Futorian Mfg. Corp. v. Dual Mfg. & Engineering, Inc., 74--1399
| Decision Date | 04 February 1976 |
| Docket Number | No. 74--1399,74--1399 |
| Citation | 528 F.2d 941,189 U.S.P.Q. 689 |
| Parties | FUTORIAN MANUFACTURING CORPORATION et al., Plaintiffs-Appellees, v. DUAL MANUFACTURING & ENGINEERING, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph Zallen, Boston, Mass., for defendant-appellant.
David Wolf, Boston, Mass., with whom George L. Greenfield and Wolf, Greenfield & Sacks, Boston, Mass., were on brief, for plaintiffs-appellees.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
Defendant, Dual Manufacturing & Engineering, Inc., appeals from a declaratory judgment in a consolidated action by three manufacturers, holding invalid its U.S. Patent No. 3,163,464 ('464) issued December 29, 1964, and from dismissal of its counterclaims seeking damages for infringement. The judgments followed a jury trial and special verdicts finding Dual's patent novel and useful, but obvious. Other findings of infringement and damages in the event the patent were found valid are irrelevant to our disposition, for we affirm the judgment of invalidity.
The invention relates to a rocker-recliner lounge chair, and involves more particularly the 'rocker-blocker'--the means which allows the chair to rock in an upright position and to be stable in a reclining position. Appellant claims that the 'pioneer and revolutionary' feature of '464 is the fact that an occupant can convert the rocker to a reclining chair by simple body movement without recourse to a handle. Other rocking and/or reclining chairs had been patented earlier. Some were cited by the patent examiner; others were not.
The court, in giving the case to the jury, without objection took the following steps with reference to the prior art: (1) it instructed the jury that as a matter of law three patents were part of the relevant prior art--of which only one had been cited by the examiner; (2) it identified twelve other patents which Dual had conceded to be relevant prior art--of which only six had been cited by the examiner; and (3) it asked the jury to decide whether three additional patents, only one of these having been cited by the examiner, were in the prior art. The jury found all three to be relevant prior art. Thus, of twenty relevant prior art patents, the examiner's attention, so far as any record reveals, was called to only eight.
The omissions cannot be said to be insignificant. One was Dual's own Re patent, No. 3,137,521, which had all of the mechanism for converting an upright chair to a reclining chair, lacking only a rocker base and the rocker-blocker device to stabilize the chair when in the reclining position. Another was the Knabusch patent, No. 3,096,121, which was a rocker-recliner, achieving stability in the reclining position by a simple latching bar which, when a handle is pulled, engages a latching bracket as the leg-rest is extended. The Ducrot French patent, No. 717,017, issued in 1931, even supplied a rocker-blocker activated by motion of the chair without a handle, differing from the patent in suit chiefly in that the perpendicular portion rested directly on the floor, not on a small wheel. Wheels were incorporated in a British patent, Varran, No. 889, 897, although these were activated by a handle.
This less than complete patent office canvassing of prior art led the court to charge the jury that the ordinary presumption of validity accompanying every patent under 35 U.S.C. § 282 was destroyed. It further charged that the plaintiffs' burden of proof in establishing invalidity was the ordinary burden of proof by a preponderance of the credible evidence. *
At no time did appellant seek by request of objection to make an issue fo the court's instruction as to the presumption. It did, however, file written requests that plaintiffs be held to a 'clear and convincing' standard of proof of obviousness and, after the court had given its instructions, noted its objection, counsel saying, 'I believe that (proof of invalidity) requires a higher standard than an ordinary burden.' The court replied, 'They only have the (ordinary) burden because of the posture of this case at this stage.'
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