Howes v. Great Lakes Press Corp.
| Decision Date | 12 May 1982 |
| Docket Number | D,No. 587,No. 81-7648,587,81-7648 |
| Citation | 679 F.2d 1023 |
| Parties | Bruce HOWES, Plaintiff-Appellant, v. The GREAT LAKES PRESS CORPORATION, Holt Manufacturing Company, and DeVries Brothers, Defendants-Appellees. ocket |
| Court | U.S. Court of Appeals — Second Circuit |
Jerry S. Cohen, Washington, D. C. (Michael D. Hausfeld, Kohn, Milstein & Cohen, Washington, D. C., Robert Kaplan, Kaplan, Kilsheimer & Foley, New York City, of counsel), for plaintiff-appellant.
James M. Rhodes, Jr., New York City (John M. Calimafde, Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, of counsel), for defendants-appellees.
Before MESKILL, CARDAMONE and PIERCE, Circuit Judges.
The issue raised on this appeal is whether the method devised by appellant, Bruce Howes, which makes possible the faithful transfer of color art work to fabric by means of treated heat transfer paper is a process which is patentable under 35 U.S.C. § 101. 1 We believe that it is and reverse the order of the district court which determined as a matter of law that it was not.
Prior State of the Art
We sketch briefly the state of the art with respect to printing on fabric, before appellant developed the process which is the subject of this litigation. Prior to 1975 offset printers utilizing four-color reproduction techniques serviced one major market with the reproduction of art work to paper through camera technique. These techniques could produce for example, magazine covers in color and advertisements for perfume or cosmetics.
To perform this work offset four-color printers had developed standard procedures. Obtaining a continuous tone negative was the first step in the preparation of lithographic plates in the printing process. In order to produce an appropriate negative, the printer went through a mental process to determine the desired strength of colors. He employed his own judgment and experience to decide upon "aim points" or "densities" he hoped to obtain in the negative so as to attain the proper color. The object to be printed (called "copy") was first photographed using a lithographic camera. This camera breaks up the tone values of a photograph into tiny dot formations during exposure by interposing a half-tone screen between the "copy" and the film. Where color reproductions were required, four separate negatives had to be made-one each for the three basic colors of red, yellow and blue, and one for black.
In making these negatives various color correcting techniques were employed so that the final print would be an accurate reproduction of the "copy". Part of the regular procedure was to use a standard "gray scale" to determine the appropriate dot patterns and sizes which would correspond to the tonal ranges or qualities needed in preparing screened positives.
Obtaining positives is the second step in the preparation of the lithographic plates. Because printing is an inexact art, there had also been developed standard color correction techniques for use with the positives. These included etching, contacting and masking. Using these conventional techniques, dots-which are the color carriers in this form of offset printing (and which the cameraman captures on the negatives)-could be modified within a range of approximately 20 percent upward or downward.
These standards recited had evolved over a period of time and contemplated the use of normal printing inks. They were in world-wide use by printers of ordinary skill prior to 1975 in preparing standard four-color process separations to be used in offset printing.
At that time there existed several methods of transferring ink to cloth. In roller printing the cloth was fed onto a roller and pressed into direct contact with one or more engraved rollers. The engraved rollers contained a dye or colored ink which was absorbed by the cloth to produce the desired image. Screen printing was a stencil process whereby ink was forced through a mesh to produce the desired image. Other methods existed also, but as with roller printing and screen printing, problems such as muddied images and lack of purity were encountered.
The transfer printing method, in use prior to the patent, employed a transfer sheet which was made by using a gravure printing press. This sheet was placed against the fabric, transferring the image from the sheet to the material. Gravure printing used plates that were etched to various sizes and depths creating "wells" which were filled with ink. The transfer paper was placed against the "wells" and the paper pulled the ink from the well. The process resulted in a heavy laydown of ink and lacked quality control. The final transfer to fabric could look no better than the inked paper.
Additional problems in cloth printing were created by the inks themselves. These prior methods failed to consider the expansion characteristics of the inks and the limitations caused by impurities in them.
Gravure printing, as noted, uses engraved plates; lithography uses flat ones. In lithography the areas of the plates which eventually will be inked are treated with an oil or grease based substance. The rest of the surface is wetted with water. When ink is applied only those areas treated with oil or grease will accept it; the watered areas reject the ink, since oil and water do not mix.
In an offset lithographic printing press the plate is attached to a round cylinder which is then rotated. Contact is first made with a water bath, wetting all areas of the plate except those which have previously been treated. Further rotation brings the plate into contact with the ink. The portions of the plate which were treated with grease accept the ink, while areas wet with water do not. The inked plate is then brought into contact with a rubber roller which picks up the ink from the plate. Transfer paper then contacts the rubber roller, and the design is transferred from the roller to the paper. Lithographic printing was in wide use prior to 1975, but not for printing on fabrics.
Early in the 1970's a new type of dye was developed. While conventional liquid printing inks tended to blot when applied to cloth, this so-called sublimation or heat-transfer dye could print multicolored images while in a dry state and was uniquely suitable for printing on fabrics. An inherent physical characteristic of this new dye was its propensity to expand upon vaporizing. Thus, the dots of color used to transfer the image from paper to fabric were of larger size on the cloth fabric than on the paper. Where adjacent colors were different, the overlapping dots made for a muddy image. Naturally such results were not commercially viable.
It was at this point that appellant Howes and his co-patentee, Holland, 2 developed the process which is the subject of this lawsuit. They filed an application for a patent. A year and a half later they were issued United States Patent No. 3,966,396.
The principal object of the process was to print on textiles in precise four-color patterns with fine detail. The process first involved photographically reducing an original pattern into four separate color negatives. 3 In order to prepare proper negatives the inventors developed new aim points or densities which compensated for the expansion characteristics of the dye-inks. The degree of expansion of the dye-inks when subjected to heat, which was first hypothesized by Howes and confirmed later in laboratory experiments by Holland, is 500 percent in yellow, 300 percent in red and blue, and 200 percent in black. 4 Prior to this discovery of what is concededly an inherent characteristic of the dye-inks, the greatest expansion characteristic encountered in ordinary printing inks was five percent. Theorizing that the way to compensate for the substantial expansion was to reduce density readings, the co-inventors ultimately decreased the dot size by 80 percent in yellow, 60 percent in red and blue, and 50 percent in black. They also developed a new gray scale which had only one-half the range of the standard gray scale then in use.
Having devised a method in the photographic process to reduce dot size accurately, it was also necessary to find a method for successfully printing colors on fabric. The method Howes employed to obtain this result was offset lithography 5 which prints a pattern on a transfer medium, in this case heat-transfer paper. Later, using a rotary heat press, the treated paper imprinted the pattern onto a fabric through the application of heat and pressure. Instead of spreading laterally on the surface like spilled water on a table-top, the dye goes into a fabric like shrapnel, exploding and penetrating into the fibers. During the application of heat the subliminal dye-inks change into a gaseous state, i.e., vaporize, and later condense in the fibers. The patent itself, insofar as the printing is concerned sets forth optimum temperature, time and pressure to be used for different colors, as well as press procedure. 6
A number of highly useful advantages accrue from this process. The most notable is that exact facsimiles can be reproduced in multiple colors efficiently and economically. Other advantages include removal of contaminants from the dye-ink prior to its reaching the engraving plates, overcoming the limitation in ink pigmentation by introducing compensating ink and the availability of quality control without interrupting the printing operation. The result is a textile printed in fine and clear detail, rich in color. No method in use previously had produced such results.
On June 29, 1976 Howes commenced the instant action against Great Lakes Press Corporation (Great Lakes) for infringement of the patent. Great Lakes answered by denying the infringement and by alleging that the patent was invalid under 35 U.S.C. §§ 102 (lack of novelty), 103 (obviousness), and 112 (insufficient disclosure in...
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