Industrial Instrument Corporation v. Foxboro Company
| Decision Date | 06 September 1962 |
| Docket Number | No. 18866.,18866. |
| Citation | 307 F.2d 783 |
| Parties | INDUSTRIAL INSTRUMENT CORPORATION, Appellant, v. The FOXBORO COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe E. Edwards, Houston, Tex., for appellant.
Garrett R. Tucker, Jr., Frank B. Pugsley, Houston, Tex., Daniel L. Morris, William C. Conner, Arthur V. Smith, New York City, for appellee.
Before HUTCHESON, RIVES and BELL, Circuit Judges.
This appeal is from judgment for defendant, appellee here, in a patent infringement suit. It concerns differential pressure measuring meters, in wide use in the oil, gas and chemical industries for measuring the quantity of gas or liquids passing through pipelines. The parties each manufacture meters having many characteristics in common for this purpose.
The patents in suit are numbered 2,762,362, claims 4, 6, 7, and 10, issued September 11, 1956; 2,762,393, claim 6, issued September 11, 1956; and 2,827,716, claims 1 through 6, issued March 25, 1958. They were issued to W. M. Reese, president of appellant, and assigned to appellant. The accused device is the Foxboro Type 37 meter.
Appellant sought injunctive relief and damages by reason of the accused device allegedly infringing the several claims of the patents in suit. Appellee asserted the defenses of invalidity in view of the prior art, and because the claimed inventions were obvious to persons having ordinary skill in the art, and also that of non-infringement. An additional defense to the suit on the third patent, 2,827,716, was based on invalidity by reason of the invention having been made by another. The court found noninfringement as to the first two patents, and invalidity as to the third by reason of the invention being that of an employee of appellee.
The meters involved are of the same general type as were manufactured and sold by Barton Instrument Company of California for many years before either of the parties to this litigation entered the field. Reese, president of appellant, was formerly sales agent for Barton. The patents covering the Barton meter, issued to Barton Jones, are a part of the prior art.
The meters of Barton and of the parties here all accomplish the flow measurements in substantially the same manner. An orifice plate is inserted across the pipe carrying the flow to be measured. Tubes are then connected to the pipe on opposite sides of the orifice plate to transmit the pressures on the upstream and downstream sides of the plate to the high pressure and low pressure sides of the meter. The difference between the two pressures is an accurate measure of the volume flowing through the pipeline and the difference is measured by the meter, and recorded on a chart by means of a recording pen attached to the meter. The rate of flow can be read directly from the chart if the chart is calibrated in units of volume.
The meters of each company have in common a casing consisting of two end caps mounted on each side of a center plate, thus dividing the casing into two chambers, one of which is connected to the upstream side of the pipeline and called the high pressure side and the other, the low pressure chamber, to the downstream side of the pipeline. The center plate has a central chamber within it. Each chamber contains a bellows, mounted on each side of the center plate. The two bellows and the chamber in the center plate are filled with an incompressible liquid. Since the liquid expands and contracts with the ambient temperature increases and decreases, each of the three types of meters is provided with some means to compensate therefor in measuring the volume. The fill liquid flows from one bellows to the other through the center plate chamber and the flow is restricted by a damping valve to obviate the effect of pulsations in the pressure. The damping valve may be adjusted manually. Each of the meters has range springs within the low pressure chamber which are arranged to supplement the spring effect of the bellows and to thus oppose the expansive movement of the low pressure bellows when the fill liquid is forced into it from the high pressure bellows. The low pressure bellows in each meter is connected to the recording pen by a linkage arrangement.
Appellant is a corporation organized by Reese. He became associated with Barton before its meter had been perfected for use in high pressure gas measurement and for some years worked closely with Barton to adapt its meter to that end. He made among other suggestions the use of the damping chamber which became the subject matter of a Barton Jones patent. This arrangement with Barton ended in 1951 and Reese continued to work in the field with the result that the patents in suit were issued.
Appellee is a manufacturer of industrial instruments and is one of the leading companies in the gas measurement field. It formerly offered a mercury type meter and also Barton meters using a Foxboro recording device. The accused Type 37 device was developed by the research personnel of appellee between 1954 and 1956 and marketing of it began in 1957. It was developed after Barton refused to license appellee under these patents. The mercury meter had certain disadvantages and there was a definite need for the bellows or dry type meter with which this litigation is concerned.
The patents in suit are directed to a new combination of some old and some new elements in the meter to obtain a new or improved result. All elements except the isolation wall or barrier portion of claim 6 in patent No. 2,762,393 are disclosed by the prior art. None of the patents are basic or pioneer in scope.
The combination under the claims of patent 2,762,392 as distinguished from the prior art was the disconnection of the high pressure bellows from the control stem, leaving it in the low pressure bellows only,1 means to control the rate of flow upon expanding and collapsing movements of the bellows, the disposition of the range springs in a manner causing them to exert their force in a direction around the periphery of the low pressure bellows so as to stabilize the bellows and control stem in the interest of accuracy, and an improved method of mounting the bellows on the center plate. The trial court failed to make a finding as to the validity of the claims of this patent, but found that none of the claims were infringed by the accused device. We affirm.
Our affirmance is based on the doctrine that a patentee who is only a narrow improver, as is the case with this particular patent, has a monopoly restricted only to his improvement. He cannot prevent others from making improvements on the prior art unless they use substantially the very novelty which is the basis of his patent. And infringement exists only...
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