BELL, Circuit Judge:
This appeal arises out of litigation over a patent. Deere & Company brought an action against defendants charging infringement of Claims 15, 16, 18 and 19 of its patent (U.S. Letters Patent No. 3,397,522 entitled “Cotton Harvester”). By way of a counterclaim, defendants sought a declaratory judgment that the claims in suit were invalid. Infringement was subsequently admitted by defendants, thus leaving only the validity issue for trial. The district court concluded that the claims were invalid, 316 F.Supp. 866, and we affirm.
The device of the patent is the air elevator portion of a cotton stripper wherein ripe and green cotton bolls previously stripped from the cotton stalk are to be separated. The essence of the invention is to eliminate the green bolls in a separation chamber while advancing the ripe bolls through an air elevator to a collection point. The ripe bolls are drawn from the separation chamber by an air system through a blower duct extending vertically in an upward direction from the chamber.
The problem in the industry had been the inability to separate the green and ripe bolls once the green bools began to dry out during the latter part of the season. The practice in the industry was to discharge the ripe bolls through the vertical air duct by producing an air velocity through the use of a fan. In so doing the lighter green bolls were carried through the duct to the collection point along with the ripe bolls. This could be avoided by reducing the air velocity but this resulted in a velocity which was inadequate to carry the ripe bolls upward through the duct.
Under Deere’s patent, a jet pump was substituted for the fan thus creating a primary and secondary air stream. The secondary air stream created a suction, thereby pulling the bolls upward through the duct to be moved to the collection point in combination with the primary air stream. In order to solve the problem of moving only the ripe bolls, Deere employed a means of regulating the velocity of the secondary air stream which was induced by the jet pump. It is a part of the Deere invention to use an air regulating means in the form of an opening above the separation chamber to control the intensity of the secondary stream so as to maintain differing velocities between the air in the separation chamber and in the duct above the opening. This air regulating means or opening is in the form of a window on the vertical duct and above the separation chamber. The velocity of the air stream as between the separation chamber and the duct is regulated by the degree to which the window is opened.
The evidence demonstrated that the result of the Deere device was such that in a test it separated more than 120 pounds of green bolls from the stripped bolls while the nearest competitor separated less than 10 pounds of green bolls. The Deere harvester, employing the patented air elevator, enjoyed immediate commercial success.
Hesston became aware that its cotton stripper could not compete with Deere’s stripper as equipped with the new air elevator and its engineering department was requested to design a competitive machine. Their efforts were finally discarded as unsuccessful and it was decided to copy Deere’s air elevator. This fact is not contested and it is conceded that Hesston’s model 24-A cotton stripper infringes the claims in suit if they are valid.
The district court found that the patent in suit was a mere combination of elements found in- the prior art; that certain prior art patents were more pertinent references against the claims in issue than those considered by the Patent Office; that the lack of invention [906]*906was plain; and that commercial success was not a substitute for invention. The prior art patents which the court deemed more pertinent were the Harazin Patent No. 1,885,437; Herz Patent No. 1,850,719, Gerson Patent No. 453,358, a German patent. Of these, only Harazin was called to the attention of the Patent Office. The court concluded that the claims in suit would have been obvious at the time the alleged invention was made to a person having ordinary skill in the art in question in light of these patents.
The approach to be used in determining obviousness or nonobviousness under the patent statutes, 35 U.S.C.A. § 103,1 was stated in Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, as follows:
“ * * * Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. * * * ” 383 U.S. at 17, 86 S.Ct. at 694.
See also Anderson’s-Black Rock v. Pavement Salvage Co., 1969, 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258; Sisko v. Southern Resin & Fiberglass Corporation, 5 Cir., 1967, 373 F.2d 866; Up-Right, Inc. v. Safway Products, Inc., 5 Cir. 1966, 364 F.2d 580.
We turn then to assaying the pertinent prior art in an effort to determine the correctness of the conclusion of the district court. As will be seen, the pneumatic elevation of cotton and other material as well as pneumatic separation of heavy and light materials was old in the art. Deere combined a jet pump with an air regulating means to solve an extant problem in the cotton harvesting field. It is undisputed that this combination performed a useful function and achieved wide commercial success. The question is whether the combination was “ * * * an invention by the obviousnonobvious standard.” Anderson’s-Black Rock v. Pavement Salvage Co., supra, 396 U.S. at 62-63, 90 S.Ct. at 309.
The Harazin patent, cited to the Pan-tent Office by plaintiff, teaches the use of a jet pump in an air elevator to convey cotton. The secondary streams of air lifts the cotton out of a chamber and into the primary air stream which operates, in turn, to blow the cotton upward through a duct into a collection point. Harazin did not teach the use of the secondary stream to separate light and heavy materials in conjunction with a separation chamber. Harazin did not embrace the prime essential in Deere’s patent: a regulating means for affecting the intensity of the secondary stream in connection with the separation chamber.
Gerson, a German patent, was not cited by the Patent Office. It covered an invention to separate the different ingredients in processed garbage by weight. It employed the jet pump principle for use in the separation chamber and to elevate the lighter materials through a duct to a collection point. There is some indication of an air regulating means in the form of louvers but no indication of regulating the intensity of the secondary air stream as between the force below and above the regulating means as in the patent in suit. It will be seen at this point that the prior art teaches the use of the jet pump to separate and to elevate. This leaves the air regulating means as a method of maintaining an upward force sufficient to move the light material without interfering with the separation process in the separation chamber.
[907]*907This brings us to the Herz patent.
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BELL, Circuit Judge:
This appeal arises out of litigation over a patent. Deere & Company brought an action against defendants charging infringement of Claims 15, 16, 18 and 19 of its patent (U.S. Letters Patent No. 3,397,522 entitled “Cotton Harvester”). By way of a counterclaim, defendants sought a declaratory judgment that the claims in suit were invalid. Infringement was subsequently admitted by defendants, thus leaving only the validity issue for trial. The district court concluded that the claims were invalid, 316 F.Supp. 866, and we affirm.
The device of the patent is the air elevator portion of a cotton stripper wherein ripe and green cotton bolls previously stripped from the cotton stalk are to be separated. The essence of the invention is to eliminate the green bolls in a separation chamber while advancing the ripe bolls through an air elevator to a collection point. The ripe bolls are drawn from the separation chamber by an air system through a blower duct extending vertically in an upward direction from the chamber.
The problem in the industry had been the inability to separate the green and ripe bolls once the green bools began to dry out during the latter part of the season. The practice in the industry was to discharge the ripe bolls through the vertical air duct by producing an air velocity through the use of a fan. In so doing the lighter green bolls were carried through the duct to the collection point along with the ripe bolls. This could be avoided by reducing the air velocity but this resulted in a velocity which was inadequate to carry the ripe bolls upward through the duct.
Under Deere’s patent, a jet pump was substituted for the fan thus creating a primary and secondary air stream. The secondary air stream created a suction, thereby pulling the bolls upward through the duct to be moved to the collection point in combination with the primary air stream. In order to solve the problem of moving only the ripe bolls, Deere employed a means of regulating the velocity of the secondary air stream which was induced by the jet pump. It is a part of the Deere invention to use an air regulating means in the form of an opening above the separation chamber to control the intensity of the secondary stream so as to maintain differing velocities between the air in the separation chamber and in the duct above the opening. This air regulating means or opening is in the form of a window on the vertical duct and above the separation chamber. The velocity of the air stream as between the separation chamber and the duct is regulated by the degree to which the window is opened.
The evidence demonstrated that the result of the Deere device was such that in a test it separated more than 120 pounds of green bolls from the stripped bolls while the nearest competitor separated less than 10 pounds of green bolls. The Deere harvester, employing the patented air elevator, enjoyed immediate commercial success.
Hesston became aware that its cotton stripper could not compete with Deere’s stripper as equipped with the new air elevator and its engineering department was requested to design a competitive machine. Their efforts were finally discarded as unsuccessful and it was decided to copy Deere’s air elevator. This fact is not contested and it is conceded that Hesston’s model 24-A cotton stripper infringes the claims in suit if they are valid.
The district court found that the patent in suit was a mere combination of elements found in- the prior art; that certain prior art patents were more pertinent references against the claims in issue than those considered by the Patent Office; that the lack of invention [906]*906was plain; and that commercial success was not a substitute for invention. The prior art patents which the court deemed more pertinent were the Harazin Patent No. 1,885,437; Herz Patent No. 1,850,719, Gerson Patent No. 453,358, a German patent. Of these, only Harazin was called to the attention of the Patent Office. The court concluded that the claims in suit would have been obvious at the time the alleged invention was made to a person having ordinary skill in the art in question in light of these patents.
The approach to be used in determining obviousness or nonobviousness under the patent statutes, 35 U.S.C.A. § 103,1 was stated in Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, as follows:
“ * * * Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. * * * ” 383 U.S. at 17, 86 S.Ct. at 694.
See also Anderson’s-Black Rock v. Pavement Salvage Co., 1969, 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258; Sisko v. Southern Resin & Fiberglass Corporation, 5 Cir., 1967, 373 F.2d 866; Up-Right, Inc. v. Safway Products, Inc., 5 Cir. 1966, 364 F.2d 580.
We turn then to assaying the pertinent prior art in an effort to determine the correctness of the conclusion of the district court. As will be seen, the pneumatic elevation of cotton and other material as well as pneumatic separation of heavy and light materials was old in the art. Deere combined a jet pump with an air regulating means to solve an extant problem in the cotton harvesting field. It is undisputed that this combination performed a useful function and achieved wide commercial success. The question is whether the combination was “ * * * an invention by the obviousnonobvious standard.” Anderson’s-Black Rock v. Pavement Salvage Co., supra, 396 U.S. at 62-63, 90 S.Ct. at 309.
The Harazin patent, cited to the Pan-tent Office by plaintiff, teaches the use of a jet pump in an air elevator to convey cotton. The secondary streams of air lifts the cotton out of a chamber and into the primary air stream which operates, in turn, to blow the cotton upward through a duct into a collection point. Harazin did not teach the use of the secondary stream to separate light and heavy materials in conjunction with a separation chamber. Harazin did not embrace the prime essential in Deere’s patent: a regulating means for affecting the intensity of the secondary stream in connection with the separation chamber.
Gerson, a German patent, was not cited by the Patent Office. It covered an invention to separate the different ingredients in processed garbage by weight. It employed the jet pump principle for use in the separation chamber and to elevate the lighter materials through a duct to a collection point. There is some indication of an air regulating means in the form of louvers but no indication of regulating the intensity of the secondary air stream as between the force below and above the regulating means as in the patent in suit. It will be seen at this point that the prior art teaches the use of the jet pump to separate and to elevate. This leaves the air regulating means as a method of maintaining an upward force sufficient to move the light material without interfering with the separation process in the separation chamber.
[907]*907This brings us to the Herz patent. It uses a suction fan as distinguished from a jet pump to separate stones and the like from coffee and cocoa beans, peanuts, grains and similar materials and to elevate the lighter materials. It teaches the use of windows between the separation chamber and the vertical air duct as air regulating means to maintain the velocity of the air stream above the windows while reducing the velocity below the windows. The result is different velocities in the same column of air; i. e., as between the lower level (the separation chamber) and the upper level (the elevator or vertical duct). This is the point where Deere fails in its effort to sustain the validity of the claims in suit. We can perceive of no substantial difference in the use or result obtained from the means of air regulation in Herz and in Deere’s patent.
Thus it appears that the jet principle was old in a similar field of endeavor as was the air regulating means. Both the jet principle and the air regulating means principle are in the public domain. The combination of these known elements produced a useful function but the district court did not err in concluding as a matter of law on the fact presented that the combination would have been obvious to those skilled in the art. It is clear that the claims in suit did not constitute an invention by the obvious-nonobvious standard.
It is a peculiarity of patent law that it avails Deere nothing to point out that the combination was not obvious to defendant’s engineers who gave up and copied Deere’s machine. The patent monopoly may not be extended to remove existent and available knowledge from the public domain. Graham v. John Deere Co., 383 U.S. at 5-6, 86 S.Ct. 684.
Affirmed.