dissenting.
I respectfully dissent. I agree with the majority that the only significant issue in this appeal is whether the trial judge erred as a matter of law in concluding that the differences between the subject matter of the Lesley ’673 and '510 patents and the prior art are such that the subject matter as a whole would have been obvious to one of ordinary skill in the art. I cannot agree, however, with the majority’s conclusion with respect to obviousness.
The trial court apparently failed to apprehend either that infringement and validity are separate issues or that both the allegedly “blocking” Cooper ’885 and Lesley patents could be infringed by Dan River. The majority attempts to sanction these errors. The trial judge relied on the fact that the alleged infringer, Dan River, was licensed under the prior art Cooper ‘885 patent as support for his conclusion of obviousness. Infringement and validity, however, are separate issues1 that can and should be analyzed independently. I do not share either the trial court’s or the majority’s view of the inconsistency of Milliken’s argument that Dan River could infringe both the prior art Cooper ’885 plated fabric patent and the Lesley pile fabric patents in suit. Further, the trial judge’s view, that Dan River could not infringe both the Cooper ’885 and the Lesley claims, does not support his conclusion of obviousness.
The trial court also erred in applying greater scrutiny to a combination of old elements and in considering the claims in tandem. Dan River has not established that these errors were harmless.
Also, the trial court apparently misunderstood the technology involved. In spite of expert testimony and the admissions of counsel at oral argument on appeal that microscopic viewing is essential in order to discern the detail of fabric construction, the district court declined to undertake such examination. I cannot join the majority in sanctioning that omission.
The above errors affected the trial court’s reasoning and contributed to its erroneous conclusion that the Lesley patents are invalid under section 103.
The majority improperly casts aspersions on the Lesley claims as being vague. Only the section 103 issue, however, is before us; no issue of vagueness under section 112 is presented on appeal.
' I agree with the majority that the district court’s findings under Graham v. John Deere Co.2 are not clearly erroneous. I disagree only with respect to the legal conclusion of obviousness in this regard. The special master gave thorough and careful consideration to the issue and did not err in concluding that the claims in issue are not invalid under section 103.
The Cooper ’885 specification does not discuss either overfeed or pile. The Celanese 7182 fabric teaches overfeed of the front bar yarn, yet, only in the amount of 25 percent rather than the claimed minimum of 40 percent. While the majority is correct that Reisfeld does not confine himself to a maximum overfeed, the maximum overfeed actually disclosed by Reisfeld is only 12 percent, or half of the Celanese 7182 fabric overfeed.
The majority and the court below recognized the two major differences between the subject matter of the Lesley patents as a whole and the prior art: (1) minimum 40 percent front bar yarn overfeed and (2) substantial elongation of the elastic back *604bar yarn. The majority fails, however, to note that the prior art does not teach of suggest either the claimed degree of overfeed or the claimed high degree of stretch on the elastic back bar yarn. While both overfeed and stretch are combined in the Celanese 7182 fabric, there is no suggestion of the claimed minimum JfO percent overfeed or of substantial stretching of the back bar yarn in any prior art reference of record.
The majority’s acceptance of the trial court’s denegration as arbitrary of the 40 percent minimum overfeed limitation of the claims of the Lesley patents is not justified: The burden was on Dan River to establish such defect, if it exists. There is no evidence of record to support that view of the claimed 40 percent minimum overfeed limitation.
The court below erred in concluding that' the Lesley claims would have been obvious under 35 U.S.C. § 103. I would reverse.
. Carman Indus., Inc. v. Wahl, 724 F.2d 932, 937 n. 5, 220 USPQ 481, 485 n. 5 (Fed.Cir.1983); . Thomas & Betts Corp. v. Litton Syss., Inc., 720 F.2d 1572, 220 USPQ 1 (Fed.Cir.1983); Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1582-83, 220 USPQ 97, 111 (Fed.Cir.1983).
. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459 (1966).