author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael J. FINK and John A. Geders, Defendants-Appellants.
    No. 73-3966.
    " United States Court of Appeals, Fifth Circuit.
    Oct. 7, 1974.
    Rehearings Denied Dec. 6, 1974.

      Ralph W. Rinehart, Tampa, Fla., for defendants-appellants.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Oscar Blasingame, Anthony J. LaSpada, Asst. U. S. Attys., Tampa, Fla., Harrison T. Slaughter, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appel-lee.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge for the Second Circuit, sitting by designation.

   MOORE, Circuit Judge:

This is an appeal by John Geders and Michael Fink from a judgment of conviction by the United States District Court for the Middle District of Florida, the Hon. Ben Krentzman, Judge, entered pursuant to a jury verdict. Appellants were convicted on all three counts of an indictment charging them with: (a) conspiracy to import approximately one thousand pounds of marijuana into the United States in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 371; (b) illegal importation of said marijuana into the United States; and (c) possession of marijuana in violation of 21 U.S.C. § 841(a)(1).

The government alleged that appellants Geders and Fink conspired with seven others, Rufus Randolph Surles, Jr., James M. Mahoney, Randy Kilgore, Fred Fink, Steven Patrick, Tom Wad-dington (now deceased) and David Butler, to smuggle marijuana into this country by air from Columbia, South America, via Inagua, The Bahama Islands. According to the prosecution, the plot germinated in September 1972 when John Geders, Randy Kilgore and Michael Fink concluded that together they possessed the wherewithal to smuggle a large quantity of marijuana into this country. Geders agreed to provide a South American “contact” or drug supply while Fink promised to find financial backing for the venture. Randy Kilgore assured the others that he would make arrangements with a knowledga-ble and trustworthy pilot who would be able and willing to fly the cargo of drugs into the United States undetected.

Michael Fink made good on his promise. He introduced James M. Mahoney and Tom Waddington to the scheme, and they agreed to supply the necessary capital. After a few false starts, Randy Kilgore found David Butler, a pilot with access to a Piper Aztec aircraft, who was willing to make the trip to Colombia for a $10,000 fee plus expenses and fifty pounds of marijuana. Additional conspirators also emerged. Rufus Randolph Surles, Jr., agreed to provide a trailer, of the type normally used by vacationers on camping trips, to which the marijuana could be transferred once it was landed. Steven Patrick agreed to drive the camping trailer.

In David Butler the other conspirators found not only an able pilot but also a man who seemed well versed in the lore of the smuggling business. On several occasions. Butler alluded to his prior experience in the field. He advised his employers to land the marijuana-laden plane at Lehigh Acres, an abandoned housing development near Tampa, Florida, and made other helpful suggestions with respect to the details of the .illegal importation. He suggested reentry into the United States via the Bahama Islands where he claimed to have the customs officials bribed; he suggested that the other conspirators, when meeting the plane at the time and place of unloading, should be equipped with walkie-talkies for communication with the plane and should carry roofing nails to strew in the path of would-be pursuers.

Early Sunday morning, November 26, 1972, David Butler, John Geders and Jim Mahoney boarded Butler’s rented plane and took off for Colombia, South America. On the return trip, after stopping at Inagua, the plane landed at the pre-arranged location near Tampa. The marijuana was transferred from the plane to the camper which left the landing site escorted by Randy Kilgore and Michael Fink. The caravan did not get far, however, because federal agents soon closed in. Steven Patrick, the driver of the camping trailer filled with marijuana, was immediately apprehended. Kilgore and Fink eluded immediate capture but were eventually arrested.

It seems that this well orchestrated scheme never really had a chance for success. The authorities had been informed of the group’s plans far in advance by the pilot, David Butler. For his help in thwarting the smuggling attempt, the United States Customs Service agreed to permit Butler to retain the fee paid to him by the other conspirators.

The trial of the conspirators began on October 9, 1973. Prior thereto Randy Kilgore and Steven Patrick pleaded guilty to a single conspiracy count and agreed to testify for the prosecution. Although David Butler was indicted along with the others, the government moved to dismiss the charges against him and the court granted the motion.

As their primary defense at trial, appellants Geders and Fink argued that they had been entrapped by Butler, the government informer. Not only did he assist them in the furtherance of the importation scheme but, according to appellants, Butler induced them to commit the crime and had been paid to do so by the government who hired Butler as a sort of modern day bounty hunter. As a matter of fact, appellant Geders who was traveling in the plane with Butler on the trip from South America, claims that when the plane landed in Inagua before its reentry into the United States he was informed by a native that Butler appeared to be working with the police. After the plane was again in the air, Geders tried to persuade Butler to slow the plane down so that he and Mahoney could dump the marijuana into the sea. Butler ridiculed Geders’ apprehensions and refused to permit anyone to unload the contraband until designated rendezvous was made.

•The government, on the other hand, insisted that Butler had, at all times, merely assisted a plot which had begun before he entered the picture, and that anything he did which appeared to further the conspiracy was done to gain the confidence of the conspirators, a permissible objective in undercover police work.

The entrapment defense was presented to the jury which, nevertheless, returned a guilty verdict.

On this appeal appellants urge that fourteen separate errors were made in the court below which singly or together compel reversal of the convictions rendered by the jury. Many of the claims raised by the appellants are frivolous and warrant no discussion in this court. Efficiency demands that many of the remaining questions be treated in combination.

I.

■Appellants have broadly attacked the district court’s Handling of the entrapment issue. They argue: that the government should have been prohibited from introducing unflattering evidence with respect to defendant Geders’ reputation; that the defense was unfairly barred from either ascertaining the events upon which this reputation was based or introducing rebuttal character testimony after the prosecution had attacked defendant Geders’ reputation; and that the government’s participation in the smuggling enterprise through its avowed agent, David Butler, was so pervasive and so critical to the consummation of the crime that any prosecution of the appellants is unconscionable.

Throughout the trial appellants placed substantial reliance on an entrapment defense, i. e., on the argument that they were reluctant participants in a criminal scheme engineered by a government agent who, for reasons of financial gain, had employed a “tremendous sales pitch” to overcome appellants’ natural antipathy toward the commission of illegal acts.

The purpose of the entrapment defense is to inhibit the use of pressure tactics by the government which cause the commission of an offense by one who is not ordinarily disposed to commit it. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1939). Naturally, the defense is not readily available to one who has evidenced an inclination to commit the type of offense with which he is charged. The government, therefore, once a defendant indicates his reliance on the entrapment defense, is permitted to tender evidence on the defendant’s predisposition to commit the type of crime charged.

In this case the prosecution introduced Charles Hudson, a federal Narcotics Agent, who testified that he had talked to confidential informants and had examined intelligence files in the Hillsborough County, Florida, Sheriff’s Office and had thereby ascertained that defendant Geders had a reputation in his community as a drug smuggler and distributor. When the defense asked to see the files on which the witness’ testimony was based or to be given reference to the specific events contained therein, it was rebuffed by the court which admonished the defense that it would be contrary to the rules of evidence for the prosecution to admit evidence of the specific acts of defendant Geders which gave rise to his unsavory reputation.

It has long been the rule in this Circuit that “reputation” or “character” evidence can be introduced by the government to rebut an entrapment defense. In fact, it has been specifically held that reputation evidence of the sort introduced in this trial is permissible.

We have repeatedly held that once the defense of entrapment is raised the government may introduce hearsay testimony concerning the defendant’s predisposition to commit the crime and the reasonableness of the conduct by the government agents. Washington v. United States, 5 Cir., 1960, 275 F.2d 687; Rocha v. United States, 5 Cir., 1968, 401 F.2d 529; Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. Moreover, in the case of Thompson v. United States, supra, this court specifically approved the use of reputation evidence in the form of testimony which the witness gleaned from the reports of a local police department.

United States v. Robinson, 446 F.2d 562, 563-564 (5th Cir. 1971).

Not only was the trial court correct in admitting Agent Hudson’s testimony, it was also well within established principles when it refused to permit the defense to question the witness about the specific events or activities of defendant Geders that gave rise to his adverse public image. Character reputation is established not by what one knows to be fact concerning another, but by what one has heard in the community about the person in question. Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Thus, evidence of specific acts or conduct is not admissible to prove or disprove the reputation that a defendant holds in his community. Stewart v. United States, 70 App.D.C. 101, 104 F.2d 234 (1939).

Defendant Geders also argues that after this evidence with respect to his reputation was introduced by the prosecution, he was forbidden from rebutting it, or at least attenuating its impact, by introducing favorable reputation evidence. In fact, all that actually happened was that the court refused to grant the defendant a continuance, after Agent Hudson testified, so that he might search for character witnesses of his own. Defendant Geders argued that he needed the continuance because Agent Hudson’s testimony was of an unexpected and surprising nature.

It is well settled that once a defendant indicates his intention to rely on an intrapment defense, the prosecution can be expected to prove, if it can, that the defendant had a predisposition to commit the type of crime of which he stands accused. In this Circuit predisposition can be demonstrated by evidence that in his community the defendant had the reputation of one who committed a particular type of illegal act. Such evidence can by no stretch of the imagination be considered surprising or unexpected.

In view of the prevailing case law, Agent Hudson’s testimony did not introduce a new issue and the decision whether or not to grant a continuance to the defense under the circumstances was well within the discretion of the trial judge. He did not abuse that discretion.

Finally, appellants argue that, all things considered, the government’s conduct was so unconscionable that the prosecution ought to be dismissed. In making this argument appellants put great emphasis on the testimony of John Geders who stated that on several occasions subsequent to leaving the Bahamas on their return to this country, he and co-defendant James Mahoney attempted to persuade Butler, the police agent and pilot, to slow down so that they might jettison their illicit cargo. According to Geders, Butler refused. Thus, as the defense tells it, the defendants, through Geders and Mahoney, had renounced their criminal enterprise and were attempting to disassociate themselves from it.

This is, of course, simply another way of saying that the defendants were entrapped by the government into the commission of the crimes charged. This argument had already been presented to the jury with great force and we see no reason to interfere with the jury’s evaluation of it — something that we could do only if we found that the jury had acted upon insufficient evidence or improper instructions. Neither ground is present here. The jury was undoubtedly persuaded by the uncontested fact that once the plane landed alj^the defendants present, including Geders, took part in transferring the cargo of marijuana to the waiting camper. This course of action seems completely inconsistent with defendant Geders’ tale of renunciation and entrapment.

II.

Appellants’ second major contention is that their defense efforts were hamstrung by the trial court’s refusal to afford them its assistance in their attempts to obtain adequate pre-trial discovery. On numerous occasions the defendants asked the court to order various prosecution witnesses to submit themselves for deposition or, at the very least, to order these witnesses to discuss the facts of the ease with the defense attorneys. Their pleas were consistently and, according to appellants, unfairly rebuffed. Appellants argue that the court’s refusal to compel discovery left them “deaf, dumb and blind, and totally unable to formulate a proper defense .’’ and constituted a denial of fundamental fairness.

Appellants concede that there is no provision in the Federal Rules of Criminal Procedure, nor anywhere else, that specifically directs the trial court to order prosecution witnesses to give depositions to the defense or to submit themselves to pre-trial oral interrogation at the hands of defense counsel. Nevertheless, appellants argue that such action by the trial court, which is not inconsistent with those rules, is vital to the maintenance of procedural fairness as that principle is embodied in the Federal Constitution.

The constitutional status of the right of a criminal defendant to depose witnesses was settled, at least in this Circuit, in United States v. Hancock, 441 F.2d 1285, 1286-1287 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63 (1971), where Chief Judge Brown wrote:

Initially Hancock [the defendant] alleges error of constitutional dimensions by asserting that the Trial Court’s denial of his motions for a list of government witnesses and a discovery order for the purpose of taking their depositions violated his rights under the Fifth and Sixth Amendments. . . . [W]ith the scope of discovery in criminal prosecutions narrower than it is in civil cases, Campbell v. Eastland, 5 Cir., 1962, 307 F.2d 478, 487, cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502, and in the absence of a rule which permits the taking of depositions of witnesses who will appear at the trial of a criminal case, we cannot say at this juncture that such a procedure has yet been elevated to a constitutional plane even though some states have seen fit to adopt it.

(Emphasis supplied).

Moreover, appellants’ arguments notwithstanding, at least one Circuit Court of Appeals has held that Rule 16(b) of the Federal Rules of Criminal Procedure forbids a trial court from ordering those who will serve as witnesses for the prosecution to submit to defense deposition. See United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970).

The general view, however, is that, with the exception of capital cases, the question of the extent of defense discovery, at least that discovery which requires judicial assistance, is a matter within the discretion of the trial court. United States v. Richter, 488 F.2d 170, 175 (9th Cir. 1973). That discretion is not easily abused. “Denial of a motion to take a deposition is reviewable on appeal from a judgment of conviction but defendant has a heavy burden to show an abuse of discretion by the trial court, and no defendant thus far has prevailed on such an appeal.” C. Wright, I Federal Practice and Procedure § 242, at 482 (1969).

In exercising its discretion the trial court must weigh a variety of factors. For instance, it must balance the need of the accused for the depositions requested against the possibility that prospective witnesses might be harassed or intimidated as a result of their submission to the discovery process. United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972).

In this case there was clear evidence that the defendants were capable of harassment. One of the conspirators, who at trial testified as a witness for the prosecution, stated that appellant Geders carried a gun during the smuggling operation which he intended to use against David Butler if he sensed that Butler intended a double-cross. Furthermore, that same witness, Randy Kilgore, expressed his fear that his decision to testify for the prosecution might mark him or the members of his family for some act of revenge by the other conspirators. Under the circumstances we cannot say that the trial judge abused his discretion when he refused to order prosecution witnesses to submit themselves to defense deposition or to order them to discuss the case with counsel for the defense.

Finally, appellants claim that reversible error resulted from the court’s refusal to interfere with the policy of the United States Customs Service which prohibits its agents from discussing the facts of pending cases with defense counsel without the permission of the United States Attorney.

Appellants’ argument is well taken to the extent that tradition forbids the prosecution from ordering its witnesses to refuse to answer pre-trial inquiries made by the defense. Canon 39 of the old Canons of Professional Ethics of the American Bar Association and Canon 10 of the Code of Trial Lawyers state that: “A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party.” However, there is no evidence that the trial court failed to apply the law in this case. When defense counsel reported to the court that Federal Agents Buchanan and Christenberry refused to speak with the defense without the permission of the United States Attorney, Mr. Blasin-game, the following colloquy ensued:

Mr. Rinehart: Right. I feel that at this time we should be able to talk to these witnesses, and that they should be instructed that they should talk to us.
The Court: . . .You have got a right to talk to any witness who wants to talk to you.
You can talk to any of them. I will say this you can talk to anybody, period.
When I say “period,” I mean there is no limitation.
And,, Mr. Blasingame, you just stay away.

T. 910-912. (Emphasis supplied).

Appellants’ contentions with respect to pre-trial discovery have been based, by and large, on some unfair characterizations of federal criminal procedure. Appellants have stated both to this court and to the court below that their inability to depose prosecution witnesses completely eviscerated their defense because they were never adequately informed of the charges against them and because they could not effectively employ the invaluable tool of cross-examination.

Appellants rightly point out that “[tjhere is a tremendous difference in the words stating a crime in an indictment or an information, and the actual facts that a Defendant must meet at the trial of the cause.” Appellants’ Brief, at 8. However, they go too far when they conclude that this observation compels the taking of depositions. Appellants are ignoring the provision, made in Rule 7(f) of the Federal Rules of Criminal Procedure, for the issuance of a Bill of Particulars, a provision which was incorporated especially to close the information gap that may exist between the facts contained in the indictment and the factual issues which mature at trial.

Appellants also argue that pre-trial depositions are imperative if the defense is to utilize effectively its right to cross-examine the prosecution’s witnesses. Again appellants ignore the fact that the Jencks Act, 18 U.S.C. § 3500, permits them to obtain from the prosecution all material statements made to it by its witnesses for purposes of defense cross-examination.

III.

At one point during the trial, defendant Geders took the stand to testify in his own behalf. After being examined on direct until 4:55 pm, he was tendered for cross-examination. The prosecution moved for a recess at that time in order that cross-examination might be deferred until the following day. The court granted the motion and, after the jury had been withdrawn, it addressed defendant Geders, saying:

Now, Mr. Geders, will you stand up. I direct you not to discuss your testimony in this case with anyone until you are back here tomorrow morning at 9:30 for the purpose of being cross-examined.

Appellants claim that this order deprived defendant Geders of the assistance of counsel for a sixteen hour period at a crucial stage of the trial in violation of his Sixth Amendment rights. Appellants make no claim of actual prejudice accruing from this deprivation; they argue that they do not have to make such a showing and rely on the authority of United States v. Venuto, 182 F.2d 519 (3rd Cir. 1950), which provides:

To deprive an accused defendant and his counsel of the right to consult with each other during an eighteen hour court recess was most certainly deprivation of the defendant’s constitutional right to consult counsel at all stages of the proceeding. We can find no justification for imposing a restriction of silence between accused and counsel during a trial recess. ■ We reject the Government contention that defendant and his counsel must prove affirmatively the exact prejudice produced by this injunction in a federal prosecution .... “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations, as to the amount of prejudice arising from its denial.”

The United States Court of Appeals for the Second Circuit has more recently faced an identical fact situation, however, and it has required the defendant to make some showing of prejudice before the error of the trial court in forbidding lawyer/client consultation for some limited period rises to the status of reversible error.

Leighton’s [the defendant’s] objection to the ruling of the trial court that he could not consult with his attorney during the luncheon recess is framed in terms of the violation of his right to counsel . . . . At no time during, before, or after the recess, did either Leighton or his attorney indicate that they did in fact have something to discuss which might have affected Leighton’s testimony or course of action. Leighton’s attorney did object to the judge’s ruling, but the objection appears to be an attempt to sow reversible error into the record, rather than an effort to indicate to the trial judge that the attorney and client had something to discuss ....

Leighton’s reliance upon United States v. Venuto, 182 F.2d 519 (3 Cir. 1950), is misplaced .... Its [the ruling forbidding attorney/client communication] application to the defendant was quite plainly uncalled for, and we are unable to understand why it was sought or made as to him. We will not, however, reverse the conviction solely on this ground when we can discern no actual harm to the right of effective assistance of counsel, and are convinced that there was none. United States v. Leighton, 386 F.2d 822 (2d Cir. 1967).

Because, like the Second Circuit, “we can discern no actual harm and are convinced that there was none,” we must reject appellants’ contention that defendant Geders’ deprivation of the assistance of counsel constitutes reversible error.

We find all other assignments of error raised by appellants to be without merit. The judgment of the district court is therefore affirmed.

      . Defendant James M. Mahoney was granted a severance and his case was tried separately.

      . 18 U.S.O. § 3432 requires that in capital cases the defendant be furnished a list of the names and addresses of the witnesses to be called by the government. The special status of pre-trial discovery in capital cases is discussed in Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966).


source: Caselaw Access Project

author: RIVES, Circuit Judge:

license: Public Domain

text:
    The GARRETT CORPORATION, Plaintiff-Appellant-Cross-Appellee, v. AMERICAN SAFETY FLIGHT SYSTEMS, INC., Defendant-Appellee-Cross-Appellant.
    No. 73-2476.
    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1974.

      Robert S. Swecker, Washington, D. C., Karl V. Hart, Miami, Fla., for plaintiff-appellant-cross-appellee.
    Woodrow M. Melvin, Jr., Miami, Fla., Guy P. Smith, Los Angeles, Cal., for defendant-appellee-cross-appellant.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   RIVES, Circuit Judge:

This patent infringement suit involves inflatable escape slides intended primarily for use in evacuating passengers from aircraft under emergency conditions. The Garrett Corporation (Garrett) filed a complaint against American Safety Flight Systems, Inc. (American Safety) seeking an injunction and damages for infringement of U.S. Patents numbered 2,765,131 and 3,102,623. American Safety counterclaimed for a declaratory judgment of invalidity and noninfringement'of the Garrett patents. American Safety also contended that this is an “exceptional case” under 35 U.S.C. § 285 and sought an award of attorneys’ fees. The district court concluded that both patents are invalid and also not infringed, but denied the award of attorneys’ fees to American Safety. We affirm as to invalidity of the patents and hence do not reach the issue of infringement.

i

On October 2, 1956, the United States Patent Office issued a patent numbered 2,765,131 to James F. Boyle, the owner of Garrett’s predecessor, Air Cruiser’s Company. This patent, entitled “Inflatable Escape Chute Assembly,” involves a slide intended for use to aid the escape of persons from a grounded aircraft. The objects of the patent are (1) to provide a chute which can be compactly stowed and carried in an aircraft, (2) to overcome the disadvantages associated with the use of hand-held fabric sheets, and (3) to provide an inflatable chute with means for distending its stiffening elements even under low temperature conditions, which preclude the use of carbon dioxide as the distending medium.

The Boyle patent discloses an inflatable structure comprised of a large, middle, closed-end, flexible, inflatable fabric tube and, longitudinally seamed to it and in communication with its interior through holes, a pair of cross-sectionally smaller, stiffening, slideway-defining side tubes. The patent teaches that these tubes when inflated properly are fluid-trussed beams with high resistance to bending strains. The lower end portion of each side tube is of diminishing cross-section and curves back under itself in such a way as to provide for stability of ground contact when the slide is in use. A fabric girt, a girt bar, and brace lines are utilized to secure the upper end of the slide assembly to the airplane or other structure. An aspirator-type inflation device is mounted in the large middle tube at its upper end, and a hose connects the aspirator to a bottle of compressed air. The complete chute assembly, deflated and rolled or folded, is carried in a container. In an emergency, the girt bar is secured, the slide is allowed to unfold, and the inflation system is activated. As compressed air inflates " the tubes, the slide quickly unfolds. Persons may then slide to the ground on the external surface of the large middle tube.

On September 3, 1963, the United States Patent Office issued a patent numbered 3,102,623 to Kenneth N. Schacht and Frank S. Panetta, assignors to Garrett. The Schacht-Panetta patent relates to an escape device which Garrett characterizes as “an improvement on the Boyle invention.”

The patent discloses a slide having a strip of material, such as canvas, forming a slideway surface and two inflatable fabric side tubes secured on the strip of material to form a trough-shaped slide. The slide is supported on two inflatable beams which are held parallel by inflatable top and bottom spacer tubes. According to the specifications, when the supporting structure is inflated, the strip of material is drawn taut to form a “laterally flat and quite rigid slideway surface.” The specifications further state, “Thus the slide-way surface is formed with no sag and, except for a slight bending which may occur due to the weight of a person or cargo sliding on it, forms a smooth surface for the person or cargo.” The entire slide structure is attached to the aircraft or other structure, and is inflated, in a manner similar to the Boyle slide.

II

American Safety urged and continues to urge that the patents are invalid in light of the prior art at the time of the inventions. Particular emphasis is placed upon certain prior art not presented to or considered by the patent office. This attack weakens the presumption of validity which normally attaches to a patent, and requires a court “to scrutinize the patent more closely.” Beckman Instruments, Inc. v. Chemtronics, Inc., 5 Cir. 1970, 439 F.2d 1369.

After a seven-day trial, the district court asked both parties to prepare and submit proposed findings of fact and conclusions of law. The district court then made 63 findings of fact, and con-eluded that the pertinent claims of both patents are invalid and not infringed.

With regard to the Boyle patent, the district court found that Claim 1 was anticipated generally by the prior art, and anticipated specifically by noncit-ed Carpenter U.S. Patent No. 200,694 (1878) and noncited Dixon U.S. Patent No. 2,191,374 (1940). The district court also made a number of findings relating to obviousness, and in summary concluded that,

“At the time of the Boyle invention the differences between the subject matter invented and sought to be patented and the prior art were such that the subject matter as a whole would have then been obvious to a person having ordinary skill in the art to which the subject matter of the Boyle invention pertained.”

Adopting the narrow reading of Boyle urged by American Safety, the district court stated:

“Each of Claims 1, 2, 3 and 4 of the Boyle patent is limited to an escape chute assembly in the use of which an evacuee slides upon the external surface of the inflated slideway structure and none of these claims may be read upon defendant’s slide construction.”

In reaching its conclusion on this matter, the district court relied in part upon the file history of Boyle. According to the district court, in order to distinguish his device from a prior art reference, Boyle “limited his claims to so position an evacuee as to put an evacuee in sliding contact with the external surface of the inflated structure, as opposed to moving within or upon the internal surface of the structure or upon a member suspended from or within an inflated chute.” The district court further held that Garrett’s interpretation of the Boyle claims was not consistent with “the plain meaning of the claims [and] the disclosure of the specifications.”

The district court found that the three claims of the Schacht-Panetta patent are invalid. The district court held that, “Each of the three claims of the Schacht patent reads directly upon, and is fully anticipated by, the disclosure of the noncited Hailstone patent No. 3,070,023.” The district court also indicated at several points in its opinion that the Schacht-Panetta patent was void for obviousness:

“It was well within the skill of a person of ordinary skill in the art prior to the Schacht patent to employ a slideway surface which would be slack, taut, or any combination thereof in a slideway construction, such as the combination of the Canadian and Heyniger patents proposed by the Patent Office Examiner.”
“As evidenced by the British, Canadian and Hailstone patents, supra, it was well within the ken of a person of ordinary skill in the art, prior to December, 1959, to devise an inflatable rectangular tube support structure for an aircraft evacuation slide in which the slideway was provided by a fabic [sic] sheet stretched upon or between the support tubes.”

III

Our examination of the record convinces us that the district court did not err in its conclusions that the Boyle and the Schacht-Panetta patents are invalid as obvious.

A. The Boyle Patent.

Section 103 of Title 35 provides:

“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.”

The Supreme Court outlined in Graham v. John Deere Co., 1966, 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545, the nature of the inquiry required under § 103:

“While the ultimate question of patent validity is one of law, A. & P. Tea Co. v. Supermarket Corp., supra, 340 U.S. [147] at 155, 71 S.Ct. [127] at 131 [95 L.Ed. 162 (1950)], the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonob-viousness, these inquiries may have relevancy.”

In Lear, Inc. v. Adkins, 1969, 395 U.S. 653, 676, 89 S.Ct. 1902, 23 L.Ed.2d 610, the Court referred to the test in Graham as a “demanding standard of invention.” In Anderson’s Black Rock v. Pavement Co., 1969, 396 U.S. 57, 62, 90 S.Ct. 305, 308, 24 L.Ed.2d 258, the Court reiterated the test enunciated in Graham, and emphasized that “ ‘strict observance’ of those requirements is necessary.”

The district court’s findings with regard to the “factual inquiries” demanded by Graham must be reviewed under the clearly erroneous standard of Rule 52(a), F.R.Civ.P. The ultimate issue of obviousness is, however, a question of law, not of fact. In reviewing the district court’s findings of fact and conclusions of law, we 'shall discuss in turn the various factors emphasized in Graham.

We examine first the scope of the prior art. The district court made the following finding:

“At the time of the Boyle invention of the inflatable excape [sic] chute assembly the scope and content of the prior art, to which the subject matter of the Boyle invention pertained, was not confined to means for evacuation of passengers and cargo from the grounded aircraft, such as a rope ladder or a hand-held escape slide or to the patents disclosed by the applicant to, or independently found by the Patent Office Examiner.
“The scope and content of such prior art then embraced inflatable tubes for sundry structures and assemblies, as well as chutes, slides and gangways for the descent, by gravity, of persons and property from a higher to a lower level.”

On this appeal, Garrett does not explicitly contest the district court’s concept of the scope of the prior art. Garrett intimates, however, that the scope of the relevant prior art is more limited than indicated by the district court. Garrett states that “The subject matter of the Boyle patent is directed toward solving the specific problem of evacuating passengers from an aircraft as rapidly as possible,” and that “the prior art did not disclose Boyle’s solution to the problems of evacuating passengers from airplanes.”

Although Boyle may have had the specific problem of escape from aircraft in mind when he developed his slide, we agree with the district court that the scope of the prior art is not limited to devices specifically intended for use on airplanes. The problem of evacuating passengers from a grounded airplane does not differ in any fundamental way from the more general problem of devising a means to allow people or goods to move rapidly from a higher to a lower level. In both eases, an efficient and safe means of transportation is the ultimate objective. Also, to the extent that inflatable tubes were suggested for use in accomplishing this objective, one should consider on the issue of obviousness the prior art concerning inflatable tubes. The district court’s finding on the scope of the relevant art is further supported by the actions of the patent office in not restricting its scrutiny to devices intended for use on airplanes, and by the language of the patent itself stating that “it is also susceptible of being used in other situations calling for an emergency escape chute.”

Turning next to the content of the prior art, we note first the patents cited by the patent office in its proceedings prior to issuing a patent to Boyle. In the first office action, the examiner rejected the original Claim 1 as unpat-entable over Benenato U.S. Patent No. 837,602 (1906) and Luisada Great Britain Patent No. 646,498 (1950). Benena-to discloses a portable, flexible, reinforced tubular chute intended primarily for delivering or loading packages from a higher to a lower level. The patent indicates that the invention could also be used as a fire escape. Luisada discloses an inflatable boat with a plurality of inflatable tubes. The examiner reasoned that “Benenato discloses an escape chute which in view of Luisada it would not require invention to inflate.” The examiner further stated:

“Claims 2 and 3 are rejected as claim 1 and in view of Sumovski wherein the teaching is found of tubes united to resist bending strain. No invention can be seen in proposing to use this type of construction to make the chute of Benenato trough-like as suggested by Figure 1 of Luisada.”

Sumovski U.S. Patent No. 511,472 (1893) relates to various inflatable structures in which a plurality of tubes are arranged in parallel and joined together for strength to resist bending.

In response to the examiner’s initial rejection of his claims, Boyle submitted a number of amended claims. This time, the examiner rejected Claims 1, 2 and 3 “as failing to distinguish patenta-bly and structurally from Schon in view of Bingham.” Schon France Patent No. 433,093 (1911), according to the examiner, “shows an escape chute including a fluid-distensible double walled slide-way structure C, means E for holding one end above the ground on which the submarine rests, and bottles F of compressed air for effecting fluid distension of the structure.” Bingham U. S. Patent No. 2,421,679 (1947) discloses an inflatable boat with a plurality of inflatable tubes.

In response to the second rejection, Boyle further amended Claim 1 to read as it does in the final patent and the patent office then allowed Claims 1, 2 and 3. The patents that were cited by the examiner, but not applied specifically against Claims 1 to 4, were Seely U. S. Patent No. 1,205,033 (1916), which relates to an inflatable life raft designed to be carried in a deflated condition on ships; Hutchinson U.S. Patent No. 2,363,249 (1944), which shows an inflatable protector for parachutists; Manson U.S. Patent No. 2,389,160 (1945), which discloses an airplane troop launching chute, consisting of a rigid metal tube for use while the plane is in flight; and Triggs Great Britain Patent No. 608,672 (1948).

American Safety brought to the attention of the district court a number of prior patents not cited by the patent office examiner. As indicated in Part II of this opinion, the district court attached great importance to these patents, especially Carpenter U.S. Patent No. 200,694 (1878), Dixon U.S. Patent No. 2,191,374 (1940) and Tucker U.S. Patent No. 227,324 (1880). Carpenter discloses a portable fire escape device mounted on a wheeled platform. The patent teaches that an air pump may be used to inflate a long flexible tube. Stiffened by inflation, this tube can be raised to a window of a structure by a support cradle. A bar connected to the upper end of the tube may then be fitted against the inside of the window frame. The tube is then deflated and ropes are wound on a roller to support a covering which overlies the tube. Persons can slide from the window to the ground either between the tube and the covering, or on the exterior of the covering. Dixon discloses a collapsible pneumatic structure. This patent relates to an improved fabric outer cover for inflatable tubes for structures which may be erected or dismantled by inflation or deflation. The invention is said to be applicable to various light portable structures or articles where inflatable tubes can be substituted for wood or metal structures. Tucker discloses a fire escape which utilizes a pair of spaced, inflatable, fluid distensible support beams for the support of a fabric slide-way surface between the beams. Other patents cited by American Safety include Hood U.S. Patent No. 1,964,818 (1934), which discloses collapsible structures with inflatable tubular support members; Ford U.S. Patent No. 2,657,716 (1950); Phane U. S. Patent No. 2,698,020 (1951) and Mau-ney U.S. Patent No. 2,743,510 (1953), all of which show structures with slab-like inflatable members with internal ties for holding the walls close together; and Jahns German Patent No. 887,258 (1953) which relates to the use of inflatable rubber bodies as construction elements.

We next review the differences between the prior art and the claims at issue. The district court made the following finding:

“As the Patent Office Examiner found, during prosecution of the application before the Patent Office, Claims 1, 2 and 3 of ±he Boyle patent are directed to an old combination of elements. The applicant claimed novelty in one of the elements, the inflatable support structure, while keeping the other old elements in the old combination. The recited elements, i. e. ‘means for holding one end of the (chute assembly) at a position in the air’ and ‘means for effecting fluid-distension of said structure’ are old elements found in the prior art.
“Claims 1, 2 and 3 are invalid for claiming old elements in an old combination wherein the old elements perform no new function in the combination.”

As the district court indicates, Boyle seems to include the basic elements present in Carpenter — an inflatable tube including an outer covering over which people or goods may slide, means of inflation, and both means of attachment to a structure and means of stability on the ground. Moreover, Boyle, like Carpenter, is intended for use as an escape slide under emergency conditions.

Garrett in effect acknowledges the lack of any novel elements in the Boyle patent when it argues that “The Boyle invention is a novel combination of elements which may not be individually new, but which cooperate in a synergistic manner to solve the long-existing problem of providing a compact, self-erecting, self-supporting escape slide for aircraft.” Garrett at another point argues that Boyle brought together the elements “in a specific combination wherein the elements cooperated to solve the technical problems of the industry in a unique and efficient manner.”

Next, we must review the level of ordinary skill in the pertinent art. As noted in Blohm & Voss AG v. Prudential-Grace Lines, Inc., 4 Cir. 1973, 489 F.2d 231, 244, this issue is not explicitly resolved in Graham or in the many decisions which have followed. The Fourth Circuit in Blohm & Voss AG commented that,

“The matter seems to be one which does not otherwise easily lend itself to specific articulation. The matter also seems to be necessarily related to the inquiry of the scope and content of the prior art. The inventor who ventures into the art is presumed to know the prior art references. Judge Rich stated it picturesquely when he wrote that the inventor should be imagined as seated in his workshop ‘with the prior art references — which he is presumed to know — hanging on the walls around him. . . . ’ Application of Winslow, 365 F.2d 1017, 1020, 53 CCPA 1574 (1966).” (489 F.2d 244)

In the present case, Garrett claims that the testimony of Dr. Barry G. King and Mack W. Eastburn is particularly relevant on the issue of the level of ordinary skill. Dr. King testified that in the early 1950’s he was the Chairman of a Civil Aeronautics Administration-Civil Aeronautics Board Working Group concerned with evaluating emergency escape exits from airplanes and developing a regulation which would provide reasonable safety for airplane passengers. The district court noted that Dr. King was “essentially” “an observer of the use of safety devices.” Dr. King said his committee was “not concerned with the development of a device but rather with the availability of devices and developing specifications for devices that we believed might be satisfactory.” Dr. King testified that the types of equipment initially tested included the rope, a Jacob’s ladder, a solid fixed ladder, and a hand-held canvas escape slide; that a number of types of ramps were tested; and that other types of escape devices would have been tested if he had known of their existence. In 1955, Air Cruisers, Garrett’s predecessor, gave a demonstration of an inflatable slide at Andrews Air Force Base. Dr. King testified that he was impressed by the relative advantages of this sort of escape device and that “after viewing it [the inflatable slide], it was a logical solution.”

Mack Eastburn, who is presently a safety officer for American Airlines, observed the demonstration at Andrews Air Force Base in 1955. He testified that he felt at the time that the inflatable slide was “a tremendous improvement in the evacuation devices which permitted a much faster egress rate and a reduction in the over-all time of evacuating a full plane load of passengers.”

Although Dr. King’s testimony suggests that Boyle’s idea was a good one, it does not lead inevitably to the conclusion that the level of ordinary skill in the pertinent art was at a level so low that the Boyle device constituted invention. As emphasized by the district court, Dr. King “lacked both engineering and technical background” and “never made any investigation of the state of the pertinent prior art.” Likewise, Eastburn was “neither an engineer, designer nor builder of escape devices, nor was he aware of the prior art relating to inflatable escape devices.” In addition, Dr. King stated that “You develop a functional specification, how a thing must perform, and .then the engineers can do almost anything that you describe correctly”; the Air Cruisers’ slide, he testified, “fulfilled the functional requirements.” This suggests that it was not that the level of ordinary skill was low in the early 1950’s, but that there was no real demand for a device with the qualities of the Boyle slide until the CAA-CAB study group established new and different functional requirements for airplane escape devices.

In evaluating obviousness, a court may take into account secondary considerations, such as commercial success, long felt but unsolved needs and failure of others. The district court found that, although Garrett had sold some slides manufactured under its Boyle patent, “there was insufficient evidence to persuade the court of its commercial success and the Court finds that there was none.” On its appeal, Garrett claims that Boyle’s inflatable slides and slides embodying the Boyle concept have achieved complete acceptance and are now the only escape devices which meet the present government regulations for emergency evacuation of passengers from airplanes. This argument seems to assume that certain allegedly successful slides, or perhaps all slides, come within the claims of the Boyle patent and thus demonstrate the commercial success of Boyle. Actually, whether these successful slides are covered by Boyle is an ultimate issue in the case. Garrett also claims that the Boyle patent solved the major problems of the hand-held slide. While inflatable slides clearly do solve many of the problems associated with earlier airplane escape devices, the evidence is not altogether clear as to whether inflatable slides satisfied a “long felt” need. There is also no direct evidence on whether others had tried but failed to discover a device satisfying the functional requirements established by the CAA-CAB study group.

After examining the underlying facts, as set forth above, we conclude that the Boyle slide does not satisfy the statutory test of nonobviousness. In Graham v. John Deere Co., 1966, 383 U.S. 1, 36, 86 S.Ct. 684, 703, 15 L.Ed.2d 545, the Supreme Court indicated that obviousness must be tested in the light of the prior art, whether or not that art was in fact known to those actually working in the field at the time of the alleged invention:

“It is also irrelevant that no one apparently chose to avail himself of knowledge stored in the Patent Office and readily available by the simple expedient of conducting a patent search —a prudent and nowadays common preliminary to well organized research. ... To us, the limited claims of the Scoggin patent are clearly evident from the prior art as it stood at the time of the invention.”

We agree with the district court that the claims of the Boyle patent must be considered obvious in the light of the prior art, especially the noncited prior art. It is apparently true that neither Carpenter nor any other prior art escape device or escape apparatus explicitly teaches that a person may slide to safety from a higher to a lower level on the covered external surface of an inflated tube. However, as the district court indicated, it would not require invention to see that the covered inflatable tube in the Carpenter fire escape could be used while inflated, if the tube were able to support a person. In light of the available art concerning inflatable tubes, it was obvious that inflatable tubes existed, or could be constructed, which would support the weight of persons or cargo. Finally, it would be evident that a non-inflated inflatable escape apparatus could be folded up and stored in a relatively compact manner when not in use.

Garrett urges the applicability of the doctrine of synergism with regard to Claim 1, citing Sterner Lighting, Inc. v. Allied Electrical Supply, Inc., 5 Cir. 1970, 431 F.2d 539, 543. However, the basic elements of an inflatable tube with slide surface, means of inflation, and means of attachment, cooperate in substantially the same manner in both Boyle and Carpenter. Thus, if synergism exists, it was also present in Carpenter; and its presence in Boyle, even if somewhat heightened, is not invention.

Claims 2 and 3, which augment and incorporate Claim 1, require parallel flexible tubes extending lengthwise. These tubes, described as side rails, are intended to increase bending resistance and to define a trough-shaped slideway. The file history indicates that both the Patent Office and Boyle believed that these claims depended upon the patenta-bility of Claim l, and we think this view was correct. Adding inflatable side rails to an otherwise unpatentable Claim 1 would not constitute invention in light of the prior art relating to inflatable tubes. Therefore, these claims fall with Claim 1. Claim 4, described in the patent office proceedings as an “integrated claim,” and which also incorporates and depends upon Claim 1, also falls with Claim 1.

B. The Schacht-Parietta, Patent.

Turning to the Schacht-Panetta patent, we review the district' court’s findings and conclusions in the same manner utilized in analyzing the Boyle patent. We begin with an examination of the scope and content of the prior art. The Patent Office in its proceedings considered Heyniger U.S. Patent No. 2,936,056 (1960) and a Canadian patent, Quilter No. 580,453 (1959). Heyniger discloses a modification of Boyle wherein the lower end of the inflatable large middle support tube is extensible to permit the length of the slide to be increased, if desired. Quilter discloses an inflatable escape slide composed of a pair of spaced longitudinally extending cigar-shaped inflatable tubes joined at the top and bottom by inflatable cross-tubes. The tubes thus form a rectangular configuration. A noninflatable piece of material is suspended upon this tube structure “so that when the chute is inflated, the material sags between the side tubes and forms a chute there-between.”

American Safety brought to the attention of the district court a number of patents not cited by the patent office examiner. Elliott British Patent No. 805,696 (1959) is the British counterpart to Quilter. In Hailstone U.S. Patent No. 3,070,208 (1962), as the district court found,

“the non-inflated fabric slideway is suspended between a pair of parallel, spaced inflatable longitudinally extended beams of a rectangular tube support structure. The slideway is laterally flat and taut in the upper and lower portions of the slide, there to promote the fast descent of an evacuee, and ‘sags slightly’ in the middle portion there to slow the evacuee’s descent.”

The district court further found that “the Hailstone patent specifically teaches the provision for laterally flat and taut slideway portions, which the cited Canadian patent did not specifically state.” Other patents cited by American Safety include Marx U.S. Patent No. 71,030 (1867), which discloses a tubular fabric fire escape chute somewhat similar to the hand-held fabric chute previously used to evacuate passengers from aircraft; Campbell U.S. Patent No. 864,408 (1907) which relates to a coal chute having a flexible canvas floor; and Sehackle U.S. Patent No. 1,406,765 (1922), which discloses a child’s playground slide. American Safety also cited Tucker and Carpenter, which are discussed above with regard to Bovle.

The differences between the prior art and Schacht-Panetta were developed during the patent office proceedings. Initially, the examiner rejected all claims as unpatentable over Heyniger. The examiner “considered that the above reference [Heyniger] fulfills the structural and functional requirements as broadly set forth by applicant’s claims.” New claims were substituted for those rejected, but these too were rejected as being “unpatentable over Quilter cited in view of Heyniger of record.” These rejected claims were later resubmitted with two amendments. First, the words “laterally flat” were added in front of “slideway surface.” Second, with regard to where the side rails were located, the words “the longitudinal edges of” were added so that the reference to side rails read, “side rails . arranged contiguous the longitudinal edge of said strip of material.” When the claims as amended were resubmitted, the attorney for the applicant stated,

“The slide in the subject application distinguishes structurally from the escape chute shown in the Quilter reference. The slide disclosed in the subject application includes a strip of material 16 that is drawn taut to form a laterally flat and quite rigid slideway surface when the beams 20 are inflated and side tubes 18 are secured contiguous the longitudinal edges of the strip of material 16 so that the strip of material and the side tubes form a trough-shaped slideway. Adding side rails on the Quilter structure, as suggested in the Office Action, would not produce the slide shown in the subject application.
“It has been found that the sag in the material at the bottom of a chute of the type shown in the Quilter reference slows up and makes more difficult the exit of passengers from the slide. The subject slide is an improvement over the Quilter chute in that the laterally flat slideway surface formed by the material 16 permits a fast exit of passengers from the bottom of the slide.”

The Patent Office subsequently allowed the three claims which appear in the Schacht-Panetta patent.

In its brief on this appeal, Garrett discusses the changes made in an effort to get a patent, and states,

“Thus, the record is clear in showing that the Patent Office Examiner considered the term ‘laterally flat’ as applied to the strip of slide material to be a sufficient definition of the ■ difference between the Schacht-Panetta slide and the Quilter escape chute.”

At another point in its brief, Garrett makes a statement of similar import regarding the difference between the prior art and the Schacht-Panetta slide: “Claims 1, 2 and 3 of the Schacht-Panet-ta patent are specifically limited to the fact that the spaced inflatable tubes support the strip of material in a taut condition for [sic] form a laterally flat slideway surface when the beam tubes are inflated.”

Assuming that a slide of the sort disclosed by the Schacht-Panetta patent could be constructed and would be useful, we conclude that the patent is invalid as obvious. The only real point of difference between Schacht-Panetta and the prior art appears to be in the tautness of the slide surface. We agree with the district court’s conclusion that, “It was well within the skill of a person of ordinary skill in the art prior to the Schacht patent to employ a slideway surface which would be slack, taut, or any combination thereof in a slideway construction.” Moreover, the relative advantages and disadvantages of tautness as opposed to slackness, such as changing the speed of descent and increasing the danger of a “trampoline effect,” are evident, so that utilizing a taut slideway surface could hardly be considered inventive.

IV.

Section 285 of Title 35 relates to attorneys’ fees in patent cases. It provides that “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” In Graham v. Jeoffroy Mfg., 5 Cir. 1958, 253 F.2d 72, 78, Judge Tuttle stated that, “The law placing, as it does, the discretion in the trial court to determine . . . whether the case is an exceptional one so that attorneys’ fees should be allowed, appellate courts ought not to and will not interfere with the exercise of such discretion. Indeed they may not do so unless there is such a clear abuse as to show that discretion was not exercised, or unless it is plain that the trial court’s decision is based on an erroneous concept of law.”

In the present case, the district court made the following findings of fact with regard to American Safety’s claim for attorneys’ fees:

“Though less than careful, Garrett acted with candor in the proceedings before the Patent Office.
“Garrett brought and maintained this action against American on the Boyle patent in good faith.
“Garrett brought and maintained this action against American on the Schacht patent in good faith.”

The court consequently concluded that “This action is not an ‘exceptional case’ within the meaning of 35 U.S.C. 285 and American will not be awarded attorneys’ fees.”

We conclude that the district court did not abuse its discretion. Although we have ruled that the Boyle patent is invalid, we think Garrett had an arguable claim that Boyle was a valid patent which covered the defendant’s slides. Furthermore, the district court found that Garrett proceeded in good faith in this proceeding, and we are not convinced to the contrary. Under these circumstances, American Safety is not entitled to attorneys’ fees.

Affirmed.

      . In Beckman Instruments, Inc. v. Chemtronics, Inc., 5 Cir. 1970, 439 F.2d 1369, 1372 n. 4, this Court said: “We find that when a challenge is made to the validity of a patent in an infringement suit, that issue should ordinarily be taken up first and infringement considered only if validity is decided favorably to the patentee.” In the present case, holdings of invalidity are of course limited to the pertinent claims.

      . The first four of the nine claims of the Boyle patent are in issue in this case:
      “1. An escape-chute assembly comprising an elongated, flexible-walled, fluid-distensi-ble slide-way structure having separable wall elements defining a fluid retaining chamber between them and externally presenting a slide-way sux-face for supporting contact with an escaping person sliding by gravity thereon, means for holding one end of the same at a position in the air that is at a substantial distance above the earth’s surface, and means for effecting fluid-distension of said structure, the walls of the said chamber and the fluid therein constituting a fluid-trussed beam of sufficient strength against bending to support against gravity the weight of an escaping person sliding upon it while the lower end of the chute is supported at such height in relation to the holding of its xxpper end that' the chute has a safely moderate slope for escape of the person by free gravity sliding of the escaping person upon it.
      “2. An assembly as defined in claim 1 in which the defined structure comprises a plurality of parallel flexible tubes extending lengthwise of the chute and surface bonded to one another for augmeixting the resistance of the structure to bending strain when it is inflated.
      “3. An assembly as defined in claim 2 in which a plurality of the tubes extend lengthwise of the chute axxd define, when inflated, a trough-shaped slide-way.
      “4. An assembly as defined in claim 1 in which the lower end of a fluid-retaining flexible wall of the defined structure is curved about a horizontal transverse axis and thus has a rocker-slxaped, downwardly-facing, supporting surface, for like supporting contact of the curved part of the said wall with the earth’s surface when the slide-way structure is at different inclixxa-tions in relation to earth’s surface.”
      Exh. Vol. I, p. 258.

      . The patent indicates that, (1) “When a wide slide-way surface is required, the middle tube [on a Boyle slide] must be made very large. A large chute of this type is difficult to handle and stow.” By contrast, the width of the Schacht-Panetta slide “may be varied without changing the size of the beams in the supporting structure and may, for psychological or physical reasons, be made as wide, or wider than, the exit door of the aircraft.” (2) “Since the slide-way surface in the chute shown in the Boyle patent is formed on the surface of the middle tube, it is therefore rounded. This convex surface does not lend stability to a person or to freight sliding on the escape- chute.” As indicated by the specifications and the drawings, the slide-way surface of the Schacht-Panetta slide is “laterally flat.” Exh. Vol. I, p. 260.

      . The wording of the first part of each of the three claims of the Schacht-Panetta patent is identical, viz:
      “A slide for a structure comprising: a longitudinally extending elongated strip of material; an inflatable supporting structure having a pair of spaced inflatable structural beams arranged to support said strip of material therealong and adapted to hold said strip of material taut to form a laterally flat slide-way surface when said supporting structure is inflated ;”
      and the latter part of each of the claims reads as follows:
      Claim 1:
      “longitudinally extending side rails associated with said structural beams and arranged contiguous the longitudinal edges of said strip of material; and means for attaching one end of the slide to the structure at a distance from a supporting surface.”
      Claim 2:
      “longitudinally extending inflatable side rail tubes disposed contiguous the longitudinal edges of said strip of material and communicating with said structural beams; and means for attaching one end of the slide to the structure at a distance from a supporting surface.”
      Claim 3:
      ‘•‘inflatable means associated with said supporting structure and arranged to hold said structural beams in substantially parallel realtionship when said supporting structure is inflated; longitudinally extending inflatable side rail tubes disposed contiguous the longitudinal edges of said stx'ip of material and communicating with said structural beams; and means for attaching one end of the slide to the structure at a distance from a supporting surface.”
      Exh. Vol. I, p. 261.

      . See also Zero Mfg. Co. v. Mississippi Milk Ass’n, 5 Cir. 1966, 358 F.2d 853; Cornell v. Adams Engineering Co., 5 Cir. 1958, 258 F.2d 874; Rosaire v. Baroid Sales Division, Nat’l Lead Co., 5 Cir. 1955, 218 F.2d 72.

      . Garrett on this appeal intimates that this court should discount to some extent the district court’s findings, because it “adopted substantially all of American Safety’s proposed findings of fact.” A comparison of the defendant’s proposed findings and the district court’s findings does reveal a good deal of similarity. However, it is clear that the district court did not simply adopt wholesale the defendant’s proposed findings. The district court’s organization of the facts differs substantially from that proposed by the defendant; the district court’s findings are more brief, about 27 pages long as reproduced in the appendix as compared to 35 pages for the defendant’s proposed findings; some of the district court’s findings have no counterpart in the defendant’s proposed findings; and there are a large number of textual differences between the district court’s findings and the defendant’s proposed findings.

      . Findings of Fact 13 and 14.

      . Findings of Fact 14 and 15.

      . Finding of Fact 22.

      . Finding of Fact 48.

      . Finding of Fact 51.

      . Finding of Fact 52. Also, in Garrett’s Schacht-Panetta patent it is stated:
      “The inflatable escape chute shown in the aforementioned Boyle patent is formed of a large, inflatable middle tube and a pair of cross-sectional smaller side tubes, the three tubes being bonded together to form a trough-shaped chute. The slide-way surface in the chute shown in the Boyle patent is formed on the middle tube and its width is directly related to, and determined by the size of the middle tube.
      “Furthermore, since the slide-way surface in the chute shown in the Boyle patent is formed on the surface of the middle tube . ” (Emphasis added.)
      Exh. Vol. I, p. 260.

      . Finding of Fact 33.

      . Finding of Fact 32.

      . Finding of Fact 35.

      . Stamicarbon, N.V. v. Escambia Chemical Corp., 5 Cir. 1970, 430 F.2d 920, 926, 928. Also see Metal Arts Co. v. Fuller Co., 5 Cir. 1968, 389 F.2d 319, 321; Flour City Architectural Met. v. Alpana Alum. Prod., Inc., 8 Cir. 1972, 454 F.2d 98, 106.

      . Swofford v. B & W, Inc., 5 Cir. 1968, 395 F.2d 362; Kiva Corporation v. Baker Oil Tools, Inc., 5 Cir. 1969, 412 F.2d 546, 552.

      . Finding of Fact 17.

      . Appellant's Brief, at pp. 41 and 43.

      . See the discussion infra as to the content of the prior art considered by the jiatent office.

      . In a letter amending the original apjjlication, Boyle’s attorney in explaining a change in title said, “The limitation of the title to aircraft is removed because the invention is applicable for replacement of permanently mounted and unsightly slide chutes such as are now sometimes seen on the outside of old-people’s homes and other institutions.” Letter received by patent office on January 13, 1955. Defendant’s Exh. 10, p. 14ff.

      . When the Boyle application was originally filed, Claim 1 appeared as follows :
      “1. An escape-chute assembly comprising an elongated, flexible-walled, fluid-distensi-ble slide-way structure, means for holding one end of the same at a position a substantial distance above the ground, and emergency means for fluid-distension of said structure.”
      Defendant’s Exh. 10, p. 6.

      . Letter mailed August 6, 1954, Defendant’s Exh. 10, p. 11.

      . In Claim 1, Boyle inserted after the words “fluid-distensible slide-way structure,” the following words: “having separable wall elements defining a fluid retaining chamber between them.” Also, “ground” was replaced by “earth’s surface,” “emergency” was deleted, and “effecting” was inserted before “fluid-distension of said structure.” See letter received by the patent office on January 7, 1955, Defendant’s Exh. 10, p. 14.

      . Letter mailed September 2, 1955, Defendant’s Exh. 10, p. 18.

      . See letter received February 8, 1956, Defendant’s Exh. 10, p. 19.

      . See letter mailed March 7, 1956, Defendant’s Exh. 10, p. 23. The patent office had earlier allowed Claim 4 as an integrated claim only.

      . Finding of Fact 23.

      . Appellant’s Brief, p. 42.

      . Appellant’s Brief, p. 43.

      . Finding of Fact 11.

      . Tr. p. 42, Vol. I of Rec. on Appeal.

      . Dr. King indicated that it was routine procedure to gather relevant information from the published literature, but that there was “no discussion of emergency escape other than the description of the certification tests for CAB.” (Tr. 90.) Thus, Dr. King indicates that his gathering of information extended only to information regarding escape devices designed specifically for airplanes.

      . Garrett notes in its brief that Dr. King testified that he would not have thought of the Boyle device. While Dr. King did so testify, his remarks preceding this testimony indicate that he would not ordinarily attempt to think of a solution to a perceived problem.
      “In other words, we describe a human specification, how far a man could reach at what level at what angle, and the engineer then takes this and uses this as a design parameter, and we know that we can describe the rate at which jjeople can get through exits at various times. We give these data to engineers, but the solutions —two things.
      “The worst tiling you can do is step out of your field and try to solve problems in another man’s field where expertise exists, and this is one way not to get your safety work accomplished, and I don’t feel any competence in this.
      “So I would, if you would say would I have thought of the solution, no.”
      Tr. 121, Vol. I of Rec. on Appeal.

      . Tr. pp. 187-188.

      . Finding of Fact 11.

      . Finding of Fact 12.

      . Finding of Fact 19.

      . Also see Walker v. General Motors Corporation, 9 Cir. 1966, 362 F.2d 56, 60 n. 3 (“Walker was charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures .... This is so because the Constitution does ‘not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.’ Graham v. John Deere Co., 383 U.S. 1, 6, 86 S.Ct. 684, 688 [15 L. Ed.2d 545] (1966).”). David & David, Inc. v. Myerson, 2 Cir. 1968, 388 F.2d 292, 294 (“The general test is an objective one, as the patent holder must be deemed to possess all tlie available knowledge in the applicable art”) ; Formal Fashions, Inc. v. Braiman Bows, Inc., 2 Cir. 1966, 369 F.2d 536, 538 (“a hypothetical mechanic who, among other things, has the prior art in mind when he endeavors to solve the problem for which the patent is obtained”); Blohm & Voss AG v. Prudential Grace Lines, 4 Cir. 1973, 489 F.2d 281, 243; Application of Winslow, 365 F.2d 1017, 1020, 53 CCPA 1574, 1966; Novelart Manufacturing Co. v. Carlin Container Corp., D.N.J.1973, 363 F.Supp. 58, 72 and n. 16; Norris Industries, Inc. v. Best Universal Lock Co., S.D.Ind.1968, 296 F.Supp. 372, 379 (“An inventor is charged with knowledge of all that the prior art, taken as a whole, discloses with respect to the subject matter of the invention, and a person skilled in the art is further presumed to have had at his disposal all relevant prior art constructions and patents”).

      . In a letter mailed September 2, 1955, the Patent Office rejected Claims 1, 2 and 3 “as failing to distinguish patentably and structurally from Selion in view of Bingham.” As discussed earlier, Schon discloses an escape device for use on submarines and Bingham discloses an inflatable boat with a plurality of inflatable tubes. In a document dated February 13, 1956, Boyle’s attorney amended Claim 1 and remarked that “The above amendment of iiarent Claim 1 is believed to make it and also appendant Claims 2 and 3 clearly allowable.” In a letter mailed March 7, 1956, the Patent Office allowed the claims.

      . Quilter patent, Defendant’s Exh. 5.

      . Finding of Fact 34.

      . Finding of Fact 33.

      . Letter mailed November 10, 1960, Defendant’s Exh. 13, p. 20.

      . Letter mailed February 6, 1962, Defendant’s Exh. 13, p. 28. The examiner further stated, “It would be a matter of choice to add the side rails shown by Heyniger to Quilter’s structure.”

      . Letter received August 3, 1962, Defendant’s Exh. 13, p. 30.

      . Letter mailed August 23, 1962, Defendant’s Exh. 13, p. 33.

      . Appellant's Brief, p. 62.

      . Appellant’s Brief, p. 57.

      . The district court made the following findings of fact:
      “26. Though the purported point of novelty taught by this invention was that the slideway material should be drawn ‘taut to form a laterally flat and quite rigid slide-way surface,’ the application failed to disclose to a person of ordinary skill in the art how to achieve and/or maintain this allegedly desirable result.
      “A slide structure made to the above-quoted specification would be potentially dangerous, if a person were to jump thereon from an airplane doorway, because of the unavoidable catapult or trampoline effect.
      “In practice, the procedure is to apply the slideway fabric, which is a resilient plastic material, rather than canvas as stated in the patent disclosure, to the support tube when the latter is in an only slightly inflated condition.
      “27. The slide demonstrated by the plaintiff to tiie Court did not conform to the above-quoted specification. To the contrary, when the slide, so demonstrated was inflated and used, the slideway surface was somewhat loose, rather than taut, and sagged noticeably between the support tubes, rather than presenting ‘a laterally flat and quite rigid slideway surface.’
      “28. Garrett failed to prove that it has manufactured any slides like that disclosed in the Schacht patent.” (Appendix p. 306.)

      . Finding of Fact 32.

      . Also see Specmade Products, Inc. v. Barnett, 5 Cir. 1966, 354 F.2d 229, 230; Henry Hanger & Display Fixture Corp. v. Sel-O-Rak Corp., 5 Cir. 1959, 270 F.2d 635, 644. Cf. Seismograph Service Corp. v. Offshore Raydist, 5 Cir. 1959, 263 F.2d 5, 21, 24, 28.

      . Findings of Fact 61, 62 and 63.

      . Conclusion of Law 11.


author: STEPHENSON, Circuit Judge.

text:
    Mary POITRA, as mother and surviving parent of Richard A. Primeaux, Appellant, v. Donald DEMARRIAS, Appellee.
    No. 74-1025.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 19, 1974.
    Decided Aug. 28, 1974.

      Marvin J. Sonosky, Washington, D. C., for appellant.
    John M. Olson, Sp. Asst. Atty. Gen., Bismarck, N. D., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting hy designation.

   STEPHENSON, Circuit Judge.

In this wrongful death action brought by one Indian against another Indian, the primary issue raided on appeal is whether diversity jurisdiction in the federal district court pursuant to 28 U. S.C. § 1332(a) (1970) is precluded by reason of the absence of subject-matter jurisdiction in the courts of the State of North Dakota over civil causes of action arising in Indian country. Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973).

Plaintiff-appellant and defendant-ap-pellee are both enrolled Indians residing within the exterior' boundaries of the Standing Rock Sioux Indian Reservation. Appellant, a citizen of North Dakota, brought this action against appel-lee, a citizen of South Dakota, pursuant to the provisions of Chapter 32-21 of the North Dakota Century Code for the wrongful death of her minor son. Appellant’s son, Richard A. Primeaux, died from injuries sustained in an automobile accident which occurred on the Standing Rock Reservation, near Selfridge, North Dakota. The automobile in which Pri-meaux was a passenger was struck from the rear by an automobile driven by ap-pellee.

Appellant filed her complaint on June 15, 1972. Service was made upon the defendant by serving the North Dakota State Highway Commissioner on June 16, 1972, pursuant to the provisions of the North Dakota non-resident motorist statute, N.D.C.C. § 39-01-11. No responsive pleading was filed, and on August 22, 1973, appellant filed a notice of application for default judgment which was served on the North Dakota Unsatisfied Judgment Fund pursuant to N.D. C.C. § 39-17-03 (1972). On September 11, 1973, a Special Assistant Attorney General for North Dakota, representing the Fund, moved'on behalf of appellee to dismiss the action for lack of subject-matter jurisdiction.

On October 27, 1973, the district court dismissed the action. Poitra v. Demarrias, 369 F.Supp. 257 (D.N.D.1973). In its memorandum and order it stated that in a diversity action it could not “entertain any action not maintainable in a North Dakota Court.” Id. at 258 citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The district court further stated that:

In Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 108-109, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, the Supreme Court said:
“ * * * But since a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another Court of the State, it cannot afford recovery if the right to recover is made unavailable by the State -X- •» *

In this case, a Federal Court, by reason of diversity of citizenship and amount in controversy, is asked to adjudicate a right created by the State. The plaintiff’s exercise of that right is subject to the laws of North Dakota as interpreted by the Courts of North Dakota.

By its decision in Gourneau v. Smith, 207 N.W.2d 256, the North Dakota Supreme Court conclusively and effectively closed the State Courthouse door to the plaintiff in this case. Id.

We reverse that determination. As noted by the Supreme Court in Hanna v. Plumer, 380 U.S. 460, 466-468, 85 S.Ct. 1136, 1141-1142 14 L.Ed.2d 8 (1965),. the Erie rule is based in part upon “a realization that it would be unfair for the character or result of a litigation materially to differ because suit had been brought in a federal court” rather than in state court, and that it is “also in part a reaction to the practice of ‘forum shopping’ which had grown up in response to the rule of Swift v. Tyson.” The Court then characterized the twii aims of Erie as: “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Id. at 468, 85 S.Ct. at 1142.

Clearly, Hanna established a subtle retreat from prior decisions which had led to an overconcern with conformity to state law in diversity actions. Compare Hanna v. Plumer, supra, with Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L. Ed. 1524 (1949); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).

Erie, of course, teaches that federal courts in diversity actions must give deference to the “definition of state-created rights and obligations by the state courts,” whether substantive, procedural or quasi-procedural where the state rule of law is “bound up” with a state-created right or obligation. Byrd v. Blue Ridge Elec. Co-op., 356 U.S. 525, 535-536, 78 S.Ct. 893, 899, 2 L.Ed.2d 953 (1958). The thrust of Erie however, cannot be interpreted to allow in every instance the diversity jurisdiction of federal courts to be wholly controlled and dependent upon state law. As this court recently pointed out in Prashar v. Volkswagen of America, Inc., 480 F.2d 947, 952-953 (8th Cir.1973), the primary concerns in Erie were with providing equal protection to citizen-defendants and with “the vital recognition of the necessary bridling of encroaching federalism in areas of state policy.” (Emphasis added.) In addition, we noted that “federal diversity actions can never be identic to those carried out in state form,” and concluded that no state policy would be violated by application of federal procedure that differed from the state rule. Id.

Similar views were expressed by the Fourth Circuit in a case in which that court grappled with the Erie problem. In Atkins v. Schmutz Manufacturing Co., 435 F.2d 527, 536 (4th Cir.1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1526, 28 L.Ed.2d 867 (1971), the court stated:

* * * Erie and its progeny may be seen as an attempt to formulate a workable doctrine governing choice of law in diversity actions which would prevent impermissible federal court interference with state rules reflecting policy considerations lying within the realm of state law-making competence. * * * ******
It is, of course, neither possible nor necessary for federal courts to be totally neutral in the adjudication of state-created rights. * * * Some adoption of state court procedures by federal courts sitting in diversity may be feasible, but it may also be in conflict with the fundamental interests of the federal courts in the conduct of their own business and maintenance of the integrity of their own procedures, the legitimate interests of a federal forum, qua fórum. (Emphasis added.)

The Prashar and Atkins decisions indicate that the scope of the Erie doctrine has been narrowed significantly since its earliest applications. It now seems clear that a federal court sitting in diversity need not mirror in every regard the state courts. The interest of the federal court in its own procedures and policies dominates in the absence of identifiable state interests which are inextricably linked with the underlying substantive right.

Furthermore, it is also clear that federal courts have an affirmative responsibility to guard their own jurisdiction. This point has been made primarily in the context of attempts by states to proscribe accessibility to the courts of those states to a particular class of litigants with respect to state-created substantive rights. Such efforts cannot a priori limit the jurisdiction of the federal courts. See Davis v. Ensign-Bickford Co., 139 F.2d 624, 626 (8th Cir.1944); Stephenson v. Grand Trunk Western R. R., 110 F.2d 401 (7th Cir. 1940); State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 395-396 (S.D. Iowa 1968); Monroe v. Pape, 221 F.Supp. 635, 649 & n. 39 (N.D.Ill.1963); Martineau v. Eastern Airlines, 64 F.Supp. 235 (N.D.Ill.1946).

As explained by the Fourth Circuit in Markham v. City of Newport News, 292 F.2d 711, 713-716 (4th Cir. 1961):

In determining its own jurisdiction, a District Court of the United States must look to the sources of its power and not to acts of states which have no power to enlarge or to contract the federal jurisdiction. * * -X- * * -X-
However extensive the power of the state to deal with the substantive right, it has no power to defeat the jurisdiction of the federal courts.
* * * * * *X* * * * [A] court, in determining its own jurisdiction, must look to the constitution and laws of the sovereignty which created it. The laws of a state cannot enlarge or restrict the jurisdiction of the federal courts or those of any other state. It necessarily follows that whenever a state provides a substantive right and a remedy for its enforcement in a judicial proceeding in any state court, a judicial controversy involving the right may be adjudicated by a United States District Court if it has jurisdiction under the Constitution and laws of the United States.

This language lends strong support to the precept that federal courts have an obligation to exercise jurisdiction, when the statutory requisites are satisfied. See First National Bank v. United Airlines, 342 U.S. 396, 399-400, 72 S.Ct. 421, 96 L.Ed. 441 (1952). Cf. Schantz v. White Lightning, 502 F.2d 67 (8th Cir. filed this date).

Against this background we turn to the problem. State assumption of civil jurisdiction over Indians is the subject matter of 25 U.S.C. § 1322(a) (1970). It states, in effect, that until an Indian reservation consents to the jurisdiction of the state courts, such jurisdiction may not be assumed by the state courts of any cause of action involving Indians and arising within the boundaries of the Indian reservation. Although the state courts of North Dakota are open to Indians, the Standing Rock Reservation has not consented to jurisdiction in the manner prescribed under § 1322(a). Thus, no policy of the State of North Dakota is at issue in this case. Rather, it is the Indians themselves who, by deciding not to consent to state jurisdiction, have created the federal jurisdictional problem we face in this case. As in Prashar, supra, and Atkins, supra, we can find no significant state interest that would prevent the federal court from exercising its jurisdiction in order to hear an action, such as this, founded upon a state-created substantive right. The reason that North Dakota lacks jurisdiction over this civil action is because of the special status given Indians under federal law, not because of any state policy consideration. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 25L (1959); Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973).

Furthermore, we note from the legislative history of the “consent” statute that § 1322(a) was certainly not intended to deprive Indians of state-created substantive rights. On the contrary, a number of the enacted tribal codes of justice provide that the tribal court with jurisdiction of a dispute will simply apply the law of the forum in which the court sits. In effect, by the enactment of § 1322(a), Congress recognized that in keeping with the semi-autonomous status of the Indian tribe relative to its relationship with state government, the tribe has an interest in preventing the state from interfering with reservation affairs by unilaterally applying state law to all tribal members without tribal consent. Such action would naturally infringe upon the right of the tribe to govern itself free from state interference respecting those matters arising within the boundaries of the reservation. This latter consideration was the tribal communities’ major criticism of the repealed predecessor to § 1322(a), Pub.L. No. 83-280, 67 Stat. 588 (1953), see note 7, supra, which did not require consent of the tribe as a predicate to state assumption of jurisdiction.

We are mindful of the Ninth Circuit’s decisions of Hot Oil Service, Inc. v. Hall, 366 F.2d 295 (9th Cir. 1966), and Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), both of which held that the federal district court could not assume diversity jurisdiction in disputes arising on the Navajo Indian Reservation unless the state courts also had subject-matter jurisdiction, citing Woods v. Interstate Realty Co., supra, 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949). Both of these cases can be distinguished. They were based on the concept of non-interference with tribal affairs that developed out of the Supreme Court’s opinion in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). However, in neither case was the court faced with the application of a state-created right under which an individual Indian sought to recover from another Indian. In Hot Oil, the claim involved a lease agreement concerning facilities built on tribal land and subleased by a member of the tribe to a non-Indian. 366 F.2d at 296-297. In Littell, the plaintiff’s complaint was based on a charge that the tribal chairman had tortiously interfered with the performance of a contract that the non-Indian plaintiff had made with the tribe. 344 F.2d at 487. In both instances, the non-interference and tribal self-government policies from Williams are obviously in issue, and the refusal by the courts to accept jurisdiction seems correct under those facts.

In the instant case, however, the facts are very different. Here, one Indian seeks to avail herself of the federal court in an action against another Indian. This fact in itself would seem to negate any interference claim that could be made since no interfering outsiders are trying to foist jurisdiction on the Indians. In addition, the underlying cause of action here is based on a state-created wrongful death statute and judgment fund, not a dispute that involves considerations of policy regarding tribal lands or customs. Since we can discern no possible interference with tribal or reservation self-government here, there is no reason why Hot Oil or Littell should control this case.

Where, as in the case before us, the statutory basis for federal jurisdiction exists and the substantive right being asserted has been created by the state, a federal statute precluding state court jurisdiction in civil matters unless tribal consent is given does not close the federal courthouse doors to these litigants. In Littell, the court indicates that “federal court jurisdiction would be equally disruptive of the policy [of tribal self-government] as would state court jurisdiction.” We disagree and emphasize that the purpose of repealing Pub.L. No. 83-280, supra, and enacting § 1322(a) was to prevent unwanted and unnecessary encroachment upon Indian tribes by the states. We fail to conceive of any Congressional or judicial policy limitations requiring the federal court to refuse adjudication of this or similar claims when its jurisdiction is properly invoked. Cf. Markham v. City of Newport News, supra, 292 F.2d 711 (4th Cir. 1961). We would do a disservice to Indian citizens and to the legislators who passed the Indian Bill of Rights if we construed that right-granting legislation as giving Indians less than a full measure of federal rights and remedial avenues.

In the final analysis, we hold that in the context of this case the federal district court is vested with subject-matter jurisdiction under 28 U.S.C. § 1332(a) (1970). The order of dismissal of the district court is reversed.

      . See 25 U.S.C. § 1322(a) (1970) ; North Dakota Century Code § 27-19-01 et seq. (1974).

      . N.D.C.C. § 39-17-04 (1972) reads:
      * * * the attorney general may enter an appearance, file a defense, appear by counsel at the trial or take such other action as he may deem appropriate on behalf and in the name of the defendant, and may thereupon, on behalf and in the name of the defendant, conduct his defense, and all acts done in accordance therewith shall be deemed to be acts of the defendant. ^ % sH

      . 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842). In Hanna v. Plumer, supra at 468 n. 9, 85 S.Ct. at 1142, the Court stated:

        Erie and its progeny make clear that when a federal court sitting in a diversity case is faced with a question of whether or not to apply state law, the importance of a state rule is indeed relevant, but only in the context of asking whether application of the rule would make so important a difference to the character or result of the litigation that failure to enforce it would unfairly discriminate against citizens of tlie forum State, or whether application of the rule would have so important an effect upon the fortunes of one or both of the litigants that failure to enforce it would be likely to cause plaintiff to choose the federal court.

      . One author lias indicated that the Woods and Angel decisions could be explained as holding “that since the state liad closed its courts to a certain type of action, the federal court out of respect for the state’s policy would likewise refuse to entertain that type of case, even though it liad undoubted jurisdiction.” Meador, State Law and the Federal Judicial Power, 49 Va.L.Rev. 1082, 1098 (1963).

      . The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.

      . Prior to enactment of 25 U.S.C. -§ 1322(a) the North Dakota Supreme Court held that the state court had jurisdiction of an action arising out of circumstances almost identical to those at bar. Vermillion v. Spotted Elk, 85 N.W.2d 432 (N.D.1957).

      . See Canby, Civil Jurisdiction and the Indian Reservation, 1973 Utah L.Rev. 206, 217 n. 83. Eor example, The Code of Justice of the Standing ’ Rock Sioux Tribe (July 1973) states at § 2.1:
      Civil matters shall be governed by the laws, customs and usages of the Tribe not prohibited by the laws of the United States, applicable Federal law and applicable regulations and decisions of the Department of the Interior. The laws of the state where the reservation is located may be employed as a guide * * *. Where appropriate, the laws of the state where the reservation is located may be employed to determine civil matters.

      . See discussion, in McClanahan v. State Tax Commission, 411 U.S. 164, 168-173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).

      . See Canby, 1973 Utah L.Rev., supra at 219. See 113 Cong.Rec. 35,474 (1967) (remarks of Senator Ervin) :
      Title III repeals December 7 Public Law 83-280, which permits States to assume criminal and civil jurisdiction over Indian tribes regardless of the wishes of the tribe.
      In 1953, Public Law 83-280 (67 Stat. 588) conferred to certain States civil and criminal jurisdiction over Indian country. Tribes have been critical of Public Law 83-280 because it authorizes the unilateral application of State law to all tribes without their consent and regardless of their needs or special circumstances. Moreover, it appears that tribal laws were unnecessarily preempted and, as a consequence, tribal communities could not be governed effectively.
      The Subcommittee on Constitutional Rights in its “Summary Report of Hearings and Investigations of the Constitutional Rights of the American Indian” arrived at the following . conclusion concerning legislation to remedy Public Law S3-280:
      Indian governments do not, of course, bear full responsibility for those denials of rights which have occurred or which in the future may occur. It appears, paradoxically, that the States have also erred, both by failing to prosecute offenses and by assuming civil and criminal jurisdiction when that assumption was clearly against the wishes of the Indian peoples affected. Concurrent jurisdiction by the United States in the first instance and a repeal of Public Law 280 or at least its modification to include tribal consent as a precondition of the State’s assumption of jurisdiction, would seem to provide a suitable remedy.
      Under this title, any State desiring to assume civil and criminal jurisdiction over an Indian tribe must obtain the consent of the affected tribe. The repeal of Public Law 280 has been a major goal of all Indian tribes since the enactment of this hasty legislation — legislation which prevented Indians from having any voice in how or by whom they were to be governed.

        See also S. Ervin, Protecting the Rights of the American Indian, S.Rep.No.841, 90th Cong., 1st Sess. (1967).

      . Inasmuch as the Standing Rock Sioux Tribe lias indicated in its tribal code that a state license and registration are necessary prerequisites for driving on the reservation, The Code of Justice of the Standing Rock Sioux Tribe §§ 8.1, 8.3 (July 1973), a persuasive argument can be made that the tribe has waived any “interference” claims with regard to suits in which the Unsatisfied Judgment Fund is involved. This is supported by the fact that each driver in North Dakota contributes, through his or her annual car registration fee, one dollar to the fund. North Dakota Century Code § 39-17-01 (1972). Furthermore, by acquiescing to the state regulations in this manner, the tribe may have left such fund cases to the “residuary” jurisdiction of the state. See State ex rel. Iron Bear v. District Court, 512 P.2d 1292, 1298 (Mont.1973).

        . 28 U.S.C. | 1332(a) (1970). Both the $10,000 jurisdictional amount and diversity of citizenship are present.

      . Chapter 32-21 of the North Dakota Century Code, supra.

      . See legislative history, note 9, supra. See also McClanahan v. State Tax Commission, supra, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).