377 F2d 545 Zilk v. Deaton's Fountain Service

377 F.2d 545

153 U.S.P.Q. 386

Carl S. ZILK et al., Appellants,

No. 21194.

United States Court of Appeals Ninth Circuit.

April 19, 1967.

Carl Hoppe, James F. Mitchell, San Francsico, Cal., for appellants.

James M. Naylor, Karl A. Limbach, Naylor & Neal, San Francisco, Cal., for appellees; Joseph B. Sparkman, Portland, Or., Hannon & Hannon, Castro Valley, Cal., Derham Kiernan & Commons, San Francisco, Cal., of counsel.

Before JERTBERG and BROWNING, Circuit Judges, and TAYLOR, District judge.


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The district court held invalid Patent No. 2,887,250 issued to Carl Zilk on May 19, 1959, and entered a judgment to that effect on appellees' motion, notwithstanding a jury verdict to the contrary. As we read the opinion of the district court, it applied the standard of Brady v. Southern R.R., 320 U.S. 476, 479-480, 64 S.Ct. 232, 88 L.Ed. 239 (1943), that 'When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding * * * by judgment notwithstanding the verdict.' We have xamined the record and agree that the uncontradicted evidence requires the conclusion that 'the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.' 35 U.S.C.A. 103.