NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CIMLINE, INC., 

Plaintiff-Appellant, 

v. 

CRAFCO, INC., 

Defendant-Appellee. 

__________________________ 

2010-1348 

__________________________ 

Appeal from the United States District Court for the 

District of Minnesota in case no. 07-CV-3997, Judge 

Richard H. Kyle. 

__________________________ 

Decided: March 2, 2011 

__________________________ 

PAUL R. SMITH, Foley & Mansfield, PLLP, of Minneapolis, Minnesota, argued for plaintiff-appellant. With him 

on the brief was LAURIS A. HEYERDAHL. 

CASEY A. KNISER, Patterson Thuente Christensen 

Pedersen, P.A., of Minneapolis, Minnesota, argued for 

defendant-appellee. With him on the brief was ERIC H.

CHADWICK. 
CIMLINE v. CRAFCO 2

__________________________ 

Before RADER, Chief Judge, GAJARSA and PROST, Circuit 

Judges. 

PROST, Circuit Judge. 

Plaintiff-Appellant Cimline, Inc. (“Cimline”) appeals 

the district court’s dismissal of its complaint seeking, 

inter alia, a declaration of invalidity or noninfringement 

of U.S. Patent No. 5,967,375 (“’375 patent”) and the 

court’s sua sponte entry of summary judgment in favor of 

Defendant-Appellee Crafco, Inc. (“Crafco”) on its counterclaim for infringement. Cimline, Inc. v. Crafco, Inc., 672 

F. Supp. 2d 916 (D. Minn. 2009). Thereafter, the parties 

stipulated to $25,000 in damages for infringement of the 

’375 patent and the district court entered an injunction 

against Cimline. We affirm-in-part, vacate-in-part and 

reverse-in-part the district court’s judgment because the 

’375 patent is invalid. 

BACKGROUND

Cimline and Crafco are competitors in the market for 

the manufacture and sale of sealant melters. Sealant 

melters are heavy machinery equipment that are often 

trailered and used to heat and melt blocks of sealant. The 

melted sealant is poured into cracks in roadway surfaces 

to seal them and prevent further deterioration of the 

roadway. Early sealant melters did not include conveyor 

belts. Thus, heavy sealant blocks were hoisted to the top 

of the sealant melter box and dropped into a reservoir 

tank, sometimes called the “kettle.” This manual task 

posed some danger to the operator, since the sealant 

blocks are heavy and can cause hot sealant to splash back 
3 CIMLINE v. CRAFCO

onto the operator when dropped into the kettle. Hot 

sealant can cause serious burns. 

In the mid-1990s, employees of the Pennsylvania Department of Transportation (“PennDOT”) sought a better 

way to load sealant blocks into the melter. PennDOT 

made modifications to sealant melters purchased from 

Crafco. Specifically, PennDOT added a manual conveyor 

belt attached to a splash box affixed at the top of the 

kettle. Propelled by gravity, sealant blocks would travel 

down the manual conveyor belt and drop through a 

hinged door at the top of the splash box. The hinged door 

would prevent hot sealant from splashing back when the 

sealant block was dropped into the kettle. Because sealant blocks traveled down the manual conveyor belt under 

the force of gravity, only one block at a time could be 

loaded onto the conveyor belt. 

Crafco sent an employee to PennDOT to observe the 

modifications to its machine. Thereafter, Crafco sent a 

letter to PennDOT warning it that Crafco would not 

honor the warranty on modified sealant melters and that 

Crafco could not be held liable for injuries resulting from 

use of the modified melters. Later, Crafco attended a 

sales meeting with PennDOT and PennDOT requested 

that Crafco make a sealant melter similar to the modified 

melters, but having a powered conveyor belt that could 

drop sealant blocks through a splash box. Crafco agreed 

and assigned the redesign project to a new employee, Mr. 

David Barnes. Ultimately, Mr. Barnes, the named inventor, delivered a redesigned sealant melter satisfying 

PennDOT’s requirements and Crafco filed a patent application on this redesign, which matured into the ’375 

patent. 
CIMLINE v. CRAFCO 4

Though the extent of Mr. Barnes’s knowledge of the 

scope of the prior art at the time of invention is in dispute, the actual scope of the prior art is not. First, Crafco 

sold sealant melters without conveyor belts or splash 

boxes in the 1990s. Those sealant melters were modified 

by PennDOT to add manual conveyor belts and splash 

boxes. The record evidence shows, however, that Crafco 

built and delivered sealant melters to the Texas Department of Transportation in the 1980s. Those sealant 

melters included both a manual conveyor belt and a 

splash box. It is unclear why Crafco sold sealant melters 

without a conveyor belt and a splash box to PennDOT in 

the 1990s when it had previously sold sealant melters 

with a conveyor belt and a splash box in the 1980s. It is 

undisputed, however, that sealant melters using a manual conveyor belt and a splash box were in the prior art 

since at least the 1980s. 

The ’375 patent issued on October 19, 1999, with 

twenty-three claims. Crafco asserts three dependent 

claims: claims 4, 5, and 23. Claims 4 and 5 depend from 

claim 1, which requires: 

A sealant melter, comprising: 

(A) mobile frame; 

(B) heated sealant tank mounted on said frame, 

said sealant tank having a liquid sealant discharge opening and an upper sealant block inlet 

opening; 

(C) a splash box disposed above said inlet opening 

of said sealant tank, said splash box having an 

upper splash box inlet and having a lower splash 
5 CIMLINE v. CRAFCO

box outlet disposed above said inlet opening of 

said sealant tank; and 

(D) a sealant block conveyor which conveys sealant blocks from a source to said splash box inlet, 

said sealant block conveyor having 1) a discharge 

end positioned adjacent said splash box inlet and 

2) an inlet end; and wherein said inlet end of said 

sealant block conveyor is vertically adjustable 

relative to said frame. 

Claim 4 adds the requirement that the “sealant block 

conveyor is a powered conveyor” and claim 5 adds a 

requirement to the sealant melter of claim 4, wherein the 

device includes a control assembly mounted at the inlet 

end of the sealant block conveyor. J.A. 73. Claim 23 

depends from independent claim 21, which includes 

additional limitations on the dimensions of the splash box 

and a requirement that the splash guard close before the 

sealant block enters the pool of melted sealant in the 

kettle. Figure 1, shown below, includes a depiction of an 

exemplary embodiment of a sealant melter being towed by 

a vehicle. 
CIMLINE v. CRAFCO 6

In 2000, Crafco offered to sell its patented device to 

Cimline. Cimline did not respond. Several years later, 

Cimline offered to rent its new sealant melters to PennDOT. Crafco advised Cimline that the Cimline sealant 

melters copied Crafco’s patented technology. Cimline 

then built a sealant melter that it thought designed 

around the ’375 patent. Crafco, however, continued to 

assert that Cimline’s redesign infringed the ’375 patent. 

Thus, Cimline filed suit against Crafco seeking, inter alia, 

a declaration that the ’375 patent is invalid, or alternatively—if the ’375 patent is valid—a declaration that 

Cimline’s sealant melter does not infringe. 

Upon Crafco’s motion for summary judgment on the 

counts alleged in Cimline’s complaint, the district court 

dismissed Cimline’s invalidity count noting that “Cimline 

has not satisfied its burden of creating a genuine issue of 

fact concerning invalidity” under 35 U.S.C. §§ 102(b) and 

103(a). Cimline, 672 F. Supp. 2d at 927. The district 

court sua sponte granted summary judgment to Crafco on 

infringement of the ’375 patent under the doctrine of 

equivalents by Cimline’s sealant melter. Id. at n.16. The 
7 CIMLINE v. CRAFCO

district court dismissed all claims of the complaint with 

prejudice and entered an injunction against Cimline. 

Cimline appealed and we have jurisdiction under 28 

U.S.C. § 1295(a)(1). 

DISCUSSION

We review a district court’s grant of summary judgment de novo. Revolution Eyewear, Inc. v. Aspex Eyewear, 

Inc., 563 F.3d 1358, 1365 (Fed. Cir. 2009). Summary 

judgment is appropriate where there is no genuine issue 

of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); AquaTex 

Indus., Inc. v. Techniche Solutions, 419 F.3d 1374, 1379 

(Fed. Cir. 2005). Thus, summary judgment may be 

granted when no “reasonable jury could return a verdict 

for the nonmoving party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). 

A court of appeals, in the absence of a formal counterclaim or cross-motion requesting relief, may nonetheless 

enter judgment in favor of the non-moving party when 

there are no material issues of fact in dispute and the 

parties have had the opportunity to argue all relevant 

issues. See First Nat’l Bank v. Md. Cas. Co., 290 F.2d 246 

(2d Cir. 1961), cert. denied, 368 U.S. 939 (1961); Procter & 

Gamble Indep. Union v. Procter & Gamble Mfg. Co., 312 

F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830 (1963); 

see, e.g., UMC Elecs. Co. v. United States, 816 F.2d 647, 

657 (Fed. Cir. 1987), cert. denied, 484 U.S. 1025 (1988) 

(when facts are undisputed and issue is solely one of law, 

appellate court need not remand but may resolve issue); 

Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1368 

(Fed. Cir. 1997) (invalidating patent for failure to meet 

the enablement requirement when the parties’ arguments 

had been fully vetted); see also Campaign for Family 
CIMLINE v. CRAFCO 8

Farms v. Glickman, 200 F.3d 1180, 1186-87 (8th Cir. 

2000); 28 U.S.C. § 2106 (“The Supreme Court or any other 

court of appellate jurisdiction may affirm, modify, vacate, 

set aside or reverse any judgment, decree, or order of a 

court lawfully brought before it for review, and may 

remand the cause and direct the entry of such appropriate 

judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”); 10A Charles Alan Wright, Arthur R. Miller & 

Mary Kay Kane, Federal Practice and Procedure §§ 2716, 

2720 (3d ed. 1998). 

‘‘Obviousness is a question of law based on underlying 

findings of fact.’’ In re Kubin, 561 F.3d 1351, 1355 (Fed. 

Cir. 2009). A patent is invalid for obviousness “if the 

differences between the subject matter sought to be 

patented and the prior art are such that the subject 

matter as a whole would have been obvious at the time 

the invention was made to a person having ordinary skill 

in the art to which said subject matter pertains.” 35 

U.S.C. § 103(a). The underlying factual inquiries are (1) 

the scope and content of the prior art, (2) the differences 

between the prior art and the claims at issue, (3) the level 

of ordinary skill in the art, and (4) any relevant secondary 

considerations, such as commercial success, long felt but 

unsolved needs, and the failure of others. KSR Int’l Co. v. 

Teleflex Inc., 550 U.S. 398, 406 (2007) (citing Graham v. 

John Deere Co., 383 U.S. 1, 17-18 (1966)). 

I 

The district court determined that Cimline failed to 

offer sufficient evidence of obviousness necessary to 

satisfy its burden of demonstrating a genuine issue of 

material fact to survive summary judgment. In particular, the district court noted that Cimline did “little more 
9 CIMLINE v. CRAFCO

than point to the products Crafco sold in the 1980s and 

PennDOT’s modifications and then assert, in a conclusory 

fashion, that the ’375 patent must have been obvious in 

light of those products.” Cimline, 672 F. Supp. 2d at 925. 

Though the issue of obviousness was scantly briefed to the 

district court, the parties’ oral argument to this court 

focused primarily on the obviousness issue, with the 

parties agreeing that there are no material issues regarding the underlying factual inquiries on the legal determination of obviousness. See, e.g., Oral Argument at 4:27-

48, available at

http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-

1348.MP3. We agree that there are no genuine issues of 

fact regarding the underlying factual inquiries of the 

obviousness analysis and address each factor in turn. 

The scope and content of the prior art and the differences between the prior art and the claims at issue are 

not in dispute. The prior art includes sealant melters 

built by Crafco in the 1980s and sold to the Texas Department of Transportation. Those sealant melters 

included splash boxes and manual conveyor belts. Likewise, the sealant melters modified by PennDOT in the 

mid-1990s included splash boxes and manual conveyor 

belts. The prior art also includes powered conveyor belts 

like those used in the mining industry. Mr. Barnes, the 

named inventor of the ’375 patent, testified that powered 

conveyor belts existed for perhaps as many as seventyfive years. When compared to the prior art, the asserted 

claims of the ’375 patent differ in only one way: the use of 

a powered conveyor controlled by a switch. Though 

Crafco asserts that the splash box limitations of claim 23 

also differentiate its invention from the prior art, the 

testimony of inventor Barnes indicates that the splash 

box of the PennDOT sealant melter was the same as the 

splash box of the ’375 patent. 
CIMLINE v. CRAFCO 10

There is no dispute regarding the level of ordinary 

skill in the art. Further, the parties do not dispute any 

evidence regarding secondary considerations. For instance, at oral argument, Cimline was questioned regarding the existence of factors such as long felt need and the 

delay in combining powered conveyor belts with sealant 

melters. Oral Argument at 5:28-7:00. Crafco, however, 

offered no response to Cimline’s answers. Thus, no issue 

of fact exists regarding the underlying factual inquiries of 

the obviousness analysis. 

Cimline argues that the ’375 patent is obvious because it discloses an invention that is merely the combination of prior art sealant melters—having manual 

conveyor belts and splash guards—with powered conveyor 

belts. Citing the report of its expert, Cimline argues that 

powered conveyor belts were in the prior art since at least 

the 1980s and for at least seventy-five years, according to 

the inventor of the ’375 patent. Cimline contends that 

Crafco’s combination of prior art sealant melters with a 

powered conveyor belt yielded nothing “more than the 

predictable use of prior art elements according to their 

established functions.” KSR, 550 U.S. at 417. Also, 

Cimline argues that the district court incorrectly suggested that “the focus instead must be on whether there 

exists ‘a reason that would have prompted a person of 

ordinary skill in the relevant field to combine’ a powered 

conveyor with a sealant melter.” Id. at 418; Appellant Br. 

at 38. Cimline further asserts that the district court 

erred in failing to apply common sense to determine that 

the combination of prior art sealant melters with powered 

conveyor belts is obvious. 

Crafco responds that the district court correctly determined that Cimline offered “almost no evidence to 

support its allegations of obviousness.” Appellee Br. at 8. 
11 CIMLINE v. CRAFCO

Crafco asserts that the conclusory opinions of Cimline’s 

expert failed to create any genuine issue of fact regarding 

obviousness and the district court was correct to discredit 

this evidence. See Innogenetics N.V. v. Abbott Labs., 512 

F.3d 1363, 1373-74 (Fed. Cir. 2008). Specifically, Crafco 

asserts that although powered conveyors were in the prior 

art, the prior use of these conveyors did not address the 

safety aspects addressed by the ’375 patent. According to 

Crafco, the use of the powered conveyor belt in the ’375 

patent improves the safety of the sealant melter by allowing sealant blocks to be lined up end-to-end while the 

operator drops them one-by-one into the melter, thereby 

avoiding harmful burns from hot sealant splashing back 

on the operator. 

II 

As a preliminary matter, we find fault with the district court’s reliance on pre-KSR decisions and its focus on 

whether there existed explicit teachings as to “a reason 

that would have prompted a person of ordinary skill in 

the relevant field to combine” a powered conveyor with a 

sealant melter. Cimline, 672 F. Supp. 2d at 926. The 

Supreme Court set forth a flexible inquiry in KSR, which 

allows for a court “to take account of ‘the inferences and 

creative steps,’ or even routine steps, that an inventor 

would employ.” Ball Aerosol & Spec. Container v. Ltd. 

Brands, 555 F.3d 984, 993 (Fed. Cir. 2009). When taking 

these inferences and creative or routine steps into account, it may be proper to conclude that the result of a 

“combination [of prior art] would have been entirely 

predictable and grounded in common sense” under the 

proper set of facts. Id. 

Our cases which have relied on “common sense” consistently teach that “factfinders may use common sense in 
CIMLINE v. CRAFCO 12

addition to record evidence” to determine the legal issue 

of obviousness. Perfect Web Tech., Inc. v. InfoUSA, Inc., 

587 F.3d 1324, 1329 (Fed. Cir. 2009); see also Wyers v. 

Master Lock Co., 616 F.3d 1231, 1239 (Fed. Cir. 2010); 

Ball Aerosol, 555 F.3d at 993. In bridging the gap between prior art references and a conclusion of obviousness, the factfinder may rely on the prior art references 

themselves, the knowledge of those of ordinary skill in the 

art, the nature of the problem to be solved, market forces, 

design incentives, the “interrelated teachings of multiple 

patents,” “any need or problem known in the field of 

endeavor at the time of invention and addressed by the 

patent,” or the background knowledge, creativity, and 

common sense of the person of ordinary skill. KSR, 550 

U.S. at 418–21; see also Ruiz v. A.B. Chance Co., 234 F.3d 

654, 665 (Fed. Cir. 2000). While we note that the district 

court was without the benefit of our opinions in Perfect 

Web and Wyers at the time of its opinion,1 these cases on 

“common sense” derive from the Supreme Court’s direction in KSR and we apply the law as it stands today. 

The ’375 patent discloses a sealant melter having a 

powered conveyor and a splash guard box. As compared 

to the prior art, the ’375 patent differs only in that the 

prior art used a manual, gravity-propelled conveyor belt. 

The improvement achieved by the modification disclosed 

in the ’375 patent in using a powered conveyor belt, 

rather than a manual conveyor belt, is that multiple 

blocks of sealant could be placed end-to-end on a conveyor 

belt. The operator could then cause single blocks of 

sealant to drop into the melter one-by-one by toggling a 

 1 Our opinion in Perfect Web issued on the same day 

that Judge Kyle issued his opinion, Cimline, 672 F. Supp. 

2d at 916. Our opinion in Wyers followed later. 
13 CIMLINE v. CRAFCO

remote switch, as needed, to complete a roadway maintenance project. 

The combination of prior art sealant melters having a 

manual conveyor belt with a powered conveyor belt requires nothing more than common sense to appreciate the 

resultant advantage. The claimed invention of the ’375 

patent represents no more than “the predictable use of 

prior art elements according to their established functions.” KSR, 550 U.S. at 417. Further, it is clear that a 

person of ordinary skill would have perceived a reasonable expectation of success in the combination of these 

two elements of the prior art. See In re O’Farrell, 853 

F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 

103, all that is required is a reasonable expectation of 

success.”). None of Crafco’s arguments to the contrary are 

convincing. The teachings of “common sense” in this case 

derive not only from the nature of the problem to be 

solved, but also from market forces themselves. As to the 

nature of the problem to be solved, the record evidence 

shows that it is common sense that an object, such as 

coal, can travel along a powered conveyor and will stop 

when the power to the conveyor is turned off. J.A. 384-86. 

As to market forces, these are clearly evidenced by the 

sales meeting and production request that PennDOT 

made of Crafco after Crafco witnessed PennDOT’s modifications to early Crafco sealant melters. 

Crafco’s argument that the district court correctly 

found a lack of evidence as to obviousness and properly 

discounted the evidentiary value of Cimline’s expert 

report is likewise unavailing. The obviousness analysis 

may “include recourse [by the factfinder] to logic, judgment, and common sense available to the person of ordinary skill that do[es] not necessarily require explication 

in any reference or expert opinion.” Perfect Web, 587 F.3d 
CIMLINE v. CRAFCO 14

at 1329. By extension, expert reports—even credible 

experts reports—are not required when the underlying 

factual considerations are resolved by resort to common 

sense. Here, the technology is easily understandable, 

even without the assistance of expert opinion. Centricut, 

LLC v. Esab Group, Inc., 390 F.3d 1361, 1369 (Fed. Cir. 

2004). Thus, the district court erred in concluding that a 

lack of evidence existed as to the underlying factual 

considerations of the obviousness analysis. Cimline, 672 

F. Supp. 2d at 926-27. The court further erred in applying the heightened burden placed on expert reports opining as to obviousness by Innogenetics. 512 F.3d at 1363 

(requiring a heightened burden of explanation in an 

expert report regarding motivation to combine references 

for a technology involving the detection and classification 

of hepatitis C genotypes in a biological sample). Our 

cases distinguish the need for and breadth of required 

expert disclosure when the underlying technology is 

“easily understandable.” Compare Perfect Web, 587 F.3d 

at 1329-30 with Innogenetics, 512 F.3d at 1363. 

While unnecessary in an obviousness analysis where 

the factual inquiries are resolved by application of common sense, Perfect Web, 587 F.3d at 1329, we note that 

Cimline’s submitted expert report in this case acknowledges that conveyors are nothing new in the industry and 

powering a conveyor is something that has been done in 

the past and is not technically difficult to accomplish. We 

agree. The automation of mechanical equipment once 

operated manually is commonplace and reasonably obvious to one of ordinary skill. See, e.g., Leapfrog Enters. v. 

Fisher–Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) 

(“Accommodating a prior art mechanical device . . . to 

modern electronics would have been reasonably obvious to 

one of ordinary skill . . . .” and “has been commonplace in 
15 CIMLINE v. CRAFCO

recent years.”). This evidence fully supports our conclusion that the ’375 patent is invalid for obviousness. 

CONCLUSION

This case presents the rare procedural occurrence in 

which the Appellant, Cimline, failed to file a cross-motion 

for summary judgment in response to Crafco’s motion for 

summary judgment. The parties have had an opportunity 

to be fully heard, however, and there are no disputed 

issues of material fact regarding obviousness. Thus, the 

legal determination of obviousness is amenable to complete adjudication upon appellate review and we exercise 

our authority and discretion to decide this case in the 

interest of judicial economy. See Brown v. J.B. Hunt 

Transp. Servs., Inc., 586 F.3d 1079, 1088 n.6 (8th Cir. 

2009) (disposing of appellant’s claims on appellate review 

despite appellant’s failure to file a cross-motion for summary judgment, where the facts were undisputed); 28 

U.S.C. § 2106. 

We conclude that it is a matter of common sense to 

combine a prior art sealant melter with a powered conveyor to create the sealant melter claimed in the ’375 

patent. The intended results achieved by this combination would be perceived as having a reasonable expectation of success to a person of ordinary skill. Therefore, 

the district court’s dismissal with prejudice of Cimline’s 

invalidity and noninfringement counts in its Amended 

Complaint is vacated. The district court’s entry of stipulated damages and an injunction against Cimline is also 

vacated. The court’s grant of summary judgment in favor 

of Crafco on validity and infringement is reversed. We 

affirm-in-part the district court’s summary determination 

as to Cimline’s antitrust and unfair competition claims. 

Judgment is entered in favor of Cimline on its invalidity 
CIMLINE v. CRAFCO 16

and noninfringement counts because we hold that the ’375 

patent is invalid. 

AFFIRMED-IN-PART, VACATED-IN-PART, 

REVERSED-IN-PART