Flowers v. Austin-Western Co.

• Decision Date: 12 June 1945
• Docket Number: No. 8728.,8728.
• Citation: 149 F.2d 955
• Parties: FLOWERS v. AUSTIN-WESTERN CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

149 F.2d 955 (1945)

FLOWERS v. AUSTIN-WESTERN CO. et al.

No. 8728.

Circuit Court of Appeals, Seventh Circuit.

June 12, 1945.

Eugene G. Mason, of Washington, D. C., and John J. Yowell and Charles L. Byron, both of Chicago, Ill., for appellant.

Arthur H. Boettcher, Cameron A. Whitsett, and Leo F. Tierney, all of Chicago, Ill. (Joseph L. McNab and Edward C. Grelle, both of Chicago, Ill., of counsel), for appellees.

Before EVANS, SPARKS, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff sued defendants claiming that by the construction of railway dump cars manufactured and sold by defendants, they, defendants, infringed three claims of Patent No. 1611012; seventeen claims of Patent No. 1972042; nine claims of Patent No. 1972043; five claims of Patent No. 1785678; and four claims of Patent No. 1813570. The defenses were invalidity, non-infringement, and that plaintiff did not come into court with clean hands in that the use of the patents was a violation of the Sherman Act, 15 U.S.C.A. §§ 1 and 2. The District Court did not receive evidence in respect to whether the use of the patents was in violation of the Sherman Act, nor did it adjudicate the validity of the patents. It made findings of fact as a result of which it concluded that the defendants had not infringed any of the claims in suit and dismissed the complaint. From that decree plaintiff appeals.

The five patents involved are in the general field of those which relate to improvements in dump vehicles, particularly to the means for supporting the body and controlling mechanisms controlling the opening and closing of the side doors of the vehicle.

Plaintiff makes the point that the devices employed by defendant embody substantially the same mechanism, functioning in substantially the same manner to produce the same results; that the only difference between his dump car and the accused car is that the door operating mechanisms are at the ends of the car instead of under the body of the car, and he contends that the mere change in location and form of the devices does not avoid infringement.

Of the five patents, Patent 012 was the first one granted. It was applied for on September 27, 1924, issued December 14, 1926. It is broader in scope than the other four patents. It relates to a dump vehicle and is illustrated in connection with a motor truck, although the claims are not thus limited. The thing achieved by the invention is to provide means whereby a dump car with hinged doors will, when in transit, keep both doors securely closed and when tilted for unloading will automatically open the door on the downward side and hold closed the door on the upward side. Representative claims describe plaintiff's device as follows:

"8. In a dump vehicle having an underframe and a body tiltable about fulcrums at opposite sides of the underframe, a door at each side of said body and pivotally supported thereby, and door operating devices for each of said doors having connections to the said body and being pivoted to said underframe substantially at the fulcrum on the side opposite said respective doors."

"17. In a dump vehicle, a frame, a dump body rockable selectively about fulcrums at opposite sides of said frame, said fulcrums being spaced apart so that said dump body is supported in stable equilibrium thereon during normal transport, a side door for said body at each side thereof, said doors being hinged to the body to fold down for opening, and independent devices for each door for automatically, independently and selectively controlling the opening and closing of the door through which dumping is to be effected, throughout the entire movement thereof, said body operating through said devices for holding the doors closed when said body is supported on both fulcrums for transport."

The specifications and drawings describe the structure as a dump vehicle which is supported on spaced fulcrums so that the load within the body portion of the vehicle will hold the body in stable equilibrium during transport, and which has door controlling devices which are independent of each other and which will operate independently, selectively and automatically to control the entire opening and closing movements of the door at the side at which dumping is to be effected when the body is tilted for dumping. This controlling mechanism for the opening and closing of the door controls the entire movement of the door during the opening and closing thereof. The dump body includes a plurality of transverse stiffening frames which have downwardly extending gusset members at their ends. These gussets receive the pivots of the transverse bars and the pivots for the doors. A latching system is provided on each side of the sub-frame to engage the free ends of the bars, i.e., each latch system locks the free ends of the bars which are connected to the gusset plates at that side of the vehicle.

The sub-frame includes a plurality of transverse carrier bars or links which project on either side of the sub-frame, and have pivot eyes at the outer ends. The door actuating bars are pivotally mounted at alternate opposite sides of the vehicle at the eyes by means of pivot bolts which define the trunnions or fulcrums at opposite sides of the vehicle about which the body tilts. These bars extend transversely across the sub-frame and rest during the normal position of the dump body on pads and the sub-frame. At the free ends of the bars they are, respectively, and alternately pivotally mounted at points which are in alignment with the pivotal points, while the body is in the normal or transport position, but are independent thereof. At the extreme free ends of the bars they are pivoted to short links which in turn are connected to the side doors. As the body is tilted, the door opens by its own weight and the weight of the material contained in the body and gradually coming to bear against it in proportion as the body moves: the links may also exert a traction upon the depending bracket members on the door to pull it open. The door at the lower side of the tilted body is thus opened, while the door at the upper side is maintained closed; during transport and at all times while the body is in the normal horizontal position, each door controlling mechanism retains its respective side door closed.

The second patent 042 was originally applied for November 4, 1925, allowed September 7, 1933, renewed February 15, 1934, and issued August 28, 1934. It concerns the assembly and operation of dump vehicles for road and rail use; no new mode of operation is introduced. It is confined to adapting the superstructure of 012 by taking the type of body dumping and door control mechanism and mounting it on an underframe of the conventional railroad type, by providing for an underframe including a center sill with laterally projecting brackets at opposite sides thereof, with fulcrum supports for the body carried by the brackets, and for power lifting mechanisms at opposite sides of the center line of the underframe. Plaintiff has treated the seventeen claims relied on in four groups as follows: (1) claims 13, 24, 28, 32, 33, 34, and 41; (2) claims 39, 40, and 42; (3) claims 23, 29, 30, 31, and 38; and (4) claims 35 and 37. All the claims in varying phraseology refer to operating devices controlling the opening of the door through which dumping is to be effected and for positively closing the door when the body is returned to transport position, and two of the claims relate to a detail of the power cylinders having to do with the trapping and controlled release of the air over the piston, when compressed air is admitted below it, for the purpose of cushioning the end of its upward movement. The claims in group two refer to fulcrum supports carried by the body...