Heyl & Patterson, Incorporated v. McDowell Company

• Decision Date: 14 May 1963
• Docket Number: No. 8654.,8654.
• Citation: 317 F.2d 719
• Parties: HEYL & PATTERSON, INCORPORATED, Appellant and Cross-Appellee, v. McDOWELL COMPANY, Incorporated, and Norfolk and Western Railway Company, Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

317 F.2d 719 (1963)

HEYL & PATTERSON, INCORPORATED, Appellant and Cross-Appellee, v. McDOWELL COMPANY, Incorporated, and Norfolk and Western Railway Company, Appellees and Cross-Appellants.

No. 8654.

United States Court of Appeals Fourth Circuit.

Argued October 10, 1962.

Decided May 14, 1963.

Aubrey R. Bowles, Jr., Richmond, Va. (Bowles, Boyd & Herod, Richmond, Va., Edward Hoopes III, and Blenko, Hoopes, Leonard & Buell, Pittsburgh, Pa., on brief), for appellant and cross-appellee.

Justin W. Macklin and John F. Pearne, Cleveland, Ohio (Fielding L. Williams, and Williams, Mullen & Christian, Richmond, Va., on brief), for appellees and cross-appellants.

Before SOPER, BOREMAN, and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

The instant action involves a claim of patent infringement; the defenses raised are non-infringement and invalidity of the patent. A cross claim for a declaratory judgment of the patent's invalidity is asserted.

The handling of frangible bulk material, in the instant action the delivery of coal from shoreside to a ship's hold, has proved difficult where it was necessary to prevent breakage. For certain uses, it is helpful for coal lumps to be of a specific and uniform size. Coal of this type is known as "prepared coal" and is more valuable for certain commercial purposes than unprepared coal. Any substantial free fall of such coal may cause "degradation", or breakage into smaller lumps and a correlative decrease in commercial value. Both the apparatus of the patent in suit and the accused apparatus attempt to minimize degradation while the bulk material is being loaded into a ship's hold.

The plaintiff, Heyl & Patterson, Incorporated, is assignee of United States Patent No. 2,651,423 for an "Apparatus for Loading Bulk Material into a Ship's Hold", a combination patent issued September 8, 1953, after application made on February 2, 1951.

The general scheme of plaintiff's patent¹ is as follows: a variable speed conveyor belt delivers the coal (or other bulk material) from a point on shore to an elevated point on a structure by the pier; the coal drops off the conveyor belt and falls into a pan that is trapezoidal in shape, being substantially wider at the top than at the bottom. The pan, swingably mounted on the structure, feeds directly into a chute that can be lowered into the ship's hold. At the bottom of the chute is a gate which can be used to block the flow through the chute. When prepared coal is being loaded, the gate is so adjusted as to allow coal to fill the chute and back up into the trapezoidal pan. The gate is then opened so that the coal can flow into the ship's hold. The speed of the conveyor belt is manually varied by the operator so that the trapezoidal pan is never permitted to empty. The result is that a solid column of coal is maintained in the chute which prevents the breakage that would occur if the coal were permitted a free fall down the entire length of the chute. The free fall of the coal is limited to the distance from the tip of the conveyor belt to the top of the pile of coal in the trapezoidal pan. The trapezoidal pan acts as a funnel since its upper cross-section measurements are greatly in excess of the cross-section measurements of the chute, and so the rise and fall of the level of coal in the pan is slow enough for the operator to react in time to maintain a solid column of coal by appropriately varying the speed of delivery of coal by the conveyor belt. The operator is placed so that he can see into the upper end of the trapezoidal pan, and he is provided with controls for regulating the flow of coal.

The District Court found the plaintiff's patent valid but not infringed. The instant cross-appeals were then filed.

A brief look at the prior art is appropriate at this point. The use of a solid column of coal in a telescopic chute to prevent degradation is old and well known. Lindsley (Patent No. 544,103), issued in 1895, discloses an apparatus to be used to maintain a solid column of coal in a telescopic chute, containing two trapezoidal pans to act as funnels arranged in sequence above the telescopic chute. Maintaining a solid level of coal in the chute is also disclosed in MacLennon (Patent No. 1,331,020), granted in 1920; Weigert (Patent No. 1,852,385), granted in 1932; and in Kaltenbach (Patent No. 1,876,685), granted in 1932.

Many "high lift" or "high trestle" loaders, in which coal cars were lifted by elevator or run over track to an elevated point on the loader and then dumped into pans or bins which fed into a chute were in operation long before plaintiff applied for its patent. Among these was defendant's old loader at Seawell's Point, constructed by plaintiff about 1939. When prepared coal was being loaded, the chute was kept full, as in the patent in suit.

The use of a gate at the bottom of the chute was also well known in the art, Kaltenbach (Patent No. 1,876,685), granted in 1932.

The use of a conveyor belt in connection with a coal loading structure was disclosed in Stuart (Patent No. 1,241,053), granted in 1917; Scott (Patent No. 1,325,704), granted in 1919; Weigert (Patent No. 1,852,385), granted in 1932; Nelson (Patent No. 2,430,407), granted November 4, 1947; and in the British magazine Railway Gazette in a series beginning on January 7, 1944, entitled "Cargo Coaling Plants". Stuart specifically provides for a variable speed conveyor belt. Provided in several patents is a cab located so the operator may observe the level of the coal in the apparatus.

Many of the structures in the prior art, particularly the high lift or high trestle loader, were arranged to allow the operator to vary the rate of delivery of coal, for example, controlling the tilt of the coal cars while spilling the coal into the pan. The operator could and did control the flow so as to maintain an even level of coal in the chute or pan. In the Weigert patent, an automatic shut off is provided in the upper pan to stop the delivery of coal when the level rises too high in the pan, and to restart delivery when the level falls. An unpatented installation at Howland Hook, Staten Island, is generally similar to plaintiff's patent except that the conveyor belt has only two forward speeds instead of a continuum of forward speeds, and the pan is not as greatly enlarged as plaintiff's patent suggests.

Of course, the general idea of dumping coal from a large container into a narrow chute so as to be able to maintain a solid column of coal in the apparatus is basic to many of these patents. This had been done by using the coal cars themselves as the large container, or by using a bin or pan into which the coal is dumped as a container.

In summary, the prior art discloses variable speed conveyor belts to lift the coal from the shore to the loader structure, wide funnel-like pans to accept the coal as delivered to the loader, also chutes, gates, and the idea of preventing degradation of prepared coal by keeping the loading chute filled with a solid column of coal.

Plaintiff's patent combines the above elements into one apparatus, using the trapezoidal pan to aid the operator in manually varying the flow from the conveyor to maintain a solid column of coal, freeing, to some extent, the gate for use to allow coal to flow out at a more rapid rate. It is conceded that all of the elements of the patent are old, the claimed inventiveness being in the combination.

Although it is quite true that an apparatus which is a mere combination of elements known in the prior art may be patentable, Loom Co. v. Higgins, 105 U.S. 580, 26 L.Ed. 1177 (1881), and it is also true that the mere fact that each element does, in one sense, what it always has done (e. g., conductors conduct, insulators insulate) does not necessarily negative patentability, Entron of Maryland v. Jerrold Electronics Corp., 295 F.2d 670 (4 Cir. 1961), nevertheless, a combination patent cannot be sustained where it is shown that it lacks inventiveness, Great A & P Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1...