Concrete Mixing, etc., Co. v. Powers-Kennedy Contracting Corp.

Decision Date17 July 1928
Docket NumberNo. 131.,131.
PartiesCONCRETE MIXING & CONVEYING CO. v. POWERS-KENNEDY CONTRACTING CORPORATION et al.
CourtU.S. Court of Appeals — Second Circuit

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 that 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 thought. 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 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, 934 (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, after flowing by gravity through a small winding passage into a chamber, F, is to be forced into the discharge pipe by the pressure of steam or compressed air admitted into the chamber above the mass of the concrete. The chamber has a flat bottom of large area relative to the size of the discharge pipe, the outlet of which opens into the center of the bottom. While this machine discloses the idea of forcing concrete through a pipe by compressed air, whether it was practically operable may well be doubted. It would seem that a large quantity of the concrete, or at least the stones of which it is partly composed, would necessarily accumulate upon the flat bottom of the chamber. In any event, it was very different from McMichael's device, which injects air into the concrete at its entrance into the discharge outlet. It cannot be regarded as an anticipation.

Nor can the argument that the patent in suit is limited to "dry" concrete, as distinguished from defendants' "wet" concrete, prevail. It declares on page 3, line 55: "It is equally well adapted for the treating and handling of a mass containing a considerable excess of water, in case such an excess is for any reason found desirable." The other new references in the Patent Office (Canniff, McIlvrid, Beach, and Davidson) we regard as less persuasive than those which were passed upon in the Ulen Case.

The new defense of prior use was held by the District Court not sufficiently proved, and with this we agree. This use was of a machine which Artingstall and Fanning said that they saw laying a concrete floor in 1903, subsequently changing the date to ...

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2 cases
  • Metallizing Engineering Co. v. KENYON B. & A. PARTS CO.
    • United States
    • U.S. District Court — District of Connecticut
    • March 28, 1945
    ...was inadequate. Electrical Engineers' Equipment Co. v. Champion Switch Co., 2 Cir., 23 F.2d 600; Concrete Mixing, etc., Co. v. Powers-Kennedy Contracting Corporation, 2 Cir., 27 F.2d 668; Wenborne-Karpen Dryer Co. v. Cutler Dry Kiln Co., D.C., 285 F. 73, reversed on other grounds, 2 Cir., 2......
  • THE GEORGE H. JONES
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 23, 1928

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