594 F2d 609 Harig Products Inc v. K O Lee Company

594 F.2d 609

201 U.S.P.Q. 654

HARIG PRODUCTS, INC., Plaintiff-Appellant,
v.
K. O. LEE COMPANY et al., Defendants-Appellees.

No. 77-2154.

United States Court of Appeals,
Seventh Circuit.

Argued April 6, 1978.
Decided Feb. 20, 1979.
Rehearing Denied March 16, 1979.

James G. Staples, Chicago, Ill., for plaintiff-appellant.

W. A. Snow, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and JAMESON, Senior District Judge.1

PER CURIAM.

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1

Harig Products, Inc., assignee of the Mueller patent, U.S. Patent No. 3,030,744, which is entitled "Air Film Bearing for Machine Tools," brought suit against K. O. Lee Company, et al., alleging infringement of Claim 3 of the Mueller patent. Lee denied infringement and asserted that the patent was invalid for obviousness under section 103 of the Patent Act of 1952, 35 U.S.C. § 103. Lee also asserted the defenses of invention by another and prior invention, based on 35 U.S.C. §§ 102(f) and (g). The district court rejected the sections 102(f) and (g) defenses, but judged the patent invalid for obviousness under section 103. 195 U.S.P.Q. (BNA) 292 (N.D.Ill., Aug. 18, 1977). From that judgment Harig appealed. We affirm.

2

We adopt as our opinion the Memorandum Decision of the district court, with the Caveat that all references therein to the concept of synergism must be read in light of our recent opinion in Republic Industries, Inc. v. Schlage Lock Co., No. 77-1872 (7th Cir., Feb. 1, 1979). Applying the rubric of Graham v. John Deere Co., 383 U.S. 1, 13, 86 S.Ct. 684, 691-692, 15 L.Ed.2d 545 (1966), to the district court's findings leads to the conclusion that "the subject matter (of the Mueller patent) 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. § 103. The patent is therefore invalid, and the judgment of the district court is affirmed.

1

The Honorable William J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation