Full opinion text
R. DORSEY WATKINS, District Judge. This is an action brought by Diamond International Corporation (by change of name from Diamond National Corporation, assignee of the patent in suit, and hereinafter sometimes “plaintiff”) against Harry C. Walterhoefer, Jr., William C. Walterhoefer, and John A. Walterhoefer, trading as Harry C. Walterhoefer & Sons (distributors) and Packaging Corporation of America (manufacturer), hereinafter defendants or PCA, for alleged infringement of United States Patent 2,990,094 (Reifers ’094) issued June 27, 1961, on a continuation of a copending application filed December 16, 1953, which in turn was a continuation-in-part of an application filed May 24, 1952, and abandoned, for a “Molded Pulp Egg Carton.” The patent in question is a product patent. The progress of the various patent applications was tortuous and protracted, and the patent was allowed only after the Board of Appeals had overruled the disallowance by the Examiner of Claim 23 (later Claim 25, and Claim 1 of the patent as issued). The procedure in this court might be similarly characterized. Nor has PCA been niggardly in its defenses as to validity, infringement and enforceability. It asserts invalidity under 35 U.S.C. sections 101, 102, 103 and 112; absence of invention because of contemporaneous development of a similar locking device; misrepresentations to the Patent Office and to the Board of Appeals; file wrapper estoppel; abandonment at time of public use; violation of section 2 of the Sherman Act by fraudulently obtaining the patent in suit and an attempt thereby to obtain power to exclude competition; and an attempt to monopolize a distinct relevant market in molded pulp egg cartons. Defendants also filed a counterclaim for a declaration of invalidity and non-infringement; and after the decision in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247, filed an amended counterclaim adding two paragraphs to their original counterclaim and seeking therein a dismissal of the principal suit on grounds of unenforceability of the patent because of unclean hands and patent misuse, including violation of section 2 of the Sherman Act. Background. Whatever may be the correct answer to the question of “which came first, the chicken or the egg?”, at all times relevant herein, there were millions of hens, and millions of dozens of eggs. The practical question was; “How can these eggs be commercially transported, either to their ultimate destination, or to points of distribution?” The chief commercial containers for the transportation of eggs were either paperboard (cardboard) or molded pulp containers or separators in which some thirty dozen eggs would be packed in a single container, separated by “egg flats” and egg “filler flats.” Then began the manufacture of egg cartons, in which a dozen eggs would be placed in a container, packed thirty cartons to a container. The competition between paperboard cartons and molded pulp cartons was, and continued to be, severe, their sales being split roughly 50-50 as of the time of trial. Each needed to be automatable as to loading. Each had certain advantages and disadvantages. The paperboard carton would better accept ink and advertising material; it could be closed by staple, glue or cord; but it did not accord maximum protection to the eggs, and was not readily adapted to re-use. The molded pulp carton was much more readily susceptible to cell formation designed to support and protect the eggs, but it was relatively brittle, and presented problems of closure similar to the paperboard cartons. Flaps or lugs were difficult to automate, and tended to break or bulge. In general, no satisfactory automatable locking had been developed prior to Reifers ’094 in a molded pulp carton. In several instances a compromise had been sought to be effected, a molded carton being placed in a paperboard “sleeve” or container. Moreover, “tri-fold” molded cartons had been developed, in which a flange connected to the cover portion contained extensions to be inserted in apertures in the tray portions of the containers. In general, locking devices for molded pulp cartons had proceeded on the basis of frictional closure by placing a flap between the lower container, or tray portion, of the carton and the contained eggs, the eggs together with the spring action of the flap being relied upon to cause a locking; or tabs, usually in the upper, or cover, portion of the carton were inserted in slots or openings in the front of the tray portion. Some suggestions had occurred in paper patents that the lugs could be placed on a flanged portion attached to the tray and inserted into the cover portion. Variations as to whether the cover portion should be cellular or non-eellular (planar) also existed. At the time the Reifers alleged invention was conceived, the most nearly commercially satisfactory molded carton was one which combined the physical structure of Cox Patent 2,771,233, issued November 20, 1956 on an application filed June 21, 1950, with the Sherman “Tab-Lock”, Patent 2,587,909, issued on March 4,1952 on application filed February 17, 1947. Cox ’233 contained quite satisfactory egg cell formations in the tray, to which a flange was attached, and a non-cellular cover, with a flexible front side. The Sherman tab-lock had a tab-receiving opening between the cells in the bottom (tray) section, and an extension from the cover section with a locking tab for insertion into the opening in the bottom section. Efforts to secure effective locking devices in molded pulp cartons had been the subject of numerous efforts by many inventors, including Cox, president of plaintiff, and others, to be mentioned in specific discussion of the prior art. Where a tab or lug device, as distinguished from a frictional one (or adhesives, or staples, or string) was relied upon, in general the male member was on the cover, or a flange thereof, and the female member was in the tray. In these, and in the few instances in which the flange and male member were attached to the tray, and the female member was in the cover, the entry was always directed from the outside in. When Reifers was employed by plaintiff, he was given two assignments, one of which was to design a satisfactory lock for a molded pulp egg carton. He had had no experience in the field of egg cartons, but had shown substantial ingenuity in the field of packaging containers. Without study of the prior art, but with a background of extensive practical experience in packaging, in about five months he developed the product on which the patent in suit issued. His testimony as to the production of a working model, its disclosure and recordation of invention, is in the Court’s opinion entirely satisfactorily supported by the evidence. In substance, he took the Cox ’233 patent, placed the male members (nobs, or lugs) on the flange hinged to the tray, the thrust of said male members being directed from the inside out, and inserted receiving notches (holes, female members) in the front wall of the cover portion. This permitted easy filling, by having the tray portion completely open, with the flange extended outwardly, and an easy closing by then pressing in the flange and rotating the cover over it. Upon release, the flange would spring outwardly, securely locking the cover; protecting the eggs; permitting release of the cover without harming the eggs, and also the opening, removal of some of the eggs, and manual reclosing. Simple — beautifully simple; and so obvious in the view of 20-20 hindsight vision; and so completely missed previously by those “skilled in the art.” Moreover, simplicity, far from being an objection to invention, “may constitute its great excellence and value.” Chesapeake & Ohio Railway Co. v. Kaltenbach, 4 Cir. 1938, 95 F.2d 801, 804; “ * * * some of the simplest advances have been the most non-obvious.” Van Veen v. United States, Ct.Cl.1966, 151 USPQ 506; Webster Loom Company v. Higgins, 1882, 15 Otto 580, 105 U.S. 580, 591, 26 L.Ed. 1177; Eastern Rotocraft Corp. v. United States, Ct.Cl.1966, 150 USPQ 124; Refractolite Corporation v. Prismo Holding Corporation, 2 Cir. 1941, 117 F.2d 806, 807; “It only remains now for the wisdom which comes after the fact to teach us that * * * [Reifers] discovered nothing, invented nothing, accomplished nothing.” (Carnegie Steel Co. v. Cambria Iron Co., 1901, 185 U.S. 403, 446, 22 S.Ct. 698, 715, 46 L.Ed. 968). The claims in question read as follows: “1. In an integral and nestable egg carton made of relatively flexible molded pulp, a cellular tray portion having a front side, a rear side, and two ends, an inverted dished cover hinged to said tray portion, means for latching said tray portion to said cover with a latch located above said tray portion and extending completely through said cover from the inside to the outside, said tray portion having its front side strongly tied to its rear side by a plurality of spaced cell-forming partitions extending generally parallel to said tray portion ends, said partitions acting as means for preventing spreading of said front side from said rear side, said tray portion including egg cells adjacent but below the latching means, said inverted dished cover having a planar top, a front side, a rear side, and two ends, said front side being connected to said rear side only by said two ends and said planar top so that the front side is relatively flexible and is not rigidly tied to said rear side intermediate the ends of said front side, said front side of said cover having an opening formed therein through which the latch is adapted to extend completely from the inside to the outside, said dished cover being hinged to said tray portion along its rear side, a latch holding flap hinged to the front side of said tray portion, the hinge line connection of said cover with said tray portion and the hinge line connection of said latching flap with said tray portion being maintained parallel by said tying partitions even when the tray portion is loaded with eggs, said latch on said latching flap being located on one side of said tray portion which is opposite to the side where the cover is connected to the tray portion so that both the cover and the latching flap are each connected to the tray portion when the carton is open, said molded pulp egg carton being integrally formed with the latching flap, the upper edges of the two sides and the two ends of the tray portion, the upper edges of the two sides and two ends of the cover generally in the same plane and with the latch extending downwardly from the underside of the latching flap which is hinged to the front side of the tray portion and said latch being relatively close to the tray portion as compared with the opening in the front side of the cover which is relatively remote from the tray portion; when the tray portion is loaded with eggs and the latching flap is turned upwardly and the cover portion is rotated in a direction to telescope over the latching flap, the two hinge lines are relatively immovable but the front side of the cover may flex, whereby the loaded egg carton may be latched by simply rotating the latching flap upwardly and inwardly and rotating the cover upwardly and around the latching flap while the structural features maintain the geometric relation of the latch on the latching flap to the opening in the cover until the front side of the cover engages the latch on the latching flap and is cammed there-over until the latch on the latching flap registers with the opening in the front side of the cover whereupon the latch passes through the opening in the cover from the inside to the outside to effectively latch the carton. “2. A nestable molded pulp egg carton in accordance with claim 1, wherein the opening in the front side wall of said cover extends to the planar portion thereof and the latch on said latching flap is near the edge thereof which is remote from the hinge connection of the latching flap with the tray portion.” As will be seen, defendants seek to make much of the structural details, claiming that Reifers could simply have said that he claimed Cox ’233 plus buttons and holes. Later, as will also be seen, they say that Claim 1 is fatally defective for failing to include allegedly essential limitations of the specification. Defendants argue invalidity under 35 U.S.C. sections 101, 102, 103 and 112. Preliminarily, it may be noted that defendants assume a heavy burden in view of the statutory presumption of validity (35 U.S.C. section 282), strengthened by the extended consideration given the application in the Patent Office (Universal, Inc. v. Kay Mfg. Corp., 4 Cir. 1962, 301 F.2d 140; Baker-Cammack Hosiery Mills, Inc. v. Davis Co., 4 Cir. 1950, 181 F.2d 550), and further strengthened by the allowance of Claim 1 by the Board of Appeals. (S. H. Kress & Company v. Aghnides et al., 4 Cir. 1957, 246 F.2d 718, 721). 35 U.S.C. section 101. Defendants claim that the alleged invention is not “new and useful” and does not produce a “new, useful and unexpected result.” The contention that the invention is not useful can be dismissed off-hand. Its commercial success is clearly established, and is admitted by defendants with attempted explanations and qualifications as to the reasons therefor. It was “new” in the ordinary sense that Reifers for the first time disclosed it. Defendants’ main argument is that the result was not unexpected, and the stock citations are made of Richards v. Chase Elevator Company, 1895, 158 U.S. 299, 302, 15 S.Ct. 831, 39 L.Ed. 991; Great A. & P. Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 152, 71 S.Ct. 127, 95 L.Ed. 162; Altoona Publix Theatres v. American Tri-Ergon Corp., 1935, 294 U.S. 477, 486, 55 S.Ct. 455, 79 L.Ed. 1005; Heyl & Patterson, Incorporated v. McDowell Company, 4 Cir. 1963, 317 F.2d 719, 722; Servo Corporation of America v. General Electric Company, 4 Cir. 1964, 337 F.2d 716, 719; Goldman v. Polan, Katz, 4 Cir. 1938, 93 F.2d 797, 799. It is contended that Reifers and Cox ’233 are identical except for the “buttons and holes”; and that buttons and holes are old. But buttons [or tabs] and holes had been tried by others, including Cox in carton PX-106 which in a general way corresponds to his ’233 patent. It was only when the particular buttons and holes of Reifers were used in a particular (and different) manner and relation to molded pulp egg carton constituent parts that a new and unexpected result — a satisfactory self-locking carton — was obtained. 35 U.S.C. section 102. The pertinent portions of this section provide that: “A person shall be entitled to a patent unless * * * ■x- * * * * * (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention.” In 1955, PCA commenced the sale of 3x4 molded pulp egg cartons, with snap locks similar to those in the Reifers application, and in plaintiff’s cartons which had been on the market since 1953. On or about December 3, 1956, PCA received notice of alleged infringement of the Cox ’233 patent, and shortly thereafter discontinued the production of the 1955 carton. In December 1957, PCA introduced a new 3x4 flat top carton. PCA contends that as during the period 1955 to May 1958, Reifers had claims pending which called for constructions differing from the PCA cartons, the PCA cartons were in “public use” and a bar to Reifers. The main argument is that although the PCA cartons used locking lugs on the flange portion hinged to the tray, which entered into holes in the front cover, from the inside out, Reifers called for space between the front cover and the eggs, and for the lugs to be positioned between the cells, while in the “PCA carton of 1955 the locking lugs formed on the flange were disposed in front of two of the cells in the front row of cells and at approximately the maximum girth of the accommodated eggs with the result that the eggs served as abutments for the lugs so as to retain the latter in locked positions within the openings. Thus, the eggs prevented depressing the lugs in order to open the cover of the PCA 1955 carton.” Whether in fact the eggs did prevent “depressing the lugs in order to open the cover” is questionable. Defendants’ argument ignores the variation in the sizes of eggs. It is doubtful, if indeed the lugs could not be depressed to open the cover, that the cover could be closed (satisfactorily) by automation, since it would be necessary delicately to depress the flange, to spring the front side of the cover forwardly and to draw it down below the lugs before releasing it. Moreover the housewife, seeing a carton with no instructions for opening, but with lugs that invite “Push me in” is going to do just that; and if the eggs prevent depressing the lugs, then the eggs themselves are going to be depressed. All this, however, would at the most go to infringement as to which it will further be considered, rather than to validity. It is contended that the mere pendency of limited claims, not broadened until after the PCA cartons appeared, evidenced an intention to abandon a broad inventive concept, and that in any event failure to amend to reassert broader claims within one year of the first commercial sale of PCA’s 1955 carton falls within the prohibitions of section 102(b) barring the issuance of a patent on grounds of a prior “public use”. Exclusive reliance for these contentions is placed upon Victor Talking Machine Co. v. Brunswick-Balke-Collender Co., D.Del. 1923, 290 F. 565, affd. 3 Cir. 1925, 8 F.2d 41 (per curiam) and General Electric Co. v. Hygrade Sylvania Corporation et al., S.D.N.Y.1944, 61 F.Supp. 476. Before taking up these cases, a consideration of the prosecution of the Reifers applications, and of other pertinent provisions of the patent laws, will be necessary. The original Reifers application was filed May 24, 1952 (PX-1) and was expressly abandoned December 17, 1953 after the filing on December 16, 1953 of a co-pending continuation-in-part application (PX-2) which was in turn expressly abandoned on April 24, 1957, after the filing on April 19, 1957 of a co-pending continuation application (PX-3) on which the patent in suit issued. All three applications disclose and illustrate the same type of molded pulp egg carton with minor variations from the illustrated embodiment in the first application. The patent in suit in the first paragraph references the earlier filed applications, and on February 17, 1959 the Patent Office held that “the subject matter presently claimed is entitled to the date of applicant’s abandoned application” filed May 24, 1952. Clearly, the manufacture and sale of PCA cartons beginning in 1955 was not more than one year prior to May 24, 1952 or even December 16, 1953. Were PCA correct in this approach, then the sale by plaintiff of molded pulp egg cartons in 1953 would be a “public use”, and no applicant for a patent could safely manufacture the product sought to be covered by the patent earlier than one year prior to the (unknowable) issue date of his patent. Similarly, this approach would mean that no applicant could safely permit the issuance of a foreign patent more than one year prior to the issuance of his United States patent, section 102(b) making no distinction between public use or sale, and subject matter patented or described in a printed publication in this or a foreign country. However, the Patent Office ruled that the counterpart Shellmar Australian Patent No. 164,896, issued July 2, 1953, could not be applied against the Reifers application that matured as the patent in suit. In so doing, the Patent Office necessarily concluded that ’Reifers had met the requirement of 35 U.S.C. section 120, which in pertinent part reads: “An application for patent for an invention disclosed * * * in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains * * * a specific reference to the earlier filed application.” The only question therefore on this point is whether there has been an “abandonment” by Reifers of his right to Claims 1 and 2. The allowance of the original filing date is clearly an indication that the Patent Office thought there had been no abandonment. See Protective Closures Co., Inc. v. Clover Industries, Inc., W.D.N.Y.1953, 112 F.Supp. 342, 345. Defendants urge that Victor Talking Machine Co. v. Brunswick-Balke-Collender Co. et al., D.Del.1923, 290 F. 565, affd. 3 Cir. 1925, 8 F.2d 41, “would seem squarely in point”; the “point” apparently being the contention that Reifers should have filed a broader claim readable on PCA’s commercial sale of its 1955 carton within one year after PCA began such commercial sale. However, Victor was not an infringement suit, it was an interference suit brought under Revised Statutes, Section 4918 (now 35 U.S.C. § 291), and involved a claim stricken out of an application of April 4, 1911 and then sought to be copied into the same application in June 1915, from a patent issued January 11, 1910, for purpose of interference under Revised Statutes, Section 4904. The present counterpart, 35 U.S.C. § 135, provides in part that: “ * * * a claim of an issued patent may not be made in an application unless such a claim is made prior to one year from the date on which the patent was granted.” The holding in Victor that the failure earlier to copy the claim of the issued patent was an abandonment would seem inevitable, but irrelevant to this case. Defendants also contend that the “rationale” of Victor “was subsequently followed in” General Electric Co. v. Hygrade Sylvania Corporation et al., S.D.N.Y.1941, 61 F.Supp. 476. The only similarity is that General Electric also dealt with abandonment, but in an infringement suit, with respect to claims relating to luminescent or fluorescent material enclosed in a lamp tube, or disposed in the path of spectral ray emission. In the course of the prosecution of the patent application filed December 19, 1927 the applicant had eliminated on August 28, 1928 “the references to luminescent material originally contained in the specification and Claims 16 and 17,” and while “the original specification, including the paragraph on luminescent materia], was restored by amendment on October 12, 1932, * * * claims 16 and 17 were not; that nothing further was added to the specification in relation to luminescent material until October 31,1939, and no claim embodying luminescent material was part of the application between August 28, 1928, and October 6, 1939.” (61 F.Supp. at pages 497-498). This was held to be an abandonment of any claim to the use of luminescent material. Certainly Reifers’ disclosure of his invention continued unbroken from the original application in 1952. It is probable that, although the claims were changed from time to time (none being allowed until the issuance of the patent), there always existed claims broad enough to cover PCA’s 1955-1957 production. However, this probability need not be further explored as where the original application contains an adequate disclosure of the invention finally claimed, there can be no effective intervening public use, Coats Loaders & Stackers, Inc. v. Henderson et al., 6 Cir. 1956, 233 F.2d 915, 924; Sears, Roebuck & Co. et al. v. Jones et al., 10 Cir. 1962, 308 F.2d 705, 708; even where the rejection of narrow claims is followed by the allowance of a broader claim, Packwood Manufacturing Co. v. St. Louis Janitor Supply Co., 8 Cir. 1940, 115 F.2d 958, 962; King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc. et al., 10 Cir. 1965, 354 F.2d 533, 535, 539; Jacquard Knitting Machine Co. v. Ordnance Gauge Co., Inc., E.D.Pa.1957, 95 F.Supp. 902, 907; Technicon Instruments Corp. v. Coleman Instruments, Inc., D.Ill.1966, 255 F.Supp. 630, 641. 35 U.S.C. section 103, reads as follows: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.” Defendants contend that the Reifers ’094 patent is invalid in the light of either of two patent combinations: (a) Cox patent No. 2,771,233 and Hunziker patent No. 1,354,042; or (b) Koppelman patent No. 2,093,280 and Cox patent No. 2,517,465. (a) Cox patent No. 2,771,233 and Hunziker patent No. 1,354,042. The Cox carton PX-106 made under the ’233 patent is for the egg cell structure used in Reifers, but with the male members on the cover portion and the female members in the tray portion, the entry being from outside in. No further comments in this connection are necessary. Hunziker patent No. 1,354,042 is for a “Cigarette Case”, of thin sheet metal bent to form an enclosing box-like structure adapted to be opened up by a hinge-like action to permit cigarette packages to be inserted therein or removed therefrom. The sheet metal blank was formed with extensions 8 and 9 at its opposite ends. When folded, the end portions 8 and 9 and the wings (ends) would be thrown at approximately right angles to the flat surface of the blank, and the end extensions 8 and 9 form two cooperating edge-forming flanges; the edge of flange 9 being slightly offset at 9a. Closing and opening are described as follows: “The edge flange 8 is formed with a notch 10, and the offset portion 9a of the edge flange 9 has an outwardly pressed boss 11 that is beveled on its upper side and terminates in a sharp shoulder. When the case is closed, the boss or lug 11 will cam itself into interlocking engagement with the notch 10, and to release the same from the said notch when it is desired to open the case, the flange 9 must be sprung inward by pressure from the fingers.” What was claimed was : “A cigarette case formed from a single piece of sheet metal bent on a curve at its intermediate portion to form a bowed spring- acting edge wall, tending to open the case, and with the two sides forming portions of the sheet at their edges and ends having cooperating lapping flanges, said edge forming flanges having yieldingly engaging interlocking elements, and one of said end forming flanges adjacent to the bowed edge of the case, having a passage that is always open when the case is closed, to permit the endwise discharge of cigarettes, one at a time, all of the other edge forming flanges having curved ends located immediately adjacent to said bowed edge of the case, substantially as described.” The Hunziker patent is for a cigarette case. The claim does not refer to a lock, and the lock certainly was not an object of the patent. The court is familiar with the increasing liberality with which courts have treated or applied “analogous arts” in considering obviousness. (Graham v. John Deere Co., 1966, 383 U.S. 1, 19, 35, 86 S.Ct. 684, 15 L.Ed.2d 545; Keyes Fibre Company v. Packaging Corporation of America, D.Del.1966 (not officially reported)). However, it is convinced that Cox ’233 and Hunziker ’042 do not make Reifers ’094 obvious. (a) The fields are certainly not reasonably analogous. While a question of closure is involved in Hunziker and Reifers, one relates to a metal container for cigarettes, the filling and emptying of which is specifically designed for manual operation. The other relates to a molded pulp carton for fragile objects, in which automated filling and manual emptying (with perhaps the removal of only one egg per opening), is primarily intended. (b) How would a prospective patentee in the field of locks for molded pulp egg cartons ever learn of Hunziker ’042? Granted that if Hunziker ’042 were an anticipation, every subsequent inventor would be charged with knowledge thereof, however obscure it might be, and whether or not reduced to practice — B. F. Goodrich Co. v. United States Rubber Co., D.Md.1956, 147 F.Supp. 40, 63, affd. 4 Cir. 1957, 244 F.2d 468; Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir. 1945, 147 F.2d 345, 350; E. J. Brooks Co. v. Klein, 3 Cir. 1940, 114 F.2d 955 — Hunziker ’042 is not even remotely urged as an anticipation of Reifers ’094. Would the most diligent of patentees, seeking a locking device for a molded pulp egg carton, ever be led to Hunziker ’042? The Patent Office did not pick up, and never has picked up, Hunziker ’042 as an element of anticipation or obviousness. The firm of attorneys, representing the present defendants, while representing' Lambert (formerly Chief Engineer of Mapes, PCA’s predecessor) did not discover Hunziker ’042 in the prosecution of the Lambert Application Serial Number 512,055, filed May 31, 1955, since abandoned, for “Molded Pulp Egg Carton,” for a patent now claimed by defendants to be for the same “invention” as Reifers ’094. The Danish patent agents, Budde Schou & Co., consulted by attorneys for defendants, also did not pick up Hunziker ’042. In fact, Hunziker ’042 issued in Class 206 “Special Receptacles and Packages”, subclass 41 “Receptacles Pocket and Personal Use” — -“Cigars and Tobacco”; is classified [referenced] only in Class 206, subclass 41; and is cross-referenced only in Class 220, “Metallic Receptacles”, subclass 62 “Blanks”. How even the most diligent applicant in the field of molded pulp egg cartons, or in any field other than Receptacles Pocket and Personal Use — Cigars and Tobacco — Metallic Receptacles — Blanks — would have found Hunziker ’042, or how defendants’ counsel, after the abandonment of the Lambert application, found the reference, is on the record a complete mystery. Reifers ’094 is in Class 229-2.5. (c) Even had Hunziker ’042 been found, it is not apparent how a Patent Examiner, an applicant for a patent, or patent counsel (except after suit for infringement and years of cogitation) would have thought it to be pertinent— with or without Cox ’233 or its equivalent. As defendants’ expert (not himself an expert in the field of molded pulp egg cartons) admitted, Hunziker clearly was not concerned with the molded pulp industry, as it used metal blanks. Hunziker had no flap, or hinged flange, on the “tray” portion, a feature indispensable in Cox ’233 and Reifers ’094 for purposes of automated loading and closing; and for safety loading. Opening in Hunziker was accomplished by pushing in the entire bottom or tray section — not pushing in the lug or a flange; and loading was to be from the side, not from above. The Hunziker locking system would be completely (commercially) impracticable in a molded pulp egg carton without serious modifications — e. g., a hinged flange on the “tray” section, which would not only not be suggested by Hunziker, but which would make Hunziker unworkable. The court has been referred to no authority for the proposition that, and has a presently insuperable difficulty in understanding how, a device which requires a modification making it unworkable suggests such a modification in any field, let alone an unrelated one. b. Koppelman patent No. 2,093,280 and Cox patent No. 2,515,465. The court is immediately impressed by the fact that defendants did not cite the Cox ’465 patent in their original answer; that their counsel did not consider the Cox ’465 as a deterrent to the Lambert application (supra and infra), but that non-disclosure of Cox ’465 to the Patent Office is the strongest single element urged in their contention that fraud was practiced on the Patent Office. Again, if the combination of Koppelman ’280 and Cox ’465 does render Reifers '094 obvious, then the above factors are not controlling; but these factors do suggest the question of when obviousness is to be determined; at the time of the alleged invention, and the Patent Office procedure; or with the 20/20 (corrected?) vision of hindsight and advocacy. Although there was no evidence that Koppelman ’280 had ever been constructed, or that any one had ever seen a physical embodiment of such a structure, and although there was uncontradicted affirmative evidence that it could not be commercially made, and if made would be inoperative, defendants emphasize the presumption that the issuance of a patent is “some evidence of its operativeness”. (Dashiell v. Grosvenor, 1896, 162 U.S. 425, 432, 16 S.Ct. 805, 40 L.Ed. 1025; Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir. 1945, 147 F.2d 345, 348). Koppelman purportedly discloses a molded egg carton made complete in a single molding operation; a cover and tray section, each cellular; a flap hingedly connected to the upper section; apertures preferably of holes through the front wall of the lower section; and that when forced between the eggs and the cups, the flap will be placed under tension, causing substantial frictional co-action, increased by the tendency of the flap to return to its original position. Defendants then argue that inverting this structure would not unduly tax the ingenuity of one skilled in packaging articles such as eggs. As set forth, defendants in this argument have demonstrated considerably more “ingenuity” than Koppelman did, or intended. Interestingly, in the prosecution of the abandoned Lambert application Serial Number 512,005, counsel for the applicant, a member of the same firm of attorneys now advancing the argument that little ingenuity would be required to invert Koppelman, argued with equal earnestness that Koppelman did not provide for a camming action of the locking flap, and that this would be true even if Koppelman “were turned upside down.” Furthermore, it is clear that Koppel-man stressed the function of the eggs in effecting and maintaining the closure: “By the present improvements a locking device which not only takes advantage of the weight of the eggs and their pressure against the walls of the carton is provided * * * ” (Page 1, col. 2, lines 41-44). The flap “when forced in between the eggs and their cups and inside the connecting portions 6 * * * will be placed under tension and distorted slightly, causing substantial frictional coaction tending to hold it in this position * * * ” (Page 2, col. 1, lines 37-42). “[I]n which position they are held by the outward pressure of the flap and the pressure of the eggs in the adjacent cells against it * * *,” (Page 2, col. 1, lines 71-74). “ * * * [T]wo of the most important features of” the present invention “reside in the construction and arrangement whereby the weight and pressure of the articles in the carton are employed in part to hold the closure and whereby the entire carton and its locking means may be made in a single molding operation.” (Page 3, col. 1, lines 2-8). Certainly gravity could not be inverted with the inversion of the carton, and “weight and pressure of the articles in the carton” could not “be employed in part to hold the closure.” The Board of Appeals, in reversing the Examiner’s rejection of Reifers Claim 23 (now Claim 1) on Koppelman, very tersely considered and disposed of the inversion argument, saying: “While Koppelman shows a pocketed tray portion, he does not show an inverted dished cover portion of the character claimed. To utilize Koppelman’s carton in an inverted position would be contrary to the teachings of Koppelman since in Koppel-man his locking device takes advantage of the weight of the eggs and their pressure against the wall of the carton * * * ” As noted, defendants claim that by inverting Koppelman and adding the locking features of Cox ’465, the Reifers carton was obvious. On the question of obviousness certain thoughts at once occur. If Cox ’465 so clearly taught the Reifers lock, why is it that (a) Cox, who was familiar with Koppelman ’280, did not himself invent the Reifers carton; (b) the Examiner cited, but did not rely on, Cox ’465 in the first rejection of the first Reifers application and apparently thought so little of it that it never again appears in the file wrappers of any of the Reifers applications; (c) it was not cited as prior art in defendants’ original answer to the complaint herein; (d) it did not deter the filing of the Lambert application; and Cox ’465 was not noticed of record until December 1, 1965. Cox ’465 does disclose (a) a locking flange 22 hingedly connected to the upper edge of the front wall of the tray section; (b) a locking flange carrying locking tabs 24 adapted lockingly to engage slots or openings 21 from the outside in, the engagement occurring above the top of the tray section; and (c) the location of the tabs when in locking engagement “preferably” being such that the “locking tabs will be partitioned between adjacent eggs.” although it is by no means clear that this would be the case in the structures shown in Figures 5 and 7. Also, Cox alternatively provided for the use of thermo-plastic adhesives to effect a closure. The evidence is clear and uncontradicted that Cox ’465 never went into commercial production; the tabs had a tendency to “butt into the eggs on the inside of the carton; ” the tabs tore off, “you couldn’t get them out, the front flap upon which the tabs were located had a very bad habit of bowing outwardly, even when the tabs were in the slots”, and the inventor, Cox did “not believe anyone could develop a machine which would put those tabs in there.” Defendants agree with the deficiencies of the Cox ’465 for in the PCA patent 3,289,911 it is stated: “With * * * the Cox [2,517,465] * * * carton there is a serious problem of accidental opening of the carton while it is being handled by the packer, merchandiser, or customer. In the Cox type carton a substantial part of the latching flap is exposed and thus susceptible to being accidently torn open. * * * ” Lambert “Contemporaneous” Effort. Reifers conceived the alleged invention of the patent in suit on February 21, 1952, and immediately made a disclosure thereof to several officers of plaintiff; showed them a successful hand-made model; prepared written data of invention on March 3, 1952; and filed his first patent application on May 24, 1952. Defendants contend that Lambert, PCA former Chief Engineer, developed a molded pulp egg carton utilizing a locking device “similar to that of Reifers and Hunziker at least as early as June 11, 1952.” This is based upon an engineering progress and work report dated July 14, 1952. In part this “progress and work report” reads as follows: “A 2 x 6 egg carton has been designed to pack in the standard egg case. A print of this carton is attached to this report. We believe that a satisfactory cover lock has been designed for this carton. It may be opened and closed many times without damage to the lock or carton. When lifting the carton by the cover, the lock holds more securely due to the pinching action of the fingers. The carton may be easily opened for inspection of the eggs and the cover again locks securely when pressed back in place. A hand-made sample of this carton lock was made for demonstration. Designs for the pick-up mold and transfer are practically finished and work can be started on the experimental mold this week. Considerable thought and some ingenuity was required to design this mold, form the screens, mold the crease for folding the cover and to mold the lock and slot. The mold will fit the adaptor plates on our molding machines and can be molded on either the old or new machines at Griffith.” Lambert at first testified that he submitted a sample egg carton with a lock on it to the Board in July 1952, of the “type” of carton identified as DX-110110A. A job card was prepared on which expenses attributable to experimental molds were entered. Lambert frankly admitted, however, that his 2 x 6 carton was not satisfactory, defendants contending that the decision not to go ahead was based on “commercial reasons.” It would be difficult to find a better reason. Defendants urge that the independent development of an idea or “invention” by several persons at or about the same time is evidence of obviousness, and that no invention was involved. (Concrete Appliances Co. v. Gomery, 1925, 269 U.S. 177, 185, 46 S.Ct. 42, 70 L.Ed. 222; Ruben Condenser Co. v. Aerovox Corp., 2 Cir. 1935, 77 F.2d 266, 268; Teleflex, Inc. v. American Chain & Cable Co., S.D.N.Y. 1967, 273 F.Supp. 573.) Defendants also contend that the filing of a patent application by Lambert on May 31, 1955, thereby asserting that Lambert’s product was an invention, is not entitled to “great significance” in testing the validity of Reifers patent, relying exclusively on Houston Oil Field Material Company v. Claypool, 5 Cir. 1959, 269 F.2d 134. That decision, however, while holding that prior inconsistent conduct of a party “cannot control”, also recognized that such conduct is “important evidence.” That it is of “the highest degree of significance” see Ransburg Electro-Coating Corp. v. Proctor Electric Co., D.C.Md.1965, 242 F.Supp. 28, 36; reversed on other grounds, Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp., 4 Cir. 1968, 395 F.2d 92. In the Claypool case, the decision of the Fifth Circuit was founded primarily upon its conclusions that everything of significance claimed by the patentee had been disclosed in three prior patents, with no advantages shown in any departures therefrom; and that the patentee was barred by prior publication. The Lambert claim of invention, moreover, is suspect. In the portion of the engineering and progress report, quoted above, it is stated that an “egg carton has been designed”; it is not said by whom. The record contains no testimony of any written data of invention. The “hand-made sample” allegedly “made for demonstration” has never been produced; and it appears to be conceded that no such sample was presented to PCA’s Board, since Lambert testified on deposition that “Any samples submitted to the Board were molded” , and no molds were finished until February 8, 1953. Lambert also testified on deposition that “the carton was not satisfactory, as you can probably see for yourself, that it is not a satisfactory carton.” “An inoperable invention or one which fails to achieve its intended result does not negative novelty.” (United States v. Adams, 1966, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572.) Moreover, Lambert did not file an application for a patent until May 31, 1955, more than three years after the Reifers application was filed, and some two years after the Reifers carton had commercially appeared on the market. Under the circumstances of this ease, the court finds as a fact, and concludes as a matter of law, that there is no satisfactory evidence that Lambert conceived a molded pulp egg carton with a lock similar to the Reifers lock, at or about the time of the Reifers conception; and that such lock by PCA’s engineers, if in fact conceived in 1952, was impractical and does not negate the usefulness or novelty of the Reifers lock, or demonstrate that it was, or would have been, obvious to one skilled in the art. State of the art — efforts by others. The criteria to be applied in determining novelty were well stated by Judge Learned Hand in Ruben Condenser Co. v. Aerovox Corporation, 2 Cir. 1935, 77 F.2d 266, 268: “We should ask how old was the need; for how long could known materials and processes have filled it; how long others had unsuccessfully tried for an answer. * * * ” Expanded Metal Co. v. Bradford, 1909, 214 U.S. 366, 381, 29 S.Ct. 652, 656, 53 L.Ed. 1034: “It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” Marvel Specialty Co., Inc. v. Bell Hosiery Mills, Inc., 4 Cir. 1964, 330 F.2d 164, 172: “In view of the apparent need which so long persisted, the obvious benefits to be gained by both the inventor and the industry from meeting the need, and the failure of anyone to meet it, we think the finding of patentable invention can be sustained even without considering the statutory presumption of validity.” Although for more than forty years there had been interest on the part of egg carton manufacturers, including PC A, in the manufacture of molded pulp cartons it is only recently, despite optimistic forecasts, that the sales of the molded pulp egg carton have caught up with those of the paperboard carton. Aside from the paperboard carton’s superiority as to printing and decoration, the main problem faced by the molded pulp egg carton was that of automation, including, perhaps predominantly, automation of a means for satisfactory locking and unlocking. As in the case of the paperboard carton, the molded pulp egg carton would have to be a good egg carrier; nestable; lockable in automation, and lockable and unlockable by the housewife. Included in the entrepreneurs were: 1. Winfield H. Mapes, Senior, active as an executive and director of Mapes Consolidated Manufacturing Co., PCA’s predecessor corporation. He worked with Morris Koppelman (of ’280 fame) in the development of a 2 x 6 egg carrier consisting of a cardboard box or wrapper with a filler and a top or bottom of a molded board “flat,” or base or top. The patent became an abandoned experiment. 2. Morris Koppelman. On November 23, 1927 Koppelman filed an application for his patent 1,846,561 for a 2 x 6 carton made “preferably by the pulp sucking or felting process”, tri-fold, with a top with a front wall from which extended tongues adapted to be passed into slots to hold the cover in place. Again, there is no evidence that this carton ever appeared on the market, and it seems that Koppelman ’280 was intended as an improvement. 3. William J. DeReamer, Chief Engineer of a predecessor of PCA, in which he was a substantial stockholder, had several patents, one of which, No. 2,-061,064 was along the lines of Koppel-man, in that a flap on the front edge of the cover was stuffed in alongside the eggs, the friction (hopefully) being sufficient to prevent accidental opening of the carton. Another DeReamer patent 2,061,065; filed and issued on the same date as ’064 disclosed a 2 x 6 egg tray adapted to be inserted in a paperboard sleeve. There was offered no evidence that either of the DeReamer cartons was ever produced commercially, although there is some evidence that the filler of ’065 was produced experimentally. 4. Francis H. Sherman, one of the founders of a corporation which after being succeeded by a second, was merged into plaintiff. He was a molded pulp egg carton designer, and the holder of a series of molded pulp egg carton container patents, including the patent on the Tab-Lock carton, No. 2,587,909; as well as a number of others. These included No. 1,975,127 a molded pulp and paperboard carton, not produced commercially; No. 1,975,128 a container or package for eggs, not in fact manufactured; No. 1,975,129 which showed a metal clip, not at first, but later, used; but the container was unsatisfactory except when placed in a paperboard sleeve. A company later incorporated into plaintiff, from 1938 to 1942 tried to find locking means for molded pulp egg cartons, using rubber glues; thermoplastic glues; stitches; clips; staples. The Sherman patent No. 2,587,909 for a molded pulp egg carton with tab-lock extending down from the front cover for insertion into the front of the container showed several forms of tabs. If successfully inserted, they tended to become disconnected in transit, and if not, to be broken by the first opening of the carton. These were sold from 1944 to 1950, and were not considered to be satisfactory locks. 5. Lile H. Brown, engineer and designer for predecessor corporations merged into plaintiff, obtained a patent, No. 2,636,660, on a molded pulp egg carton which had two tab-locks and a flap hinged to the front side of the tray, which flap could be set inside the cover. The carton was never commercially produced. 6. Harold S. Crane, now a vice-president of plaintiff, had been employed by corporations merged into plaintiff. He did quite a bit of experimentation with locks which was his “favorite indoor sport.” His patent 2,677,490 was for a 2 x 6 molded pulp carton having two half covers, one to enclose each of two rows of six eggs, with locking tabs on the end of each of the half covers, the tabs folding around each end of the carton into holes in the tray. It was not commercially produced. 7. Merle P. Chaplin, formerly Chief Engineer of Keyes Fibre Company, was a consultant generally to the industry and to a predecessor of plaintiff and then to plaintiff. Adjacent to his home he had a tool and die shop, an engineering department, a pattern making shop and a rather complete although small scale pulp preparation molding and finishing plant, with thirty to forty employees. He obtained Patent No. 2,-423,756 on a molded fibre article consisting of a tray having two half covers folding inwardly, one having two tabs extending from its upper surface for insertion into the other half. This effort “to provide a lock for” plaintiff did not constitute an adequate closure. 8. Ruth M. Schilling produced a three-fold carton with a cellular inner cover and a tray-like outer cover. Patent No. 2,600,130 was introduced into the molded pulp egg carton field about 1950. Although the patentee endeavored to provide a frictional lock, it was completely inadequate , and was never sold commercially in this form, but in practice was glued shut. 9. Walter H. Randall who succeeded Merle P. Chaplin and who was the chief engineer and director of research and engineering, and Vice President of Keyes Fibre Company, obtained Patent No. 2,-578,739 for a 2 x 6 molded pulp carton having a cellular bottom tray portion and a dished upper cover. No lock is disclosed, but projections on the front edge of the cover would cooperate with recesses in the inner front edge of the egg holding section to resist the tendency of the free edge of the cover section to move outwardly when cartons were stacked, or otherwise subjected to downward pressure. There was no evidence that the Randall carton was ever produced or used commercially. 10. John W. Cox. For about eight years Cox represented Self-Locking Carton Company as its attorney, but his advice extended beyond the mere legal aspects. Self-Locking changed its name to General Package Corporation, and was merged with Diamond in 1956. From about 1939, Cox was head of operations of Self-Locking, and was intimately connected with the egg carton industry. His responsibilities included administration, sales, factory operations, research, engineering and all other functions of the company. He was quite familiar with the molded pulp processes, and was closely associated with the sale and use of egg cartons. Cox developed automatic egg room equipment used in egg packing plants, and also developed the “so-called continuous motion molded pulp machine, which still is the standard equipment used by” Diamond. Sixteen of these machines “have been constructed at a cost of about $2,000,000 a piece” and are represented by Cox Patents No. 2,879,696 and No. 2,881,679. In addition, Cox spent “countless hours cutting, shaping, gluing, packing, and otherwise trying to modify molded pulp cartons to try to come up with a commercially acceptable structure.” When Cox first became associated with the egg carton industry, it was just entering automation. With the development of chain stores, supermarkets and other large egg outlets, it became necessary to pack eggs in twelve-egg cartons, which in turn were placed in thirty-dozen case lots. The cartons, then of paperboard, were associated with an automatic set up, conveyor, packer and closer. Competition required that the molded pulp carton also lend itself to automation. Cox caused a search to be made in the Patent Office “to unearth every patent bearing on the subject” he “could scratch out” and was familiar with all of them. Cox devoted much time to the development of the 2x6 molded pulp egg carton, and enlisted the aid of his engineers. A number of patents were issued to him, reflecting some of these efforts. Patent No. 2,455,295 issued November 30, 1948 on application filed October 23, 1942 (when Cox was in the Navy) in Cox’s opinion licked “the problem of egg room pretty well, but * * * didn’t have the sign of a cover lock for it.” It had abutments on the cover and body members, but they were intended to be associated with clips or other suitable fastening means. Another effort to provide a self-locking carton was Cox Patent No. 2,446,264, issued August 3, 1948 on application filed September 20, 1943. This had an inner cover enclosing one-half of the eggs, and an outer cover, designed to snap over the inner cover and to provide frictional engagement. “It was not a secure enough lock, and could not be depended upon to secure the cover from coming off.” This was recognized by Cox, since the patent referred to fastening in a closed position, either by adhesives, or staples or clips. Another effort is represented in Cox Patent No. 2,466,579, issued on April 5, 1949 on application filed September 20, 1943. This called for a double cover that was supposed to lock into indentations in the cross members. In practice it worked satisfactorily when empty, but was inadequate when filled with eggs. Thermoplastic glue, or staples, were specified. Cox ’264 and Cox ’579 mentioned above issued from two of three applications sent by Cox from the Pacific and all filed on the same day, September 20, 1943. The third application matured into Patent No. 2,517,465 which issued August 1, 1950. Patent No. 2,517,465 (’465 — discussed in connection with the claim of misrepresentation to the Patent Office) was thoroughly covered by Cox in his testimony. It had a front flap attached to the bottom (tray) section to prevent the cover from telescoping over the bottom. Then, representing Cox’s best thinking at the time, tabs were placed on the ends of the flap, to be inserted (from the outside in) into slots in the front wall of the cover. On paper it looked good to Cox, but when he saw the actual construction, he recognized that “it was completely impossible.” He doubted if a machine could be developed to insert the tabs. The tabs if manually inserted tore off; and the front flap would bow outwardly even if the tabs were inserted. In fact, Figure 9 showed a way of locking the flap to the front wall by thermoplastic adhesive. Cox’s summation was that “This carton was completely inadequate to meet any of our commercial requirements, and never went into commercial use.” The Sherman Tab-Lock was used by Self-Locking Carton Company from 1944 until the Reifers invention, although efforts did not cease to produce other cartons with other locks. In 1950 Cox filed an application which matured into Patent No. 2,771,233. This held and carried eggs well, and fit into the thirty-dozen egg case. While the Sherman Tab-Lock was used on the carton as manufactured, Cox did not have much confidence in the Tab-Lock, and did not show its use in his patent application. Although relying in part upon frictional engagement of a flap hingedly connected to the tray position, with the forward cover wall, the specific sealing devices disclosed were staples or adhesives. In practice, a machine developed to lock automatically the Tab-Lock carton was abandoned; it broke too many eggs, and the tabs would break off. In January, 1952 Cox developed a Three-Fold carton but it could not be satisfactorily stapled, and he went back to the (better, but not satisfactorily automatable) Sherman Tab-Lock. “Between 1931 and 1952 in which, in spite of some fairly capable brains working on the problem, nothing came along which was satisfactory” . Cox felt it was necessary either “to improve the Tab-Lock or to go back to clips.” Such was the state of, and the level of ordinary skill in, the pertinent art. (Graham v. John Deere Company, 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545.) 35 U.S.C. section 112. This section in pertinent part reads as follows: “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” Defendants urge that as primary objectives of the Reifers patent are said to be closing and locking of the carton without damaging the eggs by simple automatic machinery operating at high speed, and quick and easy manual unlocking without crushing the eggs, certain structural features mentioned in the specification should- have been incorporated in the claims. (On April 9, 1965, in answer to Interrogatory 14 defendants stated: “The claims do not appear to be indefinite or uncertain under 35 U.S.C. § 112”.) In part this argument is based upon the highly technical interpretation of the further provision of section 112 that the specification “shall set forth the best mode contemplated by the inventor of carrying out his invention.” Reifers in the specification referred to certain objectives and virtues of the patent, and some structural features to be avoided. This portion of the specification is referred to as “indicative in a general way of the nature of the invention.” The specification also states that “A singe embodiment of the invention is presented herein for purposes of illustration. However, the invention may be incorporated in other modified forms coming equally within the scope of the appended claims.” (Column 3, lines 50-58.) While more apt language, to the effect that the carton described is the “preferred form” but that modifications may be made, could have been used, it is clear that Reifers intended to set forth, but not be limited to, the specific carton described, so long as the “invention” was embodied. More specifically, defendants refer to “structural features” under which the eggs do not function in respect to the making or maintenance of the interlock; the existence of a substantial top space between the flange and the eggs and the placing of the lugs between the egg cells; positioning of the locking lugs adjacent the top of the flange for reception in apertures adjacent the top of the cover; “It is the spring of the flange at its stiffly stabilized hinge, coupled with its top flexibility, which are the key to the maintenance of the lock and to its ready disengagement when desired” ; and the effect of the location of the locking apertures upon molding and stripping of cartons. Reifers could not have claimed the Cox ’233 patent. In the court’s opinion, the disclosure of the locking device (apart from the drawings) would have enabled one skilled in the art to apply it to any of several molded cartons then available (of which Cox ’233 was one, if not the best one) ; and that the claims are accordingly adequate. Defendants’ reliance on Aluminate Co., Inc. v. Akme Flue, Inc., D.Md.1931, 50 F.2d 921; Technograph Printed Circuits, Ltd. v. Bendix Aviation Corp., D.Md. 1963, 218 F.Supp. 1, 44, aff’d per curiam 4 Cir. 1964, 327 F.2d 497, cert. den. 1964, 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36; and Henry J. Kaiser Co. v. McLouth Steel Corp.,