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FINISH ENGG. CO. v. ZERPA INDUS.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


June 27, 1985

FINISH ENGINEERING COMPANY, INC.
v.
ZERPA INDUSTRIES, INC.

The opinion of the court was delivered by: WEBER

WEBER, D. J. June 27, 1985

 This is an action under the patent laws of the United States and under the Declaratory Judgment Act seeking a declaratory judgment on the invalidity of a patent issued to defendant and a preliminary and permanent injunction against the enforcement of the patent against an alleged infringement by the plaintiff. The patent involved is Patent No. 4,457,805, "Solvent Recovery Apparatus and Method" issued on the application of the Inventor Pastor, and assigned to the defendant Zerpa Industries, Inc. The patent was applied for on April 22, 1983 and during the pendency of the patent application the defendant notified plaintiff that it was infringing on the claims of the Pastor patent. Plaintiff filed a protest before the Patent Office but the patent was issued on July 3, 1984. This action was filed on the date the patent was issued.

 Plaintiff has filed a motion for partial summary judgment addressed to Claims 1 through 7 and Claim 14 of the Pastor patent. Plaintiff's motion asserts that the subject matter of the Pastor patent would have been obvious to one of ordinary skill in the art at the time the invention was made within the meaning of 35 U.S.C. § 103 of the Patent Law.

 The Pastor invention is described in the patent as follows:

 

[57]

 

ABSTRACT

 

Apparatus and method for recovering clean solvent from a mixture of solvent and contaminants. The apparatus included an open top tank mounted in a housing below a sink in which articles to be cleaned with solvent are to be placed. The sink has a tap through which solvent is directed so that the articles can be cleaned by hand in the sink itself. A disposable, plastic bag is receivable in the tank and the tank is closed by a cover. Contaminated solvent can flow from the sink, through the cover and in to the bag in the tank. Contaminated solvent in the bag is heated by heating a liquid surrounding the side wall of the tank and below the bottom of the tank so that the solvent in the bag will vaporize. A tube leading out of the tank carries solvent vapor into a heat exchanger where the vapor is condensed to form clean, liquid solvent, and the liquid solvent is collected in a reservoir. A pump is coupled to the reservoir for pumping liquid solvent to the tap at the sink. The bag can be disposed of after the solvent has been vaporized therefrom.

 The claims of the patent in issue here are set forth in the patent as follows (Column 4):

 

What is claimed is:

 

1. In a solvent recovery apparatus having means for providing a distilling mode and means for providing an emptying mode, the improvement comprising:

 

a tank;

 

means for heating the interior of said tank;

 

a plastic bag; and

 

means for mounting said plastic bag within said interior, said means for mounting being designed, positioned and dimensioned for forming a substantially liquid-tight barrier between contaminated solvent within said plastic bag and said means for heating during said distilling mode, and for enabling easy removal and disposal of said plastic bag when containing a substantial quantify of residue remaining from the evaporation of said contaminated solvent during the emptying mode.

 

2. Solvent recovery apparatus as set forth in claim 1, wherein said bag is a flexible, open top bag which conforms to said tank when filled with solvent.

 

3. Solvent recovery apparatus as set forth in claim 2, wherein the bag is formed from nylon.

 

4. Solvent recovery apparatus as set forth in claim 2, wherein said supporting means includes means engageable with the upper end of the bag for releasably holding it to the tank.

 

5. Solvent recovery apparatus as set forth in claim 4, wherein said holding means includes a resilient member.

 

6. Solvent recovery apparatus as set forth in claim 1, wherein said tank has a bottom wall, the bag being at least partially supported by the bottom wall when the bag is received in said tank.

 

7. Solvent recovery apparatus as set forth in claim 6, wherein said heating means is below said bottom wall of the tank.

 

* * * * * *

 

14. Solvent recovery apparatus as set forth in claim 6, wherein said tank has an open top, and including a cover for removably closing the open top of said tank.

 THE STANDARDS FOR DETERMINING OBVIOUSNESS

 The determination of obviousness under § 103 has been fully treated in Graham v. John Deere Co., 383 U.S. 1, 15 L. Ed. 2d 545, 86 S. Ct. 684 (1966). Three conditions are imposed, each of which must be met to satisfy the requirements of the statute:

 

While the ultimate question of patent validity is one of law, A.&P. Tea Co. v. Supermarket Corp., [340 U.S. 147, 95 L. Ed. 162, 71 S. Ct. 127 (1950), at 155], the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. (383 U.S. at 17-18).

 SCOPE AND CONTENT OF THE PRIOR ART Three references to the prior art are cited in the patent and were considered by the Examiner, among others, and plaintiff relies on these three in support of its claims of obviousness. They are: 2,794,570 6/1957 Downs 220/63 3,890,988 6/1975 Lee 134/10 4,323,429 4/1982 Hoover 202/83

19850627

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