Concrete Appliances Co v. Gomery 14 15, 1925

• Decision Date: 16 November 1925
• Docket Number: No. 44,44
• Citation: 269 U.S. 177,70 L.Ed. 222,46 S.Ct. 42
• Parties: CONCRETE APPLIANCES CO. et al. v. GOMERY et al. Argued Oct. 14-15, 1925
• Court: U.S. Supreme Court

269 U.S. 177

46 S.Ct. 42

70 L.Ed. 222

CONCRETE APPLIANCES CO. et al.

v GOMERY et al.

No. 44.

Argued Oct. 14-15, 1925.

Decided Nov. 16, 1925.

Mr. Stephen J. Cox, of New York City, for petitioners.

Mr. George Bayard Jones, of Chicago, Ill., for respondents.

Mr. Justice STONE delivered the opinion of the Court.

In an earlier suit petitioners sought to enjoin an infringement of the Callahan patent, No. 948,719, and the Circuit Court of Appeals for the Sixth Circuit held the patent valid. Concrete Appliances Co. v. Meinken, 262 F. 958. Later the present suit was brought in the District Court for the Eastern District of Pennsylvania to enjoin an infringement of the same patent by the respondents. The District Court expressed the opinion that the claims of the patent did not involve invention, but, in deference to the determination in the Sixth Circuit, dismissed the petitioners' bill on the ground of noninfringement. 284 F. 518. On appeal, the Circuit Court of Appeals for the Third Circuit held that the patent was invalid for want of invention. 291 F. 486. In view of the conflict of decision, the writ of certiorari was granted by this court (264 U. S. 578, 44 S. Ct. 404, 68 L. Ed. 858) to review the determination in the Third Circuit. Thomson Co. v. Ford Motor Co., 265 U. S. 445, 44 S. Ct. 533, 68 L. Ed. 1098. Both suits involved claims numbered 1, 2, 5, and 13 of the Callahan patent for 'material transferring apparatus' designed for use in transferring concrete or other plastic materials from a suitable source of supply to working points desired on a building or other structure, in the course of construction.

In principle, the device concerned calls into operation gravity, in conveying mobile substances from an elevated central point to varying working points in building operations. The claims made by the patentee, which relate to a combination embraced in the apparatus described, when paraphrased and separated into their constituent elements, comprise: (1) A tower; (2) a boom oscillatory or swinging horizontally, adjustably connected with the tower and adapted to be arranged at various points in its height; (3) a conduit carried by the boom, extending laterally from the tower, connected to it and adjustable vertically at varying heights in the tower; (4) a means for raising plastic material to the height desired in the tower; and (5) a means for receiving the plastic material from the raising means and conducting it to the conduit, both the raising means and the receiving means being adjustable vertically at varying heights in the tower.

The apparatus described in the letters patent is capable of use in conveying 'wet' or 'mush' concrete from the point where it is prepared for use and distributing it to points where it is incorporated into a building in process of construction. When the mixed concrete is in readiness to be placed in the forms or molds in which it is allowed to 'set' or harden into an integral part of the structure, it is elevated by the 'raising means,' usually a bucket, skip, or other suitable conveyor, to the 'receiving means,' a hopper, in which the concrete is deposited. From thence it flows by gravity into the conduit, and through it to the form or mold, which may be in any part of the structure at a suitable level below the base of the hopper. As the building progresses, the conveyor, the hopper, and the attached conduit may be progressively raised within the tower, so that gravity may carry the flowing concrete to any desired point at lower levels in the structure.

The several elements in the petitioners' claims which we have enumerated embrace familiar devices long in common use, separately or in smaller groups, both in this and in kindred mechanical arts. It is not argued that there is any novelty in such units or groups, and the only serious question presented is whether in combination in the apparatus described, they constitute an invention. That the combination embodied in the described apparatus produces a useful result in the mechanical arts, and in modified form is widely used in building operations, is established. Our inquiry, therefore, must be addressed to the question whether the combination is novel, and whether it passes the line, sometimes tenuous and difficult of ascertainment, which separates mechanical skill from invention. The pursuit of this inquiry involves a consideration of the state of the art prior to Callahan's application, of which elaborate proof was made in the trial court.

Because of an evident difference in the state of the proof in the two cases, the adjudications of this patent by the two Circuit Courts of Appeals are, we think, only apparently conflicting. It is clear from an examination of the two records, the earlier of which is an exhibit in this suit, as well as from the opinion of the court in the Sixth Circuit, that that court did not have before it the detailed history of the practical development of the art, which was elaborately proved in the present case and which convinced both the District Judge and the Circuit Court of Appeals in the Third Circuit that the plaintiff's appliance did not embody an invention. The question thus presented is one of fact, but notwithstanding the agreement of the two courts below, on this aspect of the case, the difference in result reached by the two Circuit Courts of Appeals leads us to review the salient features of the state of the art at about January, 1908, when, according to petitioners, Callahan conceived the combination covered by the claims in his patent. See Thompson Co. v. Ford Motor Co., supra, 447 (44 S. Ct. 533).

It is a fact of which we may take judicial notice (King v. Gallun, 109 U. S. 99, 3 S. Ct. 85, 27 L. Ed. 870) that the principle of conveying and distributing a mobile substance by gravity has found exemplification for centuries, in apparatus for lifting water by power, in buckets or other convenient form of conveyor to a central reservoir from which its flow is induced by gravity, through suitable conduits to fixed points or through movable pipes or hose to varying selected points. Long prior to the Callahan...