Whirlpool Corp. v. Camco Inc.
A-630-97
Stone J.A.
22/1/99
19 pp.
Appeals from Trial Division judgment and consent judgment in patent infringement actions finding claims of _734 patent (combined oscillating and unidirectional agitator for automatic washer) valid and infringed by appellants and claims of _803 patent valid but not infringed-Issues in both appeals with respect to validity of _734 patent same-Both sets of appellants attack judgment of Cullen J. in first appeal on basis erred in rejecting contentions patent amounted to double patenting of same invention as patented by respondents in _401 or _803 patents or but obvious modification of that invention-Appellants contend part of _734 patent obvious improvement and first eleven claims of _734 patent broader than invention and therefore covetous-Appellants in first appeal contend Trial Judge erred in finding claims 6, 8 and 14 infringed-Finally, appellants submit Trial Judge erred in allowing respondents their costs of _803 patent proceedings in view of finding patent valid but not infringed-Appeals dismissed-Trial Judge correct in stating onus to prove validity of patent shifts to patentee once attacking party shows some evidence of invalidity, on balance of probabilities-Double patenting has not occurred herein-Essence of invention in _734 patent unique wash system produced by combination of flex vanes with dual action agitation, whereas dual action agitator with flex vanes not contemplated by _401 or _803 patents-Therefore, three patents distinct-Trial Judge did not err in finding invention disclosed in _734 patent not same as disclosed in either _401 or _803 patents-Trial Judge did not err in refusing to view invention disclosed in _734 patent as obvious variation or modification of one or other of inventions in two earlier dual action patents-Nor in finding dual action agitation and unitary action agitation such different creatures that notional skilled technician would not have readily interchanged that art taught by one for that of other; only hindsight analysis would lead one to believe otherwise-Appellants in both appeals have failed to demonstrate that Trial Judge erred in assessment of evidence or conclusion that use of flexible vanes on dual action agitators not obvious improvement to existing art or that substituting such vanes for fixed vanes obvious-As to covetousness, no basis in law for interfering with Trial Judge's view invention not mere improvement-Nor did Trial Judge err in concluding claims 6, 8 and 14 infringed-No reason to interfere with award of costs by Trial Judge.