Johns-Manville Corporation v. National Tank Seal Co.
| Decision Date | 13 April 1931 |
| Docket Number | No. 360.,360. |
| Citation | 49 F.2d 142 |
| Parties | JOHNS-MANVILLE CORPORATION v. NATIONAL TANK SEAL CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Odin Roberts, of Boston, Mass. (Mason, Williams & Lynch, of Tulsa, Okl., Roberts, Cushman & Woodberry, of Boston, Mass., Herbert D. Mason, of Tulsa, Okl., and Robert Cushman and William Gates, Jr., both of Boston, Mass., on the brief), for appellant.
Howard Lee Smith, of Tulsa, Okl., for appellee.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
Johns-Manville Corporation brought this suit against the National Tank Seal Company for infringement of Claim 1 of United States patent No. 1,184,673, granted to Charles C. Fardon on May 23, 1916, for improvement in storage tanks.
Claim 1 of the patent reads as follows:
The defendant installed two tank top coverings for the Prairie Oil & Gas Company at Caney, Kansas, which plaintiff alleged infringed the patent.
From a decree dismissing the bill, plaintiff has appealed.
In the specification of the patent, it is stated:
"The invention * * * relates to a method for converting ordinary roofs of storage tanks into leak-proof roofs, so that storage tanks now in common use may be made safe from danger, due to explosions and from waste due to evaporation of the contents of the receptacle."
At the time of the Fardon invention, oil tanks consisted of a cylindrical shell, a bottom, and a top or roof consisting of a flat cone shaped wooden plank deck with a sheathing of thin sheet metal thereon. When crude oil was stored in tanks so constructed, great waste resulted due to evaporation and escape of volatiles, such as benzine, gasoline and the like. The purpose of the Fardon invention, embraced in Claim 1, was to prevent evaporation and escape of such volatiles by sealing the seams in the top and the joint between the roof and the side or cylindrical shell of the tank.
The patent drawings are as follows:
In his specification, Fardon describes his invention as follows:
The elements of Claim 1 are, in a storage tank, (a) a receptacle, and (b) a roof therefor, (c) a sheathing covering the roof, (d) a fabric engaging the sheathing and extending from the roof to the side of the receptacle for sealing the joint between the roof and the receptacle, and (e) a binding means for binding the fabric against the side of the receptacle.
The following is a correct illustration of the alleged infringing device.
In the patented device, a cloth fabric, coated with some material to render it impervious to gas, is used to seal the joint between the top and the side or cylindrical shell. In the alleged infringing device, a flexible sheet metal is used to perform this function. In the patented device, a binding wire is used to bind and hold the fabric against the cylindrical shell; while in the alleged infringing device a row of closely spaced screw bolts is used to bind the sheet metal sealing strip to the top of the angle iron, an extension of the cylindrical shell.
The primary question presented is whether such flexible sheet metal and such row of screw bolts are the mechanical equivalents respectively of the fabric and the binding means, which are elements of Claim 1.
Counsel for the defendant contends that the Fardon patent makes no allowance for expansion and contraction of the metallic cylindrical shell, due to temperature changes, and that a device built on it will not function successfully because such expansion and contraction will loosen the fabric and destroy the seal. He contends that, on the contrary, the sheet metal sealing strip, used in the alleged infringing device to cover the joint between the top and the side of the tank, is flexible and will yield to expansion and contraction without breaking the seal. This contention is not predicated upon the introduction of any new element in the alleged infringing device but upon a structural difference between the patent drawings and the alleged infringing device. In the patent drawings, the fabric is shown to be drawn down tightly over the joint so as to produce a rigid, non-flexible eaves joint seal. While in the alleged infringing device, the sheet metal is permitted to bulge outwardly instead of being drawn down tightly over such joint, thereby creating a flexible instead of a rigid eaves joint seal. The latter construction is used in plaintiff's commercial device.
There is nothing in Claim 1 or in the specification which expressly or impliedly limits such claim to a rigid construction. In his specification, Fardon suggests, as the fabric, ducking which has been treated so as to make it impervious to gas. The claim states that the fabric shall engage the sheathing and extend from the roof to the side of the receptacle, and shall be attached to the side of the receptacle by a binding means. The element which Fardon suggests permits of a flexible rather than rigid seal between the roof and side. Neither the specification nor the claim states that such fabric shall be drawn tightly over the roof and side so as to form a rigid eaves joint seal. Any mechanic would know that a metallic oil tank will contract and expand with temperature changes, and he would not attach a flexible sealing fabric so tightly that expansion would loosen the attachment of the edges thereof to the roof and side, when it is inherently flexible and permits of an attachment which will result in a flexible eaves joint seal.
A patentee is not restricted to the precise form of construction shown in the patent drawings, especially where that particular form is not essential to or embodied in the principle of the invention claimed. National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co. (C. C. A. 8) 106 F. 693, 715.
A device reads on the patent, provided it adheres to and...
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