Appeal from the United States District Court for the Central District of Illinois. No. 78 C 4032 -- Robert D. Morgan, Judge .
Before Swygert, Sprecher and Bauer, Circuit Judges.
This appeal is taken by the plaintiff from an order of the district court concluding the invalidity of the patent allegedly infringed and granting the defendant's motion for summary judgment. Measured against the criteria set forth in Graham v. John Deere Co., 383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966), the district court determined that the patent in issue was invalid for obviousness under 35 U.S.C. § 103.
Having examined the record, addressed the briefs, and heard oral argument on behalf of the parties, we agree with the district court that the plaintiff has failed to establish a genuine issue of material fact as is required to defeat a motion for summary judgment under F.R.Civ.P. 56(c). Accordingly, for the reasons given in Judge Morgan's Memorandum of Decision, which we adopt as our own and append hereto, the summary judgment for the defendant is affirmed.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MEMORANDUM OF DECISION AND JUDGMENT
On May 31, 1979, at hearing thereon, the court announced allowance of defendant's motion for summary judgment herein and promised a memorandum of its reasons therefor. This is that memorandum.
The following facts are not disputed. Plaintiff, Sylvan R. Shemitz (hereafter Shemitz), is a citizen of Connecticut, and since 1963 has been in the business of rendering lighting, design, and consultation services. Defendant, Deere & Company, Inc. (hereafter Deere), is a Delaware corporation having its principal place of business in Moline, Illinois. Jurisdiction by the court over both of the named parties and over the subject matter of the patent infringement complaint and counterclaim for declaratory relief is uncontested.
This action was instituted by a complaint filed by Shemitz on July 13, 1978, charging Deere with infringement of his United States Patent No. 3,389,246, granted June 18, 1968, on an application, Serial No. 521,068, filed January 17, 1966. Said patent is hereafter referred to as the Shemitz patent. The basis for the charge of infringement is that Deere purchased certain illuminated wall partition dividers alleged to infringe the Shemitz patent and is using same in its corporate headquarters. Although the said patent contains three claims, the charge of infringement is only to claims 2 and 3 thereof.
Deere answered and counterclaimed, seeking a declaratory judgment that the Shemitz patent is invalid and not infringed by Deere. Shemitz filed his reply to said counterclaim, denying the allegations thereof. Deere contends, inter alia, that Shemitz patent claims 2 and 3 are invalid, pursuant to 35 U.S.C. § 103, because the differences between the claimed subject matter and the prior are are such that the subject matter as a whole would have been obvious at the time the alleged invention was made to a person having ordinary skill in the art to which such subject matter pertains. The alleged invention was made in 1965, i. e., ...