Concrete Mixing & Conveying Co. v. RC Storrie & Co.

• Citation: 27 F.2d 838
• Decision Date: 20 August 1928
• Docket Number: No. 5425.,5425.
• Parties: CONCRETE MIXING & CONVEYING CO. v. R. C. STORRIE & CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

27 F.2d 838 (1928)

CONCRETE MIXING & CONVEYING CO. v. R. C. STORRIE & CO.^*

No. 5425.

Circuit Court of Appeals, Ninth Circuit.

August 20, 1928.

Lynn A. Williams, Clifford C. Bradbury, and Albert G. McCaleb, all of Chicago, Ill., for appellant.

Chas. E. Townsend, of San Francisco, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

In the prior art were shown numerous patents involving the use of compressed air for conveying through pipes a wide variety of materials, such as concrete, crude oil, dredge spoil, sand, and water, grain, molten sulphur, etc. As to all prior patents the appellant insists that none is anticipatory of its combination, for that they all lack the salient feature thereof, the arch-breaking nozzle, or anything that could exercise the function thereof.

Of the prior patents we find it necessary to refer particularly to but three, the patent to Smith, No. 122,498, of January 2, 1872, and the English patents to Duckham, one No. 4,400 of 1875, and one No. 15,348 of 1885. The Smith patent was for "an improvement in the manufacture of concrete pavements and machinery for same." The specifications described the apparatus as specially adapted to the manufacture and convection of concrete composition through pipes so as to set quickly upon reaching its destination and form a solid mass of artificial stone, and uncontradicted testimony was given of the successful use of the Smith machine in conveying concrete through a pipe by compressed air. The device contained all the features of the appellant's patent except the nozzle for admission of air near the point of exit.

The Duckham patent of 1875 was for improvements in discharging mud or soil from dredges. The mud was received in tanks capable of being closed air-tight, with the exception of inlets for the compressed air and an outlet for the spoils. In the specifications Duckham said: "I prefer to inject compressed air * * * through a number of nozzles at the bottom of the tank, said nozzles being pointed toward the outlet. By this means the particles are prohibited from settling, and are kept in suspension until the whole is expelled from the tank. Compressed air may, moreover, be admitted into the discharge pipe with the same object." We think it indisputable that Duckham, in prescribing the use of pipes for the admission of compressed air in the tank, the same distributed along the bottom of the tank, and one of them locatable at the exit, presented the use of all that is included in the appellant's combination, save and except the U-bend, an exception which is negligible so far as the present litigation is concerned, and if there is distinction in the fact that Duckham used no air pressure above the contents of the tank, and thus omitted one of the features of the appellant's combination, that feature is also absent from the Hackley combination used by the appellee.

But the appellant asserts that Duckham was working with a material which would flow with facility, and that the nozzles which he used were intended for no other purpose than to stir up the mud in the bottom of the tank. It is true that Duckham was engaged in moving a material quite different from concrete, but that fact is not of importance on a question of anticipation. Concrete Appliances Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222. In his second patent of December 14, 1885, Duckham says: "The mud or spoil was received directly from the dredging buckets in a tank or tanks, whence it was expelled through outlet pipes by means of compressed air admitted at the upper part of the tank, assisted by compressed air and water injected at the bottom of the tank to agitate the mud and prevent thick deposit." And if we may refer to the engineering publication, Minutes of the Proceedings of the Institution of Civil Engineers (1887), in evidence here, we find that Duckham stated that "with clay or stiff mud, if the nozzles of the air injection pipes were too small, the compressed air, instead of driving out the material, simply pierced holes through it, escaping through the discharge pipe and carrying along with it all the liquid and thin material in the tanks. This defect was easily rectified by rearranging and increasing the size of the large injection nozzles, and the apparatus now gives most satisfactory results."

It is assigned as error that the trial court found that Leake had made the invention in issue prior to the date of McMichael's application. In the opinion of the trial court it is said: "Prior to McMichael, Leake had conceived the idea, and in 1905 in New Orleans had publicly and successfully employed it in concrete building operations, for, despite Leake's reluctance to testify against his assignee, the plaintiff, the evidence, in quality and quantity, inspires confidence and constrains conviction of the truth of the fact, and beyond reasonable doubt." The McMichael application was filed January 14, 1907, and nine months later on October 7, 1907, was filed Leake's application, which presents everything contained in the McMichael application with the exception of the U-bend. Leake said: "The object of my invention is to provide a method and apparatus for preparing a concrete mixture and delivering it while in a plastic condition to the place where it is to be utilized. Another object of my invention is to move plastic concrete from one place to another by means of air pressure."

On May 12, 1909, interference was declared between McMichael and Leake and Wm. W. Darley, who had applied for a patent on "apparatus for handling ashes and other materials." Leake and Darley each filed an affidavit setting forth their respective dates of conception and reduction to practice. Darley was dismissed from the interference, as being found subsequent in time to the others. Leake's affidavit stated that he "conceived the invention set forth in the declaration of interference on or about the 1st day of February, 1905; that he first made drawings of the invention on or about the 1st day of March, 1905, and first explained the invention to others on or about the 1st day of June, 1905; that he first embodied his invention in a full-sized machine which was completed on or about the 1st day of September, 1905, and that on or about the 1st day of September, 1905, the said machine was first successfully operated in the city of New Orleans, and state of Louisiana, and that he has since made and used other machines embodying the same invention." Before the interference was declared, it was represented on...