Talk:Philips Electric Co. v. Thermal Industries, Inc., 450 F.2d 1164 (1971)

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Courtney

The alleged novelty of the Mayers process, therefore, lies in its utilization, through rapid cooling, of the internal stresses which the prior art had tried to avoid by annealing. 7

Appellant's preliminary contentions on this appeal are: (A) the trial judge erred when he admitted into evidence the microfilm of the Lorenze foreign patent application as a prior "printed publication" within the meaning of 35 U.S.C. Sec. 102(a); and (B) the trial judge erred in concluding that the invention of the patent in suit would have been obvious to those skilled in the art in 1951 from a combination of the Lorenze foreign patent application and the German patent. 22

Section 102 of 35 U.S.C. provides: 23

A person shall be entitled to a patent unless-(a) the invention was * * described in a printed publication in this or a foreign country, before the invention thereof by the applicant. 24

The traditional process of "printing" is no longer the only process synonymous with "publication." The emphasis, therefore, should be public dissemination of the document, and its availability and accessibility to persons skilled in the subject matter or art. 27

The field is rapidly undergoing change and improvement. To restrict our interpretation of Section 102(a)'s "printed" publication requirement solely to the traditional printing press would ignore the realities of the scientific and technological period in which we live and the underlying rationale of Section 102. We hold, therefore, that the term "printed" as used in Section 102 can include documents duplicated by modern methods and techniques, including the now well established process of microfilming. Whether or not an individual microfilm is a "printed" publication within the meaning of the statute is a question of fact which ought to be determined by the application of criteria consonant with modern day methods of printing, duplicating and disseminating documents. 28

The trial court found that all of the individual elements of the Mayers process were contained in the prior art.

The question of obviousness is highly dependent upon the skill of the ordinary worker in the art. If the incremental knowledge added by the patent to the prior art is a result of the application of mere mechanical skill by one familiar with the art, then the standard of invention has not been met.

Although the appellant makes no allusions to it, we note an adverse consideration in the history of this patent at the patent office. Although the alleged invention was conceived as early as 1950, the ultimate patent was not issued until May 22, 1962, after a long and tortuous course in the patent office. It is another illustration of what Judge Learned Hand has referred to as the "ant like persistence of solicitors" which overcomes "the patience of examiners, and there is apparently always but one outcome." See Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y. 1924).