Full opinion text
OPINION MUIR, District Judge. TABLE OF CONTENTS 1. Background P- 1231 2. Validity of the ’223 Patent p. 1232 3. Infringement of the '223 Patent p. 1236 3.1 The ’223 Apparatus Claims with Respect to the Wanchek, Tye-Sil and Camberloc Machines p. 1236 3.2 The '223 Apparatus Claims with Respect to the Bowmatic Machine P- 1237 3.3 Possible Restriction of the Broad Claims of the ’223 Patent to the Machine Illustrated in the Patent p. 1238 3.4 The ’223 Method Claims with Respect to Camberloc, Wanchek and Tye-Sil Machines p. 1239 3.5 The ’223 Method Claims with Respect to the Bowmatic Machine p. 1239 4. Validity of the ’240 Patent p. 1239 4.1 The File Wrapper Limitation on the ’240 Patent p. 1240 4.2 Obviousness of the Invention Claimed in the ’240 Patent P- 1242 5. Further Support for the Court’s Previous Finding of Laches Against 3M p. 1243 6. Berwick’s Antitrust Counterclaim and Its Assertions of Equitable Estoppel Against 3M p. 1243 7. Damages p. 1244 1. Background. Minnesota Mining and Manufacturing Company (3M) has sued Berwick Industries, Inc. (Berwick) for infringement of United States patents numbered 2,933,223 and 3,112,240 (’223 and ’240) relating to decorative bows and apparatus and a method for making such bows. 3M seeks damages and originally sought an injunction against further infringement. The claim for an injunction has been dropped. Berwick denies infringement and challenges the validity and enforceability of the patents. Berwick counterclaimed charging 3M with restraint of trade and unfairness in asserting the patents. By an amended answer, Berwick pleaded the defense of laches and estoppel. At the trial on the issues of laches and estoppel in January, 1974, Berwick prevailed on the issue of laches but failed on the defense of estoppel. Minnesota Mining and Manufacturing Co. v. Berwick Industries, Inc., 378 F.Supp. 851 (Pa.1974). The trial was thereafter resumed on the merits for 13 additional trial days. Detailed findings of fact and conclusions of law are filed contemporaneously with this Opinion and are incorporated herein by reference. 2. Validity of the ’228 Patent. The ’223 patent was issued April 19, 1960 and relates to a machine for making decorative ribbon bows and also relates to a method for making the bows. These bows are of the pom-pon and star types used in great numbers in this country for affixture to gifts. The pom-pon bow is hemispherically shaped. The star bow is of five or more points. The machines covered by the apparatus claims patent have three essential elements : a shaft for supporting a supply roll of ribbon, a so-called rotatable loop retaining means and a ribbon feed means. The feed means withdraws from the supply roll and applies a portion of the ribbon to the retaining means. The retaining means firmly holds ribbon which had been fed to it, rotates between each application of ribbon, and forms a loop by each rotation. The loops are disposed on different radii, thus forming the star or pom-pon bow. The ribbon is twisted in the manufacture of the star bow, but not in the creation of the pom-pon bow. Method claims numbered 14 and 15 and apparatus claims numbered 1, 2, 5 and 17 are said by 3M to have been infringed by Berwick. The claims are set out in the margin. The method claimed in the ’223 patent includes the steps of 1. Grasping a length of ribbon at one end and at another point, 2. Twisting the ribbon between the two points where it is grasped, 3. Bringing the points together in a face to back relationship to form a loop, 4. Fastening the points together, 5. Forming the next loop by grasping the ribbon at a third point, 6. Twisting the ribbon and bringing the third point into face to back relationship with itself at the prior point of fastening, 7. Fastening it again and 8. Continuing the process until the desired number of loops or points are formed. 35 U.S.C. § 282 declares that claims of granted patents are presumed to be valid. Consequently, Berwick has the burden of proof as to invalidity of the ’223 patent and must do so by clear and convincing evidence. Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66 (3d Cir. 1972), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972). To invalidate the claims of the patent, Berwick must prove that the invention lacked utility (35 U.S.C. § 101), that it was not novel when invented by the patentee (35 U.S.C. § 102), or that at the time the invention was made, the subject matter thereof would have been obvious to one having ordinary skill in the art to which the invention pertains (35 U.S.C. § 103). Berwick claims that the patent is invalid because what is claimed would have been obvious to anybody of ordinary skill in the art. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) sets forth the primary inquiries we must make and resolve to determine obviousness. They relate to 1. The scope and content of the prior art, 2. Differences between the prior art and the claims at issue, and 3. The level of ordinary skill in the pertinent art. Thereafter, secondary factors such as commercial success, long-felt but unsolved needs, and failure of others may be considered by the Court under Graham v. John Deere Co., supra, as some indicia of obviousness or nonobviousness. Berwick relies in large measure on three prior patents, Webb No. 1,209,-525, Cotton No. 1,728,724 and Cook No. 2,775,377. The Webb patent granted December 19, 1916 relates to a machine for forming small bows from a continuous length of material for ornamenting or finishing the joints of sweatbands in men’s hats. The machine simulates the use of human hands in tying a bow knot. The ribbon is grasped, a loop is formed, and then the ribbon is rotated 360 degrees around the loop to form the initial portion of the knot; the second loop is formed by a similar process and the machine pulls it through the knot. The Cotton patent granted September 17, 1929 relates to a machine for making rosette blanks of fabric such as silk, ribbon or yarns for ornaments for ladies’ wear. The rosette blanks are made through the automatic looping of ribbon in combination with the twisting of a soft iron wire to bind the loops together. A loop of ribbon is brought between two wires, the wires are twisted to hold the loop, another is brought between the wires which are again twisted, and the process is continued until the rosette blanks are formed. The Cook patent granted November 7, 1950 relates to forming bows, rosettes and pom-pons from ribbon. There are a number of pegs on a turntable. Ribbon is withdrawn from a supply roll and as the turntable rotates, a loop is formed around a peg. The action is repeated by opposing pegs for a predetermined number of revolutions whereupon the bow is tied and then released from the pegs. The loops which are described in the Webb Patent are not twisted. The Webb patent, in my view, is not even close to the patent in question. In the Webb patent there is no successive application of material along a continuous length of ribbon to a single rotary loop retaining means to form successive loops, nor are the loops in turn twisted between successive applications of ribbon to form a completed bow having radiating loops. Also, ribbon is not impaled on a retaining means in the Webb patent. The Cotton patent does not reveal a machine which twists loops of ribbon, ribbon is not impaled and the retaining means does not function to hold the ribbon at a central point from which loops radiate. In the Cook patent there is no twist in the loops formed by the machine. The ribbon is not impaled and the retaining means does not function to hold the ribbon at a central point from which the loops radiate. While the star bow formed by the machines of the '223 patent has twisted loops, the pom-pon bow has no twist imparted to its loops. This distinction does not lend any weight to Berwick’s contention of obviousness of the '223 patent because, as discussed above, the differences between the prior art and the machine of the ’223 patent bear on facts other than whether or not the prior art machines twist loops uf ribbon. Neither Webb nor Cook were cited in the proceedings in the patent office which ultimately culminated in the issuance of the ’223 patent. They are, however, in the same sub-class 46 of class 223 (coincidentally the last three digits of this particular patent) as the ’223 patent. We are obliged to assume that the patent office examiners considered the references in the particular subclass 46. Uarco, Inc. v. Moore Business Forms, Inc., 440 F.2d 580, 585 (7th Cir. 1971). See also Layne-New York Company, Inc. v. Allied Asphalt Company, Inc., 501 F.2d 405 (3d Cir. 1974). The patent office considered during the prosecution of the ’223 patent application patents 2,312,645 (Huber); 2,-528,622 (Teemsma); 2,542,222 (Welch); 2,563,678 (Gates); 2,666,249 (Ruiz); Re. 23,835 (McMahon); 2,681,525 (James); 2,763,080 (Welch); 2,774,164 (James), 2,806,313 (James); 2,841,905 (Wanchek); 2,872,086 (Duncan) and 2,884,169 (Sperry). The prior art patents show attempts by inventors to devise machines and methods for forming decorative bows. The machines depicted in 3M’s ’223 patent found considerable success in department stores. Thereafter machines with greater speed were developed and the demand for the decorative bows which are the subject of this suit increased over the years. 3M during 1958 produced and marketed a hand operated bow-forming machine which utilized a hand inserted collar button type pin as a loop retaining means. The first machine was known as the S-70. In late 1958 or early 1959 3M developed the S-71 which operated by use of a hand crank to move the feed means instead of the S-70’s pendulum for that purpose. The S-71 machine is the one illustrated in the ’223 patent. In the S-71, a plastic collar button pin is grasped by a chuck. At the front of the assembly on which the chuck is mounted is an annular sleeve. In the S-70 the annular sleeve was metallic; in the S-71 and in later models it was rubber to achieve greater friction and thus prevent motion between the ribbon and the machine. The S-71 made both star and pom-pon bows. Another model, the S-72 could produce only star bows. A power pack was then designed by 3M which replaced all of the hand operations except that an operator still had to introduce the plastic collar button pin into the chuck and eject it by hand. 3M’s S-71 and S-72 were used not only in retail establishments such as gift shops and department stores but were also used in factories which commercially produced gift wrapping. The S-72 is still being sold and is priced at about $100.00. Between 1965 and 1971 3M sold 29,447 S-72 machines, capable of producing 70 million star bows annually. One of the commercial bow-making methods used before the ’223 patent was that developed at Chicago Printed String Co. (CPS) by its inventor, Gustav Wanchek, who testified at the trial in this case. CPS and Wanchek used pre-punched ribbon which was threaded onto another ribbon or string having a stop at its end and against which the pre-punched ribbon was forced to form loops. 3M itself had a pre-’223 bowmaker in the so-called S-10 which made hanks of ribbon and notched the same for easy tying into permanent hanks. After the hank was made and tied, the individual loops were manually pulled out to form a bow. Neither the Wanchek-CPS method nor the 3M S-10 method produced bows in industrial quantities for commercial giftwrapping. In 1958 the Facile corporation, now Sun Chemical, entered the field. It utilized pre-punched ribbon like that described in the Wanchek patent. Facile used jigs to hold the loops which were then stapled. Facile was the first to use staples to hold the loops together. Wanchek had used a string and 3M had used a sharpened collar button type pin for this purpose. Facile developed its own machine for pre-punched ribbon which operated generally along the same lines as the machine described in the ’223 patent. The method of bow formation described in the ’223 patent would not have been obvious to one skilled in the method of bow formation taught by the Wánchek patent. In the bow of the Wanchek patent the disposition of loops on different radii and the twisting of loops in the star bow take place as the last step of bow formation after all the loops have been made. In the bows of the ’223 patent the placement of loops on different radii and the twisting of the loops in the star bow take place contemporaneously with the formation of each loop on the central holding means. The apparatus and the method described in the ’223 patent were not obvious to those working in the art prior to 1957. They were not obvious in 1958 to Facile whose design manager testified at the trial that no method of forming these bows without the use of prepunched ribbon ever occurred to him until he observed one of 3M’s machines. The patents before the '223 patent do not suggest an apparatus or a method of mechanically forming decorative bows from a succession of loops generated by impaling a ribbon on a loop retaining device, rotating the retaining device to twist the ribbon within the loop being formed, impaling the ribbon again to close the loop and repeating the operation to form as many loops along various radii as are required. It would not have been obvious to one of ordinary skill in the art from any or all of the Cotton, Webb and Cook patents and the other patents in evidence to employ the method or the apparatus of the ’223 patent. See Arrow Safety Device Co. v. Nassau Fastening Co., 496 F.2d 644 (3d Cir. 1974). Berwick has failed to sustain its burden of proving the claims 1, 2, 5, 14, 15, and 17 of the '223 patent are invalid. 3. Infringement of the ’233 Patent. The Plaintiff contends that apparatus claims 1, 2, 5, and 17 are in-infringed by all of Berwick’s machines and that method claims 14 and 15 are infringed by all of Berwick’s machines save the Camberloc which manufacturers only pom-pons. Apparatus claims 1, 2, and 17 are embodied in claim 5 and counsel for 3M at the trial stated that the Court could confine its attention, as far as apparatus claims are concerned, to claim 5. The machines which have been used by Berwick since June 25, 1971 in the manufacture of decorative bows have been the Tye-Sil, Wanchek, Bowmatic, and Camberloc. 3M’s claims prior to June 25, 1971 have previously been held to be barred by 3M’s laches. Minnesota Mining and Manufacturing Co. v. Berwick Industries, Inc., supra. 3.1 The ’223 Apparatus Claims with Respect to the Wanchek, Tye-Sil and Camberloc Machines. Berwick denies infringement on the ground that none of its machines has elements as described in the ’223 patent. Each of the machines used by Berwick has (a) a shaft for supporting the supply roll of ribbon, (b) a ribbon feed means and (c) a loop retaining means. These are the essential elements of the machine described in claim 5 of the '223 patent. In the cam drop off type such as the Wanchek and Tye-Sil machines, for example, a shuttle withdraws ribbon horizontally, and then moves up a cam from which it drops to apply the ribbon to the retaining means. In each of these machines, the ribbon in the ribbon guide is brought to stationary needles for impalement thereon. The three machines thus perform the same functions in substantially the same manner as the machines described in the ’223 patent. They also produce the same result. When considering infringement of the apparatus claim, comparison must be made between the structural elements of Berwick’s machines and the inventive concept as defined in the claims set forth in the ’223 patent. Berwick’s denial of infringement of the ’223 patent by the Wanchek, Tye-Sil and Camberloc machines is directed chiefly to the argument that the ribbon in its machines is not held in a fixed position on the retaining needles in contrast to the firmness with which the ribbon is held on the retaining collar button pin of the machine actually described in the ’223 patent. The ’223 patent indicates that the purpose of having the ribbon in a fixed position on the retaining means is to cause the ribbon to rotate with the retaining means and to dispose the loops. Any slight movement of the ribbon in Berwick’s machines after impalement does not bear on this question. The ribbon on these Berwick machines is fixed to the loop retaining means as securely as it is fixed on the collar button pin depicted in the patent. All of these Berwick machines retain ribbon in a fixed position on impaling needles. Berwick’s Wanchek, Tye-Sil and Camberloc machines have all the essential elements and functions described in the ’223 patent. Hence, the requisite equivalency exists between the Wanchek, Tye-Sil and Camberloc and the invention described in the ’223 patent to make out an infringement. 3.2 The ’223 Apparatus Claims with Respect to the Bowmatic Machine. We turn now to the question of whether the Bowmatic machines violate claims 1, 2, 5 and 17. The Bowmatic is a highly advanced solid state circuitry machine of tremendous production capacity. The Bowmatic causes the ribbon to be withdrawn and advanced by a double roller mechanism, not a shuttle. The Bowmatic does not use a pendulum or a cam drop off device to impart a horizontal or downward motion to the ribbon. The Bowmatic raises the needles of the loop retaining means through the ribbon as it is advanced by the ribbon feed means. In my view, the Bowmatic cannot be said to fit within the language of claim 5 which provides that “said feed means operating to withdraw a continuous length of ribbon from a supply roll mounted on said shaft and successively to apply portions of ribbon spaced along said continuous length against said retaining means successively to form radiating loops of ribbon. . . . ” Clearly, in the Bowmatic, the feed means simply does not successively apply portions of ribbon to the retaining means. In the Bowmatic, the ribbon feed means composed of a drive wheel and an idler withdraws the ribbon. In the Bowmatic, the ribbon guide is stationary and the needles are brought by the spindle to the ribbon. The application is not by the feed means, but is by the rotating loop retaining means. The plain fact is that the Bowmatic does not fall within the retiary language of claim 5, although undoubtedly claim 5 could have been drafted to cover the Bowmatic machine. However, the draftsman of claim 5 was content to describe a machine in which the ribbon feed means impaled the ribbon on the loop retaining means. This is simply not so in the Bowmatic machine. 3M takes the position that the needle spindle in the Bowmatic machine should be regarded as part of the ribbon feed means on the theory that it is the retaining means which is to be fed in accordance with the invention of the ’223 patent and without the reciprocation of the needle spindle in the Bowmatic the ribbon would never reach its destination but, instead, would be spewed onto the floor. 3M further contends that the phrase “ribbon feed means” is defined by the claim itself to involve more than merely moving ribbon into the machine and that the retaining means is specified as the part to be fed. On this theory “ribbon feed means” is said by 3M to be defined by the claim to encompass those means which both withdraw ribbon and successively apply it to the retaining means. It is 3M’s contention that in the Bowmatic the reciprocation of the spindle fulfills the second (applying) function recited in the claim and therefore the reciprocal movement of the spindle forms part of the ribbon feed means. We reject this argument for the above reasons. 3M also contends that the transposition of motion in the Bowmatic illustrates the concept known as “kinematic inversion.” 3M illustrated thte principle of kinematic inversion at the trial by use of one of its hand powered machines. When the pendulum lever and the ribbon guide were held stationary and the remainder of the machine was permitted to move freely, turning of the hand crank resulted in movement of the loop retaining means to the ribbon portion and fulfillment of the ribbon application function. In both configurations, normal and inverted, the hand machine operated in the same fashion and produced the same bow. 3M takes the position that transposition of motion and function between cooperating components in the Bowmatic is an example of equivalency which is insufficient to avoid infringement. The Court’s attention is called by 3M to Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147 (1929), relating to latches for refrigerator doors. The patent in that suit claimed a latch in which the latch lever’s cam rode over a lug on the door frame. The accused latch had a cam on the door frame and the lug on the latch lever. The transposition of function was found to be an equivalent and an infringement. Although there is an identity of result between the Bowmatic and the S-70 and its progeny there is clearly no identity of means and operation. Both systems produce star bows through a similar sequence of events. Claim 5, even read broadly, simply does not describe the Bowmatic machine and thus the similarities fall short of equivalency. There are essential differences between the two systems. The Bowmatic performs the same or similar functions as the S-70 and its progeny, but in a substantially different way and thus does not infringe. Sylvania Electric Products Inc. v. Brainerd, 369 F.Supp. 468 (D.C.Mass.1974) and cases cited therein. There is no literal kinematic inversion of the S-70 in the Bowmatic because there is no mere transposition of parts or function. The Bowmatic has a continuous double roller drive feed means which is not present in any other machine and is a substantial advancement over the pendulum lever. In our view, the kinematic inversion argument is ineffective with respect to the Bowmatic because the draftsmen of claim 5 specifically described a machine from which the Bowmatic differs in at least one substantial respect. Berwick places great stress on the staggering speed with which the Bowmatic is able to produce star bows in contrast to the production rate of the S-70, S-71 and S-72. The S-71 with an operator working at maximum efficiency over an 8-hour shift is able to achieve the following production rates: 170 15-loop star bows per hour 120 25-loop star bows per hour The Bowmatic can produce 1750 12-loop star bows per hour. Although the speed of the Bowmatic alone does not suffice to avoid infringement of the ’223 patent, its speed is some indication of the successful utilization of substantial advancements in the Bowmatic, namely, a continuous roller ribbon feed drive and reciprocating retaining means. We conclude that all of Berwick’s machines, except the Bowmatic, violate the apparatus claims of the ’223 patent. 3.3 Possible Restriction of the Broad Claims of the ’223 Patent to the Machine Illustrated in the Patent. Berwick contends that “retaining means” in claim 5 refers to the collar button type pin. The patent claim, however, not the description in the specification, is the measure of the invention. Schmidinger v. Welsh, 383 F.2d 455 (3d Cir. 1967). The ’223 patent illustrates a sharpened collar button type pin and cooperating sleeve as being the “loop retaining means.” When the bow is completed, the bow and the pin are ejected from the machine and a new sharpened collar button pin is inserted in the chuck. In the Defendant’s machines, no collar button pin of any type is used either in the making of the bow or in the completed bow. In the machines used by the Defendant, needles retain the loops during the manufacture of the bow and a staple affixed at the very end of the manufacturing process keeps the bow in shape. The feed means in the ’223 patent propels the ribbon onto the sharpened collar button pin. None of Berwick’s machines uses this method. The claims sued on here by 3M define the retaining means in broad terms whereas claim 4 of the patent, which is not in suit, specifically calls for a removable pin. A comparison of claim 4 with the claims in suit is a proper procedure under Smith v. Snow, 294 U.S. 1, 55 S.Ct. 279, 79 L.Ed. 721 (1935). Such a comparison demonstrates that a collar button type pin is not the retaining means required to be considered in claim 5. Infringements of claim 5 by all of Berwick’s machines except the Bowmatic are not avoided by the use of needles and the staple or by the cam drop off shuttle rather than the pendulum. The needles, the staple, and the cam drop off shuttle all fall within the language of the claim and they perform the same functions in substantially the same way and accomplish the same result. They therefore infringe. Trio Process Court v. L. Goldstein’s Sons, 461 F.2d 66 (3d Cir. 1972). 3.4 The ’223 Method Claims with Respect to the Camberloc, Wanchek, and Tye-Sil Machines. 3M does not contend that the Camberloc infringes the method claims of the ’223 patent. In the manufacture of star bows by the Tye-Sil amd Wanchek machines, the ribbon is grasped initially at two points, one at the retaining needles and the other at the ribbon guide. When the needles are rotated, the ribbon is twisted between the needles and the guide. When the shuttle drops off the cam in the cam drop-off Tye-Sil and Wanchek machines the ribbon in the guide is applied to the needles. After the piercing by the needles, the ribbon in these machines is brought together at the free end and the spaced point in uncreased intersections in face to back relationship and one conoidal loop is formed. The loop is variously referred to in the pertinent patent documents as conical, conoidal and concoidal. The legs of the first loop are fastened together by the impalement and subsequent loops are formed by a repetition of these steps. The Tye-Sil and Wanchek machines operate in the manner described in claims 14 and 15 in the ’223 patent. An infringement is made out as to those machines. Graver Tank Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). 3.5 The ’223 Method Claims with Respect to the BoAvmatic Machine. As noted earlier both claims 14 and 15 of the ’223 patent describe a method of bow formation by “grasping a length of strip material adjacent its free end and at a point spaced therefrom, unidirectionally twisting the portion of the ribbon between the points where grasped and bringing the strip material at said free end and at said space point together in uncreased intersecting face to back relation to form a first loop . . . The Bowmatic machine does not perform the steps in claims 14 and 15. See finding of Fact # 107. The BoAvmatic grasps the ribbon at its free end by impalement on the retaining needles but it does not grasp the ribbon at a spaced point. The ribbon in the Bowmatic lies in the ribbon guide but is not grasped by it. This is one of the factors in the Bowmatic machine which permits that machine to achieve incredible speed of production. The Bowmatic does not violate claims 14 or 15. 4. Validity of the ’240 Patent. The Court concludes that the ’240 patent is invalid. The claims are set forth in the margin. The only real difference between the bows of the ’240 design patent and the bows of the Wanchek patent, 2,841,905, is the absence of pre-punched holes in the ribbon. On the first two occasions with respect to the application which ultimately resulted in the ’240 patent, different patent office examiners rejected as unpatentable 3M’s application on the ground that the absence of pre-punched holes is not a patentable distinction. Thereafter, a third patent examiner without any discussion whatsoever allowed the claims. A fourth examiner, and the last to act on the patent, determined that the lack of pre-punched holes was not a patentable distinction. These matters are treated more fully below. 4.1 File Wrapper Limitation on the ’240 Patent. The ’240 patent was allowed solely with respect to the family type bows shown in figures 1, 2 and 4 of the patent. Figure 5 of the patent is a star type bow and figure 6 is a pom-pon type bow. The patent should be restricted to family type bows. A brief summary of the events in the patent office follows. The matters are set forth in complete detail in findings of fact numbered 143, 145, 147, 150-152 and 154 and are here summarized for purposes of the present discussion. On January 20, 1960, a patent office examiner rejected the claims of the ’240 patent as unpatentable over James and Wanchek. Finding of Fact # 143. On July 22, 1960, 3M amended the patent by inserting the language that the ribbon is “free of spaced predisposed holding member receiving apertures.” Finding of Fact # 145. On March 13, 1961, the patent office rejected the application as unpatentable over Wanchek and James stating in substance that the elimination of the holes was not inventive and that the structure of the article was the issue. Finding of Fact # 147. The patent office stated that the action was “final”. 3M then appealed from the final rejection. On January 10, 1962, a different examiner allowed the claims by this cryptic language: “Responsive to appeal brief filed December 13, 1961.” “Upon reconsideration and in view of applicants’ arguments as presented in their appeal brief filed December 13, 1961 claims 1 to 3 and 19 appear allowable.” Finding of Fact # 150. Plaintiff’s Exhibit 1 page 85 (January 10,1962). The brief filed December 13, 1961 by 3M stressed patentability by reason of the ribbon “being free of spaced predisposed holding member receiving apertures.” This is the draftsman’s obtuse phraseology for lack of evenly spaced holes. While 3M’s brief stressed the lack of holes, it did not abandon other alleged structural distinctions between its bows and the Wanchek and other prior art bows. None of these, however, are of any weight. On April 4, 1962, notice that the patent was allowable for issuance was sent to 3M. 3M did not pay the fee for the patent and the application was considered abandoned. The forfeiture notice was sent by the Patent Office on November 19, 1962. On June 26, 1963, 3M filed a preliminary amendment, cancel-ling old claims 2, 4, 6 and 7 without prejudice and proposing to add a new claim. On July 3, 1963 Examiner Stein-berg, referring to the James and Wanchek patents, found as follows: “Claims 8 and 9 are rejected as unpatentable over Wanchek, taken above, or in view of James. The structure set forth in claims 8 and 9 reads on figure 17 of applicants, which in turn reads on figure 3 of Wanchek. The limitation that the ribbon be free of apertures is not a patentable distinction. Apertures must of necessity be present in both instances. The particular shape of the loops is merely a matter of choice and design. Furthermore, coneoidal (sic) shapes are old as shown in James.” “Claims 1, 3 and 5 which read on the shapes shown in figures 1 and 15 are deemed allowable. “Claims 8 and 9 stand rejected. “Claims 1, 3 and 5 are allowed.” The claim numbers referred to by Examiner Steinberg, 1, 3 and 5 reading on figures 1 and 15 are reflected in the ’240 patent respectively as claims 5, 3 and 2 reading on figures 1 and 4. Both of these figures relate solely to family bows. On July 10, 1963, counsel for 3M filed an amendment which cancelled old claim 9 and substituted a new claim 10 which ultimately wound up in patent ’240 as claim 1. It is the same as old claim 5, which is now claim 2 of the patent, except that old claim 10, present claim 1, omits the language “being free of spaced predisposed holding member receiving apertures.” Since the present claim 1 is the same as old claim 5 except for the absence of holes, present claim 1 must relate also to family type bows. On September 25, 1963, the patent office sent its notice of allowance of the patent application. Finding of Fact # 154. After the July 3, 1963 determination by the patent office, there was no modification or reversal of its action whatsoever and the breadth of the patent must be determined by an examination of the July 3, 1963 action. The September 25, 1963 notice of allowance covered five claims which would be the five now shown in the patent and included claim 10 of the amendment of July 10,1963, now claim 1. A careful tracking through the maze-like patent documents conclusively shows that only star bows of the family type are covered by the ’240 patent and those are not at suit. A star bow of the non-family type is depicted as figure 5. No claim was ever allowed with respect to this type of bow. Although on a cursory examination, the claims of the ’240 patent would appear to cover a Wanchek-type star bow, a close examination of the file wrapper and attention to the history of the entire proceedings in the patent office show that the invention is restricted to the family type bows regardless of figure 5. Claims of a patent must be interpreted by considering cancelled or rejected claims. Nickerson v. Bearfoot Sole Company, Inc., 311 F.2d 858 (6th Cir. 1963). “[A]n allowed claim may not be read to cover what has been eliminated from the patent.” Nickerson v. Bearfoot Sole Co., Inc., at p. 876. The Bearfoot principle applies aptly to this case. 4.2 Obviousness of the Invention Disclosed in the ’240 Patent. Even aside from the file wrapper history of the ’240 patent, said patent is invalid as obvious. As we have stated previously, the test of obviousness is whether “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.” 35 U.S.C. § 103. The bow shown in figure 1 of the James Patent 2,806,313 is exceptionally similar to the multi-pointed star bow shown in Figure 5 of the ’240 patent except that the James bow has a ball to simulate the corona of a natural flower and a split brasspin as the central holding device. The only basic difference between the Wanchek bows and the 3M bows is the absence in the 3M bow of pre-punched holes. In our decision on Defendant’s motion for summary judgment where the Defendant relied heavily on Amerline v. Cosmo Plasties, 271 F.Supp. 215 (N.D.Ill.1967), we declined to apply Amerline because it had been decided after a full trial on the merits and our case was only at a preliminary stage. We have now had the full trial on the merits. The conclusion of the Court in Amerline that the absence of holes is not a patentable distinction is well taken and is applicable to this case.' Absence of holes in the ribbon is only a matter of ordinary. engineering design and would have been obvious to one skilled in the relevant art within the meaning of 35 U.S.C. § 103. In both cases, there are holes in the ribbon. In the Wanchek patent, the holes are pre-punched and in the 3M patent the holes are made by impalement of the ribbon on the loop retaining means. When the holes are made, whether in advance of the making of the bow, or at the time of the making of the bow, goes only to method and the ’240 is a design patent, not a method patent. The Wanchek patent and the James patent 2,806,313 disclosed a pin as a central fastening device. A person with only ordinary skill in the art could take ribbon and fashion it either over a central holding pin as in James or by threading it as in Wanchek into a bow such as the bow described in the ’240 patent. One skilled in the prior art and aware of both Wanchek and James pat-exits could easily have made the bows described in the ’240 patent. There is a rebuttable presumption in favor of the 3M patent and Berwick has the burden of establishing invalidity by clear and convincing proof. From the testimony in this case as to the number of patent applications filed annually, the number of patent applications granted annually, the number of employees in the patent office, and the lack of adversary proceedings, the weight to be given the presumption of validity must be questioned. Furthermore, there appears to be an ability on the part of patent counsel, illustrated by this case, to apply and reapply, then re-reapply on precisely the same points and, despite numerous rejections by various patent examiners, finally locate one patent examiner who authorizes the grant. The ultimate grant by one patent examiner effectively nullifies the rejection by other patent examiners and the lack of adversary proceedings in the patent office brings the process to an end at the time of the grant. Had 3M paid the patent fee promptly after the third examiner had nullified the action of the first two examiners, no fourth examiner would ever have entered the picture and the old claims 8 and 9 would never have been rejected. The patent applications and claims in this case are paradigms of semantic frolic. The third examiner in the patent office, in particular, placed greater weight on language variations than on differences in the actual design of the bows. In our view, Berwick has proven the 3M ’240 patent to be invalid by clear and convincing proof. The commercial success incident to the tremendous production of star bows and pom-pon bows may be attributable to improvement in the machine and method, duly reflected in the ’223 patent, but that commercial success certainly cannot be attributed in any way to the design of the bow under the ’240 patent which is actually the same as the design under the Wanchek patent. The success is attributable to high speed production. Commercial success may be entitled to some consideration where there is doubt as to the validity of the patent. Continental Can Co. v. Old Dominium Box Co., Inc., 393 F.2d 321 (2d Cir. 1968). In this case, there is no doubt that the ’240 patent is invalid. 5. Further Support for the Court’s Previous Findings of Laches Against 3M. The Court previously found the Plaintiff guilty of laches. At the trial of that issue the Court was unaware of certain documentary evidence proving that 3M knew Defendant to be in the business of making bows in 1965. At the trial on the merits of this case it developed that on October 15, 1965, Berwick wrote Christianson, a 3M licensee who manufactured Camberloc machines inquiring about acquisition of Camberlocs. Within less than a week, 3M’s patent counsel had received from Christianson the original or a copy of Berwick’s letter to Christianson. 3M’s patent counsel immediately advised 3M to send Christianson a draft of a letter by which he would notify Berwick of the 3M patents which are the subject of this suit. Berwick never received such a letter. This evidence further strengthens the conclusion of this Court in its findings with respect to 3M’s laches. At least as early as 1965 3M knew Berwick was in the bow making business and did nothing to alert Berwick to 3M’s ’223 patent. 6. Berwick’s Antitrust Counterclaim and Its Assertions of Equitable Estoppel Against 3M. Berwick claims that this suit is without warrant and constitutes conduct in restraint of trade. Berwick seeks treble damages and attorneys’ fees. There is no evidence that 3M has considered its claim against Berwick to be without merit. While 3M deserves condemnation for its failure to move against producers much earlier than it did, such failure does not give rise to an inference that 3M has attempted to monopolize the bow making industry. 35 U.S.C. § 271(d) provides that no patent owner shall be denied relief or be deemed guilty of misuse of his patent by reason of his having sought, inter alia, to enforce his patent rights. Berwick also claims that the institution of this suit prevented it from obtaining a substantial contract. While it is possible that the suit may have had some effect, particularly because of the claim for an injunction, the evidence falls short of convincing this court that Berwick lost the contract because of this litigation. The fact that Defendant’s banks and factors inquired with respect to this litigation does not prove that Berwick’s credit was damaged by reason of the litigation. In addition, Berwick objects to 3M’s approach to settlement of this litigation, the filing of a continuation application with respect to the ’240 patent and 3M’s desire to sell its ribbon for use by bow producers covered by the ’223 and ’240 patents. With respect to the settlement negotiations, Berwick was originally offered a license at $180,000, the same figure at which Sun was granted a license. Berwick rejected the offer because its production was substantially lower than Sun’s. This suit was instituted and thereafter Berwick attempted further negotiations. At that time, 3M officials increased the price from $180,000 to $225,000 plus interest from 1971 to the date of the negotiations in 1973. While 3M would not be expected to know with precision the production of Sun and Berwick respectively, it was in a position to make a reasonable approximation of the differences in production between Sun and Berwick. The increase of 25% in the price of the license to Berwick has all the hallmarks of arbitrary conduct. However, we are not aware of any case holding that such conduct is illegal. The Court rejected Berwick’s estoppel defense subsequent to the first hearing in this case on that issue and on the laches issue. The evidence accumulated as a result of the hearing on Berwick’s liability has not convinced the Court that its rejection of the estoppel defense was in error. Berwick fails to sustain its burden of proof on its antitrust counterclaims and Berwick’s defense of equitable estoppel is likewise rejected as unproven. 7. Damages. At the start of the trial on Berwick’s liability, which was subsequent to the hearing on the issues of laches and estoppel, 3M requested that the issue of damages be resolved in yet a third hearing to be held at some future date. Berwick opposed 3M’s request for a separate damage hearing stating that the increased costs of litigating damages separately would cause it severe hardship. Berwick’s outlay for counsel fees and expenses through the laches issue alone and up to but not including trial on the liability issue was $101,000. This case calls to mind William Camden’s admonition, “Agree, for the law is costly.” The Court considered the age of this case, the relative simplicity of the damages issue, and the prejudice to Defendant from extending this lawsuit, and decided to hear the damages issue along with the issue of Berwick’s liability. Ample evidence was presented for the Court to make a fair award on damages. See Findings of Fact Paragraphs 181-192 relating to damages. The guidepost to damages in a patent case is 35 U.S.C. § 284 which provides that upon a finding for the claimant damages shall be awarded “but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs .” Where appropriate, a successful claimant may also be entitled to an injunction against the infringer. Although 3M in its complaint sought to enjoin Berwick’s use of the 3M patents, 3M subsequently abandoned that avenue of relief. See 3M’s Proposed Conclusions of Law ¶ 45. In Minnesota Mining and Manufacturing v. Berwick Industries, Inc., supra, this Court held that 3M would be barred from recovering damages for the period before June 25, 1971 because of 3M’s laches. As a result of the Court’s finding, the reasonable royalty which Berwick is required to pay 3M must be computed for the period from June 25, 1971 through the expiration of the patent. 3M has entered into two types of licenses under its two patents. The first type provides for royalty calculated on the basis of the number of bows produced and sold by the licensee. That royalty was set at two-tenths of a cent ($.002) per bow although several special licenses were granted in which the royalty was reduced to eight hundredths of a cent ($0.0008) per bow. The second type of license provided for a lump sum royalty which was not specifically geared to actual bow production. Only one lump royalty arrangement was ever entered into by 3M and that was with Sun Chemical Corporation in 1971. That royalty was for $180,000 payable in 6 equal installments without interest over the remaining life of the patent. The license agreement covered all past and future use of the 3M patents and was entered into by Sun in the face of imminent litigation by 3M against Sun. 3M was able to make a reasonably accurate estimate of Sun Chemical’s rate of bow production in 1971 in negotiating the royalty. 3M was also familiar with Berwick’s rate of production in 1971. Sun Chemical has a bow production capacity which is two to three times that of Berwick although I do not consider that factor important. Berwick’s production for 1971 was 100,000,000 bows which at the rate of $.002 per bow would involve an annual royalty alone of $200,000.00. Even if Berwick had conceded that its Wanchek, Tye-Sil and Camberloc machines infringed and 3M had conceded that the Bowmatics did not infringe, both concessions reflecting the conclusions reached by the Court in this case, the two-tenths of a cent per bow royalty would probably have exceeded $180,000 over the remaining life of the patent. Obviously, these parties in 1971 would not have entered into any license agreement other than one involving a lump sum royalty. The Court must determine what is a fair lump sum royalty under all the circumstances. Where a patent owner has granted licenses at different rates, the lowest rate, in the absence of contrary evidence, constitutes a reasonable royalty. Russell Box Company v. Grant Paper Box Company, 203 F.2d 177, 182, 183 (1st Cir. 1953); American Sulfite Pulp Company v. DeGrasse Paper Company, 193 Fed. 653 (2d Cir. 1912). Thus, the $180,000 is a fair starting point. The Court should not be precluded from using the lump sum as a basis and forced to consider only a royalty based upon a rate per bow. Both Sun and Berwick are major producers in the field. The $.002 and $0.0008 per bow royalties have been paid 3M by companies whose production is minor, even miniscule, when compared with Sun and Berwick. These per bow royalities thus do not seem to me to be a fair basis from which to proceed to a determination of an equitable royalty in this case. Berwick’s use of the ’223 patent is only by the Camberloc, Tye-Sil and Wanchek machines and these machines produced 16.54676% of Berwick’s bows in 1973, the latest years for which we have figures. 35 U.S.C. § 284 requires that damages be awarded not less than a reasonable royalty for the use made of the invention by the infringer. A reduction in the royalty to reflect only the use of infringing machines seems reasonable, as does a reduction to eliminate recovery by 3M for the period in which it is barred by laches. The royalty figure to be arrived at by the Court does not include a reduction for the invalidity of the ’240 patent. The '240 patent is not susceptible of precise monetary valuation and probably has little value absent its relationship to the '223 patent. No reduction in the royalty should be made for Berwick’s gross production being somewhere between % and % of Sun’s production because 3M offered the royalty arrangements to interested parties and absent an abuse of its right so to do 3M was not obliged to tailor each lump sum royalty offer to the particular licensee’s production. The Sun Chemical license was executed April 20, 1971 and not only covered use to the expiration of the patent on April 19, 1977 but also covered all claims for past manufacture. Applying the applicable six-year statute of limitations, 35 U.S.C. § 286, the period covered by the Sun license was April 20, 1965 to April 19, 1977. Berwick should pay a royalty geared to the proportion which the duration of its use of the patent bears to the period for which Sun paid compensation. Further, Berwick’s royalty should involve a factor which reflects that only a small portion of its bows are made on infringing machines. Applying these considerations, a fair formula for a reasonable royalty and the calculation thereof are as follows: Reasonable Royalty = Sun’s royalty ■X Berwick’s License Duration Sun’s License Duration X Berwick’s 1973 Infringing Production in Bows Berwick’s 1973 Total Production in Bows $180,000 X 6/25/71-4/19/77 4/20/65-4/19/77 X 17.250.000 bows 104.250.000 bows $180,000 X 299 +5(365)+1 days 364+ 11(365)+3 days X 17.250.000 bows 104.250.000 bows $180,000 X 2125 days 4382 days X 17.250.000 bows 104.250.000 bows Reasonable Royalty = $14,443.49 The Sun royalty was payable in annual installments over the remaining life of the patent. Assuming that a similar provision would have been made in Berwick’s case, the interest at 6% to today on the four installments due June 25, 1971 and annually thereafter is $1288.-68. The commuted value as of today of the annual payments due June 25, 1975 and June 25, 1976, also using a 6% money rate, is $4,605.82 or $208.67 less than the face amount of $4,814.49. Subtraction of the commutation reduction from the interest yields a net interest factor of $1,080.01. Judgment will be entered in favor of 3M and against Berwick for the amount of the reasonable royalty of $14,443.49 plus net interest of $1,080.01 or a total of $15,523.50. FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court makes the following findings of fact: 1. The Plaintiff, Minnesota Mining and Manufacturing Company (“3M”), is a Delaware corporation with its principal place of business in St. Paul, Minnesota. [Prior Court Finding No. 1.] 2. Berwick Industries, Inc. (“Berwick”) is a Pennsylvania corporation and has a regular and established place of business in Berwick, Pennsylvania. The alleged acts of infringement here complained of have occurred primarily at Berwick’s Pennsylvania facility and at its facility located in San Juan Bautista, California, sometimes referred to as Berwick’s “West Coast Plant.” [Pri- or Court Finding No. 2.] 3. United States Patent No. 2,933,323 was issued to 3M on April 19, 1960 on an application filed on behalf of Robert S. Kravig and Arnold E. Johnson on July 23, 1958. United States Patent No. 3,112,240 was issued to 3M on November 26, 1963 on an application filed on behalf of Robert S. Kravig and Arnold E. Johnson on October 4, 1962 which application was a continuation of an earlier application filed on October 29, 1959 as a division of the original application of July 23, 1958 which resulted in U.S. Patent No. 2,933,223. The applications for the patents were assigned by the inventors to 3M, and 3M has been the owner of U.S. Patents Nos. 2,933,223 and 3,112,240 since their respective dates of issuance. [Prior Court Findings Nos. 3 and 4.] 4. Patent No. 2,933,223 (hereinafter referred to as the ’223 patent) relates to a method and apparatus for forming decorative bows from continuous lengths of ribbon. Patent No. 3,112,240 (hereinafter referred to as the ’240 patent) relates to decorative bows formed from continuous lengths of ribbon. [Prior Court Finding No. 5.] 5. The method and apparatus for fabricating decorative bows under the ’223 patent and the bows per se of the ’240 patent were initially the subject of a single patent application, Serial No. 750,396, filed on July 23, 1958. During the prosecution of that application, the Patent Office ruled that the bows were to be regarded as a separate and distinct invention from the method and apparatus for creating the bows, and, hence, ruled that the bow claims should be removed from the parent application and made the subject of a separate divisional application. This was done on October 29, 1959 by the filing of divisional application Serial No. 855,484. On October 4, 1962, a continuation application, Serial No. 228,491, was filed to replace the earlier divisional application, and the ’240 bow patent issued as a result thereof on November 26, 1963. [Prior court finding No. 6; Plaintiff’s Exhibit No. 1, Tab d, DeLaHunt’s letter of October 28, 1959.] 6. Berwick is charged with having infringed claims 1, 2, 5, and 17 of the ’223 patent by its use, since February 23, 1967, of Tye-Sil, Wanchek, Ragen Bowmatic and Camberloc bow machines, and with having infringed claims 14 and 15 of the ’223 patent by its use, since February 23, 1967, of Tye-Sil, Wanchek and Ragen Bowmatic bow machines. Infringement of claims 1, 2, 4, and 5 of the ’240 patent is alleged by reason of Berwick’s manufacture and sale, since February 23, 1967, of bows made on the Tye-Sil, Wancheek, Ragen Bowmatic and Camberloc machines. [Prior Court Finding No. 7.] 7. Kravig and Johnson reduced their concept to actual practice in 1957, when a prototype machine, having a hand-operated, pendulum-type shuttle with a one-way ribbon gripper and ribbon guide for withdrawing ribbon from a supply roll, was created. In forming the loops of the bow, ribbon was impaled upon a plastic pin which was removably mounted in a horizontal, rotatable spindle. [Johnson, Vol. VI, pp. 9-10, 90-91.] 8. 3M’s initial interest in the Kravig and Johnson device was to provide a relatively inexpensive, hand-operated machine for use in the retail market, such as in department stores and other retail outlets. In 1958, 3M introduced its first commercial embodiment of the Kravig and Johnson concept, the so-called S-70 machine. This machine, like the earlier prototype, was hand-operated by a pendulum-type shuttle and employed a removable plastic pin. [Johnson, Vol. VI, pp. 15-16; PX 9.] 9. Later in 1958, 3M brought out an improved model known as the S-71 machine. Because the S-71 machine was the preferred physical embodiment of the Kravig and Johnson concept on July 23, 1958 when the original application for the patent in suit was filed, it is the machine that is depicted and described in the ’223 patent. The primary improved feature in the S-71 was the substitution of a hand crank for the pendulum as the drive means for the shuttle. Both star and pom-pon bows could be formed on the S-71 as described in the ’223 patent. [Johnson, Vol. VI, pp. 17-22; PX 1a, 9,10a, 10b, 10c.] 10. Although designed for the retail market, the hand-operated S-70 and S-71 machines also found limited use in industrial markets. With the indication that the Kravig and Johnson invention could be used industrially, 3M in 1960 developed an automated, production-type bow machine known as the S-73. A prototype of the S-73 was successfully tested in the last half of 1960, and the machine became commercially available in 1961. [Johnson, Vol. VI, pp. 26-31; PX 12d; Prior Court Finding No. 8.] 11. Messrs. Kravig and Johnson, the inventors of the ’223 patent, stated in an affidavit sworn to December 15, 1969, filed in the Canadian Patent Office proceedings, that the ’223 patent was based upon the following claimed “original conception”: “To form a bow by impaling ribbon on a pin. This pin would serve to secure successive loops of ribbon together. This pin would remain as a part of the finished bow. “To use this pin in a machine the elements involved would be to hold the pin in rotatable chuck and impale successive loops of ribbon. If the chuck was rotated a predetermined number of degrees between successive loops, a decorative bow could be formed. By varying the number of degrees of chuck rotation, bows of many types can be formed.” (Pltf’s Exh. 56; T Vol. VI 7/8/74 pp. 36-41, 65-67, 73-92, Johnson; Vol. XIV 7/19/74 pp. 11-21, Johnson; Vol. XI 7/16/74 pp. 86-87, Howson; Vol. XII 7/17/74 pp. 23-29, Howson; Vol. XII 7/18/74 pp. 151-163, Kravig; Vol. XIV 7/19/74 pp. 2-7, Kravig) 12. The “original conception” referred to in the foregoing Finding (D-36) is fully embraced in Claims 3 and 4 of the ’223 patent which are not in suit. [T Vol. XII 7/17/74 pp. 28-30, Howson.] 13. 3M thereafter, during 1958, produced and marketed a hand operated bow forming device utilizing the manually inserted collar button type pin which was designated as the S-70. This was followed by the S-71 in late 1958 or early 1959, which was essentially identical except that in place of a pendulum to move the ribbon feed, the S-71 used a hand crank with appropriate linkages. The S-71 hand crank machine, an improvement over the earlier prototype and S-70 machines, was the machine that was illustrated in the ’223 patent and described in the specifications thereof. [T Vol. VI 7/8/74 pp. 16, 18-19, Johnson; Pltf’s Exh. 1(a); State of Uncontested Facts Def’s number B1.] 14. In 1961, 3M also provided, as an accessory for its S-71 hand machine, a power-pack which motorized the turning of the crank through a desired number of cycles until a completed bow was formed. When this power-pack was utilized with an S-71 (and later with the simplified S-72 machine), the only manual operations left for the operator to perform were the cut-off and ejection of the bow and the placement of a new plastic pin for the next bow. [Johnson, Vol. VI, pp. 32-34; PX 11.] 15. In 1964, 3M introduced a simplified version of the S-71, known as the S-72. The S-72 operated in the same manner as the S-71 except that the power was transmitted from the hand crank to the working parts of the machine by a gear drive instead of pulleys, and the optional ability to form pom-pon bows was eliminated. The ribbon gripping device was also modified. The S-72 is still being sold. [Johnson, Vol. VI, pp. 32-34; PX 11.] 16. 3M is not engaged in the manufacture and sale of decorative bows described in the ’240 patent. [Prior Court Finding No. 9.] 17. The subject matter of claims 1, 2, 5, 14, 15, and 17 of the ’223 patent, and claims 1, 2, 4, and 5 of the ’240 patent have been involved in legal proceedings previous to the instant action. The first such proceeding was Patent Interference No. 92,874 declared by the Patent Office on July 5, 1962 between such claims of the ’223 patent and an application, Serial No. 98,043 filed December 28, 1960 by David J. Henderson (hereinafter referred to as the “Henderson Interference”). The second proceeding was a suit filed on March 29, 1965 by 3M in the United States District Court for the Northern District of New York, Civil Action No. 65-CV-134, charging infringement of the ’223 and ’240 patents by Henderson and his company, Aranac Ribbon Mills (hereinafter referred to as the “Arame suit”). [Prior Court Finding No. 42.] 18. About eight months after the ’223 Kravig and Johnson patent was issued, David J. Henderson filed a patent application which described an automated production-type decorative bowmaking machine and a method for forming said bows. The Henderson machine is classified as a “cam drop-off” apparatus because ribbon is applied to the retaining needles by the downward motion of the shuttle as it falls off a cam. The cam drop off machine operates generally as follows: A shuttle upon which ribbon is carried moves forward on an incline and rides over a curved segment of a cam or switching device. When the shuttle or carrying devices reaches the end of the cam it falls off the end of the cam and drops down on the surface of a horizontal track. The drop is the result of gravity permitting the free end of the carriage or shuttle to fall downward. A rotating spindle which contains sewing machine type needles is positioned so that as the carriage or table drops downward, the ribbon in a notched guide in the front of the dropping carriage or shuttle is impaled upon the needles. The shuttle or carriage then retreats away from the needles on a horizontal track and the cycle then commences again as the shuttle or carriage drives the cam back up the incline. The spindle in which the needles are held and upon which ribbon is now fixed rotates during periods when the shuttle is away from the rotating spindle. This procedure continues until sufficient loops are formed whereupon a stapling device comes down upon the needles which retract in