C. & A. Potts & Co. v. Creager

• Decision Date: 23 November 1896
• Docket Number: 4,244.
• Citation: 77 F. 454
• Parties: C. & A. POTTS & CO. v. CREAGER et al.
• Court: U.S. District Court — Southern District of Ohio

77 F. 454

C. & A. POTTS & CO. v. CREAGER et al.

No. 4,244.

United States Circuit Court, S.D. Ohio, Western Division.

November 23, 1896

SAGE District Judge.

The question for decision upon rehearing is whether the prior patents and prior uses which are now for the first time presented to the court anticipate the complainants' patent. The only question which the court is at liberty to consider is whether the new evidence makes it clearly apparent that, if it had been in the record when the case was before the supreme court, the decision of the lower court dismissing the bill would have been affirmed. The testimony will be considered, keeping in mind that, in granting the motion for rehearing, the court said:

'The opinion of the supreme court will, of course, be recognized as the law of the case; and unless the defendants, upon the matters suggested in the application for rehearing, can make a case radically different from that presented to the supreme court, the rehearing will not avail. With this understanding and qualification, the petition for rehearing will be allowed.'

Considering first, the alleged prior uses in the order in which they appear in the brief for the defendants, the Moore disintegrator was used at Elizabethport, N.J., in 1878, and for five years thereafter, to grind clay for brick making. It was provided with two sectional rolls of equal size. Each section had a set of teeth along the entire circumference equidistant from the sides, and had also a smooth surface. The width of the teeth was one-half the width of the section, the remaining portion of which constituted the smooth surface. The teeth of each roll meshed against the smooth surface of the other roll, leaving a space of three-eighths of an inch between the smooth surface and the end of the teeth. These rolls were on shafts provided each with a gear wheel, one of which was smaller than the other, in order to obtain a differential speed of the two rolls. The clay was fed as it came from the clay bank, and by being passed through the machine, was cut in shreds about an inch wide, and three-eighths of an inch thick, and about two inches long. The clay then went through a pug mill, and from the pug mill into the brick machine. The capacity of each machine was 100 tons of clay per day. This disintegrator establishes that the inventors of the complainants' patent were not pioneers in the art of disintegrating clay, as distinguished from crushing and grinding. The witness Rossi, who testifies to the Moore disintegrator, states also that, while at the Elizabethport factory,-- that is, between 1878 and 1883,-- he had a disintegrator constructed. They had in use at the factory a pair of smooth rollers to grind the clay, and the lumps did not feed through. The engineer, by direction of the witness, who was superintendent of the manufacturing company, cut grooves on the face of each roller, and inserted steel bars, so that, as they struck the lumps of clay, they kept them from sliding back. There were three bars for each roll. The rolls were 14 inches in diameter, and 11 and 12 inches long. The grooves were so cut that the bars were extended spirally across the face of the roller. These bars fed the clay through. The clay was cut into shreds, and from the rolls it went into the pug mill. It was not treated any after it was taken from the bank, and before it was passed through the rolls, which were in use about six months. When the company failed, they were disposed of with the machinery, which was sold at auction. 'The most of it went for old iron. ' The witness states that the arming of the smooth rolls with the square steel bars was suggested to him by the fact that, when he was a young man, his father owned a cider mill, and the apples were ground by a roller which had steel plates inserted in grooves cut upon its face, and ground the apples against a smooth stationary surface. In the clay rolls, one side of the groove was dovetailed, and the other side straight, and the bars which he had caused to be constructed were driven from one end of the roller to position, in the groove, and held at the ends by screws. The bars projected beyond the face of the roll in which they were set, at least, three-eighths of an inch, and three-fourths of an inch from the face of the opposite roll. The testimony is that this disintegrator operated to cut the clay into shreds.

Upon cross-examination, it was brought out that the witness made an affidavit, which was produced by complainants, in which he stated that the Moore machine was so geared that one of its rolls made about 75 and the other about 90 revolutions per minute; that stones passed through it; that it was used to break up the large clods or lumps before putting the clay into the soak pit, where it was left to absorb water and disintegrate, after which it was run through smooth rolls, to separate or crush the stones, then through a pug mill, and thence to a brick machine; that, moreover, the machine was a failure at first, because in 12 or 15 revolutions of the rolls it would become clogged and 'stalled'; that they afterwards succeeded in providing a series of scrapers or cleaners, which, when attached to the machine, operated to prevent the clogging. He further stated that the machine had been discarded, and another machine substituted.

The witness also testifies that he used a Watson machine for disintegrating. This machine was built in January, 1881, by Thomas Lingle, as appears from the testimony. It differs from the Moore machine in that the teeth are round, and set in rows, projecting about an inch beyond the face of the roll; the rows on one roll working between the rows of its companion roll, the cylinder between the rows forming the abutment. This machine was used by the Watson Company for several years, and then for several years by the witness, who bought it from them. Rossi, in the affidavit above referred to, stated that, after the clay was passed through the Watson machine, it was run through a pair of small rolls, then through a pug mill, and then to the brick machine; that it was run through the small rolls, which were smooth, to rid it of stones which passed through the Watson machine made about 75 revolutions per minute, and the other about 90; and that that machine was also discarded, and replaced by other machines. That the Moore machine and the machine which the witness Rossi had constructed, and which he used at Elizabethport, accomplished the shredding of clay, is established by the testimony. What bearing that fact should have in this case will be considered later on.

The next alleged prior use is the mill devised by George Archenbronn, and constructed at Jackson, Mich., under his supervision, in September, 1881, for grinding apples. It was provided with a cylinder shell of 1/4 inch thickness, 11 inches in length, by 12 inches in diameter. It had 4 concaves arranged to be pressed against the cylinder by levers and weights. There were 8 knives fitted in the cylinder, each 11 inches in length by 3/16 of an inch thick. They projected beyond the face of the cylinder 3/32 of an inch, were held in position by two rings on the outside of the cylinder, one at each end, and adjusted by set screws, one underneath each knife. The mill would grind 100 bushels of apples in 10 minutes. The roll was driven at a speed of about 2,000 revolutions per minute. The concaves were hinged on an axle against a weighted arm to hold them up to the cylinder. The weighted arm was swung on a bolt which acted as a pivot, so regulated by the weight as to allow hard substances coming in contact with the cylinder to pass through. It is in testimony that the Archenbronn roll would be appropriate for the reduction of clay if used in a properly constructed machine and that it suggested to McKinley the idea of using it in a clay machine, and McKinley communicated this suggestion to John S. Smith, who on May 26, 1886, made an application for a patent for an improvement in clay disintegrators (serial No. 202,957), which were provided with two rolls, or 'roll crushers,' to use his own expression,-- one large and one small roll, the small roll armed with steel bars, and the two running at differential speed. His testimony is that he commenced making the model (one-third the size of the working machine) in June, 1885, and went to work constructing the large machine in the fall of that year. The model was first tried...