Robert Sarkisian v. Winn-Proof Corp., William A. Werner, and Wer-Nel Enterprises, Inc.

The original decision in this ease, which appeared at 662 F.2d 596 (9th Cir.1981), was withdrawn pending the Ninth Circuit’s en banc review of the question of the appropriate standard of patentability for mechanical combination patents. Three cases were consolidated in the en banc panel’s review: Sarkisian v. Winn-Proof Corp., 686 F.2d 671 (9th Cir.1981); Carson Mfg. Co., Inc. v. Carsonite International Corp., Inc., 658 F.2d 1306 (9th Cir.1981) and Hammerquist v. Clarke’s Sheet Metal, Inc., 658 F.2d 1319 (9th Cir.1981). In its decision, the en banc panel held that “a determination of an unusual or surprising result is a requisite to a finding of nonobviousness of a combination patent.” Sarkisian v. Winn-Proof Corp., 688 F.2d 647 at 651 (9th Cir.1982) (hereinafter “Sarkisian”). The en banc panel remanded the original Sarkisian opinion to us for determination, in accordance with the en bane decision, of whether Sarkisian’s device produced an unusual or surprising result. Sarkisian, supra, at 651.

INTRODUCTION

Appellants Winn-Proof Corporation, William Werner, and Wer-Nel Enterprises, Inc. appeal from a judgment of the district court finding claims 3-5 of United States Letters…