349 F2d 856 Harris-Intertype Corporation v. Photon Inc

349 F.2d 856

146 U.S.P.Q. 621

PHOTON, INC., Appellee.

No. 6482.

United States Court of Appeals First Circuit.

Heard May 3, 1965.
Decided Aug. 30, 1965.

Lawrence B. Biebel, Dayton, Ohio, with whom Dailey L. Bugg, Joseph G. Nauman, Marechal, Biebel, French & Bugg, Dayton, Ohio and Fish, Richardson & Neave, Boston, Mass., were on brief, for appellant.

Melvin R. Jenney, Boston, Mass., with whom Jeremiah Lynch and Kenway, Jenney & Hildreth, Boston, Mass., were on brief, for appellee.

Before ALDRICH, Chief Judge, BREITENSTEIN,1 Circuit Judge, and GIGNOUX, District Judge.


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Appellant makes only one substantial attack upon the judgment of the District Court holding Tansel patents No. 2,725,803 and No. 2,896,523 invalid for lack of invention, Photon, Inc. v. Harris-Intertype Corporation, 235 F.Supp. 921 (1964). It is that the Court failed to recognize that the Tansel patents disclosed the photocell-slit control of the flash, which appellant asserts is the key to a commercially successful photocomposing machine. We do not so read the District Court's opinion. In any event, we ourselves have carefully studied the record and are satisfied that the Tansel patents, construed to include the photocell-slit control, call for nothing more than a combination of elements shown by the prior art cited by the District Court to be old and producing no unexpected result. Accordingly, we agree with the conclusion of the District Court that both patents are invalid for lack of invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950); United Shoe Mach. Corp. v. Industrial Shoe Mach. Corp., 335 F.2d 577, 580 (1st Cir. 1964), cert. denied, 379 U.S. 990, 85 S.Ct. 702, 13 L.Ed.2d 610 (1965); Associated Folding Box Co. v. Levkoff, 194 F.2d 252 (1st Cir. 1952); McCord Corp. v. Beacon Auto Radiator Co., 193 F.2d 985 (1st Cir. 1952).


Judgment will be entered affirming the judgments of the District Court.


By designation