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Universal Athletic Sales Co. v. American Gym

argued as amended december 30 1976.: September 9, 1976.

UNIVERSAL ATHLETIC SALES CO., A CORPORATION, APPELLANT,
v.
AMERICAN GYM, RECREATIONAL & ATHLETIC EQUIPMENT CORPORATION, INC., GRAYSON INDUSTRIES CORP., AMERICAN SUPER GYM CORP. AND SUPER ATHLETICS CORPORATION, ALL CORPORATIONS; RONALD ARBASEK, AN INDIVIDUAL, AND LARRY SALKELD, DONALD E. PINCHOCK AND S. DAVID BRODSKY, INDIVIDUALS, DBA SUPER ATHLETICS CORPORATION



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. Civil Action No. 71-166.

Adams, Rosenn and Garth, Circuit Judges.

Author: Adams

ADAMS, Circuit Judge.

At issue in this case is the validity of a United States patent*fn1 that pertains to a weight-lifting apparatus. Originally granted to Harold Zinkin, the patent was owned by Universal Athletic Sales Co. at the time of suit. The patent consists of eight claims, and the district court struck down two of them on grounds of anticipation and obviousness.*fn2 We must decide whether these rulings were warranted.

Two issues underlie the basic question of patent validity which is before the Court. The first concerns the controlling weight accorded by the trial judge to the testimony of defendants' principal expert witness, an associate in the law firm representing two of the defendants. Assuming that such testimony deserved little or no weight, as plaintiff maintains, we must then decide the second issue, whether there was nonetheless evidence sufficient to support the district court's decision.

I.

Modern technology has, of course, pervaded almost every province of human endeavor. The Zinkin patent demonstrates the verity of this postulate, for it deals with a somewhat unusual activity -- weight-lifting. Specifically, the patent relates to the chest-press exercise, one of the cornerstones of the bodily arts. As athletes and physical fitness enthusiasts well know, the chest press enables the zealous practitioner to develop the musculature of his upper torso. Like many modern advances, the Zinkin patent attempts to retain the advantages of old methods, while conferring added benefits with the new.

In the traditional chest press, the exerciser lies on a bench and raises a free barbell from his chest to a position in which his arms are fully extended. He raises and lowers the barbell for as long as he desires or is able. The exercise requires the continuing assistance of another person, the "spotter." Not only must the spotter hand the barbell to the exerciser at the inception of the routine, but he must also attempt to retrieve the bar should it begin to totter. Occasionally, the spotter is unable to catch the barbell so that it falls upon the exerciser, causing injury that can be quite serious.

The patent in this appeal discloses an apparatus which permits an exerciser to simulate, safely and effectively, the chest press exercise.*fn3 To use the patented apparatus, the exerciser lies upon a table in a supine position and pushes against handles in an upward movement. These handles shift in an arcuate fashion, analogous to the movement of the bar in the chest press exercise. They extend from a box-like structure which supports and contains the lifting mechanism. The design of the apparatus is such that the handles, the attached bar and the weights cannot strike the exerciser even should he falter. In addition, the Zinkin machine may be utilized without the assistance of a spotter. The patented apparatus thus eliminates the safety hazards posed by the conventional chest press and obviates its manpower requirements as well.*fn4

This action was initiated by Universal against the defendants as part of a complex litigation involving, inter alia, questions of patent infringement, unfair competition, copyright infringement and antitrust violations. When Universal alleged patent infringement in its complaint, the defendants pleaded invalidity of the patent itself. The district court severed the patent infringement and unfair competition issues for trial,*fn5 and the patent issue, alone, is before us on appeal. After a nonjury trial, the district court initially adjudged the Zinkin patent entirely invalid. However, an amended order vacated the earlier judgment, leaving as invalid patent claims numbered 3 and 4.

Defendants had developed a body-exercising apparatus very similar to that covered by the Zinkin patent. Indeed, the district court found that "the defendants' chest press apparatus would infringe the Zinkin patent if the Zinkin patent were not . . ." invalid.*fn6 In their briefs, defendants list several differences between their own device and that of Zinkin. Nevertheless, the defendants do not vigorously contest the determination of infringement by the trial judge. Instead, they rely solely upon his ruling of invalidity, and attempt to buttress his analysis in this respect. At trial, as in the appeal now before us, the primary focus was on whether the Zinkin patent was "anticipated" or made "obvious" by the prior art.

Two references were relied upon by the district court in holding the Zinkin claims invalid: a patent issued to C.A. Simmons in 1871*fn7 and a magazine photograph, dated 1950, of a lifting machine designed by Sam Loprinzi.*fn8 Disclosing a lifting machine for "developing the muscular system," the Simmons device consists of weighted levers which the exerciser apparently lifts and lowers as part of the exercise. The Loprinzi machine is described in the photograph caption as a "super-duper pressing apparatus," but the magazine caption itself provides no information as to the features of the device or how it was to be used. Defendants' principal expert witness attempted to explain its features based solely on his examination of the photograph.

That expert was Firman Lyle, an associate lawyer in the law firm that represented several of the defendants.*fn9 Controlling weight was given by the district court to his testimony as to obviousness and anticipation: "The court chooses to adopt the view of defendant's expert Firman Lyle."*fn10 Relying on the Simmons patent, the Loprinzi photograph, and Mr. Lyle's testimony as to these references, the trial court concluded that the two central claims of the Zinkin patent are void, since they were anticipated and made obvious by prior art.

For reasons to be discussed in this opinion, we have decided that the judgment of the district court must be vacated.*fn11

II.

For the district court to grant controlling weight to the testimony of Mr. Lyle constitutes error for two reasons. First, because Mr. Lyle's qualifications as an expert are questionable, at least insofar as this litigation is concerned, the trial judge erred in according great weight to his opinions. Second, the district court committed error in failing to discount the value of the ...


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