(dissenting).
I would reverse the Judgment of the District Court insofar as it holds the
399 F.2d — 39 *610Cole Patent (U. S. Patent No. 2,967,778) invalid “for obviousness” under Section 103 (35 U.S.C.A. § 103) and dismisses the Complaint with respect to said Patent on that ground.
In my opinion the District Court erred (1) in holding the Cole process “obvious” in light of the prior art; (2) in failing in the instant case, to take cognizance of the “secondary considerations” of “commercial success, long felt but unsolved needs, failure of others, etc.,” which “may have relevancy” as “indicia of obviousness or nonobviousness” under the doctrine of Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); and (3) in holding that the defendant “met the heavy burden of persuasion required of it to establish that the Cole patent is invalid for obviousness under Section 103”.
In the instant case, the District Court failed to apply the teaching of our recent opinions in Frank W. Egan Co. v. Modern Plastic Machinery Corp., 387 F.2d 319 (3 Cir. 1968), cert. den. 391 U.S. 966, 88 S.Ct. 2036, 20 L.Ed.2d 879 (June 3, 1968), and Jones Knitting Corporation v. Morgan, 361 F.2d 451 (3 Cir. 1966) with respect to giving effect to the “secondary considerations”, spelled out above, and to the quality and quantum of proof necessary to rebut the presumption of validity of a patent.
The majority here mistakenly applied the “clearly erroneous” rule with respect to the District Court’s factfinding as to the “obviousness” of the Cole Patent. The District Court’s opinion clearly indicates that its finding of “obviousness” is premised on several patents and publications and not on oral testimony. That being so, the “clearly erroneous” rule is inapplicable here. Borden Company v. Clearfield Cheese Co., 369 F.2d 96, 101 (3 Cir. 1966).
The weight of the evidence establishes that Cole invented and taught a process of producing a citrus juice concentrate which was not obvious in the light of the prior art; that the Cole Patent is novel and has utility and represents a significant advance in the field, as demonstrated by the secondary considerations of its “commercial success”; solution of “long felt but unsolved needs”, and “failure of others” to achieve its results.