Madsen Iron Works v. Wood, 9906.

Citation133 F.2d 416
Decision Date15 March 1943
Docket NumberNo. 9906.,9906.
PartiesMADSEN IRON WORKS v. WOOD et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

R. Welton Whann and Robert M. McManigal, both of Los Angeles, Cal. (Kelly L. Taulbee, of Los Angeles, Cal., of counsel), for appellants.

Hackley & Hursh, Roy C. Hackley, Jr., and Jack E. Hursh, all of San Francisco, Cal., for appellees.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a declaratory judgment which holds that the appellees have a valid patent, serial number 1,997,957, for a feeding mechanism of a road mixing machine which the judgment also holds appellant had infringed by manufacturing and selling a similar road mixing machine having a mechanically equivalent feeding mechanism. Since we hold that the appellees claimed patent of the feeding mechanism, whether considered alone or as attached to the mixer, has no novelty over the prior art, it is unnecessary to consider the question of appellant's infringement.

Appellees' patent purports to find invention in a feeding mechanism into a portable cylinder carried on wheels with its rounded side parallel to the road, which at its forward end receives from the feed loosened and partially pulverized earth of an existing road into the cylinder, where it is stirred and mixed with mineral oil, the earth being propelled rearward by a double worm which brings the material from its forward entrance to the rear end of the cylinder where it is redeposited.

The machines manufactured under appellees' claimed patent are of excellent mechanical structure and have had commercial success in thus improving the surfacing of dirt roads. Great stress is laid on this commercial success. One of the questions we have to consider is whether this is due to inventive novelty in its feeding mechanism, alone or in its attachment to the mixer, or due to mere mechanical excellence of the entire mixing machine as a whole having in it the application of known and established facts and principles of the prior art of mixing pulverized materials.

No novelty is claimed or could be made because the major material is road dirt or because the mixing machine is portable on a wheeled conveyance. Nor is there any novelty in the use of the rearward turning double worm in its moving along of the earth inside the cylinder while the other materials are being mixed with it; nor in the circular turning paddle blades in the mixer set at angles to give at some places a propelling forward and at others a retarding motion to aid in both mixing and moving the material to its rear exit. Nor is there novelty in the flanged scraper which gathered the earth at the forward end of the cylinder. Nor is there urged here a claim of novelty in the combination of these factors. The only claim of novelty is in the device itself and in the addition of the mechanical feed to such a mixer.

A similar road mixing cylinder also parallel to the road and transported on wheels, with road earth moved through it by revolving mechanical equivalents of the worm in the appellees' machine, was patented to one Popkess in serial number 1,062,113. In the Popkess patent the opening through which the earth enters is on the lower face of the forward vertical cylinder head. In front of the hole is a horizontal scraper with side flanges angled downward into the pulverized earth on the road which scrapes it upwards and backwards till it comes into contact with the...

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1 cases
  • Pointer v. Six Wheel Corporation, 12146.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 3, 1949
    ...findings to the contrary by the trial court. See, Motoshaver, Inc., v. Schick Dry Shaver, 9 Cir., 1940, 112 F.2d 701; Madsen Iron Works v. Wood, 9 Cir., 1943, 133 F.2d 416; Wilson v. Byron Jackson Co., 9 Cir., 1943, 133 F.2d 644; Schnitzer v. California Corrugated Culvert Co., 9 Cir., 1944,......

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