27 F.2d 838 (9th Cir. 1928), 5425, Concrete Mixing & Conveying Co. v. R.C. Storrie & Co.

Docket Nº:5425.
Citation:27 F.2d 838
Case Date:August 20, 1928
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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27 F.2d 838 (9th Cir. 1928)




No. 5425.

United States 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.

The appellant brought a suit, alleging infringement of claims 1, 2, 17, 18, 24, 29, and 35 of patent No. 1,127,660, issued February 9, 1915, to John H. McMichael, assignor, for a 'method of, and an apparatus for, transporting and treating concrete. ' The application was filed January 14, 1907, and was pending in the Patent Office more than 8 years. As originally filed, the application was for 'improvements in apparatus for transporting granular and plastic building material, such as sand, plaster, mortar, and concrete. ' The apparatus as patented consists of a vertical closed cylinder, tapering toward the base to discharge into a U-bend connected with a conduit having an air nozzle at the top of the cylinder and an air nozzle near the entrance to the U-bend, each separately controlled, under pressure of which the concrete material in the chamber is forced through the conduit and carried to the point where it is to be deposited. It was claimed that the appellee infringed by use of the device described in letters patent No. 1,619,297, issued March 1, 1927, to Roy C. Hackley, for a 'concrete gun,' which consists of a horizontally disposed oblong tank, ovoid in cross-section, with the narrow portion disposed downwardly, and with a tapering nozzle, to which is connected a discharge pipe for conveying the concrete. Air pressure is furnished by four air supply pipes, extending within and along the bottom of the container, and terminating at different points intermediate the ends of the tank, pinto the pipe which terminates nearest the exit the air is first admitted, and thereafter into the others in their order, until all the concrete is driven into the discharge pipe. In the specifications it is said that the pipe which terminates near the nozzle insures that pressure shall always be present there, directing the concrete into the discharge pipe, and that the remaining pipes serve to advance the body of concrete along the bottom of the tank, until the tank is completely emptied. The containers in both the appellant's and the appellee's patents are filled with concrete through openings in the top, which are then closed by air-tight lids.

At the close of the trial the court below found the appellant's patent anticipated and invalid, and that, even conceding its validity, it had not been infringed by the appellee. Concrete Mixing & Conveying Co. v. R. C. Storrie & Co., 23 F.2d 131.

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 appellants 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

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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,...

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