Norris Industries, Inc., a Corporation v. The Tappan Company, a Corporation

Norris Industries, Inc. (Norris) instituted this action seeking declaratory judgment that United States Patents 3,081,392 and 2,831,952, issued to Elmer Warner and assigned to The Tappan Company (Tappan), were invalid and not infringed. Tappan counterclaimed for infringement of claims 1-7, 11, and 12 of 3,081,392 and claims 4, 5, and 10-12 of 2,831,952. Patent 3,081,392 embodies Warner’s alleged invention of a microwave oven with an electrical radiant heating element within the microwave cavity to brown food. Patent 2,831,952 is an adaptation to a built-in oven.

The District Court entered extensive findings of fact and conclusions of law holding each of the above claims invalid and not infringed, and based thereon, entered judgment on December 29, 1976, 193 U.S.P.Q. 552 (1976).

On appeal, Tappan challenges the District Court’s findings of anticipation by the 1947 work of George Schroeder, obviousness, and double patenting. We note jurisdiction and affirm.

The District Court’s findings were prepared and submitted by counsel for Norris and, therefore, suspect. Zweig v. Hearst Corp., 594 F.2d 1261 , at 1263 n.2 (9th Cir., 1979). Nevertheless, we are still bound by the clearly…