Exer-Genie, Inc., and E. E. Holkesvick v. Alexander G. McDonald and Buddy Systems, Inc.

453 F.2d 132 171 U.S.P.Q. 277 EXER-GENIE, INC., and E. E. Holkesvick, Plaintiffs-Appellees, v. Alexander G. McDONALD and Buddy Systems, Inc., Defendants-Appellants. No. 25229. United States Court of Appeals, Ninth Circuit. Sept. 14, 1971. As Modified On Denial of Rehearing Nov. 18, 1971. Certiorari Denied April 17, 1972. See 92 S.Ct. 1498 . V. J. McAlpin (argued), Covina, Cal., for appellants. Charles E. Wills (argued), of Nilsson, Robbins, Wills & Berliner, Los Angeles, Cal., for appellees. Before BROWNING, ELY, and CARTER, Circuit Judges. BROWNING, Circuit Judge: 1 This is an appeal from a decision of the district court holding claims 8, 9, and 10 of plaintiffs' Patent No. 3,197,204 valid and infringed. We conclude that these claims of the patent are invalid, and reverse. 2 * The patented device, as defined by the claims in suit, consists of (1) a shaft with a hub at each end and two passageways in each hub; (2) a length of rope extending through one passageway in one hub, at least partially around the shaft, through the passageways in the other hub, again at least partially around the shaft, and then through the other passageway in the first hub; and (3) at one end, a means…

This is an appeal from a decision of the district court holding claims 8, 9, and 10 of plaintiffs’ Patent No. 3,197,204 valid and infringed. We conclude that these claims of the patent are invalid, and reverse.

I

The patented device, as defined by the claims in suit, consists of (1) a shaft with a hub at each end and two passageways in each hub; (2) a length of rope extending through one passageway in one hub, at least partially around the shaft, through the passageways in the other hub, again at least partially around the shaft, and then through the other passageway in the first hub; and (3) at one end, a means for suspending the device from a support. The claims also include certain details regarding the holes or “passageways” through the end pieces or “hubs,” as will be noted later.

The opening paragraph of the specification describes the patented device as “a novel exercising device which is espe- *133 dally suitable for home use.” It operates on a friction-resistance principle. The user pulls the rope through the device, exerting sufficient force to overcome the friction created by the wrapping of the rope around the shaft. The greater the number of turns of the rope, the…

(dissenting):

I respectfully dissent. After a very carefully conducted trial, the district judge concluded, inter alia, as follows:

The record reflects an abundance of evidence to support the factual findings which constitute the foundation for the foregoing legal conclusions and, while I recognize the validity of the general principles so carefully set forth by my Brother Browning, I am not persuaded that they are being correctly applied in the case at hand. As I see it, the proper resolution of the critical factual issues was difficult; hence, I would affirm the judgment because I cannot say with positive assurance that Judge Hill’s factual findings were clearly erroneous.