author: COLEMAN, Circuit Judge: GOLDBERG, Circuit Judge PER CURIAM: GOLDBERG, Circuit Judge BY THE COURT:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Florencio SEPE, Defendant-Appellant.
    No. 72-1352.
    United States Court of Appeals, Fifth Circuit.
    Jan. 4, 1973.
    Rehearing Denied Feb. 5, 1973.
    Rehearing En Banc Granted April 4, 1973.
    Goldberg, Circuit Judge, concurred specially, dissented from denial of petition for rehearing and filed opinions.

      Melvyn Kessler, Dennis I. Holober, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   COLEMAN, Circuit Judge:

The Grand Jury for the Southern District of Florida indicted Florencio Sepe for (1) conspiring to import sixty-six pounds of heroin, 21 U.S.C. § 952(a); 18 U.S.C. § 2; 21 U.S.C. § 963; (2) for importing sixty-six pounds of heroin; and (3) for possessing the said narcotics with intent to distribute, 21 U.S.C. § 841(a)(1).

On January 11, 1972, the case came to trial.

Sepe contended that the heroin and the suitcase in which it had been contained should be suppressed as being fruits of an unlawful search. The trial judge disagreed.

A jury was selected. The government made its opening statement. Seven witnesses were examined, compiling a trial transcript of 141 typewritten pages.

At this point the following transpired :

MR. KESSLER [counsel for Sepe]: Your Honor, we have a most unusual request at this point in time and I trust the Court would go along with this request.

We are presently attempting to negotiate a favorable arrangement between the Defendant and the U. S. Government. There are one or two small problems, one of which, I’m waiting for the Interpreter that my client has faith in and that we can discuss it a little bit further, and he should be here momentarily.

THE COURT: We will discuss it here at sidebar.

We will let the jury have a recess for half an hour.

(Thereupon a recess was taken until 10:00 a. m., pursuant to which the following proceedings were had outside the presence of the jury:)

MR. KESSLER: Your Honor, the Defendant at this time has an announcement to make.

THE COURT: All right. We’ll hear you.

MR. KESSLER: With the permission of the Court, we would at this time request of the Court to permit us to withdraw our plea of not guilty as to Counts 1, 2 and 3.

THE COURT: Your client is not named in Count 3. Counts 1, 2 and 5 are the Counts which relate to Mr. Sepe.

MR. KESSLER: Yes sir.

At this time, Your Honor, with the Court’s permission, we would tender a plea of guilty to Count 1, and a plea of no contest to Counts 2 and 5.

THE COURT: And what is the Government’s position?

MR. SULLIVAN: Your Honor, we will make a recommendation as to sentencing, but we do not object to the two nolo pleas as to Counts 2 and 5.

MR. KESSLER: We would ask at this time, Your Honor, that the Court defer the matter of sentencing to permit us for the taking of testimony from the family sometime next week. They are remaining—

Thereafter, the following proceedings took place:

THE COURT: Mr. Sepe, how old are you?

THE DEFENDANT: Thirty-two years old.

THE COURT: What education do you have?

THE DEFENDANT: Up to sixth grade, elementary school.

THE COURT: Are you married?

THE DEFENDANT: Yes, sir.

THE COURT: Have you children?

THE DEFENDANT: Three.

THE COURT: How many ?

THE DEFENDANT: Three.

THE COURT: Now, under the law I must ask you certain questions to be sure that you understand what is happening and what you are doing. The fact that I do this does not reflect on your Counsel or their knowledge or ability, since they have already undoubtedly told you of the same things and asked you the same questions.

Do you understand that by entering a plea to Count 1 of the indictment that you are admitting the truth of the charge, that you agreed with one or more of the other persons named to import unlawfully into the United States a quantity of heroin; you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And do you under-

stand that when you plead guilty, there is no further trial either before a jury or before me, and that the only thing that will remain to be done is that I determine and impose whatever sentence I think appropriate?

THE DEFENDANT: (Nods head.)

THE COURT: Is your plea of guilty entered freely and voluntarily on your part?

THE DEFENDANT: (Nods head.)

THE COURT: Will you answer so the Court Reporter gets it ?

THE DEFENDANT: Yes, sir.

THE COURT: Other than the promise or assurance of the United States Attorney that he will make a recommendation to the Court about your sentence, have any other promises or inducements been offered to you ?

THE DEFENDANT: No, sir.

MR. BIERMAN: I would point out, Your Honor, that I have explained to the Defendant that the Court has indicated, pursuant to the ABA standards, that if the Court feels it necessary to exceed the Government’s recommendation, that an opportunity to withdraw the plea would be given.

THE COURT: And I say to the Defendant as I have said to you, his Counsel, that I cannot foresee any circumstance at the moment that would impel me to impose a sentence in excess of the recommendation of the Government as to maximum sentence.

You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Now, with respect to Count 3 of the indictment.

MR. SULLIVAN: Is that not Count 2, Your Honor?

THE COURT: Count 2. Thank you.

With respect to Count 2 of the indictment, you are charged with having unlawfully imported into the United States from a place outside, a quantity of heroin, sixty-six pounds. Do you understand that by a plea of nolo contendere you say to the Court that you do not contest the truth of that charge ?

THE DEFENDANT: (nods head.)

THE COURT: And his answer?

THE DEFENDANT: Is yes, sir.

THE COURT: And you understand that when you enter such a plea, there is no trial before Court or jury and that the Court may then sentence you upon that Count of the indictment with the same force and effect as if you had entered a plea of guilty ?

THE DEFENDANT: (Nods head.)

THE COURT: Will you answer so the Court Reporter hears you ?

THE DEFENDANT: Yes, sir.

THE COURT: On Count 5 of the indictment you are charged, with Mr. Pel-lini, with possession with intent to distribute a quantity of heroin, approximately sixty-six pounds. Do you understand that by your plea of nolo contend-ere, that you, by that plea, do not contest the truth of the charge? The Court, of course, understands that what was actually in the bag when you got it was one package and not sixty-two.

THE INTERPRETER: Not one package but two when the bag was delivered to him and Mr. Pellini, the rest being flour, according to the evidence before us.

And do you understand that on that Count if you plead nolo contendere, there is no further trial before the jury or before the Judge, and that the Judge may sentence you upon that Count of the indictment with the same force and effect as if you had entered a plea of guilty?

THE DEFENDANT: (Nods head.)

THE COURT: And his answer ?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that upon these Counts, that the maximum prison sentence could be as much as fifteen years ?

THE DEFENDANT: (Nods head.)

THE COURT: You must answer. He is shaking his head Yes, but we don’t get your answer unless you utter it vocally.

THE DEFENDANT: Yes.

THE COURT: And with the knowledge of what your Counsel have told you and what the Judge has told you, are you still desirous and willing to change your plea to guilty on Count 1, and to nolo contendere on Counts 2 and 5 ?

THE DEFENDANT: Yes.

THE COURT: The Clerk may now take his plea of guilty on Count 1 and nolo contendere on Counts 2 and 5.

The defendant was thereafter sentenced to one-half of the maximum term of imprisonment, plus a fine.

He now seeks to appeal on the ground that the intended reception in evidence of the suitcase and heroin infringed his Fourth Amendment rights and that his conviction, although on obviously voluntary pleas of guilty and nolo contendere, should be reversed.

We cannot accept this contention.

The situation is completely covered by a most thoroughly researched, cogently reasoned decision recently rendered by the United States Court of Appeals for the Sixth Circuit in United States v. Cox, 464 F.2d 937 (1972).

There is a strong temptation to quote in externo from the Cox opinion. Since it is reported, and thus available to all, we restrict ourselves to the following excerpts :

“The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea “normally rests on the defendant’s own admission in open court that he has committed the acts with which he is charged,” see McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects. Austin v. Perini, 434 F.2d 752 (6th Cir. 1970); Hum-phries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F.2d 135 (6th Cir. 1967); Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966); also see, Jenkins v. Beto, 442 F.2d 655 (5th Cir. 1971); Nobles v. Beto, 439 F.2d 1001 (5th Cir. 1971); United States v. Rook, 424 F.2d 403 (7th Cir. 1970), cert. den. 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. McElya, 142 U.S.App.D.C. 38, 439 F.2d 548 (1970); Abram v. United States, 398 F.2d 350 (3rd Cir. 1968); United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967); Runge v. United States, 427 F.2d 122 (10th Cir. 1970); Seybold v. Cady, 431 F.2d 683 (7th Cir. 1970). The jurisdictional exception to the general rule has been limited to cases in which the accused is challenging the constitutionality of the statute, usually on Fifth Amendment grounds, under which he is charged. See, Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).

-X- * -X- * * -X-

“These general rules are well summarized in 1 Wright, Federal Practice and Procedure: Criminal § 175b, as follows: ‘The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required . . . The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and a defense, and leaving the court nothing to do but to impose sentence and enter judgment.

A defendant who has pleaded guilty is not barred from claiming that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the pleading showed on its face that the prosecution was barred by the statute of limitations. The plea of guilty does waive, however, all nonju-risdictional defects in the proceeding. In particular, it bars any claim that the prosecution obtained evidence unlawfully, or that the defendant was illegally detained, or that the prosecution constituted double jeopardy, (footnotes omitted and emphasis supplied).’

See, Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); Hoffman v. United States, 327 F.2d 489 (9th Cir. 1964); Thomas v. United States, 290 F.2d 696 (9th Cir. 1961), cert. den. 368 U.S. 964, 82 S.Ct. 446, 7 L.Ed.2d 401 (1962).

* -X- -X- -X- *x- *

“It is also well established that a guilty plea is not rendered invalid because it represents a compromise by defendant, thrusts a difficult judgment upon him,- or is motivated by fear of greater punishment. See Brady, supra; McMann, supra; Parker v. North Carolina, supra, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970); McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The State may properly encourage pleas of guilty either by being more lenient to those who enter such pleas, see Brady, supra, 397 U.S. at 750-753, 90 S.Ct. 1463, or by increasing the risks of punishment on those who do not, see North Carolina v. Alford, supra, 400 U.S. at 37, 91 S.Ct. 160; Parker v. North Carolina, supra, 397 U.S. at 795-796, 90 S.Ct. 1458. The constitutional standard remains, in Justice Harlan’s words, “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’’. North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. at 164; also see Boykin v. Alabama, supra, 395 U.S. [238] at 242, 89 S.Ct. 1709 [23 L.Ed.2d 274]; Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

“The guilty plea has a central role in the criminal process. See Brady, supra, 397 U.S. at 752 n. 10, 90 S.Ct. 1463. Approximately 90% of all criminal proceedings commenced in the United States district courts are settled by the entrance of a plea of guilty or one of nolo contendere. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring, at n. 2). Plea bargaining is now openly recognized as an important prosecutorial tool in obtaining these pleas which are indispensable to the smooth functioning of the existing system of criminal justice.5 The Supreme Court held in Santobello, swpra, that where “a plea rests in any significant degree on a promise or agreement of the prosecutor . . . such promise must be fulfilled,” and perhaps even be specifically performed.

“The defendants at bar had every right to and did in fact plead not guilty. After their motion to suppress was overruled they were confronted by one of the hard choices of which our criminal process is replete. See McGautha v. California, supra, 402 U.S. at 213, 91 S.Ct. 1454. They could go to trial on charges of armed robbery and put the government to its burden of proving their guilt, see McMann v. Richardson, supra, 397 U.S. at 767, 90 S.Ct. 1441; United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965), or they were free to bargain with the prosecutor and offer to plead guilty to a reduced charge or be promised leniency.

“In intelligently weighing their options, the defendants chose to plead guilty to reduced charges. Their mental calculus was undoubtedly affected by the district court’s ruling on the motion to suppress and by their estimation of the likelihood of that ruling being set aside on appeal.6 If they and their counsel believed the chances of reversal to be high, we fail to understand what was to be. gained by pleading guilty. The plea of not guilty should have been maintained and the government' put to its burden.”

In the foregoing decision the Court of Appeals for the Sixth Circuit concluded that even with the consent of the prosecution, pleas of guilty cannot be accepted while the defendant reserves the right to appeal on non-jurisdictional grounds.

In the interest of orderly procedures in the conduct of criminal trials, in order that criminal prosecutions may be reduced to final judgments so as to confer appellate jurisdiction, and for all the reasons so ably set forth in United States v. Cox, supra, we agree with the principles there announced.

This leaves one matter for disposition. Sepe pleaded nolo contendere to Count 5 of the indictment. On appeal, apparently for the first time, it is now noticed that this count was defective for failure to assert the essential “knowledge” required under the Old Narcotic Drugs Import and Export Act, 21 U.S.C. § 174. The government concedes this point, that the count did not charge an offense defined by law.

Since the sentence on Count 5 was for a non-existent offense, the judgment as to that count will be vacated and remanded with directions that the sentence on that count alone be set aside and the count itself dismissed.

The judgment and sentence of the District Court as to Counts 1 and 2 of the indictment are in all respects affirmed.

Affirmed in part.

In part (as to Count 5) vacated and remanded with directions.

GOLDBERG, Circuit Judge

(specially concurring):

I concur in the result and add only a few lines, which may or may not be superfluous. I merely emphasize that not every prosecutorial flaw is waived by entering a plea of guilty — it is only non-jurisdictional defects that occurred prior to the plea that are waived by knowingly, willingly, and voluntarily pleading guilty. See United States v. Cox, supra, 464 F.2d at 940. Thus, even a defendant who pleads guilty may later assert that the indictment fails to state an offense. Here, appellant challenged count V on this ground, and the government conceded error. A second example of a right that is not surrendered by pleading guilty is the power to attack the constitutionality of the criminal statute involved. Haynes v. United States, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. Here, appellant challenges 21 U.S.C. § 841 as being violative of the tenth amendment and 21 U.S.C. § 952(a) as failing to require “knowledge and intent.” Both points border on the frivolous. Section 841 was held proper under the Commerce Clause in United States v. Lopez, 5 Cir. 1972, 459 F.2d 949, and § 952, when read with § 960, as it must be, requires knowledge and intent. Appellant’s points must fail'.

ON PETITION FOR REHEARING

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

The appellant contends that his situation should be governed by the decision of this Court in United States v. Caraway, 1973, 474 F.2d 25.

The record in Sepe’s case, however, is entirely bereft of any agreement on the part of the trial court that the defendant could enter his pleas and thereafter appeal. To the contrary, the record shows that the trial court specifically warned Sepe that if he entered the pleas there would be nothing left but the imposition of sentence.

GOLDBERG, Circuit Judge

(dissenting) :

I respectfully dissent from the denial of appellant’s petition for rehearing in this case. In the light of United States v. Caraway, 5 Cir. 1973, 474 F.2d 25, I would grant the petition and would remand the case in order to allow the district court to make factual findings as to whether appellant was led to believe that he would be allowed to appeal the evidentiary ruling and whether appellant in fact attempted to “preserve” the right to appeal that ruling.

ORDER GRANTING REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

BY THE COURT:

A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc,

It is ordered that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar Pequeno De LEON, Defendant-Appellant.
    No. 72-2536.
    United States Court of Appeals, Fifth Circuit.
    March 2, 1973.
    Rehearing Denied April 23, 1973.

      Richard G. Morales, Jr., Laredo, Tex., Alan Brown, San Antonio, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Anthony C. Aguilar, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldirch, Senior Circuit Judge of the First Circuit, sitting by designation.

   PER CURIAM:

De Leon was convicted of possession of heroin with intent to distribute, in violation of Title 21, U.S.Code, Section 841(a)(1). We affirmed, United States of America v. De Leon, 5 Cir. 1972, 462 F.2d 170.

During that trial De Leon took the witness stand in his own behalf. He testified that with a friend from San Antonio, where he also resided, he had made a trip in the friend’s vehicle to Laredo, Texas, and the over the border city of Nuevo Laredo, Mexico, to visit the bars and houses of prostitution in the Mexican city. The trip was made at the defendant’s suggestion and at his expense. He stated that he and his friend became separated. When the friend failed to appear De Leon thought that he was left without transportation home to San Antonio. He testified that he told some newly found friends in a Nuevo Laredo bar of his predicament, and they offered him the use of an extra car which they had for him to drive back to San Antonio. It was De Leon’s testimony that the vehicle thus furnished was the Pontiac in which he was arrested a short time later, that he had never seen it before this day and that he was unaware of the fact that there were any narcotics present in the vehicle when he was stopped at the border patrol checkpoint some eight to ten miles north of Laredo, Texas.

This reasonably plausible testimony, if unchallenged, might well have been accepted by the jury. But in rebuttal the government offered the testimony of a Texas State Highway Patrolman who had arrested the defendant a week before, en route to Laredo, in the same Pontiac car as the one he was driving on the occasion of the arrest. The traffic ticket issued to the defendant by the officer bore De Leon’s signature as well as his name and the description by make, model and color and license plate number of the vehicle. A copy of the traffic ticket was found in the glove compartment of the Pontiac at the time of the arrest.

The defendant was indicted, tried and convicted of perjury, Title 18, U.S.Code, Section 1621, for the giving of this testimony. This appeal followed.

Appellant’s first contention on appeal is that the falsity of his testimony as to never having seen the car before the day of his arrest was not corroborated, or not sufficiently corroborated. The longstanding rule is of course that perjury may be proved by two witnesses or by one witness and corroborating evidence. McWhorter v. United States, 5 Cir. 1952, 193 F.2d 982; Hug v. United States, 6 Cir. 1964, 329 F.2d 475; United States v. Manfre-donia, 2 Cir. 1969, 414 F.2d 760; Geb-hard v. United States, 9 Cir. 1970, 422 F.2d 281.

The government relies upon the traffic summons found in the car at the time of the arrest and the Highway Patrolman’s testimony as to the circumstances surrounding its issuance and the date thereof as sufficient corroboration.

The appellant relies upon United States v. Rose, 3 Cir. 1954, 215 F.2d 617, and United States v. Freedman, 2 Cir. 1971, 445 F.2d 1220, for his contention that the traffic ticket would not amount to sufficient corroboration because it was given to De Leon by the witness himself. We do not read these decisions as holding that the independent corroboration may not be tied in any way to the testimony of the original witness, nor do we find them apposite on the facts.

We agree with the government that the warning ticket would, standing alone, refute the perjured statement. The ticket contained an accurate- description of the car, its license number and the date of the arrest as well as the defendant’s signature. Most important was the independent source from which the warning ticket originated. It was found in the vehicle in the defendant’s possession at the time of his arrest. We hold that independent corroboration of the arresting Highway Patrolman’s testimony was present in this case.

The defendant makes a second point that the court below erroneously admitted in evidence the record of the previous narcotics trial, contending that although his counsel stipulated to the ae-curacy of the transcript there was no stipulation as to its admissibility. He cites Harrell v. United States, 5 Cir. 1955, 220 F.2d 516, a perjury case, as holding that although it was proper under the circumstances there to admit the transcript of a previous trial, “the admission of testimony taken at the former trial may introduce into the trial of the perjury charges highly prejudicial evidence tending to show the commission of other crimes.” He then argues on brief and orally that he was prejudiced here because the transcript showed that he was convicted of the narcotics offense at the former trial. The trouble with the appellant’s position is that this point, whatever it is worth, was not preserved for review by appropriate objection in the trial court. At the commencement of the trial when the prosecuting attorney was given leave by the court to read the indictment to the jury, defense counsel made the following objection:

“Mr. Brown: Your Honor, if it please the court, on this indictment, we object to reading the particulars of the other offense in that this might prejudice the jury in the case at bar, and we think that it should only be read — there was a case against the United States but not specifically being a narcotics violation.
The Court: I think it comes a little late as to the form of the indictment. You told me this morning that you are going to offer the entire record in the ease. I don’t see where it will make any difference.”

This oblique reference was not, in our judgment, sufficient to present the trial court with an opportunity to limit the use of the transcript of the prior trial in any way. The imprecision with which the objection was made and the uncertainty of its purpose required elaboration after the response of the court quoted supra. Failing such elaboration, we are disinclined to attribute error to the trial judge in this respect, assuming arguendo that properly preserved the point would have been meritorious. Al-lis v. United States, 1894, 155 U.S. 117, 122, 15 S.Ct. 36, 39 L.Ed. 91.

Immediately thereafter, following opening statements by the government and defense counsel, the government attorney, as first in his order of proof, read before the jury without objection counsel’s stipulation for the admission of a copy of the indictment and a certified copy of the transcript of the prior trial.

Error is not demonstrated in either of the respects claimed. The judgment below is

Affirmed.

      . The materiality of the perjured testimony given by De Leon, Blackmon v. United States, 5 Cir. 1940, 108 F.2d 572, could hardly be questioned. He was found in actual possession and his only feasible defense would be that the Pontiac was not his and had been loaned to him, and thus that he had no knowledge of the heroin concealed in the car. His testimony that he had never seen the car before met this Court’s test for materiality. Blackmon, supra.

      . The stipulation as read by government counsel was as follows :
      “Now comes the government, by and through its counsel of record in the above cause, Anthony C. Aguilar, joined by counsel for the defendant, Alan Brown, and the defendant, Oscar Pequeño De Leon, personally, and moves the court to accept the following stipulation in evidence and that the stipulation in all particulars is true and correct.
      “(1) That on or about September 27, 1971, the Federal Grand Jury for the Laredo Division of the Southern District of Texas, returned an indictment which was filed under criminal number 71-L-910, and was entitled United States of America versus Oscar Pequeño De Leon. The indictment charged that Oscar Pequeño De Leon unlawfully, knowingly, and intentionally possessed with intent to distribute approximately fifty-one ounces of heroin hydrochloride, in violation of Title 21, United States Code, Section 841(a) (1), and that Oscar Pequeño De Leon did unlawfully, knowingly, and intentionally import into the United States approximately fifty-one ounces of heroin hydrochloride, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), and that Oscar Pequeño De Leon did unlawfully, knowingly, and intentionally import into the United States approximately fifty-one ounces of heroin hydrochloride without having in effect a registration issued in his name in violation of Title 21, United States Code, Sections 957(a) (1) and 960 (a) (1).
      “(2) That on November 10, 1971, the said case of United States of America versus Osear Pequeño De Leon criminal number 71-L-910, was called by the United States District Court for trial and sworn testimony and other evidence was presented by the parties before the Honorable Ben C. Connally and a petit jury. At such time, the United States District Court for the Southern District of Texas, Laredo Division, was a tribunal, competent to hear said case, and the case was one in which the laws of the United States authorized an oath to be administered.
      “(3) That at the trial of the case of United States of America versus Oscar Pequeño De Leon, criminal number 71-L-910, Oscar Pequeño De Leon, represented by counsel, elected to testify as a witness in his own behalf, under oath and after duly taking an oath to tell the truth, such oath having been administered by the Deputy United States Clerk, a person duly authorized to administer said oath, did testify in his own behalf.
      “(4) That the transcript of the testimony of the witnesses under oath in criminal action number 71-L-910 is a full and complete transcript of testimony adduced during trial commencing November 10, 1971, before the United States District Court for the Southern District of Texas, Laredo Division, the Honorable Ben C. Connally presiding.
      “We, the undersigned, have read, understand, and agree to the foregoing stipulation.” and it is signed by myself, counsel for the defendant and by the defendant personally.
      The Court: That is agreeable to you, Mr. Brown, and the defendant personally?
      Mr. Brown : Yes, it is.


author: ROBERT P. ANDERSON, Circuit Judge:

text:
    Nick SOTELL, Plaintiff-Appellant, v. MARITIME OVERSEAS INC., and Ocean Transportation Co., Inc., Defendants-Appellees. OCEAN TRANSPORTATION COMPANY INCORPORATED, Defendant and Third Party Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORP., and New York Shipbuilding Corp., Third Party Defendants-Appellees.
    Nos. 394, 478, Dockets 35036, 34986.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 29, 1973.
    Decided Feb. 26, 1973.

      Ned R. Phillips, New York City (Abraham E. Freedman, New York City, on the brief), for plaintiff-appellant.
    William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, Hollis M. Walker, Jr., and Richard A. Cor-win, New York City, on the brief), for defendants-appellees and defendant and third party plaintiff-appellant.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

Nick Sotell, a sixty-five year old seaman with over forty years of sailing experience, was serving as Second Assistant Engineer aboard the t/s Ocean TJlla, owned and managed respectively by the defendants Ocean Transportation Co. and Maritime Overseas, Inc. (shipowner), when, on October 4, 1965, a turbine explosion in the port forced draft blower ripped loose pieces of asbestos insulation which injured him. He brought this action against the shipowner under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness. The shipowner brought a third-party action against Westinghouse Electric Corporation, the manufacturer of the turbine, and New York Shipbuilding Corporation, the builder of the Ocean Ulla. In the primary action the jury found in favor of the shipowner; and the third-party action, tried to the court alone, was dismissed without prejudice.

At the trial, Sotell testified that as part of his job in helping to secure the port boiler for its annual cleaning, he was ordered by the Chief Engineer to shut down the port forced draft blower which was located in the fidley, the highest level of the engine room. As he reached the blower, he testified that the turbine was going “like a jet,” vibrating, and throwing asbestos lagging, and that he tried to stop it with the emergency “over speed trip.” When this attempt failed, however, he began to close the steam intake valve, but, before he could take more than several turns on it, the blower exploded and he was hit in the head by some asbestos pieces which knocked him “out for a few minutes.” He then got up, finished closing the intake valve, and moved to the other side of the blower to close the exhaust valve when the Chief Engineer arrived.

The only other witness on the liability issue, Chief Engineer Macon Rowse, testified that he was about forty feet below the fidley when he heard an explosion. After he started up the ladder to investigate, he heard a sound like a tube being deflated and noticed that the back pressure gage was falling. When Rowse reached the blower, within thirty seconds after the explosion, Sotell was at the exhaust valve and, without being asked, said to Rowse, “I didn’t touch them, Chief, I didn’t touch them.”

The Chief Engineer testified that So-tell, contrary to proper operating procedure, must have closed the exhaust valve before closing the intake or supply valve, and that after the explosion, he had reopened the exhaust valve. This- explained the noise of deflation, accompanied by the drop in the back pressure line after the explosion, because, if the exhaust valve had been opened at the time of the explosion, the back pressure would have dropped immediately.

Additional testimony was developed at the trial to the effect that the port forced draft blower had been in good condition before the explosion and that all of its parts were in good working order afterwards, except that its casing was split open. Furthermore, Sotell admitted that he had not read the instruction book for operating this machinery, and he had not previously closed down this blower or worked with similar equipment for a number of years. So-tell also testified at trial that the intake valve was very low and that he bent down to turn it, but he had testified at the taking of his deposition that he could reach it standing up. Actually it is undisputed that the exhaust valve was at a higher level than the intake valve.

The appellant claims that he was entitled to a directed verdict or a judgment notwithstanding the verdict or, at the very least a new trial. If the only evidence in the case was the undisputed fact that the plaintiff was injured by an explosion of unknown origin, then he probably would have been entitled to a verdict, Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2 Cir. 1970); Van Carpals v. The S.S. American Harvester, 297 F.2d 9 (2 Cir. 1961), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 84 (1962); Sprague v. The Texas Co., 250 F.2d 123 (2 Cir. 1957). Here, however, the defendant produced evidence which supported a finding that the plaintiff’s negligent actions alone were the cause of the explosion; and the court correctly charged, without objection, that the plaintiff could not recover if his negligence was the sole cause of the accident, Pisano v. The S. S. Benny Skou, 346 F.2d 993 (2 Cir.), cert. denied, 382 U.S. 938, 86 S.Ct. 389, 15 L.Ed.2d 349 (1965); Dixon v. United States, 219 F.2d 10, 16-17 (2 Cir. 1955); Donovan v. Esso Shipping Co., 259 F.2d 65, 67 (3 Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); cf., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971).

The appellant argues, however, that he was entitled to a directed verdict or judgment n. o. v. on the ground that the defendant failed to produce sufficient evidence that he did anything wrong, or, that if he did, that it was a proximate cause of the explosion. In order to prevail in this argument, however, he must show either that there was no evidence on the point or that the evidence, when viewed in the light most favorable to the appellee, would be such that reasonable men could not find for the defendant, Fortunato v. Ford Motor Co., 464 F.2d 962, 965 (2 Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1132 (2 Cir.), cert. denied, 400 U.S. 916, 91 S.Ct. 175, 27 L.Ed.2d 155 (1970); Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2 Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970).

There was certainly ample evidence based upon the Chief Engineer’s testimony and certain inconsistencies in So-tell’s for the jury to conclude that the plaintiff made the mistake of closing the exhaust valve before shutting off the intake valve. Furthermore, the jury was warranted in deciding that such action was the sole cause of the explosion. While it is true that no witness specifically stated, in haec verba, that closing of the valves in the wrong order would cause an explosion, there was abundant testimony from both Rowse and Sotell that steam driven equipment must always be closed down by first shutting off the intake valve and secondly closing the exhaust valve. It was a fair inference, then, for the jury to conclude, based upon their common sense, that So-tell’s actions caused a steam pressure build-up sufficient to create the explosion, Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); Schulz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 100 L.Ed. 668 (1956); see also, Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959).

The trial court, after due deliberation, denied the appellant’s motion for a new trial based upon the weight of the evidence. This motion is addressed to the discretion of the trial court, and we find no reason to upset his determination, Oliveras, supra, 431 F.2d at 817; Compton, supra.

The appellant also claims error in several of the trial court’s rulings concerning the admissibility of evidence. He first contends that it was wrong for the court to sustain an objection to his cross-examination of Chief Engineer Rowse in regard to the absence of a spring-loaded exhaust valve on the port blower.

While it is true that the absence of such a valve might have been probative on the issue of seaworthiness, the objection to plaintiff’s counsel’s particular question was properly sustained. Counsel had asked if the turbine had a back pressure trip to which Rowse replied in the negative but acknowledged that it was a safety device, and he further testified that the turbine had no spring-loaded exhaust valve. Plaintiff’s counsel’s next question was whether this, too, was a safety device, but defense counsel interposed an objection, which the court sustained. Plaintiff’s appeal from this ruling is not well taken because even if the spring-loaded exhaust valve was “a safety device,” such a fact was irrelevant until there was sufficient testimony, by way of foundation, to indicate that such a valve was required in order to make the vessel “reasonably suitable for her intended service,” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). But there was no testimony that a spring-loaded valve was needed, nor did counsel attempt to ask Rowse whether or not he thought one was needed.

On appeal Sotell makes much of the fact that the shipowner in its third-party action against the shipbuilder attempted to show that the specifications for the ship called for a certain type of valve on the port blower which was not installed. But even if we could consider testimony from that action in regard to the primary case, it would make no difference, because there was no testimony on the point; there was nothing more than counsel’s arguments that the valve called for in the plans would have prevented the accident. Moreover, there was no proof that such a valve was needed in order to make the ship reasonably fit.

The appellant also claims error in the admission into evidence of a Coast Guard Certificate of Inspection and an American Bureau of Shipping report based on examinations of the t/s Ocean TJlla while she was in dry dock during December, 1964. Sotell argues that these agencies’ approval of the condition of the vessel was irrelevant because the inspections, as shown on the face of the reports, did not include a detailed examination of the port forced draft blower. Chief Engineer Rowse, however, testified that both the Coast Guard and the American Bureau of Shipping checked all the equipment, including the turbine fan blowers; therefore, there was no error in the admission of the inspection reports.

The judgment in favor of the defendants against the plaintiff is affirmed, and in light of this, the judgment dismissing the shipowner’s third-party action without prejudice is also affirmed.

      . The pertinent testimony was as follows:
      “Q. Did this turbine have a back pressure trip? A. Not a back pressure trip, no.
      Q. Do you know what a back pressure trip is? A. Yes.
      Q. That is a device which automatically knocks off the turbine if the back pressure builds up; isn’t that correct? A. That’s correct.
      Q. That is what is known as a safety device, isn’t it? A. Yes.
      Q. Did this turbine have a spring-loaded exhaust valve? A. No.
      Q. That also is a safety device which would automatically open the valve if the pressure were to build up inside the turbine, isn’t that correct?
      Mr. Kain: If your Honor please, I object on the grounds that there is no testimony in this case at this time that there is any requirements that this turbine have a back pressure trip or a spring-loaded exhaust valve.
      The Court: Objection sustained.”


author: WIDENER, Circuit Judge:

text:
    TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Inc., Plaintiffs-Appellants, v. MARTIN-MARIETTA CORPORATION, Defendant-Appellee. TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Inc., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee. TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Inc., Plaintiffs-Appellants, v. McDONELL AIRCRAFT CORPORATION, Defendant-Appellee. TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Inc., Plaintiffs-Appellants. v. INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Defendant-Appellee.
    Nos. 72-1597 to 72-1600.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 1, 1972.
    Decided Feb. 20, 1973.

      Sidney Bender, New York City (Aaron Lewittes, Leventritt, Lewittes & Bender, New York City, on brief), for plaintiff s-appellants.
    Edward F. McKie, Jr., Washington, D. C. (Benjamin C. Howard and Miles & Stockbridge, Baltimore, Md., on brief), for defendant-appellee, Martin-Marietta Corp.
    William E. Schuyler, Jr., Schuyler, Birch, Swindler, McKie & Beckett, Washington, D. C., on brief, for defendant-appellee, Westinghouse Electric Corp.
    Jervis Spencer Finney, Ober, Grimes & Shriver, Baltimore, Md., Charles H. Walker, Albert E. Fey and Fish & Neave, New York City, on brief, for defendant-appellee, McDonnell Aircraft Corp.
    Dana M. Raymond, Brumbaugh, Graves, Donohue & Raymond, New York City, Norwood B. Orrick and Venable, Baetjer & Howard, Baltimore, Md., on brief, for defendant-appellee, International Telephone and Telegraph Corp.
    Before BUTZNER, FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

These cases arose when the plaintiffs (appellants) filed patent infringement suits against the defendants (appellees) in the United States District Court for the District of Maryland. The plaintiffs are, respectively, the owner and exclusive licensee under Eisler’s United States Patent No. 2,706,697 (’697). The complaints allege that the defendants infringed Claims 4 and 10-14 inclusive of ’697. The defendants pleaded collateral estoppel, claiming that the same issues before the court had been adversely decided against the plaintiffs in Technograph Printed Circuits, Ltd. v. Bendix Aviation Corporation, 218 F.Supp. 1 (D.Md.1963), aff’d. 327 F.2d 497 (4th Cir. 1964), cert. den. 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36 (1964) (hereinafter Bendix). The district court sustained the defendants’ pleas of estoppel and dismissed the cases. We affirm on the authority of Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).

In Blonder-Tongue, the Supreme Court granted certiorari following a conflict between the Seventh and Eighth Circuits as to the validity of the patent there in question. The Eighth Circuit had previously held the patent invalid in a suit by the Foundation as plaintiff against another defendant. The Seventh Circuit, in a suit by the Foundation as plaintiff, found the patent to be valid and infringed by Blonder-Tongue Laboratories. The court did not determine the issue of validity but overruled Trip-lett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), insofar as it foreclosed a plea of estoppel by judgment by a defendant facing a charge of infringement of a patent brought by a plaintiff which had previously, as a plaintiff, had the patent declared invalid in litigation concerning the validity of the patent. The court abolished the doctrine of mutuality of estoppel in such patent cases. It held that a plea of es-toppel by judgment could be affirmatively asserted by a defendant where the issue decided in the prior adjudication was identical with the one presented in the present action, where there was a final judgment on the merits in the prior case, and where the party-plaintiff against whom the plea was asserted was a party-plaintiff, or was in privity with such party-plaintiff, who received the adverse decision in the prior adjudication. The following excerpt from the opinion is the best expression of the court’s reasoning and explains the standards to be followed in determining whether or not such a plea of estoppel should be sustained:

“Even conceding the extreme intricacy of some patent cases, we should keep firmly in mind that we are considering the situation where the patentee was a plaintiff in the prior suit and chose to litigate at that time and place. Presumably he was prepared to litigate and to litigate to the finish against the defendant there involved. Patent litigation characteristically proceeds with some deliberation and, with the avenues for discovery available under the present rules of procedure, there is no reason to suppose that plaintiff patentees would face either surprise or unusual difficulties in getting all the relevant and probative evidence before the court in the first litigation.
“Moreover, we do not suggest, without legislative guidance, that a plea of es-toppel by an infringement or royalty suit defendant must automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical question finally decided against the patentee or one of his privies in previous litigation. Rather, the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have ‘a fair opportunity proeedurally, substantively and evi-dentially to pursue his claim the first time.’ Eisel v. Columbia Packing Co., 181 F.Supp. 298, 301 (D.C.Mass.1960). This element in the estoppel decision will comprehend, we believe, the important concerns about the complexity of patent litigation and the posited hazard that the prior proceedings were seriously defective.
“Determining whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case is of necessity not a simple matter. In addition to the considerations of choice of forum and incentive to litigate mentioned above, certain other factors immediately emerge. For example, if the issue is nonobviousness, appropriate inquiries would be whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., supra [383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545]; whether the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit; and whether without fault of his own the patentee was deprived of crucial evidence or witnesses in the first litigation. But, as so often is the ease, no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts’ sense of justice and equity.
“We are not persuaded, therefore, that the Triplett rule, as it was formulated, is essential to effectuate the purposes of the patent system or is an indispensable or even an effective safeguard against faulty trials and judgments. Whatever legitimate concern there may be about the intricacies of some patent suits, it is insufficient in and of itself to justify patentees relit-igating validity issues as long as new defendants are available. This is especially true if the court in the second litigation must decide in a principled way whether or not it is just and equitable to allow the plea of estoppel in the case before it.” (Footnotes omitted.)

402 U.S. at 332, 91 S.Ct. at 1444.

The first issue here is whether the parties-plaintiff in the present eases are the same parties-plaintiff as in Bendix. In Bendix, the plaintiffs were Techno-graph Printed Circuits, Ltd., and Tech-nograph Printed Electronics, Inc. The plaintiffs in the' present cases are Tech-nograph Printed Circuits, Ltd., and Technograph Printed Electronics, Inc. Thus, the parties-plaintiff are the same in both instances and the requirement of Blonder-Tongue that the parties-plaintiff be identical or in privity has been met.

We turn to the next requirement of Blonder-Tongue: that the issues in both proceedings be identical. In Bendix, the district court held that claims 4, 5, 10, 14, 15, and 16 of ’697 and certain claims of ’165 and ’960 were invalid for obviousness and anticipation. 218 F.Supp. 1, 31, 58. In the present appeal, no issue is raised concerning ’165 or ’960. Plaintiffs claim only that claims 4 and 10-14 inclusive of ’697 were infringed by the defendants. Although it appears that the validity of claims 11, 12, and 13 of ’697 were not specifically mentioned as being invalid in Bendix, an examination of those claims shows that they were dependent on claim 10, which was held invalid in Bendix. Also, the trial court’s opinion states that the parties here conceded that the issues in suit were identical to the issues decided against plaintiffs in Bendix (340 F.Supp. 423, 425), and this is not contested on appeal. Accordingly, the requirement of Blonder-Tongue that the issues be identical in both proceedings has been complied with.

The next step in determining whether Blonder-Tongue should apply is to ascertain whether plaintiffs were given a full and fair opportunity, procedurally, substantively, and evidentially, to litigate the validity of ’697 in Bendix. We conclude that they were.

The Bendix trial took twenty-nine court days, during which the plaintiffs filed 458 exhibits and the defendants 543 exhibits. Several additional days were spent by the court in visiting the plants of Bendix and of licensees of the plaintiffs. Following the last day of trial, the parties filed additional briefs, over 600 pages, followed by two days of argument. No claim was made then, nor is any made now, that the court, in Bendix, excluded any relevant evidence that was offered.

In its decision in Bendix, the district court discussed the background of Dr. Paul Eisler, the applicant in ’697. The court continued by setting out the claims in issue and the positions taken by the parties to the suit. The court then traced, in a painstakingly detailed process that need not be repeated here, the history of the three Eisler patents in the Patent Office.

In discussing the issue of validity, the court recognized the statutory presumption of validity of a patent from the fact of its issuance and that the burden on one attacking the validity of the patent is heavy. Bendix, 218 F.Supp. at 23. The court also recognized that the presumption of validity was weakened by the failure of the Examiner to cite a number of patents pertinent to the validity of plaintiffs’ patents in issue. Bendix at 23. It then considered the state of the art prior to, and at the time of, Eisler’s claimed inventions. In discussing the state of the prior art, the court not only considered those patents considered by the Examiner in the prosecution of the Eisler patents, but also patents not mentioned by the Examiner, which the court felt were pertinent to the validity of Eisler’s patents. Concerning the metallic resist claim of ’697, the court said that patents by Newton, Stubbles, McFarland, Dejey, and Payne were not cited by the Examiner, but that they clearly disclosed a metallic resist concept. Bendix at 37. Patents which were before the court and which were considered by it with respect to the Eisler patents were: Stevens and Dallas application No. 184,419, incorporated by reference in Stevens and Dallas Patent No. 2,219,497; Bassist, Patent No. 1,525,531; Miller, Patent No. 1,804,021; Pilkington, British Patent No. 461,275; Whilems, British Patent No. 454,937; Littledale, British Patent No. 327,356; O’Connell, Patent No. 2,-288,735; the Russian Patent 59,791 to Abramson and Kabakova and the article published by them in 1940; Ducas, Patent No. 1,563,731; Norris, Patent No. 2,282,203; and Rubin, Patent No. 2,-443,119, as well as others. See Bendix, supra, 218 F.Supp. 1.

The district court considered the Stevens and Dallas application to be a complete anticipation of the alleged Eisler inventions. But the court did not stop there; it continued, saying:

“Should another court find that the alleged Eisler inventions were not identically disclosed or described in the Stevens and Dallas application, this court unhesitatingly finds and holds that ‘the differences between the subject matter sought to be patented and the prior art’ were ‘such that the subject matter as a whole would have been obvious at the time the (alleged) invention(s) (were) made to a person having ordinary skill in the art to which said subject matter pertains’.” (35 USC § 103)
“Even apart from the Stevens and Dallas application the court holds that the other prior art, cited and uncited by the Examiner conclusively shows lack of novelty.” 218 F.Supp. at 31.

It found as a fact that the progress of printed circuitry was attributable to the development of a satisfactorily bonded metal clad laminate rather than any gain in the knowledge of the printing and etching of metals. The court said: “. . . many were working at about the same time as Eisler on printing and etching techniques. None succeeded commercially until a satisfactory bonding of metal to insulation was obtained; thereafter, many succeeded.” 218 F.Supp. at 52.

Throughout the district court’s opinion in Bendix, there is shown painstaking deliberation by the court to consider the contentions presented by both sides. There is absolutely no evidence that the plaintiffs did not have a full and fair opportunity to litigate the validity of patent ’697 in Bendix, procedurally, substantively, and evidentially. The opportunity to litigate standards of Blonder-Tongue were met in the district court.

The patents having been declared invalid by the district court, plaintiffs appealed to this court. Both parties filed extensive briefs and were given two hours each for oral argument.

Plaintiffs, on appeal, urged that the lower court had erred in holding that the Stevens and Dallas application was an anticipation of the Eisler patents in suit. In oral argument, counsel for Bendix admitted that the Stevens and Dallas application was not an anticipation of the metallic resist method of ’697, so this court was not misled by the too broad holding of the district court.

The plaintiffs next urged that the district court erred in holding that the Eis-ler patents were invalid for obviousness. They contended that the district court failed to use an objective standard in determining the issue of obviousness. The standard they claimed the court should have used was whether or not the Eisler inventions, at the time they were made, were obvious to a person of ordinary skill in the art. One of the basic themes of plaintiffs’ appeal in Bendix, then, was that the district court applied the wrong standard as to obviousness and thus failed to grasp the issues and possibly the technical aspects of the subject matter in suit.

This court considered the above allegations along with the other contentions raised by the plaintiffs in their appellate briefs and affirmed the decision of the district court. The affirmance was:

“After careful consideration of the record, the arguments and the briefs of counsel, we are persuaded that the patent claims are invalid for obviousness in the light of the prior art for the reasons discussed in the opinion of the District Court. Technograph Printed Circuits, Ltd. v. Bendix Aviation Corp., D.C.Md., 218 F.Supp. 1. Affirmed.” 327 F.2d at 498.

Instead of mentioning anticipation in the opinion, the contentions raised by the plaintiffs as to obviousness were considered and rejected. In affirming the district court’s decision, the court squarely held plaintiffs’ patent claims were invalid for obviousness, necessarily holding that the trial court did apply an objective standard in determining the issue of obviousness.

Having received an adverse decision from a panel of this court, plaintiffs filed a Petition For Rehearing En Banc. In their petition, they stated that Bendix was a test case and contended that the district court and the panel of this court both failed to apply the objective test for obviousness. They also contended that since Bendix’s counsel admitted in oral argument that the Stevens and Dallas applications did not anticipate the metallic resist method of ’697, the panel should not have affirmed on the basis of the district court’s opinion as to obviousness because it was in error as to the anticipation issue. The court did not grant the Petition For Rehearing, emphasizing the decision of its panel.

Plaintiffs next sought certiorari in the United States Supreme Court, which was denied in Technograph Printed Circuits, Ltd., et al. v. Bendix Corp., 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36 (1964).

In the face of recited adverse rulings in Bendix, the plaintiffs continued with infringement suits here, in the same district court, against the present defendants, relying on the rule of Triplett for the proposition that an adverse adjudication as to the claims of infringement of a patent does not preclude another suit on the same claims against a different defendant. While these suits were pending, in May, 1971, the Supreme Court decided Blonder-.Tongue. There, as recited before, the court overruled Triplett to the extent of allowing a plea of collateral estoppel under the conditions set forth in Blonder-Tongue. The defendants here then pleaded collateral estoppel and moved to dismiss on the basis of Blonder-Tongue. After careful consideration of the briefs and argument of counsel for all parties involved, consideration of the Bendix case and its history and record, and a consideration of what plaintiffs alleged to be new evidence, the district court granted the motion to dismiss.

The court below held as follows:

“It is the Court’s firm opinion that: (A) Plaintiffs in Bendix had ‘a fair opportunity procedurally, substantively and evidentially to pursue’ their ‘claim the first time’; (B) the standards with respect to obviousness announced in Graham v. John Deere, 383 U.S. 1, 10, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) were met; (C) The opinions in the Bendix case do not indicate that it was one of those ‘rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit’; (D) the plaintiffs were not deprived ‘without fault’ of their own ‘of crucial evidence or witnesses’ in the Bendix case; and (E) ‘it is just and equitable to allow the plea of estoppel’ in these cases.” (Footnotes omitted) 340 F.Supp. at 425.

The district court set forth in detail its reasons for granting the motion in a well written opinion by Judge Watkins. 340 F.Supp. 423.

The plaintiffs appealed. Their first contention in this court is that Bendix determined that the metallic resist process of ’697 was disclosed by Eisler’s filing of patent ’960 on February 3, 1944. Thus, plaintiffs contend that the lower court’s dictum about possible invalidity of ’697 for indefiniteness, both in Bendix (218 F.Supp. at 43) and below (340 F.Supp. at 433), was wrong. The argument is also made by inference in plaintiffs’ first contention that the district court’s ruling on anticipation was also erroneous. Since this court in Bendix affirmed the district court’s holding of invalidity of the Eisler patents, including ’697, on the basis of obviousness, in light of the prior art, it is difficult to see the materiality of plaintiffs’ first point. The issue in the present cases is whether plaintiffs are estopped from litigating the validity of patent ’697 after this court’s affirmance in Bendix holding that ’697 was invalid for obviousness, not whether a dictum of the district court and a point previously disposed of by concession are free from objection. We are of opinion that the first contention of plaintiffs does not disclose error.

The second point on appeal is that both the district court and this court in Bendix “wholly failed to grasp the technical subject matter and issues in suit.” Blonder-Tongue, 402 U.S. at 333, 91 S.Ct. at 1445. This point is based on the holding of the district court in Bendix that the Stevens and Dallas application anticipated all three of Eisler’s patents. Plaintiffs also say that the district court misread Stevens and Dallas and Whilems as teaching a metallic resist process. Because of this court’s reliance in jBendix on the district court’s opinion as to obviousness, plaintiffs contend that both courts were confused as to the subject matter in suit in Bendix.

Contrary to plaintiffs’ assertion, the fact that all contentions concerning anticipation were disposed of without controversy and not considered by this court made it crystal clear that they were no longer any part of the case. To repeat, during oral argument, counsel for Bendix admitted that the Stevens and Dallas application was not an anticipation of the metallic resist method of ’697. This court did not affirm the district court in Bendix on the basis of anticipation, but on the ground of obviousness. Thus, the panel did understand the effect of the disclaimer by Bendix’s counsel and neither approved of nor considered the district court’s holding with reference to anticipation in affirming the decision of invalidity as to ’697.

Having again reviewed the actions of the district court in Bendix, we are of opinion that the district judge did not misconstrue Whilems or Stevens and Dallas to the extent that he wholly failed to understand the technical subject matter and issues. Whilems, the Stevens and Dallas application, and Eis-ler all concerned themselves with the use of various printing and engraving techniques to make electrical circuits. Where the district court erred in Bendix on the issue of anticipation was his necessary holding that the precise claims of the Stevens and Dallas application antic-' ipated Eisler ’697. Even if Whilems and the Stevens and Dallas application were so misconstrued by the district court, we are of opinion that the opinion in Bendix clearly shows that this was not “one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit.” The issue of anticipation having been removed, there is no evidence to show that this court wholly failed to grasp the situation in Bendix, either the issues or technical subject matter.

Plaintiffs next contend that the district court, in Bendix, failed to apply the standards set out in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). They allege that it failed to indicate why it would have been obvious to a person of ordinary skill in the electrical art to look to the non-electrical arts to make bimetallic conductive pathway patterns for electrical components. Further, it is argued that since the district court misread the Stevens and Dallas application, it was not able to accurately apply the objective standards of Graham.

Graham was decided subsequent to Bendix but did not change the test of 35 U.S.C. § 103. It merely set out inquiries to be made in determining whether a patent is obvious under § 103 and gives effect to the objective test for obviousness set out in the statute.

In Blonder-Tongue, the court said that one of the appropriate inquiries where the issue was that of obviousness should be “. . . whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., supra.” 402 U.S. at 333, 91 S.Ct. at 1445.

In the instant cases, it is the opinion of the court that the district court in Bendix did employ the standards required by Graham. The district court specifically held that the Eisler patents, including ’697, were invalid for obviousness because they “would have been obvious at the time the [alleged] invention [s] [were] made to a person having ordinary skill in the art.” 218 F.Supp. at 31. Throughout the district court’s opinion, it discussed in detail the scope and content of the prior art as well as the differences between the prior art and the claims at issue in Bendix. 218 F.Supp. 1, 25-38. Concerning the level of ordinary skill in the art, it is inconceivable that the district court could have held the Eisler patents invalid because they “would have been obvious at the time the [alleged] invention[s] [were] made to a person having ordinary skill in the art to which said subject matter pertains” without considering such a standard. At 218 F.Supp. 24, the court said:

“When available literature, both patents and publications, not cited, is considered, and also the ability of persons unaware of the alleged inventions to reach the same results by the same means, the court has no hesitation in holding the patents, and the claims in suit, to be invalid.”

This court is satisfied that the just quoted language from Bendix shows that the district court did consider the level of ordinary skill in the art in determining that Eisler’s patent ’697 was invalid for obviousness and that the standard used by the district court is compatible with that required by Graham.

Plaintiffs also raise an issue that the Norris Patent No. 2,282,203 (’203), issued May 5, 1942, was improperly considered by the court in Bendix. Even if this were true, plaintiffs have shown no reason why they could not have made the same argument to this court in the Bendix appeal. They had a fair chance to litigate the issue in Bendix and it may not be raised now. In all events, it does not show that the district court, in Bendix, did not grasp the technical subject matter or the issues involved.

The fourth point on appeal is that plaintiffs were deprived of crucial evidence through no fault of their own. The crucial evidence to which plaintiffs refer is the September 30, 1943 notes of one Milton D. Rubin. They contend that counsel for Bendix and Rubin, himself, misled them into a self-confessed failure to get access to the Rubin notes. They argue that they should not be collaterally estopped from asserting the validity of ’697 because not having the Rubin notes prevented them from having a full and fair opportunity to litigate the issue of validity in the Bendix case.

First, the plaintiffs allege that the Rubin notes were crucial evidence because they wanted to show that Rubin, being a person well beyond the ordinary skill in the art, had experimented with dissimilar metals but failed to discover the metallic resist process revealed in ’697. They argue that these notes, showing a failure to achieve the metallic resist process by one skilled in the art, could have resulted in a different result on the issue of obviousness of ’697 in the Bendix case.

It should first be pointed out that the Supreme Court, in Graham, gave effect to the objective test for obviousness under § 103. After setting out the three basic factual inquiries to be made in applying such objective test, the opinion then stated:

“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 to be patented. As indicia of obviousness or nonob-viousness, these inquiries may have relevancy.” 383 U.S. at 17, 86 S.Ct. at 694.

Thus, the failure of others to achieve the results of an allegedly valid patent does not necessarily make that patent non-obvious; such failure is only evidence that the court may look to in applying the objective test of § 103 along with all the other evidence in the case. It is not controlling as a matter of law and is a secondary consideration.

We turn now to the question of just how crucial the Rubin notes were to plaintiffs’ case in Bendix. At p. 38 of their brief, plaintiffs state that the Rubin notes, “plus the stated prior art failures, is objectively persuasive of obviousness of ’697.” Although plaintiffs’ statement may be abstractly correct, we believe that the Rubin notes, had they been introduced in the Bendix trial, probably would not have caused a different result. We feel that these notes would have been merely cumulative evidence entitled to secondary consideration. See Graham. In plaintiffs’ appeal in Bendix, the point is raised that many who possessed more than ordinary skill in the art had failed to discover the processes described by Eisler’s alleged inventions, thus showing non-obviousness. (See Brief of Plaintiffs in Bendix, p. 30.) Rubin’s notes were at best cumulative. This court rejected this argument then, and we are of opinion now that the presentation of the Rubin notes would not have changed our decision, especially since they were cumulative evidence of a secondary character. We do not then consider the Rubin notes crucial evidence within the meaning of Blonder-Tongue.

Assuming, however, the Rubin notes to be crucial evidence, the record shows that plaintiffs were not deprived of them through no fault of their own.

Technograph purchased Rubin’s patent ’119 on July 7, 1954, for 1500 shares of Technograph common stock, but did not get his notes as to the conception of the patent. Early in 1961, as part of the pre-trial procedures, Bendix filed a “Supplemental Answer to Plaintiff’s Interrogatory 6,” which had asked Bendix to identify each instance of alleged prior invention of the subject matter of the patents in suit. Bendix’s supplemental answer said that claims 4 and 10 through 16 of ’697 were conceived of by Rubin as early as September, 1943. [The date of the notes is 9/30/43] (See Appendix B, p. B-12.) Pursuant to this information, plaintiffs interviewed Rubin and his attorney on September 5, 1961. At this conference, Rubin informed the plaintiffs that if they wanted him to search his files for such information, he would have to be paid. The plaintiffs assumed, without any basis, that Rubin wanted something in excess of his regular rates. They then terminated the interview because they say they felt that the Rubin process was fully set forth in his patent and that it was not related to the Eisler patents in suit. The plaintiffs paid Rubin and his counsel for their time spent in the interview and pursued the matter no further. On September 22, 1961, counsel for Bendix advised the trial court and plaintiffs’ counsel that Rubin would testify in the Bendix case. In outlining the general testimony Rubin was expected to give, Bendix’s counsel stated that Rubin would testify that during 1943 he conceived a process wherein “a negative representation of the desired circuit component was printed as by photographic means on the metal surface of a foil-plastic laminate, a dissimilar metal was deposited on the uneoated portions of the foil, the resist was removed, and the exposed metal was then removed by etching.” (Appendix B, p. B-37.) On September 27, 1961, Bendix’s counsel informed the trial court and plaintiffs’ counsel that Bendix had decided not to call Rubin because it had been learned that Rubin had received payment from the plaintiffs for consultative services in the same litigation. Rubin and his notes were not produced at the Bendix trial.

Plaintiffs now contend that the McKie memo of September 7, 1961 shows that counsel for Bendix knew that the Rubin notes showed a failure to achieve the metallic resist process of ’697. They further allege that Bendix and Rubin misled them by implying that all the processes Rubin dealt with were set forth in his patent ’119. Thus, they argue that they did not try to get Rubin’s notes because they had his patent.

We disagree with the contention that plaintiffs were misled by Bendix and Rubin. We believe that Bendix’s supplemental answer to their interrogatory filed in January, 1961 and the September 22, 1961 outline of Rubin’s expected testimony was more than sufficient to put plaintiffs on notice that Rubin might have notes on processes which were relevant to the subject matter in suit. Plaintiffs show no basis for their assumption that Rubin wanted more than his usual fee for searching his records. The truth probably is that both parties were uncertain of how Rubin’s testimony might affect their case and therefore neither party called him to testify in the Bendix trial. Additionally, plaintiffs have offered no plausible excuse whatsoever for their failure to take the discovery deposition of Rubin. In view of the supplemental answer to the interrogatory and the outline of Rubin’s proposed testimony, the failure to even attempt to take Rubin’s discovery deposition, standing alone, would be sufficient to take the Rubin notes out of the “no fault of their own” requirement of Blonder-Tongue.

The fifth and final point that the plaintiffs raise here is that it is not just or equitable to estop them from reliti-gating the validity, of Eisler’s patent ’697 in view of a decision in the House of Lords on February 24, 1971 which sustained the validity of British patent No. 639,178. Plaintiffs claim that British patent ’178 is similar to Eisler’s American patent ’165, which is broader than ’697, and thus ’697, being more narrow, is a stronger patent than ’165 or ’178. From this, plaintiffs argue that they should be allowed to relitigate the validity of ’697 in light of the House of Lords decision.

We disagree with plaintiffs’ contention on this point. We agree with the analysis below of the House of Lords decision. 340 F.Supp. 423, 436-437. More importantly, allowing relitigation in the light of the House of Lords decision would allow subsequent litigation in light of a decision in a foreign forum which would not have been permitted in a domestic forum by Blonder-Tongue. We are not constrained to so weaken the Blonder-Tongue ruling by encouraging disappointed plaintiff patent holders to resort to a foreign forum in order to escape the consequences of domestic procedural rules in federal courts set out by the Supreme Court.

A final point which should be mentioned is that, prior to the decision in Bendix, plaintiffs had filed several actions in Chicago for infringement of the same patents. After the Bendix decision, the Chicago district court granted summary judgment of dismissal based on Bendix. The Seventh Circuit Court of Appeals reversed. Upon remand to the district court, a class action was ■commenced. The action was’ tried to the court. Before final argument, Blonder-Tongue was decided. The defendants then moved to dismiss on the ground of collateral estoppel based on Bendix. The district court in Illinois, after the decision of the district court in Maryland in the instant cas,es, sustained the pleas of estoppel, holding that plaintiffs had had a full and fair opportunity to litigate the issue of validity in Ben dix. Technograph Printed Circuits, Ltd., et al. v. Methode Electronics, Inc., et al., 174 U.S.P.Q. 197 (N.D.Ill.1972), appeal to the Seventh Circuit pending.

In conclusion, we should repeat the Supreme Court’s statement in allowing the defense of collateral estoppel in patent cases:

“Even conceding the extreme intricacy of some patent cases, we should keep firmly in mind that we are considering the situation where the patentee was plaintiff in the prior suit and chose to litigate at that time and place. Presumably he was prepared to litigate and to litigate to the finish against the defendant there involved. Patent litigation characteristically proceeds with some deliberation and, with the avenues for discovery available under the present rules of procedure, there is no reason to suppose that plaintiff patentees would face either surprise or unusual difficulties in getting all relevant and probative evidence before the court in the first litigation.” 402 U.S. at 332, 91 S.Ct. at 1444.

Here, the same plaintiffs considered Bendix a test case by which they sought to establish the validity of Eisler’s patents ’165, ’960, and ’697. They now seek to relitigate the issue of validity as to ’697. They failed to convince the district court in Bendix of its validity, and they failed on appeal to convince us that the district court was wrong in the instant cases, plaintiffs have failed to convince the same district judge who decided Bendix that they did not have a full and fair opportunity to litigate in Bendix. Again, we agree with the district court. We are of opinion that the plaintiffs had a full and fair opportunity to litigate the validity of ’697 in Bendix and that it is just and equitable to allow defendants’ pleas of estoppel. We believe the instant cases show precisely why the Supreme Court, in Blonder-Tongue, overruled Triplett and commenced the sustaining of pleas of estoppel by judgment in certain patent cases.

The judgment of the district court is accordingly

Affirmed.

      . The first Eisler application for a United States Patent, Serial Number 520,991, was filed February 3, 1944. As a result of such application, Patent No. 2,441,960 (’960) issued on May 25, 1948. On February 27, 1948, divisional application 11,798 was filed out of which Patent No. 2,587,568 issued on February 26, 1952, and was subsequently reissued on June 12, 1956 as United States Reissue 24,165 (’165). Divisional application 11,798 was further divided by Application 261,989, filed December 17, 1951, and as a result Patent No. 2,706,697 (’697) issued on April 15, 1955. Patent ’697 is the only one in issue in this case since plaintiffs voluntarily stipulated to dismissal, with prejudice, contentions concerning patents ’165 and ’960.
      Patent ’697 describes what is called the metallic resist process for the manufacture of printed electrical circuits. The process starts with an insulation-backed metal foil. A negative circuit imprint is made on the foil in acid resistant ink. Dissimilar metal is then plated onto the bare foil areas. The ink is then removed from the foil areas and the foil which is then bared is etched away in an acid bath that attacks the foil, but not the dissimilar metal. This leaves unetched the dissimilar metal and the foil protected thereunder. The effect is that the plated dissimilar metal acts as a resist to protect the underlying foil areas from being etched away.

      . Technograph Printed Cir. Ltd. v. Martin-Marietta Corp., 340 F.Supp. 423 (D.Md. 1972), appealed in these cases.

      . On remand, Blonder-Tongue pleaded estoppel and the district court, although it previously had held the patent valid, sustained the plea and entered judgment for the defendant. University of Illinois Found, v. Blonder-Tongue Lab. Inc., 334 F.Supp. 47 (N.D.Ill.1971), aff’d. 465 F.2d 380 (7th Cir. 1972).

      . Patent 2,706,697 to Paul Eisler — April 19, 1955 “Manufacture of Electric Circuit Components.”
      Application February 27, 1948, Serial No. 11,798, now Patent No. 2,587,568, dated February 26, 1952, which is a division of application Serial No. 520,991, February 3, 1944, now Patent No. 2,441,960, dated May 25, 1948. Divided and this application December 17, 1951, Serial No. 261,989.
      CLAIMS
      4. A method of manufacturing the conductive metal portions of electric and magnetic circuits of the kind including a conductive pathway pattern upon an insulation backing comprising the steps of printing a negative representation of the desired pathway pattern upon the metal surface of a sheet of foil clad insulation, thereupon depositing dissimilar metal upon the unprinted surfaces of the foil, and finally removing the foil from the imprinted areas whereby an insulation backed metallic pathway pattern is formed.
      10. A method of manufacturing a component of electric and magnetic circuit systems involving an insulation backed conductive pathway pattern, which comprises providing insulation backed foil, then printing a negative representation of the pattern upon said foil, depositing a layer of metal dissimilar to the metal of said foil upon all exposed parts of said foil, then removing said representation from the foil, and finally removing all parts of the foil exposed by said removal of the representation by chemical action attacking the metal of said foil but not said deposited dissimilar metal whereby said pathway pattern is formed.
      11. The method of claim 10 wherein the negative representation of the pattern is produced by letterpress printing.
      12. The ■ method of claim 10 wherein the negative representation of the pattern is produced by offset printing.
      13. The method of claim 10 wherein the negative representation of the pattern is produced by photo-mechanical means.
      14. A method of manufacturing a component of electric and magnetic circuit systems involving an insulation backed conductive pathway pattern, which comprises providing insulation backed foil, then printing a negative representation of the pattern upon said foil with a resist medium, then depositing by electrodeposition a layer of a metal dissimilar to the metal of said foil upon all exposed parts of said foil, then removing the resist medium, and finally etching away all parts of said foil exposed by the removal of the medium in a bath attacking the metal of said foil but not said dissimilar metal whereby said pathway pattern is formed.
      In Bendix, claims 4, 10, and 14 were specifically held invalid. 218 F.Supp. 1, 58. An examination of claims 11, 12, and 13 shows that they are dependent on claim 10, so that the holding of invalidity as to claim 10, of necessity, invalidated these claims also. Thus, the issues before the court in Bendix and the present cases are identical.

      . Bendix, 218 F.Supp. pp. 3-5.

      . Bendix, pp. 5-7.

      . Bendix, pp. 7-23.

      . Bendix, pp. 7-23.

      . See 218 F.Supp. 1, 58 for the precise patent and claim numbers invalidated by the decision.

      . This might possibly be relevant if it were intended to show that the district court was confused about the subject matter in suit. However, even if asserted for this proposition, this court is of opinion that it is without merit.

      . See note 10. The continued assertion of this point, disposed of by concession in the Bendix appeal, might lend itself to the inference that it is a tactical diversion.

      . The BendAx opinion shows that the trial judge understood the technical subject matter and the issues in suit. He spent four days of travel visiting the plants of licensees and of Bendix; spent twenty-nine court days trying the case; and had numerous pre-trial conferences. Plaintiffs do not contend that his description of the Eisler patents in BendAx was wrong or that his description of plaintiffs’ contentions at 218 E.Supp. 6 was inaccurate. They merely assert that he misread two of the numerous patent documents discussed in the opinion. Surely even if this were so, it would not be a case where a judge “wholly fails to grasp the technical subject matter and issues in suit.” As the Supreme Court said in Blonder-Tongue: “But assuming a patent case so difficult as to provoke a frank admission of judicial uncertainty, one might ask what reason there is to expect that a second district judge or court of appeals would be able to decide the issue more accurately.” 402 U.S. at 331, 91 S.Ct. at 1444.

      . “ . . . 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.” 383 U.S. at 17, 86 S.Ct. at 694.

      . Section 103 of 35 U.S.C. provides that a patent is invalid for obviousness “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.”

      . 218 F.Supp. at 31.

      . The use of an objective standard, in accordance with § 103, in determining the issue of obviousness has been the rule in this circuit at least since 1961. Honolulu Oil Corporation v. Shelby Poultry Company, 293 F.2d 127, 131 (4th Cir. 1961). There is no reason to believe nor evidence to show that the district court, in Bendix, applied anything other than the objective test of obviousness required by Graham. The record shows that plaintiffs’ main argument in their Petition For Rehearing En Banc to this Court in Bendix was that an objective standard was not used in determining the issue of obviousness. With the issue then squarely before the court, the Petition was not granted, and again we do not accept the argument on this point.
      In Anderson’s-Black Rock v. Pavement Co., 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969), the court held that a patent combining known elements, a radiant-heat burner, a spreader, and a tamper and screed, on one chassis was invalid because it was “reasonably obvious to one with ordinary skill in the art.” 396 U.S. at 60, 90 S.Ct. at 307. In dealing with the issue of obviousness, the court quoted the factual inquiries set out in Graham, and then said: “We conclude further that to those skilled in the art the use of the old elements in combination was not an invention by the obvious-nonobvious standard.” 396 U.S. at 62, 90 S.Ct. at 309.
      Nowhere in Anderson’s-Blaolc Rook did the Supreme Court set out what was the level of ordinary skill in the pertinent art, but the court necessarily considered it because of the holding that the patent was obvious.

      . The district court’s discussion of the development of printed electrical circuits, the various pertinent patents and related documents, the state of the prior art, the comparison between the prior art and Eisler, is remarkably similar to the Supreme Court’s factual analysis in Graham.

      . The Rubin notes of September 30, 1943 read as follows: “9/30/43-Gum bichro-mate albumen photomechanical process— for producing unitary process electronic-circuit.
      Plate silver on plastic by mirror process of chemical deposition.
      Then coat with gum bichromate albumen or cold enamel. Then expose with negative having opaque lines of circuit, remainder transparent. Then treat with etching ink, and develop, removing albumen from lines of circuit, exposing the pure silver base, leaving the remainder coated. Then treat with resin (rosin, asphaltum or dragonsblood powder) if cold enamel was not used, and burn in. Then plate circuit on in copper clear the resist off with strong potash or lye (caustic) sol. and silver off with nitric acid and then silver plate and lacquer.
      This method can also be used for plating solder or brazing alloy on fittings to be furnace-brazed. This constitutes an accurate method of placing solder or braze at joints.” (Appendix Vol. II, p. 190a.)

      . Rubin’s patent No. 2,443,119 (T19) used the same metal and not a dissimilar metal when plating upon the conductive surface not covered by the greasy ink. Then the ink was removed and the metal covered by the ink was etched away by an acid bath. However, during this process, the deposited added metal was attacked by the acid as well as the base metal.
      Eisler’s ’697 process used a dissimilar metal over the base metal which protected the base metal under it during the etching process.

      . We realize that much evidence as to non-obviousness must, of necessity, be negative evidence.

      . It should also be noted that in plaintiffs’ suit against the United States in the Court of Claims, Rubin was a witness and the notes were before Commissioner Davis. Presumably, plaintiffs made every argument as to the effect of Rubin’s failure on the issue of obviousness of ’697. Commissioner Davis, however, recommended that ’697 be held invalid. He said, in reference to Rubin as a witness, that his testimony showed that “he routinely looked to old and well-known practices of the printing art in the search for better ways to make electrical components.” (Appendix — Yol. Ill, p. 440a.) The Court of Claims has not yet decided whether or not to accept the recommendation of Commissioner Davis or whether or not to apply the doctrine of collateral estoppel under Blonüer-Tongue.

      . It should also bo remembered that Rubin had sold his patent ’119 to Tech-nograph for 1500 shares of Technograph common stock. The plaintiffs state in their brief that Rubin had disposed of this stock before September 5, 1961, but the record contains no contemporary reference to such disposal. The affidavit on which the statement is based is dated June, 1971. Whether the defendants knew of Rubin’s stock ownership in Technograph is not known.

      . The McKie memo was written by Bendix’s counsel, which did mention the Rubin notes of September 30, 1943. (Appendix Vol. II, pp. 216a-218a.) But, there is no indication whether Rubin showed counsel these notes- or counsel found them on his own. Also, there is no indication when Bendix’s counsel first saw them. Bendix’s counsel obviously had seen the Rubin notes by January, 1961, possibly in September, 1960, when he examined Rubin’s materials on a $20 per hour consulting basis. Appendix B, pp. B-12, B-23, B-25.

      . Mills & Rockley (Electronics) Ltd. v. Technograph Printed Circuits Ltd., House of Lords, (decided February 24, 1971), Appendix — Vol. II, pp. 178a-204a.

      . Technograph Printed Circuits v. Meth-ode Electronics, 356 F.2d 442 (7th Cir. 1966), cert. den. 384 U.S. 950, 86 S.Ct. 1570, 16 L.Ed.2d 547 and 384 U.S. 1002, 86 S.Ct. 1925, 16 L.Ed.2d 1016 (1966). The basis for reversal was Triplett v. Lowell, supra, as expressed in Aghnides v. Holden, 226 F.2d 949 (7th Cir. 1955).

      . Technograph Printed Circuits, Ltd. v. Methode Electronics, 285 F.Supp. 714 (N.D.Ill.1968).

      . Plaintiffs’ Petition For Rehearing En Bane before this court in the Bendix appeal, p. 1.

      . Blonder-Tongue has either been applied, not applied, mentioned, or remand has been granted in light of it, in the following patent cases: University of Ill. Found. v. Blonder-Tongue Lab. Inc., 334 F.Supp. 47 (N.D.Ill.1971), aff’d. 465 F.2d 380 (7th Cir. 1972), (Blonder-Tongue on remand from the Supreme Court); Southwest Products Co. v. Heim Universal Corp., 443 F.2d 621, 624 (2nd Cir. 1971); Monsanto Co. v. Dawson Chemical Co., 443 F.2d 1035, 1038 (5th Cir. 1971), cert. den. 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 248 (1972); Grantham v. McGraw-Edison Co., 444 F.2d 210, 216 (7th Cir. 1971); Black, Sivalls & Bryson, Inc. v. National Tank Co., 445 F.2d 922, 926 (10th Cir. 1971); Woodstream Corp. v. Herter’s, Inc., 446 F.2d 1143, 1149 (8th Cir. 1971); Boutell v. Volk, 449 F.2d 673, 677 (10th Cir. 1971); Business Forms Finishing Service, Inc. v. Carson, 452 F.2d 70, 74 (7th Cir. 1971); Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 595, 604 (3rd Cir. 1972), cert. den. 407 U.S. 934, 92 S.Ct. 2463, 32 L.Ed.2d 817 (1972); Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 370 (D.Del.1971); Hickory Springs Mfg. Co. v. Fredman Bros. Furniture Co., 330 F.Supp. 978, 980 (S.D.Ill.1971); In Re Suess Patent Infringement Litigation, 331 F.Supp. 549, 550 (Jud.Pan.Mult.Lit.1971); Butterfield v. Oculus Contact Lens Co., 332 F.Supp. 750, 761 (N.D.Ill.1971); Sampson v. Ampex Corp., 333 F.Supp. 59, 65 (S.D.N.Y.1971), motion for reargument den., 335 F.Supp. 242 (S.D.N.Y.1971); Nickerson v. Kutschera, 333 F.Supp. 1097, 1098 (D.Del.1971); Mobil Oil Corp. v. W. R. Grace & Co., 334 F.Supp. 117, 131 (S.D.Tex.1971); Blumcraft of Pittsburgh v. Architectural Art Mfg., Inc., 337 F.Supp. 853, 854 (D.Kan.1972), aff’d. 459 F.2d 482 (10th Cir. 1972); Ransburg Electro-Coating Corp. v. Spiller & Spiller, Inc., 340 F.Supp. 1385, 1389 (N.D.Ill.1972); In Re Yarn Processing Patent Validity Litigation, 341 F.Supp. 376 (Jud.Pan.Mult.Lit.1972); Blumcraft of Pittsburgh v. Kawneer Co., 341 F.Supp. 1018, 1019 (N.D.Ga.1971); Kaehni v. Diffraction Co., 342 F.Supp. 523, 526 (D.Md.1972); Dale Electronics, Inc. v. R. C. L. Electronics, Inc., 53 F.R.D. 531, 534 (D.N.H.1971).