Contracting Corporation v. Concrete Mixing Conveying Co Concrete Mixing Conveying Co v. Storrie Co

• Decision Date: 15 December 1930
• Docket Number: POWERS-KENEDY,Nos. 3,4,s. 3
• Citation: 51 S.Ct. 95,75 L.Ed. 278,282 U.S. 175
• Parties: CONTRACTING CORPORATION et al. v. CONCRETE MIXING & CONVEYING CO. CONCRETE MIXING & CONVEYING CO. v. R. C. STORRIE & CO. Re
• Court: U.S. Supreme Court

282 U.S. 175

51 S.Ct. 95

75 L.Ed. 278

POWERS-KENEDY CONTRACTING CORPORATION et al.

v CONCRETE MIXING & CONVEYING CO.

CONCRETE MIXING & CONVEYING CO.

v. R. C. STORRIE & CO.

Nos. 3, 4.

Reargued Oct. 24, 1930.

Decided Dec. 15, 1930.

Messrs. John D. Morgan and Alan M. Johnson, both of New York City, for petitioner Powers-Kennedy Contracting Corporation.

Messrs. Stephen J. Cox, of New York City, and Lynn A. Williams, of Chicago, Ill., for respondent Concrete Mixing & Conveying Corporation.

Mr. Charles E. Townsend, of San Francisco, Cal., for respondent R. C. Storrie & Co.

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 thus disclosed, this court granted certiorari in both cases, 'the two cases to be heard as one.' 278 U. S. 595, 49 S. Ct. 95, 96, 73 L. Ed. 526.

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.

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]

It consists of a chamber 1, for the reception of the material, the lower portion being hopperlike 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 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 mae i n 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 the chamber behind the mass was the propelling force was retained, statements were added and claims 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 bebind 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 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 a method such as that devised by McMichael had theretofore been applied to the transportation of concrete. If this be true, its truth must lie in the fact that McMichael either discovered an improvement in apparatus or an improvement in method over the prior art. We think that he did not do so; and we shall call attention to some of the facts which lead us to this conclusion.

The provision of a hopper-shaped bottom for the cylinder, thus causing the mass of material to onv erge towards the delivery duct, is specified by McMichael as an element in his invention. It was old in the art. Warren had employed it in a sand-blast apparatus patented April 2, 1901, No. 671,303. Goldie had used it in a cementing apparatus patented August 26, 1902, No. 707,840. Canniff had shown it in a pneumatic grout mixing and discharging apparatus patented December 10, 1907, No. 873,345. Nor is there any merit in the claim of invention in making the funnel-shaped discharge end of the cylinder connect with the delivery duct smoothly and without offsets.

The next element to be considered is the introduction of air behind the mass in order to propel it into the discharge duct. This was old in the art. Smith had provided for the employment of such compressed air in an inclosed chamber above the mass in his patent for machinery for laying concrete pavement of January 2, 1872, No. 122,498. Duckham had employed it in an apparatus for discharging muck or spoil (English patent No. 4400, December 18, 1875). Canniff had used it in his patent above referred to, as had McIlvrid in a grout mixing and discharging machine, patent No. 958,421, Farnham in a sand-blast apparatus patented December 22, 1903, No. 747,396, and Warren in a similar apparatus in his patent above referred to. Other devices might be cited.

Much reliance is placed upon the...