Petition for Writ of Certiorari — Kaliardos v. General Motors Corp.

Supreme Court brief1995

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QUESTIONS PRESENTED FOR REVIEW RULE 14.1(a)

1. Did the Magistrate judge i:. the trial

court error in holding that the evidence

produced 5, Plaintiff in response to

Defendant's motion for summary judgenent

did not create a genuine issue of material

fact concerning whether accused product

infringed asserted claims, either

literally or

under the doctrine of equivalents

such as to require a full trial?

2. Did the trial judge in the trial

court error in adopting the report and

AT Ae sae

recomme:.dation of the Magistrate judge

and dismissing Plaintiff's action on the

merits and by

abusing its discretion in denyirg

Plaintiff's motion for leave to sup-

plement his responses with a test report

‘3+

of his expert aid/or in not grai.ting

Kaliardos' request for an Oral hearing?

3. Did the Appeals Court error in

affirming the District Courts dismissal

of Plaintiff Appellant's case considering

the evidence Kaliardos offered and the

plain language and historical] intent of

the application of Federal Rule 56?

4. Is the Federal Judiciary using Rule

596 to rid their dockets 9of difficult

cases and/or litigants and if so wil]

Such use of Rule 55 be allowed to

continue?

nits

PARTIES TO THE PROCEEDING

RULE 14.1(b)

All parties to the proceeding in the

Court of Appeals for the Federal Circuit,

whose judgement is sought to be reviewed,

appear in the case caption and are:

Nicolas Kaliardos,

Plaintif f-Appellant-Petitioner

General Motors Corporation,

De fendant-Appellee-Respondent,

BASF Corporation,

De fendant-Appellee-Respondent,

H.B. Fuller Company,

De fendant-Appellee-Respondent,

H.B. Fuller Automotive Products, Inc.

De fenant-Appellee-Respondent,

Jointly and Severally,

Daubert Industries, Inc.,

De fendant-Appe llee-Respondent.

-iii-

TABLE OF CONTENTS

Rule 14 ater.

Questions Presented for Review

Parties to the Proceeding

Table of Contents

Table of Authorities

Reference to Official and Un-

f i

official Reports of Opinions

Delivered

Precise Statement of the Grounds

On which the Jurisdiction of the

d States

Supreme Court of the Unite

is Invoked

Constitutional Provisions,

Treaties, Statutes, Ordinances

and Regulations Involved

Statement of the Case

Nature of the Case and

Proceedings Below

Summary Judgement

Statement of Facts

*¥1]

(tT

\‘Y

D+

—)

—

BASF §512001 12

Daubert Nox-15l and

Nox-170

H.B. Fuller WC-2291 an.d

WC -2291-P 15

Performance Data

Appeal to Court of Appeals

for the Federal Circuit 19

Arquement 22

The District Court Abused its |

Discretion i: Adopting the |

; 7 ]

Magistrates Recommendation </

Because these are Genuine i

Issues of Material Facts, the

Judgement of the District Court

Should he Reversed

The District Court Abused its

Discretion in Not Granting

Kaliardos' Request for an Oral

Hearing

Summary and Conclusion

Order Acce

Judge's Oc

Report and

Affidavit

Decision,

For Federa

pting Mag 1 Strate

tober 7, 1993

Recommendations

\Yatr4 ay <7 A

David W. Byrd

Court of

1 Circuit

Appeals

U.S. Patent No. i, 299, 530 62

U.S. Patent No. 4,356,036 77

72 ee. §271(a) (b) &(c) 16

Federal Rule of Civil Procedurs )

Rule 11

Rule 34

Rule 36

Rule 3

Rule 56

Rule 72

Federal Mac

Jistrate Act

636 (b)

-yi «

st tae erases Sa

TABLE OF AUTHORITIES

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mu L¢ es }

Py asa] m . Sn wp .: 7 ae tn, oe orn , le

j Daubert v. Merrell Dow Pnarmaceuticals

+ oe De ~*s 9A0 ae & 1002)

Inc., £4 VSPo4G@ i200. {[3.0Ee LFS)

) Yon: - <7 An eatanre Tne 4 1c 5A

, YenZer Ve Adar Otor oe 1 inc -“7 a4& [ SPQ 24

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2 Jap i? a ee eive i“ tr 1991).

Vas-Cath Inc. v. Mahurkar, 19 USPQ2d

”

4. C.R. Bard, Ine. v. Advanced Cardio-

15 USPQ154d, 1542-43, (Fed. Cir.

1990).

—

5 Mathews v. Weber, 423 U.S. 261, 96

S. Ct. 369 (levees

6. Anderson v. Liberty Lobby, Inc. e

al., 477 U.S. 242, 106 S. Ct. 250

7 Lemelson v. TRW, Inc., 760 F2d 1254,

1260, 225 USPQ 697,700 (Fed. Cir.

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Barringer Research Limited et al.,

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Landau v. J.D. Barter Constructior

YaAmnN , ._ a nD = i oe ric of

Company, Inc., 657 F2d 158, 211 USPQ

7 ~y } . ‘ c )

861 (7th Cir. 1981).

{*, : —_— + - re . y . y

Intinental Paper Baq Co. v. Eastern

Bieter te i nce Ml “td Ache Ment A Me Tn neds eek.

. " — ae 23% T7 . Cc ( Q

Paper Bag Co., 210 U.S. 405 1908).

a ae

Co 7 tT! ; , ~~ ST iad ~

Gould Inc. v. United States, ]95 USPO

Brown Co., 1/77

te)

Intel Corp. v.

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7. Califano, CA 6 Ohio).

D. va PETRY, l

CONCISE STATEMENT OF THE

GROUNDS ON WHICH THE

JURISDICTION OF THE SUPREME

COURT OF THE UNITED STATES

IS INVOKED RULE 14.1(e)

(1) The date of the entry of the judgement

Or decree sought to be reviewed is Novem-

ber 22, 1994.

(11) There was no request for rehearing

and therefore no order respecting a re-

hearing. An extension of time within

which to file a petition for a writ of

Certiorari was granted to and including

21 March 1995 on 24 February 1995,

(ii1) There has been no cross petition

for a writ of certiorari and therefore no

express reliance on Rule 12.3.

(lv) The statutory provisions believed to

confer on this Court jurisdiction to re-

view the judgement for which application

for writ of certiorari is made are as

follows.

Jurisdiction in the United States

Supreme Court is by writ of certiorari as

indicated in the below quoted portions of

Rule 10 of the Rules of the Supreme Court

of the United States.

PART III. JURISDICTION ON WRIT OF

CERTIORARI

Rule 10. Considerations Governing Re-

view of Writ of Certiorari

1. A review on writ of certiorari is

not a matter of right, but of judicial

discretion. A petition for a writ of

certiorari will be granted only when

there are special and important reasons

therefor. The following, while neither

controlling nor fully measuring the

Court's discretion, indicate the char-

acter of reasons that will be con-

sidered.

(a) When a United States court of

appeals has rendered a decision in

conflict with the decision of another

United States court of appeals on the

same matter, or has decided a federal

question in a way in conflict with a

state court of last resort; or has so

far departed from the accepted and

usual course of judicial proceedings,

Or sanctioned such a departure by a

lower court, as to call for an excer-

cise of this Court's power of super-

vision.

-xi-

STE TERPS NAIR?

1h AM Le CANES temp er eyes

;

The Federal Court of Appeals For The

Federal Circuit has “so far departed from

the accepted and usual course of judicial

proceedings, and/or sanctioned such a

departure by the United States District

Court for the Eastern District of Michi-

gan, Southern Division, Detroit, as to

call for an exercise of this Court's

power of supervision."

Jurisdiction in the United States

Supreme Court is further based on 28 USC

1254(1).

(1) By writ of certiorari.granted

upon the petition of any party to

any civil or criminal case, before or

after rendition cf judgement or

decree.

-xli-

THE CONSTITUTIONAL PROVISIONS,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED, RULE 14.1(f)

TREATIES,

1ee)

35 U.S.C. §271(a) (b) & (Cc)

Federal Rules of Civil Procedure

ll, 34, 36, 37, 56(e), and

72 (b)

Federal Rules of Evidence 702

Federal Magistrate's Acts

Section 636(b)

-xiii-

SU See RT

SSS EE EMS BS le BRC ey

STATEMENT OF THE CASE

-RULE 14-1(g) _

Nature of the Case and Proceedings Below

This is an appeal from the decision

of the U.S. District Court, Eastern Dis-

trict of Michigan, Southern Division which

granted Appellees' Rule 56 Motions for

Summary Judgement of Patent Non-Infringe-

ment and dismissed Appellant Kaliardos'

Suit against the Appellees, General Motors

Corporation (General Motors), BASF Cor-

poration (BASF), H.B. Fuller Company and

H.B. Fuller Automotive Products, Inc.

(Fuller), and Daubert Industries Inc.

(Daubert). (Al,

The Complaint and Jury demand

were filed on September 14, 1988.

The patents which are the subject of

this appeal, U.S. 3,959,530 ('530 patent)

and 4,356,036 ('036 patent) are for

anti-corrosive coatings. (A3, ; A4)

- i -

The accused coatings were used by

General Motors to prevent corrosion in its

automobiles.

The coatings were supplied to General

Motors by Appellees BASF, Fuller and

VES EPS RR RYE C2 NR

Daubert.

Disputes During the Pre-Trial

During 5 1/2 years of pre-trial acti- :

vity, there were a number of disputes re-

garding the compositions of the Appellees’

coatings.

Daubert refused to produce samples of

its coatings which were requested under

Rule 34. Daubert promised to produce

samples "in due course” in its response

Kereta ctbemiienetn wate saith tart

to a Rule 34 request, delayed

until discovery ended, and tken refused

to supply samples.

More disputes centered on laboratory

analyses of a BASF coating and coatings

taken from General Motors' vehicles. An

initial analyses conducted by Kaliardos'

experts showed that ingredients were in

the coatings which were not disclosed in

the documents which the Appellees pro-

duced to Kaliardos. General Motors and

the other Appellees refused to accept the

initial laboratory analyses and denied

adding the disputed ingredients to their

coatings.

Whether General Motors or the other

Appellees added these disputed ingredients

to the coatings used by General Motors is

an issue of material fact.

The refusals of the Appellees to ac-

cept the initial laboratory analysis of

the coatings caused Kaliardos to obtain a

second analysis of the BASF coating by a

second company. The analysis of the

second company resulted in further dis-

putes,

The Appellees examined the labora-

tories, copied records, deposed their

chemists and filed motions to strike af-

;

fidavits of the chemists which supported

Kaliardos' responses to their summary

judgement motions.

The Appellees‘ attacks on Kaliardos'

evidence, motions and depositions produced

a record which was difficult for a tech-

nically unskilled person to follow. As

will be seen from the Magistrate’s report

and recommendation, the Magistrate had

difficulty in understanding the evidence

(A6, ). The Magistrate's lack of exper-

tise in laboratory analysis impacted heay-

ily on Kaliardos.

Kaliardos made several attempts to ob-

tain relief in the Court below without

success. Kaliardos filed Rule 37 Motions

to compel General Motors and BASF to pro-

duce documents and laboratory reports dis-

as a

closing the compositions of the accused

coatings. The motions were denied.

After an order was entered, Kaliardos

filed objections to the Magistrate's order

on the grounds that it was based on hear-

Say statements of an attorney

The Trial Court entered an Order accept-

ing the Magistrate's Order.

In February, 1992, Kaliardos filed a

Motion for the appointment of a special

master. The Appellees opposed the motion

and it was denied.

In April, 1992, Kaliardos terminated

a deposition of his expert David W. Byrd

(Byrd) which was taken pursuant to an

order and moved for a protective order re-

questing that the Court limit the time

and scope of the deposition. Kaliardos'

motion for a protective order was denied.

On September 23, 1992, Kaliardos filed

a motion for an order requiring Kaliardos

and Appellees to conduct joint tests of

samples taken from General Motors’ ve-

hicles. All of the Appellees opposed the

motion and it was denied.

Summary Judgement

On January 30, 1990, General Motors

and BASF filed a motion for summary judge-

ment of non-infringement of Kaliardos'

patents. On April 30, 1990 after

Kaliardos filed his response,

General Motors and BASF requested the Trial

Court to defer action on the motion pend-

ing further discovery.

Over Kaliardos' objections, an order

was entered which allowed the Appellees to

depose Kaliardos' expert, Mr. Byrd, over a

2 1/2 year period, from December 19, 1989 |

to July 31, 1992. The transcript of the

-¢67-

deposition consists of 1481 pages in 12

volumes.

During the deposition, the Appellees'

attorneys were successful in obtaining a

ruling which prohibited Byrd during direct

examination from qualifying answers and

requiring him to respond to overtly broad

questions with "Yes" or “No” answers,

The length of the deposition and the

control which was exercised over Byrd's

testimony during direct examination made

his deposition of limited value. During

the Magistrate's oral hearing on the sum-

mary judgement motions, Kaliardos made

an oral motion to strike Byrd's deposi-

tion. The motion was denied.

On September 23, 1993, Magistrate

Goldman struck the affidavit of Thurlow

Geeck, a person with 44 years of exper-

ience in developing and manufacturing

coatings, and Exhibit "H" in Kaliardos'

January 3, 1992 response. Mr. Geeck

stated in his affidavit that some

of Daubert's production records were

false. Exhibit "H" was a collec-

tion of letters from companies which cor-

rosion tested Kaliardos' coating. The

letters referred to specific General

Motors standards.

On January 3, 1994, Kaliardos filed

motions for leave to file supplements to

Kaliardos' responses to the Appellees'

pending motions for summary judgement of

non-infringement. When the motion

was filed, the District Court had not

acted on the Appellees' pending motions.

The subject matter of the supplements

waS a nine page test report of Kaliardos'

expert Byrd. The test report supplemented

Byrd's affidavits regarding the equivalence

of the ingredients of the accused coatings

-g-

hinciieuha Sh aera Pt ee

ot i Oe tle ott, ge > ig sD bith: in) bits ee

ee “eh

to the ingredients in the Claims of Kali-

ardos' patents. The test report corrobor-

ated Byrd's affidavits. The District

Court denied the motion (3/31/94 Order).

Kaliardos requested an oral hearing

on his objections to the Magistrate's

Report and Recommendation. The request

was not granted.

STATEMENT OF FACTS

The Automobile Corrosion Problem

Se tt estes nies A cn ae

During the 1960's and 1970's vehicle

corrosion was a serious problem, parti-

cularly in cold weather states. It was

estimated in 1975 that rusted-out ve-

hicles cost motorists 5 billion dollars

in 1968 and 7.5 billion dollars in 1975.

The Kaliardos Patents

U.S. 3,959,530. The Subject of

U.S. 3,959,530 is a wax-type protective

coating. The coating is described in the

-g-

specification in terms of commercially

available ingredients.

U.S. 4,356,036 is an improvement of

U.S. 3,959,530. The coating is described

in the specification in terms of commer-

cially available ingredients. Claim l

which is representative of the claimed

invention is drawn to a mixture of 8 in-

The Accused Coatings

BASF, Daubert and H.B. Fuller supplied

General Motors with the accused wax type

anti-corrosion coatings. General Motors

admits that the coatings met the require-

ments of General Motors material specifi-

cations GM 998-1128 and 998-2150 but

denies knowing the exact chemical com-

positions of the BASF, Daubert and H.B.

Fuller coatings.

The chemical compositions of the BASF,

Daubert and H.B. Fuiler coatings are dis-

oi OW

TOE Sy gn) Ae si

Ieee ashen temp SEL

puted issues of fact.

Analyses of coatings taken from six

General Motors' vehicles (1983 Cavalier,

1983 Olds Cierra, 1984 Buick Skyhawk,

1987 Celebrity, 1988 Olds Delta and 199]

Pontiac Grand Prix) show that ingredients

were used which BASF, Daubert and H.B.

Fuller deny useing in their coatings.

The 1983 Cavalier, 1984 Olds Cierra and

1984 Buick Skyhawk were examined by an

expert who determined that the doors from

which the coatings were taken and the

coatings themselves were Original equip-

ment.

Analyses of a liquid BASF coating

and two liquid H.B. Fuller coatings also

Show that ingredients were used which

BASF and H.B. Fuller deny using.

The disputed ingredtients are material to

Kaliardos' claims of infringement.

The requirements of General Motors

two specifications are very Similar. GM

998-1128 requires alumunim paste.

GM 998-2150 neither requires nor

prohibits aluminum paste. General Motors

alleges that the aluminum paste was added

to make the coating visible. The GM 998-

2150 specification requires the coating

to be "visible under normai production

lighting". This permits a sup-

plier to decide which material to add to

meet the visible requirement.

BASF, Daubert and H.B. Fuller sup-

plied the coatings to General Motors

under the following designations:

Appellee GM 998-1128 GM 998-2150

BASF $51Z001 N.A.

Daubert NOX-151 NOX-170

H.B. Fuller N.A. WC-2251 &

WC-2251-P

BASF S512001

BASF alleges that, except for minor

~1l2-

Changes, BASF and its predecessors

Sold the same coating to General Motors

from 1953 to 1987. In 1987 BASF discon-

tinued making the coating.

The following table compares the

compositions of BASF's 1976 and 1985

$512Z001 Safety Data Sheets (MSDS).

1976 1985

1. Aluminum 1. Aluminum

2. Petroleum 2. Hydrocarbon Resin

Hydro-Carbon

Resin

3. Microscrys- 3. Microcrystalline

talline Wax Wax

4. VM & Naphtha 4. VM & Naphtha

a. - 5. Stearic Acid

6. - 6. P.P, Methyl Diamine

7. Mineral - 4. Mineral Spirits

Spirits

Daubert NOX-15] and NOX-170

Daubert admits it sold its X-151

-~l]3-

coating to General Motors from 1979 to

1986 and its X-170 from June, 1984 to the

present. Daubert used code numbers in

its production records to identify the

ingredients. After promising in a res-

ponse to a Rule 34 request to provide

samples, Daubert refused to supply Kali-

ardos with samples.

The compositions of Daubert's coating

are disputed issues of fact.

The following table compares Daubert's

NOX-151 and NOX-170 Material Safety Data

Sheets.

NOX-151 NOX-170

1. Aluminum 1. Aluminum Pigment

Pigment

2. Thermoplastic 2. Hydrocarbon

Hydrocarbon Resin

3. Microcrystalline 3. Petroleum Wax

Wax

4. VM & Naphtha 4. VM & Naphtha

olde

5. Lead Sulfo- 5. Barium Sulfonates

nates

6. Silica 6. Petroleum Oil

(Severely solvent

refined and/or

severaly hydro-

genated)

General Motors identified Daubert as the

Supplier of the coating taken from the

1984 Buick Skyhawk.

H.B. Fuller WC-2291 and WC-2291-p

H.B. Fuller began Supplying WC 229]

and WC 2291-P coatings to General Motors

on August 19, 1988. H.B. Fuller also

used code numbers in its production

records to identify the ingredients of

its coatings. H.38. Fuller denies making

coatings containing the disputed ingre-

dients. Samples of H.B. Fuller coatings

were tested by Kaliardos' experts and

failed to pass GM 998-2150 corrosion

tests.

Fuller's WC-2291 and WC-2291-P MSDS are

compared in the following table.

wCc-2291 WC-2291-P

1. Aliphatic 1. Aliphatic Resin

Hydrocarbon Resin

2. Microcrystalline . Microcrystalline

Wax Wax

3. Parafinic Wax 3. Parafinic Wax

4. VM & Naphtna 4. VM & Naphtha

5. Calcium Sul- 5. Calcium Sulfonate

fonate

6. Mineral Spirits 6. Mineral Spirits

7. Aliphatic Oil 7. Aliphatic Oil

(Hydro treated) (Severely hydro-

genated)

Perforascce Deis

BASF, Daubert and H.B. Fuller have

admitted that the coatings which they

supplied to General Motors met the re-

quirements of General Motors specifica-

tions GM 998-1128 and GM 998-2150. The

performance data of Kaliardos' coating

~16—

which is disclosed in his '036 patent

shows that his coating produces substan-

tially the same results. The perfor-

mance data in the '036 patent is com-

pared to the requirements of GM 998-1128

and GM 998-2150 in the following chart.

The Magistrate's report and re-

commendation contains the errors of

material facts and conclusions which

lack support in the record. The Magis-

trate failed to believe all cf Kali-

ardos' evidence and to draw all justi-

fiable inferences in Kaliardos' favor.

It is clear from the Magistrate's re-

port that he lacked an understanding of

chemical laboratory analyses. The

Magistrate misinterpreted the meaning

of “not detected" in the reports as rep-

resenting "not present". The Magis-

trate didn't understand that several

methods may have to be employed to

-l|7-

determine an ingredient is present. The

District Court was informed of this in

the Objections and supplement which

Kaliardos filed. Attached to the Ob-

jections was a compilation of documents

which support Kaliardos' claims of in-

fringement against the Appellees-

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Appeal to Court of Appeals for the

Federal Circuit

Kaliardos appealed the District

Court's Granting of Defendant-Appellee's

Summary Judgement motion to the Court of

Appeals for the Federal Circuit in timely

fashion.

The basis for federal jurisdiction

in the court of first instance, the United

States District Court, Eastern District

of Michigan, Southern Division, is as al-

leged in the District Court case No. 88-

CV-73729-DT and is based on 28 U.S.C.

1338 (a).

"(a) The district courts shall

have original jurisdiction of any

civil action arising under any

Act of Congress relating to

patents, plant variety protection,

copyrights and trademarks. Such

jurisdiction shall be exclusive

of the courts of the states in

patent, plant variety protection

and copyright cases."

The Court of Appeals for the Fed-

ay fe

eral Circuit, disregarded Kaliardos'

many showings of genuine issues as to

material fact as discussed above

which should be tried to.a jury. Fur-

ther, the Court of appeals disregarded

Kaliardos' assertions that the court a-

bused its discretion in denying his

motion for leave to supplement his sum-

mary judgement responses with a test re-

port of his expert and in not granting

his request for an oral hearing before

deciding the motion for summary judge-

ment.

In essense, the Court of Appeals

rubber stamped the holdings of the trial

court which rubber stamped the findings

of the magistrate judge who at best was

confused by the subject matter of the

trial by his own admission

Litt oS ' ooh oe Ree” ee Ae 5 thes

—21-

The ultimate acceptance by the Court

of appeals of a confused magistrate

judge's recommendations leading to the

dismissal of plaintiff appellant's case

has caused Kaliardos to request a Writ

of Certiorari from the Supreme Court

in an effort to obtain justice for him-

self and others who find themselves

prevented from seeking justice from a

jury of their peers by over-broad ap-

plication of Rule 56 used to clear the

court's docket of difficult cases and/

or litigants.

It is time for the Supreme Court to

look into this matter and in so doing

perhaps give Kaliardos his full day in

court, 1.e. a trial on the merits of his

Mae GME ETF

inventions.

-22- 4

ARGUMENT

RULE 14-1(5)

The District Court's Summary Judge-

ment and the Court of Appeals for the

Federal Circuit's affirmation of the

judgement must be reviewed and reversed

because there are genuine issues for

trial.

The issue below is whether Kali-

ardos has presented sufficient facts to

show that there are genuine issues re-

guiring trial; F.R.C.P. 56(e). That

issue is here also, along with broader

and deeper issues which make the case

exceptional and a prime candidate for

review by the Supreme Court of the United

States. These issues are whether Fed-

eral Rule 56 is being properly utilized

by the lower courts or is Federal Rule

56 being utilized to rid the federal

courts of difficult cases and/or diffi-

-23-

cult plaintiffs. Is Federal Rule 56 being

utilized by the industrial complex to de-

prive small independent inventors of the

fruits of their labor.

In reviewing Kaliardos' evidence, the

Federal Circuit should have accepted all

of his evidence as being true, should

have drawn justifiable inferences in his

favor and not made determinations of

credibility. The Federal Circuit has

pointed out that patent suits involve

complex factual issues requiring the

testimonies of experts.

BASF, Daubert and H.B. Fuller admitted

they supplied the accused coatings and

General Motors has admitted that it used

the coatings in its vehicle doors.

Therefore, the only matter to be decided

is whether Kaliardos has presented suf-

ficient facts requiring a trial on his

claims of infringement.

-24-

€

RENEE RMR IIPEE LON STINT

Kaliardos has provided detailed

claim analyses. His evidence shows

that the coatings covered by his

patents meet the requirements of

General Motors specification 998-1128

and 998-2150. BASF, Daubert and H.B.

Fuller admit that their coatings also

meet the requirements of the General

Motors standards. Therefore, Kaliardos'

coatings produced the same results as

the Appellee's coatings.

Kaliardos' affidavits show that

hrs coatings were developed to meet

General Motors specifications. The

Appellees have admitted that their

coatings were developed for this pur-

pose. Kaliardos'affidavits show which

ingredients are needed to meet the re-

guirements of the specification.

Under the guidelines, the Federal

Circuit should have accepted this evi-

dence as being true. By the court‘s own

statement, the doctrine of equivalents

is not a prisoner of a formula. In deter-

mining equivalence, all of the evidence

must be considered, including the pur-

poses of elements and whether a person

skilled in the art would consider elements

to be interchangeable.

Kaliardos' response. include de-

tailed claim analyses which support his

claims of infringement against the Appel-

lees. His responses are supported by the

affidavits of Kaliardos and experts and

documents.

The District Court abused its dis-

cretion in denying Kaliardos' motion for

leave to supplement his responses with the

test report of his expert, Byrd. Mr.

Byrd's test report was relevant evidence

which would have been admissable at the

ati<

time of trial. Although affidavits are

the most common evidence in opposition

to motions for summary judgement, there

is no reason to exclude evidence which

would be admissable during a trial. Rule

702 F.R.Ev. was enacted to assist the

trier of fact to understand the evidence

and determine a fact in issue. "Nothing

in the text of this rule establishes

‘general acceptance' as an absolute pre-

requisite to admissability."; Daubert vy.

Merrell Dow Pharmaceuticals Inc., 27

USPQ2d 1200, (S.Ct. 1993). Byrd's affi-

davits clearly showed that he was com-

petent to perform the tests.

The District Court abused its dis-

cretion in not granting Kaliardos' re-

quest for an oral hearing. During the

5 1/2 years in the District Court, only

two oral hearings were held in the Dis-

trict Court. The District Court acted

-27-

on the record without the benefit of ex-

pert testimony; Yenzer v Agrotors Inc.,

22 USPQ2d 1291 (D.C. M.D. Pa. 1991). An

oral hearing after the Magistrate's Re-

port and Recommendation would have per-

mitted Kaliardos the opportunity to ex-

plain the evidence which the Magistrate

misconstrued as being "muddled and diffi-

cult to comprehend" before the District

Court acted on the motions for summary

judgement.

THE DISTRICT COURT ABUSED ITS DIS-

CRETION IN ADOPTING THE MAGISTRATE'S

RECOMMENDATION

The Federal Circuit has made it clear

that in reviewing a grant of summary

judgement of a district court, the Fed-

eral Circuit is not bound by the holding

of a district court that no material

facts are in dispute, and must make an

independent determination as to whether

the standards for summary judgement have

atts

been met. Vas-Cath Inc. v Mahurkar, 19

USPQ2d 1111 (Fed. Cir. 1991); C.R. Bard,

Inc. v. Advanced Cardiovascular Systems,

911 F2d 670, 673, 15 USPQ2d 1540, 1542-

43 (Fed. Cir. 1990).

The protracted proceedings in the

District Court created a difficult re-

cord for the District Court. The long

period for filing dispositive motions

and the 2 1/2 year deposition of the

Kaliardos expert permitted the Appellees'

skilled attorneys to confuse the Dis-

trict Court by their attacks on Kali-

ardos' evidence.

The guidelines for de novo review

would have enabled the District Court to

decide whether summary judgement is appro-

priate. The main issue on this appeal is

whether there are disputed issues of

material facts which would preclude the

granting of the Appellees’ motions for

summary judgement.

After Kaliardos filed his objections

to the Magistrate's Report and Recommenda-

tion, under Section 72(b) of the Federal

Rules of Civil Procedure, the District

Court was required to conduct a de novo

review of the evidence. The Supreme

Court has said tnat although Section

636(b) of the Federal Magistrate's Act

was enacted to "establish a system cap-

able of increasing the oyerall efficiency

of the Federal judiciary...Congress also

intended the district judge to retain

ultimate respunsibility for decision mak-

ing."; Mathews v Weber, 423 U.S. 261, 96

S.Ct. 549 (1976).

The evidence showed that there were

genuine issues for trial. By accepting

the Magistrate's Report and Recommenda-

tion, the District Court abused its dis-

cretion.

Di i ol es Mires

REMAP PRR erin gtr.

OORT RAT RUA

SERIE PRR IND EY BIEL? Py

In deciding a motion for summary

judgement "credibility determinations,

the weighing of evidence, and the drawing

of inferences from the facts are jury

functions, not those of a judge, whether

he is ruling on a motion for summary

judgement or for a directed verdict.

The evidence of the non-movant is to be

believed, and all justifiable inferences

are to be drawn in his favor." Anderson

v. Liberty Lobby, Inc. et al., 477 US

242, 106 S.Ct. 2505 (1986); Lemelson v.

TRW Inc., 760 F2d 1254, 1260. 225

USPQ 697, 700 (Fed. Cir. 1985); Connell

ve. Sears, Roebuck & Co., 722 F2d 1542,

1546, 220 USPQ 193, 197 (Fed. Cir. 1983);

a court may not resolve "disputed and

relevant factual issues on conflicting

affidavits of qualified experts, (cita-

tions omitted). Nor is it at liberty to

disbelieve the good faith statements of

experts contained in depositions or affi-

davits and presented by the non-moving

party." (citations omitted). Federal

Laboratories, Inc. v. Barringer Research

Limited et al., 696 F2d 271; 217 USPQ 114

(Fed. Cir. 1982); “Although Federal Rules

of Civil Procedure do not limit or forbid

use Of summary judgement procedures in

patent cases, courts should exercise

great caution before granting such motion

in infringement action; patent cases in

particular tend to involve complex is-

sues that are not properly resolved with-

out aid of expert testimony."; Landau

v. J.D. Barter Construction Company, Inc.

657 F2d 158, 211 USPQ 861 (7th Cir. 1981).

The summary judgement motions of Gen-

eral Motors required Kaliardos “to set

forth specific facts showing that there

is a genuine issue for trial"; F.R.C.P.

56(e). Kaliardos claimed that the Appel-

Se en :

—_ toe ese _—

lees were liable jointly and severally

for infringing his patents.

The District Court abused its dis-

cretion in denying Kaliardos' motion for

leave to supplement his responses on the

ground it was not supported by an affi-

davit. The subject of the motion was a

test report by Kaliardos' expert which

supported Kaliardos' evidence of equiva-

lence.

Although Fed.R.Civ.P. 56(e) requires

supporting affidavits to be made on per-

sonal knowledge, the Rule does not re-

strict evidence of the non-movant to af-

fidavits. Moreover, “While it is clear

that a summary judgement may be rendered

solely on the basis of affidavits, affi-

davits are, as a general proposition, the

least trustworthy basis, since the affi-

ant has not been subject to cross exami-

nation and his demeanor is not observable.'

ae ee ee ee

Moore's 1992 Federal Rules Pamphlet, Part

1, po. 36.

Because there are Genuine Issues of

Material Facts, the Judgement of the

District Court Should Be Reversed

An infringement of a patent is an in-

fringement of its claims. "Claims measure

the invention and determine whether there

is infringement."; Continental Paper Bag

Co. v. Eastern Paper Bag Co., 210 US 405

(1908). “Each claim of a patent is a

separate and distinct invention." Gould,

Inc. vy United States, 195 USPQ 112, (US

Ct Cls, 1977). Proof of infringement of

a Single claim is sufficient to establish

infringement of the patent.

Claims may be infringed in one of two

ways. If, by comparing the words of a

claim with an accused device, it is shown

that the accused device is clearly within

the claim, a case of literal infringement

-34-

exists. Acme Highway Products Corp. v

D.S. Brown Co., 177 USPQ 130 (6th Cir.

L973).

The second test is the application

of the doctrine of equivalents. "A

finding of equivalence is a determina-

tion of fact. Proof can be made in any

form: through the testimony of experts

Or others versed in the technology; by

documents, including texts and treatises;

and of course, by the disclosure of the

prior art. Like any other issue of fact

final determination requires a balancing

of credibility, persuasiveness and

weight of evidence." Intel Corp. v.

International Trade Commission, 20 USPQ

2d 1161 (Fed. Cir. 1161).

“What constitutes equivalency must

be determined against the context of

the patent, the prior art, and the par-

ticular circumstances of the case."

Graver Tank & Mfg. Co., Inc., et al. v.

Linde Air Products Co., 339 U.S. 605; 85

USPQ 328 (1950).

"Equivalence, in the patent law, is

not the prisoner of a formula and is not

an absolute to be considered in a vacuum

..--1t does not require complete identity

for every purpose and in every respect...

Consideration must be given to the pur-

pose for which an ingredient is used in

a patent, the qualities it has when com-

bined with the other ingredients, and

the function which it is intended to per-

form. An important factor is whether

persons reasonably skilled in the art

would have known of the interchangeabil-

ity of an ingredient not contained in the

patent with one that was." Graver Tank,

supra.

Under §271(b) of the Patent Statute,

a party may be liable as a contributory

-36-

mi TAME TER OPA RIOR PRD eT MET Wind eM:

PNET REED LETH! 8S BI TM

infringer if the party sells a material

component of a patented invention with

knowledge that such component has been

made for use in an infringement of the

invention.

BASF

Kaliardos' January 3, 1992, response

to the joint General Motors and BASF

motion for summary judgement sets forth

specific facts showing there is a gen-

uine issue for trial on Kaliardos'

claim of infringement against BASF. The

response is supported by affidavits of

Kaliardos and his expert Byrd.

Byrd's affidavit is supported

by test data, documents, technical ar-

ticles, and the basis of his finding of

equivalence between the ingredients of

the BASF coating and the ingredients of

claim 1 of the patents. Kaliardos' af-

fidavit identifies the purposes

me ype

of the ingredients of the claims. The

January, 12992 response is supported by

the October, 1992 supplement and

the '036 patent which shows that ;

Kaliardos' coating produces the same re-

sults as the BASF coating. Kaliardos'

claim of infringement is further supported

by the deposition testimony of Byrd.

the January, 1-94 test report

which the District Court refused to admit

and the affidavits of Daryl Strandberg,

Dr. Paul Epstein, Dr. James Johnson and

Dr. Peter Warner.

Daubert

Kaliardos' December 20, 1991 response

to the Daubert motion for summary judge-

ment and Daubert's acts provide :

specific facts showing there are genuine

issues for trial on Kaliardos' claim of

infringement against Daubert. The res-

-38-

ponse is supported by affidavits of

Kaliardos and his expert Byrd. The

mistake of the lab technician which re-

sulted in a Pontiac Grand Prix door to

be incorrectly identified in the Decem-

ber, 1991 response as a Cadillac Eldor-

ado door does not invalidate the lab

analysis of the coating which was taken

from the interior of the door. Kali-

ardos' response and supplement of Octo-

ber, 1992 are supported by

exhibits and affidavits, Kaliardos' dis-

Closures in affidavits of the purpose of

the ingredients of his coatings, and

deposition testimony of Byrd.

Daubert's failure to come forward

with evidence to rebut the presumptions

of infringement resulting from its re-

fusal to supply samples of its coatings,

its opposition to the appointment of a

= 39

Special Master, its opposition to joint

tests of coatings and its opposition to

have Kaliardos take the deposition of its

employees provide further evidence of in-

fringement. Kaliardos' evidence is sup-

plemented by the deposition testimony of

Byrd and the January, 1994 test

report which the District Court

refused to admit.

H.B. Fuller

Kaliardos' January 3, 1992, response

to the H.B. Fuller motion for summary

judgement and H.B. Fuller's acts

provide specific facts showing there is a

genuine issue for trial on Kaliardos'

claim of infringement against H.B.

Fuller. The response is supported by af-

fidavits of Kaliardos and his expert

Byrd and the October, 1992 supplement,

The failures of the H.B.

Se, eats .

Soh ea ada oh a

Fuller coatings to meet the corrosion

test requirements of General Motors 998-

2150 raises a presumption that

H.B. Fuller has withheld evidence tend-

ing to prove infringement. The deposi-

tion testimony of Byrd

and the January, 1994 test report

which the District Court refused to ad-

mit supplies further evidence to support

Kaliardos' claim of infringement.

H.B. Fuller's opposition to the ap-

pointment of a Special Master, its oppo-

Sition to joint tests of coatings raise

presumptions of infringement.

General Motors

General Motors' failure to come

forward with evidence to rebut the pre-

sumptions caused by its opposition to

the appointment of a Special Master and

its opposition to joint tests of coatings

in its vehicles raises a presumption of

infringement.

There is an issue of material fact

as to which of Appellees added the dis-

puted ingredients to the coating. The

deposition testimony of Byrd that there

was a statement with the BASF coating

which says that "Mr. Ethington sampled

this from a production line. That's all

I recall.", raises a presumption that

General Motors added the disputed ingre-

dients.

This would make General Motors

liable as a direct infringer under 35

U.S.C. §271(a) and expose the other Ap-

pellees to liability as contributory in-

fringers under 35 U.S.C. §271(c). Gen-

eral Motors could also be found liable

under 35 U.S.C. §271(b) as an infringer

by inducement.

~42°

The District Court Abused Its

Discretion In Not Granting

Kaliardos' Request for an

Oral Hearing

During the 5 and 1/2 years of the

pre-trial, there were only two oral hear-

ings before Judge Gadola. The issues in

this case were complex. Kaliardos had

filed objections which identified numer-

Ous problems with the Magistrate's re-

port.

Three motions of Kaliardos were

pending. Two of the motions were Rule

ll motions. Kaliardos requested that the

Court defer acting on the summary judge-

ment motions until it ruled on Kaliardos'

Rule 11 motions. The Rule 11 motions

were direct attacks on the credibility

of the Appellees. A resolution of the

Rule 11 moticns may have affected the

pending summary judgement motions.

Kaliardos had waited five years in

the District Court to bring his case be-

fore a jury. The extension of time to

file dispositive motions, which he op-

posed, substantially delayed the litiga-

tion and burdened him financially.

Although some appeal courts have up-

held refusals of trial courts to grant

oral hearings, where issues have been

complex, failures to grant oral hearings

have been found to be unacceptable.

In Kistner v. Califano (CA6 Ohio) the

appeals courts vacated a summary judge-

ment where local rules allowed for elimi-

nation of oral hearings. In Dredge Corp.

v. Penny, 338 F2d 456 (CA9 1964) the

Court said that Rule 56 appears to contem-

plate that a hearing will be held before

a motion for summary judgement is acted

on.

wag

lala atid oT aa tt

PRAT

Summary and Conclusion

Thus, Kaliardos provided ample

evidence to the Magistrate Judge, the

District Court and the Court of Appeals

to establish his absolute right to a

Jury trial. Genuine issues of material

fact with respect to each of the defendant-

appellees below have been discussed above.

The fact that a Magistrate Judge, not

Knowledgable in the highly technical

Suoject matter has been confused and lead

astray by Defendant -Appellees Respondant's

council and wrongly recommended granting

of their summary motions high lights the

danger in the over zeleous use of Rule 56

motions, especially in complex patent

cases by the lower federal] courts in

recent years.

The acceptance of the Magistrate's

-45-

recommendation by the Trial Court without

the aid of a master and the affirmance

of the trial court's decision to dismiss

Kaliardos' case by the Court of Appeals

in view of the evidence discussed above

and the plain requirements of Rule 5o

certainl, gives rise to the question;

Is Rule 50 being used to clean the Federal

Court system of difficult cases and/or

litigants not all of who have the fin-

ances and tenacity to bring the question

to this court.

This question is ripe for consid-

eration. This case is an excellent

vehicle for such consideration. The

struggling independant inventors faced

with extremely difficult litigation

against corporate america require this

court's help in such consideration.

-46-

The granting of the requested Writ of

Certiorari is therefore prayed for.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICOLAS KALIARDOS,

Plaintiff, Civil Action No.

i 88-73729

HONORABLE PAUL V.

GENERAL MOTORS COR- “ GADOLA

PORATION, BASF

CORPORATION, DAU- U.S. DISTRICT JUDGE

BERT INDUSTRIES,

INC., H.B. FULLER

COMPANY, and H.B.

FULLER AUTOMOTIVE

PRODUCT, INC.,

jointly and severally,

Defendants.

ORDER ACCEPTING MAGISTRATE

JUDGE'S OCTOBER 7, 1993

REPORT AND RECOMMENDATION

The court, pursuant to 28 U.S.C.

§636(b) (1) (B), Fed. R. Civ. P. 72(b),

and LR 72.1(d) (2) (E.D. Mich. Jan. l,

1992), has reviewed the magistrate

judge's October 7, 1993 report and re-

commendation as well as plaintiff's ob-

jections. After conducting a de novo

-48-

MEL ERM NESE OE tem ore

review, the court accepts the magi-

strate judge's report and recommenda-

tion as the court's findings and con-

clusions.

Therefore, it is hereby ORDERED that

the magistrate judge's October 7, 1993

report and recommendation is ADOPTED.

It is further ordered that the motion

for summary judgement of defendants Gen-

eral Motors Corporation and. 'BASF Corpor-

ation is GRANTED.

It 1s further ORDERED that defendant

Daubert Industries, Inc.' motion for sum-

mary judgement is granted.

It is further ORDERED that the motion

for summary judgement of defendants H.B.

Fuller and H.B. Fuller Automotive Pro-

ducts, Inc. is GRANTED;

a judgement in accordance with this

order shall be entered.

-~49-

SO ORDERED.

Dated: 3/30/94 (signed)

PAUL V. GADOLA

UNITED STATES DISTRICT

JUDGE

REND RE Sy NES

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICOLAS KALIARDOS,

Plaintiff, Civil Action

vs Case No.

. 88-CV-73729-pDT

GENERAL MOTORS COR-

PORATION, BASF COR- Hon. Paul J.

PORATION, DAUBERT Gadola

INDUSTRIES, INC.,

H.B. FULLER COMPANY,

NATIONAL STARCH ¢&

CHEMICAL CORPORATION,

and BEAZER EAST, INC.,

jointly and severally,

Defendants. y,

AFFIDAVIT OF DAVID W. BYRD

State of Michigan )

) SS:

COUNTY OF OAKLAND )

David W. Byrd, being duly sworn, de-

poses and says:

1. That I have an M.S. degree in

Biological Science, Wayne State Univer-

Sity, post graduate credits in chemistry,

and am a member in good Standing of The

-5]-

American Chemical Society, ANACHEM and

the Chromatography Society.

2. That I am the owner of Absolute

Analytical Laboratory, 1030-D Crooks Road,

Clawson, Michigan, which is in the busi-

ness of trace organic and inorganic

chemical analyses of materials.

3. That from December, 1987 to the

present, I conducted laboratory analyses

at the Absolute Analytical Laboratory of

samples of a BASF anti-corrosion coating

TRS SOR YL LR OS LENT IARI OT EMINENT ET) cok. my

and scrapings of this coating taken from

Pes t4

General Motors' vehicles.

RTS PLE

4. That I reviewed BASF and General

Motors documents, technical literature

and deposition testimonies of BASF and

General Motors employees relating to the

BASF $512Z001 coating.

5. That I also reviewed U.S. Patents

Nos. 3,959,530 and 4,356,036, including

the specifications and claims.

-52-

6. That after reviewing the above

iiformation, it is my Opinion that the

BASF anti-corrosion coating contains all

of the ingredients or well known equi-

valents of the ingredients specified

in claim 1 of U.S. Patent No. 3,959,530

and claim 1 of U.S. Patent No. 4,356,036.

Further deponent sayeth not.

David W. Byrd

Subscribed and sworn to

before me this 2nd

day of January, 1992

-53-

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

94-1265

NICOLAS KALIARDOS,

Plaintiff-Appellant,

GENERAL MOTORS CORPORATION,

BASF CORPORATION, H.B. FULLER

COMPANY, and H.B. FULLER

AUTOMOTIVE PRODUCTS, INC.,

jointly and severally,

Defendants~-Appellees,

and

DAUBERT INDUSTRIES, INC.,

Defendant~-Appellee.

DECIDED: November 22, 1994

Before LOURIE, Circuit Judge, COWEN,

Senior Circuit Judge, and CLEVENGER,

Circuit Judge.

LOURIE, Circuit Judge.

DECISION

Nicolas Kaliardos appeals from a de-

cision of the United States District

Court for the Eastern District of Michi-

-s47

Se ee

gan granting summary judgement of non-

infringement in favor of General Motors

Corporation, BASF Corporation, H.B. Fuller

Company, H.B. Fuller Automotive Products,

Incorporated, and Daubert Industries, In-

corporated. Kaliardos v. General Motors

Corp., Civ. No. 88-73729 (E.D. Mich. Mar.

30, 1994). Because we conclude there is

no genuine issue as to any material fact

and the defendants are entitled to

judgement as a matter of law, we affirm.

DISCUSSION

On September 14, 1988, Kaliardos

filed an action claiming infringement of

certain claims of United States Patents

3,959,530 and 4,356,036 by General Motors

and three of its suppliers of anti-corro-

Sive automobile coatings. Kaliardos

claimed that the defendants infringed the

"530 patent under the do¢trine of equiva-

lents, and infringed the '036 patent

literally and under the doctrine of

equivalents.* In 1991, after lengthy

discovery, the defendants filed motions

for summary judgement of non-infringe-

ment.

On October 7, 1993, the magistrate

judge reported that the evidence produced

did not create a genuine issue of mater-

ial fact concerning whether the accused

products infringed the asserted claims,

either literally or under the doctrine of

equivalents. Accordingly, the magistrate

judge recommended entry of summary judge-

* Kaliardos alleged that BASF liter-

ally infringed claims 1, 2, and 7 of the

'036 patent, and infringed claims 1-6 of

the '036 patent and claims 1 and 2 of the

'530 patent under the doctrine of equiva-

lents; that Daubert literally infringed

claims 1, 5, and 6 of the '036 patent,

and infringed claims 1-6 of the '036

patent and claims 1 and 2 of the '530

patent under the doctrine of equivalents;

and that Fuller infringed claims 1 and 2

of the '530 patent under the doctrine of

equivalents. Kaliarjos aslo asserted

claims against General Motors.

-56-

ment in favor of the defendants. The

district court judge adopted the report

and recommendation of the magistrate,

granted the defendants' motions for sun-

mary judgement, and dismissed Kaliardos'

action on the merits. Kaliardos now ap-

peals.

Summary judgement is appropriate if

there-is no genuine issue as to any ma-

terial fact and the moving party is en-

titled to a judgement as a matter of law.

Fed. R. Civ. P. 56(c). If a party fails

to make a showing sufficient to estab-

lish the existence of an element essen-

tial to that party's case, summary judge-

ment should be granted against that

Party. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). The burden is ini-

tially on the moving party to show that

there is an absence of evidence to sup-

port the non-~oving party's case. Id. at

-5}~

323. The burden then shifts to the non-

moving party to designate specific facts

showing that there is a genuine issue for

trial. Id. at 324. In reviewing a grant

of summary judgement, we must make an in-

dependent determination as to whether the

Standards for summary judgement have been

met. C.R. Bard, Inc. v. Advanced Cardio-

vascular Ste., 9ii F.28 670, 673,33

USPQ2d 1540, 1542-43 (Fed. Cir. 1990).

Claim 1 of each patent is representa-

tive of the claims asserted against the

defendants. Claim 1 of the '530 patent

reads:

A cleaning and protective coating

composition consisting essentially

of a mixture of wax residue such as

paraffin and microcrystalline wax,

perchlorethylene (sic), petroleum

distillate having a boiling point

ranging between 350 (degrees) and

380 (degrees) F., and a nonionic

surfactant such as nonylphenoxpoly

(ethyleneoxy) ethanol and a small

amount of (N,N,N',N'-tetrakis

(2-hydroxypropyl) ethylenediamine) ).

-58..

Claim 1 of the '036 patent reads:

An anti-corrosion coating comprising

a mixture of aluminum paste or zinc

paste containing aluminum or zinc

flakes and a solvent, microcrystal-

line wax, aromatic hydrocarbon -

resin having a softening point, R

and B, of 70 (degrees) C. - 140

(degrees) C., chlorinated rubber

having a combined chlorine content

of at least 66%, neutral barium sul-

fonate, chlorinated solvent, aro-

matic hydrocarbon solvent and min-

eral Spirits.

Kaliardos asserts that the court

erred in granting summary judgement be-

cause he presented sufficient evidence to

show there are genuine issues requiring

trial. However, the evidence adduced

does not establish that each of the ele-

ments of the asserted claims is present

in the accused coatings. For example,

the evidence does not show the presence

of neutral barium sulfonate in the BASF

coatings or the presence of chlorinated

solvent or chlorinated rubber in the

Daubert coatings. Furthermore, there is

=.)

a lack of evidence that the accused

coatings infringe the patents under the

function-way-result test of the doctrine

of equivalents. Moreover, there were in-

adequate assertions’ of the presence of

equivalents of neutral barium sulfonate,

a nonionic surfactant such as nonylpheno-

xypoly (ethyleneoxy) ethanol, and the

specific ethylenediamine required by the

claims. We thus agree that there were

no genuine issues of material fact con-

cerning infringement and that the court

did not err in granting summary judge-

ment of non-infringement.

Kaliardos also asserts that the

court abused its discretion in denying

his motion for leave to supplement his

responses with a test report of his ex-

pert. The court denied Kaliardos'

motion on the basis that the report was

untimely and unverified. Kaliardos has

-60-

not established that the court abused its

discretion in not admitting the test re-

port in question.

Furthermore, Kaliardos asserts that

the court abused its discretion in not

granting his request for an oral hearing

before deciding the motion for summary

judgement. However, the court properly

relied on the record developed by the

magistrate and was not required to con-

duct an oral hearing in addition to

that conducted by the magistrate.

Finally, the defendants each re-

quest an award of attorney fees and

costs against Kaliardos. We decline to

award fees and costs in this case be-

Cause we believe the appeal was under-

taken conscientiously.

~§ 1

United States Patent 1191

Kaliardos : 111) 3,959,530

(45) May 25, 1976

[54] CLEANING AND PROTECTIVE COATING

COMPOSITION AND METHOD

[76] Inventor: Nicolas Kaliardos, 10725 Morang }

Ave., Detroit, Mich. 48224

[22] Filed: Sept. 20, 1974

[21] Appl. No.: $07,851

Related U.S. Application Data

{63] Continuation-in-part of Ser. No. 319,851, Dec. 29,

1972, abandoned.

BORG Cilie Siissennaeusrnsininiinneremidtonmnnionn 427/341; 106/3;

106/4; 106/5; 106/6; 106/7; 106/8; 106/9;

106/10; 106/11; 427/154; 427/155; 427/156

‘ii § | See BOSD 3/10; CO9G 1/08

ESOT RE Be BI visis cn encceenenccvicetentetores 106/3-11;

117/62, 168; 427/154-156, 341

{56} References Cited

UNITED STATES PATENTS

2,884,329 a RES a ee 106/10

3,365,312 AE. SPRUE ciisinintieenretseesuenrstncnniiie 106/3

SSER DOG — GIEGTL ASNT vininresiccsenints rn 106/10

OTHER PUBLICATIONS

Chemical Dictionary, 1961, p. 465.

Chemical Abstract, 66: 19.976g.

Primary Examiner—Ronald H. Smith

Assisiant Examiner—Janyce A. Bell

Attorney, Agent, or Firm—Barnes, Kisselle, Raisch &

(57) ABSTRACT

A waxing and protective coating composition embody-

ing the invention comprises a mixture of wax residue

such as paraffin and microcrystalline wax, chlorinated

solvent, petroleum distillate, and a nonionic surfactant

such as nonylphenoxypoly-( ethyleneoxy ethanol and a

smal] amount of (N.N,N’N’-tetrakis

(2-hydrox ypropyl )ethylenediamine}.

6 Claims, No Drawings

CLEANING AND PROTECTIVE COATING

COMPOSITION AND METHOD

This patent application is a continuation-in-part of

my application Ser. No. 319,851, filed Dec. 29, 1972,

now abandoned.

This invention relates to cleaning and protective

coating compositions and to a method for protecting

the finishes of articles and Particularly the finishes of

automobiles.

BACKGROUND OF THE INVENTION

In protecting the finishes of articles such as paint

finishes, chrome plating, glass, and the like, it is com-

mon to utilize separate Cleaning and waxing composi-

tions. Such separate compositions require individual

steps of application, removal and buffing or smoothing.

-—-§3-

Among the objects of the present invention are to

provide a composition for cleaning and protectively

coating finishes such as those of automobiles and a

method of applying such composition which requires a

minimum of labor, which has rust inhibiting properties;

which obviates the need for extensive rubbing or buff-

ing, which protects the surface for a long period of time

against atmospheric conditions; and which minimizes

the cost of both the composition and labor involved.

DESCRIPTION

Basically, the waxing and protective coating compo-

sition embodying the invention comprises a mixture of

wax residue such as varaffin and microcrystalline wax,

chlorinated solvent, petroleum distillate, and a non-

ionic surfactant such as nonylphenoxypoly(ethylencox-

y)ethanol and a small amount of [N,N,N’,N’-tet-

rakis(2-hyd roe ) ethylenediamine].

The wax residue is preferably a mixture of paraffin

and microcrystalline waxes. The terms paraffin wax

and microcrystalline wax are well understood in the

wax art. A typical paraffin wax is of the type made by

Shell Chemical Company and sold under the trademark

SHELLWAX 100 having the following properties:

ASTM

Test Method 100

Melt Point, °F D-87 125

Color, Saybol D-156 +30

Flash Point,

Cal. D-92 405

Penetration, Necdic D-1321

at 77°F 13

at 100°F 70

at 110°F 90

Oil Content, & W1. D-721 0.1

Tensile Strength,

p-s.i. at 73°F D-1320 275

Gradient Biock P1..

(Pick/Block ) °F D-1465 93/94

Refractive index

at 100°C D-1747 1.4180

Lbs ./Gal.

at 60°F 7.59

at 210°F -O4- 6.29

SERN GRAS Pe IRENE TGS TLS LA A

Another type of paraffin wax which has been used ©

successfully is made by Mobile Oil Corporation and

sold under the designation 133/135 having the follow-

ing properties:

FULLY REFINED WAXES 133/135 AMP "7

Color, Saybolt +30

Viscosity

ai 210°F, SUS 39

-continued

FULLY REFINED WAXES 133/135 AMP

Melting Point,

°F ASTM 131

Blocking Point,.°F 101

Flash Point,

*F COC 430

Tensile Strength

(T.O. )psi 330

Oil Content.& by W1. 0.2

Lbs/Gal at 160°F

(Liquid) 6.4]

Lb</Gal at 60°F

(Solid) 7.62

A typical microcrystalline wax is sold by Shell Chem-

ical Company under the trademark SHELLMAX 500

and has the following properties:

ASTM

Test Method $00

Melt Point, °F D-127 141

Color, ASTM D-1500 11.2.0

Flash Point, C.0.C.°F D-92 $65

Penctration, Needic D-132!

at 77°F 21

at 100°F $2

at 110°F 125

Oil Content,®& W1. D-721 0.9

Refractive index D-1747

at 100°C 1.4440

Lbs./Gal.

at 60°F 7.75

at 210°F c 6.67

Another microcrystalline wax that has given satisfac-

tory results is made by Mobile Oil Corporation and sold

under the trademarks Mobilwax 2305 and Mobilwax,

2305 BR having the following properties:

Mobilwax Mobdilwax

2305 2305 BR

Melting Point. °F

(ASTM-127) 176 176

Color, ASTM 2 2.5

40 Viscosity nt 210°F,

SUS 86 160

Needle Penetration

at 77°F 27 27

at 108°F 95 95

at 11S°F 130 130

Oil Content, & 4.0 4.0

45 Flash Point, °F (COC) $40 $40

Wt./Gal.ibs at 180°F 6.71 6.7!

Wt./Gal.ibs at 60°F 7.74 7.74

Chlorinated Solvent may comprise any one of the

so Number of well-known solvents such as perchiorocthy!l-

ene.

A typical perchloroethylene is such as solid by The

Dow Chemical Company under the designation “Spe-

cial Vapor Degreasing Grade” having the following

55 specifications and properties:

SPECIFICATION?

Appearance Ctear, free of sediment

and sutpended matter

Color APHA, Maximum 1S

60 Distillation Range,

at 760, IBP-DP 118-122°C

Water Content, Maximum

Kari Fischer Method, ppm 30 ppm

Non Volatile Matter, Maximum 25 ppm

Free Halogens, Maximum none

Acidity (as HCi) Maximum none

65 Alkalinity (as NaOH) Maximum 30 ppm

Specific Gravity at 25/25°C 1.614~1 .622

Acid Acceptance (as NaOH)

by Titration 0.149-0.176

By Caiculation 0.156-0.190,

Stability with Copper Passes test

-continued

PROPERTIES

Freezing Point —9°F(—23°C)

Pounds per galion at 25°C 13.47 5

Refractive index at 25°C 1.303

Viscosity at 25°C, cenuipoines 0.84

Fiash Point Bone

Fire Point mone

Heat of vaporization at bp:

Cal./g $0.1

BTU/Ib. 90.2 10

Specific Heat, cal./g*C 0.21

*Dow Method of Anaslyss $9015

The petroleum distillate may be one of the various

types preferably having a boiling point ranging from

350° to 380°F, -

A typical petroleum distillate is generally known in

the trade as Solvent 140. For example, such a solvent is

sold by Shell Chemical Company under the designation

Shell Sol 140 having the following properties:

Sol

PROPERTY TEST METHOD 140

Specific Gravity at 60°F ASTM D-1250 0.786

Gravity, °API ASTM D-287 48.5

Pounds per Galion

at 60°F ASTM D-1250 6.55

Color, Saybolt ASTM D-156 +30

Kauri-Hutanol Number ASTM D-1133 31

Aniline Point, °F ASTM D-611/D1012 155

Mixcd Aniline Point °F ASTM D-611/D-1012 ~~

Flash Point, T.C.C.,°F ASTM D-56 141

Distillation, °F ASTM D-86

iBP 370

10% Recovered 371

30% 372

$0% 373

70% 375

90% nm 378

Dry Point _

End Point 408

Evaporation Rate Seconds Shell Evapo-Rater

10%. 1050

30% 3230

$0% $470

10% 7830

90% 10400

1s 13700

Composition, & Volume 43.4

Paraffins 47.7

Naphthenes 3.9

Aromatics( total) 0.0

Toluene plus

Ethyl! Benzene 3.9

C, plus Aromatics excluding EB

A similar solvent is sold by Grow Solvent Company, 59

Inc., under the designation Solvent GS 140 and has the

following properties:

ASTM. DISTILLATION:

1.8.P. 363°F 183.0°C 55

$%& 366 185.6

10% 367 186.1

20% 368 186.7

30% 369 187.2

40% 370 187.8

$0% 371 188.3

60% 372 188.9 60

70% 373 189.4

80% 374 190.0

90% 376 191.1

95% 379 192.8

Dry Point 383 195.0

A.P.1. Gravity at 60°F $1.2° 65

Specific yo at 60/60°F 0.7745

Weight Per Galion at 60°F 6.448

Straight Aniline Point 67.8°C

**Kauri Butanol Value 29.4 cc

Tag Closed Cup Flash Point 143°F

; -continued

Copper Strip Corrosion Very Slight Tarnish

**Corrected to Toluol at 105.0 ec

’ Nonylphenoxypoly(ethyleneoxy )ethanol is commer-

cially available under the trademark “IGERPAL”

made by GAF Corporation. [N,N,N’’-tetrakis (2-

hydroxypropyl) ethylenediamine) is made commer-

cially under the trademark “QUADROL" by Wyan-

dotte Chemicals Corporation, Wyandotte, Michigan.

A preferred composition by weight for the cleaning

and waxing composition comprises:

-69-

aii

Table I

15 Wax Content

Parrafin 3.0%

Microcrystaline 2.0%

Chlorinated Solvent $.0%

8.0%

1.0%

Petroleum Distillate 8s.

igerpal (Surfactant)

Quadrol (Chelating Agent)

Although this composition is preferred, successful

results have been obtained with the following range of

compositions by weight:

55 Table Il

Wax Content .

Paraffin 10% 10% 3

Microcrystalline 10% 10% 3

Chiorinated Solvent 38% 38% $

Petroleum Distillate 40% 40% 87

60 igerpal (Surfactant) 1% 1% 1

Quadro! (Chelating Agent) 1% 1% 1

100 100 100

In addition, I have found that the addition of about |

65 percent butyl cellusolve facilitates spreadability and

rust inhibition.

In accordance with the invention, the cleaning and

waxing composition is made by mixing the materials at

room temperature without the addition of heat, thereby

minimizing the labor involved. The resultant composi-

tion is clear in color.

=IO-

In the preferred method of manufacture, the follow-

ing steps are utilized to mix the composition: 5

1. Heat Petroleum Distillate to 110°F

2. Add Chlorinated Solvent

3. Heat waxes to melting point and add to solvents

4. Add Igerpal with stirring

5. Add Quadrol with stirring 10

. _ The aforementioned compositions provide a liquid.

A paste wax composition may comprise the following

compositions by weight:

Table III 1s

Wax Content

Paraffin 10% 30% _

Microcrystalline $0% 30% 60%

Chlorinated Soivent 2% 2% 2%

Petroleum Distillate 36% 36% 36%

igerpal (Surfactant) 1% 1% 1%

Quadrol (Chelating Agent) 1% 1% 1% 20

100 =: 100 100

Improved gloss is obtained by adding hexogen octo-

ate driers and ethylene glycol n-butyl ether. 25

Hexogen octoate driers are essentially an odorless

solution of metallic salts of 2-ethyl hexoic acid in Rule

66 mineral spirits.

PHYSICAL PROPERTIES ais

Color _— Specific Viscosity Pounds/

Maximurr Sooniny Masimum Gallon

Product Gardner Range (75°F) (77°F) = (75°F)

Lead 24% 3 1.080-1.110 A —- 9.00-9.25

Cobalt 12% Purple 1.035-1.065 J 8.12-8.87

Cobalt 6% Purple 0.860- .885 A 7.16-7.37

Manganese 6% Brown 0.875- .920 A 7.29-7.66

Calcium 5% 4 0.890- .940 A = - 141-783

Calcium 4% 3 0.860- .884 A —_-7.16-7.36

iron 6% Browr 0.890- .930 A = -:'12.41=7.75

Zinc 8% 2 0.870- .895 A —«-'7.2$-7.45

Rare Earth 6% $ 0.850- .880 E _7.10-7.36

aT.

A typical ethylene glycol n-butyl ether is sold by The

Dow Chemical Company under the designation 45

DOWANOL EB having the following properties:

Dowsnol EB

eae Weight 118.2

oiling Point(mm.Hg. °C)

760 . 171.1 50

10 61.7

Vapor Pressure at 25°C(mm.Hg.) 0.88

Pour Point °F —103'

Specific Gravity at 2$/25°C 0.900

Pounds/Galion at 25°C 7.49

Viscosity (centistokes) at $5

25°C 3.15

60°C 1.31

Flash Point °F (Open Cup) 165

Fire Point °F (Cleveland) (Open Cup) 165

Specific Heat(cal./g PC) at 25°C 0.56

Surface Tension (Dynes/Cm.)

25°C 27.4 60

7S°C 23.3

Heat of Vaporization (cal./g.) j

at 760 mm. Hg. 83.4

Thermal Conductiviay k x 10*

(cal./em "sec PCicm) at 60°C 3.55

Typical compositions by weight are as follows: “

Table IV

Wax Content

Table [V-continued

Paraffin 0.5 2 i

Microcrystalline 4.5 3 4

Chiorinated Solvent 2 _ ~

S Petroleum Distillate go 92 91

igerpal (Surfactant) i t i

Quadrol (Chelating Agent) i i '

Cobalt Drier ! i !

Dowanol EB L =_ i

100 100 100

«42s

In making the composition set forth in Table IV, the

procedure is the same as followed with respect to the

compositions of Table I and the additional components

are added as the last additions.

When made in accordance with the ranges of per-

centages heretofore set above, it is in the form of an

easily spreadable composition which can be applied by

hand or otherwise to the surface being treated. The

process of application as by a small cotton cloth re-

moves the dirt.

In accordance with the invention, the resultant ap-

plied coating is then rinsed with water which functions

to set the coating and produce a long-lasting finish.

In accordance with the invention, the following steps

are used in applying the composition:

1. The surface is rinsed to remove grit and loose dirt.

Improved results are acquired when the surfaces are

dry.

2. The composition is applied uniformly by hand or

otherwise to the surface being treated. Light pressure is

preferably utilized in order to remove loose grit, grime,

grease and dirt.

3. The surface is then rinsed with water, preferably at

ambient temperature, which functions to produce a

long-lasting finish. The water may be hot or cold. When

the surface is in a very cold atmosphere, less watcr is

needed to set the coating.

Although I do not wish to be bound by the theory

involved, in my opinion, the step of finally rinsing with

cold water serves the function of removing the solvents

and helping to set the active ingredients and the wax

residue.

The resultant finish takes on the characteristic of a

high-gloss satin finish and there is no film which needs

to be removed. The water can then be blown or wiped

off. Alternatively, the water may be left on a vehicle

and as the vehicle is driven, the water will be blown off

by the movement of the vehicle leaving a polished

finish.

~~.

it can thus be seen that in accordance with the inven-

tion, rubbing end buffing is entirely eliminated. By a

slight wiping, an even better polished surface ts ob-

tained which will have a longer life.

The cleaning and protective coating composition of

the present invention has the further advantage of pro-

viding rust inhibiting protective coating to the surface.

The composition does not utilize any detergent and

thereby obviates the adverse effects of such detergent

on painted surfacts.

In order to clean surfaccs that have not been cleaned

for some time and which require rubbing to remove

fading or which have unevenly painted surfaces or have jo

substantial quantities of dirt, it has been found that

various materials may be added which provide a slight

abrasive action which will facilitate the removal of the

dirt. ? .

Where the surface being treated is a metal finish such

as a car, the additives may comprise silica, baking soda

and abrasive material such as coconut shells. A typical

silica which may be used is commercially available

under the trademark “HYFLO" by John Manville

Products Corporation.

Typical compositions which are suitable for treating

metal, glass and the like, which require severe cleaning,

are as follows by weight:

atéien

Table V x6

Silica 20 _ $0

Baking Soda $ 25

Water 10 ~ 10

Composition of Tabie | 40 $0 1S

Ground Coconut Shells $ 25 _

Microcrystalline Wax _ 20 2$ ~ 30

100 100 100

The cleaning composition of Table V is applied di-

rectly on a dry surface with a soft cloth or wheej prefer- 35

Over this composition and rinsed with water. The resul-

tant coating produces a very long-lasting polished and

Protective finish which also has rust inhibiting composi-

tions. The composition may be used on Painted wood

Surfaces, silver, brass, copper and the like.

For treating aluminum and similar surfaces, the fol-

lowing compositions by weight have been found Salis- |.

factory:

ERAS, Table VI

Rak: Soda 3

ing

Composition of Tabie | $0

pe Ground Coasnan Shen!

applied in the usual fashion. The surface is then rubbe

10 OF buffed and a coating of the composition of the above

Table Il is applied in the manner heretofore described.

I claim:

1. A cleaning and protective coating composition

consisting essentially of a mixture of wax residue such

as paraffin and microcrystalline wax, perchiorethylene,

petroleum distillate having a boiling point ranging be-

tween 350° and 380°F., and a nonionic surfactant such

as nonylphenoxypoly(ethyleneoxy )ethanol and a smal!

amount of [N,N,N’,N’-tetrakis(2-hydroxypropyl )e-

thylenediamine).

2. The composition set forth in claim 1 wherein said

— wax comprises at least 3%, said microcrystal-

ne wax comprises at least 2%, said nonionic surfactant

comprises at least 1% and said ethylenediamine com-

prises at least 1%.

3. The composition set forth in claim 1 including

buty! cellusolve.

4, The composition set forth in claim 1 including an

hexogen octoate drier and ethylene glycol n-butyl

ether.

5. The method of treating a surface to clean and

protect the same which comprises applying a coating of

a composition consisting essentially of a mixture of wax

residue such as paraffin and microcrystalline wax, per-

chloroethylene, petroleum distillate having a boiling

point ranging between 350° and 380°F., and a nonionic

surfactant such as nonylphenoxypoly(ethyleneoxy )e-

thano! and a small amount of [N,N,N’,N’-tetrakis(2-

hydroxypropyl) ethylenediamine}, and thereafter set-

ting the applied coating by treating the surface with

water.

6. The method set forth in claim 1 wherein said paraf-

fin wax comprises at least 3%, said microcrystalline

wax comprises at least 2%, said nonionic surfactant

comprises at least 1%, and said ethylenediamine com-

prises at least 1%.

-J6=-

United States Patent 119)

Kaliardos (11) 4,356,036

(45) Oct. 26, 1982

[54]

[76]

[21]

(22)

[51]

[52]

[58]

(56)

ANTI-CORROSION COATING FOR METALS

Inventor: Nicolas Kaliardos, 10725 Morang

Ave., Detroit, Mich. 48224

Appl. No.: 279,865

Filed: Jul. 2, 1981

os a salsnennensiannenens CO9D 5/10

BE MY Skicks ictiepgnimbisescieantie 106/1.12; 106/1.17;

106/14.34. 106/14.38; 106/14.39; 106/14.44;

106/230, 106/239; 106/241; 106/271; 106/272;

524/400. 524/438; 524/441; 524/466; 524/488

Field of Search ............... 106/14.29, 14.34, 14.35,

106/14.38, 14.39, 14.43, 14.44, 1.12, 1.17, 230,

239, 241, 271, 272; 524/400, 438, 441, 466, 488

References Cited

. U.S. PATENT DOCUMENTS

2,641,551 6/1953 Smith et al. 2000. 106/14.34

2,995,532 8/1981 Cantrell et al... 106/14.34

Primary Examiner—Lorenzo B. Hayes

Attorney, Agent, or Firm—Barnes, Kisselle, Raisch &

Choate

-JjJ-

[57] ABSTRACT

An anti-corrosion coating for metals compnising a mix-

ture of aluminum paste or zinc pasie, microcrystalline

wax, aromatic hydrocarbon resin, chlorinated rubber,

neutral barium sulfonate, chlorinated solvent, aromatic

hydrocarbon solvent, and mineral! spirits.

7 Claims, No Drawings

ANTI-CORROSION COATING FOR METALS

This invention relates to anti-corrosion costings and

particularly such coatings for fabricated stee] parts.

BACKGROUND AND SUMMARY OF THE

INVENTION

In the manufacture of automobiles and the like, there

is a tendency for fabricated metal parts, such as steel

parts, to corrode even after painting especially in the

inside areas where portions of the metal are folded into

close proximity to other portions and not painted.

Accordingly, among the objectives of the invention

are to provide anti-corrosion compositions for metal

which will protect the metal surfaces against corrosion

even when portions of the part are folded on one an-

other.

Basically, the anti-corrosion composition embodying

the invention comprises a mixture of aluminum paste or

zinc paste, microcrystalline wax, aromatic hydrocarbon

resin, chlorinated rubber, natura] barium sulfonate,

chlorinated solvent, aromatic hydrocarbon solvent and

mineral spirits.

Aluminum paste is well known materia) comprising 25

65-75% aluminum flake, by weight, and 25-35% sol-

vent such as mineral spirits, by weight. Typical alumi-

num pastes are sold by Aluminum Company of America

under the designations Standard Paste Nos. 622) and

6240. 79

Zinc pasie is a well known material comprising zinc

flake and solvent such as mineral spirits. Typical zinc

pastes are sold by United States Bronze Powders, Inc.,

under the designation Zinc Flake Paste 751.

The term microcrystalline wax is well understood in 35

the art. A typical microcrystalline wax is sold by Shell

Chemical Company under the trademark SHELLMAX

500 and has the following properties:

ASTM

continued

ASTM

Fiasn Pow, €.0.<., °F. D-32 $65

5 Penctration, Needle D-132!

at 77° F. 21

at 100° F. $2

at 110° F. 125

Oil Comment, ® Wt D-721 0.9

Refractive Index D-1747

at 100° C. 1.4440

10 Lbs./Gal.

at & F. 7.73

ai 210° F. 6.67

Another microcrystalline wax that has given satisfac-

15 tory results is made by Mobil Oil Corporation and sold

under the trademarks Mobilwax 2305 and Mobilwax

2305 BR having the following properties:

~FGu

20 Mobi wax Mobdil wax

2305 2305 BR

Melting Point, °F.

(ASTM-127) 176 176

Color, ASTM 2 25

Viscosity at 210° F.

25 SUS 86 160

Needle Penetration

at 77° F. 27 27

at 108° F. 95 95

at 115° F. 130 130

Ou Content, % 4.0 4.0

Be) Flash Point, °F. (COC) $40 $40

Wgt./Gal.lbs ai 180° F. 6.71 6.71

Wgt./Gal.lbs at 60° F. 7.74 7.74

Aromatic hydrocarbon resins are low molecular

35 weight, nonpolar, amber-colored thermoplastic resins

produced from petroleum derived monomers. Typical

resins are sold by Hercules Incorporated, Wilmington,

Del., under the trademark PICCO.

Satisfactory results have been achieved utilizing res-

40 ins sold by Hercules Incorporated under the trademark

PICCO and having the following properties:

-30-

a4 Liz

Lz ot

ors 00S

Lot ot

168 998

ao . w§

1> I>

> i>

xX A

a 6

Ott sit

AN A-A

4 | tt

TLI-BtE «= SHEET

“D $7 18 Arua

s2qQuNB zerTwosg

saquma son Foyruodeg

s2QuNE poy

wyOrS

IPOH -2UpseH

JOM BI SPOS GOL

‘D .$% 18 Aiscom,

s2upser) ‘IH0D

‘D. €Fy IWod Sururjos

SALLWAdOWd TWIIdAL

FANG

IPOH -saupseg

JUIMION WH TPHHOS BOL

‘D .$7 18 Aircon A

rew ‘s2upseg) ‘10;0D

D. APY ‘Wied Burusy0s

OTI9 Stl9

NiSa¥u QOold

pitti

i —

Meh Point, °F. Test Method $00

D-127 14]

Color, ASTM D- 1500 112.0

Chlorinated rubber is a rubber that contains 66+ %

combined chlorine. Typical chlorinated rubbers are

manufactured by Hercules Incorporated, Wilmington,

Del., and sold under the trademark Parlon and having

the following properties:

PROPERTIES 5

Freezing Point —9° F.(—23° C.)

Pounds per gallon at 25° C. 13.47

Refractive index at 25° C. 1.503

Viscosity at 25° C., centipoises 0.84

Flash Point Bone

Fire Point mone 10

Heat of vaporization at b_p.:

~Cal./g $0.01

BTU/b. 90.2

Specific Heat, cal./g* C. 0.21

*Dow Method of Amalyms $9015 5

The petroleum distillate may be one of the various

types preferably having a boiling point ranging from

350° to 380° F. -

A typical petroleum distillate is generally known in -

the trade as Solvent 140. For example, such a solvent is

sold by Shell Chemica] Company under the designation

Shel) Sol 140 having the following properties:

se. eee pes ae

~ Reelin. ™

Shel!

Soi

PROPERTY TEST METHOD 140

Specific Gravity at 60° F. ASTM D-1250 0.786

Gravity, “API ASTM D-287 48.5

Pounds per Galion

at 60° F. AST™ D-125S0 6.55

Color, Sayboli ASTM D-156 +h

Kaun-Butano!l Number ASTM D-1133 31

Aniline Point, °F. ASTM D-611/D-1012 155

Miaed Aniline Point °F. ASTM D-611/D-10!" _

Flash Point, T.C.C., °F. ASTM D-36 14)

Distillation, °F. ASTM D-86

IBP 370

10% Recovered 37)

WK 372

30% 373

0% 375

90% 378

Dry Point _

End Point at

Evaporation Rate. Seconds Shell Evapo-Rater

10% 1050

wW% 320

50% $470

10% 7830

905 10400

100% 13700

Composition, % Volume

Paraffins 43.4

Naphthenes 47.7

Aromatics(total) 3.9

Toluene plus 0.0

Ethyl Benzene

Cy plus Aromatics excluding EB 3.9

A similar solvent is sold by Grow Solvent Compiny,

Inc., under the designation Solvent GS 140 and has the

following properties:

A.S T.M. DISTILLATION:

LBP %y 183.0° C.

$% BY 185.6

10% %7 186.1

WK 9 187.2

0% 370 137.8

WO% 371 183.3

60% 372 188.9

-continued

A.S.T.M. DISTILLATION:

205% 373 189.4

5 80% 374 190.0

90% 376 191.1

95% 379 192.8

Dry Point 383 195.0

A.P.1. Gravity at 60° F. $1.2°

Specific Gravity at 60/60° F. 0.7745

10 Weight Per Galion at 60° F. eae

Straight Aniline Point 67.8° C.

**Kauri Butanol Valuc 29.4 cc

Tag Closed Cup Flash Poin 143° F.

Copper Strip Corrosion Very Slight Tarnish

15 **Corrected to Tolwol a: 105.0 cc

@hiorinated solvent may comprise any one of the

number of well-known solvents such as perchioroethy]-

ene.

a0 A typical perchloroethylene is such as sold by The

Dow Chemica] Company under the designation “Spe-

cial Vapor Degreasing Grade” having the following

specifications and properties:

~Ré<

25 SPECIFICATION®

Appearance ee free of sediment

Color APHA, Maximum 15 ee

Dustillation Range,

at 760, IBP-DP $-122°

30 Water Content, Maximum testi

Karl Fischer Method, ppin 3 ppm

Noo Volatile Matier, Maximum 25 ppm

Free Halogens, Maximum mone

Acidity (as HCl) Maximum me

35 Alkalinity (as NsOH) Maximum 0 ppm

Specific Gravity at 25/25° C. 1.614-1.622

Acid Acceptance (as NaOH)

by Titration 0.149-0.176

By Calculation 0.1546-0.190

Stability with Copper ‘Passes test

4 Dow Method of Analysis $9015

A typical barium sulfonate is manufactured by Witco

Chemica! Corporation, New York, N.Y., under the

trademark Neutral Barium Petronate 50-S and is a syn-

4s thetic barium sulfonate having the following typical

tests:

% Barium sulfonate 50.3

% Barium 6.9

50 % Minera! oil 49.5

& Water 02

Total alkalinity 3.4 mg KOH /g

Saybolt viscosity @ 210° F. 100

Equivalent weight

as Sodium 460

$5 as Barium 1011

ASTM Dilute Color 1.5

-85-

The compositions embodying the invention may have

the following range of compositions by weight:

x '

Aluminum pasie or zinc pasic 13-43

Microcrystalline wax s4

65 Aromatic hydrocarbon resin 10-18

Chiorinated rubber 2-4

Neutral barium sulfonaic 5-1

Chiorinated solvent 7-23

Aromatic hydrocarbos solvent 22-32

-continued

Mineral spints 1.34

The compositions embodying the invention and uti-

lizing aluminum may have the following ranges of com-

position by weight:

Aluminum pasic 21-28

_ Microcrystalline wax 1.3-3.5

Aromatic hydrocarbon resin 7-23

Neutral barium sulfonate 5-1

Chiorinated solvent 7-23 15

Aromatic hydrocarbon solvent 23-42

Mineral spirits 1.3-3.5

In the above aluminum compositions, the chlorinated

solvent is preferably perchloroethylene and the aro- 20

matic hydrocarbon solvents are preferably toluene

ranging from 8-14% by weight and xylene ranging

from 15-28% by weight.

B6-

wos eat wlilanling nen 2 5 label Be biRNIR i hi GP Lite lll TYG tet teil

weet

The compositions embodying the invention and uti-

lizing zinc may have the following ranges of composi- 2°

tions by weight:

Zinc pasic 15-4) »

Microcrystalline wan 5-4

Aromatx hydrocarbon resin 10-18

Neutral banum sulfonate 5-1

Chiornated sol veni 7-23

Aromauc hydrocarbon solvent 23-42

Mineral spinis 19-4 3§

In the above zinc compositions, the cHlorinated sol-

vent is preferably perchloroethylene and the aromatic

hydrocarbon solvents are preferably toluene ranging

11-16% by weight.

Specific examples of the compositions are as follows:

EXAMPLE 1} EXAMPLE 2

Wei ht Percent Weight Percent

6221 Aluminum Paste Pigment 3 Ibs 23 2 Its 21

Picco Resin 6140-Flake 3 los 23 2 Ibs 21

Perchioroethylene 3 Ibs 23 2 ibs 2)

Toluene 1 id s i 10

Xylene 2 Ibs 15 2 bs 2i

Wax Joz 13 2oz 1.3

Mineral Spirits 3 oz 3s 2a 1.3

igepal 4 drops 2 drops

Neutra) Bamum Petronaic } oz 5 loz

Marlon $10 402 2 2 oz 1.3

Parion $20 4 oz 2 2 oz 1.3

Cellusolve Acctaic 402 2 5

TOTAL 13 Ibs 3 o2 101% 9 ibs 6 oz 99.8%

I «

EXAMPLE 3} EXAMPLE 4

Weight Range Percent

Akos Aluminum 2 Ibs 2 Ibs 23.3

Pigment

Picco Resin 6149 - 1 Ib 8 oz 8 oz 7

Fiake

Perchioroethylene 1 fd 8 oz § oz 7

-continued

EXAMPLE 3} EXAMPLE 4

Weaght Percent Range Percent

Toluene 1 1h 14.2

Xylene 2 Tos 2 Ibs 28.3

War 3 oz 402 3.5

Mera) Spinu 2 oz 4 oz 3.5

Igepal lo 0 0

Neutra! Banum 1 oz 1 oz )

10 Pectronaic

Parlon S10 202 4 oz 3.5

Parlon $20 2 o2 4 o2 3.5

TOTAL 8 Ibs 10 oz 100.2% 7 Ibs 1 oz 99.7%

EXAMPLE $ EXAMPLE 6

Weight Range Percent

Zinc Fiske 2 Ibs 2 Ibs 0.2

Perchlorocthylene 2 Ibs 1% 15.1

20 Xylene i ) 1b 13.1

Toluene 1% 1b 1$.1

Mineral Spirits 4az 2 oz 1.9

6140 Picco Resin 1 b 8 oz 1b 15.1

Flake

Wax 4 oz 2 oz 1.9

25 Parlon S10 4 oz 2 az 1.9

Parlon $20 402 2 oz 1.9

Neutral Barium 1 oz 1 oz 3

Petronate

Cellusolve 1 oz 1 oz 9

Acetate

30 TOTAL 8 Ibs 10 oz 6 Ibs 10 o7 100 0%

—o5—

th a pull 8 tna cased Ra beeen A

EXAMPLE 7 EXAMPLE 8

3$ Weigh Percent Range Percent

Zinc Flake 4 ibs 314 6 Ibs 43.1

Xylene 2 Its 15.7 2 Ibs 143

Toluene 2 Ibs 15.7 2 Ibs 143

Perchioroethylene 1 Ib 7.9 1 & 8 oz 10.8

Parion $10 § oz 3.9 6 oz 2.7

40 Was 8 o2 3.9 1 oz 5

Neutra) Barium 2 oz 39 1 oz 5

Petronsic

Cellusolve 2 oz 3 1 oz §

Acetate

6140 Picco Resin 2 be 13.7 1 ® 8 oz 10.8

Flake

Mineral Spins 8 oz 39 6 oz 27

TOTAL 12 tbs 12 o2 99.9% 13 Ibs 15 02 100.2%

6S The various compositions heretofore described have

been tested and have been found to provide good corro-

sion resistance on bare steel panels in a salt cabinet for

over 360 hours, humidity resistance for over 500 hours,

no blistering, partial immersion salt solution resistance

for at Jeast 260 hours, partial immersion detergent solu-

tion resistance for at least 260 hours, and good adhesion.

The composition embodying the invention is prefera-

bly made by first separately mixing a wax emulsion, a 45

chlorinated rubber emulsion, and an aromatic hydrocar-

bon resin emulsion. In a typical example, the mixing is

as follows:

-89-

Wax Emulsion

Per Galion % By Weight

Mineral spirits 4 Ibs 43%

Microcrystalline wax 4 lbs 43%

(180° F. melting point)

Perchiorocihbylene 16 az 11%

Neutra] Barium Petronate 4 oz 2%

Igepal 1 oz 1%

TOTAL 9 Ibs 5 o7

Procedure: Heat and emulsify wax in mineral spirits.

When dissolved and clear, add perchloroethylene, Ige-

pal and Neutral Barium Petronate. Heat until clear.

Cool.

Chiorinated

Rubber Emulsion

Per Gallon % By Weight

Parlon $10 lib = $.33 oz 17%

Parion $20 lib = $.33 oz 17%

Xylene Sibs $.33 oz 66%

TOTAL 8 Ibs

Procedure: Dissolve at room temperature until clear.

Aromat Hydrocarbon

Resin Emulsion

Per Gallon % By Weight

Picco 6140 Flake 1 ib W%

Perchlorocthylene 1m 50%

VOTAL 2 Ibs

Procedure: Dissolve at room temperature until clear.

Per Galion % By Weight

Picco 6140 Flake TT $0% 40

Perchlorocthylene 1 Ib 30%

TOTAL 2 Ibs

Procedure: Dissolve at room temperature until clear. 4,

Preparation For Final Composition of Aluminum

Anti-Corrosion Wax Type Coating

Place all solvents by weight in container. Place pre-

mixed resin emulsion in solvent mixture. Place pre-

mixed wax emulsion in solvent mixture. Place premixed

Parlon emulsion in solvent mixture. Stir for a maximum

of 2 minutes.

Add aluminum pigment and stir. Do not shake.

Add AL 161 Syloid and AL 1 Syloid. 55

Add cellusolve acetate.

‘The following results are frum tests administered on

bare steel:

1. Flash point—not less than 11.7° C. (53° F.).

2. Storage stability—composition remains stable after 6 60

months at 23.8° C. (75° F.).

3. Sprayability—composition is sprayable without sag-

ging or build up at bottom of panel.

4. High temperature flow point—composition does not

sag, separate, or degenerate when exposed to temper- 65

atures up to 200° F. ;

$. Toxicity—composition is not toxic when applied or

in the dry state.

6. Viscosity—12-15 seconds in Fisher #2 cup after 10

minute agitation.

7. Salt spray corrosion resistance—withstands 360

hours exposure without base metal corrosion, adhe-

sion loss, blisters or wrinkles.

8. Salt solution partial immersion test—withstands 7

days partial immersion in 5% salt tap water solution

in an enclosed jar without corrosion, adhesion loss,

blisters, or wrinkles. Immersion jar is placed inside a

high-humidity cabinet, 100% relative humidity at

100° F. to maintain constant temperature.

9. Detergent solution partial immersion test—with-

stands 7 days in solution composed of 10 grams of

DuPont #7 car wash compound per gallon of tap

waier without corrosion, adhesion Joss, blisters or

wrinkles.

10. Environmental corrosion—withstands 10 cycles

without corrosion, adhesion loss, blisters or wrinkles.

11. Humidity resistance—withstands 500 hours humid-

ity exposure. Humidity cabinet is maintained at 100%

relative humidity at 100° F. Composition does not

develop corrosion, adhesion loss, blisters or wrinkles.

12. Cold impact—withstands 2.8 joules (25 inch pounds)

reverse impacts at — 30° C. (—20° F.) without show-

ing separation of wax from the substrate.

13. The anti-corrosion coating is removable from any

topcoat surface without staining or discoloring the

topcoat (painted surface).

The use of perchloroethylene is very important be-

cause ii cleans and dissolves any oil present on the sur-

face and allows the coating to make good contact with

the surface. If bare steel is to be coated, I recommend

that it be cleaned with perchloroethylene first. If the

surface is contaminated with oi] or grease, perchioro-

ethylene will facilitate the adhesion process. The Parlon

provides water and detergent resistance and helps pre-

vent rust from starting. The wax and barium sulfonate

=92

40 keep the coating soft and prevent rust and moisture

from creeping in. The aluminum pigment forms a pro-

tective finishing layer over the other ingredients.

This invention, when properly applied to a clean

surface, will provide rust prevention especially in crev-

45 ices and hard to reach places for all metals. This coatin g

should not be oven dried. Up to 200° F. may be applied

to the surface and sagging will not occur. It will air dry

in 5-10 minutes at room temperature. This composition

is primarily for automobiles, inside the entire body, and

$0 especially for crevices, bottoms of doors, around plate

glass, behind bumpers, on all frames, and all sheet meta!

whether galvanized or not. It has an advantage over

zinc in that it requires less aluminum pigment and pro-

vides equal if not more protection. It provides good

$$ protection on bare, zinc-coated, or prime steel. I believe

that the above compositions will provide good protec-

tion for pre-rusted surfaces such as highway bridges, for

stecl frames, cracked surfaces between steel frames and

cement, and for water towers and other surfaces which

60 retain moisture, detergent residue, or salt and are prone

to rust.

I claim:

1. An anti-corrosion coating composition compnising

@ mixture of aluminum paste or zinc paste containing

65 aluminum or zinc flakes and a solvent, microcrystalline

wax, aromatic hydrocarbon resin having a softening

point, R and B, of 70° C.-140° C., chlorinated rubber

having a combined chlorine content of at Jeast 66%,

neutral barium sulfonate, chlorinated solvent, aromatic

hydrocarbon solvent and mineral spirits.

2. The anti-corrosion coating composition set forth in

claim 1 wherein said composition comprises by weight: 5

aG2ien

aluminum pasi:. or zinc pasic

mucrocrystalline wax

aromatic hydrocarboe resin

chlorinated rubber

acutral barium sulfonaic

chiorinaied sNveni

sromatic hyua-carbos solveni

wunera] spirits

1$-43 10

7-23 15

22-32

3. The anti-corrosion coating composition set forth in

claim 1 wherein said composition comprises by weight: 20

aluminum pasic 21-28 ‘

microcrysialline wax 1.3-3.5

aromatic hydrocarbon resin 7-23

eeutral barium sulfonate 5-1

chionnated solvent 1-23

aromstic hydrocarbon solvent 23-42 w

-continued

mineral spirits 1.3-3.5

4. The anti-corrosion costing composition set forth in

claim 1 wherein said composition comprises by weight:

~94~

zinc paste 13-43

microcrystalline wai 54

aromatic bydrocarbos resim 10-18

aeutral barium sulfonate |

chlorinated solvent 7-23

aromatic hydrocerboe solvent 23-42

minera! spirits 1.94

5. The anti-corrosion coating composition set forth in

claim 1 wherein said chlorinated solvent compnises

perchloroethylene.

6. The anti-corrosion coating composition set forth in

claim 1 wherein said aromatic hydrocarbon solvent

comprises toluene and xylene.

1. The anti-corrosion coating composition set forth in

claim 1 wherein the composition is produced by sepa-

rately preparing s wax emulsion, a chlorinated rubber

emulsion, and an aromatic hydrocarbon resin emulsion

and thereafter mixing the several emulsions.

% & J a *

§ 271. Infringement of patent

(a) Except as otherwise provided in this title, whoever without

authority makes, uses or sells any patented invention, within the

United States during the term of the patent therefor, infringes the

patent.

(b) Whoever actively induces infringement of a patent shall be

liable as an infringer.

ture, combination or composition, or a material or apparatus for use

in practicing a patented process, constituting a material part of the

invention, knowing the same to be especially made or especially

adapted for use in an infringement of such patent, and not a staple

article or commodity of commerce suitable for substantial noninfring-

ing use, shall be liable as a contributory infringer.

(d) No patent owner otherwise entitled to relief for infringement

or contributory infringement of a patent shall be denied relief or

deemed guilty of misuse or illegal extension of the patent right by

reason of his having done one or more of the following: (1) derived

revenue from acts which if performed by another without his consenc

would constitute contributory infringement of the patent; (2) licensed

or authorized another to perform acts which if performed without his

consent would constitute contributory infringement of the patent; (3)

sought to enforce his patent rights against infringement or contribu-

tory infringement.

-%6-

tule Ll. Signing of Pleadings, Motions, and

Other Papers; Sanctions

Every pleading, motion, and other paper of a

party represented by an attorney shall be signed by

at least one attorney of record in his individual

name, whose address shall be stated. A party who

is not represented by an attorney shall sign his

pleading, motion, or other paper and state his ad-

dress. Except when otherwise specifically provid-

ed by rule or statute, pleadings need not be verified

or accompanied by affidavit. The rule in equity

that the averments of an answer under oath must

be overcome by the testimony of two witnesses or

of one witness sustained by corroborating circum-

stances is abolished. The signature of an attorney

or party constitutes a certificate by him that he has

read the pleading, motion, or other paper; that to

the best of his knowledge, information, and belief

formed after reasonable inquiry it is well grounded

in fact and is warranted by existing law or a good

faith argument for the extension, modification, or

reversal of existing law, and that it is not inter-

posed for any improper purpose, such as to harass

or to cause unnecessary delay or needless increase

in the cost of litigation. If a pleading, motion, or

other paper is not signed, it shall be stricken unless

it is signed promptly after the omission is called to

the attention of the pleader or movant. If a plead-

ing, motion, or other paper is signed in violation of

this rule, the court, upon motion or upon its own

initiative, shall impose upon the person who signed

it, a represented party, or both, an appropriate

sanction, which may include an order to pay to the

other party or parties the amount of the reasonable

expenses incurred because of the filing of the

pleading, motion, or other paper, including a rea-

sonable attorney’s fee.

in Pa

Rule 34. Production of Documents and

Things and Entry Upon Land for In-

spection and Other Purposes

(a) Scope. Any party may serve on any other

party a request (1) to produce and permit the party

making the request, or someone acting on his be-

half, to inspect and copy, any designated docu-

ments (including writings, drawings, graphs,

charts, photographs, phono-records, and other data

compilations from which information can be obtain-

ed, translated, if necessary, by the respondent

through detection devices into reasonably usable

form), or to inspect and copy, test, or sample any

tangible things which constitute or contain matters

within the scope of Rule 26(b) and which are in the

possession, custody or control of the party upon

whom the request is served; or (2) to permit entry

upon designated land or other property in the pos-

session or control of the party upon whom the

request is served for the purpose of inspection and

measuring, surveying, photographing, testing, or

sampling the property or any designated object or

operation thereon, within the scope of Rule 26(b).

(b) Procedure. The request may, without leave

of court, be served upon the plaintiff after com-

mencement of the action and upon any other party

with or after service of the summons and complaint

upon that party. The request shall set forth the

items to be inspected either by individual item or

by category, and describe each item and category

with reasonable particularity. The request shall

specify a reasonable time, place, and manner of

making the inspection and performing the related

acts.

The party upon whom the request is served shall

serve a written response within 30 days after the

service of the request, except that a defendant may

-93-

Rule 36. Requests for Admission

(a) Request for Admission. A party may serve

upon any other party a written request for the

admission, for purposes of the pending action only,

of the truth of any matters within the scope of

Rule 26(b) set forth in the request that relate to

statements or opinions of fact or of the application

of law to fact, including the genuineness of any

documents described in the request. Copies of

documents shall be served with the request unless

they have been or are otherwise furnished or made

available for inspection and copying. The request

may, without leave of court, be served upon the

plaintiff after commencement of the action and

upon any other party with or after service of the

summons and complaint upon that party.

Each matter of which an admission is requested

shall be separately set forth. The matter is admit-

ted unless, within 30 days after service of the

request, or within such shorter or longer time as

the court may allow, the party to whom the request

is directed serves upon the party requesting the

admission a written answer or objection addressed

to the matter, signed by the party or by his attor-

oe L

er ceetane tha anannwet chartane tha timo 9

defendant shall not be required to serve answers or

objections before the expiration of 45 days after

service of the summons and complaint upon him.

If objection is made, the reasons therefor shall be

stated. The answer shall specifically deny the mat-

ter or set forth in detail the reasons why the

answering party cannot truthfully admit or deny

the matter. A denial shall fairly meet the sub-

stance of the requested admission, and when good

faith requires that a party qualify his answer or

deny only a part of the matter of which an admis-

sion is requested, he shall specify so much of it as

is true and qualify or denv the remainder. An

-99-

answering party may not give lack of information

or knowledge as a reason for failure to admit or

deny unless he states that he has made reasonable

inquiry and that the information known or readily

obtainable by him is insufficient to enable him to

admit or deny. A party who considers that a

matter of which an admission has been requested

presents a genuine issue for trial may not, on that

ground alone, object to the request; he may, sub-

ject to the provisions of Rule 37(c), deny the matter

or set forth reasons why he cannot admit or deny

it.

To party who has requested the admissions may

neve to determine the sufficiency of the answers

or objections. Unless the court determines that an

objection is justified, it shall order that an answer

be served. If the court determines that an answer

does not comply with the requirements of this rule,

it may order either that the matter is admitted or

that an amended answer be served. The court

may, in lieu of these orders, determine that final

disposition of the request be made at a pre-trial

conference or at a designated time prior to trial.

The provisions of Rule 37(a)(4) apply to the award

of expenses incurred in relation to the motion.

(b) Effect of Admission. Any matter admitted

this rule is conclusively established unless

irt On motion permits withdrawal or amend-

f the admission. Subject to the provisions of

) governing amendment of a pre-trial order,

irt may permit withdrawal or amendment

he presentation of the merits of the action

subserved thereby and the party who

1 the admission fails to satisfy the court

-hdrawal or amendment will prejudice him

aining his action or defense on the merits.

nission made by a party under this rule is

-1c0-

purpose of the pending action only and is

dmission by him for any other purpose nor

» used against him in any other proceeding.

led Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30,

July 1, 1970.)

-101-

serve a response within 45 days after service of the

summons and complaint upon that defendant. The

court may allow a shorter or longer time. The

response shall state, with respect to each item or

category, that inspection and related activities will

be permitted as requested, unless the request is

objected to, in which event the reasons for objec-

tion shall be stated. If objection is made to part of

an item or category, the part shall be specified.

The party submitting the request may move for an

order under Rule 37(a) with respect to any objec-

tion to or other failure to respond tu the request or

any part thereof, or any failure to permit inspec-

tion as requested.

A party who produces documents for inspection

shall produce them as they are kept in the usual

course of business or shall organize and label them

to correspond with the categories in the request.

preclude an independent action against a person

not a party for production of documents and things

and permission to enter upon land.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30,

1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980.)

Pe eee is actin

Rule 37. Failure to Make or Cooperate in

Discovery: Sanctions

(a) Motion for Order Compelling Discovery.

A party, upon reasonable notice to other parties

and all persons affected thereby, may apply for an

order compelling discovery as follows:

(1) Appropriate Court. An application for an

order to a party may be made to the court in which

the action is pending, or, on matters relating to a

deposition, to the court in the district where the

deposition is being taken. An application for an

order to a deponent who is not a party shall be

made to the court in the district where the deposi-

tion is being taken.

(2) Motion. If a deponent fails to answer a

question propounded or submitted under Rules 30

or 31, or a corporation or other entity fails to make

a designation under Rule 30(b) (6) or 3l(a), or a

party fails to answer an interrogatory submitted

under Rule 33, or if a party, in response to a

request for inspection submitted under Rule 34,

fails to respond that inspection will be permitted as

requested or fails to permit inspection as request-

ed, the discovering pariy may move for an order

compelling an answer, or a designation, or an order

compelling inspection in accordance with the re-

quest. When taking a deposition on oral examina-

tion, the proponent of the question may complete

or adjourn the examination before he applies for an

order.

If the court denies the motion in whole or in part,

it may make such protective order as it would have

been empowered to make on a motion made pursu-

ant to Rule 26(c).

(3) Evasive or Incomplete Answer. For pur-

poses of this subdivision an evasive or incomplete

answer is to be treated as a failure to answer.

-13-

(4) Award of Expenses of Motion. If the motion

is granted, the court shall, after opportunity for

hearing, require the party or deponent whose con-

duct necessitated the motion or the party or attor-

ney advising such conduct or both of them to pay

to the moving party the reasonable expenses in-

curred in obtaining the order, including attorney’s

fees, unless the court finds that the opposition to

the motion was substantially justified or that other

circumstances make an award of expenses unjust.

If the motion is denied, the court shall, after

opportunity for hearing, require the moving party

or the attorney advising the motion or both of them

to pay to the party or deponent who posed the

motion the reasonable expenses incurred in oppos-

ing the motion, including attorney’s fees, unless

the court finds that the making of the motion was

substantially justified or that other circumstances

make an award of expenses unjust.

If the motion is granted in part and denied in

part, the court may apportion the reasonable ex-

penses incurred in relation to the motion among the

parties and persons in a just manner.

(b) Failure to Comply with Order.

(1) Sanctions by Court in District Where Depo-

sition is Taken. If a deponent fails to be sworn or

to answer a question after being directed to do so

by the court in the district in which the deposition

is being taken, the failure may be considered a

contempt of that court.

(2) Sanctions by Court in Which Action 1s

Pending. If a party or an officer, director, or

managing agent of a party or a person designated

under Rule 30(b)(6) or 31(a) to testify on behalf of a

party fails to obey an order to provide or permit

discovery, including an order made under subdivi-

<<0 Oig-

ebaaidesihincsina tanh ind ip Sa

sbi dinealts

sion (a) of this rule or Rule 35, or if a party fails to

obey an order entered under Rule 26(f), the court in

which the action is pending may make such orders

in regard to the failure as are just, and among

others the following:

(A) An order that the matters regarding which

the order was made or any other designated facts

shall be taken to be established for the purposes of

the action in accordance with the claim of the party

obtaining the order;

(B) An order refusing to allow the disobedient

party to support or oppose designated claims or

defenses, or prohibiting him from introducing des-

ignated matters in evidence;

thereof, or staying further proceedings until the

order is obeyed, or dismissing the action or pro-

ceeding or any part thereof, or rendering a judg-

ment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in

addition thereto, an order treating as a contempt of

court the failure to obey any orders except an

order to submit to a physical or mental examina-

tion;

(E) Where a party has failed to comply with an

order under Rule 35(a) requiring him to produce

another for examination, such orders as are listed

in paragraphs (A), (B), and (C) of this subdivision,

unless the party failing to comply shows that he ts

unable to produce such person for examination.

In lieu of any of the foregoing orders or in

addition thereto, the court shall require the party

failing to obey the order or the attorney advising

him or both to pay the reasonable expenses, includ-

ing attorney’s fees, caused by the failure, unless

the court finds that the failure was substantially

~195-

justified or that other circumstances make an

award of expenses unjust.

fails to admit the genuineness of any document or

the truth of any matter as requested under Rule

36, and if the party requesting the admissions

thereafter proves the genuineness of the document

or the truth of the matter, he may apply to the

court for an order requiring the other party to pay

him the reasonable expenses incurred in makine

that proof, including reasonable attorney’s fees.

The court shall make the order unless it finds that

(1) the request was held objectionable pursuant to

Rule 36(a), or (2) the admission sought was of no

substantial importance, or (3) the party failing to

admit had reasonable ground to believe that he

might prevail on the matter, or (4) there was other

good reason for the failure to admit.

(d) Failure of Party to Attend at Own Deposi-

tion or Serve Answers to Interrogatories or Re-

spond to Request for Inspection. If a party or an

officer, director, or managing agent of a party ora

person designated under Rule 30(b)(6) or 31(a) to

testify on behalf of a party fails (1) to appear

before the officer who is to take his deposition,

after being served with a proper notice, or (2) to

serve answers or objections to interrogatories sub-

mitted under Rule 33, after proper service of the

interrogatories, or (3) to serve a written response

to a request for inspection submitted under Rule

34, after proper service of the request, the court in

which the action is pending on motion may make

such orders in regard to the failure as are just, and

among others it may take any action authorized

under paragraphs (A), (B), and (C) of subdivision

(b\(2) of this rule. In lieu of any order or in

addition thereto, the court shall require the party

mm Tay om

ERDAS APS AHOLD Ale SONG et A ik SBR Road NA Me BE 9S ie

failing to act or the attorney advising him or botn

to pay the reasonable expenses, including attor-

ney’s fees, caused by the failure, unless the court

finds that the failure was substantially justified or

that other circumstances make an award of ex-

penses unjust.

The failure to act described in this subdivision

may not be excused on the ground that the dis-

covery sought is objectionable unless the party

failing to act has applied for a protective order as

provided by Rule 26(c).

(e) [Abrogated]

(f) (Repealed. Pub.L. 96-481, Title II, § 205(a),

Oct. 21, 1980, 94 Stat. 2330.]

(g) Failure to Participate in the Framing of a

Discovery Plan. If a party or his attorney fails to

participate in good faith in the framing of a dis-

covery plan by agreement as is required by Rule

26(f), the court may, after opportunity for hearing,

require such party or his attorney to pay to any

other party the reasonable expenses, including at-

torney’s fees, caused by the failure.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949: Mar. 30,

1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980:

Pub.L. 96-481, Title II, § 205(a), Oct. 21, 1980, 94 Stat.

99N \

~L07-

SUPPLEMENTARY NOTE OF ADVISORY

COMMITTEE REGARDING THIS RULE

Note. The operation of Rule 55(b) (Judgment) is direct-

ly affeeted by the Soldiers’ and Sailors’ Civil Relief Act of

1940, 50 ULS.C., Appendix, § 501 et seq. Section 200 of

the Act [50 U.S.C.A. Appendix, 8 520] imposes specific

requirements which must be fulfilled before a default

judgment can be entered, e.g., Ledwith v. Storkan,

D).Neb.1942, 6 Fed. Rule Serv. 60b.24, Case 2, 2 F.R.D.

939, and also provides for the vacation of a judgment in

certain circumstances. See discussion in Commentary,

Effect of Conscription Legislation on the Federal Rules,

1940, 3 Fed. Rules Serv. 725; 3 Moore’s Federal Practice,

1938, Cum.Supplement § 55.02.

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover

upon a claim, counterclaim, or cross-claim or to

obtain a declaratory judgment may, at any time

after the expiration of 20 days from the commence-

ment of the action or after service of a motion for

summary judgment by the adverse party, move

with or without supporting affidavits for a summa-

ry judgment in his favor upon all or any part

thereof.

(b) For Defending Party. A party against

whom a claim, counterclaim, or cross-claim is as-

serted or a declaratory judgment is sought may, at

any me, move with or without supporting affida-

vits for a summary judgment in his favor as to ail

or any part thereof.

tion shall be served at least 10 days before the time

fixed for the hearing. The adverse party prior to

the day of hearing may serve opposing affidavits.

The judgment sought shall be rendered forthwith if

-108-

the pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with the

affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.

A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone

although there is a genuine issue as to the amount

of damages.

(d) Case Not Fully Adjudicated on Motion. If

on motion under this rule judgment is not rendered

upon the whole case or for all the relief asked and

a trial is necessary, the court at the hearing of the

motion, by examining the pleadings and the evi-

dence before it and by interrogating counsel, shall

if practicable ascertain what material facts exist

without substantial controversy and what material

facts are actually and in good faith controverted.

It shall thereupon make an order specifying the

facts that appear without substantial controversy,

including the extent to which the amount of dam-

ages or other relief is not in controversy, and

directing such further proceedings in the action as

are just. Upon the trial of the action the facts so

specified shall be deemed established, and the trial

shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony;

Defense Required. Supporting and opposing affi-

davits shall be made on personal knowledge, shall

set forth such facts as would be admissible in

evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated

therein. Sworn or certified copies of al! papers or

parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court

may permit affidavits to be supplemented or op-

posed by depositions, answers to interrogatories, or

further affidavits. When a motion for summary

judgment is made and supported as provided in this

wt Gq.

rule, an adverse party may not rest upon the mere

allegations or denials of his pleading, but his re-

sponse, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that

there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall

be entered against him.

(f) When Affidavits are Unavailable. Should it

appear from the affidavits of a party opposing the

motion that he cannot for reasons stated present

by affidavit facts essential to justify his opposition,

the court may refuse the application for judgment

or may order a continuance to permit affidavits to

be obtained or depositions to be taken or discovery

to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it

appear to the satisfaction of the court at any time

that any of the affidavits presented pursuant to

this rule are presented in bad faith or solely for the

purpose of delay, the court shall forthwith order

the party ernploying them to pay to the other party

the amount of the reasonable expenses which the

filing of the affidavits caused him to incur, includ-

ing reasonable attorney’s fees, and any offending

party or attorney may be adjudged guilty of con-

tempt.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21,

1968, eff. July 1, 1963.)

-110-

Rule 72. Magistrates, Pretrial Matters

(a) Nondispositive Matters. A magistrate to

whom a pretrial matter not dispositive of a claim or

defense of a party is referred to hear and deter-

mine shall promptly conduct such proceedings as

are required and when appropriate enter into the

record a written order setting forth the disposition

of the matter. The district judge to whom the case

is assigned shall consider objections made by the

parties, provided they are served and filed within

10 days after the entry of the order, and shall

modify or set aside any portion of the magistrate’s

order found to be clearly erroneous or contrary to

law.

(b) Dispositive Motions and Prisoner Petitions.

A magistrate assigned without consent of the par-

ties to hear a pretrial matter dispositive of a claim

or defense of a party or a prisoner petition chal-

lenging the conditions of confinement shall prompt-

ly conduct such proceedings as are required. A

record shall be made of all evidentiary proceedings

before the magistrate, and a record may be made

of such other proceedings as the magistrate deems

necessary. The magistrate shall enter into the

record a recommendation for disposition of the

matter, including proposed findings of fact when

appropriate. The clerk shall forthwith mail copies

to all parties.

A party objecting to the recommended disposi-

tion of the matter shall promptly arrange for the

transcription of the record, or portions of it as all

parties may agree upon or the magistrate deems

sufficient, unless the district judge otherwise di-

rects. Within 10 days after being served with a

-lll-

copy of the recommended disposition, a party may

serve and file specific, written objections to the

proposed findings and recommendations. A party

may respond to another party’s objections within

10 days after being served with a copy thereof.

The district judge to whom the case is assigned

shall make a de novo determination upon the rec-

ord, or after additional evidence, of any portion of

ee ee ee ee eo a

my _

ee ae es Pee Oe See

Rule 701. Opinion Testimony by Lay Wit-

nesses

If the witness is not testifying as an expert, his

testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a)

rationally based on the perception of the witness

and (b) helpful to a clear understanding of his

testimony or the determination of a fact in issue.

NOTES OF ADVISORY COMMITTEE ON

PROPOSED RULES

The rule retains the traditional objective of putting the

trier of fact in possession of an accurate reproduction of

the event.

Limitation (a) is the familiar requirement of first-hand

knowledge or observation.

Limitation (b) is phrased in terms of requiring testimo-

ny to be helpful in resolving issues. Witnesses often find

difficulty in expressing themselves in language which is

not that of an opinion or conclusion. While the courts

have made concessions in certain recurring situations,

necessity as a standard for permitting opinions and con-

clusions has proved too elusive and too unadaptable to

particular situations for purposes of satisfactory judicial

administration. McCormick § 11. Moreover, the practi-

cal impossibility of determining by rule what is a ‘‘fact,”’

demonstrated by a century of litigation of the question of

what is a fact for purposes of pleading under the Field

Code, extends into evidence also. 7 Wigmore § 1919.

The rule assumes that the natural characteristics of the

adversary system will generally lead to an acceptable

result, since the detailed account carries more conviction

than the broad assertion, and a lawyer can be expected to

display his witness to the best advantage. If he fails to

do so, cross-examination and argument will point up the

weakness. See Ladd, Expert Testimony, 5 Vand.L.Rev.

414, 415-417 (1952). If, despite these considerations,

attempts are made to introduce meaningless assertions

which amount to little more than choosing up sides,

exclusion for lack of helpfulness is called for by the rule.

-113-

The language of the rule is substantially that of Uni-

form Rule 56(1). Similar provisions are California Evi-

dence Code § 800; Kansas Code of Civil Procedure

§ 60-456(a); New Jersey Evidence Rule 56(1).

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowl-

edge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experi-

ence, training, or education, may testify thereto in

the form of an opinion or otherwise.

NOTES OF ADVISORY COMMITTEE ON

PROPOSED RULES

An intelligent evaluation of facts is often difficult or

impossible without the application of some scientific, tech-

nical, or other specialized knowledge. The most common

source of this knowledge is the expert witness, although

there are other techniques for supplying it.

Most of the literature assumes that experts testify only

in the form of opinions. The assumption is logically

unfounded. The rule accordingly recognizes that an ex-

pert on the stand may give a dissertation or exposition of

scientific or other principles relevant to the case, leaving

the trier of fact to apply them to the facts. Since much

of the criticism of expert testimony has centered upon the

hypothetical question, it seems wise to recognize that

opinions are not indispensable and to encourage the use

of expert testimony in non-opinion form when counsel

believes the trier can itself draw the requisite inference.

The use of opinions is not abolished by the rule, however.

It will continue to be permissible for the experts to take

the further step of suggesting the inference which should

be drawn from applying the specialized knowledge to the

facts. See Rules 703 to 705.

Whether the situation is a proper one for the use of

expert testimony is to be determined on the basis of

assisting the trier. ‘There is no more certain test for

determining when experts may be used than the common

-114-

ee ee eee ee ee

ali (taal fal

sense inquiry whether the untrained layman would be

qualified to determine intelligently and to the best possi-

ble degree the particular issue without enlightenment

from those having a specialized understanding of the

subject involved in the dispute.” Ladd, Expert Testimo-

ny, 5 Vand.L.Rev. 414, 418 (1952). When opinions are

excluded, it is because they are unhelpful and therefore

superfluous and a waste of time. 7 Wigmore § 1918.

The rule is broadly phrased. The fields of knowledge

which may be drawn upon are not limited merely to the

“scientific” and “technical” but extend to all “specialized”

knowledge. Similarly, the expert is viewed, not in a

narrow sense, but as a person qualified by “knowledge,

skill, experience, training or education.” Thus within the

scope of the rule are not only experts in the strictest

sense of the word, e.g., physicians, physicists, and archi-

tects, but also the large group sometimes called ‘‘skilled”’

witnesses, such as bankers or landowners testifying to

land values.

§ 636. Jurisdiction, powers, and temporary as-

signment

(a) Each United States magistrate serving under

this chapter shall have within the territorial juris-

diction prescribed by his appointment—

(1) all powers and duties conferred or imposed

upon United States commissioners by law or by

the Rules of Criminal Procedure for the United

States District Courts;

(2) the power to administer oaths and affirma-

tions, impose conditions of release under section

3146 of title 18, and take acknowledgements,

affidavits, and depositions; and

(3) the power to conduct trials under section

3401, title 18, United States Code, in conformity

with and subject to the limitations of that sec-

tion.

(b)(1) Notwithstanding any provision of law to

the contrary—

(A) a judge may designate a magistrate to

hear and determine any pretrial matter pending :

before the court, except a motion for injunctive

relief, for judgment on the pleadings, for summa-

ry judgment, to dismiss or quash an indictment

or information made by the defendant, to sup- ]

press evidence in a criminal case, to dismiss or to |

permit maintenance of a class action, to dismiss

for failure to state a claim upon which relief can

be granted, and to involuntarily dismiss an ac-

tion. A judge of the court may reconsider any

pretrial matter under this subparagraph (A)

where it has been shown that the magistrate’s

order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate to

conduct hearings, including evidentiary hearings,

and to submit to a judge of the court proposed

findings of fact and recommendations for the

-116-

disposition, by a judge of the court, of any mo-

tion excepted in subparagraph (A), of applica-

tions for posttrial relief made by individuals con-

victed of criminal offenses and of prisoner peti-

tions challenging conditions of confinement. .

_ (C) the magistrate shall file his proposed find-

ings and recommendations under subparagraph

(B) with the court and a copy shall forthwith be

mailed to all parties.

Within ten days after being served with a copy, any

party may serve and file written objections to such

proposed findings and recommendations as provid-

ed by rules of court. A judge of the court shall

make a de novo determination of those portions of

the report or specified proposed findings or recom-

mendations to which objection is made. A judge of

the court may accept, reject, or modify, in whole or

in part, the findings or recommendations made by

the magistrate. The judge may also receive fur-

ther evidence or recommit the matter to the magis-

trate with instructions.

(2) A judge may designate a magistrate to serve

as a special master pursuant to the applicable

provisions of this title and the Federal Rules of

Civil Procedure for the United States district

courts. A judge may designate a magistrate to

serve aS a special master in any civil case, upon

consent of the parties, without regard to the provi-

sions of rule 53(b) of the Federal Rules of Civil

Procedure for the United States district courts.

(3) A magistrate may be assigned such addition-

al duties as are not inconsistent with the Constitu-

tion and laws of the United States.

(4) Each district court shall establish rules pur-

suant to which the magistrates shall discharge

their duties. -117-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICOLAS KALIARDOS,

Plaintiff, Civil Action No.

i 88-73729

HONCRABLE PAUL V.

GENBRAL MOTORS COR- GADOLA

PORATION, BASF

CORPORATION, DAU-

BERT INDUSTRIES,

INC., H.B. FULLER

COMPANY, and H.B.

FULLER AUTOMOTIVE

PRODUCT, INC.,

jointly and severally,

U.S. DISTRICT JUDGE

Defendants.

JUDGEMENT

The court, having reviewed the file

in the above-entitled matter and the

magistrate judge's October 7, 1993 re-

port and recommendation, having accepted

and adopted the report and recommenda-

tion as the findings and conclusions of

the court, and having granted the

motions for summary judgement of all of

-118-

the above-named defendants,

It is hereby ORDERED and ADJUDGED

that plaintiff take nothing and that the

action be dismissed on the merits.

It is further ORDERED that the clerk

serve a copy of this judgement by United

States mail on the counsel for plaintiff

and on counsel for defendants.

Dated at Detroit, Michigan, this

day of — , 1994,

APPROVED: JOHN P. MAYER

by:

PAUL V. GADOLA — Deputy Clerk

UNITED STATES

DISTRICT JUDGE

-119-

I declare under penalty

of perjury that the

foregoing is true and

correct.

Nicolas Kaldardos

Pro Se, Petitioner

405 Moross Road

Grosse Pointe, Michigan

48236

(313) 884-6537

Executed:

March 21, 1995

-120-

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.