Ellicott Mach. Corp. v. United States & American M. & M. Co.

• Decision Date: 24 January 1969
• Docket Number: No. 196-66.,196-66.
• Citation: 186 Ct. Cl. 655,405 F.2d 1385
• Parties: ELLICOTT MACHINE CORPORATION v. The UNITED STATES and AMERICAN MARINE AND MACHINERY COMPANY, INC., Third-Party Defendant.
• Court: U.S. Claims Court

186 Ct. Cl. 655, 405 F.2d 1385 (1969)

ELLICOTT MACHINE CORPORATION v. The UNITED STATES and AMERICAN MARINE AND MACHINERY COMPANY, INC., Third-Party Defendant.

No. 196-66.

United States Court of Claims.

January 24, 1969.

Donald W. Farrington, Cleveland, Ohio, for plaintiff, William T. Estabrook, Washington, D. C., attorney of record, Charles B. Gordon, Cleveland, Ohio, of counsel.

Joseph A. Hill, Arlington, Va., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant, Earl G. Thomas, Alexandria, Va., of counsel.

Stephen D. Potts, Washington, D. C., attorney of record for third-party defendant, Shaw, Pittman, Potts, Trowbridge & Madden, Washington, D. C., and Harrington A. Lackey, Nashville, Tenn., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner James F. Davis with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed March 11, 1968. Exceptions to the commissioner's opinion, findings and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the opinion, findings and recommended conclusion of law of the trial commissioner (with one slight modification in the findings), as hereinafter set forth, it hereby adopts the same (as modified) as the basis for its judgment in this case. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER

DAVIS, Commissioner:

This is a patent suit under 28 U.S.C. § 1498 to recover "reasonable and entire compensation" for the Government's allegedly unauthorized use of plaintiff's patented invention. Plaintiff is sole owner of the patent in suit. The device alleged to infringe was made for defendant by American Marine and Machinery Company, Inc. (hereinafter "AMMCO") under an indemnity agreement. On defendant's motion, AMMCO entered the case as third-party defendant.

The principal issue before the court is whether the invention defined in the single claim of the patent in suit meets the requirement for patentability set out in 35 U.S.C. § 103, i. e., was unobvious to one of ordinary skill in the art at the time the invention was made. There is no serious contention that the patent is not infringed, if valid.¹

Resolving the issue of patent validity under 35 U.S.C. § 103 requires factual analysis of (1) the scope and content of the prior art, (2) the differences between the prior art and the claim at issue, and (3) the level of ordinary skill in the pertinent art. Against this background and also in view of such considerations as commercial success, long-felt need, failure of others, etc., obviousness or unobviousness of the invention is to be determined. Graham v. John Deere, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Martin-Marietta Corp. v. United States, 373 F.2d 972, 179 Ct.Cl. 70 (1967).

Background and prior art

The patent in suit relates to dredges. A dredge is a machine for removing soil, rock and other solid materials (called spoil) from the bottom of channels, rivers and the like. Dredges generally are classified in the art as hydraulictype and bucket-type.

Hydraulic dredges, also called suction or pump dredges,² excavate by sucking up solids and water into a suction pipe with a centrifugal pump, then discharging the solids-water mixture into basins or spoil banks. The suction pipe is carried by a boom-like ladder on the end of which is mounted a rotary cutter which dislodges and breaks up solids.

Bucket dredges remove material by means of buckets which bite or dig into the bottom and scoop up solids for dumping into scows or upon spoil banks. One type of bucket dredge is a dipper dredge. It resembles a conventional steam shovel and has a single bucket attached to the end of a boom.

Dredges, in general, comprise four elements: (1) a hull which supports the working equipment of the dredge; (2) a ladder, boom or support arm which carries a bucket or a cutter for performing excavation; (3) spuds, or legs, supported for vertical movement on the hull, which, during operation of the dredge, are embedded in the river or channel bottom to maintain the hull level and prevent its lateral movement; and (4) a prime power source (e. g., a steam or diesel engine) which runs auxiliary power and control equipment for operating ladders, cutters, spuds, etc.

The prior art shows that at the time the invention in suit was made, suction dredges were known which comprised a hull, a ladder mounted thereon, a rotary cutter mounted on the end of the ladder, and spuds for holding the dredge in position during operation. The ladder was mounted on the hull in one of two ways: either for pivotal movement in the vertical direction only (in which case the dredge was called a "swinging dredge") or for pivotal movement both horizontally and vertically (called a "swinging ladder dredge").

Swinging ladder dredges were particularly useful in narrow channels where it was desirable to dredge a path no wider than the dredge hull. They generally had three spuds two forward and one aft. The forward spuds could be raised under power, usually by windlass and cable, but were lowered by gravity. Swinging dredges, on the other hand, generally had only stern spuds, thereby leaving the front of the hull free to swing.

The power plant for suction dredges was usually a steam or diesel engine, and the auxiliary equipment, i. e., the ladder, spuds and cutter, was run electrically, hydraulically, by steam, or combinations thereof. The choice of power plant and auxiliary power and control equipment depended in large measure on economics, rather than engineering, and upon conditions under which the dredge was to be operated, e. g., climate, experience of personnel, size and condition of channel or river bed to be dredged, etc.

Suction dredges were operated by swinging the ladder and rotary cutter back and forth across a channel or river bottom. In the case of swinging dredges, the hull and ladder moved together as a unit; in swinging ladder dredges, the ladder swung independently of the hull. Solids were cut and dislodged by the cutter and sucked up into a suction pipe carried by the ladder. Generally, the ladder was lowered under gravity and the downward force exerted by the cutter on solid bottoms was therefore limited by the weight of the ladder. However, even before 1900, those skilled in the art recognized that it was desirable under some circumstances to increase the downward force on the cutter to ensure a good bite into hard bottoms. Accordingly, ladders of swinging dredges were sometimes loaded or slugged with concrete blocks or steel punchings to increase their weight and thereby apply greater downward force on the cutter. There is no prior-art teaching that swinging ladder dredges were ever similarly loaded.

At the time the invention in suit was made, there were also known dipper dredges which comprised a hull, a boom for carrying a bucket, and three spuds, two of which were at the bow on each side of the hull, the other at the stern. The spuds of dipper dredges, unlike the spuds of suction dredges, were generally powered both up and down, i. e., they were not only raised under power but were also forced down under power, rather than merely dropped by gravity. The mechanism for moving the spuds was usually a cable-and-drum assembly, operated electrically or by steam. The so-called "forced down" spuds were desirable in dipper dredges for two reasons: (1) When large quantities of solids were picked up in the bucket and pivoted about the front of the hull, the center of gravity of the ladder-hull system shifted, which tended to dislodge the spuds, unsecure the hull, and disturb the hull level; and (2) the resistance of the solid bottom to the cutting force of the bucket tended to dislodge the spuds. In either event, the hull could be resecured and releveled by forcing appropriate spuds either up or down. Generally, the two forward spuds were designed to move up or down together and often were operated by a common prime mover. However, on some dipper dredges, the spuds could be moved independently.

Patent in suit

The dredge described and claimed in the patent in suit is a suction dredge. The patent specification states the invention relates "particularly to a hydraulic control system for a dredge with a ladder that may be moved laterally as well as vertically." One object of the invention was to provide a dredge hydraulic power and control system which eliminates complicated rigging, common on older dredges. The specification states, "Since all of the rigging and super structure necessary in prior dredges has been eliminated the applicant has been able to provide a compact easily operated dredge which is particularly well adapted for use in dredging in confined places such as irrigation ditches and small canals."

Plaintiff's dredge (illustrated and described in detail in finding 8) is similar to prior art suction dredges and comprises in essence a hull, a ladder pivoted for moving vertically and horizontally at the end of the hull, a rotary cutter mounted at the outer end of the ladder, two forward spuds and one stern spud, and a diesel engine to run a hydraulic pump which, in turn, operates (1) hydraulic cylinders for moving the ladder and spuds, and (2) a hydraulic motor for rotating the cutter.

In one embodiment of the invention, the forward spuds are linked to hydraulic cylinders by means of separate cable-and-drum mechanisms. Cables, attached to the upper and lower ends of the spuds, are looped around and anchored to the drums so that when the drums rotate, the cables are wound or unwound, and the spuds raised or lowered accordingly. The drums can...