Earl Warren: We'll hear arguments next in 75-110, Sakraida against Ag Pro Incorporated.
Stephen B. Tatem, Jr.: Mr. Chief Justice, may it please the Court. My name is Stephen Tatem from El Paso, Texas and I represent the petitioner in this case that has been sued for violating United States Letters Patent entitled Dairy Establishment. The patent was filed on November the 5th of 1963 and was finally issued on November the 14th of 1965. It has been admitted in this case and so found by the Fifth Circuit that every element in this patent consisting of 13 elements is old in the art. In a part of the Fifth Circuit opinion which has validated of this patent on the basis that it exhibits novelty and is not obvious, the court has specifically said that while this honorable court rejected its rationale Graham when it validated a patent on the basis that an old result in a cheaper and otherwise more advantageous way. Although the court rejected that proposition, the Fifth Circuit in this case confessed that it was ignorant as to what test, if any, this Court substituted or what had struck out. It is submitted that this case is controlled and govern by the decisions in this case written by this Court in Anderson's-Black Rock, Graham versus John Deere, A. & P. and Lincoln Engineering. It is our position that the Court of Appeals erred in setting aside the trail court findings on three different occasions to the affect that this combination patent did not show novelty, none obviousness and that under Rule 52, they are supported by credible evidence, were not clearly erroneous and they were reached by proper application of the law to the facts.
Potter Stewart: We did – it was settled in the federal courts generally that the findings of novelty well non, utility well non, obviousness well non of the District Court are subject to the standards of Rule 52 i.e. that there is findings of fact not of law.
Stephen B. Tatem, Jr.: Mr. Justice, it is my understanding and I confess that I am not a patent attorney. This by chance is the first patent case that I have ever had the pleasure to be dealing with, but as I understand that law in this Court's enactment in the Graham case, while the three inquiries that are asked under Section 103 are considered factual inquiries, a final determination as to whether or not a patent is or is not valid is a question of law to which this Court and only this Court is the final arbiter. I'm also of the opinion that the question of novelty would be in that same category.
William H. Rehnquist: Well, Mr. Tatem, I don't know if Justice Stewart feels completely satisfied with your answer to his question, but I am anyway left with some uncertainties. You say, it is initially a question of fact but in the last analysis it's a question of law. Does that mean only when it's so clear that reasonable people couldn't disagree or only when it falls outside a clearly erroneous standard is it a question of law or is this basically a question of law initially rather than a question of fact?
Stephen B. Tatem, Jr.: Well, I believe that the validity of a patent is a question of law. In making that determination whether it's the trial court or the Court of Appeals or in this Court of necessity in reaching the question of whether or not it is non-obvious, there are certain factual inquiries that lay the predicate as to whether or not the final decision in obvious, non-obviousness is one of law. I think that it is relevant in understanding what is involved in this particular patent, and the only – the only means that we are talking about in this particular patent that is allegedly new and outside the prior art is the means to house or hold water at upper end of a dairy barn in a pool or on the floor so that when it – so that it can be released suddenly to flow downhill and as it flows downhill, the natural propensity of water removes manure that is on or on deposit on a concrete floor. I think it is important for this Court to understand first, what are the basic features of what I refer to as standard grade “A” dairy barn floor plan and the reason for that is, is they are fairly standard. They are regulated in order to be able to sell and produce grade “A” milk, you have to have certain sanitary conditions in order to be entitled to that type of production. First basic to a modern dairy is the fact that the floor is concrete, it is paved. It generally slopes downhill towards a drain. The reason for that is to allow or to assist water that is on the floor to be removed. The floor itself is contoured or it is shaped to try to avoid puddles. There are may or may not be groves in the concrete. The groves would allow or assist water to remove manure that maybe deposited on the floor.
Speaker: (Inaudible) page 27 of the exhibit.
Stephen B. Tatem, Jr.: Well, Mr. Kolisch has reproduced in a supplemental appendix beginning on page 11 his patent of the supplemental appendix which is this one. Now, the patent is also in evidence and is a part of the single volume appendix although I confess it is a little harder to read because it's small.
Speaker: (Inaudible)
Stephen B. Tatem, Jr.: Yes. I would just refer you to the larger one because it's easier at page 11.
Potter Stewart: It's also a movie I understand from early release, knock it down to a two and a half movie that the respondents at least tell us we ought to look at before we try to –-
Stephen B. Tatem, Jr.: Well, in all candor Mr. Justice, the two and a half minute movie was not in evidence. There is a larger one – there is a larger movie. I think it was about 15 or 20 minutes.
Potter Stewart: (Inaudible) of two and a half minute version, maybe I misunderstood.
Stephen B. Tatem, Jr.: I think there may be one that is filed. There may be one that is filled but –-
John Paul Stevens: There is one that's filled, the objective effect as some of us looked at it.
Stephen B. Tatem, Jr.: Well –-
John Paul Stevens: We thought it was in the record.
Potter Stewart: I thought it was – there was a movie in the record.
Stephen B. Tatem, Jr.: There was a movie in the record Your Honor, but that was the one it was introduced in the trial court before Judge Gwen in El Paso and it's about 15 or 20 minutes. And as I understand, the one that has been asked to be shown in argument is an edited movie not from the same one and we would object to that being shown because it's an attempt to supplement the record, or it is not the same movie that was in –-
Potter Stewart: It was in the record --
Stephen B. Tatem, Jr.: I don't know that it is from the same movie Your Honor.
Potter Stewart: It goes to the record as an appendix goes to the record, it's an abbreviation --
Stephen B. Tatem, Jr.: Well --
William J. Brennan, Jr.: And you say it's not – you don't know it is an abbreviation of the movie in the record, is that it?
Stephen B. Tatem, Jr.: That is true.
William H. Rehnquist: Is it your position that a justice of the court who had seen that two or three minute movie ought to disqualify himself?
Stephen B. Tatem, Jr.: Your Honor –-
Byron R. White: (Inaudible) out of this case on respect –- [Laughter]
Stephen B. Tatem, Jr.: No, I don't want to disqualify any judge. I can't make a decision on that because I haven't seen the movie that you are thinking about. I don't want you to –-
William J. Brennan, Jr.: (Inaudible) I gather what you said you feel I ought not look at it.
Stephen B. Tatem, Jr.: If it's not the same movie in evidence, that's right. But I wouldn't say that the movie is going to disqualify judge that has looked at it.
William J. Brennan, Jr.: I haven't seen it and even though it was being shown I didn't know it was here.
Stephen B. Tatem, Jr.: If there is a movie – if the Court wants to see the one that it was in evidence is the 15 or 20 minute.
William J. Brennan, Jr.: But it's not here.
Stephen B. Tatem, Jr.: I think it is. So far as I understand it that it is. I was asked for -- specifically to have all of the exhibits from the Fifth Circuit up here and I was under the impression that was here --
Byron R. White: (Inaudible)
William J. Brennan, Jr.: If I look at any I should look at that and not the two and a half minute abbreviated version. That should --
Stephen B. Tatem, Jr.: That would be my position.
William J. Brennan, Jr.: All right.
John Paul Stevens: Counsel the respondent's brief says that two and a half minute film script was shown to the Fifth Circuit at the argument on the merits, so you must have seen it then?
Stephen B. Tatem, Jr.: No sir, I was not at the Fifth Circuit.
John Paul Stevens: Oh I see.
Stephen B. Tatem, Jr.: It was my understanding as long as the matter has been raised that the movie that was offered to the Fifth Circuit was from the same movie. We are not sure now. It may be but I am saying that there has been some question raised about it and I am not in a position to say because I did not see the movie.
Potter Stewart: I hope you and your fellow counsel get this straight now because I frankly have been planning to look at the movie because I can often understand things better that way by contrast by looking at drawings and blueprints. And so if probably after your argument you and counsel get together either saying, “This is a proper part of this case or isn't” I'd be understood to knowing because I've been planning to look at the movie.
Stephen B. Tatem, Jr.: All right sir.
Warren E. Burger: (Inaudible) which it was that the Fifth Circuit saw, that is the two and a half minute abridged version or the full version because we should certainly have available to us whatever the Fifth Circuit saw if we want to look at it.
Stephen B. Tatem, Jr.: All right sir. I believe, I may be wrong, but I thought the Fifth Circuit had two movies there. I may be wrong but I thought all the exhibits were also before the Fifth Circuit. On top of the floor are cow stalls, feeding area, milking area, and holding area and the cow of necessity needs to walk from various areas to the other -- on this concrete floor. Also, in standard dairy barn is some type of trough or tank which holds the water. Now, I submit to the Court, that in the mid 1960s, when the application for this particular patent was submitted, and if we look at the definition of how Webster defines flush, to mean a sudden release or washout, sudden rapid flow of water to flood, it would be most difficult to come up with a new idea that added to the sum of useful knowledge with a “flush system” because by definition, we are dealing with water that must be suddenly released as a rapid rate of flow to wash out, to flow or to flood in order to have a flush system by definition. The respondent's expert Mr. Hubert has given us a detailed explanation of how this flush concept works. It's in the appendix beginning at page 114 through 116, but its basic concept is, that when water begins to flow it creates energy which serves as a cleaning action and that the natural propensity of water as it flows downhill is to have the bottom of the water on to the floor, the top surface of the water goes faster and therefore as the water flows downhill, it has a natural cleaning action. The basic propensity of water is generally related to the amount of the water released and the slope or the grade of the floor onto which it is released. Now, when we get to this point in the record and it was in the record before it is in our briefs, we had cited this reference before, I think it is relevant to discuss this legend of Hercules. What did he do? It is recorded, it is only a legend but it is recorded in Greek Mythology in that as Hercules as his fifth labor saw the conditions of stables, he at a single glance diverted the stream of Alpheus to clean the stables of the filthy manure on the floor.
William H. Rehnquist: Is that the basis for your claim of non-obviousness?
Stephen B. Tatem, Jr.: No, sir, it is not.
Speaker: (Inaudible)
Stephen B. Tatem, Jr.: It certainly does. I would cite the Court –-
John Paul Stevens: How long did it take them to reduce that concept to practice?
Stephen B. Tatem, Jr.: Well, I would say until the time of the bucket, because it is submitted and again I have to be in all candor with the Court, it seems that this tank is simply the release of – we are talking about a tank that has 2000 gallons of water and releasing 2000 gallons of water of itself is going to bring about some action and we maintain that that is not a noble idea, it is not add to the some of the useful knowledge, but I do direct the Court's attention to some prior art that is recorded and that is set out in some detail beginning on page five of our reply brief. The first of the patents is the McCornack patent which again it is much more legible that if it is looked in the blue appendix, it's much larger beginning on page 55. McCornack patent by chance is named Dairy Plant. The patent we are talking about is Dairy Establishment. The patent to McCornack was issued on June 1st of 1937, but the McCornack patent deals with the idea of trying to save labor both as to the milking and removal of manure operation and for disposing of the manure or slurry as a natural fertilizer after the operation is complete. McCornack teaches that and they also use the word flush specifically in the specifications that the milking benches and gutters are washed, the water flows from the shoals, flushes simultaneously by means of a common valve. McCornack teaches that what happens is that the operator who was located near the rear of the cows steps on a foot pedal in the floor that releases the water against the shoals which flows downhill. I also cite the Court's attention to the patent of Bogert which begins on page five through seven of the reply brief. Bogert specifically deals with an apparatus for cleaning the surfaces of barns. Its application for patent was issued on March the 4th of 1941. Now, in the Bogert, Bogert refers to “A fluid cleaning medium” which when you read the specifications is water. Bogert refers to a “fluid cleaning medium supply tank” which is attached on the floor at the upper end of this particular barn, which when a ‘cap valve' and I direct the Court's attention to the visualization of this, it's very similar to the top of commode seat, it's on page 75. That is his basic layout but be that as it may, this for your will commode seat is picked up by chain which causes the water to be stored in this “fluid cleaning medium supply tank” to go downhill by gravity and then enter the various gutters. Now, I want to point out specifically that in Bogert, which is the March 4, 1941 patent, the cows were arranged so that the manure of necessity fell into a gutter. It did not flow onto the floor. So, therefore, the fluid from the fluid cleaning medium supply tank only flushed the gutter. The patent in question – the cows – the manure is not necessarily deposited in such manner. In other words it is not accumulated solely in a gutter. So here's tank is water. I want to refer the Court specifically to the language of the patent office on page 13 through 15 of my brief. In examining these prior art publications the patent office said this, since the patent in McCormick discloses that is old in the art to flush cattle stalls and to collect for fertilizer, it is held to be an obvious expedient under 35103 to provide the (Inaudible) Dairy Establishment with such a flushing means and waste collection tank. On page --
Warren E. Burger: Mr. Tatum, I'm trying to get something clear from this opinion. There are some suggestions in the Fifth Circuit opinion that indicate that the Fifth Circuit in effect determined that you have not exercised due diligence and that this was not really, newly discovered evidence.
Stephen B. Tatem, Jr.: No sir.
Warren E. Burger: That you're being – that you are at least in part penalized for that. What do you have to say about that?
Stephen B. Tatem, Jr.: Mr. Chief Justice, that is what the Fifth Circuit said, the prior art that I am talking about is not what the Fifth Circuit was talking about.
Warren E. Burger: Procedure fundamentally, like yours?
Stephen B. Tatem, Jr.: It has been conceded by the respondent that it was identical to their pact but that we haven't -- I have not talked about Mission Dairy yet. Maybe it is necessary at this point in time if I may --
Warren E. Burger: Whatever you want but just be sure that you give some information about that aspect of the case?
Stephen B. Tatem, Jr.: Alright, what I simply wanted to do and it is my position that the record before that was made before Judge Gwen that went up to the Fifth Circuit with respect to the McCormick and Bogert Patents as well as the other evidence was sufficient for this Court to apply the four Supreme Court cases I have brought to the Court's attention. Let me bring up what happened procedurally. In January of 1973, my client, who then was living in Florida, by chance was met Mr. Herbert Meyer who happen to be in Florida. At that particular time in January of 1973 we had not received the decision, the second decision from the Fifth Circuit. In February in 1973, the Fifth Circuit reversed for the second time this patent application, I mean this patent case. We filed at that time when we had received notice at the second case had been reversed, a motion for re-hearing addressed to the Fifth Circuit raising the question that Mr. Sakraida had only three weeks before personally met the name of the man who owned the Mission Dairy in Gonzalez California. It was it that time that the Fifth Circuit directed us since we were the appellee to bring this motion to the attention of the trial court because they were the only medium through which we could act to get a record, so we did that. We filed a motion pursuant to the direction of the Fifth Circuit with the trial court in El Paso. There was a different trial court that was sent from San Antonio, Texas to El Paso to receive the testimony with respect to Mr. Herbert Meyer, Mr. Bud Sakraida, Mr. Chester Whitmore, and Mr. Frank Susa. Those exhibits together with the pictures from Herbert Meyers Dairy are also before the Court as exhibits A through K. Following that hearing, Judge Wood, up until that time had nothing to do with this case, also entered findings of fact and conclusions of law. He found that the patent lacked novelty. It did not meet the test of obviousness. It was anticipated by this prior art and that the petitioner had exercised due diligence in discovering the name of the witnesses because they arose simply out of a by chance meeting somewhere in the State of Florida in January of 1973.
Warren E. Burger: The Fifth Circuit opinion if I'm reading the right opinion on page 3A of the appendix has agreed to testify that, that occasion you speak of was the first time he had full knowledge of these facts. However, this is the important part, the evidence clearly establishes that prior to the original trial Sakraida was aware that Mission Dairy was using a flushing system that was a possible source of prior art.
Stephen B. Tatem, Jr.: Well –-
Warren E. Burger: And that Sakraida has sent one of his men over to look at it before the trial and he reportedly wasn't able to see it.
Stephen B. Tatem, Jr.: Well, Mr. Chief Justice, Judge Wood's findings on that very point --
Warren E. Burger: -- in this opinion.
Stephen B. Tatem, Jr.: -- before, he was the trial court that accumulated that record and attended that hearing, appear in the appendix first at page 174 through 175. Second they appear at the appendix at page 268, but he is clear and he gave creeds to our testimony, that my light is on, do you want me to -- all right, he gave credence to our testimony that until this by chance meeting we never identified anything with respect Mission Dairy.
Warren E. Burger: The Court of Appeals uses the term clearly establishes and they're referring to something that's contrary to what the district court found which would at least suggest to me that they're making a determination clearly erroneous --
Stephen B. Tatem, Jr.: Well -- but Mr. Chief Justice the name of Meyer is the link to Mission Dairy because until you find Mr. Meyer, you are not able to ascertain what it was that was in existence at Mission Dairy because Mr. Meyer held key to that. The testimony in the record is essentially to this effect. Between the date that the summary judgment was granted and the date of merits, my client was living in the state of Florida, the Mission Dairy is in the State of California, the trial was pending in El Paso, Texas. Through rumors source unknown, the record is that Mr. Sakraida, it was through a rumor suggested, it was suggested the hand the he go the Mission Dairy and check out what it was that was there. Since he was living in the State Florida, he asked a man sold milking equipment, a man identified as Mr. Wisdom who was living in the State of Oregon, that the next time he was down in the area to go by the dairy and try to find out what was there. The testimony is that when he went to the Mission Dairy, he received a rebuff by the manager, a Mr. Dick Ripley. He was not, he got to the premises but he was not able to get in and supposedly find out about this flushing gate that they had. He called client about the rebuff and we did not know anything more about it than what we've been informed about by Mr. Wisdom? The name of Herbert Meyer is an assumption that the respondent will have us believe, was linked at the same time we went to Mission Dairy. There's absolutely no evidence in the appendix as to where Herbert Meyer was when Mr. Wisdom was in California or that we knew Mr. Meyer's name and the trial court chose to believe us on those facts and that why that, findings to that effect is so clear with respect to that.
John Paul Stevens: Mr. Tatum, even assuming that the trial court was right in finding that this was newly discovered evidence, it wasn't prior art, was it because it wasn't a permission, doesn't the record show that Mission Dairy came into being after the patentee's device was reduced to practice a year before the application?
Stephen B. Tatem, Jr.: Mr. Justice Stevens the evidence with respect to Herbert Meyer is that in January of 1962 he had plans on file with California soil conservation service with respect to his idea.
John Paul Stevens: Isn't there a finding -- isn't it undisputed that the mission idea was reduced to practice in October?
Stephen B. Tatem, Jr.: As far as milking operation it's our position that the Mission Dairy though is clearly evidence of ordinary skill in the art and that was part of the basis what we were using it?
John Paul Stevens: But you don't contend that it was prior art then?
Stephen B. Tatem, Jr.: We do because I think you -- I don't think –-
John Paul Stevens: What is –-
Stephen B. Tatem, Jr.: The fact that the idea was known and made public a year prior to the application of this patent and that is when you go down to the California soil conservation people or the department of the agriculture and file plans to get approval as to what you're going to build or do, that you have reduced in essence or have publicized.
John Paul Stevens: Filing of the plan for this big barn was a reduction to practice, is that what you're saying?
Stephen B. Tatem, Jr.: I'm saying he's publicizing his idea. Obviously there's a time lapse between actually he filed a plan and when he actually got the -- you see the problem was not getting the dairy started. I mean he had -- some of this was getting the milking equipment there, that is part of the problem.
John Paul Stevens: I understand the practical problems. I'm just not sure I understand your legal theory. Your legal theory is that the filing of the plan for something that had not yet been reduced to practice was prior art.
Stephen B. Tatem, Jr.: Mr. Chief Justice on page 14 through 16 of our reply brief we have addressed that very point with several cases, the relevancy of Mission Dairy as prior art or evidence of ordinary skill in the art.
John Paul Stevens: I understood you to be arguing that it was not prior art but nevertheless there was evidence that this was not a very inventive concept.
Stephen B. Tatem, Jr.: Well --
John Paul Stevens: It was simultaneously developed which is a different argument, is it?
Stephen B. Tatem, Jr.: We're saying – we're saying that it was effectively publicized at the time he goes to California and files those plans. Now that -- but that just Herbert Meyer. Chester Whitmore's plan was written in a Hoard's Dairyman as early as 1953. Frank Susa was building dairy barns as early as 46 and Emile Rody who was --
John Paul Stevens: This is all -- I'm really -- what I was suggesting is this is all unrelated to the question of whether it's newly discovered evidence, that's in the record without this edition start, is it not or am I wrong?
Stephen B. Tatem, Jr.: No, that is really not correct because Herbert Meyer was the key to us of locating these other three individuals.
Byron R. White: You don't feel it's critical to your case, when on the newly discovered evidence for it.
Stephen B. Tatem, Jr.: No sir, it is my position --
Byron R. White: You say you're entitled to win --
Stephen B. Tatem, Jr.: On the record of this sir --
Byron R. White: On the record as first made.
Stephen B. Tatem, Jr.: That's true.
Byron R. White: And that those issues are properly here.
Stephen B. Tatem, Jr.: That's true.
Potter Stewart: I would have thought that this possible -- the preliminary question is whether or not the court of appeal was correct in it's ruling on your 60 (b) (2) motion and if we disagree with the Court of Appeals then arguably the correct disposition on our part would be to remand it to the Court of Appeals to consider that so called newly discovered evidence, is that right?
Stephen B. Tatem, Jr.: Well?
Potter Stewart: Which it never has done?
Stephen B. Tatem, Jr.: The first question seems to me to be the validity of the patent --
Potter Stewart: I would think that the threshold question is whether or not the Court of Appeals should reconsider this case on all of the evidence that you now try to introduce instead of on only part of it because they held that your 16 (b) 2 motion was not well taken?
Stephen B. Tatem, Jr.: Well, Mr. Justice it is my position that the record is sufficient as it was in the Fifth Circuit before we went back to the third hearing before Judge Wood, I do think that this Court if it feels if there is any doubt as to the validity of this case it should consider this case -- it should consider the evidence that was offered before Judge Wood and the --
Potter Stewart: -- (Inaudible) the Court of Appeals has never considered it?
Stephen B. Tatem, Jr.: Because they have found or they did not consider --
Potter Stewart: On your motion was not well taken so the Court of Appeals has never considered it in reaching its decision on the validity of this patent. And if we hold that your motion was well taken then the Court of Appeals should consider it and in the first instance it's as the district court did. The Court of Appeals then should review on the pro record and on what the district court considered which it up to now refused to do.
Stephen B. Tatem, Jr.: That is true, thank you sir.
Warren E. Burger: you are well over – Mr. Kolisch?
J. Pierre Kolisch: Mr. Chief Justice, may it please the Court. My name is Pierre Kolisch and I represent the patentees and very simply my client's invention is for solving the problem of non toilet trained cows. The prior art which my brother Tatum has talked about, particularly the McCornack and the Bogert patents.
John Paul Stevens: Having brought that analogy and I wonder if you think it would be appropriate for us to take judicial notice of the common variety of patent that's available to every body, in stating the obviousness of this device.
J. Pierre Kolisch: Yes I certainly do Mr. Justice Stevens and as you know there is a completely different principle under which the ordinary toilet works. Well the ordinary toilet you have a bowl and then you have a pipe that comes down and bends around and that pipe comes up to approximately the level of the water in the toilet and that pipe always remains full of water, acts as a blockage or trap for any surge and when you add more water simply put more water in whether by bucket or otherwise then there is sufficient pressure and it just pushes down and it empties out the pipe that comes up.
Warren E. Burger: (Inaudible) hydraulic pressure, do they not?
J. Pierre Kolisch: Well, I think that any cleaning whether it's by hose or whether it's by bucket or in any way, everyone has been trying to get rid of cow manure in barns for about thousands of years. I can't tell you how long, and we know I think this is a good place to start. We're considering a patent here, which is made up admittedly of a combination of mechanical elements. And whenever we deal with a patent of that type there are number of semantic and ideological pitfalls which the courts I believe have had trouble wrestling with. I would suggest to you that one way of approaching this patent and perhaps avoiding some of this pitfalls is to consider first, what these two inventors did and then how they did it. The record establishes that the best way of cleaning dairy barn floors, up until the time of this invention was by the use of power. Now, power I mean the use of a power driven blade, a front end loader which would get all the manure together in pile and then the manure would be removed to some place and ultimately the manure had to taken and placed on the field of surrounding. Now in order to do proper clean up job, that type of a scraping operation had to be followed by a hosing operation. The necessity for the hosing operation was and we're talking about commercial dairies, we're talking about dairies where there are hundreds of cows involved, is that when you scrape a floor which has been covered with manure you leave a thin slippery fill and this is exceedingly dangerous to the cows as well as to anybody who's walking on it so you have to follow up this scraping operation with a hosing operation. Now, once you've done that, you then have to get rid of it and still you haven't solved the problem. Now you could of course start by hosing and that sometimes is done but that won't work on 300 foot alley way, because once you start hosing I think as any of you know, you are starting to splash things all over the place and besides that all that you do by a hosing operation is to force it into piles and in the end even your hose is not going to dislodge these piles. So what did these two inventors do? They came along and they solved the problem and the record shows that to clean up a comfortable alley way, three or four hundred feet long, would take 4 or 5 hours. Literally in one minute, according to the patented invention, just as long as it takes to wave my hand, you've cleaned. Now what you've done is you have substituted for hours of disagreeable miserable layer, a shining clean floor that takes no time, no effort, no money and satisfies all of the sanitary requirements plus being ecologically extremely sound because what you've done according to the system is you put the manure in a form so that it can be put through it, sprinklers system and put on the surrounding fields. Now what I have described is precisely what Gribble and Bennett invented. This is what they contributed to the dairy industry. Now, let me pick up where my brother Tatum did, with respect to these two prior art effects and these were Mr. Chief Justice, in the record before the district court, it is undisputed that they are properly before this Court. I think exemplify the best of the prior art. They show that the technology was to install pipes all over a dairy. Now the McCornack patent is extremely detailed complicated piece of equipment but basically, what he showed was that there are partitions between the cows during their milking area, they refer here to cow shields --
William H. Rehnquist: Is there a diagram in the record that the –-
J. Pierre Kolisch: Yes. I think if you were to look at the supplemental record on Page 62 Figure 14, yes, I'm sorry, supplemental Appendix Page 62 Figure 14 at the bottom, you will see a cow standing and to the left you will see a Number 215. That is a stand pipe that bends over the shield Number 40 which is around the flanks of the cow and as Mr. McCornack describes, there is offal that goes on that and how is that washed off. He has water running out of Pipe 215, that's one his washing means. Now, if we will turn to Page 66 of the same volume, you will see a Plan View, this is Figure 25 and there the Number 265 indicates a series of pipes which go into gutters and those gutters are shown where the arrows are, there are group of arrows and those are gutters and there is water running in those gutters from a series of pipes.
William H. Rehnquist: Where about on that diagram on Page 66 is 265, I don't seem to see it --
J. Pierre Kolisch: The 265 appears in the lower left hand corner just above 260. Those are pipes and again we do not dispute that if the cows are careful enough to drop their offal in the gutter, it will be removed I think. But --
John Paul Stevens: May I interrupt Mr. Kolisch, McCornack I guess is the name of this patent, does this contemplate the use of the flushing technique without prior cleaning by hand, shoveling and oil --
J. Pierre Kolisch: No, it talks in the patent that there maybe used, they're maybe necessary to use hand cleaning also because this does not cover all the barn floors area. It is simply --
John Paul Stevens: Let me change the question slightly, to the extent that this device is intended to flush portions of the barn, does the device contemplate to those portions which previously be cleaned manually?
J. Pierre Kolisch: No, I think that under the McCornack patent, those portions of where the water is discharged in the gutters and on the shield that supposedly they would be cleaned. However, it is not the same concept as the invention.
John Paul Stevens: What's the difference between concept --
J. Pierre Kolisch: The difference in the concept is the difference between taking a hose and --
John Paul Stevens: It's not a hose? This is -- this does not describe use of hose –-
J. Pierre Kolisch: The McCornack hose –-
John Paul Stevens: Oh, is it?
J. Pierre Kolisch: Oh, yes. It's water under pressure. It's a series of pipes whether it all comes from water under pressure. They're just pipes that are --
John Paul Stevens: Pipe as distinguished from hoses?
J. Pierre Kolisch: Well –-
John Paul Stevens: They're different, are they not? There is a permanent installation through which the water flows.
J. Pierre Kolisch: Yes. They are permanent to that extent a hose is maybe movable, but if --
John Paul Stevens: They are not hoses?
J. Pierre Kolisch: No. They are permanently fixed pipes which are discharge --
John Paul Stevens: The difference in concept, the different method of getting the water propelled through the gutters?
J. Pierre Kolisch: Well, it's a difference in the way in which the water acts once it is released, whether it's a pipe or a hose the water comes out in the form of the orifice from which it has been discharged and it is a point in impingement and it must be whether it comes from a pipe.
John Paul Stevens: The difference -- is one huge flow rather than several separate flows simultaneously?
J. Pierre Kolisch: The invention eliminates all hoses, pipes, and gutters. They simply aren't in the invention. No such thing as hoses, pipes, and gutters all of which are in the prior art and unnecessary in the prior art same thing in the --
John Paul Stevens: So that is the difference between cleaning everything at once in cleaning only a portion of the barn and also try and articulate what the difference is?
J. Pierre Kolisch: I appreciate that Mr. Justice Stevens. It is more than that. It is the way in which it's done. It's the difference between releasing a tidal wave or a flood and having water come out of a pipe or a hose. Now, in both cases there's water.
John Paul Stevens: Simultaneously?
J. Pierre Kolisch: Yes, but many pipes simultaneously you simply have perhaps this type of effect, a spray in effect, but it is not hydraulically. It does not operate in the same way at all because the pipe discharge water simply cannot do the job which the flood release water. I think a good example is shown in the Bogert patent which was another one, I think if you look at Page 75, you'll see a top Plan View. Page 75, you see cow stalls to the left and to the right and these are indicated at 5 and 6. Then, behind each of the cows there is a gutter, number 12 and number 13. In between those gutters, there is a cow walkway. The lines which you see, dotted lines in there, are embedded underground pipes which run under the cow walkway and then, discharge at the plurality of places into the Gutters 12 and 13. The water for those pipes comes from a large tank and that's shown on Page 77 at Figure 7.
Speaker: (Inaudible)
J. Pierre Kolisch: Yes, I'm talking about Bogert now because it's still the same principle as McCornack and I think these are illustrative of the prior art. Figure 7 on Page 77 of the supplemental record -- I'm sorry, supplemental Appendix, shows the large tank and there are pipe connections which come in and they are shown at the bottom with Numbers 17, 18, 19, 20, and 21 and the water simply runs out from these pipes under pressure and it is fed into the gutter at various places. Now, the problem for instance with Bogert and all the other and that's why I started somewhat fatuously in saying that the invention had to do with cows, who were not toilet or gutter trained. Bogert I will assume it works perfectly well as long as the cows remain positioned over the gutters, but as we all know, cows don't remain that way and when the cows roam, walk up and down this broad alley way which is marked nine there is many way of cleaning them, there isn't any provision, there isn't any suggestion as to how to get rid of that. And that of course, was the ingenious of this invention. For the first time, it was a dairy man was unable to wash all of his floor areas immediately without the use of any labor, without the use of any power. Here, was a situation where you could get rid of all of the problems and all of the help that you had in connection with the removal of --.
Thurgood Marshall: (Inaudible)
J. Pierre Kolisch: Yes. All --
Thurgood Marshall: All the cows --
J. Pierre Kolisch: Yes. When the cows are not in their stalls, it is the cows in these commercial dairies, do not go out to the surrounding shields. They are maintained in a confined area where they are milked and then they go from their milking they go to a loafing area and then they return to their stalls. And a cow is a marvelous creature of habit and it will return to its own stall and each cow has its own stall.
Thurgood Marshall: Where is the cow when you do all this flush the water?
J. Pierre Kolisch: The cow can be in any place.
Thurgood Marshall: You want to flush them – you want to flush where the cows are standing?
J. Pierre Kolisch: No, I --
Thurgood Marshall: Where is he, he's not there, he's not there where the flushing is going on?
J. Pierre Kolisch: He maybe, Mr. Justice Marshall.
Thurgood Marshall: Flushed out with rest of –-
J. Pierre Kolisch: No, he won't. [Laughter] That is one of the beauties of the invention.
Thurgood Marshall: You see all the pictures you have around me. These areas here are not being flushed.
J. Pierre Kolisch: Yes. Now, what we have in these pictures?
Thurgood Marshall: (Inaudible)
J. Pierre Kolisch: Well, that is the before picture. The picture at the top is the before. Now, we have --
Thurgood Marshall: (Inaudible)
J. Pierre Kolisch: That is after. Now, what we have in these pictures that --
Thurgood Marshall: Where is the cow between before and after?
J. Pierre Kolisch: The cow maybe in its stall or it could be standing in the alley way. All it does it wash its feet. As a matter of fact, the cows are quite happy to have their feet washed. It removes the offal and you look at me quizzically and I don't blame you. I didn't believe that would work either. As a matter of fact, when this thing was first presented to me, I said it is incredible. I just do not think it will work first of all. How --
Thurgood Marshall: Maybe, water coming down here at what pressures is it under?
J. Pierre Kolisch: There is no pressure. The water just is permitted to run. That is --
Thurgood Marshall: Well, what is this here and there?
J. Pierre Kolisch: Well, what you see these waves are coming out is the --.
Thurgood Marshall: Yeah, yeah -- the wave comes from pressure, doesn't it?
J. Pierre Kolisch: Well, there is -- because you have about two and a half feet of water and then you drop. Okay.
Thurgood Marshall: Please --
J. Pierre Kolisch: That is right and if you will look, --
Thurgood Marshall: And there is a peaceful -- out there.
J. Pierre Kolisch: If you will look at the movies, I think the in the movies you see cows actually standing when this water is running. Now I have the same incredulous feeling that you did when I was presented with this invention and it wasn't until I went out to a dairy and saw a 300 foot out.
Thurgood Marshall: (Inaudible)
J. Pierre Kolisch: I beg your pardon sir?
Thurgood Marshall: (Inaudible)
J. Pierre Kolisch: I didn't think that was possible. [Laughter]
Warren E. Burger: It's a two and a half foot drop, the length of this --
J. Pierre Kolisch: The drop is about one foot per hundred, one or two feet per hundred.
Warren E. Burger: Well, does that not create an enormous pressure?
J. Pierre Kolisch: No, actually --
Warren E. Burger: Very fast -- a very fast trout stream – drop the two feet and a mile or more or less and that would be very fast running water.
J. Pierre Kolisch: The water moves swiftly as you can see but it is not such as to not an animal, a four-footed animal.
Warren E. Burger: But as was suggested, the very appearance of that wave in this photograph shows that there is a considerable hydraulic pressure exerted here and that is part of the function of what you claim is invention I take it?
J. Pierre Kolisch: Yes, it is combining that with the other aspect and as Mr. Justice Marshall said, “Where are the cows when this is going on?” Well, the one thing you don't want to wash is their bedding. It's where the cows are loafing and you will see from this --
Harry A. Blackmun: You have to get out on the center. Is there something that forces them on the center?
J. Pierre Kolisch: The cows go there normally to be milked. These cows live in this type of a routine. They have a stall where they lie down and chew their cud. When their milking time comes, they will get up naturally and they know, these are creatures of habit, they are milked twice a day and they will walk and amble around to where the milking is to take place and then they will go to another area which is called the loafing area where they may stay and then they will come back again to their stalls to be fed because there is food provided for them.
Harry A. Blackmun: (Inaudible) from duplicating in the stall?
J. Pierre Kolisch: Because of the position, the stalls and it is called for in the claims that the stall is of a size so that only the front portions of the cow can and will be in. The rear portions of the cow are positioned above the alley way.
Harry A. Blackmun: For small cows that doesn't work? [Laughter]
J. Pierre Kolisch: There are two answers to that question Mr. Justice Blackmun. In the first place, in these commercial diaries, they have the same type of cows. They all have Holsteins or Jerseys or whatever it is. Secondly, the stall, there is a thing that you can put in front of the cows and you can push it back or forth depending upon the size of the cow so they can go in their farther or that it will back up and this adjusted depending upon --
Byron R. White: You think (Inaudible) [Laughter]
J. Pierre Kolisch: These photographs were added by me because of – they are simply photograph, I didn't know whether or not the Court would look at the movie. I felt that the only possible way that the Court could understand what this is all about is by looking at photographs. Now, this is --
William H. Rehnquist: These are just for illustrative --
J. Pierre Kolisch: These are illustrative of counsel's argument. They are no different from other photographs in the record. There are plenty of photographs in the record.
Byron R. White: (Inaudible) is the fifteen minute version here?
J. Pierre Kolisch: Both versions are here.
Byron R. White: And where did the two-minute or three --
J. Pierre Kolisch: The two and a half minute version came about as follows. We had a long version, plaintiff's Exhibit Nine, which was shown to the District Court. Prior to the argument on the merits in the Fifth Circuit, I prepared a short two and a half minute movie because I decided that it was – you couldn't give it, a nine or ten minute.
Byron R. White: From what? A brand new movie without –-
J. Pierre Kolisch: It was a brand new movie. The same thing is the other one accepted was a condensation.
Speaker: (Inaudible)
J. Pierre Kolisch: Yes. Now, what happened with respect to that movie, I petitioned the court to show it and the court said, “Submit a copy of this to counsel for the defendant” which I did. I prepared a separate and identical copy of the movie, submitted it prior to the argument in the Fifth Circuit and there was no objection from counsel to the showing of the movie in the Fifth Circuit. It was shown in the Fifth Circuit and I think it helped the court materially.
Speaker: (Inaudible)
J. Pierre Kolisch: I beg your pardon?
William J. Brennan, Jr.: How did you file it in?
J. Pierre Kolisch: I filed it -- prior to argument here, I asked Mr. Tatem, “Would it be all right if I use this movie in the Supreme Court?” Assuming that the Court would look at it, Mr. Tatem said, “It is all right by me but I will have to talk to Mr. Holz, he is senior counsel in this case. Mr Tatem called me back later and said, “It is okay.” I understand that since then, he has changed his mind but it the identical movie that he has had ever since 1973.
William J. Brennan, Jr.: Filed it with the record or did you filed it with connection of any petitions, I've never seen anything?
J. Pierre Kolisch: Yes, I submitted the motion to the clerk of the Court and the clerk of the Court informed me that this Court would not look at a movie during a session of the Court, that it was against the Court's rules and he said, “You may lodge it with me and then you may call it to the Court's attention and if the Court wishes to look at the movie, it will do so --
Byron R. White: Does this disqualify any of us who look at the fifteen minute version?
J. Pierre Kolisch: Certainly, not.
Harry A. Blackmun: So, are these taken from either movies?
J. Pierre Kolisch: No sir, they are not. They were prepared by --
Harry A. Blackmun: The secondary act there, they are the secondary classification of visual portrayals and not introduced in evidence?
J. Pierre Kolisch: No. They are simply in aid of counsel's argument there. In principle, they are no different from what existed before and the purpose was visually, if you had not looked or you would not look at the movie to try and give you some feel for this, and what we show here is the before, the during and literally it took about a minute and this is after.
Speaker: (Inaudible)
J. Pierre Kolisch: My wife took them and I stood next door when she took them.
William H. Rehnquist: Mr. Kolisch, what is your position as to the state of the law? Is an inquiry onto whether there something is inventive or something is non obvious question of law or a question of fact?
J. Pierre Kolisch: I think Mr. Justice Rehnquist, it is a mixed question. I think you must start by making certain factual findings and in the Graham case, this Court went into that quite carefully and I think that the major substantive question before the Court is the one of obviousness. I do not think there is any question with this was novel, that it was useful.
Potter Stewart: (Inaudible) a little bit more by my brother Rehnquist's question is our findings of novelty, utility and non-obviousness or their opposites subject to Rule 52(a) of the rules of Civil Procedure or not?
J. Pierre Kolisch: I would say they were.
Potter Stewart: Yes, that is right.
J. Pierre Kolisch: Those are the facts.
Potter Stewart: The one established and accepted in the Federal Court?
J. Pierre Kolisch: Yes.
John Paul Stevens: You don't say that is the rule in most Courts of Appeals, do you?
J. Pierre Kolisch: Well –-
John Paul Stevens: For example, the Seventh Circuit it isn't the rule there; very clearly, it's not?
Byron R. White: For example (Inaudible)
J. Pierre Kolisch: I think that the --
John Paul Stevens: It is quite clear that the issue of obviousness is treated as issue of law by the Courts of Appeals generally?
J. Pierre Kolisch: In the end, it comes but there are certain factual basis.
John Paul Stevens: Well, that is not what you answered to Mr. Justice Stewart. He asked you on the issue of obviousness does Rule 52(a) apply?
J. Pierre Kolisch: No, I think that the ultimate question --
John Paul Stevens: The answer is quoted there I think.
J. Pierre Kolisch: The ultimate question is one of law.
Byron R. White: (Inaudible)
J. Pierre Kolisch: Yes.
Byron R. White: The underlying historical fact question is they said is very clear or they – 52 – Rule 52 (a) (Inaudible)
J. Pierre Kolisch: Yes.
Byron R. White: The ultimate issue was that it was the law.
J. Pierre Kolisch: Yes, I believe it a law question.
John Paul Stevens: On the second appeal to the Fifth Circuit, did the Fifth Circuit include any of the District Court findings on the three parts of the Graham test were clearly erroneous?
J. Pierre Kolisch: Yes. In fact, the Fifth Circuit found that there was really no evidence to support the findings of the District Court and that brings me to the question of the newly discovered evidence which there are good procedural as well as substantive reasons I think for rejecting it. The first one is the jurisdictional question which I have raised with respect to whether or not this is properly here and that is in my brief – that is a pure jurisdictional question. I admit I raised it for the first time here. I didn't think about it before but it is jurisdictional and the Court of course is always interested in the jurisdictional question. The second one was that the documents which were introduced at the hearing on newly discovered evidence should have been rejected because those documents were deliberately withheld and not shown to me. There was a Rule 34 motion made to have the defendant disclose all of his evidence, documentary evidence, which he may have on prior art that would have covered role view with one and all the rest that was not disclosed. Thirdly, with respect to the Mission Dairy and to Mr. Meyer's testimony, Mr. Meyer and the Mission Dairy were admittedly the key to all the newly discovered evidence because Mr. Meyer was the one who knew about it all and would tie the whole thing together. There is not any question that the defendant, as well as the attorney knew about the Mission Dairy in October of 1969. At that time, he made a deliberate choice. I don't need the Mission Dairy to win this case and therefore he did not use the evidence. He went through a motion for summary judgment did not use it. Two years later, he went through a trial and he did not use this evidence. After the Court of Appeals for the second time reversed and said the patent is invalid, he splits back and said ah but I have some newly discovered evidence which I want the court to consider. The court very generously I think sent it back to the district court for a hearing under 60(b)(2) and there simply said, “Oh, we are not going to let all the evidence in and never pass the threshold question which Mr. Justice Stewart brought up is this newly discovered evidence because there are very strict requirements under 60(b)(2). The threshold questions were never satisfied with the answer. In fact, they would never answered because under 60(b)(2), you have to show one, it has newly discovered two, it could not have been discovered by due diligence. In this case, there isn't any question; they knew about it and it did not take due diligence to find out who the owner of the Mission Dairy was when he knew about the Mission Dairy. What he had to do was to take a deposition. So, I think that under any test whether it is even the Juno test, that very controversial flash of genius test which this Court handed down –-
Warren E. Burger: (Inaudible)
J. Pierre Kolisch: I do not think it is Mr. Chief Justice, but sometimes language from that decision creeps back in and therefore I would --
Potter Stewart: What will I do in the last sense of it?
J. Pierre Kolisch: He supposedly took --
Potter Stewart: Actually designed and deliberately enacted to --
J. Pierre Kolisch: Yes. I think that that legislation was enacted to dispense with it. I would say this on a philosophical ideological, Gribble and Bennett are classic case of the beneficial effect that the pattern system should have and here with two individuals who had nothing except some good ideas, hard work and determination. Now the potential of a legally enforceable right, they went ahead and obtained a patent. Now, based on this belief, they started with a little business. They had nothing and they succeeded in building up a reputable business which has received good commercial acceptance. Interestingly enough, this case has none of the odes features which some of the cases before this court involving patents may have had. They made the patent available to anybody practically for nothing. All that they asked was that you pay them a fee, a one time fee of $1,500 plus one dollar per cow and that meant that anybody could get it. An installation of 300 cows cost $250,000 and the rent or the charge would be $1,800 once and that is all.


Earl Warren: (Inaudible)
Clarence H. Ross: I just have one statement I wish to make and that is I wish to point out that in the complaint, there is no allegation of any plan of successive or other proposed denials of anyone else. All it says in the complaint is that our device was denied to seal. Nothing there just spell out that this is like in the result in being an A, B, C, D. They don't say that. They don't allege it. They don't even allege that the denial and the particular case was arbitrary. Thank you.
Mr. Attorney General: Mr --
Felix Frankfurter: (Inaudible)
Mr. Attorney General: Yes, Your Honor.
Felix Frankfurter: (Inaudible) distinguish your case from the arrangement between International Garment Workers and the New York Garment Trade whereby they put on the products of the people within -- the manufactures of the union or white label and they constitute advertise both through all the medias especially over the radios telling people not to buy this that haven't got that white label.
Mr. Attorney General: Your Honor, asked me to put something aside at the beginning of your question.
Felix Frankfurter: Putting aside the question whether in fact there was a combination between the AGA and the Gas Company, the utility of Chicago whereby the utility agreed not to service customers, consumers who haven't got the AGA burners.
Mr. Attorney General: Well, Mr. Justice Frankfurter, I'm not sure that I have to distinguish it and I will come to answer your question because --
Felix Frankfurter: Well, that you -- you may not be able to distinguish that (Voice Overlap) with it.
Mr. Attorney General: Because our case is dependent upon a conspiracy here. Now, there is a possible distinction along this line. If we approach the Sherman Act question from the point of view of what has this done to competition? We might well say that the International Garment Workers' case is a situation of waging competition, that the improvement of the conditions of labor is important to competition because its labor who buys the products. This is an entirely different case than a case which is not waging competition but was -- which is waging anti-competition because our competitors are part of this conspiracy.
Felix Frankfurter: I'm not thinking of the manufacturers. They are going to shop, give these high wages or higher, one way of keeping union gather is to meet the wage advantage as union (Inaudible) Our wages are higher, our health conditions are better, etcetera, etcetera but we have a principle, you know there are (Inaudible) there are principles (Inaudible).
Mr. Attorney General: Yes.
Felix Frankfurter: And therefore by this campaign as between the manufacturers and the (Inaudible) union, we're really driven or at least restricted in our market because of the big departments was in New York or want to carry those that haven't got the white label.
Mr. Attorney General: I -- I have no answer other than that which I've stated and that is that it possibly improves competition. I'd like to make only two brief remarks. Mr. Ross's closing remark was that the complaint does not allege and effect on anyone but the petitioner. The complaint does allege that this conspiracy has prevented everyone who does not get the AGA seal of approval from competing in this market. Now, what I think he has overlooked is the potential effect of a power similar to the power that the AGA has. In other words, they don't have to say, “We won't approve it.” No one is going to come into the market. No one is going to invest the capital and time. If they know that their competitors can say after their product is ready to be marketed, sorry you can't market -- market it. Now, the second point was this. In response to a question by the Chief Justice, Mr. Lamb said, “I believe that the present standards of the AGA do not restrict gas burners to metal that it was possible for a ceramic burner to be approved.”
Earl Warren: I so understood it.
Mr. Attorney General: That's how I understood him, Mr. Chief Justice in his brief. On page 5, Mr. Lamb says, “AGA standards require that metal be used.” In his brief on page 14, he says, “All gas burners approved by AGA are metal.” Thank you.