Continental Connector Corp. v. Houston Fearless Corp.

• Decision Date: 21 September 1965
• Docket Number: No. 19262.,19262.
• Citation: 350 F.2d 183
• Parties: CONTINENTAL CONNECTOR CORPORATION, a corporation, Appellant, v. HOUSTON FEARLESS CORPORATION, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.2d 183 (1965)

CONTINENTAL CONNECTOR CORPORATION, a corporation, Appellant, v. HOUSTON FEARLESS CORPORATION, a corporation, Appellee.

No. 19262.

United States Court of Appeals Ninth Circuit.

August 5, 1965.

Rehearing Denied September 21, 1965.

Harold James, James & Franklin, New York City, Charles E. Wills, Harris, Keich, Russell & Kern, Los Angeles, Cal., for appellant.

Oscar A. Mellin, Carlisle M. Moore, Mellin, Hanscom & Hursh, San Francisco, Cal., John L. Nicholas, Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.

BARNES, Circuit Judge:

This is an action for patent infringement of Gilbert Patent No. 2,875,425. Jurisdiction below rests on 28 U.S.C. § 1338(a); here on 28 U.S.C. § 1291.

The patent was held invalid in the district court for lack of invention in that it represents a combination of admittedly old elements¹ with no unexpected and surprising results.

The patent is for a multiple electrical connector or socket designed to receive printed circuit panel boards (containing male insertable devices). The connector consists of a base receptacle and a plurality of spring contacts mounted therein, which make contact with the printed circuits.

The spring contact sought was one that had the following characteristics:

(a) Was of low "contact resistance," measured in ohms or voltage drop. The voltage drop is determined by pressure exerted by the contact, and the area of engagement. Both greater pressure, and greater area of engagement (up to a point) decrease voltage drop.

(b) gripped with strength sufficient to maintain the panel boards in place;

(c) withstood abuse (such as awkward insertion) resulting from imprecise alignment or excessive force;

(d) was wear resistant;

(e) accommodated various panel board thicknesses;

(f) accommodated panel board distortion, such a warpage, etc.;

(g) resisted shock and vibration;

(h) required minimal insertion force, with subsequent improved grasping force.

These were all important considerations for optimum operation, and were characteristics required by government specifications.

The problem was to combine strength with weakness. A weaker spring can withstand greater deflection without distortion than can a stiffer spring. A weaker spring will not cause as much wear as will a stiffer spring. A weaker spring has better vibration characteristics. A weaker spring better accommodates differing panel boards. But if too weak, a spring will drop voltage and not grip firmly enough.

Two principal types of springs are here considered, but the parties differ in their respective characterizations of these types. According to appellee, they are "a single-leaf spring contact" as compared with "a more flexible three-leaf spring contact shaped in the form of an S." (Finding 14, Tr. p. 37.) According to appellant, the two types are an ordinary "leaf spring," and a "compression spring." As we read the record (Ex. 27), appellant claims the patented device has the advantage of changing from a leaf spring to a compression spring with the insertion of the panel board. As appellant states:

"As the board moves from point A to point B on Ex. 28 the spring functions as a leaf-spring, distorting at the bend b, and the force resisting insertion of the panel board slowly increases. When the board reaches point B the action of the spring changes — it no longer functions as a leaf spring, but instead functions as a compression spring — a spring in which the forces exerted on the support and on the inserted board are axially opposed to one another."

The change from a "leaf-spring" to a "compression spring" allegedly results from the combination of (1) the shape of the spring and (2) the manner of mounting. (O.B. p. 14.)

The shape of the patented spring is "a strip comprising a plurality of sections connected by integral reverse bends to comprise a bellows-shaped spring unit."²

The manner of mounting is described as:

"(b) `the innermost of said sections being lodged against the inside wall of a pocket\';

"(c) `anchored at one end to the receptacle at a point remote from the open end of said trough and extending toward said open trough top\';

"(d) `the outermost of said sections defining the contact which is engageable by a mating contact area of the plug assembly and comprising a length of said strip the free terminal portion of which lies adjacent to said open trough top\';

"(e) `the surface of said strip length directed toward the interior of said trough being flat\';

"(f) `the said bellows-shaped spring unit being contact active as a compression spring\';

"(f) (sic) `whereby a full surface engagement is obtained between said contact section of the unit and the mating contact area of the plug assembly.\'"

(O.B. p. 15.)

The unique feature claimed by appellant for the patented article is the simultaneous achievement of:

(1) Wide surface contact with terminal strips on the board;

(2) sufficient gripping on the board to hold it in place;

(3) an effective electrical connection between the terminal strip on the board and the terminal by projecting down from the connector; and

(4) accommodation of boards of widely varying thicknesses.

Appellee urges (I) that appellant merely took its old or prior commercial connector body (of Ex. 37) and replaced the single leaf spring (which was not sufficiently resilient and would "set" when overstressed) with an old (in the art) S-shaped spring contact which can flex a greater distance without being overstressed; (II) that even appellant's expert admitted that once one decided to use an S-shaped spring any engineer or mechanic could design the spring to effect any pressures or degree of movement that he wished by the application of his mechanical skill within the capabilities of the spring. (Tr. pp. 221, 225.)³ (III) that the art related to printed circuit connectors is relatively new, beginning in about 1951; (IV) that the fact S-shaped springs had not been used in printed circuit connectors prior to the birth of the art is of no consequence since others were known to prior art in other types of connectors "since at least 1931"; (V) that at least seven examples of use of S-shaped springs in connectors existed in the prior art (including three foreign patents).

The court, in passing on the matter in dispute, made detailed findings, which appear in the margin.⁴

To summarize — the court found the newly patented device produced a questionable superiority in the various areas claimed which was "a mere matter of degree, and does not constitute a new or surprising function or result." (Finding 31.)

The real question before us in this case is whether the findings are supported by the evidence. (Alleged Errors I and III.) Appellant urges that the findings are not so supported because:

(1) The trade recognizes the marked superiority of the patented construction.

This is arguable, but the evidence is not conclusive, nor does it appear without dispute.

(a) At the time of trial, competing prior art connectors were still being sold. (Tr. pp. 602-11);

(b) Military Specification C-21097 (Ex. 52) issued early in 1958 requiring S-shaped springs was revised (Ex. 57) in 1959 so as not to require S-shaped springs.⁵

(c) Sales at higher prices is some evidence of superiority. But we need not agree with appellee\'s suggestion that the purchasing agent is likely, through an average lethargy, to find that price per se is not controlling.

(2) The patented connector has superseded the prior art connectors.

This again is true, to a degree, but not so much as to render the court's findings without any substantial evidentiary support.⁶

We hold that findings of fact 30 and 42 are sufficiently supported by the evidence.⁷

(3) The findings "are merely a one-sided, incomplete, inaccurate document prepared by counsel for defendant with the end in view of supporting only his side of the case." (O.B. p. 4.)

Little else is ever submitted to a district court judge trying the case, no matter which side wins, and this is particularly true in most patent cases.⁸ Of course, this never excuses an exercise by the trial judge of his duty to carefully consider, weigh and determine the accuracy of the proposed findings, and whether they are supported by the evidence in the record before him.

We assume the trial judge did just that. Appellee states that the court "received and made changes and corrections thereto" (i. e., to the findings). This is factually correct, but the court actually made one notation with respect to the dismissal of the charge as to one patent, one possible correction as to substance (p. 39, l. 13), and one as to form (separating the Finding and Judgment). All of these actions of the trial judge appear in the proposed findings. (Clk's Tr. pp. 32-53.) This limited revision of the proposed findings may indicate that appellee's counsel drew findings so precise and accurate that they needed little change or correction, as well as it might indicate that the findings were blindly followed by the trial judge. It certainly does not prove that the trial judge failed to do his duty to carefully examine the proposed findings, and correct and modify them if necessary.

(4) Appellant charges that the court below expressed an attitude that it "needed no expert testimony" (O.B. p. 55, n. 107, with transcript references cited).

The court below insisted that common sense in evaluating the models of patents was not out of place (Tr. p. 552, ll. 6-9). Yet the court permitted the introduction of expert testimony regarding the attributes of the various models (p. 187, ll. 6 to 22); and listened to all such testimony in the expressed hope it might enlighten him (Tr. pp. 745-46).

No trial judge of any experience has failed at one time or another to figuratively throw up his hands in dismay as he listens to diametrically opposed "expert testimony," as produced by the two sides. An expert's testimony is no better than the conviction it...