Fairchild v. Poe

• Decision Date: 27 October 1958
• Docket Number: No. 17063.,17063.
• Citation: 259 F.2d 329
• Parties: Bufkin R. FAIRCHILD, Appellant, v. Jack A. POE, d/b/a Poe Roof Co., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

259 F.2d 329 (1958)

Bufkin R. FAIRCHILD, Appellant, v. Jack A. POE, d/b/a Poe Roof Co., Appellee.

No. 17063.

United States Court of Appeals Fifth Circuit.

September 22, 1958.

Rehearing Denied October 27, 1958.

Marion E. Sibley, Miami Beach, Fla., Irving M. Tullar, Washington, D. C., Jack Lawrence King, Miami Beach, Fla., Jack M. Turner, South Miami, Fla., Sibley, Grusmark, Barkdull & King, Miami, Beach, Fla., for appellant.

Robert L. Achor, Miami, Fla., Eaton & Achor, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is a patent infringement suit. The district court found that there was anticipation and public use and sale of the process embodied in the plaintiff's Fairchild Patent No. 2,768,101. The patent was therefore null and void. The court held that the defendant Poe, doing business as Poe Roof Company, was not guilty of an infringement. We affirm the judgment.

The appeal presents the question: Was there prior anticipation and public use and sale of the process covered by the Fairchild Patent?

The plaintiff's patent covers a process for creating a knife-like cutting action from a high velocity, low volume water spray to remove incrustation from building surfaces. Fairchild characterized this as a "linear line fan spread spray". In plain language, the process involves nothing more than the use of ordinary tap water under high pressure (from 600 to 1500 pounds per square inch) for cleaning buildings. A somewhat similar effect can be obtained by partially covering the nozzle of a garden hose.

A look at the file wrapper history of the Fairchild Patent and an analysis of the record convince us that the district court did not err on the question of anticipation. The plaintiff's first application for letters patent was made in March, 1953. This claim was rejected for lack of invention in view of the Sloan Patent. The original patent application was amended, and on January 18, 1955, the claim was rejected because of the Evans Patent. The application was amended a second time, and on July 20, 1955, the claim was again rejected; this time because of the Edwards Patent. On the file wrapper, the Patent Office stated, "this action is made final". Sloan's patent covered a process for cleaning a cement surface with a high pressure water spray. The Edwards Patent was for removing bark from logs with high pressure water spray. The Evans Patent was for cleaning scales from steel surfaces with a high pressure water spray. The plaintiff filed a second application on October 14, 1955. After a series of amendments and rejections, the second application was finally accepted because of the amendment that added the words "linear line" in front of the phrase "fan spread spray".

The file wrapper history of the plaintiff's patent, and the record, give us a clear picture of the prior state of the art. James Johnson, of Spraying Systems Company, testified that his organization had been using a nozzle that produced a fan shaped linear spread since 1948. The spray was used for "tearing scales off the steel sheet". Harry Tane, who had been in the business of cleaning buildings for about ten years, testified that his company used a hydro-pneumatic process, which is "a system of forced water pressure through a nozzle directed at incrustations, wherever they happen to be, and used against the incrustations to remove them". The district court found that the process embodied in the Fairchild Patent had been sold, anticipated, and in use for more than one year prior to the plaintiff's first application for patent.

In patent cases, as in all civil suits, we are governed in our review of cases by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Hazeltine Research v. Admiral Corp., 7 Cir., 1950, 183 F.2d 953, certiorari denied 340 U.S. 896, 71 S.Ct. 239, 95 L.Ed. 650. The findings of the trial court are not clearly erroneous; on the contrary, we agree with the trial court and affirm its judgment.

Under 35 U.S.C.A. § 102(b), an applicant is not entitled to a patent if the invention is in public use more than one year prior to the application date. Of course, there is a presumption of validity which attends the grant of letters patent by the Patent Office, but this presumption may be overcome if invalidity is proved beyond a reasonable doubt. Hunt Tool Co. v. Lawrence, 5 Cir., 1957, 242 F.2d 347; Cameron Iron Works v. Stekoll, 5 Cir., 1957, 242 F.2d 17. The record leaves no doubt in our minds as to the invalidity of the Fairchild Patent. The prior state of the art was such that already there existed known and successful uses for high pressure water in cleaning surfaces.

The plaintiff argues that the prior processes were not identical with the Fairchild Patent, and that "* * * a process is not anticipated by apparatus which may be used to carry out the process". City of Milwaukee v. Activated Sludge, 7 Cir., 1934, 69 F.2d 577, 588, certiorari denied 293 U.S. 576, 55 S.Ct. 87, 79 L.Ed. 673. We agree with this principle, but it has no application to this case. What we have here is a state of art with prior successful processes which have in fact carried out the function of the Fairchild Patent.

The essence of patent anticipation cases lies in the fact that the inventive thought in both the anticipating and patented devices is the same, not merely that one process might possibly...