them as did Adams required that a person reasonably skilled in the prior art must ignore that (1) batteries which continued to operate on an open circuit and which heated in normal use were not practical; and (2) wateractivated batteries were successful only when combined with electrolytes detrimental to the use of magnesium. These long-accepted factors, when taken together, would, we believe, deter any investigation into such a combination as is used by Adams. This is not to say that one who merely finds new uses for old inventions by shutting his eyes to their prior disadvantages thereby discovers a patentable innovation. We do say, however, that known disadvantages in old devices which would naturally discourage the search for new inventions may be taken into account in determining obviousness.

Nor are these the only factors bearing on the question of obviousness. We have seen that at the time Adams perfected his invention noted experts expressed disbelief in it. Several of the same experts subsequently recognized the significance of the Adams invention, some even patenting improvements on the same system. Fischbach et al., U. S. Patent No. 2,636,060 (1953). Furthermore, in a crowded art replete with a century and a half of advancement, the Patent Office found not one reference to cite against the Adams application. Against the subsequently issued improvement patents to Fischbach, supra, and to Chubb, U. S. Reissue Patent No. 23,883 (1954), it found but three references prior to Adamsnone of which are relied upon by the Government.

We conclude that the Adams patent is valid. The judgment of the Court of Claims is affirmed.

MR. JUSTICE WHITE dissents.

It is so ordered.

MR. JUSTICE FORTAS took no part in the consideration or decision of this case.

Syllabus.

LINN v. UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 45. Argued November 18, 1965. Decided February 21, 1966. Petitioner, an official of the employer, filed this civil libel action under state law against an employee, a union, and two of its officers, alleging that statements in leaflets circulated in connection with a campaign to organize the employees, applied to him, were "false, defamatory and untrue" and libelous per se. The suit was filed in federal court on the basis of diversity of citizenship. A dismissal motion was made on the ground that the NLRB had exclusive jurisdiction of the subject matter. The employer had previously filed unfair labor practice charges with the NLRB's Regional Director, asserting that the leaflets and other material restrained and coerced the employees in violation of § 8 (b)(1)(A) of the National Labor Relations Act. The Regional Director refused to issue a complaint, finding that the leaflets were circulated by respondent employee, who was not a member or agent of the union, and that the union was not responsible for their distribution. The Board's General Counsel sustained the ruling. The District Court dismissed the libel complaint holding that the alleged conduct "would arguably constitute an unfair labor prac tice under Section 8 (b)" of the Act, and that San Diego Building Trades Council v. Garmon, 359 U. S. 236, compelled dismissal on pre-emption grounds. The Court of Appeals affirmed, assuming without deciding that the statements were "false, malicious, clearly libelous and damaging" though "relevant to the union's campaign." Held: Where a party to a labor dispute circulates false and defamatory statements during a union organizing campaign the court has jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. Pp. 55-67.

(a) The States need not yield jurisdiction to the Federal Government where the activity regulated is but a peripheral concern of the Act or touches local interests so deeply rooted that it cannot be assumed that Congress, absent contrary direction, had deprived States of the power to act. San Diego Building Trades Council, supra. Pp. 59-60.

(b) While the NLRB tolerates intemperate, abusive and inaccurate statements made by a union during organizing efforts, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false. P. 61.

(c) The exercise of state jurisdiction limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true or false, would reflect an overriding state interest in protecting its residents and would be a "merely peripheral concern" of the Act. Pp. 61–62.

(d) Section 8 (c) of the Act manifests congressional intent to encourage free debate on labor-management issues; but malicious utterance of defamatory statements cannot be condoned and malicious libel enjoys no protection in any context. Pp. 62–63.

(e) The fact that defamation arises during a labor dispute does not give the NLRB exclusive jurisdiction thereof, as the malicious publication of libelous statements does not of itself constitute an unfair labor practice. P. 63.

(f) The NLRB is concerned with the effect on a representation election, while state remedies are designed to compensate the victim. Pp. 63–64.

(g) To prevent interference with effective administration of national labor policy the availability of state remedies for libel is limited to instances where the defamatory statements were circulated maliciously and caused damage to the complainant. Pp.

64-65.

(h) The availability of a state judicial remedy for malicious libel will not impinge upon the national labor policy by causing employers and unions to spurn the administrative remedies offered by the NLRB; both remedies, which are not inconsistent, will be available in appropriate cases. Pp. 66-67.

337 F. 2d 68, reversed and remanded.

Donald F. Welday argued the cause for petitioner. With him on the brief was Donald F. Welday, Jr.

Winston L. Livingston argued the cause for respondents. With him on the brief were Harold A. Cranefield and Nanty Jean Van Lopik.

Solicitor General Marshall argued the cause for the United States, as amicus curiae, by special leave of Court,

53

Opinion of the Court.

urging reversal. With him on the brief were Arnold Ordman, Dominick L. Manoli, Norton J. Come and Laurence S. Gold.

Paul L. Jaffe filed a brief for Schnell Tool & Die Corp. et al., as amici curiae.

MR. JUSTICE CLARK delivered the opinion of the Court. The case before us presents the question whether, and to what extent, the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. § 141 et seq. (1964 ed.), bars the maintenance of a civil action for libel instituted under state law by an official of an employer subject to the Act, seeking damages for defamatory statements published during a union organizing campaign by the union and its officers. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter. It held that such conduct "would arguably constitute an unfair labor practice under Section 8 (b)" of the Act and that San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), compelled a dismissal on pre-emption grounds. The Court of Appeals affirmed, 337 F. 2d 68, assuming without deciding that the statements in question were "false, malicious, clearly libelous and damaging to plaintiff Linn, albeit they were relevant to the union's campaign." At p. 69. We granted certiorari, 381 U. S. 923. We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice. and injured him. The judgment is, therefore, reversed.

I.

Petitioner Linn, an assistant general manager of Pinkerton's National Detective Agency, Inc., filed this

Opinion of the Court.

383 U.S.

suit against the respondent union, two of its officers and a Pinkerton employee, Leo J. Doyle. The complaint alleged that, during a campaign to organize Pinkerton's employees in Detroit, the respondents had circulated among the employees leaflets which stated inter alia:

"(7) Now we find out that Pinkerton's has had a large volume of work in Saginaw they have had it for years.

"United Plant Guard Workers now has evidence "A. That Pinkerton has 10 jobs in Saginaw, Michigan.

"B. Employing 52 men.

"C. Some of these jobs are 10 yrs. old!

"(8) Make you feel kind sick & foolish.

"(9) The men in Saginaw were deprived of their right to vote in three N. L. R. B. elections. Their names were not summitted [sic]. These guards were voted into the Union in 1959! These Pinkerton guards were robbed of pay increases. The Pinkerton manegers [sic] were lying to us-all the time the contract was in effect. No doubt the Saginaw men will file criminal charges. Somebody may go to Jail!"

The complaint further alleged that Linn was one of the managers referred to in the leaflet, and that the statements in the leaflet were "wholly false, defamatory and untrue" as respondents well knew. It did not allege any actual or special damage but prayed for the recovery of $1,000,000 on the ground that the accusations were libelous per se. Federal jurisdiction was based on diversity of citizenship.

All respondents, save Doyle, moved to dismiss, asserting that the subject matter was within the exclusive jurisdiction of the Board. The record indicates that prior to the institution of this action Pinkerton had filed unfair labor practice charges with the Regional Director