*1 contention We understand counsel’s said: conclusion the court appli- plurality showing be that of a a say that inclined to “The court is not pat- cations about same time for made any the devices in there can be found com- covering ents similar or near-alike prior in combination art exact mechanical, binations, evidences rather say, found in claim it but argument has than inventive skill. The holds, 5 do the disclosures claim force, be if it it would more effective but what over genius not exhibit inventive patent- who not assert came from one did by the world was made manifest to the novelty able he of such combination when prior disclosures of art. felt himself the first inventor. think, court in view “The does not nar very greatly art, any prior art there was state * * * inquiry. All used, pat- rowed field elements genius Claim S of the Many been used were old. of them had ent in suit is invalid.” This, course, pre together. would not disturbing question There is a which the patentable a vent combination —nor valid a parties have failed to discuss. Plaintiff patent new these old elements a —on argued successfully, length, at however, does, It combination. make our anticipated prior show that the art Anner- inquiry precise, more more limited. en, inventor, assignor. It defendant’s question, An old raised facts, new con- seems overwhelmed defendant with (patentable fronts us. Invention novelty) patent many its In the face of citations. skill, or mechanical This is the anticipation, plaintiff is asserts —which? question. Our agrees conclusion puzzled with that explain the action of the Patent Judge. of the District is granting patent. Office in this The intima- claim of invention. Court, too, tion of the District was that conception apparatus required Anneren creator, have labored as a not ability mechanic, even the aof skilled as an must, inventor. however, We judge but rather that a of mediocre artisan. him judged, his works. So wrought he as a mechanic. Evidence of inventive hardly plaintiff completed Yet genius is not manifest in his work. argument when it asserts that it failed affirmed. by a few months to reach the Patent Of- fice ahead of applica- defendant patent very tion a ap- on a similar paratus. Naturally arises,— question If claim 5 obviously invalid art, effectively by prior blocked so what application about plaintiff filed a later, few sought pat- months wherein it ent for its similar combination? Are we patent infer this that coun- sel place view the Patent Office as where NATIONAL LABOR RELATIONS BOARD resistance is mild yielding? And MARSHALL FIELD & CO. worse, duped by being inventors —Are No. 7942. public grants, seal, these big under a
which, service, though legal evidencing Appeals, Circuit Court of Seventh Circuit. are, fact, May valueless? eth- counsel ically patentability assert he if reaches Office unpatentability first and Patent he Rehearing July Denied competitor? later arrives than his practice patent counsel to blow hot cold, vigorously pioneer attribute status discovery, only his client’s immedi- ately deny validity thereafter quality no inventive disclosed when finds another has his beaten to the client application very Patent an Office with for a product, similar is too often an embarras- sing patent argu- in a weakness counsel’s ment. *2 Act order extent Relations to that
within the of the Board. petition, its answer Board’s *3 spondent alleged compliance full with the decree, Board’s order and the cluding payment in- court’s Kelly to Swift such and of Gross, General Ernest Associate A. during sums as the have earned Arkel, Counsel, Asst. Van and Gerhard P. period prescribed decree, less the C., Counsel, D. Washington, all General Robert of by amounts received the Il- them under 111., Chicago, McKinlay, of Todd Unemployment linois Compensation Act C., Halloran, D. Washington, of Leo J. respond- during period. the same Whether Board, Labor Relations Attorneys, National fully ent complied has the to with order Watts, and Robert B. A. Norman Somers the extent that the order was within the Counsel, Wash- N.L.R.B., both of General depends upon the of Board the C., ington, petitioner. D. for questions answers to hereinbefore set 111.,for Bowers, Chicago, Ralph of forth. E. respondent. Only by English lan distorting the MIN- EVANS, KERNER, and Before guage say we could that TON, Judges. Circuit “earnings.” are word The “earn ings” denotes an good “economic which to MINTON, Judge. Circuit person rendering becomes a economic service.” entitled for New Webster’s Inter 21, Labor 1942the National February On Ed., Dictionary, unabridged national peti- 2d filed this court Relations Board 1937. See also National against Labor Relations of its order tion for enforcement Inc., Lines, Board Cir., Freight v. Brashear 8 parties respondent. Upon stipulation of 198; Phrases, F.2d 127 Words and enforcing the a consent decree order Perm.Ed., Earnings, 14, page 31. Volume thereon slight was entered modification employees The concerned did not receive 26, ex- February on Our the unemployment benefits in return for jurisdiction construe pressly reserved rendered, srvices order, and the amounts so re which paragraph 2(b) the Board’s “earnings” ceived did not constitute within respondent “(b) whole ordered to : Make meaning Consequently of the Kelly order. Georgia Papas said Anice Swift the order did not authorize their deduction. pay which any loss by suffered reason of the dis- To that we show the order as have con- payment crimination them beyond Board, powers of strued it is respondent them, respectively, money equal sum of a argued has that order they normally to that which would have Act; purposes not effectuate the of the 1, wages earned as from 8 and June employees (cid:127)that it makes the reinstated more 1940, respectively, to the date the offer whole, imposes and that therefore it reinstatement, less earnings their net upon respondent. penalty during period:” said 10(c) Section 29 U.S.C.A. The filed its answer to 160(c), jurisdiction upon confers Sec. 28, 1942, petition Board’s on March and Board, employer it finds that the proceed we now 2 paragraph construe engaged practices, in unfair labor to issue “ (b) of the order. * * per- requiring an order such son cease and desist from such unfair presented questions are: practice, labor action, and to take such affirmative under this paragraph Whether including reinstatement of em- spondent entitled was to deduct from ployees with or without pay, back as will Kelly equal amounts due Swift a sum policies effectuate the Act [chap- to the benefits them under the *” ter], Unemployment Compensation Illinois Act1 during para- forth set in the section, Under this pos the Board ; graph and sesses discretion to determine whether an 2(b) paragraph 2. If construed as pay order lost wages will effectuate preclude deducting purposes of the Act. The Board has amounts, whether under the National Labor ordered that the be made whole 1 Smith-Hurd Annot.Ill.Stat. Ch. Sections 217-250.
172
wages less net
that
by payment
permitted
lost
to deduct what
to them of
in the con-
wages.
earned as
earnings,
general
see
rule
we
no merit
tention
to effectuate
tort feasor is not entitled
reduction
the order
fails
purposes
damages
injured
Act.
one
payment
had
insurance
or
question in
substantial
other collateral benefits would seem to be
penalizes the
this case whether the
order
analogous. Overland Construction
Co.
remedial,
respondent. The
Act
Cir.,
Sydnor,
Sprinkle v.
70 F.2d
penalty
power
inflict a
Board is without
Davis,
Cir.,
111 F.2d
128 A.L.R.
upon
employer,
though
an
it believes
even
1101.”
pur
that such action would effectuate
*4
poses
Republic
Corp. v.
of the Act.
Steel
fact
Swift
mere
that
Board,
money
311
Kelly may possibly
U.S.
National Labor Relations
receive more
61
period
unemployment
L.Ed.
for
S.Ct.
85
the
of their
7,
77,
employed
would have
received if
re
pay the
respondent
In ordering the
to
private
question.
not of itself affect
the
wages
instated
their
less
lost
of
involving
contract or
tort cases
loss
has followed
earnings,
net
the Board
shown,
employment,
amount
as we have
the
long used
damages,
well-established rules of
damages
of
recoverable is not affected
in tort
contract actions.2
injured
by
paid
the
collateral benefits
It
is
in
on Contracts
stated Williston
cases,
is
person.
award
Yet
these
the
in
“
1358,
(Rev.Ed.1937) section
that:
compen
punitive damages,
of
not of
but
by
employee against
the
in an action
the
is to
satory
purpose of which
damages, the
de-
employer
wrongful discharge,
for a
a
wrong
injured party whole. The
make the
the
duction
the net amount of what
pay
by
collateral
doer
not be benefited
earned,
might rea-
employee
or what he
wronged.
person
the
he has
ments made to
employment
in
sonably have
other
earned
however,
respondent
that
argues,
nature,
he would have
like
from what
col-
unemployment
are noit
benefits
breach,
fur-
received
there been no
had
paid from
benefits,
they are
lateral
ordinary
damages.”
nishes the
measure of
to. main-
taxed
funds
is
which
Torts,
Law of
In the Restatement of the
em-
The tax is assessed
tain.
924,
(c),
is said that:
Sec.
Comment
tax
deter-
of the
is
ployers and the amount
are
earnings)
damages (for
“The
loss of
employer’s pay-
by the size of the
mined
by
plaintiff
not
reduced
fact
that the
payroll
percentage
by the
roll and
no
suffered
net
loss
financial
as
employer to
requires the
which the law
transaction,
result of the entire
as where he
discharged em-
paid to
pay. Benefits
money
receives insurance
an amount
or
employer’s
to the
charged
ployees are
equal
wages
employer
to his lost
from his
account, and the amount
wage
from a friend.”
or
part
in
paid
benefits so
1942 determines
in
n In the
tax for 1943. If
amount
the rate of
case
recent
of National Labor Re-
proportion
large enough paid in
1942
Freight Lines,
Board
lations
v. Brashear
1942,
employer’s
payroll
to the
total
Inc., supra, it was held that
value
required
pay
employer
will be
unlawfully
groceries
to an
dis-
contributed
payroll
its
tax
as a
higher percentage
employee
charged
not deductible from
was
year.3
following
in the
court said
F.2d
pay.
his back
[127
is not ultimate-
that the tax
we assume
: “It
is clear that
order means
If
199]
consumers, this
by employees or
ly
wages
for services
borne
that sums
as
that re-
supports the conclusion
performed
argument
Aside
be deducted.
are to
in the unem-
spondent
interest
interpretation
has some
given
to be
the words
discharged
not,
paid
its
think,
used,
ployment benefits
could
we
our order
be
to the
lead us
interpreted
employees,
the em-
but it fails
intending
give
as
imposed a
wrongdoer,
the Board
conclusion that
ployer, found
be a
bene-
respondent. Cf. Overland
penalty upon
collateral
gifts
fit of
or other
benefits
338,
Cir.,
F.2d
6
70
Sydnor,
employee
by
during
former
his Const.
v.
ceived
Co.
unemployment.
enough
338, 340;
Cir.,
2
454,
Norristown
v.
Rettie, 287
F.2d
v.
Mass.
70
Shea
See
Hayes
571;
Moyer,
44,
construed it.
EVANS, Judge Circuit (dissenting). why are several There reasons employee
amount un- employment insurance should be deducted. employee
(a) Paying the more than he have received had he remained employment tends to en- disputes. labor courage Smith-Hurd Ch. Sec. 247. Annot.Ill.Stat.