1. In a patent infringement suit, concurrent findings of the two
lower federal courts to the effect that combinations claimed,
though involving old mechanical construction, combine these in the
machine in a new way, so as to produce a new result, are findings
of fact which will not be disturbed by this Court where there is
evidence to support them. P.
316 U. S.
367.
2. A claim in a patent for a new combination of specified means,
applicable to a portion of an old machine, which describes or
refers to the older mechanism in order to show the application and
operation of the improvement, is not to be construed as embracing
the old as well as the new. P.
316 U. S.
368.
3. Certain claims of a patent to McFeely for improvements in
automatic heel lasting machines,
sustained. Pp.
316 U. S. 364,
316 U. S.
370.
121 F.2d 273 affirmed.
Certiorari, 314 U.S. 600, to review the affirmance of a decree
of the District Court, 29 F. Supp. 1015, sustaining certain claims
of a patent, in a suit for infringement.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The suit was for the infringement of Claims 6, 23, 42, 85, and
91 of the McFeely Patent No. 1,558,737 for improvements in
automatic heel lasting machines. The District Court held the claims
valid and infringed. [
Footnote
1] The Circuit Court of Appeals affirmed. [
Footnote 2]
Page 316 U. S. 365
The defendant sought certiorari on the ground that the claims
were invalid under recent decisions of this Court because they
constituted attempts to repatent a broad combination of old devices
-- bed lasters and automatic tackers -- and embodied only
aggregations of new unpatentable mechanisms with old mechanical
combinations. In pressing us to grant the writ, the petitioner
insisted that it desired no retrial of the facts, but merely a
proper application of the law to the facts found by the courts
below. We granted the writ. 314 U.S. 600.
In the manufacture of shoes, after the upper, the lining, and
the counter have been placed on a wooden last, and an insole has
been tacked to the last, the protruding edges of the materials are
flattened over the insole and tacked down at the toe and shank of
the shoe. The next operation is "heel seat lasting," which consists
of conforming the upper materials and insole snugly to the contour
of the heel of the last and fastening them down with tacks.
Originally this was done by hand. Later so-called "bed" machines
were used which employed horizontally moving plates called "wipers"
to flatten the projecting materials over the heel seat, where they
were tacked by hand. Heel lasting on a bed machine involves the
repeated use of levers and a foot treadle, and the result is not
uniform.
March 2, 1915, McFeely obtained a patent for a machine which
would automatically perform, in one power stroke, the wiping and
tacking necessary to complete the process of heel seat lasting. In
this patent, he claimed numerous combinations of means to
accomplish specific steps in the process, amongst others,
combinations to effect the clamping of the last, and positioning it
during the process, and to operate the wipers and the tackers in
proper relation to the last. A declared purpose was that the
machine should be able to last the heels of shoes of different
sizes. One machine was built in accordance with the patent and used
for some time. It was found to work satisfactorily on
Page 316 U. S. 366
shoes of a small range of sizes, but not to work on shoes of a
wide range of sizes, as would be required in the operations of the
ordinary factory.
October 27, 1925, McFeely obtained the patent involved in this
case for improvements [
Footnote
3] of the lasting machine described in his earlier patent. The
improvements embodied in the claims in suit had to do with a new
combination of elements for clamping the last in the machine, a new
combination of elements for the operation of wipers and tackers in
fixed relation to each other and to the heel of the last, and a new
combination of means for positioning the last vertically and
automatically altering the position during the operation. A manual
adjustment was a part of each of these combinations by which the
heel clamping, the wiping and tacking, and the vertical positioning
mechanisms could be adjusted in advance for different sizes of
shoes. The respondent is the assignee of both McFeely patents.
The petitioner purchased from a German maker, and used, four
machines which were found by the courts below to be exact copies of
the respondent's commercial machines made under the patent in suit.
So thorough was the imitation that even minor features not covered
by the patent were copied. At the time of the trial, alterations
had been made in the petitioner's machines, but the courts below
found that these were for the purpose of avoiding infringement, and
that they were not effective to that end.
If the petitioner's statements in support of the application for
certiorari are taken at face value, the point for decision is
extremely narrow. In argument, however, the
Page 316 U. S. 367
petitioner sought to overturn the concurrent findings below and
to have us redetermine the question of the novelty and usefulness
of the improvements described in the combination claims held valid
and infringed.
The courts below have concurrently found that none of the
earlier patents cited, including that of McFeely, embodied the
combinations of the challenged claims covering means for clamping
and holding the last, means for the movement of wipers and tackers
in fixed relation to each other, and means for the timed vertical
positioning of the last during the power stroke of the machine,
each combination including means for manually adjusting the
mechanism in advance for different sizes of shoes. These findings
are to the effect that the new combinations, while they involve old
mechanical constructions, combine these in a new way so as to
produce an improved result. These are findings of fact, [
Footnote 4] despite the petitioner's
apparent contention to the contrary, and we will not disturb such
concurrent findings where as here, there is evidence to support
them. [
Footnote 5] The claim
that the combinations are merely of old elements, which perform no
new function and produce no new result, must be overruled.
We come to the petitioner's contention that the courts below
have held the patent valid and infringed on the theory that the
improvements and adjustments disclosed in the claims entitle
McFeely to repatent the entire combination of the old devices,
known as bed lasters and automatic tackers. Petitioner argues that
they have so held only because the mechanism of the patented
machine permits of its operation upon a wider range of sizes of
shoes
Page 316 U. S. 368
than the machine earlier patented, and that it does so operate
merely because of three trifling mechanical adjustments which it
embodies.
The contention is not in accord with the holdings below. It is
true that both courts found that manual adjustments are provided
which are not found in the earlier McFeely patent or in the prior
art as applied to the three combinations embodied in the claims in
suit. But the findings do not stop there. In respect of each
claimed combination, both courts have found that they embody other
improvements, in addition to mere manual preliminary adjustments,
and that each combination exhibits invention in that its elements
cooperate in a new and useful way to accomplish an improved
result.
The petitioner, however, contends that the breadth of the claims
in suit is such that, instead of patenting the combinations claimed
as improvements over the prior art, and restricting the claims to
the improvements, the patentee sought to blanket every machine
which combines the old bed laster with the equally old automatic
tacking device. It is said that our decisions in
Bassick Mfg.
Co. v. Hollingshead, 298 U. S. 415, and
Lincoln Engineering Co. v. Stewart-Warner Corp.,
303 U. S. 545,
forbid any such extension of the patent monopoly.
We think, however, that each of the claims is confined to a
combination of specified means applicable only to a restricted
portion and function of the whole machine. In stating his claims,
the patentee sometimes says "a machine of the class described
having, in combination. . . ." Obviously, no machine will infringe
which does not have in combination the means specified in each of
the claims for accomplishing the particular portion of the total
operation covered by the claim. Other claims refer to "a lasting
mechanism of the class described having, in combination. . . ." The
same comment is applicable. Other claims read: "In a machine of the
class described, the combination. . . ."
Page 316 U. S. 369
Such preliminary statement is commonly and properly used to
specify the type of machine in which the claimed subsidiary
combination of elements works an improvement over the prior art.
[
Footnote 6] In describing the
novel combinations embodied in the claims, it was necessary to make
reference to certain portions of the machine in connection with
which the new combinations were to operate and with which they were
to dovetail, [
Footnote 7] but,
in mentioning these other mechanical parts, the claim does not
purport to embody them as elements of the claimed combination. To
construe such a claim for a combination of new elements intended to
be embodied in some well recognized mechanical aggregation, such as
a sewing machine or a washing machine, as a claim covering all the
mechanical details, or all the well known parts of the machine
would be to nullify every patent for an improvement in a type of
machine long in use, and would invalidate thousands of patents for
improvements in standard machines. It would be difficult to
describe an improvement in a washing machine without naming such a
machine as the thing to which the patent is addressed, and equally
difficult to refrain from referring to various parts of the
machine, such as the tub or the motor which actuates the washer.
But it has never been thought that a claim limited to an
improvement in some element of the machine is, by such reference,
rendered bad as claiming a monopoly of tubs or motors used in
washing machines.
Page 316 U. S. 370
Bassick Mfg. Co. v. R. M. Hollingshead Co., supra, and
Lincoln Engineering Co. v. Stewart-Warner Corp., supra,
lend no support to the petitioner's argument. Those were suits for
contributory infringement. In the
Bassick case, the
invention was of an improved pin fitting for receiving grease. The
combination claimed was stated as a combination of a grease gun, a
coupler, and a pin fitting of the improved type. It was sought to
convict one who sold grease guns, common in the prior art, of
contributory infringement because the seller knew, and intended,
that the guns should be used with the improved pin fitting. The
effort was to extend the monopoly embodied in the improved pin
fitting so as to prevent sale or use of well known grease guns of
the prior art, although whatever was novel in the improved pin
fitting was peculiar to itself, and had nothing to do with the
grease gun commonly used in connection with all pin fittings. Had
the claim merely recited that it applied to an improved type of pin
fitting to be used in connection with grease guns and couplers, the
claim for the pin fitting would have been good, and would not have
been rendered bad by the statement that the fitting was intended
for use in connection with those other instrumentalities.
The
Lincoln Engineering case went on the same
principle.
The present suit for infringement is not for the use of an
automatic bed lasting and tacking machine as such. It is for the
use in such a machine of improvements of certain features of the
machine. The respondent does not pretend to fix liability on the
petitioner for contributory infringement by reason of the use of an
automatic power driven lasting and tacking machine which does not
employ the novel improvements of the combinations claimed, and
could not do so. It is admitted, as it must be, that the petitioner
is free to use the machine shown in the first McFeely patent, which
has expired, or any other automatic
Page 316 U. S. 371
lasting and tacking machine which does not embody the three
improvements covered by the claims in suit. [
Footnote 8] It is not free, however, to use such a
machine if it embodies any one of the three combinations embraced
in those claims respectively. The use of these combinations is the
basis of its liability for infringement.
The decree is
Affirmed.
[
Footnote 1]
29 F. Supp. 1015.
[
Footnote 2]
121 F.2d 273.
[
Footnote 3]
"Any person who has invented or discovered any new and useful .
. . machine . . . or any new and useful improvements thereof . . .
may . . . obtain a patent therefor."
R.S. 4886, as amended, 35 U.S.C. § 31.
[
Footnote 4]
Battin v.
Taggert, 17 How. 74,
58
U. S. 85;
Bischoff v.
Wethered, 9 Wall. 812,
76 U. S. 814;
Thomson Spot Welder Co. v. Ford Motor Co., 265 U.
S. 445,
265 U. S. 446;
Stilz v. United States, 269 U. S. 144,
269 U. S.
147.
[
Footnote 5]
Continental Paper Bag Co. v. Eastern Paper Bag Co.,
210 U. S. 405,
210 U. S. 416,
210 U. S. 422;
Adamson v. Gilliland, 242 U. S. 350.
[
Footnote 6]
Compare e.g., Grier v. Wilt, 120 U.
S. 412,
120 U. S.
420-421;
Morley Machine Co. v. Lancaster,
129 U. S. 263,
129 U. S. 266;
Keystone Manufacturing Co. v. Adams, 151 U.
S. 139,
151 U. S. 142;
Deering v. Wingona Harvester Works, 155 U.
S. 286,
155 U. S.
289-290;
Boyd v. Janesville Hay-Tool Co.,
158 U. S. 260,
158 U. S. 264;
Kokomo Fence Machine Co. v. Kitselman, 189 U. S.
8,
189 U. S. 10,
189 U. S. 14;
Altoona Publix Theaters, Inc. v. American Tri-Ergon Corp.,
294 U. S. 477,
294 U. S.
482.
[
Footnote 7]
Compare 61 U. S.
Talcott, 20 How. 402,
61 U. S. 404;
Loom Company v. Higgins,
105 U. S. 580,
105 U. S.
586.
[
Footnote 8]
Seymour v.
Osborne, 11 Wall. 516,
78 U. S. 541,
78 U. S.
548.
MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and
MR. JUSTICE MURPHY concur.
I
In 1873, Mr. Justice Bradley, speaking for this Court in
Carlton v. Bokee, said:
"We think it proper to reiterate our disapprobation of these
ingenious attempts to expand a simple invention of a distinct
device into an all-embracing claim, calculated by its wide
generalizations and ambiguous language to discourage further
invention in the same department of industry and to cover
antecedent inventions. Without deciding that a repetition of
substantially the same claim in different words will vitiate a
patent, we hold that, where a specification by ambiguity and a
needless multiplication of nebulous claims is calculated to deceive
and mislead the public, the patent is void."
84 U. S. 17 Wall.
463,
84 U. S.
471-472. I believe that the patent of which the five
claims now held valid are a part embodies every one of the vices
referred to by Mr. Justice Bradley, and many more besides.
I recognize that the automatic power-driven heel seat laster,
the machine to which these five claims relate, is a great
technological achievement. But it is not the work of a single
person, nor can it be attributed to any one generation. On the
contrary, it represents the sum of gradual developments wrought by
the skill, perseverance,
Page 316 U. S. 372
and creative genius of countless persons throughout many
centuries. To this finished machine contributions have been made by
those who first harnessed steam, gas, and electricity to machinery,
as well as those who discovered and used in combination cams,
pivots, pulleys, belts, latches, triggers, springs, and spring
latches, brakes, and brake blocks.
The exact date of the first use of machines in the manufacture
of shoes is not known. But we know that, in 1790, Thomas Saint
secured a patent in England on a machine for the fastening of soles
to uppers, and that, in 1810, M. I. Brunel secured a patent in this
country on a machine to perform the same function. The progress of
the art for the next fifty years culminated in the stitching
machine jointly patented by Blake and McKay in 1860. By 1876, this
and subsequent McKay shoe machines were earning more than a half
million dollars in annual patent royalties for him, and had given
him the dominant position in the industry. During this period,
another current of invention produced the cable nailing machine
which cut nails and drove them automatically. And in 1883, Jan
Ernst Matzeliger invented and patented a machine which
"could simultaneously and in a minute's time hold the last in
place to receive the leather; move it forward step by step so that
the other coaching parts might draw the leather over the heel;
properly punch and grip the upper and draw it down over the last;
lay the leather properly at the heel and toe; feed the nails and
hold them in position for driving, and then discharge the completed
shoe from the machine. [
Footnote
2/1]"
The foregoing inventions and numerous others patented and put
into use by the close of the century completely transformed the
nature of shoe manufacturing. Reviewing these and other
developments, the United States Census Report of 1900 concluded
that
"the
Page 316 U. S. 373
genius of the American inventor had provided for every detail of
shoemaking, even the smallest processes being performed by
mechanical devices of some kind. [
Footnote 2/2]"
The United Shoe Machinery Company was formed in 1899. It
combined in one enterprise the more important companies in the shoe
machinery industry at the time, and brought under unified control
the multitude of patents which those companies owned. Since that
time, the United Shoe Machinery Company or its parent, the United
Shoe Machinery Corporation, which is the respondent in this case,
has continuously and overwhelmingly dominated the industry. The
shoe machinery patents which the respondent had acquired by 1918
were recognized by this Court to be "too great in number for
explanation or enumeration."
United States v. United Shoe Mach.
Co., 247 U. S. 32,
247 U. S. 40. In
1920, the Federal District Court for the Eastern District of
Missouri found that the respondent controlled, through its system
of leasing, at least 95% of all the shoe machinery used in the
United States.
See United Shoe Mach. Corp. v. United
States, 258 U. S. 451,
258 U. S.
455.
The narrow field into which the patent in controversy was
projected had already been so crowded by prior patents, a multitude
of which were owned by the respondent, that the area left for
patentable invention was very small. As the brief treatment in the
Court's opinion indicates,
Page 316 U. S. 374
the inventions set out in the claims now held valid, if
inventions at all, are comparatively simple improvements of an
automatic power-driven heel seat lasting machine.
The work of a heel seat lasting machine is to bend and flatten
out the overlapping part of the shoe upper over the insole and then
tack it down so that it will be ready for attaching the heel. In
the performance of these operations, the incompleted shoe is firmly
held by a clasping device in a proper position to permit the
leather to be bent and flattened by "wipers" and fastened to the
insole by "tackers."
It is to the clasping device, the wipers, and the tackers that
the asserted improvements relate. The operation of these parts must
be carefully coordinated, and the coordination must be maintained
when the machine is adjusted for different sizes of shoes. Means to
accomplish the necessary coordination over a range of different
sizes had been claimed in a prior patent [
Footnote 2/3] which, like the patent in suit, was issued
to Ronald F. McFeely and assigned to the respondent. The courts
below found, and the respondent here argues, that, although the
machine made in accordance with the first McFeely patent
"successfully lasted shoes of specific sizes, it proved
incapable of operating satisfactorily upon a range of sizes large
enough to adapt it for commercial operation in the ordinary shoe
factory."
121 F.2d 273, 278.
The improvements said to cure the deficiencies in the earlier
machine are covered in the five claims here held valid. Insofar as
these claims set out anything not contained in the first McFeely
patent, the modifications are
Page 316 U. S. 375
not at all complex. The tackers and wipers, formerly connected
in a manner which permitted some slight independence of movement,
were now rigidly interconnected, so that one could not move without
the other, and a handle was substituted for a screw nut as a means
of making a preliminary manual adjustment for shoes of different
sizes. Changes of equal simplicity were made in the "hold-down" and
the "heel band," two of the parts which clasp the shoe and hold it
in place during the actual lasting process.
There is no doubt that the United Shoe Machinery Corporation,
particularly since it maintains a patent department in which patent
lawyers are regularly employed, could have caused these simple
improvements to be patented separately and without ambiguity or
prolixity. No possible justification can be offered for
inextricably combining the description of the alleged improvements
with a description of a complete lasting machine. Let us now turn
to the patent in suit to see how far it meets the requirement of
R.S. § 4888, 35 U.S.C. § 33, that a patentee "shall
particularly point out and distinctly claim the part, improvement,
or combination which he claims as his invention or discovery."
The patent as a whole sets out 137 claims covering 16 large
closely printed pages; it includes 11 1/2 more pages of
specifications and numerous drawings; it has a text of more than
25,000 words, about 14,000 of which are devoted to the claims.
Remarks of Judge Learned Hand, made with respect to a patent much
shorter than the one before us, are pertinent here:
"Such claims violate the very purpose of any claims at all,
which is to define the forbidden field. In such a waste of abstract
verbiage . . . , it takes the scholastic ingenuity of a St. Thomas
with the patience of a yogi to decipher their meaning, as they
stand."
Victor Talking Mach. Co. v. Thomas A. Edison, Inc., 229
F. 999, 1001. Alexander Graham Bell's basic patent on the
Page 316 U. S. 376
telephone, a pioneer invention, [
Footnote 2/4] affords an illuminating contrast. All of
Bell's claims -- he found five ample -- contain in the aggregate
229 words, less than many single claims of this patent, and the
entire text of his patent is about one-tenth the length of this
one. [
Footnote 2/5] The second
McFeely patent, unlike Bell's, discloses no pioneer invention. On
the contrary, McFeely stated in his application that he was seeking
to patent improvements. Yet, the features of a heel seat laster are
set out so comprehensively and in such detail that a trained person
would be able to build a complete machine with only this
improvement patent as his primary source of information.
If the machine as a whole were being claimed in the second
McFeely, arguments of some plausibility could perhaps be made to
justify the length of the patent. For the automatic heel seat
laster in its entirety is a highly complex machine combining a
number of interrelated mechanisms in a manner which, as the court
below pointed out, enables it to perform its intricate function "in
the fraction of a second and too swiftly for the eye to follow."
121 F.2d 273, 274. But we must not allow ourselves to confuse the
old and the new. The impressive speed of the machine is not the
result of the improvements. Like most of the other admirable
qualities of the machine as a whole, it was attainable before the
improvements were patented, and to it the improvements made no
contribution.
Even if there is some conceivable basis for crediting the
machine as a whole to McFeely's genius, he was not entitled to
claim it in this patent. For his earlier patent, even lengthier
than this one, had described and claimed as patentable invention
every feature of the machine except the minor improvements to which
we have referred.
Page 316 U. S. 377
One who invents improvements on a prior invention, whether his
own or someone else's, may patent the improvements separately. But
I do not believe that our patent system was intended to allow the
indiscriminate jumbling of the new and the old which would permit
the inventor of improvements to extend his domain of monopoly by
perpetuating rights in old inventions beyond the 17 years period
Congress has provided.
If we turn from the patent as a whole to the individual claims,
we find in many of them the same ground for criticism: the
introduction of something new is taken as an occasion for
reclaiming the old. Claim 42, one of the five claims held valid and
infringed, is illustrative. In these proceedings, the respondent
makes this claim the basis of his assertion that the second McFeely
embodies a patentable improvement in the hold-down mechanism, the
part of the machine which holds the shoe in the appropriate
vertical position during the lasting operation. But there is no
clear and distinct statement in Claim 42 so limiting its scope. On
the contrary, the trial court referred to this claim as "a general
claim covering the machine based on the McFeely patent in suit,"
and the language of the claim itself purports to cover a
"
machine of the class described." [
Footnote 2/6]
Page 316 U. S. 378
Not only does 42 claim many old elements, but they are claimed
in the same manner and with the same emphasis as the hold-down
mechanism. Included among these old elements are: "clamping means
to embrace one end of a last and shoe;" "end wipers positioned to
operate on the edges of the upper at the said end of the shoe;" "a
support for a last and shoe constructed and arranged for manually
effected movement to engage the last and shoe with [the] clamping
means and hold-down;" and "mechanism operative to actuate the
wipers to break down the edge of the upper over the bottom of the
positioned last and shoe." All of these old elements were to
operate in exactly the same manner prescribed either in the first
McFeely or other prior patents, and they were to perform the same
functions they had always performed.
We have held that, if a claim does not contain a distinct and
specific statement of what the patentee claims to be new, it is
void.
General Electric Co. v. Wabash Corp., 304 U.
S. 364. And we have also held void a claim which sets
out an improvement of one part of an old combination but, at the
same time, purports to cover the improvement in combination with
old parts which perform no new function.
Lincoln Co. v.
Stewart-Warner Corp., 303 U. S. 545.
Claim 42, today held valid, clearly violates both of these
standards.
Page 316 U. S. 379
I believe it could be conclusively shown that almost all of the
137 claims are objectionable for one or both of the same reasons as
Claim 42. But the unnecessary length of this patent makes it
impracticable to present a complete exposition of the vices of each
separate claim in a judicial opinion. It may be possible, however,
to suggest in a few brief statements the extent of the deficiencies
and their cumulative tendency "to deceive and mislead the public"
with respect to the scope of the patent.
Carlton v. Bokee,
supra, p.
84 U. S.
472.
Of the 137 claims, 68 purport to cover in unambiguous language
either "a machine of the class described" or "a lasting machine" or
"a heel seat lasting mechanism," without any hint of limitation to
a claimed improvement. The use of such broad language cannot be
dismissed as an inconsequential matter of form, since, in
substance, these claims embrace with varying degrees of
comprehensiveness all the fundamental features of an automatic
power driven heel seat laster. [
Footnote 2/7]
Page 316 U. S. 380
All but one [
Footnote 2/8] of
the remaining 79 claims are introduced by the somewhat limiting
phrase "in a machine of the class described." But, in almost all of
these, the introduction is followed by a recital of old elements
claimed in the same manner as they were in the earlier McFeely,
[
Footnote 2/9] and, here again, the
aggregate effect is to reclaim a heel seat lasting machine in its
entirety.
Recent studies conducted by the Temporary National Economic
Committee show that the technique employed in the second McFeely
patent is not unusual. [
Footnote
2/10] In essence,
Page 316 U. S. 381
it is an attempt to utilize minor improvements to perpetuate
exclusive enjoyment of a major instrument of production which
rightfully belongs to the public. Distinct separation of the new
would afford guidance to those who wished to use the old when the
exclusive rights to it expired. On the other hand, blurring the
lines of separation places anyone who attempts to use any part of
the amalgam in jeopardy of burdensome infringement suits. Where the
patent owner has ample resources to bear the costs of repeated
litigation, the power of the infringement suit to stifle
competition is increased. And where potential competitors are weak
and few, it may afford a practically complete protection for the
preservation of undeserved monopoly.
The circumstances here are most favorable for the use of patent
privileges as a deterrent to all competition. By its vagueness and
generality, the patent in suit creates an overhanging threat to
anyone who might want to produce any kind of heel seat lasting
machinery. And this threat is intensified by the universal
recognition of the patent owner's long established rule over the
entire shoe machinery industry.
Moreover, it is entirely unrealistic to judge this patent in
isolation. It is a stage of a process which the record shows
Page 316 U. S. 382
began years before, and is still continuing, a process by which
it appears possible for the respondent to make the monopoly
endless. The first McFeely patent, assigned to the respondent,
embraced the whole universe of prior development in heel seat
lasting machines. About a year after it was issued, the United Shoe
Machinery Company became the owner of another patent on a lasting
machine, Brock No. 1,188,616. The 77 claims of this patent reembody
too many of the features previously covered by the first McFeely to
allow enumeration here. Four years later, Pym No. 1,368,968, also
on a lasting machine, was issued and assigned to the respondent. Of
the 172 claims of this patent, there is another multitude embodying
identical features of the first McFeely. Although applied for about
a year after the first McFeely, the patent in suit was not issued
until 1925, four years after the Pym patent. The second McFeely
appears to be only the currently used weapon; the record reveals
another in the respondent's arsenal, awaiting service when this one
is no longer useful. [
Footnote
2/11] To date, the series of overlapping patents has been
continuous. There is no reason to suppose that abandonment of so
successful a practice is contemplated for the future.
The discouragement to future invention and the potentialities of
deceiving and misleading the public which this Court condemned 70
years ago are here present in fullest measure.
Carlton v.
Bokee, supra. Opposed to departure from the salutary rule
announced by Mr. Justice Bradley, I believe the patent before us
should be declared void.
Page 316 U. S. 383
II
In addition to the foregoing reasons for declaring the entire
patent void, there is an independent narrower ground for reversing
the decision below. The five claims here relied upon set out only
an aggregation of old elements not constituting patentable
invention. [
Footnote 2/12] And
where, as here, an appellate court can determine from a mere
construction and comparison of patents that an alleged new
invention is in reality identical with inventions claimed in prior
patents, the question of patentability should be reviewed.
Heald v. Rice, 104 U. S. 737,
104 U. S. 749.
Cf. Singer Co. v. Cramer, 192 U.
S. 265,
192 U. S.
275.
It was the view of both courts below that, although a machine
manufactured under McFeely's earlier patent had
"successfully lasted shoes of specific sizes, it proved
incapable of operating satisfactorily upon a range of sizes large
enough to adapt it for commercial operation in the ordinary shoe
factory."
The five claims in suit relate to three small adjustments of the
first McFeely machine intended to cure this alleged deficiency. The
respondent nowhere asserts that the adjustments were intended to
accomplish any other purpose, or that in fact they did. Nor did the
courts below rest their conclusions upon findings that any other
purpose was accomplished. They found novelty and usefulness in the
increased adaptability of the later machines over a wider range of
sizes, and in the minor mechanical changes made to cure the
shortcomings of the earlier machine, they found patentable
invention.
Page 316 U. S. 384
But novelty and usefulness are not enough, for, to be
patentable, improvements "must, under the Constitution and the
statute, amount to an invention or discovery."
Thompson v.
Boisselier, 114 U. S. 1,
114 U. S. 11.
And, even though improvements produce "a more convenient and
economical mechanism," or a "more convenient and more salable"
product, or a machine of "greater precision," they are not
patentable if they "sprang naturally from the expected skill of the
maker's calling." [
Footnote 2/13]
As this Court said in 1875, "Perfection of workmanship, however
much it may increase the convenience, extend the use, or diminish
expense, is not patentable."
Reckendorfer v. Faber,
92 U. S. 347,
92 U. S.
356-357.
Cf. Cuno Corp. v. Automatic Devices
Corp., 314 U. S. 84,
314 U. S.
90-92.
A comparison of the patent in suit with patents of the past
shows that the improvements here were but duplications of old
elements to obtain an old result and their application to the first
McFeely machine was no more than a common mechanical expedient. The
objective, adapting the machine to shoes of different sizes,
suggests its own means of accomplishment.
Even before 1900, automatic tacking machines and automatic
wiping machines, adaptable to shoes of different sizes, had been in
use commercially. In connection with the issuance of his earlier
patent, McFeely represented that he had succeeded in combining
tackers and wipers in a single machine, and that his patent
therefore set out a pioneer invention, disclosing the first machine
organized for the entire process of heel seat lasting. The United
Shoe Machinery Company built a machine in accordance with the
patent and placed it in a factory for testing purposes.
Page 316 U. S. 385
Shoes lasted on it were sold to the factory owner's regular shoe
trade. McFeely had described in detail means to set the parts
before the lasting operation began, so that the machine would
properly do its work whatever the size of the shoe. [
Footnote 2/14] It is said the tests
revealed that these preliminary adjustment devices were not
adequate to accommodate all sizes, although they did permit the
machine to function satisfactorily on some.
The problem was to enable the operator, in advance, to enlarge
or diminish the area within which the tackers, wipers, and shoe
clasping devices would do their work as the shoe to be lasted might
be larger or smaller. The most obvious answer was adjustments to
permit appropriate positioning of the parts. Three separate hand
adjustments were therefore provided to set the tacker-wiper
combination, the heel clasping device, and the hold-down mechanism.
The adjustments were so arranged that the operator of the machine
could, either by use of a set screw or handle, place these separate
parts in appropriate positions for the particular size of shoe to
be lasted. The positions set by the operator are maintained until
reset for shoes of another size.
Technological knowledge and development had advanced too far by
1916 to warrant elevation of such hand adjustments to the
privileged position reserved for inventions. Either in or out of
the combination, these adjustments
Page 316 U. S. 386
performed no more than the old functions that adjustments by
hand levers and set screws had always performed. Yet, without these
hand adjustments, the problem alleged to have been revealed by
operation of the first McFeely machine would not have been met. For
hand adjustments were the indispensable elements of the claimed
improvements. Since I believe that such adjustments should not be
raised to the dignity of patentable invention, I think the five
claims should be held invalid.
No argument is made that the remaining elements, standing alone,
would have caused the machine to function satisfactorily on shoes
of all sizes. Nevertheless, I shall give the reasons for my belief
that there is not patentable invention in the remaining elements of
the five claims.
Tacker-Wiper Connection. In the first machine, the
tackers and wipers were loosely connected in a manner allowing a
slight independence of movement. Demonstration of the machine
indicated that more satisfactory results would be obtained if
tackers and wipers maintained a fixed relationship to each other
throughout all the movements of the lasting operation. Here again,
the problem suggested its own answer. It is difficult to imagine
that any mechanic would be ignorant of the principle that, if two
parts are fastened together, they will move simultaneously. The
change in the tacker-wiper mechanism was no more than the
application of this principle. Tackers and wipers were more rigidly
interconnected. Even if such an expedient could ever have been
invention, it had been anticipated in the field of shoe machinery
as far back as 1881, when George W. Copeland, Matthias Brock, and
Joseph E. Crisp obtained Patent No. 244,714 on an automatic
power-driven lasting machine which claimed a combination of wiper
plates and fasteners to be moved simultaneously to the proper
position for wiping and fastening the sole. I can see no evidence
whatever of an exercise of
Page 316 U. S. 387
the inventive faculty in the fastening of tackers and wipers
rigidly together so as to cause them to move simultaneously and
maintain a fixed relationship with each other.
Heel Band and Hold-Down. The first McFeely, as had many
prior patents, described a U-shaped leather heel band adapted to
grip and hold the shoe while it was wiped and tacked. It is
asserted that the patent in suit added attachments which permit the
heel band to slide relative to its supports. The first McFeely also
described a hold-down device for maintaining the shoe in
appropriate vertical position for the lasting operations. It is
asserted that the claim of the second McFeely which provides for
the hold-down mechanism modifies the first by introducing a new
"sequence of operations." The asserted modifications of both heel
band and hold-down are claimed in conjunction with the hand
adjustments previously discussed.
Since the beginning of shoe lasting, it has been recognized that
the shoe must be held firmly in the proper position for wiping and
tacking. Heel bands and hold-downs similar to those claimed here
appear in the record in numerous drawings, specifications, and
claims of a long series of patents prior to the one before us. The
great number of patents, embodying apparently limitless variations
of the same basic principles, suggests that the public had, before
McFeely's second patent, already paid in fullest measure for heel
bands and hold-downs.
Examination of only three of these patents -- Plant No. 958,280
(1910), Keyes No. 1,023,854 (1912), and Brock No. 1,188,616 (1916)
-- is enough to show complete anticipation of the entire principle
of the sliding heel band capable of forward and backward movement
if not every essential mechanical detail.
The general claim of the second McFeely which sets out the
hold-down mechanism is said to provide for a "particular sequence"
of operations. Insofar as the ambiguities
Page 316 U. S. 388
of this claim [
Footnote 2/15]
permit such a deduction, there is nevertheless a failure to
disclose any patentable invention. Of course, the sequence of
operations in which the hold-down plays a crucial part is
important. For the shoe must be maintained in such a vertical
position that the successive strokes of the wipers will perform
their proper function. If the shoe is too low with respect to the
wipers, the leather will not be bent down sufficiently far; if the
shoe is too high with respect to the wipers, the wipers will hit
the shoe below the insole, and therefore will not produce any
bending of the leather at all. But, in setting out a mechanism to
insure the proper relationship between the level of the shoe and
the level of the wipers during successive strokes of the machine,
the second McFeely patent is by no means new. Claim 49 of the first
McFeely patent includes a "provision for changing relatively the
plane of action of the wipers and the position of the shoe between
successive actuations of the wipers." And, in Claim 164 of the
first McFeely, it appears that the hold-down mechanism was
recognized as having a major rule in accomplishing this purpose.
For Claim 164 specifically provides
"means for automatically actuating the hold down upwardly and
then downwardly again between the initial advance of the wiper and
a final retraction of the wiper."
If the "sequence" of the second McFeely is any different, the
difference cannot be seen in the provisions of the claim relied
upon, nor is it explained in the record; if, as I believe, the
"sequence" in both patents is the same, the second is invalid
because anticipated.
In short, this record shows that the old elements composing the
asserted improvements here had been described and redescribed,
claimed and reclaimed, as patentable inventions. The respondent has
used every one of
Page 316 U. S. 389
them in previous patents now expired. It should not be allowed
to continue its exclusive control over their use and enjoyment.
There is perhaps another possible ground for concluding that the
five claims set out patentable invention. Conceivably, the three
asserted improvements, although each separately is no more than a
mechanical expedient or a simple adaptation of prior invention,
could be accepted in combination as an exercise of the inventive
faculty. The court below apparently did evaluate the improvements
in combination, for it found that, taken together, they resulted in
a "new unitary mode of operation of the entire machine." 121 F.2d
273, 278. But the statement is unexplained, and I cannot find
support for it in the record. On the contrary, comparison of the
first and second McFeely patents shows that the basic mode of
operation of the entire machine in both was identical. In the
earlier machine, the shoe was placed on a last at the end of a
jack, firmly held in position while the wiping and tacking took
place, and then released. In these fundamental respects, the mode
of operation provided for in the second McFeely patent is the same,
whatever modifications McFeely may have added for the purpose of
increasing adaptability to different sizes of shoes not having
affected it in the slightest.
In any event, "each claim must stand or fall, as itself
sufficiently defining invention, independently of the others."
Altoona Theaters v. American Tri-Ergon Corp., 294 U.
S. 477,
294 U. S. 487.
None of the five claims here in suit discloses a "new unitary mode
of operation of the entire machine." Even if it were possible to
deduce from the five claims taken together that McFeely had made
such a disclosure, nevertheless the patent ought not to be treated
as if the disclosure had actually been made in appropriate form.
For the creation of a sixth claim, a combination of the other
Page 316 U. S. 390
five, which McFeely himself failed to include in his patent
would entail a kind of constructive patenting procedure for which
there is no judicial or statutory precedent.
The courts below concluded that the five claims in suit embodied
patentable invention. In reaching this conclusion, which I believe
is overwhelmingly refuted by examination of the claims themselves
against the background of prior developments in the art, heavy
reliance was placed on two extrinsic considerations: commercial
success and the presumption of validity arising from the fact of
issuance of a patent by the Patent Office.
Commercial Success. When it is a close question whether
the changes embodied in a later patent are a sufficient advance
over earlier patents to constitute patentable invention, the
measure of commercial success of the later patent has been
recognized by courts as affording some aid in reaching a
conclusion. But, while commercial success has been said to have
relevance in resolving doubts,
Smith v. Hall, 301 U.
S. 216,
301 U. S. 233,
it cannot transform an exercise of the common skill of a calling or
an adaptation readily suggested by experience with prior inventions
or an aggregation of familiar mechanical expedients into patentable
invention.
Cf. Hildreth v. Mastoras, 257 U. S.
27,
257 U. S. 34.
And where the patent in question reembodies a prior patent not yet
expired, its commercial success does quite the reverse of
establishing patentability; it establishes the seriousness of the
infringement. If the reembodied prior patent has expired, or if it
is owned by the owner of the later patent, commercial success is
one index of success in appropriating what should have been
available to the public or in extending special privileges beyond
the legally permitted term.
I have already given the reasons which convince me that no
patentable invention is set out in the five claims in suit. The
force of none of those reasons is affected by the commercial
success which the respondent has realized. After
Page 316 U. S. 391
examining the record, I can find no serious doubts to be
resolved. All I can deduce from the commercial success of the
respondent with these machines is the magnitude of the consequences
to the public who have had to pay for the respondent's extension of
an undeserved monopoly through the use of an invalid patent.
Even if the issue of patentable invention were a doubtful one,
the force of deductions that might normally be drawn from
commercial success is greatly reduced in the circumstances of this
case. For, by virtue of its dominant position in the shoe machinery
industry, the United Shoe Machinery Corporation was not seriously
threatened by loss of business to competitors when it withdrew the
first McFeely machine from commercial use. Because there was no
compelling economic incentive to hasten the commercial adaptation
of the first McFeely machine, the inferences to be made from its
withdrawal are extremely weak. Controlling the shoe machinery
business to the extent that it did, the respondent was able to
accelerate or delay the commercial exploitation of its heel seat
lasting machine at its pleasure.
Moreover, the record indicates that the commercial success
relied upon by the courts below would be inconclusive with respect
to the second McFeely patent under any circumstances. For there is
uncontroverted testimony that, of the 1250 later machines in
commercial use, only 12 were built in accordance with the
disclosures of the second McFeely patent. The remainder embody
features set out in a subsequent patent, Jorgensen No. 1,852,015,
or a prior patent, Hoyt No. 1,508,394 (declared invalid by the
court below), or both. Since I believe that the commercial success
of the respondent's machine could in no event establish the
validity of the five claims in suit, I do not find it necessary to
determine how much of the commercial success of the respondent's
machines is to be attributed to features not set out in the second
McFeely
Page 316 U. S. 392
patent. Such a determination does not appear to have been made
in the entire course of proceedings in this case.
Presumption of validity arising from issuance. Quoting
from the opinion of this Court in
Radio Corp. v. Radio
Laboratories, 293 U. S. 1,
293 U. S. 8, the
court below stated that the present case obliged it
"to give consideration to the rule that 'one otherwise an
infringer who assails the validity of a patent fair upon its face
bears a heavy burden of persuasion, and fails unless his evidence
has more than a dubious preponderance.'"
121 F.2d 273, 277. For reasons I have already set out. I can
agree neither that the second McFeely is "a patent fair upon its
face" nor that the evidence of nonpatentability has no more than a
"dubious preponderance." Hence, the prerequisites for establishing
a presumption of validity are not here present. In the absence of a
statutory prescription to the contrary, I see no reason for
extending the presumption of validity arising from the mere
issuance of a patent beyond the narrow compass indicated by the
passage quoted from the
Radio Corporation case.
On the other hand, there are many positive reasons for not doing
so. A patent is a grant of exclusive privilege. Yet it is normally
issued in a nonadversary proceeding. Indeed, it is the practice of
the Patent Office to keep patent applications on file in secrecy
until the time of issuance. [
Footnote
2/16] The public, who will be excluded for 17 years from the
field granted to the applicant, are represented only insofar as the
enormous volume of business permits the examining staff of the
Patent Office to watch out for the public interest. [
Footnote 2/17] Moreover, the patent
examiner, unlike the court in an infringement suit, does not have
the benefit of the
Page 316 U. S. 393
researches of opposing counsel upon the state of the prior art.
Even where the Patent Office conducts interference proceedings for
the purpose of determining priority of invention, a contestant is
not permitted to prove that a stranger to the proceedings was the
first inventor. He can oppose only his own claim of priority
against that of the other party.
See Loftin v. Smith, 126
F.2d 514, 515.
Whatever the small weight to be given to the presumption arising
from issuance of a patent, it is here overcome by the special
circumstance of this case. For the patent in suit, like the prior
one on which it is asserted to have made improvements, was issued
to the same patentee and assigned to the same owner. In this kind
of situation, the burden of establishing the validity of the second
patent is increased, this Court having said that, in this
"class of cases, it must distinctly appear that the invention
covered by the later patent was a separate invention, distinctly
different and independent from that covered by the first
patent."
Miller v. Eagle Manufacturing Co., 151 U.
S. 186,
151 U. S. 198.
At very best, the presumption of validity arising from the mere
issuance of a patent might be permitted to tip the scale when other
considerations leave the issue of patentability in equilibrium. In
the present case, I believe that the emphasis of the court below on
this presumption was entirely misplaced.
As I view this patent, its total impact is appalling. Out of its
great bulk, the respondent is able to assert only three simple
improvements embraced in five claims. And, on examination, it
appears that these improvements fall far below the established
requirements of patentable invention. Yet, by its terms, the patent
as a whole purports to appropriate for exclusive use not merely
these improvements, but a major instrument of production in its
entirety. Furthermore, this patent is one of a group which seems to
have an interminable capacity for self-perpetuation.
Page 316 U. S. 394
If judicial approval is to be given to patents of this kind, the
public benefits which might reasonably be hoped for under the
constitutional provisions and the federal statutes relating to
patents can never be attained.
[
Footnote 2/1]
Dictionary of American Biography, "Matzeliger, Jan Ernst."
[
Footnote 2/2]
Census Reports (12th Census, 1900), Vol. IX, part III, 756. On
the development of the shoe machinery industry,
see
Gannon, Shoe Making,
passim, and his article "Shoe
Industry in the United States" in Encyclopedia Americana; Hazard,
Organization of Boot and Shoe Industry in Massachusetts before
1875,
passim; Kaempffert, A Popular History of American
Invention, Vol. II, 404-434; Dictionary of American Biography,
"Goodyear, Charles [Jr.]," "McKay, Gordon," "Matzeliger, Jan
Ernst." "Winslow, Sidney Wilmot;" Encyclopaedia of the Social
Sciences, "Leather Industries,"
e.g., 307-309.
[
Footnote 2/3]
Claim No. 167, for example, of the earlier McFeely patent (No.
1, 129,881) sets out "means to adjust the back stop for shoes of
different sizes including provision for indicating the correct
adjustment for particular sizes."
[
Footnote 2/4]
See Boyden Power-Brake Co. v. Westinghouse,
170 U. S. 537,
170 U. S.
561-562.
[
Footnote 2/5]
Telephone Cases, 126 U. S. 1,
126 U. S.
4-14.
[
Footnote 2/6]
Claim 42 provides:
"A machine of the class described having, in combination,
clamping means to embrace one end of a last and shoe, end wipers
positioned to operate on the edges of the upper at said end of the
shoe, a hold-down mounted for vertical movement and positioned to
engage the bottom of the last and shoe, a support for a last and
shoe constructed and arranged for manually effected movement to
engage the last and shoe with said clamping means and hold-down,
power operated mechanism effective to move said support forcibly to
press the last and shoe against said clamping means and hold-down
and to actuate the clamping means, mechanism effective in timed
relation to the clamping means to depress the hold-down and support
to position the shoe bottom determinately below the plane of the
wipers, mechanism operative to actuate the wipers to break down the
edge of the upper over the bottom of the positioned last and shoe,
the said hold-down mechanism being automatically operative
subsequently determinately to raise the hold-down, the said power
operated mechanism being operative substantially coincidentally
correspondingly to raise the said support to engage the bottom of
the last and shoe with said hold-down with the shoe bottom
positioned substantially in the plane of the wipers, and the end
wiper mechanism being subsequently operative in timed relation to
wipe over and compact the broken down edge of the upper over the
bottom of the last and shoe, and manually adjustable means for
determinately varying the amount of vertical movement of the
hold-down."
[
Footnote 2/7]
Claim 55 is illustrative. It provides:
"A heel seat lasting machine having, in combination, clamping
means to embrace the heel end of a shoe, wipers to operate upon the
upstanding edges of the upper at the clamped end of the shoe, means
to support a last and shoe in inverted position, means to raise
said support to position the last and shoe for cooperation with the
clamping means with the bottom of the shoe above the operating
plane of the wipers, means to operate the clamping means to embrace
the heel end of the positioned shoe, mechanism operative
determinately to depress said last and shoe support relatively to
the clamping means to upwipe the upper over the sides of the last
and to position the shoe with its bottom in a plane determinately
below the operating plane of the wipers with the upper edges in
said operating plane, and means subsequently to operate said wipers
in timed relation to the shoe support to break down the upstanding
edges of the upper over the heel seat, said support operating
mechanism being subsequently effective in timed relation
determinately to raise said support and shoe to position the shoe
bottom in the operating plane of the wipers, and said wiper
operating means being subsequently effective in timed relation to
operate the wipers to wipe down and compact over the heel seat the
broken down edges of the upper."
[
Footnote 2/8]
Claim 39 purports to cover "an end lasting mechanism," but it,
too, attempts to reclaim various old elements.
[
Footnote 2/9]
Claim 84 is illustrative. It provides:
"In a machine of the class described, the combination with last
and shoe positioning means, of end embracing wipers, operating
means for said wipers including parts movable to effect a
preliminary adjustment of the wipers to the contour of the shoe
while other portions of said operating means are stationary, and
tackers movable inwardly over the shoe and connected to said wipers
for preliminary adjustment with them."
[
Footnote 2/10]
E.g., a "Memorandum of Policy" from the files of an
industrial corporation, set out in the TNEC Hearings, contains the
following guidance for the corporation's patent division:
"
Continuing the Monopoly by Us or Others"
"It often happens that, if minor improvements are protected by
patents, machines and processes licensed under the original basic
patents are given a much longer earning life by the fact that the
minor improvements continue the protection on the machines, and
even when the basic patents expire, others are prevented from using
the latest commercial form of the machine."
"Example: The . . . basic patents expired several years ago.
Nobody, however, dare use the present type of . . . machine because
of improvements covered by minor patents. Likewise, if the original
patent protection obtained on particular machines should not be
sustained by the Courts, yet a second line of defense patents
covering details and improvements may become a most valuable
asset."
"It has always been our ambition to obtain patents which will be
related to furnace, melting and refining, feeding, delivery,
forming, automatic handling, carrying, stacking and annealing.
Conceivably we might lose patent domination of one or more
important links, but still retain practical control of the whole
chain by means of controlling the most efficient form of the other
links."
TNEC Hearings, 777-778.
Cf. TNEC Monograph No. 31, 160:
"A patent provides a sanction, but it is about to expire -- by
some means or other, its life must be prolonged. An improvement
alone is hardly enough; its importance must be magnified until the
line between invention and improvement is completely blurred. A
multiplication of improvements is far better; it creates at least
an appearance that an industrial art is being transformed."
[
Footnote 2/11]
Jorgensen No. 1,852,015, issued in 1932 and assigned to the
respondent, purports to cover improvements on a machine for shaping
shoe uppers "over lasts or other forms." It states that the
invention
"is herein illustrated as embodied in a machine for lasting the
heel ends of shoes, but it is to be understood that, in its more
general aspects, it is not limited to heel-end lasting
machines."
[
Footnote 2/12]
The petitioner's application for certiorari clearly raises this
issue. One of the reasons we brought the case here was the
opportunity it would afford to consider the petitioner's contention
that the second McFeely
"merely aggregates old adjusting features with an old
combination . . . in conflict with the principles applied in such
cases as
Grinnell v. Johnson Co., 247 U. S.
426."
[
Footnote 2/13]
Grinnell Washing Mach. Co. v. Johnson Co., 247 U.
S. 426,
247 U. S. 434;
Office Specialty Mfg. Co. v. Fenton Mfg. Co., 174 U.
S. 492,
174 U. S. 498;
Altoona Theaters v. American Tri-Ergon Corp., 294 U.
S. 477,
294 U. S. 486;
American Road-Mach. Co. v. Pennock & Sharp Co.,
164 U. S. 26,
164 U. S.
41.
[
Footnote 2/14]
The following excerpt from the specifications of the earlier
McFeely is illustrative:
"In Fig. 18, the back stop is shown as formed on a rack bar
adjustable by a shaft 690 having a handle at the side of the
machine with a pawl in it to engage a locking ratchet 691 having
marked on it graduations indicating the proper adjustment for
different sizes. The ratchet can be adjusted to position the
graduations for different groups of sizes such as men's, women's or
children's sizes."
And the first claim sets out
"means for fixing the gripper in different positions of
adjustment both vertically and horizontally relatively to the last
spindle for lasts of different heights and lengths."
[
Footnote 2/15]
See discussion of the invalidity of this claim (No. 42)
at pp.
316 U. S.
377-378,
supra.
[
Footnote 2/16]
Rule No. 15, Rules of Practice, United States Patent Office.
[
Footnote 2/17]
See Report of Science Advisory Board, set out in TNEC
Hearings, Part 3, 1139, 1140.