285 F.2d 911 (6th Cir. 1960), 13890, Aluminum Co. of America v. Sperry Products, Inc.

Docket Nº:13890.
Citation:285 F.2d 911, 127 U.S.P.Q. 394
Party Name:ALUMINUM COMPANY OF AMERICA, Electro Circuits, Inc., and Curtiss-Wright Corporation, Defendants-Appellants, v. SPERRY PRODUCTS, INC., Floyd A. Firestone and United Aircraft Corporation, Plaintiffs-Appellees.
Case Date:November 22, 1960
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 911

285 F.2d 911 (6th Cir. 1960)

127 U.S.P.Q. 394

ALUMINUM COMPANY OF AMERICA, Electro Circuits, Inc., and Curtiss-Wright Corporation, Defendants-Appellants,

v.

SPERRY PRODUCTS, INC., Floyd A. Firestone and United Aircraft Corporation, Plaintiffs-Appellees.

No. 13890.

United States Court of Appeals, Sixth Circuit.

Nov. 22, 1960

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[Copyrighted Material Omitted]

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Thomas F. Doran, Meyer, Baldwin, Doran & Young, Cleveland, Ohio, and Carlton Hill and Van Metre Lund of Hill, Sherman, Meroni, Gross & Simpson, Chicago, Ill., and William L. Hanaway, Stoddard B. Colby, Egon R. Gerard, Breed, Abbott & Morgan, New York City, on the brief for Aluminum Co. of America and Curtiss-Wright Corp.

James H. Tilberry, Williams, Tilberry & Golrick, Cleveland, Ohio, on the brief for Electro Circuits, Inc.

J. Philip Anderegg and R. Morton Adams, Pennie, Edmonds, Morton, Barrows & Taylor, New York City, for appellee.

Albert R. Teare, Teare, Kramer, Sturges & Fetzer, [*] Cleveland, Ohio, on the brief for Floyd A. Firestone.

Ely, Pearne & Gordon, Cleveland, Ohio, and R. Morton Adams, J. Philip Anderegg, John T. Farley, Pennie, Edmonds, Morton, Barrows & Taylor, New York City, on the brief for Sperry Products.

Before McALLISTER, Chief Judge, and MILLER and CECIL, Circuit Judges.

CECIL, Circuit Judge.

This is an appeal from the District Court of the Eastern Division of the Northern District of Ohio. It involves infringement and validity of patents and a claim for damages and restraining orders asserted by counterclaim, for alleged misuse of patents through acts, contracts, combinations, conspiracies and monopolies all as set forth in the pleadings. The questions presented will be taken up and discussed seriatim.

There are four patents in suit: Nos. 2, 280, 226, 2, 398, 701, 2, 467, 301 and 2, 592, 134. For convenience, they are referred to as patent numbers 1, 2, 3 and 4, respectively. The dates of the applications for and the issuance of these patents are as follows:

Application Issued

No. 1 May 27, 1940 April 21, 1942

No. 2 June 29, 1942 April 16, 1946

No. 3 July 23, 1945 April 12, 1949

No. 4 June 28, 1945 April 8, 1952

The plaintiffs and appellees are the following: Floyd A. Firestone, the inventor of all four patents and the owner of the legal title to No. 1; Sperry Products, Inc., a New York corporation, the exclusive licensee under patents Nos. 1 and 2, and the owner of patents 3 and 4; and United Aircraft Corporation, a Delaware corporation, and the owner of patent No. 2. This latter party was brought into the action involuntarily.

Aluminum Company of America, a Pennsylvania corporation, hereinafter

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called 'Alcoa' is one of the defendants. It has a place of business in Cleveland, Chio, where it used the accused device known as the 'Immerscope.' Electro Circuits, Inc., a California corporation, is another defendant and is the manufacturer of the Immerscope. Having no place of business in the jurisdiction of the court, it became a party by voluntarily filing an answer and counterclaim. Curtiss-Wright Corporation, a Delaware corporation, became a defendant on its own motion for intervention under order of the court dated February 10, 1959. Subsequent to October 17, 1955, it had manufactured certain Immerscopes under license from Electro Circuits. It is financing this litigation due to the inability of Electro Circuits to do so. All of these defendants are appellants on this appeal.

The parties will be referred to as plaintiffs and defendants, as they were in the trial court.

We will take up first the question of the validity of patent No. 1. (pz 1, 849a)

The claimed invention involves the principles of electronics and consists of the following elements or component parts: A device consisting of pulse oscillator, high frequency oscillator and modulator, to generate voltage trains, each containing one or more electric oscillations at supersonic frequency; a piezoelectric crystal to which the electric oscillations are applied and which crystal is acoustically coupled to the workpiece to be inspected via a medium (a film of oil or wax) having good conductive properties for ultrasonic vibrations; an amplifier, electrically connected to the crystal and capable of amplifying the weak electric oscillations produced in the crystal, by echo waves reflected from discontinuities within the workpiece; a linear sweep circuit synchronized with the generation of the voltage trains applied to the crystal and a cathode ray tube whose beam is deflected by the linear sweep.

These components are all defined in the specifications of the patent.

The function of this apparatus as disclosed by the patent is for the inspection, exploration, and measurement of a solid part by means of supersonic vibration waves.

The operation of the apparatus consisting of these components may be explained in non-technical language as follows: An electric current is introduced into the pulse oscillator which causes it to emit rhythmic pulsations of current. Simultaneously an electric current is transmitted to a high frequency oscillator which is converted into a continuous high frequency current.

The output of these two components is conducted to the modulator which serves as an electronic valve. The rhythmic pulsations from the pulse oscillator open the valve for the duration of each pulse. While open, the high frequency current passes through to the sending crystal. From the modulator then comes a rhythmic series of high frequency pulses, referred to as wave trains, which are transmitted to the sending crystal, causing it to produce mechanical vibrations at the same frequency as the current sent to it.

The high frequency mechanical vibrations or sound waves from the vibrating crystal are transmitted through a medium of oil or wax on the crystal into the solid part or workpiece being inspected.

When the sound waves strike a flaw or the end of the workpiece, referred to as a discontinuity, they are reflected as an echo back through the workpiece to the point at or near which they entered. This echo is picked up by the receiving crystal, which may be the same one as the sending crystal or a different one, and the vibrations from the echo cause the receiving crystal to generate a small electric current. The current flowing from the receiving crystal is then increased in strength by an amplifier and conducted to a catholde ray oscilloscope, which is synchronized with the pulse of the oscillator, through a linear-sweep circuit.

When an electrical wave train is sent to the sending crystal, the linear-sweep circuit starts a spot of light moving horizontally across the fluorescent screen

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of the cathode ray tube at a constant speed.

The initial sound wave train deflects the spot. This deflection is referred to as a 'pip.' The spot then continues along its original path at the same speed, until the amplified current from the receiving crystal again deflects it, indicating that an echo has returned from a discontinuity in the workpiece. If the discontinuity is a flaw, the pip will occur closer to the original pip on the oscilloscope screen than that caused by a reflection from the end of the workpiece. The distance between the deflections created by the original pulse and the echo indicate the distance the sound waves have traveled, because this distance is correlated to the time it takes the sound waves to go out from the sending crystal and be reflected back to the receiving crystal.

The same process occurs when the discontinuity is the end of the workpiece, but this deflection will be farther from the original pip due to the increased time of travel.

Thus a graphic illustration of the initial sound waves, those reflected from the opposite end of the workpiece and those reflected from any intervening flaws, is made to appear on the oscilloscope screen. The whole process takes place with great rapidity, perhaps 100 times per second, and because of persistence of vision, the light spot on the oscilloscope screen appears as a stationary, continuous line.

Two basic questions challenging the validity of patent No. 1, which were argued by counsel for the defendants, in the trial court and determined by the trial judge, are here presented for review. These questions are 1, Floyd A. Firestone, the inventor, made a misrepresentation to the patent office in securing the allowance of the patent and 2, the claims in suit 2, 3, 4, 10 and 11 are lacking in invention over prior art and were anticipated by such prior art.

The defendants now raise, for the first time, questions concerning the sufficiency with which the structure or combination is defined in the claims in suit. This Court is not bound to consider such questions. 'It is the usual rule that we will not give consideration to issues not raised below.' Doll v. Glenn, 6 Cir., 231 F.2d 186, 190; Cold Metal Process Co. et al. v. McLouth Steel Corporation, 6 Cir., 170 F.2d 369, 380; Helvering v. Wood, 309 U.S. 344, 349, 60 S.Ct. 551, 84 L.Ed. 796.

In Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 722, 85 L.Ed. 1037, the court said: 'These decisions and others like them, while recognizing the desirability and existence of a general practice under which appellate courts confine themselves to the issues raised below, nevertheless do not lose sight of the fact that such appellate practice should not be applied where the obvious result would be a plain miscarriage of justice.'

No such result would obtain here. The validity of patent No. 1 can be determined by a consideration of the two basic questions mentioned above.

Further, we are of the opinion that the claims in suit, so far as sufficiency of statement is concerned, meet the requirements of the statute. Section 112 of the patent act, which became effective January 1, 1953, provides, in part, 'An element in a claim for combination may be expressed as a...

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