American Ballast Co. v. Davy Burnt Clay Ballast Co.

• Decision Date: 05 January 1915
• Docket Number: 2005.
• Citation: 220 F. 887
• Parties: AMERICAN BALLAST CO. v. DAVY BURNT CLAY BALLAST CO.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F. 887

AMERICAN BALLAST CO. v. DAVY BURNT CLAY BALLAST CO.

No. 2005.

United States Court of Appeals, Seventh Circuit.

January 5, 1915

Glenn S. Noble, of Chicago, Ill., for appellant.

Frank L. Belknap and Charles K. Offield, both of Chicago, Ill., for appellee.

Before BAKER, SEAMAN, and MACK, Circuit Judges.

MACK Circuit Judge.

This is an appeal from a decree holding letters patent No. 633,348 valid and infringed. The patent is for a 'coal unloading and distributing apparatus for use in ballast burning,' issued to Simmons, Forgham & Bennett, September 19, 1899, on an application filed December 23, 1898. The specifications and claims thereof in suit, numbered 1, 2, 3, 4, 7, and 9, do not require particular mention for the purposes of this opinion, inasmuch as the main question in controversy and the one on which our decision rests is whether or not the use made of certain machines from 1894 to 1897, more than two years before the filing of the application, was public or experimental, within R.S. Sec. 4886 (Comp. St. 1913, Sec 9430).

The purpose of this slacking device was to transfer coal from a coal car to a hopper on a transfer car, and thence by a conveyer to a platform attached to the latter car. From the platform the coal would be shoveled by hand onto the fire. The process of making ballast from clay, of which this is one step, is more fully described in the opinion filed this day in case No. 2006 between the same parties. 220 F. 890.

The specific improvement was the substitution of machinery for the wheelbarrow in getting the coal from the coal car to the shoveling platform. The invention was in no sense pioneer. The inventors were officers or employes of plaintiff, which had long been engaged in the business of manufacturing ballast from clay. The conception of this apparatus was not the result of long or laborious experiments. As Simmons testified:

'The machine was conceived and planned at one sitting or one interview. * * * The machine was so obvious, being groupings of methods, mechanical methods, which we had already made use of, that the thought to turn it into a slacking device was spontaneous.'

This meeting or interview of the inventors took place early in 1894. In the spring of that year one machine was built at railroad shops in Missouri in accordance with rough sketches and instructions from the inventors. After it had been tested out for a month in the yards, on tracks level and in good condition, it was sent out to be used on the temporary uneven tracks, where ballast burning was going on. A month later two more machines were built at the same place and sent out in the fall of 1894 to be similarly used by plaintiff's predecessor.

While there is some conflict in the testimony as to the length of time the three machines were in actual operation, the patentees' own testimony establishes that all of them were used for from two to six months in each of the years 1894 and 1895, and in each case until the completion of the particular job in hand; that one of them was also at work in 1896 for several months, and another for many months both in 1896 and 1897; that, despite interruptions from time to time this use was continuous, open, and commercial; and that in every respect was identical with plaintiff's use of the later machines in the regular course of their business of making ballast from clay.

The interruptions were due both to defects in the material, poor construction, or faulty relation of the parts, and also to entirely extraneous causes. The actual commercial use on the rough temporary tracks demonstrated weaknesses; these were...