The National Screw & Manufacturing Co. And Lockheed Aircraft Corporation, and Cross-Appellees v. Voi-Shan Industries, Inc., and Cross-Appellant

347 F.2d 1 The NATIONAL SCREW & MANUFACTURING CO. and Lockheed Aircraft Corporation, Appellants and Cross-Appellees, v. VOI-SHAN INDUSTRIES, INC., Appellee and Cross-Appellant. No. 19314. United States Court of Appeals Ninth Circuit. March 22, 1965. As Corrected April 8, 1965. On Rehearing June 8, 1965. Robert W. Fulwider, Frederick E. Mueller, Fulwider, Patton, Rieber, Lee & Utecht, Los Angeles, Cal., for appellants. Lewis E. Lyon, Lyon & Lyon, Los Angeles, Cal., for appellee. Before JERTBERG, MERRILL and ELY, Circuit Judges. MERRILL, Circuit Judge. 1 Appellants are suing for infringement of patent. Upon this appeal the principal question is whether the District Court was clearly erronous in its findings with reference to prior art upon the basis of which it concluded that appellants' patent was invalid for lack of invention. Fed.R.Civ.P. 52(a); Graver Mfg. Co. v. Linde Co., 336 U.S. 271 , 69 S.Ct. 535 , 93 L.Ed. 672 (1949). 2 The patent in issue, LaTorre Patent No. 2,765,699, is for a "blind" bolt — a fastening device used in joining parts of a "blind" structure where the inside of the work is not accessible and the fastening operation must proceed from the…

Appellants are suing for infringement of patent. Upon this appeal the principal question is whether the District Court was clearly erronous in its findings with reference to prior art upon the basis of which it concluded that appellants’ patent was invalid for lack of invention. Fed.R.Civ.P. 52(a); Graver Mfg. Co. v. Linde Co., 336 U.S. 271 , 69 S.Ct. 535 , 93 L.Ed. 672 (1949).

The patent in issue, LaTorre Patent No. 2,765,699, is for a “blind” bolt — a fastening device used in joining parts of a “blind” structure where the inside of the work is not accessible and the fastening operation must proceed from the outside of the pieces to be joined.

The bolt consists of three parts: (1) a threaded shank ending in the bolt head on the blind side or inside of the work to be joined; (2) a cylindrical collar surrounding the shank on the blind side with its end resting against the projecting lip of the bolt head; (3) a nut in the form of a threaded sleeve. The tip of the nut is pointed to form a cone. As the nut is driven (from the outside) the head of the bolt (on the inside) presses against one end of the collar and the tip of the nut is wedged beneath the collar’s other end, causing…

On Rehearing

Appellants, in petition for rehearing, ask us (1) to delete from footnote No. 1 the following language:

(a) to modify our decision to hold the claims of the LaTorre patent limited to the details recited in that footnote, and (3) to rule that as so limited the patent is valid. Appellants assert that it was never their intention to disclaim their right to an adjudication of the validity of the patent as narrowly construed. They note that this action would accomplish no new result so far as this case is concerned, since it is conceded that with the claims so limited appellee is not in infringement.

Feeling that we may have read too much into what we regarded as a disclaimer, it is ordered that the quoted language be stricken from footnote 1.

Although we feel impatience with counsel for imposing upon us what appears to be a last-minute change of tactics, still, in our judgment, the interests of justice justify the following clarification of our judgment and limitation upon its scope.

The question of validity which was at issue related to the patent as read with the broad construction contend:ed for by appellants. We do not rule upon the precise scope of the patent…