432 F2d 438 Ethicon Inc v. Handgards Inc

432 F.2d 438

ETHICON, INC., Appellant,
v.
HANDGARDS, INC., et al., Appellees.

No. 22985.

United States Court of Appeals, Ninth Circuit.

August 26, 1970.

Rehearing Denied January 5, 1971.

Sidney Neuman (argued), Charles A. Laff, James R. Dowdall, Chicago, Ill., Carl Hoppe, San Francisco, Cal., Arnold S. Worfolk, New Brunswick, N. J., for appellant.

A. Donham Owen (argued), and Roger W. Erickson, San Francisco, Cal., for appellee.

Before CHAMBERS and MERRILL, Circuit Judges, and POWELL, District Judge.

PER CURIAM:

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1

Ethicon's Gerard patent No. 3,028,576 was held invalid because the trial court found that under 35 U.S.C. § 102(b) there was prior public use for more than one year of the concept of the machine, the subject of the patent.

2

There is little or no direct contradiction in the oral evidence. In our view, we have a case that could have been decided either way. Ethicon contends the testimony of Handgards' principal was too weak and impaired by certain circumstances. But the trial court was entitled to give more weight to other circumstances which point to Handgards' version being correct.

3

The decree is affirmed because the findings are not clearly erroneous.