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September 8, 1952


The opinion of the court was delivered by: Kirkpatrick, Chief Judge.

This is an action at law for damages for infringement of U.S. Patent 2,441,350 to Fischer, for a metering tube for use in a rotameter (Claim 1) and for the rotameter itself (Claims 2 and 3). The case was tried to the Court and a jury. It was stipulated by counsel that the verdict was to be taken on three issues only, namely, "whether the patent involves invention, whether Mr. Fischer was the first and original inventor, and damages in the event of a verdict for the plaintiff", all other issues of fact and law to be determined by the Court without a jury.

The jury found a verdict for the plaintiff and awarded damages in the amount of $14,177.36. The defendant now moves to set aside the verdict and for judgment under Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C. and upon the entire record including the issues reserved for the Court.

It may be taken as the law, until the Supreme Court rules otherwise, that the question of invention is one of fact. Ryan Distributing Corp. v. Caley, 3 Cir., 147 F.2d 138. In that case and in the very recent one of Packwood v. Briggs & Stratton Corp., 3 Cir., 195 F.2d 971, the Court of Appeals for the Third Circuit had occasion to consider the power of the Court to direct or set aside verdicts in patent cases. In the Ryan Distributing case, the Court stated [147 F.2d 140], as the rule for civil cases, that "a verdict will normally be directed where both the facts and the inferences to be drawn therefrom, as supported by the overwhelming weight of the evidence, point so strongly in favor of one party or the other that the court feels reasonable men could not possibly come to a contrary conclusion", and went on to say that in a patent case perhaps the judge's power goes further than this minimum, but found it unnecessary to say how much further. In the Packwood case [195 F.2d 973], the Court defined the judge's power in this respect, saying that judgment n.o.v. might be entered where "the court's application of defining principles reveals `a clear-cut case of lack of invention'", and where "consistent with controlling standards, the device in suit plainly could not embody invention." These opinions rather strongly imply that in a patent case it would be the Court's duty to set aside a verdict of invention even though there might be some evidence to support it, if such evidence is slight and the evidence against it compelling. However, the present case does not call for ascertainment of the outside limits of the judge's power in a patent case. Certainly, it is no less than in other civil jury trials and the ordinary rule applies, namely, that where all the evidence, taken in its most favorable light for the plaintiff, with all disputed fact questions and inferences resolved in his favor, leaves the plaintiff's case wholly unproved a verdict must be directed. The present case is, I think, such a case.

Each element functions in the patented assembly in the same way in which it did in the prior art combinations in which it is to be found — the tube as in all tapered tube rotameters, the float as in the Cox '849 patent and several others, and the narrow convex glass ribs providing a point guide for the float exactly as in the Feldkamp patent 1,525,985.

The tube shown in the Cox '800 patent is in all respects the tube of the patent in suit, except that its guiding ribs are wide and have concave guiding surfaces, conforming to the circular shape of the float. What the plaintiff did was to take a Cox tube and remodel it so that instead of rather wide concave surfaces, the float would be guided by the points at the top of comparatively narrow convex ribs, which took the place of Cox's.*fn1 These were in all respects the ribs or bead guides of Feldkamp and several other earlier patents.

Having introduced its patent into evidence, together with an explanation of its place in the art accompanied by a court room demonstration, the plaintiff rested. The defendant then introduced evidence consisting of prior art patents and devices and expert testimony all of which, if accepted, would negative invention and require the direction of a verdict, even against the normal presumption of validity arising from the grant of the patent. It then became incumbent upon the plaintiff to meet this testimony.

The plaintiff presented testimony to the effect that the patent produced new results of great practical and commercial value by which, the plaintiff contended, the whole group of old elements exceeded the sum of its parts, added to the sum of useful knowledge, and gave the character of invention to the assembly. See Great Atlantic & Pacific Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 95 L.Ed. 162. This evidence consisted principally, although not entirely, of the testimony of the plaintiff's expert witness, Platt.

One of the new results which Mr. Platt found to have been achieved by the patent was the greater freedom of up and down movement of the float by reason of the use of line guides as opposed to the wider concave guides of Cox. This he characterized as "not a very strong point" and, evidently accepting this estimate, the plaintiff has made very little of it.

Another was the fact that the mandrel upon which Cox's tubes were made was a rather difficult machine job whereas, with the Fischer tubes, the mandrel was comparatively easy to machine, with the result that the Cox tubes would require a great deal more care in manufacture to attain the same accuracy as the Fischer tubes. He did not say, however, that the Cox tubes, as manufactured, were not as accurate as Fischer's within a certain range. In fact, he agreed that they were.

There is no doubt that the Fischer tube is easier and simpler to make than the Cox tube, not only because the machining of the mandrel upon which it is formed is a much simpler job but also because it is easier to draw or press the glass down into the grooves of the mandrel used in making Fischer's instrument than into the more pronounced recesses of the mandrel on which the Cox tubes are formed. The result is that the instruments can be manufactured comparatively cheaply while still maintaining a good degree of accuracy. All this makes for salability to industry. All authorities agree, however, that ease and cheapness of manufacture are not ordinarily the kind of new result upon which invention can be predicated. It is, of course, proper evidence to be considered in evaluating the usefulness of the patent in its field.

The greater viscosity immunity range of the Fischer instrument the witness attributed entirely to the substitution of the smaller convex ribs for the comparatively wide concave-surfaced ribs of the Cox patent, and he explained how the larger volume of liquid which Fischer's ribs allowed to act upon the float resulted in reducing the effect of viscosity changes, supporting his conclusions by references to the principles of hydrodynamics.

One cannot read this testimony of Mr. Platt, upon which the plaintiff chiefly bases its case, without being convinced that the point at which, in his opinion, invention really was to be found is nothing more or less than the reducing of the bulk of the guide means, so that they would occupy a smaller cross section of the tube and allow a less obstructed passage around the float for the liquid impinging upon it. That, he said was what increased the "turbulent" flow, which increase was what was needed to offset the effect of laminar flow and so help to reduce viscosity sensitivity. In other words, the point-guide feature of the ribs had little or nothing to do with it and their convexity was important solely because that shape left more space in the tube for the liquid. He did not stress the fact that ...

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