Cody v. Aktiebolaget Flymo

• Decision Date: 19 June 1969
• Docket Number: Civ. A. No. 1654-67.
• Citation: 306 F. Supp. 728
• Parties: John F. CODY et al., Plaintiffs, v. AKTIEBOLAGET FLYMO et al., Defendants.
• Court: U.S. District Court — District of Columbia

306 F. Supp. 728

John F. CODY et al., Plaintiffs, v. AKTIEBOLAGET FLYMO et al., Defendants.

Civ. A. No. 1654-67.

United States District Court District of Columbia.

June 19, 1969.

Lawrence L. Colbert, Washington, D. C., for plaintiffs.

Laurence R. Brown, Washington, D. C., for defendants.

MEMORANDUM OPINION

GESELL, District Judge.

This matter comes before the Court on cross-motions for summary judgment. Plaintiffs (Cody) who are residents of various states sue residents of Sweden (Flymo) under 35 U.S.C. § 146 challenging a decision of the Board of Patent Interferences dated March 23, 1967. The Board rejected the claims of Cody, the junior party, which had been set up in interference with a patent awarded Flymo.

The invention here relates to a wheelless grass cutting machine having a commonly driven rotary cutter and air impelling means. The air impelling means produces a fluid force against the ground to support the machine on a cushion of air at a distance above the ground during the cutting operation. The ultimate object of the invention is a grass cutting machine without wheels which is held off the grass by air pressure generated in such fashion that the machine remains in proper posture for cutting without the air pressure flattening the grass to a point that makes cutting impractical.

Flymo had a filing date of March 16, 1961, and could not go behind that date. Cody's claims were based on a structure developed in 1960. The Board found that the machine built by Cody in 1960 included structure to support the counts of the interference and showed every feature of the invention as defined in the counts. The Board, however, denied Cody's claims because Cody had failed to prove by a preponderance of the evidence that the Cody machine was "acceptable" or "satisfactory" in operation. On reconsideration by the Board this view of the proofs was stated somewhat differently. The Board indicated there had not been an actual reduction to practice which was explained in the following terms:

No doubt the tests in April of 1960 and at later unproven dates were of an encouraging nature and may have justified a prediction that the invention would probably be successful if and when it could be put to practical use. However reduction to practice requires more than that. What is required is not a mere basis for prediction but an actual demonstration. See Elmore v. Schmitt, 47 CCPA 958; 757 O.G. 288; 278 F.2d 510; 125 U.S. P.Q. 653; 1960 C.D. 296 (300). P. 340

These determinations are erroneous in law and fact. The type of wheelless grass cutting machine involved in the interference was potentially a basic development of considerable consequence in the absence of prior art. The central issue before the Board was whether Cody, the junior party with the earlier conception date, had a machine of practical efficacy and utility. Callison v. Dean, 70 F.2d 55 (10th Cir. 1934); Burson v. Vogel, 29 App.D.C. 388 (1907). Efficiency cannot be questioned. The Cody machine cut grass satisfactorily under operating conditions although the width of the cut was not in...