282 U.S. 175 (2017), Powers-Kennedy Contracting Corporation v. Concrete Mixing and Conveying Company

Citation:282 U.S. 175, 51 S.Ct. 95, 75 L.Ed. 278
Party Name:Powers-Kennedy Contracting Corporation v. Concrete Mixing and Conveying Company
Case Date:December 15, 1930
Court:United States Supreme Court

Page 175

282 U.S. 175 (2017)

51 S.Ct. 95, 75 L.Ed. 278

Powers-Kennedy Contracting Corporation


Concrete Mixing and Conveying Company

United States Supreme Court

Dec. 15, 1930




Patent No. 1, 127,660, to McMichael, for improvements in methods and apparatus for transporting and treating concrete, held void for want of novelty and invention. P. 186. The principal features are: an upright chamber, in the top of which is an opening for introducing the material, equipped with a door to close the opening air-tight; a hopper-shaped bottom to the chamber, discharging into the delivery duct; a pipe through which compressed air enters the chamber above the mass of concrete within, to propel it into the duct, and another pipe delivering compressed air at or near the discharge or lower end of the hopper.

27 F.2d 668, reversed.

27 F.2d 838, affirmed.

Page 176

Certiorari, 278 U.S. 595, to review decisions in two patent infringement suits involving the same patent. In No. 3, the district court sustained the patent and was affirmed by the Circuit Court of Appeals for the Second Circuit. In No. 4, the patent was held void by the district court, 23 F.2d 131, and the Circuit Court of Appeals for the Ninth Circuit.

ROBERTS, J., lead opinion

MR. JUSTICE ROBERTS delivered the opinion of the Court.

These cases involve the validity, and the alleged infringement, of letters patent No. 1,127,660, of date February 9, 1915, issued to John H. McMichael, and assigned to Concrete Mixing & Conveying Company.

The Court of Appeals of the Second Circuit, in Concrete Mixing & Conveying Company v. Ulen Contracting Corporation, 12 F.2d 929, held the patent valid and infringed. In No. 3 the district court followed that decision. Its decree was affirmed by the Circuit Court of Appeals of the Second Circuit. 27 F.2d 668.

Meantime, in No. 4, the District Court for the Western District of Washington held the patent void for want of novelty and invention. 23 F.2d 131. Subsequent to the decision of the Court of Appeals of the Second Circuit, that of the Ninth Circuit affirmed the Washington District Court. 27 F.2d 838. In view of the conflict

Page 177

thus disclosed, this Court granted certiorari in both cases, "the two cases to be heard as one." 278 U.S. 595.

The patent is for certain new and useful improvements in methods of and apparatus for transporting and treating concrete. The accompanying drawing illustrates the apparatus.

It consists of a chamber 1, for the reception of the material, the lower portion being hopper-like in form, as indicated at 2. The cover 4 is provided with an opening 3, in which there is a door 5. A chain or rope 3a is adapted to be used in partly or entirely closing the door. Air pressure in the chamber also acts to hold this door in closed position. A pressure tank 6 holds compressed air supplied by an air compressor 7, and has a connection 8 leading the air under pressure from the tank to the chamber 1; the air inlet is preferably near the top. An air pipe 10 controlled by a valve 11 also leads into the chamber, the delivery end of this pipe being at or near the discharge or lower end of the hopper.

The apparatus includes a valve-controlled water supply pipe 12 adapted to deliver water at the lower end of

Page 178

the hopper so as to make the mass more easily movable when desired, and also a crook or U-shaped bend 14 in the discharge duct 13.

The operation, as described in the application for patent, consists in depositing material in the chamber, closing the door, turning the air from the reservoir through the pipe 8 into the upper portion of the chamber, thus insuring the immediate firm closure of the door and forcing the material in the hopper downward, it being carried along through the conveying tube 13 until it is finally discharged at 15.

In the application as originally filed, it was stated that, owing to the provision of the U-shaped bend in the conveying tube, the material, immediately after leaving the hopper, will be more or less tightly packed, and it is added 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.

It should also be remarked that, in the original application, the invention was described as useful improvements in apparatus for "elevating and transporting granular and plastic building material such as sand, plaster, mortar and concrete."

The application was filed in the Patent Office on January 14, 1907. Its prosecution was most dilatory. Claims made were repeatedly disallowed, and at one time it lapsed, and had to be renewed. Radical changes were made in the statement of invention, and radically new claims were made in 1911, and expanded in 1913. The applicant eliminated from the scope of his invention the transportation of granular and plastic material generally, and limited it to the transportation and treatment of concrete, and the patent as issued is so limited. While his original assertion that the compressed air admitted to

Page 179

the chamber behind the mass was the propelling force was retained, statements were added and claims [51 S.Ct. 97] were made ascribing to the air discharged by pipe 10 new action and effect -- namely, that it operated to "engage submasses," or to "impinge upon successive portions" of the mass of concrete moving through the hopper and discharge duct, and to aid or assist in their movement in the duct, as well as assisting in mixing and mingling the elements of the concrete in the duct so as to make a more perfect mixture.

The device alleged in No. 3 to infringe consists of a container, in all material respects like that of the patent, with a discharge duct. It, however, employs no upper air behind the mass in the container. It has no U-bend in the duct at the outlet of the hopper, nor does it have a pipe terminating in the hopper near the outlet. On the contrary, it has a pipe which discharges compressed air into the duct at the right-angle elbow therein immediately below the outlet of the hopper, thus forcing air into and along the duct in the direction in which the material is to move.

The device alleged in No. 4 to constitute an infringement is made under the Hackley patent, No. 1,619,297, of date March 1, 1927. It consists of a cylindrical container set horizontally, instead of vertically. The door for admission of the concrete is on the top of the apparatus, a funnel-shaped exit is located at one end, the bottom of said funnel being continuous with the lowest portion of the cylinder wall and the upper portion of the funnel joining a part of the end of the cylinder. Four pipes are led into the cylinder, the first of which discharges into the funnel and the other three at various distances to the rear of the first, along the bottom of the cylinder and in the direction of the funnel. Its method of operation is that, after the cylinder is filled with concrete and

Page 180

the door closed, compressed air is discharged through the pipes in order, first, through the one which ends in the funnel, and successively through the others to the rearward, until the last one is opened. There is no provision for admission of compressed air on top of or behind the mass, as in the McMichael apparatus. Nor is there any trap or U-bend in the delivery duct, which is continuous with the mouth of the funnel and runs in a direct line therefrom.

If the patent in question were valid as disclosing novelty and invention, we should be bound to analyze the differences of structure and operation above indicated to determine the question of infringement. We have concluded, however, that it does not disclose invention, and that we need not therefore narrowly examine the devices and their operation to ascertain whether there is infringement.

The idea of moving fluids and solids through a pipe by air pressure or other fluid pressure is old, and was well known at the time of the alleged invention. Both granular and plastic materials had been so moved by devices quite similar to that of the patent. These covered a wide range, from lift-pumps for sand and sulphur to apparatus for transporting muck, spoil, grout, and concrete.

It is averred, however, that neither an apparatus nor...

To continue reading