Cooling Tower Co. v. CF Braun & Co.
| Decision Date | 04 August 1924 |
| Docket Number | No. 4221.,4221. |
| Parties | COOLING TOWER CO., Inc., v. C. F. BRAUN & CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward A. O'Brien, of San Francisco, Cal. (Ashley & Foulds and Andrew Foulds, Jr., all of New York City, of counsel), for appellant and cross-appellee.
Chas. E. Townsend, of San Francisco, Cal. (Wm. A. Loftus, of San Francisco, Cal., of counsel), for appellee and cross-appellant.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is a case in which both the plaintiff and the defendant appeal from the decree of the court below. The plaintiff sued the defendant for infringement of letters patent No. 1,010,020, issued November 28, 1911, to Mitchell-Tappen Company as assignee of Barton H. Coffey, for improvements in "devices for cooling liquids." The patent relates to an art which is old, and as to which numerous prior devices had been invented and patented for cooling water by atmospheric action. In the cooling operation the water to be cooled is delivered at the top of an open tower having a plurality of decks, composed of spaced bars or slats one above the other, and it is distributed over the upper deck over which it flows and falls between the bars to a lower deck of similar construction, and thus from deck to deck to a collecting basin at the base. Coffey's invention consists of a deck of parallel drip bars securely fastened at each end by bolts, with spaces between the bars; the adjacent bars being loosely splined together at intervals throughout the entire length, the purpose of the construction being to "prevent loss of water due to windage and to confine the water within the limits of the tower."
The patent contains no assertion of a purpose to obviate warping of the bars or to facilitate longitudinal expansion thereof. The defendant used no movable spline or piece of wood to separate the strips composing the deck, but adopted a metal strip so fastened across the drip slats and bent down between them as to form a spacing device and a casing for the ends of the slats, through which they may expand longitudinally. We agree with the court below that it is very doubtful whether the plaintiff's construction involves invention; but, however that may be, we discover no ground for holding that the defendant has infringed the plaintiff's claims. The plaintiff's splines perform no function in securing the slats to the frame. They lie loose in the grooves of the slats, and may be manually moved longitudinally; but, as the slats are bolted to the frames, no longitudinal movement of the slats is possible, nor is it suggested in the patent. The defendant's spacing metallic straps, on the other hand, are immovably attached to the frames, and, aside from their function of spacing the slats, they serve as guides through which the slats may longitudinally expand. Of course, it will not be asserted that the plaintiff secured by his patent a monopoly of all devices for spacing slats in a water tower.
The defendant in its answer, as a "set-off, counterclaim, and cross-complaint," charged the plaintiff with infringement of letters patent No. 1,442,784, issued January 16, 1923, to Carl F. Braun, for a "water-cooling tower." The patent covers the construction of a tower to be formed at the factory and adapted to be readily assembled at the point of installation, "thereby insuring that the erection process may be rapidly carried on, and that the cooling tower, when finished, will be of a predetermined standard design." The allegation of infringement is that the plaintiff has constructed water towers with supporting members which hold up the various decks, following the form of construction adopted by Braun, in that the horizontal members of the frame project a considerable distance from the vertical faces of the posts, thus forming outbearing supports for the louvers, the defendant asserting that the novelty of the Braun construction consists in the fact that the...
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