author: TALBOT SMITH, Senior District Judge.

text:
    The DOW CHEMICAL COMPANY, Plaintiff-Appellee, v. William D. RUCKELSHAUS, Administrator Environmental Protection Agency, Defendant-Appellant.
    No. 72-1441.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1973.
    Decided April 19, 1973.

      Michael C. Farrar, Environmental Protection Agency, Washington, D. C., for appellant.
    Milton R. Wessel, New York City, for appellee.
    Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH.

       Hon. Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The Dow Chemical Company (hereinafter Dow), aggrieved by an “Order and Findings of Fact of the Administrator Pursuant to Section 4(c), F.I.F.R.A.,” sought mandamus against William D. Ruckelshaus, Administrator, Environmental Protection Agency (hereinafter Administrator).

The litigation, of which this is only the most recent step, has had a lengthy and torturous history. It began back in 1970 (before the creation of the Environmental Protection Agency) when the Department of Agriculture suspended immediately the registration of 2, 4, 5 trichlorophenoxydeetic acid (a substance which will hereinafter be referred to as “2,4,5-T”) for some uses and issued cancellation notices respecting others. Cancellation does not become effective until the Administrator issues his final order. In the meantime the registrant may ship and sell the questioned product. Suspension is a far more drastic action. “Although cancellation notices should issue as soon as the Secretary finds a substantial question concerning the safety of a registered product, he reserves the suspension power for cases in which serious and irreparable harm to the public health is likely to occur before the conclusion of the ordinary cancellation process.” (Footnote omitted.) Wellford v. Ruckelshaus, 142 U.S.App.D.C. 88, 439 F.2d 598 (1971).

The Secretary’s actions were taken because of evidence indicating “that 2,4,5-T, as well as its contaminant, dioxins, may produce abnormal development in unborn animals. Nearly pure 2,4,5-T was reported to cause birth defects when injected at high doses into experimental pregnant mice but not in rats. No data on humans are available.” An additional statement of the Department of Agriculture described in detail the environmental impact, as well as stating that “The actions recommended for suspension and cancellation will minimize the probability of exposure of pregnant women to hazardous exposure of 2,4,5-T or contaminant dioxin around the home, in aquatic areas, and through food and water.”

The suspension orders were not contested, nor certain of the cancellation orders, but Dow did contest cancellation insofar as applied to use with relation to the production of rice, which brings us to the instant action.

A reference to the statutory framework is necessary for a delineation of the issues. FIFRA requires that all “economic poisons,” commonly known as pesticides, marketed in interstate commerce be registered with the Environmental Protection Agency. To be registered a pesticide must meet certain safety and efficacy standards. It cannot be registered if its labeling renders it misbranded. Misbranding occurs when (among other situations) its labeling does not contain directions or warnings which, when followed, render its use non-injurious to man and other vertebrate animals, and useful invertebrate animals, and vegetation (except weeds, in the case of herbicides ). Under certain conditions, unnecessary to explore here, it cannot be registered at all.

The entire process of registration, cancellation, and suspension is governed by section 4 of the Act (7 U.S.C. 135 b). If “it does not appear” to the Administrator that the article in question, or its labeling, complies with the Act he may refuse registration (Section 4(c), 7 U.S.C. § 135b(c) hereafter Section 4(c)). He may also, suspend or cancel “Whenever it does not appear that the article or its labeling or other material required to be submitted complies with” provisions of the Act. Upon notification of cancellation of an existing registration the registrant has 30 days before the cancellation becomes effective. In this period he may either make the necessary corrections, may request a public hearing, or may request referral to an Advisory Committee, which latter was Dow’s course of action. This request has the effect of suspending the cancellation, with the result that the product remains on the market.

The majority of the Advisory Committee recommended that the registrations in question be restored, with certain limitations. It also noted that “existing deficiencies in information relative to possible accumulation in the soil and possible magnification in the food chain of the dioxin TCDD be rectified by specific research directed to this end” and that “additional postregistration monitoring for adverse effects of agricultural chemicals be established,” as well as “consideration of the applicability of new methodology that may be evolved for specialized testing, e. g., for carcinogenesis [cancer generating], mutagenesis [mutation generating] or teratogenesis [birth defect generating effects].” The dissent characterized the majority report as “overoptimistic in assessing the implications of data,” spoke of the “uncertainty existing] about the teratogenic potential of 2,4,5-T” and closed with the observation that “It is always difficult to make decisions in the face of uncertainty” and that the committee had “labored honestly and conscientiously to deduce the best recommendations from a confused aggregate of observations.”

After receipt of the committee report the Administrator, in a lengthy “Determination and Order” of August 6, 1971, published in 36 Fed.Reg. 14777, reviewed the past procedures and the committee report, concluding that “For the foregoing reasons I have determined to continue the order of cancellation for use of 2,4,5-T on food crops for human consumption.” Dow asserted that the order did not comply with the requirements of Section 4(c), on the ground that it “was not the policy determination required by FIFRA” (since the record was regarded by the Administrator as incomplete) and that it “purported to order a public hearing” to gather further data, and that it did not “set forth the findings of facts” required by statute. Upon such grounds Dow filed a motion for what it regarded as appropriate relief.

The Administrator, noting that “[n] either the FIFRA nor this Agency’s rules make any provision for the type of relief requested by Dow” nevertheless treated Dow’s motion as a “petition for reconsideration” of the August 6 order and ruled thereon. He stated, in part, that

“The basis for my August 6 determination to continue the order of cancellation previously issued was the many questions I had concerning the safety of and need for 2,4,5-T. Specifically, that action was mandated by the following facts.” (Here the Administrator listed the ten items found in full in fn. 14 hereof.)

Dow remained dissatisfied with the order and chose to “stand by” its previously filed objections. It next filed the present action in the Eastern District Court of Arkansas.

The Bill of Complaint prayed for injunctive and other relief, and that the Administrator be ordered to withdraw his August 6 and November 4 rulings, and to issue “a new and proper order,” based and accompanied as described, and “in accordance with the recommendations of the Advisory Committee unless the Administrator can establish the existence of ‘other data’ which was not considered by the Advisory Committee and which would warrant reversal of the Advisory Committee’s conclusions.”

During argument in the District Court it was the suggestion of the Court that the Administrator enter an order “. . . as the statute requires of making findings from the Advisory Committee report and the conclusions then of the Administrator as to the decision that he makes and, therefore, the record can be put in the proper state, he can go ahead with the hearings as he intends . . . ”

Pursuant to the court’s suggestion, and within the 30 days allowed, the Administrator issued an additional order under date of April 13, 1972. In this order the Administrator stated:

“It is my purpose in entering this amendatory order to state explicitly, within one document, my decision and findings of fact under section 4(c) of the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 135b(c) to continue the cancellation of the registrations of 2,4,5-T in question here after the submission of the Advisory Committee report. This order amends my orders of August 6, 1971 and November 4, 1971 in further response to the motion of the Dow Chemical Company filed October 1, 1971.”

The new order continued with a review of the Advisory Committee report, stated the Administrator’s determination that the cancellations of the registrations of 2,4,5-T be continued, made ten findings of fact, set forth in full in the margin hereof, and concluded that “These facts made it abundantly clear to me that the registrants have not met their burden of proof, i. e., their continuing obligation to establish the elements necessary to entitle their products to registration (see my Statement of March 18, 1971, at page 4). Accordingly the cancellations must be continued.” (App. Vol. I, p. 173.)

With respect to this latest order, of April 13, the district court concluded that the Administrator had “failed to enter an order and findings of fact on the basis of the Advisory Committee’s report and therefore abortive of the plain language of the statute.” (App. Vol. I, p. 182.) The Administrator was further directed either to enter a new order and findings, or to amend his “purported order and findings entered on April 13, 1972 in accordance herewith,” the new or amended order to (among other requirements):

“A. Set forth separately his findings of fact and his ultimate conclusions.
B. Include or be accompanied by a reasoned statement setting forth (i) the portions of the Advisory Committee Report and the ‘other data’ being relied upon; (ii) the manner in which defendant’s findings are based upon the Advisory Committee Report and such ‘other data’; and (iii) the manner in which defendant’s ultimate conclusions are derived from the findings.”

In addition it was directed that “While complying with this Order, defendant shall hold all administrative proceedings relating to 2,4,5-T in status quo.” This appeal followed.

The Administrator’s principal argument to us is that the District Court erred in enjoining the cancellation proceedings, that under the Act judicial review of the proceedings takes place only after the issuance of a final order, which this order was not, and then only in the Court of Appeals.

The statutory pattern respecting judicial review is set forth in Sections 4(c) and (d) of the Act. It is provided in Section 4(c) that

Final orders of the Administrator under this section shall be. subject to judicial review, in accordance with the provisions of subsection (d) of this section. (Emphasis ours)

and in subsection (d), in part, that:

In a case of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. . . . Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. (Emphasis ours)

These statutory provisions, taken together, provide for 1) a class of reviewable orders under Section 4(c), and 2) a delineation in 4(d) of the procedural aspects and standards of judicial review permitted by Section 4(c). Nor-Am Agricultural Products, Inc. v. Hardin, 435 F.2d 1151 (7th Cir., en banc, 1970). It is thus clear that only the final orders of the Administrator are reviewable, a conclusion supported by the legislative history of the Act, wherein Senator Ellender contrasted the old procedure with that contemplated by the Amendments under consideration:

“At present registration under protest provides a means by which an applicant for registration may appeal from a decision of the Secretary with which he disagrees. However, in order to take this appeal, he must take actions which subject him to penalties, the product to seizure, and the public to possible danger if the Secretary’s determination should prove to be correct.
In lieu of this unsatisfactory type of appeal, the bill provides for administrative and judicial appeals. An applicant or registrant who disagrees with the Secretary’s determination to refuse or cancel registration may request that the matter be referred to an advisory committee which would consider the matter and make recommendations which the Secretary could follow or not as he saw fit. The bill also permits the applicant or registrant to file objections and request public hearings, either after the Secretary has received and acted upon the advisory committee’s recommendations, or without having gone through the advisory committee procedure. The hearing would be followed by a final order of the Secretary, which would then be subject to judicial review.” (Emphasis ours)

The problem in the above lies in the content of the word “final.” It has been held that under FIFRA a refusal to suspend is a final order, reviewable immediately, and that a failure to act for an appreciable time on a request for suspension was “tantamount to an order denying suspension” and likewise reviewable. EDF v. Hardin, 138 U.S.App.D.C. 381, 428 F.2d 1093 (1970). Similar result as to refusal to suspend was reached in EDF v. Ruckelshaus, supra, 142 U.S.App.D.C. 88, 439 F.2d 598 (1971), on the ground that such orders are “sufficiently final” in their impact to warrant judicial review. On the other hand, an order of suspension was found by the Seventh Circuit in Nor-Am Agricultural Products, Inc. v. Hardin, supra, to lack the necessary finality, since such order would always be followed by further administrative proceedings (dictum contra in EDF v. Ruckelshaus, supra).

But the above cited decisions relate to orders of suspension, summary action taken when necessary to prevent imminent hazard to the public. However, an order of cancellation (which we have before us) involves less urgent considerations. The product involved stays on the market. The elaborate procedures heretofore outlined are initiated and carried forward step by step with definite time limitations on each. Thus it is that “turning from suspension to the question of cancellation notices . . . a decision of the Secretary to issue cancellation notices is not reviewable, because it merely sets in motion the administrative process that terminates in a reviewable final order.” A contrary holding at the District level is found in Pax Co. of Utah v. United States, 324 F.Supp. 1335 (D.Utah, 1970), based upon grounds such as that the Department (those of Agriculture) had not employed the procedures required by the Act, and that its actions were beyond its authority (and due process) because the grounds asserted were “legally insufficient.” The Court of Appeals, however, reversed, stating, in part, that:

“ . . . [CJourts ought not ordinarily to interfere with the administrative process in the absence of the most compelling reasons, and here there is no assurance from the proceedings taken and from those to be taken pursuant to the law that PAX will ultimately fail or that there will be a failure of justice. The Act after all provides for ultimate and orderly judicial review.” (Footnote omitted) 454 F. 2d at 96.

The court also noted that the procedure before it was

“. . . careful, deliberate and protracted so that no .product is cancelled unless there has been abundant and extensive due process. Also, while the administrative remedies are being pursued no action is taken which affects the product apart from the presence of the threat.” 454 F.2d at 96.

Dow’s answer to the above concerns principally its charge that the Administrator “has failed to perform his duty under FIFRA,” that “there is nothing discretionary . . . about the Administrator’s duty to make a decision” and, moreover, that there is required a “policy judgment and findings of fact” at the conclusion of Dow’s first-stage administrative appeal. Thus, it is asserted, the Administrator may be required by mandamus to perform his hitherto allegedly unperformed statutory duty.

In view of the fact that the Administrator has exercised his discretion in favor of cancellation, as hereinabove set forth, and has issued and re-issued ten reasons (denominated by him as his findings of fact) in support thereof, the charge made by Dow that he has failed in the performance of his duty evinces a construction of the statute at marked variance with that of the Administrator and one in complete disregard of the purpose of the Act and the burdens thereunder.

The basic error presented finds expression with respect to an early stage in the proceedings, i. e. when the Administrator received the report of the Advisory Committee. Dow argues that at this point “the Administrator had only two lawful options open to him,” 1) to cancel Dow’s registration if he believed that 2,4,5-T did not meet lawful safety standards, or, 2) to lift the original cancellation if he was without information sufficient to warrant cancellation. The rationale thus expressed does not accord with the Act. It goes back to the requirements of FIFRA prior to the 1964 amendment:—

“Prior to 1964, the FIFRA required the Secretary to register ‘under protest’ any pesticide or other item that failed to meet the statutory requirements. The product remained on the market, and the Secretary reported the violation to the United States Attorney for possible prosecution. In 1964 the statute was amended to eliminate the system of protest registration, and substitute the present administrative mechanism for cancelling registrations. The stated purpose of the amendment was to protect the public by removing from the market any product whose safety or effectiveness was doubted by the Secretary. The legislative history supports the conclusion that Congress intended, any substantial question of safety to trigger the issuance of cancellation notices, shifting to the manufacturer the burden of proving the safety of his product.34 (Emphasis ours, other
34. See 110 Cong.Rec. 2948-49 (1964 (remarks oí Congresswoman Sullivan) :
I am strongly in favor of the legislation now before you to require industry, rather than the Federal Government, to shoulder the burden of proof in connection with the marketing of pesticides which may be unsafe for use as intended.
* * * * *
The burden of proof should not rest on the Government, because great damage can be done during the period the Govment is developing the data necessary to remove a product which should not be marketed.
See also I-I.R.Rep. No. 1125, supra; S. Rep. No. 573, 88th Cong., 2d Sess. (1964). Our construction of the FIFRA also finds strong suport in a 1969 report of the House Committee on Government Operations, reviewing the administration of the statute. The Committee strongly criticized the administrators for failing to take ‘prompt or effective cancellation action in cases where it had reason to believe a registered product might be ineffective or potentially hazardous. ... A mistaken belief that positive evidence of hazard — rather than simply a lack of adequate assurance of safety — is necessary to support a cancellation action appears to have been a factor in [the] failure to initiate such action in cases where it was obviously justified.’ H.R. Rep. No. 91-637, 91st Cong., 1st Sess. 15-16 (1969).”
footnotes omitted) EDF v. Ruckelshaus, supra, 439 F.2d at 593.

It is not in accord with the statute as amended that the Administrator may issue a cancellation order only and solely upon proofs that the substance involved does not meet the statutory standards evolved for the safety of the public. This, of course, he may do. But he is not so restricted. Since the registrant has a continuing burden of proof to establish that its product is entitled to registration, Southern Nat’l Mfg. Co. v. EPA, 470 F.2d 194 (8th Cir. 1972), if the Administrator has a substantial doubt as to safety, it is his duty as well to issue the cancellation order. And the cancellation order will remain in effect until the registrant satisfies the Agency that registration is warranted.

Such were the actions here taken. The Administrator, under dates of August 6, November 4, and April 13, has exercised the discretion committed to him by the Act and has continued in effect the cancellation order. In the August 6th order he questioned the adequacy of the record before him, particularly with respect to “the benefit coefficient of the cancellation equation,” and although he did not use the word “findings” or spell out in detail more of his reasons therefor than the lack of adequate knowledge, his meaning was clear. He was not required to adopt the Advisory Committee findings. The November 6 order again continued the cancellation notices in effect and, in addition (but without using the word “findings”) stated that his previous action was “mandated by the following facts,” listing ten. On April 13th, following the District Court hearing, and at the court’s suggestion, he sought to bring his previous order in conformity with the Court’s thoughts thereon by stating “. . . explicitly, within one document, my decision and findings of fact under Section 4(c)”, then repeating the ten statements of fact which were contained in the November 4 order.

The April 13th order, however, received no better reception than its predecessors. Dow asserts that “the April 13 document added nothing to the two earlier orders, but merely consolidated them. All three documents add up to the same thing — a refusal to make a determination On the merits . . .”. The Administrator, it is argued, has “failed to perform his duty under the statute.”

We disagree. His duty at this point under Section 4(c) is to “make his determination and issue an order, with findings of fact, with respect to the registration.” This he has done. He has issued his order and he has stated as his factual conclusions such matters as the teratogenicity of dioxin, the possibility that even “pure” 2,4,5-T is a hazard to man and the environment, that the registrants have not established that the dioxin and 2,4,5-T do not accumulate in body tissues, as well as other matters which we have set forth hereinabove. At this point in the proceedings before us the statute does not require that he adduce the evidentiary support for the findings thus made and the fact that he does not do so does not bespeak a failure to do his duty under the Act, though the registrant may in due course challenge each fact so found, and though, indeed, the Administrator may ultimately confess error as to one or more. The statute envisions that if the registrant disputes the findings he may request an evidentiary hearing and, in this respect, we think it completely unjustified on the record to argue, for whatever purpose it may seem to serve, that the Administrator himself has mandated or ordered any hearings in violation of the Act.

The reason for the statutory framework is not difficult to comprehend. Without the full record contemplated by the statute for review of final orders a court is not in a position properly to evaluate the basic validity of such asserted facts as, for example, that first listed of the ten, namely: “A contaminant of 2,4,5-F — Tetraehlorodibenzoparadioxin (TCDD or dioxin) — is one of the most teratogenic [relating to birth defects] chemicals known” or to weigh its pro’s and con’s. All of this may be done in accordance with the statute, at a hearing preceded by the sharpening process of the Administrative prehearing. But this is not yet a final order, thus clearly distinguishable from cases hereinabove cited, such as EDF v. Hardin, supra, and Wellford v. Ruckelshaus, supra, wherein elaboration of reasons in final orders were required for the purpose of adequate judicial review thereof.

Under the view we have taken of the case it is unnecessary to elaborate on the exhaustion doctrine, its basic considerations being governed by what we have held. The prescribed administrative remedy is obviously not exhausted. Myers v. Bethlehem Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Adams v. Federal Trade Commission, 296 F.2d 861 (8th Cir. 1961). We have before us no mistaken interpretation of the law by the Administrator, no failure of duty by the Administrator, there is abundant administrative remedy, and there is no irreparable injury to Dow. In fact, any injury to Dow (as in The Pax case, supra) is at the most indirect for, under the law, the cancellation orders have no effect on Dow’s right to ship and market its product until the administrative cancellation process has been completed and the ultimate decision may not be adverse. We find nothing in Skinner and Eddy Corporation v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L. Ed. 772 (1919), or Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) warranting a different result.

We here consider a recent and largely untested act, not without its ambiguities. We consider, as well, matters “as sensitive and fright-laden as cancer” and birth defects. It is a situation of extreme complexity, interweaving economic pressures with the most basic considerations of human safety. In this situation the Act, wisely we think, contemplates no interlocutory judicial jousting which experience has taught us can go on for years. It was the intent of the Congress that matters under the Act proceed expeditiously to a final order subject to judicial review and without judicial intervention prior thereto. Such is our ruling. We have, as yet, no final order within the contemplation of the Act.

We find the remaining issues raised by appellee to be without merit. The judgment of the District Court is reversed and the cause is remanded with instructions to vacate the injunction and dismiss the action.

      . Federal Insecticide, Fungicide and Rodenticide Act [FIFRA], 7 U.S.C. 135 et seg.

      . The action was brought under 28 U.S.C. § 1361, providing “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

      . The functions of Agriculture in this respect have been transferred to the Environmental Protection Agency. Reorg. Plan No. 3 of 1970, Sec. 2(a)(8)(i), U.S. Code Cong, and Admin.News, pp. 6322, 6324, 91st Cong., 2d Sess. (1970).

      . April 15, 1970 announcement of U. S. Dept. of Agriculture, U. S. Dept. of the Interior, U. S. Dept. of Health, Education and Welfare.

      . U.S.D.A. Environmental Statement, undated, Exhibit D., Appendix Vol. I, p. 27.

      . Id., p. 29.

      . 7 U.S.C. § 135. For the purposes of sections 135-135k of this title — (a) The term “economic poison” means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the Secretary shall declare to be a pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.

      . 7 U.S.C. § 135(z) (2) (c), (d), (g).

      . See summary of statutory scheme in Pax Company of Utah v. United States, 454 F.2d 93 (fn. 3) (10th Cir. 1972); EDF v. Hardin, 138 U.S.App.D.C. 381, 428 F.2d 1093 (fn. 2-4) (1970).

      . P. 69, Exhibit Vol. I.

      . This motion requested withdrawal of the August 6 order and the entry of a new order complying with the statute. Dow at this time also, under protest, filed objections to the order and requested a hearing.

      . App. Vol. I pp. 93-95.

      . App. Vol. II (Transcript) p. 121.

      . “1. A contaminant of 2,4,5-T — tetraehlorodibenzoparadioxin (TODD, or dioxin) — is one of the most teratogenic chemicals known. The registrants have not established that 1 part per million of this contaminant — or even 0.1 ppm — in 2,4,5-T does not pose a danger to the public health and safety.
      2. There is a substantial possibility that even ‘pure’ 2,4,5-T is itself a hazard to man and the environment.
      3. The dose-response curves for 2,4,5-T and dioxin have not been determined, and the possibility of ‘no effect’ levels for these chemicals is only a matter of conjecture at this time.
      4. As with another well-known teratogen, thalidomide, the possibility exists that dioxin may be many times more potent in humans than in test animals (thalidomide was 60 times more dangerous to humans than to mice, and 700 times more dangerous than to hamsters; the usual margin of safety for humans is set at one-tenth the teratogenic level in test animals).
      5. The registrants have not established that dioxin and 2,4,5-T do not accumulate in body tissues. If one or both does accumulate, even small doses could build up to dangerous levels within man and animals, and possibly in the food chain as well.
      6. The question of whether there are other sources of dioxin in the environment has not been fully explored. Such other sources, when added to the amount of dioxin from 2,4,5-T, could result in a substantial total body burden for certain segments of the population.
      7. The registrants have not established that there is no danger from dioxins other than TODD, such as the hexa- and heptadioxin isomers, which also can be present in 2,4,5-T, and which are known to be teratogenic.
      8. There is evidence that the polychlorophenols in '2,4,5-T may decompose into dioxin when exposed to high temperatures, such as might occur with incineration or even in the cooking of food.
      9. Studies of medical records in Vietnam hospitals and clinics below the district capital level suggest a correlation between the spraying of 2,4,5-T defoliant and the incidence of birth defects.
      10. The registrants have not established the need for 2,4,5-T in light of the above-mentioned risks. Benefits from 2,4,-5-T should be determined at a public hearing, but tentative studies by this agency have shown little necessity for those uses of 2,4,5-T which are now at issue.”

      . 109 Cong.Rec. 20079. See also Senator Ribicoff, 109 Cong.Rec. 20080; U.S. Code Cong, and Admin.News, pp. 2166, 2167, 2169, 88th Cong., 2d Sess. (1964).

      . EDF v. Ruckelshaus, supra, 439 F.2d p. 592.

      . Pax Co. of Utah v. United States, 454 F.2d 93 (10th Cir. 1972).

      . 40 CFR 164.32, 37 Fed.Reg. 9481. EDF v. Ruckelshaus, supra.

      . With respect to the matter of a public hearing, the Administrator brings to our attention the Federal Environmental Pesticide Control Act of 1972 (the FEP-CA), P.L. 92-516, 86 Stat. 973. Under the imocedures of this Act the Administrator himself may now issue a notice of his intent to hold a hearing (resulting in a final order subject to judicial review) rather than to continue with cancellation proceedings. We do not have before us any issue as to the applicability of this Act to the present proceedings.

      . 40 CFR 164.29.

      . EDF v. EPA, 150 U.S.App.D.C. 528, 465 F.2d 528 (1972).

      . E. g., Pax Co. of Utah v. United States, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur Guy EAGLE THUNDER, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1087.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 18, 1973.
    Decided May 21, 1973.

      David A. Gerdes, Pierre, S. D., on brief for appellant; Arthur Guy Eagle Thunder, pro se.
    William F. Clayton, U. S. Atty., and David R. Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., on brief for appellee.
    Before MATTHES, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This appeal is from a denial of appellant’s 28 U.S.C. § 2255 motion below to vacate and set aside a five year sentence imposed following his guilty plea. Appellant was charged with assault with a dangerous weapon in violation of 18 U.S.C. § 1153 and South Dakota Compiled Laws § 22-18-11. Appellant originally entered a plea of not guilty to a three count indictment but was later allowed to enter a guilty plea to Count I. Counts II and III were subsequently dismissed.

Appellant claims that the trial judge failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in that “At no time did the Court [inquire] personally of the defendant whether he understood the nature of the charge and the consequences of a plea of guilty to that charge.”

Rule 11 requires the trial court to not accept a plea of guilty “without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea” and “unless it is satisfied that there is factual basis for the plea.”

The trial judge personally addressed the appellant and inquired whether appellant understood his right to a trial by jury; to have witnesses for his defense called at public expense; that the government would have the burden of convincing 12 jurors of appellant’s guilt beyond a reasonable doubt before he could be convicted; that no promises or threats had been made in exchange for a plea of guilty and that the plea was voluntary and of appellant’s own free will and accord; whether on the date charged “you did wilfully, knowingly and unlawfully assault Moses Anderson McBride with a dangerous weapon; did you do that?” Appellant answered affirmatively to these questions and additionally affirmed that he had struck the victim with a blunt instrument and that he intended to do bodily harm.

The trial judge did not specifically ask the appellant, as appellant contends he should have in order to comply with Rule 11, “Do you understand the nature of the charge against you and the consequences of a guilty plea to the charge?” Instead, the trial judge told the appellant what he was charged with and had the prosecutor announce the maximum penalty provided for the offense.

Compliance with Rule 11 depends in each case upon the complexity of the charge and the surrounding circumstances, including the defendant’s age and record and whether he was represented by counsel. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Sappington v. United States, 468 F.2d 1378 (CA8 1972); and State of Missouri v. Turley, 443 F.2d 1313 (CA8 1971). Indeed, the circumstances and claim here presented are virtually identical to those before the Court in Sappington, supra, where the Court stated:

Here the charge was a simple one, the defendant was represented by counsel, and the defendant was no stranger to the judicial process. The effort made on this motion ... is to transform an enunciation of general standards to an ever-lengthening list of specifics, the omission of any one of which will render the entire proceedings “an exercise in futility.”
But McCarthy imposes no requirement that the Judge mount the bench with a script in his hand. Nor does it impose a requirement . . . that the court follow an exact ritual, or that, in order to convey an understanding of the “nature of the charge” to the defendant, it is necessary to explain the “elements” of the offense. * * * It is essential that there be substantial compliance with Rule 11, Fed.R.Crim.P., United States v. Cody, 438 F.2d 287 (CA8 1971). 468 F.2d at 1379-1380.

We are satisfied that the trial judge complied with the requirements of Rule 11 before accepting appellant’s plea of guilty. The trial judge was dealing with a 33 year old defendant with three prior felony convictions as an adult and who was represented by counsel. Appellant was fully informed of his constitutional rights, the crime he was charged with and the penalty that may result from his plea of guilty to the charge.

Appellant also contends, pro se, that Rule 11 was not complied with in that he was not told that as a consequence of his guilty plea he may be punished by imprisonment in the county jail not exceeding one year. See S.D.C.L. § 22-18-11. Rule 11 requires an understanding of the maximum penalty possible for the offense. Stephen v. United States, 426 F.2d 257, 258 (CA5 1970). Accord, United States v. Myers, 451 F.2d 402, 404 (CA9 1972); Marshall v. United States, 431 F.2d 355, 358 (CA7 1970); Berry v. United States, 412 F.2d 189, 192-193 (CA3 1969) and Durant v. United States, 410 F.2d 689 (CA1 1969). Appellant was clearly advised of the maximum penalty possible as a consequence to his guilty plea, five years imprisonment plus a $500 fine.

Affirmed.

      . Appellant does not claim that his plea was involuntary or without understanding of the nature of the charge or the consequences of a guilty plea. His sole claim is that Rule 11 was not complied with.

      . ‘'Rule 11 proceedings are not an exercise in futility. Tlie plea of guilty is a solemn act not to be disregarded because of belated misgivings about the wisdom of the same.” United States v. Woosley, 440 F.2d 1280, 1281 (CA8 1971). See also, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred BERTRAM, Defendant-Appellant.
    No. 72-1568.
    United States Court of Appeals, Tenth Circuit.
    Argued April 9, 1973.
    Decided April 27, 1973.
    William K. Hickey, First Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Sheldon K. Ginsberg, Denver, Colo., for defendant-appellant.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This is a Selective Service prosecution in which the defendant-appellant was charged with having failed to register, thereby violating 50 U.S.C. App. § 462 (a). The registration requirement is contained in 50 U.S.C. App. § 453. Registration is required within five days after the individual reaches his eighteenth birthday. He was convicted of this offense by a jury and sentenced to two years in prison.

Appellant contended at trial and now contends, first, that the registration requirement violates his First Amendment rights; secondly, that the court erroneously refused to allow testimony concerning his religious beliefs and erroneously charged the jury that conscientious objection did not eliminate the duty to register; and, finally, that the registration requirement discriminates against members of the male sex.

It is undisputed that the defendant did indeed fail to register in accordance with law. Moreover, he unquestionably knew of the requirement, and he admitted receiving a letter from the Selective Service notifying him of his failure to register and ordering him to appear at once. He testified at the trial that his refusal was intentional, but was based on his religious beliefs.

The First Amendment to the Constitution prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.’’ The right here granted is not, however, an unbridled one in that it is subject to the power of Congress to raise and support armies which is granted in Art. I, Section 8 of the Constitution. This court has recently ruled on the proposition here argued in the case of United States v. Koehn, 457 F.2d 1332, 1334 (10th Cir. 1972). The issue was resolved against the position which the appellant here takes.

Congress has tempered the above described conflict by providing in 50 U.S.C. App. § 456(j) that the conscientious objector is exempt from combat training and service, but this does, not reach the present contention that there is also an exemption from registration. In any event, the requirement does not infringe or curtail religious freedom since registering is not religious interference.

The court did not err in curtailing the defendant-appellant’s testimony as to the religious reasons for his failure to register. It was enough to allow him to state that his refusal was based on religion. Moreover, the court’s charge to the jury that the appellant’s religious beliefs did not constitute a defense was correct as was the court’s charge as to necessity for specific intent, and although evidence as to state of mind establishing that there was no criminal intent would be admissible, the religious beliefs do not serve to nullify the presence of intent where the defendant has acted knowingly. The defendant-appellant was not shown to have been suffering from any religious delusion. He acted knowingly and willfully.

Finally, we must reject the contention that there was unlawful discrimination. As of the present moment at least it is not arguable that Congress was powerless to adopt different requirements for men as opposed to women. The action of Congress in this regard is not to be regarded as arbitrary. See United States v. Camara, 451 F.2d 1122, 1125-1126 (1st Cir. 1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1513, 31 L.Ed. 2d 808 (1972).

The judgment is affirmed.

      . See Warren v. United States, 177 F.2d 596, 599 (10th Cir. 1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584 (1950).

      . See Richter v. United States, 181 F.2d 591, 594 (9th Cir.), cert. denied, 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647 (1950); Gara v. United States, 178 F.2d 38, 40 (6th Cir. 1949), aff’d by an equally divided Court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950). Cf. Toussie v. United States, 397 U.S. 112, 117-119, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

      . See 21 Am.Jur.2d Criminal Law §§ 41 and 92. See also Hotema v. United States, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225 (1902); Reynolds v. United States, 98 U.S. 145, 161-168, 25 L.Ed. 244 (1879); United States v. Cullen, 454 F.2d 386 (7th Cir. 1971).


author: PER CURIAM:

text:
    George ROBINSON, Plaintiff-Appellant, v. The M/V MERC TRADER, her engines, tackle, furniture, etc., et al., Defendants-Appellees.
    No. 72-3082
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.
    William S. Vincent, Jr., Clifton S. Carl, New Orleans, La., for plaintiff-appellant.
    Robert C. Leininger, Jr., Thomas W. Thorne, Jr., New Orleans, La., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Plaintiff, George Robinson, was injured while engaged in the unloading of coffee sacks from the M/V Merc Trader, an ocean going vessel owned by Per Henriksen Partrederi and docked in New Orleans. The accident occurred when plaintiff was struck in the head by pallet bridles that were swinging from winches used to unload the cargo. Plaintiff brought this suit in federal District Court for damages against the ship in rem and the owner in personam, alleging that the ship was unseaworthy. After hearing plaintiff’s case on the liability issue, the court entered a judgment dismissing the complaint with prejudice pursuant to Rule 41(b), F.R.Civ.P. The District Court found that the only negligence that could have caused the accident was either that of plaintiff himself or the momentary negligence of one of his co-workers. The court further found that plaintiff had failed to prove any negligence whatsoever on the part' of the vessel owner. Plaintiff brings this appeal urging (1) that it was error to dismiss under Rule 41(b), and (2) that the court below erred in not finding the vessel unseaworthy. We affirm.

When the District Court dismisses an action pursuant to Rule 41(b) after plaintiff has presented his case, we can set aside factual findings only if they are clearly erroneous. Klein v. District of Columbia, 1969, 133 U.S.App.D.C. 129, 409 F.2d 164; B’s Co. v. B. P. Barber & Assoc., Inc., 4 Cir. 1968, 391 F.2d 130. Cf. White v. Rimrock Tidelands, Inc., 5 Cir. 1969, 414 F.2d 1336 (District Court findings held “clearly erroneous”). Here the District Court found that the accident was caused either by the negligence of plaintiff or by the momentary negligence of one of his co-workers. Extensive factual findings were entered on the record, concluding that the ship’s equipment was in good repair and that there was an adequate crew according to prevailing local standards. Those findings are well supported by the record and are therefore binding on this Court. See generally Wright & Miller, 9 Federal Practice & Procedure 248.

Plaintiff’s contention that the shipowner violated 29 C.F.R. 1918.-81(g) by failing to provide adequate lookout for the winch operator is without legal merit. The District Court found that no matter where the derricksman (lookout) was positioned, he would not be able to see everything but that as a factual matter, the ship’s usé of one derricksman was in accord with local standards. Under the District Court’s fact findings, had plaintiff been in the proper place and had the bridle been swung properly, the accident would not have occurred. Accepting the District Court’s fact findings, we refuse to hold that a ship is rendered unseaworthy simply because it utilized only one derricksman, as was the prevailing practice, and the derricksman did not have a view of 100% of the loading area 100% of the time, a feat that would be impossible on this and many other cargo ships. The District Court found that the lookout was doing everything that could reasonably have been expected of him. The fact that he did not spot an accident caused either by the plaintiff’s being in the wrong place or by the bridle’s swinging in the wrong place does not negate this finding.

In Usner v. Luckenbach Overseas Corp., 1971, 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562, the Supreme Court found that a ship is not rendered unseaworthy when the transitory negligence of a co-worker causes injury to a longshoreman. We find that this case is governed by Usner and that the District Court did not err in dismissing plaintiff’s suit under Rule 41(b) upon finding that the accident could have been caused only by the negligence of plaintiff or the momentary negligence of a co-worker and not by any condition on the ship.

Affirmed.

      . Third-party claims involving plaintiff’s employer, J. P. Florio & Co., a stevedoring contractor, have been dismissed and are not at issue in this appeal.

      . Rule 41(b) provides in pertinent part:
      “ . . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

      . 29 C.F.R. 1918.81(g) provides:
      “Mo draft shall be hoisted unless the winch or crane operator(s) can clearly see the draft itself or see the signals of any signalman associated with the operation.”
      It is plaintiff’s argument that inherent in this provision is a requirement that the signalman (lookout) must also be stationed where he can see. While we express no disagreement with this thesis, the District Court found that the lookout was positioned so that he could see everything that he could reasonably be expected to observe, and we do not read the regulation as requiring anything more than that.


text:
    Nelson C. and Adele B. ELAM, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-1836.
    United States Court of Appeals, Sixth Circuit.
    May 22, 1973.

      William E. Martin, Nashville, Tenn., for petitioners-appellants; William Waller, Nashville, Tenn., on brief; Waller, Lansden, Dortch & Davis, Nashville, Tenn., of counsel.
    Murray S. Horwitz, Tax Division, Dept. of Justice, for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Grant W. Wiprud, Attys., Tax Division, Dept. of Justice, Washington, D. C., on brief; Lee H. Henkel, Jr., Chief Counsel, IRS, Washington, D. C., of counsel.
    Before WEICK and EDWARDS, Circuit Judges, and WILSON , District Judge.

       Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by-designation.

   PER CURIAM:

This is an appeal from a decision of the United States Tax Court disallowing a deduction for the reinvestment of the proceeds from the sale of the taxpayers’ home. The contention is made by the taxpayers that the Tax Court misconstrued Section 1034 of the Internal Revenue Code of 1954 (26 U.S.C. § 1034) by not allowing a reinvestment deduction to the extent that the gain from a home sale was reinvested within 18 months in the construction of a guest house and a main house where the guest house was completed and occupied within the allowable 18 month period, but where the main residence on the same premises remained unfinished and unoccupied at the expiration of the 18 month period.

The relevant facts may be stated briefly as follows. The appellant taxpayers received the sum of $93,333.33 from the sale of their residence. This sum included a gain of $45,314.00 realized upon the sale. Within 18 months of the sale the taxpayers reinvested a total of $83,276.-77 in the acquisition of land and the construction of two new residences. Of this sum $24,672.93 was invested in the acquisition of land, the building of outbuildings, and the building of a guest house. The guest house was completed and occupied by the taxpayers within the 18 month period as a temporary residence, pending completion of the main house. At the end of 18 months $58,-603.84 had been invested in the main house, but that residence was not completed or occupied by the taxpayers until some two years after the sale of the former residence. The Tax Court disallowed the claiming of any portion of the $58,603.84 reinvested in the main house as of the end of the 18 month period as an avoidance of gain deduction since the main house remained incomplete and unoccupied at that time. Rather, in applying the non recognition of gain strictures laid down in the statute, the Tax Court construed Section 1034 as requiring the exclusion of any funds invested in the incomplete and unoccupied main house.

Section 1034, abbreviated to those portions relevant to the facts of this case, reads as follows:

Sec. 1034. (a) Nonrecognition of Gain. —If property (in this section called “old residence”) used by the taxpayer as his principal residence is sold . and [within one year on replacement or 18 months on new construction] property (in this section called “new residence”) is purchased and used by the taxpayer as his principal residence, gain (if any) from such sale shall be recognized only to the extent that the taxpayer’s adjusted sales price ... of the old residence exceeds the taxpayer’s cost of purchasing the new residence.” (Emphasis supplied)

Stated quite simply, the issue is whether under the facts here presented the incomplete and unoccupied main house was to be included as a part of the “property . . . purchased and used by the taxpayer as his principal residence,” or whether, because of its unfinished and unoccupied status, it was to be excluded in determining the extent of deductible reinvestment accomplished within 18 months.

We conclude that it was not such “property” as to be entitled to nonrecognition treatment under the statute. We accordingly affirm the decision of the Tax Court.

In arriving at this conclusion recognition must be given to the well settled principle that statutes granting tax exemptions or deferments must be strictly construed. Commissioner v. Baertschi, 412 F.2d 494, 499 (C.A.6, 1969); Kentucky Utilities Co. v. Glenn, 394 F.2d 631 (C.A.6, 1968); Commissioner v. Jacobson, 336 U.S. 28, 69 S.Ct. 358, 93 L.Ed. 477 (1949); Helvering v. Ohio Leather Co., 317 U.S. 102, 106, 63 S.Ct. 103, 87 L.Ed. 113 (1942). Although the contention can be and is in fact made that the second residence or “main house” was but an improvement or appurtenance to the guest house, or vice versa, and therefore included with the “property” entitled to nonrecognition treatment, such a construction would serve to relax, not restrict, the thrust and meaning of the statute.

The main house was neither used nor available for use at the end of the statutory period. It was neither an environ, outbuilding or appurtenance to the guest house. Rather, the “property . purchased and used” by the taxpayers as their principal residence at the expiration of the statutory period included at most only the guest house and its environs, out-buildings and appurtenances.

The taxpayers have in effect invested in two residences, one completed and used within the statutory period and the other neither completed nor used during the statutory period. To permit a deduction under these circumstances would not only require an expansive reading of a statute meant to be strictly construed, but also could well lead to abuses not now perceived.

The decision of the Tax Court is affirmed.

      . The Commissioner has taken the position upon this appeal that none of the costs incurred by the taxpayers may be offset against the adjusted sales price because the taxpayers at all times intended to use the main house as a principal residence and did not intend to so use the guest house. However, since no appeal was taken from the Tax Court’s decision in this regard, it is not properly before this Court and the Court expresses no opinion as to the correctness of this contention.

      . For a general discussion of the statute here involved, see annotation “Construction and Application of § 1034 of Internal Revenue Code of 1954 (26 USC § 1034) Concerning Nonrecognition of Gain on Sale or Exchange of Residential Property,” 5 A.L.R.Fed. 205.


author: PER CURIAM: COLAIANNI, Commissioner:

text:
    TATE ENGINEERING, INC. v. The UNITED STATES and Severn Products, Inc., Third-Party Defendant.
    No. 336-69.
    United States Court of Claims.
    May 11, 1973.

      Robert C. Miller, Washington, D. C., for plaintiff; Robert F. Conrad, Fort Lauderdale, Fla., atty. of record; Shaffert & Miller, Washington, D. C., of counsel.
    J. Walter Schilpp, Philadelphia, Pa., atty. of record, for third-party defendant.
    Louise O’Neil, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This case comes before the court on plaintiff’s exceptions to a recommended decision filed August 1, 1972, by Trial Commissioner Joseph V. Colaianni pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel. Since the court agrees with the decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER

COLAIANNI, Commissioner:

This is a patent suit under 28 U.S.C. § 1498. Plaintiff, Tate Engineering, Inc., seeks “reasonable and entire compensation” for unauthorized use by the Government of plaintiff’s patented invention. Only the issue of liability is before the court; accounting, if any, is deferred to later proceedings. The patent in suit is U.S. Patent 3,236,018 (hereinafter the “Graham” patent), issued on February 22, 1966, to Donald C. Graham, Dale E. Hein and George H. Stram on an invention entitled “Load-Supporting Metallic Floor Panels.” All rights to the panel were assigned by the inventors to plaintiff on July 14, 1963, and plaintiff has continuously been the sole and exclusive owner of the patent.

Plaintiff moved to join Severn Products, Inc. (hereinafter “Severn”), on the ground that Severn allegedly supplied to the Government, under contract, products embodying the invention described and claimed in the Graham patent and actively induced infringement by the Government of the Graham patent. Severn entered the case as a third-party defendant and was represented by counsel during the entire pendency of the ease before this court. Shortly after issue was joined, Severn and the Government filed a joint motion for summary judgment on the grounds that the accused product sold by Severn to the Government did not infringe any of the claims of the Graham patent. The trial commissioner recommended that the motion be denied. Tate Engineering, Inc. v. United States, 166 USPQ 329 (1970). The court affirmed, Tate Engineering, Inc. v. United States, 193 Ct.Cl. 1088 (1970), and remanded the case “to the trial commissioner for further appropriate proceedings.”

This case raises the usual issues of infringement and validity. The Graham patent has eight claims, but plaintiff concedes that claims 1 through 4, 7 and 8 are not infringed by defendants. The issues to be decided include: (1) whether claims 5 and 6 of the Graham patent are infringed by the Severn product; (2) whether these two claims are invalid because they do not meet the standards set forth in 35 U.S.C. § 102 or § 103; (3) whether these claims are unenforceable and/or invalid by reason of plaintiff’s failure to disclose to the Patent Office during prosecution of the Graham patent allegedly pertinent prior art of which it had knowledge; and (4) whether the claims are invalid because the patent fails to “particularly point out and distinctly claim” the invention as required by 35 U.S.C. § 112.

During the trial, defendants introduced prior art which had not been considered by the Patent Office, and which was not relied upon in their motion for summary judgment. Defendants rely primarily upon this additional prior art to support their joint position relative to the above issues. For reasons expressed below, claims 5 and 6 are held to be not infringed.

Background

Prior to the invention of the Graham panel, plaintiff was not engaged in the manufacture and/or sale of elevated flooring, although several other firms were then in the field. Based on a market study, plaintiff decided to enter the field and contracted with Graham Engineering, Inc., a consulting engineering firm, to develop a unique floor panel. The Graham panel was invented under this contract by Graham Engineering employees, and all patent rights in the panel were assigned to plaintiff on July 15, 1963, one day before the Graham application was filed in the Patent Office. Plaintiff began manufacturing and selling the Graham panel in late 1962 or early 1963.

Patent in Suit

The invention disclosed by the Graham patent relates to a metal panel that can be combined with similar panels to form a load-supporting elevated floor. Individual panels, generally square in plan view, are usually supported above a sub-flooring by pedestals at each corner. The principal objective of such a panel is to support heavy loads without itself being of prohibitive thickness and weight. By way of example, elevated metal flooring is' frequently used in connection with computer installations. Heavy computer equipment is easily supported on the elevated flooring, and the many interconnecting power and signal-carrying cables are conveniently routed through the space provided between the elevated flooring and subflooring.

The panel disclosed by the Graham patent is formed from two superimposed flat metal sheets. The upper sheet is imperforate throughout its entire area and supports the load upon its top surface. In the preferred embodiment, however, a finishing material, such as linoleum or floor tiling, is affixed to the top surface. The lower sheet is positioned directly beneath the upper sheet and after a number of incisions and bends, a pattern of square openings arranged in parallel rows and columns is formed in the lower sheet. The rows and columns of square openings are separated by a gridwork of parallel rows and columns of straight metal tension strips that remain in the plane of the lower sheet. These tension strips extend between opposite edges of the lower sheet.

Furthermore, as a result of the incisions and bends, struts are provided at the edges of the openings. The struts project toward the upper sheet, and their terminal ends are bent for attachment to the undersurface of the upper sheet. By design, it is intended that loads applied to the upper sheet will be transmitted through the struts, to the tension strips of the lower sheet. The load-supporting capability of a panel is proportional to the cube of the distance between the upper and lower sheets. Thus, by increasing the length of the struts, the load-supporting capability of a panel will be increased. In addition, the strength of a panel is dependent upon the number of struts and amount of contact area between the struts and the undersurface of the upper sheet.

While the preferred embodiment of the Graham panel has struts formed integral with only two edges of each opening, alternate embodiments of the invention have struts formed integral with all four edges of the openings. However, in all cases no waste occurs and all of the material which is cut and bent in the formation of the openings is utilized.

The edge of the Graham panel is constructed such that an upper bracing flange is formed by bending the edges of the upper sheet toward the lower sheet, and, at the same time, a lower bracing flange is formed by bending the edges of the lower sheet toward the upper sheet. The patent drawings show (see Fig. 5 appended hereto) that the upper bracing flange fits inside of and, for purposes of rigidity and strength, is welded to the lower bracing flange. Finally, the terminal portion of the lower bracing flange is bent outwardly and upwardly to form a vertical rib extending about the periphery of the panel and spaced slightly from the upper bracing flange. In the instances where a finishing material is applied to the upper sheet, a channel-shaped finishing material can be mounted upon this projecting rib.

The desired goals of the patented invention, as expressed in the patent specification, include the provision of: (1) a structural panel of minimum thickness relative to load-sustaining area and having the capability of supporting substantial concentrated loads in comparison with the weight of such a panel, (2) a plurality of different patterns of struts cut from the lower sheet, and (3) continuous edge flanges on both upper and lower sheets connected together to provide stiffening of the edges of the panel, and, as well, to provide finished surfaces for the edges of the panel.

The Patent Claims

Claim 5 of the Graham patent reads:

5. A rigid metallic floor panel constructed to be supported in horizontal operative position at the edges or corners and sustain heavy floor loads without appreciable deflection, said panel comprising in combination,
a pair of substantially flat metal sheets arranged in superimposed vertically spaced relationship, the upper of said sheets being rigid and imperforate to bear and distribute loads supported by said panel and the lower sheet having a checkerboard grid comprising a first set of parallel, straight strips extending longitudinally substantially from edge to edge of said sheet
and a second similar set of parallel, straight strips extending transversely to said first set substantially from edge to edge of said sheet, said strips providing evenly arranged, parallel rows of openings therebetween,
strut members integral with certain edges of said grid strips and extending upwardly therefrom into firm engagement with the lower surface of the said upper sheet and fixed thereto to transmit load forces from said upper sheet to said lower tension-sustaining sheet,
the peripheral edges of at least one of said sheets being bent at right angles to the plane of said sheet to form a marginal bracing flange around all edges of said sheet and connected to the periphery of the other sheet,
the terminal edge of said bracing flange being bent out of the plane of said flange and arranged in conjunction with the periphery of the other sheet to form a narrow Iongitudinal rib extending around all sides of said panel,
a wear surface layer secured to the top of said other sheet,
and a channel-shaped finishing strip receiving said longitudinal rib within the channel thereof to secure said strip to said panel,
said finishing strip closely surrounding the edges of said wear surface layer and having its top surface flush with said layer.

Claim 6, which is dependent upon claim 5, reads:

6. The floor panel according to claim 5 in which said one of said panels having its peripheral edges bent at right angles to the plane thereof is the lower one having the checkerboard grid.

Infringement

Plaintiff contends that Severn has manufactured and sold elevated flooring to the Government within six years immediately preceding the filing of this suit, which allegedly infringes its patent. The Severn panel includes an upper imperforate metal sheet upon which is secured a finishing material and a lower perforate metal sheet spaced vertically from the upper sheet by metal struts. Four essentially triangular-shaped struts per square opening are formed by cutting and removing sections of metal from the lower sheet and bending the remaining metal toward the upper sheet. As a result of this operation, the lower sheet is made up of parallel rows and columns of square openings separated by parallel rows and columns of tension strips remaining in the plane of the lower sheet. The edge construction of the Severn panel is formed by first bending the peripheral edges of the lower sheet upwardly into a vertical bracing flange. The terminal portions of the vertical bracing flange are then bent outwardly from the interior portion of the panel flush with the under-surface of the upper sheet and attached thereto. In this manner, a peripheral horizontal lip or flange is formed. A channel-shaped finishing strip then is inserted over this horizontal flange so as to lie flush with the finishing material on the upper sheet.

In considering the question of infringement, it is necessary to initially establish the scope and breadth of the patent claims allegedly violated. In this particular instance, it is therefore necessary to establish the scope of claims 5 and 6 of the Graham patent so as to determine if the claims can be “read” on the accused Severn panel. A claim must be read in light of the specification. Seymour v. Osborne, 78 U.S. 516, 547, 11 Wall. 516, 20 L.Ed. 33 (1870); United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). Its scope, however, is not limited only to those specific embodiments actually disclosed, but is expanded under the doctrine of equivalents to include embodiments that perform substantially the same function in substantially the same way to produce substantially the same result as the disclosed invention. Graver Tank & Mfg. Co. v. Linde, 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950).

The range of equivalents to be accorded will depend upon whether the invention is a pioneer invention or merely a small advance over the prior art. If the former, a broad range of equivalents applies commensurate with the patentee’s contribution to the art. McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 401 (10th Cir. 1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966); Priebe & Sons Co. v. Hunt, 188 F.2d 880, 881 (8th Cir. 1951), appeal dismissed per stipulation, 342 U.S. 801, 72 S.Ct. 92, 96 L.Ed. 607 (1951). If the latter, only a narrow range of equivalents applies. Soundscriber Corp. v. United States, 360 F.2d 954, 961, 175 Ct.Cl. 644, 652 (1966); Trusty v. United States, 132 F.Supp. 340, 344, 132 Ct.Cl. 192, 199-201 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 453, 100 L. Ed. 846 (1956); Richardson v. United States, 72 Ct.Cl. 51, 65 (1930), cert. denied, 285 U.S. 543, 52 S.Ct. 393, 76 L. Ed. 935 (1931). Furthermore, the range of equivalents may be limited under the doctrine of file wrapper estoppel if the patentee has narrowed his claims in order to avoid the prior art. Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Or, as this court has said in connection with an earlier consideration of these doctrines, “The doctrine of equivalence is subservient to file wrapper estoppel.” Autogiro Co. of America v. United States, 384 F.2d 391, 400, 181 Ct.Cl. 55, 67 (1967).

From a review of the prosecution history of the Graham application while it was pending in the Patent Office, and also taking into consideration the prior art references introduced during trial that were not considered by the Patent Office, it is concluded that the Graham patent is not a pioneer patent. Therefore, the claims of the Graham patent are not entitled to a broad full range of equivalents.

Establishing the correct scope of claims 5 and 6 of the Graham patent is of particular necessity in this case because of the reasons which defendants advance for their position of noninfringement. First, they contend, under the doctrine of file wrapper estoppel and also because the Graham panel is not a pioneer invention, that the recitation “strut members integral with certain edges of said grid strips” (emphasis added) in the claims must be narrowly construed to cover only those panels having strut members integral with less than all edges of the grid openings. Thus, they argue, since the Severn panel has strut members formed integrally with all edges of the grid openings, the limitations of the claims are avoided. This contention was thoroughly treated earlier in the commissioner’s opinion on defendants’ motion for summary judgment, Tate Engineering, Inc., supra, 166 USPQ at 333. There it was held that, in view of the specification and file history of the Graham patent, claims 5 and 6 are not restricted to a structure having less than four struts per grid opening. Since no additional evidence was presented at trial on this point, and since it is believed that our earlier holding was correct, it is concluded that claims 5 and 6 cover panels having four struts per opening. Therefore, the strut construction of the Severn panel is found to fall within the scope of the above-quoted language of claims 5 and 6.

Defendants next urge that the recitation:

the terminal edge of said bracing flange being bent out of the plane of said flange and arranged in conjunction with the periphery of the other sheet to form a narrow longitudinal rib extending around all sides of said panel,

found in the claims at issue, when construed in light of the edge structure disclosed by the Graham patent, does not cover the Severn edge structure. For reasons which are explained in more detail hereinafter in connection with the discussion and treatment of the validity of the Graham patent, it is concluded that if this claim recitation is construed narrowly enough to avoid invalidity of the claims, then the claims are not infringed by the accused edge structure. International Glass Co. v. United States, 159 USPQ 434, 442 (1968), aff’d per curiam, 408 F.2d 395, 405, 187 Ct.Cl. 376, 394 (1969); Farrell Marine Devices, Inc. v. United States, 152 USPQ 328, 329 (1966), aff’d per curiam, 377 F.2d 560, 561, 179 Ct.Cl. 790, 792-793 (1967).

This court has consistently avoided a broad construction of claims which would legally render them invalid. Instead, a narrow construction of patent claims, “so as to secure to the patentee the just fruits of his true invention,” has been resorted to. Dominion Magnesium Ltd. v. United States, 320 F.2d 388, 394, 162 Ct.Cl. 240, 249 (1963); International Glass Co., supra.

Validity

Defendants contend that claims 5 and 6 are invalid under 35 U.S.C. § 112 because they are indefinite. On the basis of the above-detailed consideration of the claims at bar, this contention can be quickly disposed of, and it is found that the claims are definite and comply with all the requirements of 35 U.S.C. § 112.

Defendants next urge that claims 5 and 6 are invalid under 35 U.S.C. § 102(a) as being anticipated by U.S. Patent 3,196,763 (hereinafter the “ ’763 Rushton" patent), which is described in considerable detail in finding 17. (See appendix.) The ’763 patent was not considered by the Patent Office during examination of the Graham patent application. This patent basically discloses a two-sheet metal panel that can be supported in an elevated position by pedestal mounts at its corners. The panel consists of an imperforate metal top sheet that is capable of having a finishing material, such as tile or linoleum, secured to its upper surface. The bottom metal sheet is formed, by a deep drawing operation, into a truss pan that consists of parallel rows and columns of inverted cups or pedestals. The metal between the cups is not displaced or disturbed by the drawing operation, but remains in the plane of the lower sheet to form parallel rows and columns of flat rim areas about the edges of the 'mps. The truss pan thus resembles a familiar cupcake pan. The bottoms of the cups are flat and are positioned flush with and welded to the undersurface of the top sheet.

The peripheral edges of the truss pan are bent at right angles toward the top sheet to form a vertical flange about the panel. Finally, the terminal portion of the vertical flange is bent outwardly from the interior portion of the truss pan, parallel to and flush with the undersurface of the top sheet. This portion then is spot welded to the undersurface of the top sheet to form a horizontal lip or flange about the periphery of the panel.

Defendants contend that claims 5 and 6 of the Graham patent are anticipated, in accordance with the provisions of 35 U.S.C. § 102(a), by the disclosure of the ’763 patent. To anticipate, a prior art reference must disclose each and every element of a claimed invention, or its equivalent, and the element must function in substantially the same way to produce substantially the same result. Palmer v. United States, 163 USPQ 250, 254, aff’d per curiam, 423 F.2d 316, 321, 191 Ct.Cl. 346, 354 (1970), cert. denied, 400 U.S. 951, 91 S.Ct. 242, 27 L.Ed.2d 258.

While there are similarities in overall appearance and function between the Graham and Rushton ’763 panels there is not the necessary identity of structure, purpose and result which is required to make out an anticipation within the meaning of 35 U.S.C. § 102. Straussler v. United States, 339 F.2d 670, 168 Ct.Cl. 852 (1964). Detailed differences between the ’763 Rushton patent and the Graham invention have been pointed out in finding 17. It is only necessary to here point out that the ’763 Rushton patent does not disclose “evenly arranged, parallel rows of openings” in the lower sheet, “a channel-shaped finishing strip” nor “a wear surface layer secured to the top of [the upper sheet] ” as called for by claims 5 and 6. These missing claimed elements prevent the Rushton patent from being an anticipation of the Graham patent within the meaning of section 102(a). Furthermore, no single reference cited by the Patent Office, or defendants, is found to disclose, as is necessary to make out a section 102(a) anticipation, all of the elements of claims 5 and 6.

Defendants also question whether claims 5 and 6 meet the statutory standards set forth in 35 U.S.C. § 103. Title 35 U.S.C. § 103 requires that in order for a patent to be granted on an invention, the invention must not be obvious to one of ordinary skill in the art at the time it was made. To establish if claims 5 and 6 define an invention that is obvious within the meaning of 35 U. S.C. § 103 requires a factual analysis of (1) the scope and content of the prior art, (2) the differences between the prior art and the claims in issue and (3) the level of skill in the pertinent art. Secondary considerations such as commercial success, satisfying long-felt need and failure of others may have relevance. Graham, supra; Palmer, supra; Martin-Marietta Corp. v. United States, 373 F.2d 972, 973, 179 Ct.Cl. 70, 72 (1967).

Defendants, in challenging the validity of claims 5 and 6 under 35 U.S.C. § 103, rely primarily on the ’763 Rushton patent, U.S. Patent 3,008,551 (hereinafter referred to as the “Cole” patent), and a brochure published by Washington Aluminum Co. (hereinafter referred to as “WACO”), a competitior of plaintiff in the elevated flooring business. The WACO reference and the ’763 Rushton patent were not cited by the patent examiner during prosecution of the patent application.

Defendants contend, inter alia, that if claims 5 and 6 of the Graham patent are construed broadly to read upon the accused Severn panel, they are invalid. Defendants particularly argue that the prior art references disclose all of the broadly construed elements of the claims, and thus the subject matter of claims 5 and 6, taken as a whole, would have been obvious to a person of ordinary skill in the panel art at the time that plaintiff’s panel was made.

The ’763 Rushton patent has already been briefly described in connection with defendants’ arguments of patent invalidity under 35 U.S.C. § 102. Defendants, in connection with their § 103 defense, argue that any difference between the patented panel and the prior art ’763 Rushton panel would have been obvious, at the time of the making of the Graham panel, to a person skilled in the prior art.

For example, defendants point out that the prior art ’763 panel does not have struts that are formed, as is the ease with the Graham panel, by cutting and bending material from the lower sheet. However, they contend that the upstanding pedestals of the ’763 patent serve the same function as the Graham struts, and can be replaced by struts such as those shown in the Cole patent. As explained in more detail in finding 15, the Cole patent teaches forming a metal panel having an imperforate upper sheet and a perforate lower sheet rigidly separated by struts. The struts are formed by incisions, and; after shaping, are attached to the undersurface of the upper sheet. There is no doubt that the Cole patent specifically addressed the problem of inherent depth limitations on drawn panels, such as the ’763 Rushton panel, and the following statement shows Cole’s appreciation of the advantages of a panel which is formed by cutting and drawing over one formed by merely a drawing process:

A further object of the invention is to monolithieally fabricate a core panel that is partly split and formed and partly drawn in such a manner as to permit a much greater panel depth than is possible to provide with rigidized cores which are dependent upon the maximum limits of the drawing ability of the metal for their maximum panel depths.

Plaintiff would brush aside defendants’ arguments relating to the ’763 Rushton and Cole patents and the WACO panel by pointing out that the edge construction called for by the Graham claims is not found in any of the prior art references. Indeed, the Cole patent does not show nor does it disclose the use of any type of edge construction. The WACO panel does disclose an edge structure. The edge construction of the two-sheet WACO panel is formed by first bending the periphery of the lower sheet toward the upper sheet. The terminal edges are then bent flush with the undersurface of the upper sheet to form in conjunction with the edges of the upper sheet, a horizontal lip or flange extending about the perimeter of the panel. Finally, the ends of the horizontal flange are bent upward at right angles into a vertical rib spaced slightly from the upper sheet and extending about the panel perimeter. A finishing strip can be secured to the top and inner surfaces of the vertical rib. However, due to inadequate strength in the horizontal flanges, the WACO panel was not capable of supporting heavy loads with only pedestal supports at each corner. Instead, the WACO panel was intended to be used with “stringers.” Stringers consist of horizontal support beams positioned under the horizontal edge flange of the panel so as to enable the panel to support heavy loads.

Plaintiff argues that its edge construction adds the necessary strength and rigidity to enable its panel to be supported in an elevated position by corner pedestal amounts. Moreover, plaintiff urges that none of the prior art panels, including the commercial form of the Rushton panel, can be satisfactorily supported by corner pedestal mounts. On the other hand, plaintiff points out that:

* * * both the patented and accused panels employed ribs as defined in the claims in combination with other structure to produce panels which were capable of support only at their corners * * *.

Plaintiff thus appears to be arguing that the claims of the Graham patent, for purposes of establishing infringement, cover panels having narrow, strength-reinforcing edge flanges or ribs, such as those employed on the Graham and accused Severn panels, but, in order to avoid invalidity, that the same claims do not read upon panels having somewhat wider, relatively weak edge flanges such as the prior art WACO and Rushton panels.

Plaintiff’s carefully reasoned argument is untenable for the following reasons: first, the prior art ’763 Rushton patent specifically states that the Rush-ton panels “can be supported by pedestal mounts at their corners”; second, the corner supports for the accused Severn panel are not placed under the narrow edge flange, but are placed under the outer corners of the tension strips in the lower sheet. Consequently, the Severn panel is not supported by its narrow edge flange. While the narrow Severn edge flange may be better able to resist vertical forces applied to the edges of the panel than the somewhat wider Rushton edge flange, this fact is completely unrelated and irrelevant to plaintiff’s claim that a narrow edge flange enables a panel to be supported by corner pedestal mounts, while a wide edge flange does not enable a panel to be so supported.

Defendants further point out that the horizontal edge flange of the ’763 Rush-ton patent is structurally identical to the horizontal edge flange of the Severn panel (see the drawing appended hereto), except that the former appears to be wider than the latter. Defendants then argue that a patent claim cannot be construed broadly for the purpose of establishing infringement and, at the same time, narrowly for the purpose of avoiding the prior art. Dominion Magnesium Ltd., supra; International Glass Co., supra. It is, therefore, necessary to determine whether claims 5 and 6, when broadly construed to read upon the accused Severn panel for the purpose of infringement, will not also read upon the prior art panels.

While it is absolutely essential to guard against a piecemeal reconstruction of the Graham invention by using the Graham patent as a blueprint, in this case the testimony of defendants’ expert greatly decreases the chances of such a hindsight reconstruction from happening. Based upon the testimony of defendants’ expert, and, as well, on the clear teaching of the prior art patents and the file history of the patent application, it appears to be a logical and obvious expedient to replace the drawn pedestals of the ’763 Rushton panel by struts such as those shown in the Cole patent which are formed by incisions made in the lower sheet.

Further, to one of ordinary skill in the elevated flooring art, it would be an obvious design expedient to mount a “channel-shaped” finishing strip, such as shown in the WACO panel, on the Rushton floor panel. Thus, the prior art discloses all of the broadly construed elements, or their equivalents, and the manner in which to combine the elements to form the structure defined by claims 5 and 6. Accordingly, it is concluded that claims 5 and 6 of the Graham patent contain limitations that must be narrowly construed to avoid reading on the prior art panels. Particularly, the limitation relating to the edge construction of the Graham panel is found to be limited to the structure shown in the patent drawings or reasonable equivalents thereof. In conclusion, it is specifically found that the claims cannot be read broadly to cover the accused Severn panel, for if the claims are broadly construed to read on the Severn panel, they would be invalid and obvious, within the meaning of 35 U.S.C. § 103, in view of the teachings of the ’763 Rushton and Cole patents and the WACO panel.

Fraud on the Patent Office

Defendants also vigorously assert that claims 5 and 6 should be held invalid and/or unenforceable by reason of plaintiff’s failure to disclose to the Patent Office during prosecution of the Graham patent the prior art WACO panel of which it had knowledge. In essence, defendants contend that plaintiff has perpetrated a fraud on the Patent Office, or is guilty of unclean hands in its dealings with the Patent Office.

Based on the finding that claims 5 and 6 are not infringed by defendants’ accused structure if the claims are narrowly construed to avoid invalidity, it becomes merely academic, and totally unnecessary, to also hold that plaintiff’s patent is unenforceable because of plaintiff’s fraud on the Patent Office.

Defendants, however, also contend that plaintiff’s patent should be found to be invalid because of plaintiff’s failure to call the prior art WACO panel to the examiner’s attention during the pendency of the application in the Patent Office. In support of its position, plaintiff relies on Norton v. Curtiss, 433 F.2d 779, 57 CCPA 1384 (1970), and Monsanto Co. v. Rohm & Haas Co., 312 F.Supp. 778 (E.D.Pa.1970).

As discussed hereinabove, the WACO panel was used, in conjunction with other prior art, to determine if the Graham invention would have been obvious, within the meaning of 35 U.S.C. § 103, to one of ordinary skill in the art. The WACO panel is clearly not an anticipation of plaintiff’s invention within the meaning of 35 U.S.C. § 102. Accordingly, this case is distinguishable from both the Norton and Monsanto cases, supra, and all other cases, where the information withheld from the Patent Office was found to be of such a nature that if it had been disclosed the patent would not have issued. Certainly, the information allegedly withheld, the WACO panel, is not so material that one can conclude that the Patent Office would have refused to issue plaintiff’s patent application if it had been aware of it. It is therefore concluded that defendants have failed to make out a case of fraud with the clarity and certainty required. See McCullough Tool Co., supra, at 394-395 (343 F.2d).

APPENDIX

      . § 102. Conditions for patentability; novelty and, loss of right to patents.

      A person shall be entitled to a patent unless—
      (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, * * *.

      . § 103. Conditions for patentability; non-obvious subject matter.

      A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.