concurring in the result.
I concur in the result and join in the portion of the opinion captioned (c) Damages. Much, and perhaps all, that is said in the prior parts of the opinion is correct, but I have serious qualms about saying it. The attempt is to have comprehensive guidelines as to all contingencies likely to arise when a jury is asked or allowed to return a general verdict dealing with the issue of obviousness under § 103 of the Act. No doubt district courts have a need for these guidelines and it would be a worthy enterprise for one of our able textbook writers. I have qualms about its being attempted by a panel of three judges of a twelve-judge court, even given a panel as distinguished as this one, though but reflected glory in the case of this writer.
The trouble is, it is impossible to foresee all contingencies. In future cases parts of this opinion will be cited, and the response will be made that the words referred to are dicta. Future judges of this court may be struck by our wisdom and wish to follow our words, or they may perceive they are confronted with a problem we did not foresee, and find our words an embarrassment. In the latter event, it cannot now be predicted whether they will profess themselves bound by our statements, or reject them as nonbinding dicta. The future utility or subsequent career of a dictum is wholly unpredictable, and that is why judges over centuries have avoided dicta, or at least said *1524they were doing so. When a judicial exposition relates to a concrete issue to be decided, the record facts add meaning to the words, and safeguards exist against their being read out of context. With a dictum this is not so, and it may well end up having an effect the judicial author never intended.
Of course, the court should always state the rule of law it relies on, and this rule may cover more than the case before the court. Or dictum may be forensically necessary, for example, to deal with the arguments so commonly urged, predicting imaginary horribles if the court does what it has decided to do. Such forgivable dicta must be carefully limited and hedged.
But if I were to pronounce a dissertation on the subject at hand, I would start with the recent scholarly and comprehensive consideration by the Seventh Circuit, en banc, Roberts v. Sears, Roebuck & Co., 723 F.2d 1324 (1983). I take it this is the “[l]an-guage appearing elsewhere” referred to in Part (B)(1). Our own exclusive jurisdiction of certain classes of cases does not require us to follow opinions in such cases by other courts, but it does not require that we ignore them either. In my consideration of this difficult topic, I would grope for light from wherever it might emanate.
The obviousness issue in the instant case is, however, simple, and it can readily be shown that the district judge committed no reversible error. Railroads needed more effective snubbers to deal with car roll and pitch, in view of increasing speeds and load weights, and deteriorating roadbeds. Our inventor perceived that prior art snubbers needlessly attempted to control the entire broad range of car weight from full to empty. The prior art snubbers worked all right, but were not as efficient as the Stucki invention. He contrived a snubber that was inoperative when the car was empty and engaged only when the car was partially loaded. Railroad Dynamics alleged, however, that the prior art but unpa-tented Holland device did the same job in almost the same way. Allegedly it too went out of contact at light car loads. The greatest differencé between the Holland and Stucki snubbers was not patentably relevant, i.e., the Stucki device in suit was hydraulic and Holland’s was not. Stucki offered substantial evidence, however, which the jury could have believed, and in view of the verdict, doubtless did, that the Holland device did not work in the manner asserted by RDI. This is really all there was on the obviousness point. As the Chief Judge says, RDI wanted us to make a finding of our own contrary to the jury’s, which we are not at liberty to do. There was no issue as to the jury being inadequately or erroneously instructed as to the obviousness issue or any other point. Surely no federal court, however deluded it may be about patent law in some more difficult areas, would reverse on this merely factual issue.