Patent which successfully accomplishes useful result is not void for anticipation of prior use because of prior device, however similar in combination, or close in resemblance to that of patent, where such device was not operative and failed to produce result sought, and which is produced by device of patent. Alexander Anderson, Inc., v. Eastman, D.C.Cal. 1936, 16 F. Supp. 513. By the definition provided in Farmers' Mfg. Co. v. Spruks Mfg. Co., 4 Cir., 127 F. 691, the new construction and function as disclosed in patent 2,444,814 arises to the level of invention.
However, this presumption of validity is rebuttable, and it should be noted that in the present case the defendant put in evidence certain prior-art patents and publications pertinent to the issue of validity which were not cited and apparently had not been considered by the examiner. There is no presumption of validity over this prior art which the examiner did not consider. O'Leary v. Liggett Drug Co., 6 Cir., 150 F.2d 656, certiorari denied 326 U.S. 773, 66 S.Ct. 232, 90 L.Ed. 467; Nordell v. International Filter Co., 7 Cir., 119 F.2d 948; R. Hoe Co., Inc., v. Goss Printing Press Co., 2 Cir., 30 F.2d 271; Reynolds v. Emaus, supra, 87 F. Supp. at page 453; Dennis v. Great Northern Ry. Co., supra, 51 F.2d at page 800; Beauchamp v. Schireson, D.C., 18 F. Supp. 367; Alexander Anderson, Inc., v. Eastman, D.C. 16 F. Supp. 513. Furthermore, the fact that the examiner did not mention any particular prior art does not raise a presumption that he was aware of it and did not consider it applicable. 69 C.J.S., Patents, § 145, page 587. In Himmel Bros. Co. v. Serrick Corporation, 7 Cir., 122 F.2d 740, 745, the court said:
But the presumption is overthrown beyond all reasonable doubt by the disclosures in evidence before this court which were unknown and undisclosed to the Patent Office. Alexander Anderson, Inc., v. Eastman, D.C., 16 F.Supp. 513, 515. The witness Anderson also gave positive testimony, adequately substantiated, which clearly showed that the Ford intake manifold accused of being an infringement of the patent in suit was seen, examined, and tested by him as early as November 11, 1932.
The defendants say that under the concrete situation that is presented by the record no presumption of validity can be invoked. When an application for patent has been thoroughly examined by the United States Patent Office and thereafter such agency of the government duly issues letters patent, the grant thus made is impressed with the presumption of novelty, and the burden of defeating the patent rests upon defendants. Stoody Company v. Mills Alloys (C.C.A.9) 67 F.2d 807; Anraku v. General Electric Co. (C.C.A.9) 80 F.2d 958; Anderson v. Eastman (D.C.Cal.) 16 F. Supp. 513. We think no presumption of validity has attached to the Beauchamp patent, No. 1,808,756, by reason of its issuance.