long himself ad-

mitted that this was ‘‘like all pneumatic conveyors that

I’ve seen used where you released the air and then released

the material that you’re blowing. There would be no other

way to do it.’”’™ Assuming that the plaintiff, as an in-

ventor, is at least one of ordinary skill in the art, it is

clear that the use of the pneumatic conveyor here was

obvious.

In concluding that patent number 3,007,475 is anticipated

by the prior art and therefore invalid, it is noted that every

significant feature of this patent appears not only in vari-

ous combines throughout this history of the art, but also

that they all appear in a single device in the prior art—the

Frick combine, which, incidentally, was not before the pat-

ent examiner when Long’s application was being processed.

These points are particularly significant here in light of the

factual situation that arose in Graham. There the Supreme

Court examined the prior art and found that every essen-

tial element of the claimed patent was part of the prior

art. In fact, the Court found that all of the items were

included in the same patent (which was not before the

patent examiner) except that two of the elements were re-

versed. Even so, however, the Court noted that their

mechanical operation was identical and the same function

was served. The patent was held invalid. In following

the reasoning and result of Graham and holding that all

eight claims of patent number 3,007,475 are invalid as

anticipated by the prior art, it is also appropriate to con-

clude, as the Supreme Court did, that the patent in ques-

tion ‘‘presents no operative mechanical distinctions, much

less nonobvious differences.’’ ™

@T7.R. pp. 122-123.

®T.R. p. 141.

“Graham v. John Deere Co., 383 U.S. 1, 26 (1966). See also,

Fn. 24, infra.

34a

INDEFINITENESS OF THE CLAIMS

The second defense that Lilliston raises is that patent

number 3,007,475 is invalid by reason of being vague,

indefinite, and incomplete in light of 35 U.S.C., section 119.

In making this contention, Lilliston primarily relies on the

configuration and elements of the discharge system and

argues that there is an inconsistency between claims one

and two and claims five, seven and eight. Additionally,

the defendant asserts that there is a discrepancy in the

labeling of the stepped screen throughout the various

claims. For the reasons stated below, the Court rejects

these arguments and holds for the plaintiff on these points,

A comparison of the wording of claims one and two and

claims five, seven and eight shows that while in claims one

and two the discharge pipe is described as extending all

the way from below the flared member up to the discharge

opening, claims five, seven and eight describe the dis-

charge pipe as extending only to the conveyor tube which,

in turn, extends to the discharge opening. From the word-

ing of the claims, therefore, it is not clear whether the

pipe which extends upwardly and toward the front of the

combine is supposed to be called the discharge pipe or the

conveyor tube. The descriptions which accompany the

claims, however, reveal that one and the same element is

referred to here, and any confusion that would arise from

the wording would be cleared up from a quick glance at the

drawings.” Accordingly, we hold that one of ordinary skill

could interpret the details of the discharge system and

7 Plaintiff’s exhibit No. 2, figures 1, 2, 9 and 10. It is signifi-

cant to note that this is a different result from the Court’s holding

with regard to the word ‘‘relatively’’ in patent number 2,974,467.

There, even with the use of the drawings, it could not be clearly

interpreted what ‘‘relatively’’ meant with regard to the large

threshing cylinder or the overall height of the combine. Here,

however, whatever may be confusing about the wording in the

claims quickly becomes clear with the use of the accompanying

drawings.

35a

make use thereof. For the same reason the Court discards

the contention of the defendant that in some claims the

gereen in question is referred to as an inclined screen, in

others as a stepped screen, and in others simply as a

screen. Suffice it to say that the drawing enclosed provides

a clear view of the screen.” It is both inclined and stepped.

The defendant also contends that in claims five, seven

and eight, an air vent is referred to as the means to reduce

air pressure in the conveyor tube, but the means for creat-

ing this pressure—the second blower—is only mentioned

in claims one and two. Lilliston submits, therefore, that

these claims are invalid as incomplete. We do not agree,

for not only do the words of the claims when taken together

clearly indicate that this second blower is used to create

the air pressure referred to, but also the drawings accom-

panying the patent disclose the blower, air vent, and con-

veyor, and the interrelation of these parts. One of ordi-

nary skill in the art could make use of the discharge

system as described. Both the substance and purpose of

35 U.S.C., section 112 have been met.

Best Mope ConTEMPLATED

In addition to the requirement that the specifications

of a patent should be ‘‘in such full, clear, concise and exact

terms as to enable any person skilled in the art’’ to make

use thereof, 35 U.S.C., section 112, also dictates that the

specifications ‘‘shall set forth the best mode contemplated

by the inventor of carrying out his invention.’’ Lilliston

contends that Long has not complied with these require-

ments of the statute in that he has not shown either in his

specifications, claims, or drawings, the baffle which is nec-

essary to form a venturi at the point where the peanuts

are introduced into the air stream which is created by the

second blower. Lilliston also alleges that not only was

this a necessary element to make the discharge system

% Plaintiff’s exhibit No. 2, figure 1, item 95.

36a

operative, but also that Long knew this was the best way

to get the peanuts into the air stream and yet still failed to

show it in his patent.”

While we find that the baffle was indeed necessary to

make this discharge system operative, even though one ig

not shown in the patent, it is clear that one of ordinary

skill in the art to which this system relates would be able

to make use of this system by the minor modification of

adding the baffle. Furthermore, it is apparent that the

omission of the baffle in Long’s patent was inadvertent,

There is no indication whatsoever that Long tried to de.

ceive anyone or conceal anything from the public and with-

out any evidence along this line, the Court does not presume

any deception.”

INFRINGEMENT

Even assuming patent number 3,007,475 is valid over the

prior art, the defendant submits that its combine is sig.

nificantly different from Long’s in several respects and,

therefore, there is no infringement. The main differences

which Lilliston relies on are that it has employed an auger

trough instead of a discharge pipe and it has no structure

similar to Long’s stepped screen. Under the doctrine of

equivalents set forth in Graver and covered earlier in this

opinion, the Court finds that, assuming the patent in ques-

tion is valid, there has clearly been infringement. Every

element in the back end of Lilliston’s combine is substan-

tially similar to corresponding elements in Long’s combine

in structure, function, and result. Since Long’s patent is

so clearly invalid as anticipated by the prior art, however,

no further discussion on this point is necessary.

7 Compare defendant’s exhibits Nos. 102.17 and 102.38 with

plaintiff’s exhibit No. 2, figure 10.

78 Defendant’s expert, Shefté, testified to this effect at T.R. p.

1052.

% Dashiell v. Grosvenor, 162. U.S. 425 (1896).

37a

Commerc Sucogss

In holding patent number 2,974,467 and patent number

3,007,475 invalid as anticipated by the prior art, we take

cognizance of the fact that some of the combines con-

sidered here as part of the prior art had been discontinued

around the time that Long received his patent. We are

also aware of the decision in Reynolds v. Whitin Machine

Works, 167 F¥'.(2d) 78 (4 Cir., 1948), cert. denied, 334 U.S.

844 (1948). In that case the defendant relied principally

on one patent over one hundred years old and two others

each over fifty years old to invalidate the plaintiff’s patent

by a showing of prior art anticipation. In upholding the

validity of the patent, the United States Court of Appeals

for the Fourth Circuit said, ‘‘Patents for useful inven-

tions ought not be invalidated and held for naught because

of such excursions into the boneyard of failures and aban-

doned experiments. ’’

Although Reynolds would tend to support the plaintiff’s

contention that the lack of success of former patents indi-

cates the validity of the plaintiff’s patent, it is necessary

to distinguish that case from the case at hand on the follow-

ing grounds. First, it must be noted that the basis of the

Reynolds decision was that there was a lack of novelty.

As has been seen earlier, Graham v. John Deere Co., supra,

explicitly states that when 35 U.S.C., section 103, was en-

acted in 1952, the test of nonobviousness was added to the

previously established tests of novelty and utility which

must be met in upholding the validity of a patent. It is

under the test of nonobviousness that the Court here in-

validates the patents in question, and therefore the basis

for decision in Reynolds cannot be applied here. Secondly,

in our case most of the patents and combines of the prior

art which are being dealt with were created within a decade

“See testimony of plaintiff’s witness J. M. Wagner, T.R. pp.

157-160, and defendant’s witness William G. Moore, T.R. pp. 773-

776, 788, 815.

38a,

of the time when Long’s combine was patented.

this time new ideas were rapidly being developed and re.

evaluated in the field of peanut combines. In the develop.

ment of successive machines, and particularly in an area

crowded with patents as the peanut combine field is, it jg

clear to the Court that as new ideas and devices are de.

veloped, older ones are phased out or may even prove ut-

terly worthless. This may well be what happened here,

and to allow the knowledge that the older patents imparted

to then be patented would be to withdraw what is readily

known and disclosed from the public domain contrary to

the dictates of the constitution.”

We are also mindful of the fact that while many peanut

combines previous to Long’s were not commercially fea-

sible, Long’s machine has enjoyed substantial commercial

success. The law is well-settled, however, that while com-

mercial success may be a relevant factor in determining

obviousness or nonobviousness,® without invention it will

not make patentability.“ This point was clearly enunciated

in the recent case of Anderson’s-Black Rock, Inc. v. Pave-

ment Salvage Co., Inc., 396 U.S. 57 (1969). That case dealt

with the validity of a patent for a machine which combined

four elements well known in the art of laying blacktop. In

addition to a layer, spreader, and a screed, the patentee

claimed that the inclusion of a radiant heat burner, whose

object was to heat the edge of the preceding section of

asphalt and thus enable the newly laid section to mold into

the old slab with no resulting damage to the asphalt or

corrosion in the ‘‘cold spot’’ area, constituted an invention.

81 Anderson’s-Black Rock, Ine. v. Pavement Salvage Co., Inc.,

396 U.S. 57 (1969) ; Graham v. John Deere Co., 383 U.S. 1 (1965).

82 Graham v. John Deere Co., 383 U.S. 1 (1965); Entron of

Maryland, Ine. v. Jerrold Electronics Corp., 295 F (2d) 670 (4

Cir., 1961) ;Reiner v. I. Leon Co., 285 F. (2d) 501 (2 Cir., 1960);

Otto v. Koppers Co., Inc., 246 F. (2d) 789 (4 Cir., 1957).

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

396 U.S. 57 (1969); Great Atlantic & Pacific Tea Co. v. Super-

market Equipment “o., 340 U.S. 147 (1950).

39a

The Supreme Court first noted that radiant heat burners

had been used in working with asphalt for over fifty years,

and that its main function in this patent; ie. softening the

surface of the asphalt without burning it, was the same as

it always had been. In answer to the question of whether

the combination of these old elements created a valid pat-

ent, the Supreme Court said in a unanimous decision:

‘‘A combination of elements may result in an effect

greater than the sum of the several effects taken sep-

arately. No such synergistic result is argued here. It

is, however, fervently argued that the combination filled

a long felt want and has enjoyed commercial success.

But those matters ‘without invention will not make

patentability.’’’* —

SumMaARY AND Conclusions

Patents numbers 2,974,467 and 3,007,475 are invalid un-

der 35 U.S.C., section 103, as anticipated by the prior art.

In essence, both of these patents involve a combination of

old parts or elements well known in the art. Although these

combinations are recognized as forming a commercially

profitable machine, no new function, operation or result can

be found in either combination. Hence, even with the posi-

tive aspects of Long’s machine taken into consideration, we

must find that each patent only evidences mechanical skill,

but is not inventive and therefore not patentable. In addi-

tion to the overwhelming evidence of prior art and the cases

cited herein which interpret section 103, it is also noted that

at least four patents were not taken into consideration by

the Patent Office. One, the Frick combine, is particularly

important since almost every element of Long’s patent can

be found in Frick. Another, the Boesch patent, contains a

discharge system almost identical to Long’s. We hold,

therefore, that the defendant has met its burden and the

patents are invalid.

“ Anderson’s-Black Rock, Ine. v. Pavement Salvage Co., Inc.,

896 U.S. 57, 61 (1969).

With regard only to patent number 2,974,467 the Court

also finds this patent invalid under 35 U.S.C., section 112

as being vague and indefinite. Even assuming the validity

of that patent, however, the Court finds there has been no

infringement by the defendant. As to patent number

3,007,475, assuming the validity of it, the Court finds this

would be infringed by the defendant.

At Norfolk, Virginia

June 14, 1971

Order Correcting Memorandum

(Filed 7/16/71)

The following clerical or typographical errors are cor.

rected on the opinion heretofore signed on June 14, 1971:

On page 19, footnote 30, 4th line thereof, the name

“‘Whittin’’ should be changed to ‘‘Whitin.”’ The same

change should be made in the first line on page 50.

On page 21, footnote 35, last line thereof, reference to

(2 Cir., 1966) should read (3 Cir., 1966).

On page 28, footnote 49, reference to Ace Products Corp.

should read ‘‘Ace Patents Corp.’’

On page 43, fourth line from the bottom immediately

preceding footnote 72, the words ‘‘Frick Machine’’ should

read ‘‘Massey-Harris Machine.”’

On page 48, footnote 79, the letter ‘‘c’’ in Daschiell should

be eliminated so that the spelling will read ‘‘ Dashiell.”

_. The Clerk is authorized to make these changes on the

origital memorandum.

Copies of this order are forwarded to counsel.

/s/ Waurer E. Horrmax

United States District Judge

At San Francisco, California

July 13, 1971

dla

APPENDIX D

Judgment

(Filed 8/12/71)

Tuts Action came on for trial before the Court, the Hon-

orable Walter E. Hoffman, District Judge presiding by

Special Assignment, and the issues having been duly heard

and a Memorandum and Decision having been duly ren-

dered and filed by the Court;

Ir Is Now, Tuenerone, Onverep, Apsupcep ann Decrezp

as follows:

The plaintiff shall take nothing of the defendant :n this

action and this action is hereby dismissed on the merits.

The patents in suit in this cause, United States Letters

Patent Nos. 2,974,467 and 3,007,475, and each claim thereof

are invalid and the same are declared void.

The defendant has not and is not now infringing United

States Letters Patent No. 2,974,467.

Although the Court finds United States Letters Paten

No. 3,007,475 to be so clearly invalid as anticipated by the

prior art, had the Court determined said patent to be valid,

then in that event the Court determines that the defendant

would be infringing said patent under the doctrine of

equivalents.

The defendant produced no evidence to support Count IT

of its Counterclaim. Therefore, Count IT of the defend-

ant’s Counterclaim is dismissed with prejudice.

Attorneys’ fees for the defendant, Lilliston Implement

Company, are not allowed.

The defendant, Lilliston Implement Company, shall re-

cover its costs.

Dated at Norfolk, Virginia, this ———— day of August,

1971.

Water E. Horrmayx

United States District Judge

APPENDIX E

Constitutional Provisions, Statutes and Rules Involved _

Constitution of the United States, Article I, Section ¢

(1787):

Section 8. The Congress shall have Power * * *

« *

To regulate Commerce with foreign Nations, and among

the Several States, and with the Indian Tribes;

> > .

~ “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 Dis

coveries ;

. > _

Act of June 25, 1948; c. 646; 62 Stat. 928; Title 28, United

States Code, Section 1254:

Section 1254. Courts of appeals; certiorari; appeal;

certified questions.

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree ;

> * *

Patent Act of July 19, 1952; Public Law 593, 82nd Congress,

2d session; c. 950; 66 Stat. 792; Title 35, United States

Code, Section 103:

Section 103. Conditions for patentability; non-obvious

subject matter.

A patent may not be obtained though the invention is

not identically disclosed or described as set forth in section

102 of this title, if the differences between the subject matter

sought to be patented and the prior art are such that the

—_—

subject matter as a whole would have been obvious at the

time the invention was made to a person having ordinary

skill in the art to which said subject matter pertains. Pat-

entability shall not be negatived by the manner in which the

invention was made.

Section 282. Presumption of validity ; defenses

A patent shall be presumed valid. * * *

Rules of the Supreme Court of the United States

Part V. Jvnispiction on Warr or Cerrionari

19.

CoxsiperaTions Governinc Review on CERTIoRARI

1. (b) Where a court of appeals . . . has decided a fed-

eral question in a way in conflict with applicable decisions

of this court; .. .

44a

I. Disposition of Patent Cases by the Fourth Circuit Court of

Appeals on the Question of Patentability or

for the Five Years Just Prior to Graham v. John Deere Co,

383 US 1 (1966) ye eae ne

Inv.orN.I. Val.

By &

Sub. PC. By Inf.

Op. N.O. Rev.

Chicopee Mfg. Corp. v. Kendall Co., 288 F2d

719 (1961) x

Honolulu Oil Corp. v. Shelby Poultry Co.,

293 F2d 127 (1961) x

Entron of Maryland, Inc. v. Jerrold Elec-

tronics Corp., 295 F2d 670 (1961) x

Power Curbers, Inc v. E. D. Etnyre & Co.,

298 F2d 484 (1962) x

Triumph Hosiery Mills, Inc. v. Alamance

Industries, 299 F2d 793 (1962) x

Universal Inc. v. Kay Mfg. Corp., 301 F2d

140 (1962) x

Keiser v. High Point Hardware Co., 311 F2d

850 (1962) x

Nicholson v. Carl W. Mullis Engineering &

Mfg. Co., 315 F2d 532; ed. 375 US 828

(1963) x

Berry Bros. Corp. v. Sigmon, 317 F2d 700

(1963) x

Ransburg Electro-Coating Corp. v. Proctor

Electric Co., 317 F2d 302 (1963) x

Heyl & Patterson, Inc. v. McDowell Co., Inc.,

317 F2d 719 (1963) x

Allen v. Standard Crankshaft & Hydraulic

Co., Inc., 323 F2d 29 (1963)

Inv.orN.I. Val.

By &

Sub. PC. By Inf.

Op. N.O. Rev.

FMC Corp. v. City of Greensboro, 326 F2d

581 (1964)

Technograph Printed Circuits, Ltd. vy. Bendiz

Corp., 327 F2d 497 (1964)

Marve’ Specialty Co., Ine. v. Bell Hosiery

Mills, Inc., 330 F2d 164 (1964)

Jackson v. Dunham-Bush, Inc., 333 F2d 287

(1964)

Servo Corp. of America v. General Electric

Co., 337 F2d 716 (1964)

Pennco Engineering Co. vy. Allied Chemical

Corp., 339 F2d 260 (1964)

Cook Engineering & Electronics, Inc., v.

Hickory Co., 340 F2d 235 (1965)

Collison Surgical Engineering Co. v. Murray-

Baumgartner Surgical Instrument Co., Inc.,

343 F2d 162 (1965)

Bullard Co. v. General Electric Co., 348 F2d

985 (1965)

Marston v. J. C. Penney Co., Inc., 353 F2d_

976 (1965)

Morpul, Inc. v. Glen Raven Knitting Mill,

Inc., 357 F.2d 732 (1966)

Mabs, Inc. v. Piedmont Shirt Co., 368 F2d

570 (1966) ;

Tidewater Patent Development Co., Inc. vy.

Kitchen, 371 F2d 1004 (1967)

Davis Harvester Co., Inc. vy. Long Mfg. Co.,

373 F2d 513 (1967)

Samuel J. Miller & Co. v. A. Schreter & Sons

Co., 374 F2d 510 (1967)

Eversharp, Inc. v. Philip Morris, Inc., 374

F2d 511 (1967)

Gunter & Cooke, Inc. y. Southern Electric

Service Co., 378 F2d 60 (1967)

Mahaffy & Harder Co. v. Standard Packaging

Corp., 389 F2d 525 (1968)

Blaw-Knozr Co. v. Hartsville Oil Mill, 394

F2d 877 (1968)

Wilcox Mfg. Co. v. Eastern Gas & Fuel Asso-

ciates, 400 F2d 960 (1968)

Wayne Knitting Mills vy. Russell Hosiery

Mills, Inc., 400 F2d 964 (1968)

Grinnell Corp. v. Virginia Electric & Power

Co., 491 F2d 451 (1968)

Porter-Cable Machine Co. v. Black & Decker

Mfg. Co., 402 F2d 517 (1968)

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

Rock, Inc., 404 F2d 450 (1968)

Inv.orN.I. Val.

By &

Sub. P.C. By Inf.

Op. N.O. Rev.

Blumeraft of Pittsburgh v. Citizens National

Bank, 407 F2d 557 (1969) x

Cummins Engine Co., Inc. vy. General Motors

Corp., 424 F2d 1368 (1970) x

Chemithon Corp. v. Procter & Gamble Co.,

497 F2d 893; ¢.d. 400 U.S. 925 (1970) x

Jenkins Metal Shops, Inc. v. Pneumafil Corp.,

427 F2d 144 (1970) x

Welch et al v. General Motors Corp., 170

USPQ 1 (1970) x

Filterite Corporation v. Tate Engineering,

Inc., 447 F2d 62 (1971) x

General Dynamics Corp. v. Whitcomb, 443

F2d 630 (1971) x

Powell Mfg. Co., Inc. v. Long Mfg. Co., 171

USPQ 328 (1971) x

Compton v. Metal Products, Inc.,

453 F2d 38 (1971) x

Long Mfg. Co. v. Lilliston Implement Co.,

173 USPQ 321 (1972) x

Calico Scallop Corp. et al v. Willis Brothers,

Ine. et al, 173 USPQ 321 (1972) x

0 8 oe

Abbreviations :

Inv. —Invalid

NI. —Not Infringed

Sub. Op.—Substantial Opinion

P.C. —Per Curiam

N.O. —No Substantial Opinion

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.