Cee-Bee Chemical Co. v. Delco Chemicals, 15893.
| Decision Date | 03 February 1959 |
| Docket Number | No. 15893.,15893. |
| Citation | 263 F.2d 150 |
| Parties | CEE-BEE CHEMICAL CO., Inc., a corporation, Appellant, v. DELCO CHEMICALS, Inc., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
C. G. Stratton, Louis M. Welsh, Los Angeles, Cal., for appellant.
Fulwider, Mattingly & Huntley, John M. Lee, Walter P. Huntley, Los Angeles, Cal., Weyl & Weyl, John A. Weyl, Hollywood, Cal., for appellee.
Before HAMLEY, HAMLIN, and JERTBERG, Circuit Judges.
Delco Chemicals, Inc., brought this action to obtain a judicial declaration that a certain patent is invalid and not infringed. Cee-Bee Chemical Co., Inc., the owner of the patent and defendant in this suit, denied the allegations of the complaint. Defendant also counterclaimed for damages in the sum of $25,000, alleging infringement of the patent in question.
At a pretrial conference the court invited the plaintiff to file a motion for a summary judgment. Such a motion was filed, and was considered in the light of the pleadings, various affidavits and counteraffidavits, the "file wrapper," and copies of various prior-art patents. Acting favorably on the motion, the court filed an opinion which is reported in 157 F.Supp. 583. Findings of fact, conclusions of law, and a judgment favorable to plaintiff were then entered.
Defendant appeals, contending that there were one or more genuine issues as to material facts, and that it was therefore error to grant relief by way of summary judgment.1
The patent in suit — Whitcomb et al., Patent No. 2,653,116 — describes a method of removing synthetic rubber sealing material from the inside of airplane fuel tanks. As typified by claims 1, 2, and 3, the patent calls for a spray apparatus to be inserted in the fuel tank, which is then sealed. The process then involves three steps: "(1) Spraying volatile solvent material against the sealant in the aircraft fuel tank; (2) applying less volatile, water-rinsable, solvent-miscible spray to the solvent on the sealant, in order to render the solvent rinsable by water; and (3) applying water under higher pressure to wash down the drain the loosened pieces of sealant."
The claimed grounds of invalidity of the patent, as stated in the motion for summary judgment, are:
The trial court found merit in both of these contentions. It held that the Whitcomb patent had been anticipated by prior-art patents which were not cited or considered by the patent office. It further held that, even if it be said that there appears no "strict anticipation" of the patent in suit (in the sense that every element and feature of the claim is found in a single prior-art reference) and that the method involves some novelty, it nonetheless lacks invention.
If the conclusions reached by the trial court required it to first resolve a genuine issue as to a material fact, the case should not have been disposed of on a motion for a summary judgment. Appellant argues that in reaching the indicated conclusions the court resolved at least six genuine issues of material fact.
One such issue, according to appellant, was whether the prior-art patents anticipated the second step of the Whitcomb process. As stated in claim 2, this second step, immediately following the spraying of volatile solvent inside the tank and its drainage, was to render "the solvent water-rinsable by applying a substantially less volatile, water-rinsable, solvent miscible spray to the solvent on the sealant. * * *" In claim 1 this second step was more briefly described as "applying a water-rinsable, emulsifying spray to the sealant. * * *"
In its findings of fact the court described the spray used in this second step as a "soapy" spray. It also found that "United States Letters Patent to Foster, No. 1,141,243, cited by the Patent Office against the application for the patent in suit, discloses that it is old to apply soapy or water-rinsable emulsifying solution to any surface being cleaned." The claims of the Foster patent refer to the use of a "solution of soap and water," a "solution of water and soap or soap-like material," and a "solution of water and detergent material."2
Appellant contends that in characterizing the solution used in the second step of the Whitcomb process as a "soapy...
To continue reading
Request your trial
-
Tee-Pak, Inc. v. St. Regis Paper Company
...are not anticipatory within the meaning of 35 U.S.C. § 102(b). Ballantyne, supra. See also Cee-Bee Chemical Co., Inc. v. Delco Chemicals, Inc., 263 F.2d 150, 153 (9th Cir. 1958). In so holding, we do not make any conclusions, express or implied, as to the obviousness of the claimed inventio......
-
Swofford v. B & W, INC.
...Cir. 1964, 332 F.2d 406, 410 ("it may be said that invention is synonymous with unobviousness"). 8 E. g., Cee-Bee Chemical Co. v. Delco Chemicals, Inc., 9 Cir. 1958, 263 F.2d 150, 153. 9 E. g., Trico Products Corp. v. Delman Corp., 8 Cir. 1950, 180 F.2d 529, 530. 10 E. g., Hycon Mfg. Co. v.......
-
Misani v. Ortho Pharmaceutical Corp., A--868
...and whether that discovery is novel or anticipated by the prior art. Armour & Co., ubi cit., supra; Cee-Bee Chem. Co. v. Delco Chemicals, 263 F.2d 150, 153 (9 Cir. 1958); Bergman v. Aluminum Lock Shingle Corp. of America, supra, 251 F.2d, at pp. 809--813 (Pope, J., concurring). Those are pe......
-
Indiana General Corp. v. Lockheed Aircraft Corp.
...the meaning of 35 U.S.C. 102(b). We do not have involved here, as in the line of cases illustrated by Cee-Bee Chemical Co. v. Delco Chemicals, Inc. (9 Cir., 1958), 263 F.2d 150, the question of what the prior art was and what the patent did to improve it. Nor do we have the question of whet......