23 F.2d 131 (W.D.Wash. 1927), 394, Concrete Mixing & Conveying Co. v. R. C. Storrie & Co.

Docket Nº:394.
Citation:23 F.2d 131
Case Date:November 12, 1927
Court:United States District Courts, 9th Circuit, Western District of Washington

Page 131

23 F.2d 131 (W.D.Wash. 1927)




No. 394.

United States District Court, W.D. Washington, Northern Division.

November 12, 1927

Lynn A. Williams, Clifford C. Bradbury, and Albert G. McCaleb, all of Chicago, Ill., and Battle, Hulbert & Helsell, of Seattle, Wash., for plaintiff.

Charles E. Townsend, of San Francisco, Cal. (S. F. Chadwick, of Seattle, Wash., and William A. Loftus, of San Francisco, Cal., of counsel), for defendant.

BOURQUIN, District Judge.

This infringement suit involves claims 1, 2, 17, 18, 24, 29, 34, and 35 of McMichael's patent 1,127,660, granted February 9, 1915, on application filed January 14, 1907. The usual defenses are interposed.

The answer alleges there are 10,000 patents in the art, cites 100 and there are an extraordinary number of references. For this, palliation is attempted by semiapologetic 'inability to forecast how they may be judged by the court, ' which may be taken as a courteous expression of doubt of the court's comprehension, or of fond hope that it may be deluded. Of the claims in suit, 2, 17, 35, and 35 were held valid in Concrete, etc., Co. v. Corp. (D.C.) 12 F.2d 929, Id. (C.C.A.) 12 F.2d 931. The record of that case differs from this at bar.

In the beginning McMichael's application was limited to 'improvements in apparatus for transporting granular and plastic building material, such as sand, plaster, mortar, and concrete. ' Then, as now, the apparatus consisted of an upright cylindrical container, with hopper bottom terminating in a discharge pipe to the hopper connected by a U-bend. Two separately controlled air pipes connected with the container; one at the top, the other near the bottom and pointing downward. The specification in description of function and operation stated that air 'under any desired pressure,' admitted through the

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upper pipe and over the material, by its pressure would force the latter downward and through the discharge pipe; that as the material passed through the U-bend it would be more or less tightly packed, which would tend to 'hold the water and the granular material with which it is mixed intact, so that the tendency to blow the water out of the material is eliminated'; that 'to loosen the material at the lower end of the hopper, should the same become packed, I provide the additional air pipe adapted to discharge air through the material.'

Of six claims, one only related to the lower air and as follows: 'An air pipe to deliver air at the lower end of the hopper, substantially was described. ' McMichael's prosecution of the application was dilatory to the limit of time, once incurring forfeiture. After more than two years, interference was declared with Leake. The latter's application had been filed October 7, 1907, and was for 'improvements in a cement mixing and distributing system * * * for preparing a concrete mixture and delivering it. ' Leake's apparatus contained all of McMichael's, and more, but without the U-bend. Its air pipes were of single control, and that for the lower air terminated in three nozzles opposed in one plane. In function and operation Leake's specification stated that the upper air would force the concrete down past the said nozzles, 'where it can be detached in portions and blown' into and through the discharge pipe.

Several of his claims were variations of this following, viz.: 'The method of conducting plastic material through a closed conduit, which consists in introducing the plastic material in a mass in a chamber connected to said conduit, introducing relatively compressed air behind the whole mass and behind a front portion thereof, and thereby detaching successive portions and driving them from the chamber into the conduit and along the latter.'

For the purposes of interference, to McMichael the Commissioner suggested four claims, including the claim aforesaid verbatim from Leake, which McMichael promptly accepted as substitutes for his six, thereupon canceled by him. The interference was not concluded, for that plaintiff became assignee of both applications. Ultimately patents were granted for both, Leake's, 1,215,558, upon February 13, 1917; but, whereas McMichael's contains the aforesaid claim verbatim from Leake and several like, but of some difference, in phraseology, Leake's, curiously enough, changed the form theretofore his own, but retained the substance. In the meantime Bliss, of Washington, had become attorney for both applications, and January 24, 1911, and later in behalf of McMichael, he filed very extensive amendments of specification and claims, increasing the latter to 35.

In the course of these proceedings in McMichael (to which the comment in Greenwalt's Case (D.C.) 3 F.2d 660, is applicable), the invention is expanded to include method, as well as apparatus, and by exclusion is restricted to only concrete. Although the amended specification included the function originally ascribed to the lower air as aforesaid, it also declared that McMichael had 'found' that the lower air is 'very effective in aiding the passage of the material into and through' the discharge pipe; that, 'in cases where the friction' by the mass driven down by the upper air 'is serious,' the lower air 'gives to the material the velocity which is needed to carry it to the remote point of delivery'; that it 'acts upon the submasses successively, * * * the result being thorough commingling of the ingredients,' for that 'the delivery pipe itself becomes a mixing chamber,' but therein 'the components are not driven apart or carried to different distances because of differences in specific gravity.'

The amendments so far ignore the U-bend, so prominent in the original application and claimed eo nomine, that its function in respect to granular material in the original claimed is eliminated, along with all reference to granular material itself, and in only two or more claims of the patent is it indicated by the statement that the discharge pipe is 'provided with a bend,' without any function or effect ascribed to it, save that 'the material will be more or less tightly packed as it is directed therethrough. ' The latter, standing alone, is not beneficial, and,...

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