Full opinion text
JOHN W. OLIVER, District Judge. I. The evidence was received in this case before Graham v. John Deere Company, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) and United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966) were decided. Those cases were handed down during the briefing stage of this case. We requested and have had the benefit of counsels’ views as to the impact of those decisions on this case. The patent cases decided by the Court of Appeals for the Eighth Circuit since Graham and Adams establish that the path generally followed in this Circuit prior to the 1952 enactment of Section 103 of Title 35, United States Code, in regard to the now codified element of nonobviousness must now be followed under the command of those recent Supreme Court decisions. The fact that every patent involved in the post -Graham Eighth Circuit cases has been held to be invalid, some as a result of reversals of district court judgments rendered before Graham and Adams were decided, does not, by any means, suggest that no patents are to be sustained by the district courts in this Circuit. L & A Products, Inc., et al. v. Britt Tech. Corporation et al., (8th Cir. 1966) 365 F.2d 83, No. 18275, decided August 29, 1966, notes that it would be “an oversimplification to conceive of Graham and Adams as two poles, one of which would necessarily govern each patent case when it comes under a court’s scrutiny.” Judge Blackmun pointed out that those two cases must be regarded “so far as the nonobviousness test is concerned, as the Supreme Court’s own contribution to its indicated case-by-case development” and that other post -Graham decisions of the Eighth Circuit must be viewed in the same manner. Piel Manufacturing Company v. George A. Rolfes Co., (8th Cir. 1966) 363 F.2d 57, notes the basic affinity between the Supreme Court’s decision in Graham and the pre-Graham cases decided by the Court of Appeals of this Circuit. Selmix Dispensers, Inc. v. Multiplex Faucet Co., (8th Cir. 1960) 277 F.2d 884, and Caldwell v. Kirk Mfg. Co., (8th Cir. 1959) 269 F.2d 506, cert. denied 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959), were cited as examples of the many cases that illustrate the point. Referring to Graham and to the two Eighth Circuit cases just mentioned, Judge Larson stated all three “decisions can be considered descendants of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 13 L.Ed. 683 (1950) * * (363 F.2d at 58, N. 2). American Infra-Red Radiant Co. v. Lambert Industries, Inc. (8th Cir. 1966) 360 F.2d 977; Kell-Dot Industries, Inc. v. Graves, (8th Cir. 1966) 361 F.2d 25; Skee-Trainer, Inc. v. Gareliek Mfg. Co., (8th Cir. 1966) 361 F.2d 895; and Automated Building Components v. Hydro-Air Engineering, (8th Cir. 1966), 362 F.2d 989, all reflect firm Eighth Circuit acceptance of Graham’s direct holding that the rule of Hotchkiss is now codified in Section 103 and Graham’s rejection of the argument that judicial precedents were intended to be swept away by Section 103 in order that the level of patentability be lowered. Graham’s declaration that the now Section 103 codified standard of Hotchkiss had “remained invariable in this [Supreme] Court” for over a hundred years (383 U.S. at 19, 86 S.Ct. at 694): its recognition that improper use of the Hotchkiss test is a label “brought about a large variety of opinions as to its meaning both in the Patent Office, in the courts, and at the bar” (383 U.S. at 12, 86 S.Ct. at 691); its recognition of “a notorious difference between the standards applied by the Patent Office and by the courts” (383 U.S. at 18, 86 S.Ct. at 694); all contributed to the Supreme Court’s firm direction to lower federal courts that “the inquiry which the Patent Office and the courts must make as to patentability must be beamed with greater intensity on the requirements of § 103 * * (383 U.S. at 19, 86 S.Ct. at 694). L & A Products, Inc., supra, consistent with the rule announced in Graham, states the path to be followed in regard to the nonobvious requirement and leads to several basic inquiries, namely, “the determination of the scope and content of the prior art, the ascertainment of the difference between the prior art and the claims at issue, and the resolution of the level of ordinary skill in the pertinent art.” (page 86 of 365 F.2d). The quotation, of course, is a direct paraphrase from 383 U.S. at 17, 86 S.Ct. 1, from Graham.) Study of the file wrappers of the patents here involved reveals that primary inquiry into the basic questions of obviousness and nonobviousness was not always in focus in the processing of the patents through the Patent Office. We do not want to be understood as saying those questions were totally unnoticed. The appeal taken to the Court of Customs and Patent Appeals in connection with the Yellow patent, reported as Application of Tibbals, 1963, 316 F.2d 955, 20 CCPA 1260, for example, illustrates that Section 103 was not totally ignored by the Patent Office. But the fact that the appeal was so vigorously prosecuted in connection with the Patent Office’s rejection of the Yellow patent’s Claims 27 and 28 on the basis of Lindblom’s prior art indicates that plaintiff was convinced he could get some appellate authority to say that Section 103 meant something different than what the Supreme Court was later to say in Graham that section does mean. • In a not wholly dissimilar manner, the pr e-Graham suggested findings of fact and suggested conclusions of law filed in this case before that case was handed down tended to give but passing attention to Section 103. In its pr e-Graham brief, plaintiff did quote Section 103; agreed that the Eighth Circuit rule applied a “higher standard” of invention; noted that Graham and the other cases were then pending on certiorari; but argued generally that under the Eighth Circuit rule the patents were valid. Hotchkiss was not cited. Defendant in its pre-Graham brief described this case as “primarily a ‘fact case’ which presents a ‘fact’ controversy.” Some attention was directed to the question of obviousness but the beam of inquiry was not focused with the intensity subsequently required by Graham. Defendant initially requested 251 findings of fact before Graham; plaintiff, 51. In briefs filed after Graham, defendant requested over 70 additional findings of fact. Plaintiff filed a 27 page appendix to its brief in which the prior art and the Section 103 questions were fully discussed. Neither party, however, suggested that any of the pr e-Graham requests for findings be withdrawn. In order therefore to ascertain the areas of real factual dispute we required counsel to indicate their specific agreement or disagreement with the particular findings requested by the other. In the event of disagreement, counsel were required to give citations to the transcript and to particular exhibits or portion of particular exhibits to support their respective positions. Our findings of fact reflect the pattern established by the procedures described. We are fully cognizant of the fact that some of the findings will sound in “patentise language,” to borrow Judge Mehaffy’s phrase in Kell-Dot Industries, Inc. v. Graves, (8th Cir. 1966) 361 F.2d at 29. For the most part we have adopted such language only where the parties have indicated their substantial agreement with a particular requested finding. We would not have made many of the findings requested except for the fact opposing counsel did not object. We are inclined to believe that many of the requested findings have but peripheral importance to the case and have the effect of planting rows of small trees that tend to obscure the forest. It is not improbable that practice before the Patent Office, involving as it does arguments over language that would equip one to argue with Schoolmen about the number of angels that can stand on a pinhead, has affected the flood of words this case has produced. On the other hand, Judge Learned Hand’s observation before a Senate Judiciary Subcommittee in 1955 quoted by Harris in “Section 103 Revisited,” (IDEA: Patent, Trademark, and Copyright Journal of Research and Education, Vol. 9, No. 4, pages 617-634, Winter 1965-1966) must not be overlooked. Hand said that patents and inventions were “a subject on which judges loved to be rhetorical.” Perhaps judicial verbosity in patent cases has not been without influence on the Bar. At any rate, the findings made in this case are a combination of those generally agreed to by the parties; those suggested by one of the parties, a particular part which I have accepted but parts of which I have modified in accordance with what I believe to be a proper factual finding; together with still other findings made without the suggestion of either side. In regard to findings that relate to prior art, I have sometimes added an example or examples of that art by reference to a particular patent which I believe to be pertinent. I may also add that in resolving all conflicts in the evidence I have refreshed my recollection by reading the transcript and by further study of all exhibits offered in evidence, all in the light of the arguments presented orally and in the excellent briefs filed by both parties. II. FINDINGS OF FACT 1. This is a suit under the patent laws wherein the defendants are charged with patent infringement. 2. The plaintiff Wood Products Development Co., Inc. (hereinafter called “Wood Products”) is a corporation of the State of Tennessee, having its principal place of business at Oneida, Tennessee. 3. The plaintiff Tibbals Flooring' Company (hereinafter called “Tibbals Flooring”) is a corporation of the State of Tennessee, having its principal place of business at Oneida, Tennessee. 4. All of the patents now in suit issued to Wood Products, as assignee, on applications originally filed by Mr. Charles Tibbals, who is the President of and the majority stockholder in Tibbals Flooring. 5. Wood Products was organized for Mr. Tibbals by Mr. Howard Baker, who is general counsel of and an officer of Tibbals Flooring, in early 1960 for the purpose of holding title to, administering, and licensing the patents expected to issue on a number of patent applications then pending before the Patent Office under an arrangement wherein Mr. Tibbals is paid 80% of the net profits prior to taxes, and, further, as a holder of 20% of the stock in that corporation, participates to that extent in the corporate profits after taxes. Mr. Baker is the President of, and a director of, Wood Products. The other officers and directors are a retired employee of Tibbals Flooring, an accountant retained by Tibbals Flooring, and Mr. Tibbals’ brother. 6. Mr. Tibbals is not an officer or director of Wood Products but acts as a “consultant” for this company. 7. Upon the organization of Wood Products, and the recording of the transfer of title to the pending Tibbals patent applications from Mr. Tibbals to that company, Wood Products issued a formal royalty-bearing license under those patent applications, and any patents issuing thereon, to Tibbals Flooring. The apparatus, method and products covered by these patent applications were developed' by Mr. Tibbals. The issuance of the “license” to Tibbals Flooring under these circumstances was not an arm’s-length transaction. 8. The defendant Cloud Oak Flooring Company, first listed in the caption of this case, was, at the time of the institution of this litigation, a corporation of the State of Missouri, having its principal place of business in Springfield, Missouri. The term “Cloud Oak (I)” will be used hereinafter to refer to the activities of this corporation prior to its change of name. This corporation is now, by change of name, the Cloud Investment Company which is listed in the caption of this case. 9. The defendant Cloud Flex-Block Floor Company (hereinafter called “Cloud Flex-Block”) was, at the time of the institution of this litigation, a Missouri corporation having its principal place of business at Springfield, Missouri, and was a wholly-owned subsidiary of Cloud Oak (I). It merged with defendant Lombard Oak Corporation. 10. The defendant Lombard Oak Corporation is a Delaware corporation, having its principal place of business at Springfield, Missouri. 11. The defendant Drabmol Oak Corporation is a corporation of Missouri having its principal place of business at Springfield, Missouri. It changed its name to Cloud Oak Flooring Company, the second Cloud Oak Flooring Company mentioned in the caption of this suit, which corporation will hereinafter be referred to as Cloud Oak (II). 12. At the time of the institution of this action, Cloud Oak (I) owned and Cloud Flex-Block operated the parquet floor block manufacturing machinery to which the charge of infringement relates (hereinafter termed “accused machine”), and sold the parquet flooring block, which it manufactured, to Cloud Oak (I) who, in turn, distributed the blocks through trade channels. During the course of this litigation there were a series of corporate reorganizations; Lombard Oak Corporation now owns the machinery in question and leases the same to Cloud Oak (II), which operates the machinery and sells the parquet flooring blocks, so manufactured, to the trade. 13. This action was instituted on March 16, 1963 when Cloud Oak (I) and •Cloud Flex-Block, acting as co-plaintiffs, instituted Civil Action 4673 in the United States District Court for the Eastern District of Tennessee against Wood Products, seeking declaratory judgment that neither of them infringed the patent to Tibbals, No. 2,650,627, issued September 1, 1953 (hereinafter referred to as the “red patent”); the patent to Tibbals, No. 2,961,021, issued November 22, 1960 (hereinafter called the “blue patent”); the patent to Tibbals, No. 2,983,295, issued May 9, 1961 (hereinafter referred to as the “black patent”); and Tibbals Patent No. 2,983,361, issued May 9, 1961 (hereinafter referred to as the “green patent”); and further seeking declaratory judgment that those patents are in. valid and unenforceable; and, finally, seeking an award of costs and attorney’s fees. 14. Wood Products filed an answer and a counterclaim charging Cloud Oak (I) and Cloud Flex-Block with infringement. 15. Wood Products did not, in fact, own the red patent. Title to that patent resided in Tibbals Flooring. Cloud Oak (I) and Cloud Flex-Block instituted Civil Action No. 4750 in the United States District Court for the Eastern District of Tennessee on July 9, 1963 against Tibbals Flooring, seeking declaratory judgment that neither of them infringed the red patent, that the red patent is invalid and unenforceable, and that there should be an award of costs and attorney’s fees. 16. On April 8, 1964, the Tennessee Court transferred both actions to this Court, where they were given No. 2057 and No. 2058, respectively. They have been treated as a single action by this Court. 17. As this is an action under the Patent Laws of the United States, there is no question about this Court’s jurisdiction over the subject matter, and all parties have waived any objections to this Court’s jurisdiction over the persons and/or the present venue of this action. 18. Tibbals’ patent No. 3,118,804, was issued January 21, 1964 (hereinafter called the “yellow patent”) to Wood Products and Tibbals’ patent No. 3,128,511, issued April 14, 1964 (hereinafter called the “brown patent”) was issued to Wood Products. 19. Subsequent to the issuance of the yellow patent and the brown patent, Cloud Oak (I) and Cloud Flex-Block filed motions to amend their complaint against Wood Products to bring those patents into the litigation for a declaration of non-infringement, invalidity and non-enforceability. At the request of the Court the pleadings of the respective actions were recast with Wood Products and Tibbals Flooring Company as plaintiffs. The “new” plaintiffs filed a combined complaint in Civil Actions No. 2057 and No. 2058, charging the defendants listed in Findings 8 through 11 with individually and collectively infringing specified claims of the patents still in suit, i. e., Claims 1-2 of the red patent, Claims 9 and 10 of the blue patent, Claims 1, 4, 6, and 12 of the black patent, Claims 2 and 3 of the yellow patent, and Claims 1-4 of the brown patent. 20. Pursuant to another agreement, reached at that pretrial conference, that the green patent was not infringed, the parties also filed a joint motion to dismiss, without prejudice, so much of the action as pertained to the green patent. 21. The “new” defendants responded to the new complaint by denying infringement, denying that any of the claims in suit were valid, or enforceable, and then entered a counterclaim charging that the plaintiffs had unlawfully restrained trade by seeking to enforce patents known to be invalid and unenforceable in general, and unenforceable against the defendants in particular, and praying an award of triple damages. 22. The plaintiff concluded that there had been no infringement of any claim of the red patent, and the parties agreed that that patent could be withdrawn from the litigation. Defendant did not waive its claim for an award of attorney’s fees expended in preparing for a trial on the red patent. 23. In the following findings, references to the prior art, or to prior knowledge of the art, refer to art or knowledge prior to any of the dates of significance in this litigation. 24. This controversy centers around the manufacture and sale of a product most commonly known as block flooring or unit block flooring, although now the product is sometimes known as parquet flooring. 25. The term parquet flooring in its original sense referred to the elaborately patterned floors made up by painstakingly forming and setting strips and other shapes of similar and/or constrasting woods to form any of an infinite number of designs. Such parquet floors have been used since the 14th Century in Europe, and from Colonial times in America, in palaces, manor houses, and the like, wherein cost, and the amount of hand labor required to install them, were matters of little concern. 26. Block flooring is a relatively new form of parquetry, apparently first introduced in the early part of this century, wherein groups of individual strips of wood (called “slats”) are assembled into square or rectangular blocks at the factory and are held together by various types of retaining means installed on their backs, sides, or ends, until they are laid in their final position, at which time they are secured to the subfloor by being set in mastic. While literally scores of different types of retaining means have been resorted to through the years, they all had the same ultimate purpose of accelerating the laying of a floor which will give the desired parquet effect. 27. Historically, most block floor has been made from the “shorts” obtained in the milling of, and subsequent cutting to specified even-foot lengths of, strip flooring, i, e., the end pieces which are too short for sale as strip flooring, per se. Conventional practice was for block flooring to have the same thickness as one of the conventional types of strip flooring. 28. Most of the strip flooring manufactured in recent years has a tongue and groove configuration. Blocks made from such stock have, by definition, a tongue and groove configuration on the edges paralleling the grain at the moment the block is first assembled. Conventionally, such blocks are thereafter milled to obtain similar tongue and groove configurations on the end-grain edges, and then the first mentioned tongued and grooved edges are remilled to the extent required to make the block perfectly square and of the desired final dimensions. 29. Some strip flooring is milled with a truly rectangular cross-sectional configuration, and is identified as “square edge” strip flooring. Blocks formed from such stock will not, of course, have the tongue and groove relationship between the respective slats, and will not have a tongue and groove relationship with neighboring blocks when finally laid unless all four sides are milled to the tongued and grooved configuration during the squaring operation after the block has been assembled. In this instance one end grain edge can be tongued, and the other grooved, so that the block as a whole will have a configuration similar to that of a' block formed of tongue and groove material, or in the alternative, two end grain edges can be tongued with the other two edges being grooved. 30. Blocks which are tongued and grooved on their outer periphery will, when laid, have a tongue and groove relationship with their neighboring blocks, and a given block will be held flat because of the interfitting of its tongues with the grooves of its neighboring blocks and by the interfitting of the tongues of its neighboring blocks with its grooves. Stated otherwise, the interfitting of the peripherally tongued and grooved blocks will serve to overcome any tendency of an individual block to curl in response to stresses created by the particular retaining means which has been selected to hold the block together up to the moment of installation, as aforesaid. In like manner, this inter-fitting relationship will prevent such blocks from conforming to minor irregularities in the underlying floor, even if the individual blocks, standing alone, are flexible enough to do so. 31. In those instances where the slats are composed of tongue and groove stock, and it is not desired to have a tongue and groove relationship between neighboring blocks, i. e., it is desired to make a square edge block, the tongue and the groove on the respective terminal (or outside) slats must be removed during the squaring operation. Of course, if the block is made up from square edge slats, it is only necessary to square the block to the final dimension. 32. Prior to any of the dates which are significant here, the block manufacturing art has long been aware of a variety of techniques for joining together, and holding in position, the respective slats which form the completed block, including the use of staples or corrugated fasteners to secure neighboring slats to one another, and the use of various types of splines installed in grooves formed in the edges, or in the underside, of the block and extending transversely of the respective slats. Such splines have been formed from lengths of wood or metal having various shapes. The metal splines or retaining elements most commonly disclosed in the prior art were either various forms of wire (either smooth, or barbed or coated for better adhesion to the walls of the transverse groove wherein they are installed) frictionally engaged to the walls of the groove or V-shaped metal strips which are loosely inserted (legs first) into the transverse grooves and then mashed inward to spread the legs of the V and to firmly embed them into the wood of the slats which constitutes the side walls of the transverse grooves. Examples of prior art are illustrated by the Baraclough, Hughes and Allen patents in evidence. 33. Whatever may be its particular style or configuration, the retaining element or elements hold the respective slats in their proper position relative to their neighboring slats until such time as the block is installed by being pressed down into a bed of soft mastic. Once the mastic stiffens, the respective slats, and hence the block themselves are resiliently held in situ by the mastic and the retaining elements simply lie dormant and serve no function at all. One criterion for a useful retaining member is that it be stiff enough to support the block in a reasonably flat configuration when the block is grasped by one corner, as a “limp” block would be difficult to handle and this would defeat the fundamental concept of the use of such blocks which is, as has been said, to accelerate the laying of a parquet type floor. 34. The use of V-shaped metal splines was first proposed by C. W. Allen Patent No. 1,808,623, issued June 2, 1931, based on an application which was a continuation of an application filed on June 11, 1927. In this patent Allen teaches the formation of block flooring by grouping the respective slats, forming a groove in the under surface, or “non-wear” surface, extending transversely of the slats, (which type of groove will hereafter be referred to as “transverse groove” to avoid confusion with the peripheral groove of tongue and groove slats or tongue and groove blocks), dropping a V-shaped metal spline into that transverse groove, legs first, and then pressing down on the apex of the spline with a presser to cause the legs to spread and bite into the wood constituting the corners of the groove. Allen illustrates a spline which is cut to a length which is sufficiently smaller than the transverse width of the block so that presence of such a spline will not interfere with the operation of the milling tools used to square the block after it has been assembled, as discussed above, and can not interfere with the interfitting of the respective blocks when the blocks are being laid. He also teaches that the groove and the spline must be so dimensioned that the spline, when installed in tight contact with the slats, will not protrude beyond the non-wear surface of the block, i. e., that the block will not, when installed “ride” upon the retaining element. 35. The block construction taught by Allen in this patent has been widely used by a variety of block manufacturers since the ’30s in connection with blocks made of W32" stock and is still used today. This technique has been used to a lesser extent on other sizes of blocks down to and including blocks made from %" stock. 36. The use of wire splines embedded in grooves on the underside, or non-wear surface, of a block was first proposed in Allen Patent No. 1,796,880, dated March 17, 1931, on an application filed on February 25, 1928, whose drawing illustrates a 6-inch square block formed of four %" x 1 y%" x 6" tongue and groove slats and states that he believed that wire splines are preferable for use in retaining the slats of block made of such thin stock as compared with the means previously used for retaining slats made of thicker stock, apparently referring to the V-shaped splines discussed in his earlier filed application which, as stated above, matured into his patent No. 1,808,623. Allen teaches that the wire is held in place through “frictional engagement” with walls of the groove, and that the wire may, if desired, be coated with cement to give it an even better grip or engagement with the walls of the groove (page 1, lines 65-67). He specifies that the wire must reside entirely within the groove because if any portion extended vertically outside of the groove, i. e., below the non-wear surface, the block would not lie flat on the subfloor, but rather would “ride” on the wire (page 1, lines 56-62). 37-41. The first real area of dispute revolves around what would have been obvious to a person having ordinary skill in the art from an examination of one of Allen’s 1931 patents for wood block flooring. Particular controversy centered around figure 7 of that patent. Plaintiff introduced Plaintiff’s Exhibits 53 and 54 as fair replicas of the teaching of Allen’s Figure 7. Defendant introduced Defendant’s Exhibit 70 for a similar purpose. We are unimpressed with all blocks because we are convinced that one skilled in the art would not seek to learn by such methods. The basic idea conveyed to one skilled in the art by Allen’s 1,796,880 is that thin strips of wood flooring could be tied together by a wire in a groove cut deep enough to hold the wire so that, when assembled, the wire would not protrude in order to prevent the block from “riding” on the connecting wire. That idea really is as old — and as obvious — ■ and as uncomplicated — as the countersinking of a nail, screw, or (and probably still older) a wooden dowel. Allen recognized in his 1,808,623 patent that thei'e was no particular novelty in what sort of “ties” were to be used. Indeed, he illustrates in figures 7 and 8 of that patent two sorts of ties that could be used and significantly added that “other forms of ties than those shown and functioning in substantially the same manner will readily suggest themselves to those skilled in the art” (lines 44-47, page 2, DX-20). Allen’s 1,796,880 does show that in 1931, the problem of moisture expansion of slatted blocks apparently had not yet been solved. He stated that “thin flooring of this character is used in dry climates for new construction and can also be generally used in reflooring houses, wherein, of course, the old flooring is thoroughly dried out.” In reiteration of the obvious implication of that sentence, Allen added that “thin flooring under unusual moisture conditions will cup and warp but when used under the indicated dry conditions, it is as serviceable as the thicker flooring” (lines 14-22, page 2 PX-7NN). As will be found below, the solution of the moisture problem admittedly became obvious to one of ordinary skill and a part of the prior art long before plaintiff’s patents were issued. We have discussed Allen’s 1931 patents in some detail at this point in order to illustrate what we believe a person of ordinary skill must be held to learn from the reading of a patent. Findings 42 and 42A are made because the facts there found relate to something that actually happened and illustrate how one skilled in the art actually used the teaching of Allen. Those findings, as will be stated in 42A, are based primarily on the DX-21 series of exhibits, the principal exhibit being the affidavit of one Frank H. Lyons. Under ordinary circumstances, we hesitate to base findings on any affidavit where the facts can otherwise be established. The circumstances in regard to Lyons’ testimony by affidavit were not ordinary. The circumstances under which Lyons’ testimony was not taken by deposition are revealed in Mr. Dooley’s letter of March 30, 1965; Mr. Browne’s letter of March 31, 1965; Mr. Dooley’s letter of April 1, 1965; Mr. Dooley’s letter of April 19, 1965; Mr. Browne’s letter of April 21, 1965; Mr. West’s letter of April 21, 1965; and Mr. Dooley’s letter of April 22, 1965. The agreement of the parties that Mr. Lyons’ affidavit be received in evidence as his testimony is reflected on pages 6 and 13 of the transcript. Additional findings and inferences are stated in 42A. 42. Thin (%") blocks, bound with wire splines no thicker than approximately .090" in diameter, frictionally engaged in grooves in the non-wear surface, were produced and sold for a short time in the late ’20s by Mr. Allen’s employer, the E. L. Bruce Company, Inc., which was then, and is now, the largest wood flooring manufacturer in this country. The blocks so sold were substantially identical to those shown in the Allen Patent No. 1,796,880, the only significant difference being that they were composed of three 2V4" wide slats, and thus the block had an over-all dimension of 6%" x 6%" and the wire spline had a length less than the over-all width of 6%", i. e., it only extended from a point short of the outside edge of one terminal slat to a point short of the outside edge of the other terminal slat, so as to leave sufficient clearance to avoid interference with the milling knives used to mill and square the block after it had been assembled. The spacing of the ends of the wire from the edges of the block also served to insure against the wire’s interference with the interfitting of the blocks with their neighboring blocks when the floor was laid, and, finally, insured against the possibility of any projecting wire ends that might injure the fingers of the floor layers. After a short time it was concluded by the E. L. Bruce Company that this type of block would have a better customer acceptance if constructed with the V-shaped metal splines illustrated in Allen Patent No. 1,808,623, and thereafter the Bruce Company made all of its parquet block flooring with the V-shaped splines up to a period during the Korean War, at which time a shortage of the flat steel tape used to make the V-shaped splines forced the Bruce Company to switch back to the usage of wire as employed in the late ’20s, except in this instance in association,, with the popular 9" x 9" x 2%2" block. When the steel shortage eased, Bruce returned to the use of the V-shaped splines and has continued to use them up to the present except for a brief period in 1959 when a shortage of steel, caused by the well-known steel strike in that period, again caused Bruce to briefly reconvert to the use of wire. A sample of the 2%2", 9" x 9" block, bound with .090" wire, as produced by Bruce during the Korean War and again in 1959, was introduced in evidence and was compared with otherwise identical blocks bound together with V-shaped spline. It is readily seen that while the latter presents a a noticeably stiffer block, the wire does have sufficient rigidity to retain the block in a substantially flat posture when it is held by one edge, as described in Finding 33. 42A. The above finding is based upon a stipulation of testimony of Mr. Frank Lyons, who is a long time employee and is now an executive of the E. L. Bruce Company, which has no interest in this litigation. At least as early as September 4, 1964, the plaintiff was advised of the defendant’s intention to rely upon the Bruce activities, and the details of those activities, and the defendant’s contentions as to the legal effect of those activities. Plaintiff had ample notice and opportunity to make a full investigation of the matters related in the stipulated testimony of Mr. Lyons, which were later set forth in the form of a sworn affidavit. Plaintiff did not impeach, or attempt to impeach Mr. Lyons, or challenge his credibility, or contradict it in any way. Defendant stipulated that the affidavit be considered as testimony. The Court accordingly accepts that testimony as being in all respects true and correct. 43. The reference in the Lyons’ affidavit, Defendants’ Exhibit 21, to a block identifies the block marked at trial as Plaintiff’s Exhibit 53. 44. The evidence indicates that prior to any of the dates significant in this litigation various other American block flooring manufacturers used smooth steel wire retaining elements on different types of blocks, including blocks made up of five or more slates 1 %" wide and either %e" or V2" thick. 45. Thus, prior to any of the dates which are significant in this litigation, the block making art knew that wire splines frictionally engaged in grooves in the non-wear surface and cut short of the terminal edges of the block, and V-shaped splines embedded in grooves in the non-wear surface, and cut short of the terminal edges of the block, could be used interchangeably, and thus were the equivalent of one another. A block manufacturer would probably use the cheapest of the available alternatives which will serve the intended purpose. 46. In regard to wire splines, the prior art patents specifically taught that the size of the wire, and the material of the tie, could be varied for the purpose of giving any desired degree of flexibility, this general premise being taught in the patents to Kraft No. 2,266,-464, issued March 16, 1941 (Pl.Ex. 7 HH), Ranta No. 2,823,712, issued February 18, 1958 (filed February 28, 1955) (Pl.Ex. 7 PP), and Newton No. 1,902,-712, issued March 21, 1933 (Pl.Ex 7 T). Newton specifically stated: The character of the wire can be made to determine the degree of flexibility in the final strip. For instance, if malleable wire is used, there will be great flexibility and if a hard Bessemer wire is used, the strips will be relatively thick. Or the diameters may be varied. Thus, the degree of flexibility may be better varied by the use of metal wire. However, it is to be noticed that the round cross-section of the wire may be used, without making the key and spline pieces of metal. For instance, they may be made of fiber, or the like. (Newton Patent PX-7T, page 3, right column, lines 95-107, inclusive.) 47. Considering the equivalency of wire spline and splines of other shapes, it is plain that the prior art had long taught and made obvious to a person skilled in the art that it was simply a matter of choice, dictated solely by economic and spacial availability factors, whether a given type of spline was to be installed in grooves in the non-wear surface, or grooves in the edge of the block. This is demonstrated in connection with various wire type splines in Kraft No. 2,266,464, issued March 16, 1941 (Pl.Ex. 7 HH), the French patent No. 1,026,897, Délivré February 4, 1953, and with a comparison of Newton 1,902,712, issued March 21, 1933 (Pl.Ex. 7 T) with Allen 1,796,880, issued March 17, 1931 (Pl.Ex. 7 N). It is also demonstrated with splines made from sheet metal formed as elongated staples by a comparison of Redin, issued December 4, 1951 (Def.Ex. 12) with the patent to Pfiester, issued June 25, 1929 (Pl.Ex. 7 M). 48. Prior to any of the dates of significance in this litigation, it was well understood in the art that while a single metal spline disposed in a groove in the non-wear surface of the block would suffice on blocks up to 9" x 9" x 2%2", in some of the larger blocks it was desirable to use two parallel splines rather than just one. In the case of blocks made from square edge slats, it was obvious that the slats would wobble in parallel planes if only joined by one spline. Accordingly two splines were required when working with this type of slat. 49. Prior to any of the dates of significance in this litigation the art was aware of the general principle that the engagement between a foreshortened spline and the respective slats, and particularly between such a spline and the terminal slats, could be enhanced by either the formation of teeth of that surface of the spline that is to be embedded in the bottom of the transverse groove, as shown in Allen Patent No. 1,808,623, or by purposely deforming the ends of a spline in such a way that they bite down into the bottom of the transverse groove of the terminal slats at points short of the slat’s outside edges so that the spline forms, in effect, an elongated staple which imparts an improvement in the longitudinal strength of the block, as shown in Redin Patent No. 2,577,630, issued December 4, 1951. 49A. Starting in 1948 Bradley Lumber Company began manufacture of blocks having the clinched “V” spline construction just described with a Redin machine which could produce blocks having an over-all size of from 6%" square to 12" square from slats ranging in thickness from about %" to ls/ie". In this machine the clinched metal of the spline extended into the wood at the bottom of the transverse groove approximately .060" to form the abóve-mentioned elongated staple as shown in the cross-sectional profile presented in Def.Ex. 32. 49B. The above finding is based on a stipulation that Mr. Redin, who has no interest in this litigation, would so testify. Plaintiff was apprised of defendant’s intention to establish these facts over six weeks prior to trial, and had ample opportunity to make all required investigations prior to entering into the stipulation regarding Mr. Redin’s testimony. Plaintiff did not impeach, or attempt to impeach Mr. Redin, or challenge his credibility, or contradict it in any way. The Court accordingly accepts that stipulated testimony as being in all respects true and correct. 50. More than a year prior to any of the dates of significance in this litigation, Tibbals Flooring had utilized a modified version of the assembly machine of the red patent to engage in the commercial production of parquet flooring blocks by a method which included the steps of: (1) An assembly of a line of elongated wooden slats; (2) Cutting a transverse groove in one surface of each slat spaced from the ends of each of the slats; (3) Feeding into those grooves a V-shaped metal spline; (4) Severing the spline from the supply of spline material within the groove at a point intermediate to the edges of a terminal slat of the group of slats being formed into a block; and (5) Embedding the spline into the wood defining the transverse groove. Step 2 above was not performed on the red patent machine, the grooving being done by other machinery in the plant. No particular significance may be attached to that fact because Allen 1,796,-880 pointed out in 1931 that the cut in the back of slats could be made “before or after assembling the strips” (lines 44-46, page 1, P. X 7 N). It is obvious that a cut after assembly would be a preferable choice to one made before assembly. 51. Considering the equivalency of wire spline and V-shaped spline, and the respective techniques for installing them, the above mentioned public use by Tibbals Flooring must be recognized as the equivalent of the public use of a technique including the steps of: (1) Grooving of the slats; (2) Feeding into the grooves a wire having an effective diameter slightly larger than the width of the transverse grooves; and (3) Severing the wire intermediate the edges of a terminal slat of the group of slats. 51 A. In the late 1920’s the E. L. Bruce Company, in the course of its manufacture of the %" wire bound blocks described in the opening of Defendant’s Proposed Finding 42, utilized a hand-operated block assembly apparatus in a technique which included the steps of: (1) Grouping of the slats; (2) Grooving of the slats; (3) Forcing into the grooves a wire having an effective diameter slightly larger than the width of the transverse grooves; and (4) Severing the wire intermediate the edges of a terminal slat of the group of slats. 51B. Finding 51A is based on the stipulation of the testimony of Mr. Frank Lyons mentioned in Defendant’s Finding 42A. The considerations there stated are applicable here. 51 C. In the device used by Tibbals Flooring as described in Defendant’s Proposed Finding 50, the knife which cuts the spline as it rests upon the wood constituting the bottom of the transverse groove of a terminal slat serves to cause a localized bending of the cut end of the spline into the wood for a distance of approximately .050". This clinching is an inherent result of cutting a piece of steel backed on a piece of wood, as the steel is, of course, considerably harder than the wood. While this clinching of the spline into the wood may be said to form an elongated “half staple,” this “half staple” has no purpose as such and is, indeed, partially pulled out in the subsequent stretching operation employed by Tibbals Flooring that will be described in detail hereinafter. 52. The art has long known that in the case of blocks bound together by retaining elements on their edges, backs, or in grooves in the backs, a distinct advantage in terms of dependability in service could be obtained if the respective slats are so spaced from one another as to allow room for hygroscopic expansion normal (perpendicular) to the grain which will occur when the block is placed in an area where it will absorb moisture and swell, e. g., an area having a significantly higher relative humidity than that prevailing at the locale where the block was assembled and manufactured, the specific amount of spacing required being determined by whether the slats were predominantly plane sawn or predominantly quarter sawn (quarter sawn slats characteristically experience less hygroscopic expansion when experiencing a given increase in moisture content) and the width of the respective slats. Obviously, a block made up of slats two inches wide requires twice as much spacing between the respective slats as a block made up of slats one inch wide if they are both to accommodate the same increase in moisture content and the relative increase in width due to hygroscopic expansion. By way of example, it had long been recognized that 9" square blocks, composed of predominantly plane sawn oak, must have a total of %i (0.078) inches of spacing, or 0.026 inches between each slat in the case of a 4-slat block (i. e., 3 spaces) or about 0.016 inches of spacing between each slat in the case of a 6-slat block (i. e., 5 spaces), or stated otherwise, .0087" of space per inch of block (Tr. 760). If the same block were made of predominantly quarter sawn, but otherwise identical, oak slats, the amount of spacing required would be significantly less because, as just noted, quarter sawn lumber has a smaller factor of hygroscopic expansion. 52 A. A slat experiencing hygroscopic expansion expands from its center outwardly. Thus, when a group of slats which are bound together with a wire-type (or any other type) spline and are each spaced apart a sufficient distance to accommodate hygroscopic expansion, the centers of the slats do not move relative to one another, or to the spline, when the slats are experiencing hygroscopic expansion. All that happens is that the respective edge-faces of the slats move closer to one another. But if the spacing between those edge-faces does not equal the sum of the distances that each of the two opposed edge-faces move, then the slats will (1) abut one another, and then (2) each tries to shove the other out of the way. In the prior art, the likelihood of such shoving was foreclosed by the simple expedient of insuring that the slats were spaced far enough apart so that this would not happen. 53. The amount of significant hygroscopic expansion in a given block is substantially independent of its thickness. In actuality, when the humidity, and hence the moisture content of a block changes, it experiences a change in its lateral dimension, but as a practical matter, all this does is make a minuscule difference in the floor surface-to-ceiling height, which is, of course, undetectable to the occupant of the room in question. Thus hygroscopic expansion in this direction can be, and is, ignored. Wood does not experience here significant hygroscopic expansion in a direction parallel to the grain. 54. Prior to any of the developments which figure in this litigation, the art recognized two specifically different techniques for obtaining spacing between slats bound together by a metal retaining element disposed in a transverse groove in the non-wear surface of a block. In one technique the retaining element is installed in the groove while the ends of the transverse grooves of the respective slats are spaced apart the distance which the entire slats are to be spaced in the finished product. According to this technique, there is never any relative movement between the slats as a whole and the retaining element after the latter has been installed. In the second technique the slats are held firmly together, the retaining element is installed, and the block is then forced through a stretching operation which causes each slat to slip along the retaining element to a position where it has the desired spacing from its neighbors. Either technique can be used with equal ease with either a V-shaped spline or with a wire spline. The details of the two techniques, and the fundamental difference between them, can be quickly grasped from a comparison of the Bruce Patent No. 2,113,076, dated April 5, 1938 (Pl.Ex. 7 CC) with Tibbals Patent No. 2,650,627, dated September 1, 1953, which is, incidentally, the Red patent that was originally invoked by the plaintiff, but is no longer in suit. 55. Bruce Patent No. 2,113,076 teaches the obtention of what he calls hairline cracks, which he defines as cracks of from Yei" to Ya" (0.015" to 0.031") by collecting a group of slats having the transverse grooves already cut in the non-wear surface, assembling the group in abutting relation with their wear surface on a platen having a convex surface which has its radius of curvature extending normal to the length of the slats, and then installing the retaining element while the slats are maintained in that posture. As slats, so positioned, will, by definition, have a spacing between their respective non-wear surface edges, and will have a somewhat lesser spacing between the ends of the respective transverse grooves in the respective slats (the amount of these spacings being a function of the thickness of the slats, the depth of the groove, and the radius of the curvature of the convex surface) the result is that when the block bound together by the retaining element is removed from the convex surface, and placed upon a flat surface, all portions of the neighboring edges of the respective slats will then be spaced apart a distance which is equal to the spacing that existed between the ends of the respective transverse grooves when the block was residing on the convex platen. Assuming that the spline is installed with sufficiently tight engagement with the respective slats, there is never any change of relative position between the slats and the spline up to, and including, the time when the block is finally installed as a part of a finished floor. 56. The Bruce patent technique for obtaining hairline cracks between the slats of assembled blocks has been regularly employed since the ’30s by the E. L. Bruce Company, Inc., in the manufacture of blocks with a variant of a block assembly machine shown in Rhinevault Patent No. 1,859,633, dated May 24, 1932 (Pl.Ex. 7 R). The Bruce Company versions of the Rhinevault machine are slightly different from that shown in the Rhinevault patent in that they replace the flat platen under the spline-flattening plunger 33 with the curved platen of the Bruce patent, and, further, in that the arrangement for severing the length of spine being inserted in the transverse groove of an assembled group of slats from the supply of spline material is like that shown in Figures 13, 24, and 25 of Redin Patent No. 2,557,630. Bruce has not, however, employed the Redin patent’s clinching feature, which will be discussed in detail hereinafter. These machines have, in the main, been used by Bruce for installing V-shaped splines but they were also used in the installation of a wire spline during the Korean War period and during the 1959 steel strike, as described in previous Finding 42. Generally similar machines, having curved platens, were used by other manufacturers in this period, although so far as the evidence shows, all such usage was in connection with V-shaped splines. 57. While it appears that most of the commercial production using the Bruce curved platen on one of the variants of the Rhinevault machine discussed above was directed to larger blocks made from 2%z" stock, this technique is equally adaptable to any size block, and has been used to some extent on blocks made of %" stock. 58. The block machine of the Tibbals red patent takes a markedly different approach to obtaining spacing. In that machine a column of transversely grooved slats, disposed non-wear side up, is intermittently advanced, by a reciprocating ram, along a flat bed. At one station on this bed a precut spline is installed in the aligned transverse grooves of four neighboring slats to bind them together into a block. On a subsequent thrust of the ram, the completed block is forced off the end of the flat bed and into a channel which is so curved as to force the block to assume a concave (relative to the wear surface) configuration, i. e., the same posture that is assumed by the block in the above-mentioned Bruce patent at the moment of the installation of its spline. As detailed in the above discussion of the Bruce patent technique, slats so positioned will, by definition, have a spacing between their “non-wear” surface edges, and will have a somewhat lesser spacing between the ends of the respective transverse grooves in the respective slats, the amount of these spacings being a function of the thickness of the slats, the depth of the groove, and the radius of curvature of the convex surface upon which the wear surface resides. However, since in this ease the spline has already been installed, this spacing of the slats is necessarily accompanied by a slippage of the spline relative to the slats, the amount of this slippage (and hence the amount of the spacing that is caused) being selectively controllable by adjustment means which can change the radius of curvature of the channel. When the block is discharged from the curved channel of the machine, and placed upon a flat surface, all of the neighboring edges of the respective slats are spaced apart a distance which is equal to the spacing that existed between the ends of the respective transverse grooves when the block was disposed within the curved channel. As the slippage involved was only obtained through the application of relatively large forces, the spline’s engagement with the respective slats remains sufficiently tight to hold the slats in their newly-spaced position against the relatively small forces the block encounters in subsequent handling, finishing and packing, and in the handling by the flooring installer. 59. While the Tibbals red patent, like the Bruce patent, specifically illustrates the use of this stretching technique in connection with blocks bound with a V-shaped spline, it was then obvious to one skilled in the art that the technique as such is equally applicable for use with a wire spline. 60. There is nothing in the Tibbals Red patent to suggest that the stretching apparatus of the device, or other features of the machine, are such that it can, or should, only be used in making blocks from slats of any particular size or shape, and thus this patent presents a broad teaching of the use of the post-insertion stretching step in the manufacture on any type of block which includes a spline capable of being caused to slide relative to the slats. 60 A. The commercial version of this machine, as used by Tibbals Flooring, and by the Canadian assignee of the corresponding Canadian patent, was always employed in connection with 2%2" block, but could, with suitable adjustment be used with thin stock. 61. Bach of the different approaches to obtaining spacing, as exemplified in the Red patent and the Bruce Patent No. 2,113,076, is the antithesis of the other in that the first technique demands relative movement between the spline and the pieces of wood after the block is formed, and the other is carefully designed for the purpose of preventing relative movement between the spline and the pieces of wood after the block is formed. While both techniques were equally compatible with the usage of any of the various straight splines, having relatively smooth surfaces in engagement with the wood of the slats, the post-insertion stretching technique was not compatible with the technique of inserting the spline in such a manner that its ends were intentionally clinched into the wood of the terminal slats for the purpose of forming an elongated staple, and in like manner was not compatible with the use of a spline which was toothed, serrated, barbed, adhesively coated, or otherwise treated or shaped in such a manner as to resist relative movement between the slats and the spline, because in such instances the post-insertion spacing would have defeated the purposes of the clinching, the presence of the teeth, the serrating, the barbing, etc. 61 A. In further regard to spacing, it should be noted that in some of the prior art apparatus for obtaining spacing the slats advance in an integrated column, e. g., the Red patent, or Lindblom (Pl.Ex. 7 VV), and in some they advance in segregated groups, each corresponding to a finished block, e. g., Rhinevault or Redin. Even though these techniques were recognized as being specifically different, it was, prior to any of the dates of significance in this litigation, obvious to a person skilled in the art that either of these systems of advancement could be used in the alternative when the slats were to be spaced at the moment of insertion of the spline and also when the post-insertion spacing technique was to be used. 62. While the Red patent states that the purpose of obtaining the hairline cracks is to enable the block to accommodate hygroscopic expansion, this machine’s provision of means for adjusting the radius of curvature of the channel, or indeed, to so adjust the channel that it does not present a true curve, i. e., has a varying radius of curvature, makes it possible for the operator to arrange for the production of blocks having a specified transverse (of the grain) dimension, even though the transverse dimension of the slats being employed in a given run vary from that of other slats of other runs. This feature makes it possible for Tibbals Flooring to eliminate the customary squaring operation, and the block that is discharged from this machine can simply be run through a set of milling tools which are set to tongue and groove the end-grain edges of the block to a dimension equal to the above-mentioned predetermined transverse-of-the-grain dimension. 63. Prior to any of the dates of significance in this litigation there were a number of parquet flooring blocks on the market, or shown in the prior art, which did not employ a spline, but rather utilized panels of paper or fabric adhesively secured to the slats to bind them together and retain them in the configuration of a block. In the older versions of this type of block, the paper or fabric was glued to the non-wear surface of the blocks, an arrangement which has the advantage of giving some protection against moisture coming up through the subfloor. In at least one such commercial product, the block was 6 inches square, and composed of a plurality of slats %e" thick, the slats being slightly spaced from one another by inserts of a paper-like material which was apparently similar to the paper-like material of the panels to which the non-wear surfaces of the slats were glued. These blocks go back at least as far as Elmondorf’s Patent 2,123,408 (Pl.Ex. 7 DD) in 1938. 64. At a time prior to any date of any significance here, a product was introduced in Canada under the name Bar Wood, and in the United States under the name Bond Wood, which consisted of square edge blocks, 4%" square, made up of five square edge slats which were just under one inch wide and BAe" thick. The individual blocks were assembled in the parquet manner, i. e., with the grain of the block running perpendicular to that of its neighboring blocks, into panels 19" square, the whole panel being bound together by sheets of paper glued with a water soluble glue to the upper or “wear” surface of the wood. In these blocks, which were characteristically composed of predominantly quarter-sawn slats (and hence are less susceptible to hygroscopic expansion than slats made from predominantly plane-sawn lumber), the slats are simply installed in “hand tight” relationship to one another on the glue-bearing paper retaining element. There was no especial effort to space the slats from one another because the problem of spacing was taken care of during the final installation of the blocks. More particularly, immediately after those blocks were embedded in the mastic, the entire floor was thoroughly wetted for the purpose of dissolving the glue which affixes the paper to the wear surface of the slats, so that the paper could then be peeled off. By virtue of this procedure, the respective slats were thoroughly soaked and hence experienced far more hygroscopic expansion than they would ever experience as a result of high ambient humidity conditions. As the mastic was still quite soft, the blocks easily adjusted themselves to positions accommodating this maximum hygroscopic expansion. When the floor dried, the slats shrank down to the size that they would have in the prevailing ambient humidity condition, leaving hairline cracks which were apparently comparable to those mechanically induced by the various techniques discussed in the previous finding