Emmett v. Metals Processing Corporation
| Decision Date | 07 April 1941 |
| Docket Number | No. 9461.,9461. |
| Citation | 118 F.2d 796 |
| Parties | EMMETT v. METALS PROCESSING CORPORATION. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank W. Beer, of Phoenix, Ariz., for appellant.
Allan K. Perry, of Phoenix, Ariz., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
The judgment appealed from enjoined infringement of a patent by appellant, and was entered in an action brought by appellees, who sought to restrain appellant from infringing letters patent No. 1,947,493 issued on February 20, 1934, on an application filed July 17, 1931 by one Rose and one Engle as joint inventors. The applicants assigned their rights to appellee Rose-Engle Company, a California corporation, by assignment recorded in the patent office on April 17, 1933. Appellee Metals Processing Corporation, a Nevada corporation, is the exclusive licensee of Rose-Engle Company under the patent.
The patent covers a process of coating machine elements with spring-steel or the like, in order to impart a hard smooth surface to such elements. The specification described the process for covering a piston. The piston is centered in a lathe, and a lathe tool is used at a setting which will cut v-shaped grooves in the surface of the piston and which will break the metal slightly and leave the pores of the metal open and rough to give an adhering surface upon which to spray the metal. The edges of the first and last grooves are undercut. After the grooves have been cut, the piston is rotated and sprayed with metal released by a metal sprayer attached to the tool post on the lathe.
All five claims of the patent are in issue. Claim 1 is as follows: "A process of inlaying a metallic band in the external surface of a metallic machine element, comprising rotating an element in contact with a cutting tool arranged to break the metal in forming a groove in the surface, the bottom surface of which groove is abnormally broken and rough, and building metal in the groove by spraying."
Claims 1, 2, 4 and 5 cover in different words, the same thing, and will be considered as one. Each of such claims specifies only two steps to the process, which are: (1) the cutting of grooves in the element to be sprayed by rotation of such element in contact with a cutting tool; and (2) the spraying of such element with molten metal. Each of such claims describes the first step as imparting a "broken and rough" surface to the bottom of the groove. Claim 3 differs in that the first step is described as imparting a groove "with a porous or broken bottom wall" and with its edges undercut; and such claim also differs in that it describes the second step as spraying the element while the latter is rotating.
Appellant's answer alleged, among other things, that the patent in issue was invalid for want of invention. The trial court held the patent valid and infringed by appellant, and entered judgment for appellees enjoining use of the process by appellant. This appeal followed.
Schoop patent No. 1,128,058, issued February 9, 1915, is the first patent cited which relates to metal spraying. In the specification of that patent, it is stated:
The last paragraph above quoted is also referred to in Schoop patent No. 1,179,762 issued April 18, 1916. In Schoop patent No. 1,256,599, issued February 19, 1918, relating to a process for production of electric heaters, discloses a spraying of metal on a tube revolving in a lathe.
There are many other prior patents relating to the spraying of metal which need not be here noticed. It is apparent that Schoop disclosed the spraying of a machine element with metal while the element was revolving; that the metal sprayed on such element might thereafter be machined; and that it was sometimes advisable to sand blast the element before spraying it. While Schoop did not specifically state that the sand blasting roughened the metal and imparted an adhering surface, the other evidence in the case shows that the sand blast method did have such effect. In short, Schoop disclosed a process of inlaying metal on another roughened surface by spraying metal thereon. There is no difference between Schoop's process and the one in issue, except in the manner of imparting the adhering surface of the element being sprayed, mentioned as the first step of the patent in issue.
The purpose of the first step in the process is, as stated in the specification, "to give an...
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