Parker Sweeper Company v. The E. T. Rugg Company

Sixth Circuit

Parker Sweeper Company v. The E. T. Rugg Company

474 F.2d 950, 177 U.S.P.Q. (BNA) 161, 1973 U.S. App. LEXIS 11441

CourtCourt of Appeals for the Sixth Circuit

DecidedFebruary 27, 1973

Docket72-1664

StatusPublished

Cited by7 cases

This text of 474 F.2d 950 (Parker Sweeper Company v. The E. T. Rugg Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parker Sweeper Company v. The E. T. Rugg Company, 474 F.2d 950, 177 U.S.P.Q. (BNA) 161, 1973 U.S. App. LEXIS 11441 (6th Cir. 1973).

Pincite

Opinion

EDWARDS, Circuit Judge.

Appellant Rugg appeals from the District Court’s findings of validity of two Parker Sweeper patents, Patent No. 3,035,294 (hereafter ’294) and Design Patent No. 194,051 (hereafter ’051), and from a judgment granting damages for infringement and enjoining Rugg from further infringement.

The crucial issue in this appeal concerning the ’294 patent is whether or not Parker’s combination patent for a towable, dumpable lawn-leaf sweeper is invalid because the invention it claimed was obvious under the then existing state of the art to one skilled in the art. Although the issue is not without difficulty, we conclude that the combination patent ’294 is invalid for obviousness.

At the outset we note that if the equities between these two adverse parties were all that was at issue, the balance in this record would strongly favor appellee Parker Sweeper for all the reasons cited by the District Judge. Appellant Rugg appeared to the District Judge (and appears to us) deliberately to have copied Parker Sweeper’s commercially successful product. Appellant Rugg prevails not because of merit in its conduct, but because of the national policy of rewarding with patent monopoly only those advances which can properly be characterized as “inventions.” U.S.Const, art. I, § 8; 35 U.S.C. §§ 101, 102, 103 (1970); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941); Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 13 L.Ed. 683 (1850).

The record in this case appears to us to present no important dispute of fact.

*951 On the heels of the development of the small tractor and a lawn mower suitable for towing behind it, a need became apparent for a grass or leaf sweeper which could be similarly employed. Such sweepers were readily available in the art for adaptation to small tractors. But as the president of Parker Sweeper Company testified, they were difficult to dump, since most could be emptied only by turning them over or by lifting out some form of basket or bailing liner. Until Parker’s sweeper (patented under the numbers ’294 as to structure and ’051 as to design) was placed on the market, there was no sweeper which the tractor operator could operate and dump at a desired spot without dismounting. With the production and marketing of Parker’s ’294 sweeper beginning in 1960, its sales of sweepers skyrocketed from 200 per year to over 13,000 per year. Understandably, Parker was concerned when appellee Rugg Company in 1966 began to manufacture a very similar sweeper and to sell it to Sears, Roebuck under the latter’s Craftsman label. After warning Rugg of its claims of patent infringement, Parker began the instant litigation by a complaint alleging infringement by Rugg of both its patents and seeking injunctive relief and damages.

The case was tried fully and it appears to this court that only legal issues remain. With the exception of the last sentence of finding 17 (which we believe to be a conclusion of law), we accept the careful findings of fact of the District Judge. They certainly are not “clearly review them. Fed.R.Civ.P. 52; American Saint Gobain Corp. v. Armstrong Glass Co., 434 F.2d 1216, 1218 (6th Cir. erroneous” — the standard by which we 1970).

As we have indicated, we also agree with the District Judge that the Parker sweeper met the test of utility fully and had sufficient differences in its method of combination of previously known elements to pass the test of novelty.

Nor do we find any fault with the District Judge’s statement of the law applicable to a determination of “obviousness” :

A three-step test has been established by the Sixth Circuit in determining the question of what constitutes “obviousness.” Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corp., 445 F.2d 911 [6th Cir. 1971]. The first step is a factual determination of the prior art; second, a factual determination of what, if any, improvement the patentee has made over the prior art; and third, a legal question of whether the improvement would have been obvious to one skilled in the art. Additionally, the Supreme Court in Graham v. John Deere Company, 383 U.S. 1, [86 S.Ct. 684, 15 L.Ed.2d 545] (1965), has indicated secondary considerations such as commercial success, long felt but unsolved needs, failures of others, etc., as relevant indicia of obviousness or non-obviousness. Such secondary considerations might also be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.

The rationale of the District Judge and of the appellees in dealing with the obviousness test is set forth as follows in the last sentence of finding 17:

The prior art as set forth in the above patents does not appear to be, both collectively and individually, the subject matter therein such as would make the patent in question obvious to a person having ordinary skill in the art.

As we have indicated above, this sentence appears to be the ultimate conclusion of law which the District Judge subsequently supported with this reasoning under the heading of Conclusions of Law:

The state of the prior art has been indicated by the parties through the introduction in evidence of nine patents. They fall naturally into two categories; those of modern origin concerned exclusively with a non-dumpable manually pushed sweeper, *952 and those of the nineteenth century-addressed primarily to the unique problems of that era. The teachings of the prior art do include elements of the patent in question. It would be difficult indeed to imagine a mechanical device for the removal of debris and the deposit of such debris in a receptacle for later emptying that would not follow certain basic physical principles. The combination, however, of such established elements with a useful and novel result does create a patentable device, even though the elements of the combination are old and well known. .

The District Judge and appellants also rely strongly upon secondary considerations and the presumption of validity of a patent once issued:

The secondary considerations referred to in Deere reinforce the non-obviousness of plaintiff’s patent. The move to suburbia following World War II created the enormous and profitable home lawn and garden industry. The riding tractor made grass cutting chores substantially easier. There was needed only some device to remove the grass clippings after cutting during the summer and fallen leaves in the autumn. These tasks continued to be manual, time-consuming, and unpleasant.

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