Circuit Judge (concurring and dissenting):
I concur in the majority’s finding of non-infringement, but I disagree with their conclusion that the Fenske device was not “obvious” within the meaning of 35 U.S.C. § 103. I believe it was clearly obvious. It is of some interest that my brother Medina would find the patent in dispute here not “obvious” so soon after his clear pronouncement of the principles to guide us in Formal Fashions, Inc. v. Braiman Bows, Inc., 369 F.2d 536 (2 Cir., 1966), where we declared a patent “obvious.”
I.
A brief examination of the history of the “non-obviousness” requirement is essential if the problem is to be placed in its proper perspective. The doctrine had its beginning in Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 13 L.Ed. 683 (1850) where the Supreme Court held a clay doorknob unpatentable, stating: “[U]nless more ingenuity and skill * * * were required * * * than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other *271words, the improvement is the work of the skillful mechanic, not that of the inventor.” Id. at 267.
Despite the difficulty, or more appropriately stated, the impossibility, of defining “invention” with preciseness, see McClain v. Ortmayer, 141 U.S. 419, 427, 12 S.Ct. 76, 35 L.Ed. 800 (1891), this judge-made principle took years to become the troublesome doctrine which it did. It was widely believed that beginning in the 1920’s the Supreme Court, and consequently the lower federal courts, applied the Hotchkiss test with increasingly greater stringency, and consequently many patents were held invalid. Indeed, many thought that the Supreme Court in Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941) had enunciated a new “flash of creative genius” test. The tone of that opinion, and others, gave credence to that view, although the Court purported to adhere to Hotchkiss. But the climate of judicial opinion had become inhospitable to patent monopolies, and Justice Jackson was finally moved to speak in dissent of the “strong passion in this Court for striking them [patents] down so that the only patent that is valid is one which this Court has not been able to get its hands on.” Jun-gersen v. Ostby & Barton Co., 335 U.S. 560, 572, 69 S.Ct. 269, 274, 93 L.Ed. 235 (1949).
It was against this background that Congress enacted the Patent Act of 1952. The old requirements of novelty and utility, which were found in the first patent act of 1793, were retained, and to them was added the new statutory requirement that the subject matter must not have been obvious. That requirement, contained in 35 U.S.C. § 103, reads:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The second sentence of section 103 was intended to abolish the “flash of creative genius” test, Graham v. John Deere Co., 383 U.S. 1, 15, 86 S.Ct. 684 (1966), and the Revisor’s Note makes this clear beyond doubt.1 But, the purpose of the first sentence was less plain, and the legislative history is contradictory.2 And so the question arose whether Congress intended by section 103 to codify the “slow but steady drift of judicial decision that had been hostile to patents” 3 or to restore the pure Hotchkiss test. The Supreme Court resolved this question in Graham v. John Deere Co., supra, and companion cases — the only patent cases to reach the Supreme Court since the 1952 Patent Act. Justice Clark, writing for eight members of the Court,4 commented that the Hotchkiss “standard has remained invariable in this Court,” id. 383 U.S. at 19, 86 S.Ct. at 694, although sometimes “rhetorical embellishment,” was added. Id. at 15, 86 S.Ct. 684, n. 7. The 1952 Act merely codified the “judicial precedents embracing the Hotchkiss condition * * * ” and “was *272not intended by Congress to change the general level of patentable invention.” Id. at 17, 86 S.Ct. at 693.
II.
With this background of the requirement of “nonobviousness” in mind, I now turn to the specific invention in this case known as a “Data Plotting and Indicating Device.” It is impossible to discuss the patent and prior art in any meaningful way without setting forth the relevant sketches as did the trial court.
The principal reference in the prior art is Hayek. Its essential elements are shown in the following drawing:
Hayek System
Number 11 is the light source, number 12 is a lens, number 13 is the opaque-covered glass, number 18 is the stylus which removes some of the opaque covering from the glass number 13, number 19 is the striker arm to which the stylus is attached, number 14 is another lens, and number 16 is the screen on which the line scraped by the stylus on the opaque-covered glass is projected.
It is apparent from examining this illustration that a drawback to Hayek is that the arm number 19, being made of solid metal, may cast a shadow on the screen. A further drawback to Hayek is that the arm number 19 tapped the opaque-covered glass plate number 13, rather in the manner of a “woodpecker,” as the majority stated it. This created the danger that eventually the glass plate number 13 would crack under the repeated pounding.
The Fenske device, which the majority erroneously believes “conceptually” to be an improvement over Hayek, is shown in the diagram:
Number 47 is the light source, corresponding to number 11 in Hayek. Number 49 is a lens, corresponding to number 12 in Hayek. Number 40 is an opaque-covered glass plate, corresponding to number 13 in Hayek. Number 25 is the stylus which traces a line on the opaque-covered glass; it corresponds to number 18 in Hayek. Number 20 is the transparent glass plate to which the stylus is mounted; it corresponds to number 19 in Hayek.
It is apparent from examining this sketch that Fenske overcame two of the drawbacks of Hayek. Since the glass stylus carrier number 20 was transparent, it did not cast a shadow as did *273the striker arm number 19 in Hayek. And since the stylus number 25 was in continuous contact with the opaque-covered glass number 40, there was less danger of breaking the opaque-covered glass; in Hayek, as we have stated, the striker arm number 19 continually pecked at the opaque-covered glass number 13.
Fenske Projector — Plaintiff’s Exhibit 1
I do not question, therefore, that Fen-ske represented an improvement over Hayek. But as the majority recognizes, the crucial question in this case is whether it was obvious in light of Hayek.5 Surely, even one as mechanically unskillful as a judge can recognize that the shadow cast by the solid striker arm number 19 in Hayek would be virtually eliminated if the metal arm were made of glass or some other transparent material. Once this substitution of materials is made, it follows that the armature number 19 should be made sufficiently sturdy, since glass does not have the strength of metal. And, it is clear to me that placing the armature parallel to the opaque-covered glass was also obvious. We are told that in Hayek the arm tapped the glass like a “woodpecker.” And, I suppose, it could be said that Fenske glided gracefully and softly like a Ruby-Throated Hummingbird.
As I read the majority opinion it seems to recognize that although each of these two steps separately considered may have been obvious, the total change from Ha-yek to Fenske rose to “non-obviousness.” I cannot accept this conclusion. The two steps would be so obviously interrelated to a skilled mechanic, that the second would flow from the first like night from *274day. The significant facts and our holding in Zoomar, Inc. v. Paillard Products, Inc., 258 F.2d 527 (2d Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 237, 3 L.Ed.2d 230 (1958), are apposite and support this comment. We held Zoomar’s patent invalid as “obvious” because its “only objective or physical change of Michel’s camera lens [the prior art] is the substitution of a motion picture camera for a still camera [here glass for metal] and aligning the front lens axis with the axis of the other lens systems [here aligning the stylus carrier and opaque-covered glass in parallel]. This modification ‘is wanting in any unusual or surprising consequences from the unification of the elements here concerned.’ Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152 [71 S.Ct. 127, 130, 95 L.Ed. 162.] * * Id. 258 F.2d at 529. See Formal Fashions, Inc. v. Braiman Bows, Inc., supra.6 In short, it is difficult for me to understand how the substitution of a transparent plate number 20 for an opaque armature number 19 was anything but obvious to a skilled mechanic.
III.
I am fortified in my view by a close analysis of the other cases cited in the opinion of my brothers. Rich Prods. Corp. v. Mitchell Foods, Inc.. 357 F.2d 176 (2d Cir. 1966), cert. denied, 87 S.Ct. 46, and Application of Hortman, 46 CC PA 814, 264 F.2d 911 (1959), are relied on to bolster the crucial holding that the “conceptual improvement” of Fenske “represented a sufficient advance over Hayek to be patentable.” These cases, however, I find easily distinguishable. In Rich Products both the prior art as revealed in the British patents and the patent in issue used compounds containing glyceryl monostearate, just as here both Hayek and Fenske used a stylus to remove opaque covering from a glass plate. But, with this the similarity ends. In Rich Products the chemical substance was used in entirely different forms in the two patents. More significantly, in the British patents it was “an alternate fat-soluble vehicle for the coloring constituent” while in the patent attacked in the suit it was an emulsifying agent. In other words, although the same chemical was used in both the prior art and in the patent there questioned, its functions in the two patents were quite different. This crucial difference is not present in our case for the functions of the respective component parts of Fenske and Hayek are the same.
Hortman is also not apposite. There the Court of Customs and Patent Appeals reversed the Patent Office which had refused to grant Hortman a patent. In the prior art, ironing boards had been made adjustable in height, but inventors were always concerned with making them more stable. Hortman modified the arrangement of the legs in the prior art so that his ironing board was apparently less sturdy, but in doing so he created room for one’s knees to fit under the board. Thus the board could now be used for ironing while the operator was either sitting or standing, a feature none of the earlier ironing boards possessed. The prior art in that case did not suggest the problem which Hortman solved, and for that reason the court held his invention was not obvious. Hayek, however, clearly suggested the problem and the defects we have set forth were clear.7
*275The majority makes much of the fact that the patent was dormant. But it is clear that there was no evidence of any commercial need for such a device. Not until the SAGE computer system was introduced by the military did the manual grease pen technique so picturesquely described by the majority become too slow to keep up with the incoming flow of information. Indeed, appellee argues that Fenske was commercially successful primarily because of persistent sales pressures by its promoters. Therefore, I do not see how -the eventual commercial success of Fenske in the context of this case can be given substantial weight on the issue of obviousness. It is true that commercial success may be some evidence that failure to produce the contested device sooner indicated it was not obvious. But here, commercial success depended on vigorous sales promotion and the independent development of SAGE.
In Formal Fashions, Inc. v. Braiman Bows, Inc., supra, and Dempster Brothers, Inc. v. Buffalo Metal Container Corp., 352 F.2d 420 (2d Cir. 1965), cert, denied, 384 U.S. 940, 86 S.Ct. 1458, 16 L.Ed.2d 539 (1966), we held patents invalid as “obvious” although evidence of commercial success was far stronger than it is here. And in those cases there had not been such vigorous sales promotion.
I also believe my brothers have mistakenly placed reliance on the doctrine of “presumptive validity” even though the Patent Office had before it the prior art when it granted the Fenske patent. Fenske conceded at oral argument that it had “a hard time” getting through the Patent Office. Its initial filing was rejected, its amended claims were allowed only in part, and its further amendments were turned down in a “final rejection.” Only after some further maneuverings and concessions was the Fenske patent allowed.8
Of even greater importance was the Patent Office policy to resolve all reasonable doubts in favor of the applicant. Indeed, Graham pointed out the “notorious difference between the standards applied by the Patent Office and by the courts.” 383 U.S. at 18, 86 S.Ct. at 694. And the 1966 Report of the President’s Commission on the Patent System commented that, “Little justification exists for giving weight to a decision made by the Patent Office when it resolves doubt in this manner, since it is passing the question of patentability on to the courts instead of exercising its judgment.” Id. at 22. It seems to me that if this “presumption” is to be given weight, then why not attach more significance to the District Court Judge’s comprehensive and “reasoned” opinion filed after a 19-day trial ?
In short, the dormancy of the Hayek patent, the alleged commercial success of-Fenske, and the presumption of validity of the Patent Office’s grant are not factors which “in the circumstances of this case, tip the scales of patentability.” Graham v. John Deere Co., supra, 383 U.S. at 36, 86 S.Ct. at 703. As we said in Formal Fashions, Inc. v. Braiman Bows, Inc., supra, “once it has been established by the prior art references that the difference between the patent in suit and this prior art is as insubstantial as it is in this suit, such secondary evidence cannot be held to demonstrate lack of obviousness.” Id. 369 F.2d at 538.
This is just the wrong case in which to ease the high standards this Circuit has consistently demanded over the years for patent validity. The patent here in question was clearly obvious, and should *276therefore be declared invalid. If confirmation was necessary that occasionally a patent will get by in this court,9 this was just not the case to prove the point.
. The Revisor’s Note to § 103 states in part: “The second sentence states that patentability as to this requirement is not to be negatived by the manner in which the invention was made, that is, it is immaterial whether it resulted from long toil and experimentation or from a flash of genius.”
. See Note, The Standard of Patentability —Judicial Interpretation of Section 103 of the Patent Act, 63 Colum.L.Rev. 306, 310-312 (1963).
. Reiner v. I. Leon Co., Inc., 285 F.2d 501, 503 (2d Cir. 1960) (L. Hand), cert. denied, 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961).
. Mr. Justice Fortas did not participate.
. In this connection I fail to see why the majority stresses that Fenske was of “substantial importance to our national security,” except that it does make the patent appear more glamorous than the universal-sized cummerbund in Formal Fashions, supra. But in any event this would merely indicate that it was useful, not non-obvious.
. It is interesting to note that in Formal Fashions an inventor who held a number of similar patents testified that he had been unable to develop the device in question. Despite this testimony, we concluded that the patent was invalid as obvious.
. United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966), further relied on by the majority, is also inapposite. There the Supreme Court held the patent for a wet battery valid, although “each of ‘the elements of the Adams battery was well known in the prior art * * * ” Id. at 51, 86 S.Ct. at 714. But the operating characteristics of the Adams battery, the Court said, were wholly unexpected to experts in the field. Indeed, the skilled experts expressed disbelief that Adams’ invention would work. But, this is toto cáelo from the obvious advantages of Fenske which were readily apparent.
. The Fenske patent application was filed in September 1955, and rejected in May 1950. Fenske amended liis claims in November 1950, and some were allowed in June 1957. Fenske’s further amendments of November 1957 were dismissed by the Patent Office in a “final rejection” of January 1958. In July 1958, Fenske made further amendments, asked for reconsideration of the final rejection, and gave notice of appeal to the Court of Patent Appeals. Finally, after a personal interview with the Patent Office Examiner and further amendments to his claims, Fen-ske’s patent was allowed in September 1958.
. The high standards required for patenta-bility in this Circuit are illustrated by the following statistics: 65.6% of the patents reviewed by this Court between 1953 and 1963 were declared invalid for lack of invention. Tlie national average of all Courts of Appeals was 44.6%. The Encyclopedia of Patent Practice and Invention Management 24 (Calvert ed. 1964).