*1 Dеpartment Agriculture un- doing. Certainly cir- of under ed these licensing provisions der words of the stat- addition of the cumstances any ute. poultry dealer or handler” live “or fif- Act the three sections into significant it think is also We spe- Congress places when different teen delineating the the 1958 amendment original cifically rejected bill jurisdiction Federal areas of accomplished war- is not this have would Department Trade Commission and and, fact, transcend the would ranted Agriculture poultry packers over authority of court. change any did not in manner dealers congressional packer or Northern definition Great v. United States any change language Supreme Ry. Co., said wise supra, Court pro- 993): provisions respecting 575,72 at of the Act (343 at S.Ct. U.S. complaints, issuance cedure prohibited “Congress have could well hearings and the notice and conduct of considering fi- Commission from issuance cease desist orders. issuing any un- order nancial needs Having proposed Department 15(3). concluded that the This was der Section jurisdiction against rejected proceed expressly no bill had to in one * * * petitioners congressional under and 205 committee. §§ Act, apply they poultry judicial live stat- since deal- is our function Congress packers, ers and not it what handlers and basis utes unnecessary engage Congress written, in a discussion of what has here, Where, presented the several other issues as written. through appeal. not establish did Commission applica- 15(4) routes, has Section The decision and order Secre- supplied.)” (Emphasis tion. tary Agriculture are set aside. Cases, etc., United of Jam v. Frankfurter, States, supra, Mr. Justice (340 Court, U.S.
speaking for said 520): at
at anxiety con- to effectuate the
“In
gressional protecting the purpose of ex- public, not to care we must take beyond scope of the statute tend the SYSTEM, Congress it COLUMBIA point BROADCASTING indicated where Plaintiff, Appellee, stop.” would v. page page At 71 S.Ct. PRODUCTS, SYLVANIA ELECTRIC all, Con- “After further stated: Court INC., Defendant, Appellant. expresses gress purpose words. its No. 7291. add It is for ascertain —neither us to subtract, nor neither delete nor to Appeals United States Court of distort.” First Circuit. July 30, respondents’ agree with We cannot argument strong vigorous Rehearing 7, 1969. As Amended on Oct. deleted as read if the should be statute the statute were in because words it results in written leads to futile statutory authority admin- leaves no against poul- live
istrative enforcement try who violate § dealers handlers argument ignores the the Act. This Attorney authority General authority vest- action well as
take
721 *3 Hoxie, City, York with John New Wellesley Curtin, Jr.,
whom John J.
Pegram,
Hills, Mass.,
H.
B.
James
John
Gould,
Grover, Bingham,
Bos
Dana &
ton, Mass., Davis, Hoxie,
&
Faithfull
Roberts,
Hapgood,
City, and
New York
Mass.,
Grover, Boston,
Cushman &
brief,
appellant.
Mass.,
Boston,
Kenway,
Herbert P.
Boston,
Crowley,
George
whom
W.
City,
Reilly,
Mass.,
New York
John A.
Bоston,
Jenney Hildreth,
way,
Ken
&
Mass.,
brief,
appellee.
were on
Judge,
ALDRICH,
Mc
Chief
Before
Judges.
COFFIN,
Circuit
ENTEE
COFFIN,
Judge.
Circuit
brought
dis-
suit
1966 CBS
of Massachu-
trict court for the District
claiming
Sylvania
against
in-
setts
relating
fringement
patents
of three
picture
The three
tubes.
color television
patent,
picture
(one
patents
consisted
three
tubes
color)
2,690,518,
phosphor
each
No.
and the two Giuffrida
utilized
—which
3,179,836
3,222,172.
produce
patents,
dots to
color—and
mirror
Nos.
lengthy
images
After
district court
into
trial
which combined the three
Despite
patents
that all three
were valid one
held
seen
the viewer.
infringed.
feature,
sys-
compatibility
and had been
the RCA
brings
primarily
appeal.
tem
be-
successful—
inadеquate
quality
cause
industry in the
The color television
high production costs.
game
high
United States has been a
high quality,
for a
began
stakes. The race
In the fall of 1949
an in-
RCA
system capa-
compatible color television
program develop compatible
tensive
being mass-produced,
ble of
has seen
system
require
all-electric
which would
*4
expenditure
and
of millions
dollars
only
single picture
By March
a
tube.
large
the
on
scale
dedication of talent
a
29, 1950, RCA was
to demonstrate
able
by every major company
system
in the radio
planar
such a
tricolor
—the
history of
system.
and television field. The
components of
The basic
legal
technolоgical develop-
“gun”,
both
and
system
a
were an electron
de-
ments is
is set forth in
tube, mask,
extensive and
a
and a screen.
tube
The
opinion.
glass
tail
the district
was constructed
a
and served as
F.Supp.
(D.Mass.1968).
abbre-
The
receptacle
parts.
for
the three other
placed
viated discussion
recounts
just
which follows
The screen
was
behind
only
history
so
much
as
neces-
face of the tube and
a flat
consisted of
sary
(hence
panel
planar) upon
resolution of the issues before
the name
us.
phosphor
which thousands
trios of
(red, blue,
green)
deposit-
dots
Federal Communications
by
process.
ed
a silk screen
(FCC)
Commission
authorized
At the other end оf the tube was
broadcasting
(black
monochrome
placed
“gun”
simply
which was
a
white)
Although at
television.
transmitter of electron beams. Color
being
time research
had been
was
produced
was
electron beams
television,
accepta-
color
conducted in
striking
appropriate phosphor
dot at
system
developed
ble
had not been
angle.
proper
In order to achieve
many
development
believed that
of an
required precision,
necessary
was
it
acceptable system
years
was at least ten
velocity
to control the direction and
away.
the beam. RCA used a “shadow” mask
However, in
called for
FCC
purpose.
placed
for this
mask
The
was
proposals on color television standards.
“gun”
between the
and the screen
response
request,
to that
both CBS
containing
thin
was a
metal sheet
mul-
a
systems
and RCA
color
demonstrated
aligned
titude
holes. Each hole was
system
the FCC. The first CBS
was
phosphor
with
trio of
a
elements and
sequential” system
known
as
“field
only
was not
smaller
the trio but
than
pic-
which consisted of monochrome
a
than
smaller
an individual
This
dot.
rotating
ture tube
disc in
with
color
permitted
construction
a beam strike
system produced
front.1
While
only
time,
one dot at a
re-
other two
picture,
compatible,
i.
it was not
maining
shadowed
the mask.
e.,
spe-
not
could
received without
be
Obviously, proper alignment of the
parts
cial
black
attachments
phosphor
mask
holes with
elements
and white and color receivers.
alignment
was
If
critical.
was incor-
rect, “misregistry”
system
sequential”
occurred, producing
RCA’s
“dot
—the
system
misregistry
compatible system.
blurred color. A cause of
a—was
comprised
1. The disc was
areas
rapid
of color
front of the monochrome
tube
red, green,
presented
blue—and the
turn
with
viewer
(cid:127) —
picture.
rotation of
disc
a color field in
created
a color
significant
dially
lateral
mask
with
no
expansion of the
heat-induced
was
holes therefore
mask
eighty per
movement.3 The
cent
approximately
because
expanded
case
be the
energy
ab-
as would
was
electron beam
reg-
expansion.
permanent
The
lateral
the beams were
mask as
sorbed
significant
provides
istry
heat
feature
also
The
the screen.
channeled toward
energy
production gains.
mask need
absorption
Since
generated
prestressed,
buckling
problems
mask
not be
resulted
cooling
lengthy
namely,
place.
final
expansion
took
lateral
evacuation —
cycles
required—
handling
alignment.
improper
and delicate
result
placing
Finally, by
are obviated.
approach
to this
RCA’s
tube, maximum
face of the
screen on the
blocking”,
by “hot
pre-stress
mask
is obtained.
of the tube
utilization
face
stretched
is heated and
e.,
mask
an almost
met
The CBS disclosure
with
cooled.
and then
frame
a metal
across
response in the
favorable
instantaneous
that,
installed,
pre-
theory
industry
ultimately
resulted
capacity
would
mask
stressed
licensing agreements
concluding
expansion. But RCA was
heat
foreign manufacturers.
RCA and several
dilemma,
pre-stress-
the horns
the curved
There can
little doubt
prob-
production
ing gave rise to serious
matching
mask ar-
screen and
curved
pic-
fact
to the
due
lems
rangement
major development
*5
was a
required to be evacuated.2
ture tubes
color television.
alignment problem,
to the
In addition
dispute
not
the
does
advan-
thought
to
the
have
desirable
it was also
patent.
tages
Fyler
of the
and Rowe
the
as
itself
serve
the
face
tube
however,
Sylvania does,
contend that
the
an-
of 1953
screen.
In October
(1)
patent
is invalid for three reasons:
development
directed at
nounced a
(3)
obviousness;
(2) anticipation;
and
problems.
concerned
announcement
The
non-compliance
112.
with 35 U.S.C. §
patent)
(the Fyler
patent
Rowe
and
a
discussing
challenges in de-
Before
these
applied for on June
had been
which
tail,
Sylvania accepts,
we
as it
note that
subject
patent
a
of the
was
The
showing
must,
the
its burden of
that
a
tube with
determination
was
court’s
matching
curved
face
and a
curved
“clearly
52(a)
erroneous”.
Fed.R.
Rule
itself served
mask. The face of the
Civ.Proc.
phosphor
ele-
with the
as
screen
A. Section 112
being directly disposed thereon.
ments
portion
The
of 35 U.S.C.
relevant
matching
and
curved
screen
112 reads as follows:
§
Fyler
arrangement
mask
curved
specification
patent
a
purported
“The
shall
to confer
contain a
and Rowe
advantages.
description
invention,
written
Its most note-
number
worthy
process
affords
and of
the manner
and
was
it
attraction
making
it,
spherical
using
full,
registry
permanent
in
because
and
such
expanding
clear, concise,
ra-
responds to
mask
heat
and exact
terms
to
required
Although
patent
assembled
for
2. Evacuation
calls
depositing
phosphor
Because
and then cooled.
on
tube be heated
elements
pre-stressed
tube,
attempt
mask frame was much
face of the
it
does not
to
itself,
accomplished.
than the mask
the heat-
teach how
to
heavier
this is
required
cooling cycles
fact,
ing
patent
clearly
application
to
and
were
as-
non-pre-
longer
deposit
techniques,
than where a
sumed that direct
be much
longer
photo
particularly
techniques,
mask was used.
resist
stressed
Fy-
cycles
in
known
The failure
concomitant delicate han-
art.
and the
patent
process
dling
ler
to
itself to
address
the screen-
which
demanded
production
forming process
posed
basis
barrier
mass
serves
a real
Sylvania’s challenges
part
high
cost
one of
valid-
in
accounted
topic
ity
patent
early
receivers.
is dis-
color television
detail,
in
cussed
infra.
any person
paper
importantly,
photo-re
skilled in
art to most
enable
a
on
**
*
pertains
techniques
Prepara
it
make
sist
entitled “The
same,
Phosphor
tion of
use the
and shall set forth
Tele
Color
Screens for
contemplated
presented by
the in- vision
the best mode
Tubes”
its au
thors,
carrying
Levy
Levine,
his invention
ventor
оut
American
April
”
* * *
Society
Electrochemical
Finally,
patent
1953.7
note
we
Sylvania argues
patent
dis-
issuing
agreed
examiner must
making
way
closes neither
useful
patent
that disclosure
unneces
nor the
contem-
“best mode
sary.
conclusive,
While this
fact
**
plated by the
inventor
weight.
it is entitled to some
See West
response
patent clearly
CBS’s
is that the
Hepworth
ern States
Co. v.
Machine
SS
accurately
assumed that
screen- Co.,
(2d
1945).
F.2d
forming techniques
were well-known
Sylvania’s second
112 attack
di-
§
the art.4
requirement.
rected at the “best mode”
no
The district court found
applied
In October of 1953 CBS
for a
respect
because
held
§
technique (Perry
photo-resist
genеrally
“it was
known
3,080,231)
No.
trade
of 1953 how to
October
application
it was
stated that
photo-resist techniques
“* * *
utilize
form-
practical photographic
ing
phosphor
tri-color
screens
phos-
methods have been devised to form
curved inner
tube.”
surface
phor
upon
directly
screens
curbed
sur-
Sylvania argues
face.”
that CBS knew
argument
first
1, 1953,
therefore,
this as of June
the district court focused on the
did not disclose the
“best mode”
wrong
1, 1953,
date—October
when CBS
carrying
out the
and Rowe inven-
publicized
rather
*6
Sylvania’s argument
tion.
susceptible
is
1, 1953,
applica
than June
date of
interpretations:
first,
of two
that CBS
purposes
for
of
tion. We assume
1, 1953,
knew as of June
that therе were
1,
that June
1953
the date
discussion
is
deposit techniques
no direct
in
known
of
as which disclosure
to be
is
tested
art,
second,
1,
the
1953,
that as of June
Even,
1,
adequacy.5
however, as
June
Perry
CBS knew of
and Rowe’s in-
1953,
ample
photo
there
evidence that
is
vention but did not
it.
our
disclose
As
graphic techniques
well-known
were
in
prior discussion demonstrates the first
pre-trial stipulation
the art. Both the
contention is without merit.
testimony
employees
and the
of RCA
Leaving
question
Moody
'Grimm)
(notably,
aside the
indicate
quoted
whether
Perry
photo-resist
the statement
techniques
from
that
were known
application
and Rowe
perhaps
early
any
fairly
could
as 1948
in
but
“puffing”,
be
clearly
cоnsidered
Perhaps
fail
event
1953.6
we
to see
before
techniques
Fyler
remarks
is that
4.
such
The
con-
following response
following
known in
art. The
tained the
screen-forming:
brief
as to
statement
Moody
Miss
is illustrative:
*
**
question
phosphors
plate
“Q.
Was there a
“The
on the face
get phosphors
may
deposited
any
how to
on the curved face
be
of sev-
in
one
ways, photographic
means,
tube?
eral
how-
* *
particularly
ever, being preferred.”
“A. Not
*.”
See,
g.,
Lund,
5.
e.
In re
725
patent.
district
sup-
view the
is
contention
Sylvania’s second
how
“clear-
said
been
drafting
specifica-
court cannot be
ported
it.
holding.
appli-
ly
in so
erroneous”
application an
for a
tions
recognized
Kaplan paper
“best
required
disclose
While
cant
obligat-
him;
is not
a
mask and screen
he
known
mode”
Thus,
process.
might
non-planar,
develop
perfect
therefore
a
be
ed to
spherical,
attempt
“best
only way
no
was made
teach
in which
upheld
be
would
be
mask and
attack could
how such a
mode”
Kaplan’s
Indeed,
as of June
entire
constructed.
if
shown
it were
knowledge of
better
possessed
in two-dimensional
discussion
east
technique
photo-resist
terms,
spherical
but
construction
method of
however,
is,
obviously
There
three
disclose it.
involve
failed to
would
finding.8
Kaplan
Moreover,
support such
did
dimensions.9
evidence
recognize
advantages
would be
cor-
court
hold that
We
spherical
construction
conferred
rectly
concluded
he
the use
did not advocate
require-
complied
with
Rowe
spherical mask and screen.
of 35 U.S.C. §
ments
anticipation
test
Anticipation
B.
publication
prior printed
whether
Fyler pat-
contends that
(or patent)
describes the invention
anticipated by
fully
three
ent was
clarity
specificity
sufficient
so that
paper
patents
published
a technical
may
practice
skilled in the
one
art
Society of Motion
the Journal
invention
without
assistance
from
Engineers
and Television
anticipated.
Picture
claimed to have been
July
Electronics,
of 1952.
Ballantyne
&
Instruments
(6th
Wagner,
Inc. v.
727
pre-stressed mask-
In
contrast
to be ascer-
issue are
at
the claims
employed in
ordinary
planar screen combination
;
skill
level of
and the
tained
prior art,
Fyler and Rowe
pertinent
resolved
art
**
matching
and
17,
called for a curved screen
86 S.Ct. at
*383
U.S.
major
The
contribution
curved mask.
694.
Fyler
the mask
Rowe
and
inquiry,
lines
three
pursuing
these-
advantage
primary
configuration.13 The
that:
the Court observed
it
afforded
mask was
of the curved
* *
“*
secondary considera-
Such
registry.
It
other
permanent
also had
success, long felt
commercial
tions as
*
“* *
it
in that
attractive features
others,
needs,
failure
unsolved
might
but
tube,
weight
it allows
of the
reduces
light
give
be utilized
etc.
is sim-
to be reduced and
exhaust time
surrounding
or-
circumstances
(Testimony
mechanically.”
pler
sought
subject
igin
matter
of the
Engineer.)
Grimm, RCA Senior
**
U.S. at
patented
383
be
18, 86
S.Ct. аt
Ordinary
Skill
3. The Level of
charges
district
that the
Art
secondary
considerations
relied
earlier, color television
As we noted
is-
fundamental
failed
confront
major
every
development involved almost
supra.
Deere,
posed
in John
sues
company
indus-
in the communications
however,
not,
opinion is
court’s
try.
millions of
fact that
of the
view
analysis
easily
con-
dismissed—as
so
expended
in view the
dollars were
approach mandated
sistent with the
organized
scale of the
Supreme
demonstrates.
Court
television,
intelligence to color
technical
it would be a classic understatement
Art
Prior
say
skill in
art was
that the level of
develop-
Our earlier discussion
high.
of color television disclosed
ment
(the
1,
1953,
date of the
June
significant that, giv
We think it
application),
prog-
had
Rowe
art
high
skill,
en
level of
those trained
non-compatible
from a
“field se-
ressed
immediately recognized
in the art
Fyler
system
compatible
quential”
“dot
to a
a break
system.
sequential” planar screen
This
through development. See, e.g., United
system
system
the RCA
latter
Adams,
52, 86
States v.
383 U.S.
S.
undisputed in-
as of 1953 RCA was the
(1966);
572
Otto
Ct.
L.Ed.2d
v.
dustry
pic-
color
As of
leader.
(4th
Koppers
required form screen Sylvania’s er other contentions which concept. utilize the in order mask primarily are directed at the district interpretation secondary court’s reason as The fundamental evidence.16 We therefore affirm the argument signed is that because for this holding court’s principle mask of a curved is valid.17 art, recognized in the screen had beеn Finally, anything we consider re but two “invent” did not maining patents CBS in this involved principle to merely that known reduced patents. case —the so-called Giuffrida Sylvania’s premise application. Were patents closely The two Giuffrida inevitably true, fol its conclusion would related and deal with At a second defect. But therein lies the low. registry proper to disclose art can be said effect of best the —the possible non-planar surfaces were magnetic earth’s field.18 At the outset argument Sylvania’s 15. In li- its brief asserts 16. The thrust of arrangements censing often have a “back- the district court misunderstood the scratching” planar But than the effect. other commercial status of RCA’s tube. more inconclusive facts that there was The short answer is that while the BCA there marketable, than one involved and that tube was cially successful, and even commer- presented of BCA was a cross-license it still patents, technological production problems. is no evidence that BCA there ulterior considerations. moved Infringement by Sylva- is not contested Indeed, in- in view of its considerable nia, good reason, and with view mon- television—in both vestment ey color testimony of Dr. Law and prestige corporate think it —we concerning Sylvania’s General Counsel readily unlikely would have so that BCA picture tubes. competitor’s patent for reasons licensed а only Originally, applied patentability. Giuffrida unrelated to patent covering one tube incor- *10 phosphor the dots locat- consid- the clear we to make it we wish beam, validity ed the electron when de- nor in- where of issues the er neither fringement magnetic by field, would hit flected the be foreclosed.19 to them.21 earlier, pro- color is As we observed challenged Sylvania Giuf- trial the At striking the beams electron duced the grounds patents anticipation of frida direc- phosphor on the screen. dots Contentions to an- ap- obviousness. and, critical, because beam is tion the pressed ticipation been have not magnetic earth’s of the force field, the Although peal us. and are before trajectory is not of the beams the open, it the issue of obviousness remains straight line. The effect inextricably questions is linked to con- pat- magnetic deflect a to field is earth’s cerning coverage scope the the downward. horizontal of electrons beam Essentially, the us ents. before for, compensated Unless this effect subject patents the to define misregistry The earliest at- will occur. precision. with some Because the dis- magnetic compensation tempt at was infringement court found trict to be through shielding of a use of the beam conceded, it confront did not the issue of attempt com- A at metal case. second coverage. planned pensation which distortion was equalizer primary took two forms: scope patents If the ap magnets purity Neither coils. clear, peared to us we would not hesitate satisfactory.20 entirely method was to reach our own determination. Unfor compensation approach to tunately, Giuffrida’s compli matter is far more degree compute Although to deflection patents cated. themselves magnetic field in earth’s trial, caused in evidence were wrappers at the file having hemisphere, not. unwilling ob- We are northern important question decide an degree data, whiсh compute tained this arguably gives alone an am misalignment loca- physical for biguous answer.22 light to can- source sufficient tion of magnetic effect. Sim- cel out field The relevance wrapper file stated, patentee’s form ply towas evidence of idea Giuffrida’s intentions be- compensation adjustment porating problems Sub- off-set. tial of set for response sequently, Patent to a Office unskilled home viewer. demand, filed a divisional recognized 21. Giuffrida this could be patents covering two the com- —one accomplished by shifting light either off-set, covering pic- pensation one by shifting source or the screen. incorporating off-set. ture 3,179,- 22. Claim 1 оf Giuffrida No. infringe- found that 19. The purports 836 picture cover a color television patents of the Giuffrida was con- ment phosphor tube with the elements finding, making this trial. ceded “ * * * being disposed of the screen Sylva- a statement court relied on predetermined on a line of curvature cor- clarify attempt In an counsel. nia’s imparted responding to the curvature witness, counsel the examination * * * [an] electron beam ver- stipu- been stated that it had component magnetic tical of the earth’s lated that: ” * * * Despite field. the breadth of “ * * * making all of the claim, specifications give only one tubes, there 21-inch round defendants predetermining formula the сorrect so-called, off-set, was a certain question curvature. therefore re- bring is said to about the off-set that mains as to whether encom- pat- infringement Giuffrida passes pre- all contained means of self ents.” determining only curvature, patentee’s In our view the above statement cannot specific formula, perhaps range some reasonably be construed as a concession of variation in the latter. infringement. expensive Shielding meth- planned posed substan- distortion ods *11 730 gain acceptance of Office, counsel to zealous and as evidence the Patent
fore interpretation positions their on facts his evaluation own inventor’s fairly See, recognized. which feel are described e. work, long we has been supra the record. substantiated 383 g., v. John Deere Graham 545, 684, 86 15 L.Ed.2d U.S. citing Emerson, Hogg v. How. Engi- (1850); Progressive L.Ed. Machinecraft, Inc., neering, v. Inc. 1959). (1st The file F.2d may particularly wrapper prove to be UNITED STATES of ex America rel. helpful us in cases like the one before LaMOLINARE, Appellant, Albert broadly claim where worded is based v. specifications. narrowly on more framed DUGGAN, Attorney, Robert W. District Allegheny County, Pittsburgh, Pa., judgment part held That Maroney, Supt., James State Correc infringed Rowe valid Institution, Pittsburgh, tional Pa. 2,690,518 patent, No. is affirmed. That No. 17420. judgment part of the valid which held Appeals infringed United States Court рatents, the Giuffrida Third Circuit. 3,179,836 3,222,172 Nos. is vacated pro- 23, 1969. case Submitted remanded further on Briefs Jan. ceedings opinion. with this consistent July Decided Appellee appeal. recovers costs on ON PETITION FOR REHEARING
PER CURIAM. sought rehearing
Petitioner has not relitigate substantive issues in alleged types
court but to two correct opinion:
inaccuracies certain ref- petitioner’s
erences to its contentions
appeal and certain statements of factual
background. opin- We have reviewed our light allegations
ion in the
petition and comments solicited from the
appellee points. toas certain
Though we are that none of the belief of the statements which been chal-
lenged magnitude rise to a of conse- quence, recognize importance we facts,
particularly referring to all marginal, highly however in a technical accuracy possi-
field much opinion
ble. therefore amend our We
restating appellant-peti- one reference to position appeal its
tioner’s us accept propositions.
three factual We I, following petition: points of
VIII, IX, XIII. We conclude remaining merit, points are without
representing the understandable effort