In the face of the foreign country's direct protest to the mode of service employed here, and in the absence of clear congressional intent at the time this subpoena was served to authorize that manner of exercise of American sovereign power, we decline to infer the necessary statutory authority for the FTC's chosen mode of subpoena service. FMC v. DeSmedt, 366 F.2d 464, 471 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 513, 17 L.Ed.2d 439 (1966);
Id. at 217. Similarly, in FMC v. DeSmedt, 366 F.2d 464 (2d Cir.) (construing section 27 of the Shipping Act of 1916, 46 U.S.C. § 826(a)), cert. denied, 385 U.S. 974, 87 S.Ct. 513, 17 L.Ed.2d 437 (1966), the Second Circuit enforced investigative subpoenas that required the production of documents located outside the United States in the possession of carriers who engaged in commerce in the United States. The subpoenas were served within the United States upon United States residents who were agents of the carriers.
Nearly every court considering an indictment under § 2314 has not read the words "the same" to require literally that what is transported be in exactly the same form as what was stolen. United States v. Bottone, 365 F.2d 389 (2nd Cir.) cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966); United States v. Lester, 282 F.2d 750, 755 (3d Cir. 1960), cert. denied, 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368 (1961); United States v. Atherton 561 F.2d 747, 752 (9th Cir. 1977). The decision relied upon by the defendants, United States v. Smith, 686 F.2d 234 (5th Cir. 1982), which interprets § 2314 more narrowly than does any other decision, states that the issue of whether what is transported is "goods" under the statute is inextricably linked to the issue of whether those goods were "stolen" under the statute.
Where the Patent Office has cited the prior art on which a defendant relies in challenging the validity of a patent, the presumption of validity is greatly strengthened. Universal Athletic Sales Co. v. American Gym, Recreational Athletic Equipment Corp., Inc., 546 F.2d 530, 540 n. 28 (3d Cir. 1976); Chicago Rawhide Mfg. Co. v. Crane Packing Co., 523 F.2d 452, 458 (7th Cir. 1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976); Tracor, Inc. v. Hewlett-Packard Co., 519 F.2d 1288, 1292 (7th Cir. 1975); Research Corporation v. Nasco Industries, Inc., 501 F.2d 358 (7th Cir. 1974); Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., 372 F.2d 263, 268 (2d Cir. 1967); Marston v. J.C. Penney Co., 353 F.2d 976, 982 (4th Cir. 1965), cert. denied, 385 U.S. 974, 87 S.Ct. 515, 17 L.Ed.2d 437 (1966); Arnold Pipe Rentals Co. v. Engineering Enterprises, Inc., 350 F.2d 885, 890 (5th Cir. 1965); Shumaker v. Gem Manufacturing Co., 311 F.2d 273 (7th Cir. 1962); Power Curbers, Inc. v. Etnyre Co., 298 F.2d 484, 492-93 (4th Cir. 1962); Jeoffroy Manufacturing, Inc. v. Graham, 219 F.2d 511, 519 (5th Cir. 1955); Southern States Equipment Corp. v. U.S.C.O. Power Equipment Corp., 209 F.2d 111, 118 (5th Cir. 1955); Dart Industries, Inc. v. E.I. du Pont de Nemours Co., 348 F. Supp. 1338, 1355 (N.D.Ill. 1972); Shields-Jetco, Inc. v. Torti, 314 F. Supp. 1292, 1295 (D.R.I. 1970); Arthur J. Schmitt Foundation v. Stockham Valves Fittings, Inc., 292 F. Supp. 893, 907 (N.D.Ala. 1966), aff'd 404 F.2d 13 (5th Cir. 1968), cert. denied, 398 U.S. 965, 90 S.Ct. 2177, 26 L.Ed.2d 549 (1970); Illinois Tool Works, Inc. v. Continental Can Co., 273 F. Supp. 94, 111 (N.D.Ill. 1967). Thus, there is a strong presumption in this case that the Tannert patent is valid and not obvious. While the question is not forec
A preamble which must be read to give meaning to the claim constitutes a limitation upon the claim. Marston v. J.C. Penney Company, 353 F.2d 976, 986 (4th Cir. 1965), cert. denied 385 U.S. 974, 87 S.Ct. 515, 17 L.Ed.2d 437 (1966). The preamble, however, cannot expand the claim.
The Government points to testimony, for example, that the custodians of the tapes containing the outtakes which found their way onto Dowling's records neither authorized their release nor permitted access to them by unauthorized persons. App. 22-23, 34, 38-39, 42-43, 46. According to the Government, the wrongfully obtained tapes which contained the musical material should be considered "the same" as the phonorecords onto which the sounds were transferred, which were therefore "stolen, converted or taken by fraud" within the meaning of § 2314. Cf. United States v. Bottone, 365 F.2d 389 (CA2), cert. denied, 385 U.S. 974 (1966). For several reasons, we decline to consider this alternative basis for upholding Dowling's convictions.
We have no doubt that the going price among the dishonest for ill-gotten merchandise can establish its value, as the cases in this circuit cited by the government confirm. See United States v. Tyers, 487 F.2d 828 (2d Cir. 1973), cert. denied, 416 U.S. 971 (1974); United States v. Bottone, 365 F.2d 389 (2d Cir.), cert. denied, 385 U.S. 974 (1966); United States v. Kessler, 253 F.2d 290 (2d Cir. 1958). To be probative of the value of goods when stolen, however, the relevant value on a "thieves' market" is for those goods, not what they are later misrepresented or misunderstood to be.
Neither may the witness resist the production of documents on the ground that the documents are located abroad. United States v. First National City Bank, 396 F.2d 897, 900-01 (2d Cir. 1968); Federal Maritime Commission v. DeSmedt, 366 F.2d 464, 468-69 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 513, 17 L.Ed.2d 437 (1966). The test for the production of documents is control, not location.
Courts which have interpreted other criminal statutes containing phrases similar to "thing of value" have decided that the statutory language included both tangible and intangible property. See, e. g., United States v. Zouras, 497 F.2d 1115 (7 Cir. 1974); United States v. Bottone, 365 F.2d 389 (2 Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966). While I would thus conclude that in some circumstances § 641 may encompass the unauthorized disclosure of government information, § 641 must be applied to the theft of government information with extreme care.
The fact remains that the 1307 fuel control for the J-79 engine utilizes the same parameters as Mock, employing signals which are a function of air mass flow (in the same manner as Mock) to control a metering restriction for the purpose of automatically scheduling fuel flow (just as in Mock). The mere fact that the accused controls may be more sophisticated in sensing variations in mass air flow by sensing compressor discharge pressure (pressure of the air flowing "to the burner") as a controlling reference signal does not allow the accused controls to escape the web of infringement. Kelley-Koett Mfg. Co. v. McEuen, 130 F.2d 488 (6th Cir. 1942), cert. denied, 318 U.S. 762, 63 S.Ct. 662, 87 L.Ed. 1134 (1943); Marston v. J. C. Penney Co., 353 F.2d 976 (4th Cir. 1965), cert. denied, 385 U.S. 974, 87 S.Ct. 515, 17 L.Ed.2d 437 (1966). See finding 28: