27 F.2d 668 (2nd Cir. 1928), 131, Concrete Mixing & Conveying Co. v. Powers-Kennedy Contracting Corporation

Docket Nº:131.
Citation:27 F.2d 668
Party Name:CONCRETE MIXING & CONVEYING CO. v. POWERS-KENNEDY CONTRACTING CORPORATION et al.
Case Date:July 17, 1928
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 668

27 F.2d 668 (2nd Cir. 1928)

CONCRETE MIXING & CONVEYING CO.

v.

POWERS-KENNEDY CONTRACTING CORPORATION et al.

No. 131.

United States Court of Appeals, Second Circuit.

July 17, 1928

Manton, circuit Judge, dissenting.

Page 669

John D. Morgan, of New York City (Alan M. Johnson, of New York City, of counsel), for appellants.

Stephen J. Cox, of New York City (Williams, Bradbury, McCaleb & Hinkle, of Chicago, Ill., of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

These same claims were held valid and infringed by the same District Judge in Concrete Mixing & Conveying Co. v. Ulen Contracting Corp., 12 F.2d 929. We affirmed that decree without opinion. 12 F.2d 931. A detailed description of the patent in suit need not be here repeated. Subsequently Judge Bourquin held the patent invalid in Concrete Mixing & Conveying Co. v. R. C. Storrie & Co. (D. C.) 23 F.2d 131. It is urged that, because of his decision and the case of Concrete Appliance Co. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222, as well as because of new matter introduced in this record, we should reconsider the validity of the patent.

The new matter is, of course, open to us and will be dealt with hereafter. The Supreme Court case, however, contains nothing, in our opinion, which casts doubt upon the correctness of the Ulen decision; in fact, it was before us when the decision was made. It holds, affirming the judgment of the Circuit Court of Appeals for the Third Circuit in 291 F. 486, that the Callahan patent, which covered an apparatus operating on the gravity principle for distributing 'wet' concrete, was invalid, because it merely made use of known methods and appliances for the convenient handling of this recently accepted building material. The appellants' argument runs that, since the Supreme Court emphasizes that old apparatus used for distributing water, grain, or coal was readily adaptable for handling concrete, so the prior art patents for blowing sand, grain, or grout, which in the Ulen Case were held not to invalidate McMichael's patent, should now be deemed complete anticipations of it. But the Gomery decision does not rest merely on the assumption that apparatus for coal and grain could have been used for wet concrete without inventive though. Adaptations of old carriers to handle concrete were shown to have been frequently made for several years before the application for the patent there in suit. The idea was already of common knowledge and was being applied generally. Therefore Callahan's adaptation was not an invention.

But that is a very different situation from the one before us in the Ulen Case, where nobody before McMichael had ever used a pneumatic apparatus to transport concrete. The Warren and Farnham sand blast machines (patents No. 671,303 and No. 747,396) could not have been so used without increasing the size of the discharge pipes and cutting off the sand blast nozzles. To do this was to make a new machine, and one who thought of doing it would have had a new and inventive idea; that is, that of blowing concrete, which had not been done before. When that is so, the physical change in the apparatus need be very little to sustain a patent. The only reason why a new use is not patentable is that the law grants patents only

Page 670

for new things, not for new ideas. Similarly Goldie's machine (patent No. 707,840) for blowing cement could not, so far as appears, have been used as it stood for concrete, and never was so used. The Supreme Court case does not require us to reconsider the validity of McMichael's patent.

In the suit against Storrie & Co., Judge Bourquin seems to have relied to some extent, at least, upon patents which were not in the record in the Ulen Case and are not now before us. But whatever the court as now constituted might think of the correctness of our former ruling, it is our duty to follow it, unless new evidence raises questions of the patent's validity not previously considered. See Cortelyou v. Charles E. Johnson & Co., 145 F. 933 (C. C. A. 2); Crier v. Innes, 170 F. 324 (C. C. A. 2).

The new evidence of the patent art upon which appellants rely to distinguish the Ulen decision includes two patents granted in 1872 to W. H. Smith. No. 122,497, is for an improvement in concrete pavements and claims concrete 'prepared for use in a liquid or semiliquid condition, capable of flowing in pipes and running into molds. ' No. 122,498 discloses a machine for mixing liquid concrete and conveying it by a discharge pipe from the mixer to the spot where it is to be laid. The concrete is to flow through the discharge pipe by gravity, or, as an alternative,...

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