Jones Knitting Corp. v. Morgan

FORMAN, Circuit Judge

(dissenting).

In the District Court, the patent phase of the case occupied thirteen trial days, in addition to oral arguments and sessions in chambers. Through the parties’ use of the blackboard and their actual operation of the various types of knitting machines, the mechanics of commercial knitting, certainly of importance to the understanding of the problem at issue, were visually demonstrated to the District Court. With the benefit of these proofs, after listening to the testimony of the witnesses, and after considering the contents of the depositions, briefs and proposed findings submitted by both sides, it made fifty-three findings of fact and three conclusions of law, resolving the conflicts in the evidence in favor of, and holding for, the appellees.

Though error is found in one of the legal propositions employed by the District Court in deciding the question of invention, the thrust of the majority opinion is to question both the accuracy of and the weight to be given, findings of fact bearing on all three conclusions of law. Finding both inadequacies in the District Court’s handling of the facts, and an error of law, the majority reverses.

In attacking the District Court’s determination in such a manner, the majority, itself, must be convinced that the District Court’s findings of fact are clearly erroneous.¹ The majority, in my view, has ruled quite properly that the facts support neither the District Court’s conclusion that the Morgan patent is indefinite nor its conclusion that there was a public display of prior art indicative of an anticipation of the Morgan patent. However, on the District Court’s legal conclusion that the Morgan patent is invalid for want of invention, because the process and fabric, the subject matter of the patent, is obvious to one skilled in the art, I am obliged to question whether the majority has demonstrated the clear error in the factual findings it attacks, and whether there has been a recognition of a number of findings directly supportive of this conclusion of law.

I

The majority is critical of the District Court’s conclusion that, given the state of the prior art, it would have been obvious to Morgan how to utilize multiple tucking in such a way as to form cell pockets on both sides of the rib. knit fabric. Error is found in the District Court’s conclusion, “insofar as it is based on the testimony of Carroll Anderson and Professor Shinn,” due to the failure of both Anderson and Shinn to produce, or suggest a method for the production of, a Raschel imitation on a circular machine. The majority draws an adverse inference therefrom and thus repudiates Anderson’s and Shinn’s credibility. Such action at the appellate level may only be justified by the absence of evidence upon which the District Court could have reasonably chosen to believe their testimony.

As to Anderson, the majority finds his failure to produce a Raschel imitation in 1952 and 1957, and an alleged conflict between his deposition and oral testimony concerning when he first knew of Morgan’s work, sufficient to negate any belief in his testimony that, given the state of the prior art, the Morgan patent was obvious to one skilled in the art. Such a conclusion is reached despite at least tacit acceptance by the majority that Anderson had in 1933 made a fabric on a circular knitting machine which was in accordance with the knitting sequence of the Morgan patent. The majority expressed an objection to the line of evidence on this point only because the appellees failed to sustain their burden of showing that the fabric was publicly displayed in 1933, which was found to be the ground for disallowing this prior art as an anticipation of the Morgan patent, a conclusion with which I have expressed agreement. But this is an issue separate and distinct from the evidential value the Anderson 1933 fabric may be given on the issue of obviousness.

The District Court in its finding of fact No. 19 ² determines that Anderson produced a like fabric in 1933, a finding which is not contested and is amply supported in the record. In that finding as well as in findings No. 24, No. 26, No. 27 and No. 28 ³, the District Court underlines the basic similarity between the Anderson and Morgan fabrics. It determines in finding No. 31⁴, also amply supported by the record, that the differences between the Anderson and Morgan fabrics were matters of degree, such as the tightness of the knitting. And in findings No. 21 and No. 22 ⁵, the manner in which the Anderson fabric was put away in Munsingwear’s files for any possible future use is described. All of these findings were based on evidence properly before the District Court and, in so adjudicating them, it stated that “ [irrespective of whether the Anderson fabric is prior art, it certainly can be cited to indicate a lack of invention by Morgan.” ⁶ In view of the substantial evidence in support of such consideration, I am moved to give it appropriate weight.

The District Court obviously felt the evidence concerning the production of the Anderson fabric in 1933 more persuasive than the attempt to repudiate Anderson as a witness by turning his 1952 and 1957 failures against him. One basic reason for this is given in finding of fact No. 46.⁷ In that finding the District Court determined that Anderson did in fact succeed again, in 1958, in producing a Raschel imitation, through the technique of multiple tucking on both the dial and cylinder sides of the circular knitting machine, and without reference to either the Morgan patent or a swatch of the Morgan fabric. Such a finding minimizes the evidential value of the 1952 and 1957 failures.

In accepting appellant’s argument, that Anderson’s deposition contradicts his oral testimony that he produced his 1958 fabric without reference to either the Morgan patent or a swatch of the Morgan fabric ⁸, the majority overlooks two facets to the problem. First, even assuming the existence of the contradiction, the District Court had the right both to accept the oral statement over that in the deposition, and to have that choice respected by an appellate court. Second, Anderson’s redirect testimony⁹ itself clears up any doubt as to the presence of a contradiction between his deposition and oral statement, and underlines that it was only subsequent to his producing a Raschel imitation in 1958 that he became familiar with the Morgan fabric and patent.

The record thus amply supports the District Court's acceptance of Anderson as a knowledgeable witness on the question of obviousness. Even more importantly, Anderson’s successes at producing a Raschel imitation on a circular knitting machine provide independent evidence of the obviousness of the Morgan patent.

As to the majority’s attack on Professor Shinn’s expertise, the fact that he, in answer to inquiries concerning the possible imitation of the Raschel fabric on circular knitting machines, was unable to offer a suggestion as to the manner in which the circular machines could be programmed to imitate Raschel, certainly justifies an inference of nonobviousness of the Morgan patent, just as another factor, such as the existence of the Anderson fabric, justifies an inference of obviousness. Neither category of inferences is conclusive on the question of invention. The District Court did not consider Professor Shinn’s failure to offer constructive suggestions to the problem of critical importance. In light of the evidence concerning the 1933 and 1958 Anderson fabrics, as well as other factors relied upon, which will be discussed below, the District Court, in my view, did not abuse its prerogatives in failing to give this factor decisive weight.

II

Aside from the findings relating to Anderson’s success in producing a fabric akin to that claimed in the Morgan patent, the District Court made other findings of fact as to the state of the art, based on the record, which support the conclusion that the Morgan claims were obvious to one skilled in the art. A bit of further background material is in order. The circular rib knitting machine functions by the conjunctive operation of two banks of needles, the dial and the cylinder sides. The Raschel flat bed machine product was imitated by Morgan and Anderson through the technique of multiple tucking on both the dial and cylinder sides of the circular machine. Such tucking on both sides produced the air entrapping cells which gave the circular fabric its thermal characteristics, making it competitive with Raschel.

As against this background the District Court found in finding No. 40 that certain aspects of circular machine operation were well established in the knitting art. It had long been known that in knitting with the circular machines, the same operations could be performed on both the dial and cylinder sides of those machines, so as to give the same effect on both faces of the fabric.¹⁰ It was also well known to persons skilled in the art that the tucking in a circular rib knit fabric acted as crossbars to give a waffle or pocketed effect, such tucking inherently performing the functions of bracing and stabilizing the fabric and thus limiting its width-wise stretch, albeit to a lesser or greater degree depending upon the tightness of the knitting. This is the substantiated conclusion of findings No. 35 and No. 37.¹¹ Findings No. 40, No. 35, and No. 37, together with other support in the record, wholly justify finding No. 32¹², that prior to the Morgan patent it was well known in the art to knit circular rib knit fabrics with plural successive tucks on either the dial or cylinder side, or on both. It is further strengthened by evidence of concrete examples of such art¹³ found by the District Court.

In this state of the commercial knitting art, at the time of the Morgan patent, what appears to have been the problem concerning the production of a thermal fabric on a circular knitting machine? An examination of the references to the record embodied in a portion of finding No. 16¹⁴ indicates the following: Morgan viewed his problem as one of adjusting the machine to both tucking a heavy yarn three times on the cylinder side as well as the dial side and producing a fabric which would be tightly knit. He admitted that if a lighter weight yarn were to be used there would not be any problem with multiple tucking on both the dial and cylinder sides. The problem was not one of developing a new stitch arrangement. He, in effect, explains his contribution as the use of the heavy yarn and the element of tight knitting with known stitching patterns by adjusting the machine to both handle the tucking of the heavy yam on the dial and cylinder sides and to allow for a tight knit. As indicated in finding No. 38¹⁵, it is thus the weight of the yarn and the tightness of the knit, rather than a unique stitching development, which enhances the thermal quality inherent to a greater or lesser degree in any circular knit fabric having pockets formed by tuck stitches. This is further illuminated by the District Court’s findings indicating that Morgan referred to the stitching techniques of the long known so-called waffle fabrics as a basis for his work in 1956.¹⁶ The thrust of the Morgan patent, however, is directed to the stitch programming of the circular rib knit machine. References to machine adjustment are scanty and, as the District Court points out in finding No 16¹⁷, machine adjustment is even characterized therein as obvious. With all the above-mentioned technological material before it, ample evidence emerges from this record to support the finding that Morgan’s achievement was merely a mechanical act of machine adjustment to known knitting techniques and, therefore, obvious to one skilled in the art.

Ill

The majority, besides resting on certain negative inferences which it draws from the testimony of appellees’ experts, points to the commercial success of the Morgan fabric, the long felt need for the invention, and the availability of tools to produce the invention. It acknowledged, however, that these factors, as well as that of the failure of others skilled in the art to produce the subject matter of the patent, are merely secondary considerations, which may, in some instances, certainly be indices of obviousness or nonobviousness and, therefore, relevant. In the words of the Supreme Court:

“ * * * These legal inferences or subtests do focus attention on economic and motivational rather than technical issues * * *. Such inquiries may lend a helping hand to the judiciary * * *. They may also serve to ‘guard against slipping into hindsight,’ * * * and to resist the temptation to read into the prior art the teachings of the invention in issue.” ¹⁸

In effect they serve as the factors which tip the balance in cases where the technological elements do not alone point, with a degree of reason, to the disposition of the issue of inventiveness.

As is set forth in the above discussion, there appears to be substantial technological evidence in the record in support of the District Court’s determination of obviousness. Thus, this is not a case where the secondary factors are particularly helpful. And, it also seems that certain of these collateral factors have been overemphasized, for example, the evidence of market demand. Despite the alleged idleness of the industry’s' circular machines and the claimed years of need for a Raschel substitute, it was not until May, 1956 that Morgan started his off and on experimentation. The inferences to be drawn from the secondary factors, such as this one, are mixed, at their very best. And even if considered as strongly favoring appellant, in my view, would not serve to offset the District Court’s amply supported technological findings.

IV

The majority finds that the District Court’s statement — “It is the means by which the idea is reduced to practice which must contain the elements of inventiveness as distinguished from mechanical skill and know how,” — misconceives the applicable legal standard on the question of invention. Such an approach is found to strike “too closely to the ‘flash of genius’ theory.” The majority is of the view that the District Court by this statement has ignored the end product and has concentrated erroneously on the inventor’s technique of experimentation as being adversely determinative. I, however, do not read the District Court’s statement to resurrect an approximation of the discredited flash of genius theory. On the contrary, the District Court’s immediately preceding remarks seem to recognize that experimentation does not detract from invention and, in this case is to be admired.¹⁹ As I read it, the statement to which objection is made is but a reiteration of a portion of the introductory paragraph to the District Court’s discussion on lack of invention, in which paragraph it carefully pointed out that in considering the merits of any end product “mere skill is not invention” and there is a “distinction between mechanical skill and invention.” ²⁰

The emphasis placed by the District .Court on the necessity of some element of discovery being present was expressly approved in Graham v. John Deere Co.²¹ The majority, itself, recognizes that the Supreme Court, in explaining its much misunderstood opinion in Cuno Engineering Corp. v. Automatic Devices Corp.,²² emphasized that “the subject matter sought to be patented must be beyond the skill of the calling” and that, properly considered, Cuno teaches that “the device, not the [method of] invention * * * had to reveal the ‘flash of creative genius’.” ²³ The Court in Graham also quoted approvingly from its leading case of Hotchkiss v. Greenwood: ²⁴

“[U]nless more ingenuity and skill * * * were required than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of a skilled mechanic, not that of the inventor.” ²⁵

And in characterizing the relationship between Hotchkiss and Section 103 of 35 U.S.C. the Supreme Court emphasized that “while the clear language of § 103 places emphasis on an inquiry into obviousness, the general level of innovation necessary to sustain patentability remains the same.” ²⁶

The District Court recognized all the difficult problems inherent in a case such as this. Its conclusion of law on lack of invention is governed by the standard of obviousness.²⁷ Its textual discussion on this question of inventiveness contains a number of specific references to obviousness as being determinative, along with an explicit recognition of the manner in which hindsight as a vantage point may distort the process of judging whether an alleged invention is obvious.²⁸ I cannot agree that the statement singled out by the majority, when read either alone, or with the other components of the District Court’s opinion is indicative that this case was decided on a legal theory approximating that of the discredited “flash of genius”. On the contrary, the District Court merely recognized the factor which Hotchkiss first spelled out, Cuno later embellished, and Graham more recently has approved, namely, that an element of discovery is essential to patentability; that be it associated with the idea or the end result, the idea’s reduction to practice, mechanical skill and know how without the requisite element of discovery will not suffice to make the end product patentable.

Finding no error of law on the issue of invention and ample support in the record for the District Court’s factual findings of both Anderson’s success in producing a Raschel imitation and the mechanical nature of Morgan’s efforts, this court does not, in my view, have a sufficient basis upon which to overturn the District Court’s conclusion that the Morgan patent was obvious to one skilled in the art and, thus, not invention. I, therefore, find myself in respectful disagreement with the conclusion of the majority that the judgment of the District Court should be reversed. I would affirm it.

1 . Hazeltine Corporation v. General Motors Corporation, 131 F.2d 34, 37 (3 Cir. 1942), and Supreme Court cases cited therein.

2 . Jones Knitting Corp. v. Morgan, 244 F.Supp. 219, 230 (E.D.Pa.1964):

“19. One of Carroll R. Anderson’s first jobs after coming to Munsingwear was to knit some fabrics for the Design Department for use in making fancy sweaters. The chief designer asked him to make something like ‘a waffle knit.’(i) In compliance with this request Anderson made several fabrics, but the ones he thought most appropriate as a waffle fabric were made with a 2 X 2 needle set up on a rib knit circular knitting machine with alternate groups of three tuck stitches and three knit stitches on each side and spaced by a single knit stitch. [PX 38A]. These fabrics were knitted in accordance with the knitting sequence shown in the knitting diagram which is Fig. 2 of the Morgan patent. (2)

“(1) N.T. pp. 787, 788, 789; PX 151, p. 13.

“(2) PX 38A (The swatches) ; PX 39 (diagram); N.T. 789-793; Ditzler, Morgan’s knitter, admitted tbe knitting sequence is tbe same. PX 155, pp. 235-237 and PX 156, pp. 31, 32; PX 151, pp. 19, 20; PX 40 (photograph).”

3 . Id. at 230-231.

4 . Id. at 231.

5 . Id. at 230:

“21. The completed Anderson fabric made in 1933 became a permanent part of Munsingwear’s reference files in 1933 when swatches of the waffle fabric [PX 38A] were placed on a reference card in the reference files.

“[PX 151, pp. 9-12; N.T. 806, 8071.”

“22. The reference file at Munsingwear in which the card and swatches PX 38 and PX 38A were located contains both fabric swatches for potential commercial production and swatches of fabrics which are currently or were in production.

“[PX 151, pp. 163-168, Anderson Deposition; N.T. 929, 994].”

6 . Id. at 227.

7 . Id. at 233:

“46. The fabric of DX 99 was produced by Carroll R. Anderson without any knowledge of the Morgan patent or any fabric produced by Morgan. This fabric is knitted the same as the knitting sequence shown in Figure 2 of the Morgan patent and the 1933 PX 38A fabrics. [N.T. 846]. The men’s underwear division of the Munsingwear Company requested Mr. Anderson to make or have made a circular knit thermal fabric. [N.T. 944], Several different fabrics were made according to Mr. Anderson’s instructions. [N.T. 944; PX 151, p. 132]. Then the merchandising people brought in a Jones Knitting Company garment which had tucks on only one side, and Mr. Anderson thought it could be improved by making it perfectly balanced by adding tucks to the other side. [N.T. 941, 974], DX 101, dated August 29, 1958, is the record of the original piece which was made. [N.T. 941], Although a Mr. Woodhead actually made the fabric, it was made at Mr. Anderson’s specific request, and he was fully familiar with the development. [N.T. 954, 955, 974]. Mr. Anderson did not see the Morgan patent until November 25, 1958, when it was sent to him by Mr. Woodhead. [N.T. 922; DX 97], Nor had he seen any fabric of the type marketed by Morgan. [N.T. 949, 976, 977, 1008, 1009]. The fabric DX 99 which had been made pursuant to Mr. Anderson’s instructions was adopted by Munsingwear, and sales commenced on August 3, 1959. [PX 151, p. 135; N.T. 974], Mr. Anderson had seen the Morgan patent at the time the DX 99 fabric was adopted for sale, but he had not seen it or any corresponding fabric at the time the DX 99 fabric was initially made.”

8 . Appellant presents its argument, that Anderson’s deposition contradicts his oral statement, by reference to portions of the record which tend to give considerably less than a complete picture of all facets of the issue.

9 . Trial Transcript, pp. 975-78.

10 . Jones Knitting Corp. v. Morgan, supra note 2, at 232. Finding of Fact No. 40 reads:

“40. It has long been known in the art that in knitting with rib machines the same operations can be performed on both faces of the fabric so as to give the same effect on both faces of the fabric, and specifically that groups of adjacent tuck strands could be formed on each face of a rib knit fabric.

“[N.T. 1305; PX 200, p. 138, example IX; N.T. 1178-1181; PX 208, p. 3, lower right-hand figure].”

11 . Ibid:

“35. Prior to the time the alleged invention here involved was made, it was known to persons skilled in the knitting art that tuck stitches in a rib knit fabric would act as crossbars to give a waffle or pocketed effect.

“[Morgan, N.T. 667-671; Morgan PX 157, pp. 12, 13, 48, 51, 88; Morgan, PX 127, pp. 283-286; Ditzler PX 155, p. 271].”

“37. Prior to tbe time when the alleged invention was made, there was nothing new or unobvious in using either single or plural tuck strands in a rib knit fabric to brace or stabilize the fabric and thus limit its widthwise stretch. Regardless of the purpose for which tuck strands are used, they inherently perform this function in a lesser or greater degree depending upon the tightness of knitting. [N.T. 1369, 1370, 1519, 1523, 1533, 1534, 1547, 1548, 1550-1553, 1613, 1614], Furthermore, tucks for this specific purpose have been known since at least 1907, the date of publication of the German patent PX 192, 192A. This specific purpose or function is stated on pages 1, 2 and 7 of the translation, PX 192A. Therefore, neither the bracing purpose nor the bracing function of the tuck stitches as described in the Morgan patent is novel.”

Appellant claims that finding No. 37 is in error for Professor Shinn testified that tucking in certain fabrics called snuggies does not brace the ribs of the fabric to limit widthwise stretch, and that it was testified that tucks were incorporated in snuggies merely to shape the fabric and add a little bulk. Appellant misconceives the import of finding No. 37. All the District Court determined was that “in a lesser or greater degree depending upon the tightness of the knitting” would one produce such an effect. In snuggies, with their loose knit, effective bracing and stabilization would not be expected, and the District Court did not find otherwise.

12 . Id. at 231:

“32, Prior to the time when the alleged invention here involved was made, it was well known in the art to knit rib fabrics with plural successive tucks on either the dial or cylinder needles, or on both. It was a simple matter of machine adjustment to arrange a machine to tuck two times instead of once, or three times instead of twice.

“[Lawson, N.T. 145; Anderson, N.T. 816, 817; PX 200, p. 138, example IX shows two successive tucks on each face; Frailey, N.T. 2195; PX 208, p. 3; Brennan, N.T. 1471, 1473; PX 198, Rab article].”

13 . Id. at 231, 233-234;

“33. In the prior art publication PX 200, the fabric on page 138 designated as ‘Double French Rack’, example IX, is a rib knit fabric having multiple tucks on each face in adjacent groups. As shown in the knitting diagram on page 138, the dial needles tuck for two courses while the rib needles knit; then for one course both the dial and cylinder needles knit; then the cylinder needles tuck for two courses while the dial needles knit; then for one course both the dial and cylinder needles knit; and then the sequence is repeated. The example specifies that the yarn be 9Í4S worsted, which would result in a heavy fabric. [N.T. 1097, 1101]. The multiple tuck strands would limit the widthwise stretch of the fabric and would add to the warmth-giving properties of the fabric. [N.T. 1552],

“The fabric described on page 138 of PX 200 is a 1 X 1 rib, which is stated in the patent to be within the scope of the invention.”

“44. There are in evidence two fabrics made by Michael LaOorte, a knitter for Beaunit Mills, Inc., prior to 1953. The fabrics, their knitting diagrams, and a stipulation of counsel were combined as PX 299. The fabrics were made while Mr. LaOorte was ‘fooling around’ with a knitting machine. He thought they were attractive, and might be useful as either outerwear or underwear. For this reason he saved the swatches. The fabrics were never manufactured or sold. The fabrics have three tucks on one side and one tuck on the other side and are a 2 X 2 rib setup. These fabrics have a waffle effect, or pockets, or cells, etc., at least on the side which incorporates the multiple tuck stitches. These are ‘air-entrapping cells’ constructed in the exact manner disclosed in the Morgan patent. The only difference between these fabrics and the Morgan patent is that these fabrics incorporate one tuck stitch or strand on one side whereas the Morgan patent discloses two or more tuck stitches or strands.”

“45. The fabric of DX 1 is a 2 X 2 rib knit fabric having three consecutive tucks on the dial side and no tucks on the cylinder side. [DX 226, p. 69]. This fabric was made by Lloyd Kranz, knitter for Jones Knitting Corporation, in his spare time and was completed around December, 1956. Mr. Kranz did not see any fabric manufactured by Morgan until at least August, 1957.

“[DX 226, pp. 71, 72, 73, 122].”

“47. Back in 1935 or 1936, Emmitt Murray made a rib knit fabric having a plurality of tuck stitches on each side. Specifically the fabric had ribs on one side which were three needles wide and ribs on the other side which were two needles wide. There were at least two successive tuck stitches bridging the valleys on each side of the fabric. [N.T. 1197-1199]. The knitting diagram for the fabric is set forth in the document PX 223, and specifically on the page marked as PX 223a. A revised knitting diagram in the form shown in the Morgan patent is in evidence as PX 280. The fabrics themselves could not he located.

“[N.T. 1230].”

Appellant attacks No. 44 on the ground that it was placed in evidence via a stipulation, thus depriving the District Court from seeing a witness testify about the fabric. The existence of the stipulation, however, would seem to preclude any attack on the truth of the subject matter of the finding.

Appellant also attacks No. 47, on the ground that the fabric itself was not produced, merely an undated entry in a notebook and the recollection of a witness, Murray. The veracity of the testimony no doubt may be challenged, but the District Court had a right to believe the witness, plainly subject to both the Court’s view and to cross-examination.

14 . Id. at 229-230:

“16. * * * [Morgan, PX 157, pp. 55, 58, 60, 152; Morgan, PX 127, pp. 290-293; Ditzler, PX 155, pp. 189-192, 226, 239-240, 249, 251, 275; Ditzler, PX 156, pp. 28-31, 33, 34, 43]. * * * ”

15 . Id. at 232:

“38. To a greater or less degree depending on the size of the yarn and the tightness of the knit, any rib knit fabric having pockets formed by tuck stitches will entrap air to impart insulating properties to the fabric regardless of whether the tuck stitches or pockets were provided for that specific purpose or for some other purpose.

“[N.T. 1613, 1614].”

16 . Id. at 229:

“12. Prior to the time the alleged invention here involved was made, Morgan knew of old fabrics which were referred to as ‘waffle’ fabrics. They were rib knit fabrics incorporating tuck stitches to give waffle-like depressions or pockets in the valleys between the ribs on at least one side of the fabric. Morgan stated that the appearance of these old fabrics was much like the Raschel fabric, and he requested Ditzler to produce such a fabric having the waffle-like depressions or pockets.

“[Morgan, N.T. 666-671; Morgan, PX 157, pp. 10, 12, 13, 48, 51, 87, 88; Morgan PX 127, pp. 283-286; Ditzler, PX 155, p. 271; PX 25; PX 212; PX 217].”

“13. In the making of the alleged invention here involved, Morgan requested Ditzler to produce a fabric having a so-called waffle stitch or depressions, preferably on both sides. Ditzler knew how to get a waffle effect on one side by means of dial tuck stitches or strands.

“[Ditzler, PX 155, p. 271].”

Appellant’s attack on findings No. 12 and No. 13 as not supported by the record is hollow. An examination of the references cited in the findings themselves demonstrates the ample support in the record for them.

17 . Id. at 229-230:

“16. Although Morgan and Ditzler encountered some difficulty in knitting the first fabric, these difficulties essentially involved learning how to adjust the machine and adjusting the machine for commercially feasible operation. [Morgan, PX 157, pp. 55, 58, 60, 152; Morgan, PX 127, pp. 290-293; Ditzler, PX 155, pp. 189-192, 226, 239-240, 249, 251, 275; Ditzler, PX 156, pp. 28-31, 33, 34, 43], The patent itself is not directed to such problems or their solution. It contains no instructions for the necessary machine adjustment and therefore does not solve the alleged problems which were encountered. The patent merely says that such adjustments are obvious.

“[Morgan patent, lines 49-57].”

18 . Graham v. John Deere Corp., 383 U.S. 1, 86 S.Ct. 684, 703, 15 L.Ed.2d 545 (1966).

19 . Jones Knitting Corp. v. Morgan, supra note 2, 244 F.Supp. at 225:

“If the court is about to declare the Morgan patent invalid because of lack of invention, it affords little comfort to express admiration for Morgan’s dogged determination in the face of the stubborn resistance and pessimistic attitude of his knitter Ditzler. But the stubbornness and belief in an idea alone are not invention.” (Emphasis added.)

20 . Id. at 225:

“Mere skill is not invention and the distinction between mechanical skill and invention is whether what was produced was obvious to persons skilled in the art and acquainted with common knowledge in the art at the date the device was created.” (Emphasis added.)

21 . Supra note 18.

22 . 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941).

23 . Graham v. John Deere Co., supra note 18, 383 U.S. at 15, n.7, 86 S.Ct. at 692.

24 . 52 U.S. (11 How.) 248, 13 L.Ed. 683 (1850).

25 . Graham v. John Deere Co., supra note 18, 383 U.S. at 11, 86 S.Ct. at 690, citing Hotchkiss v. Greenwood, 52 U.S. (11 How.), 248, 267, 13 L.Ed. 683 (1850).

26 . 383 U.S. at 4, 86 S.Ct. at 686.

27 . Jones Knitting Corp. v. Morgan, supra note 2 at 234.

28 . Id. at 225.