Karch v. United States, 298-69.

CourtCourt of Federal Claims
Writing for the CourtPER CURIAM
Citation568 F.2d 722
PartiesKrekel KARCH v. The UNITED STATES.
Docket NumberNo. 298-69.,298-69.
Decision Date14 December 1977

568 F.2d 722

Krekel KARCH

No. 298-69.

United States Court of Claims.

December 14, 1977.

John E. Juergensmeyer, Elgin, Ill., attorney of record, for plaintiff; Juergensmeyer, Zimmerman & Smith, Elgin, Ill., John Carlon and Carlon & Carlon, Normal, Ill., of counsel.

Frank R. Perillo, Princeton, N. J., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before COWEN, Senior Judge, DAVIS and KUNZIG, Judges.



Trial Judge Colaianni has decided that plaintiff's patent relating to erosion and flood control and land reclamation is invalid for obviousness. Plaintiff has excepted to that determination. The court has considered the briefs and oral argument, and now adopts the trial judge's opinion (with minor modifications) as hereinafter set forth, as the basis for its judgment in the case.* Accordingly, it is concluded that plaintiff is not entitled to recover and the petition is dismissed.

568 F.2d 723

Trial Judge COLAIANNI's opinion, with minor modifications, is as follows:

COLAIANNI, Trial Judge:

Charging that the United States has used the invention covered by his patent, entitled "Erosion and Flood Control and Land Reclamation," without his consent or authorization, plaintiff brings this action pursuant to 28 U.S.C. § 1498 for reasonable and entire compensation. Trial was limited to the issues of patent validity and infringement. The amount of plaintiff's recovery, if any, is deferred until after a final ruling by this court on the questions of validity and infringement.

The patent in suit, United States Patent No. 2,745,768, hereinafter referred to as the "Karch" patent, issued on May 15, 1956,1 to Krekel Karch, who throughout its term was the sole owner of all right, title and interest therein.

Defendant denies plaintiff's claim on various grounds, including that the claimed process was known or used in public, or described in a printed publication within the meaning of 35 U.S.C. § 102(a),2 more than 1 year prior to the date of plaintiff's invention. In addition, defendant urges that the invention was obvious to one of ordinary skill in the art and thus invalid for failure to meet the standard of 35 U.S.C. § 103.3 Finally, defendant maintains that it is not liable to plaintiff because it has not used the process covered by the single process claim of the Karch patent during the relevant accounting period.

For the reasons stated hereinafter, it is concluded that the patent in suit is invalid since the process would have been obvious to one of ordinary skill in the art at the time that plaintiff made his invention.

The Karch Patent

The Karch patent relates to erosion and flood prevention and control, and, as well, to the reclamation of land which has been damaged by the failure of a landowner to practice necessary water control measures. Briefly stated, the method employs the well-known concept of slowing the velocity of silt-laden water to such a degree and for such a length of time, that a large proportion of the silt will be deposited. A substantial proportion of the desilted water is soaked up by the terrain to increase the land's water table, while the remainder harmlessly passes along its normal flow course. In order to collect and otherwise slow the velocity of the silt-laden water, a barrier is constructed across a gully that is to be eradicated. In this manner, a dry basin is formed behind or upstream of the barrier. Prior to forming the barrier, a horizontal conduit has been placed such that it will ultimately be positioned transversely below the barrier. The inlet of the conduit is placed at approximately the lowest level of the dry basin, while the outlet may discharge into another dry basin, stream, or lake.

The arrangement is such that in times of rainfall water will flow rapidly down the gully, at a velocity that is dependent upon such factors as the amount of rainfall and the slope of the gully. The water carries in suspension soil or silt washed from the land drained by the gully. Upon the silt-laden water initially reaching the barrier, its

568 F.2d 724
movement will be interrupted and a pool will be formed in the basin. The slowing of the water results in the deposition of suspended silt. As additional water enters the basin, it encounters the water previously collected and in turn is sufficiently slowed so that its silt will be deposited on the floor of the gully at the point on the periphery of the water present in the basin where the additional silt-laden water enters. As additional water is collected, the periphery of the pool is continuously changing, so that successive increments of silt will be deposited at the everchanging water periphery

The water which is collected in the basin will be discharged by way of the conduit. However, the conduit inlet can be restricted so that the rate of discharge through the conduit is substantially less than the normal rate of flow into the basin. In this manner, even normal rains will cause a pool or lake to be formed temporarily in the dry basin. In the event that the dry basin is being cultivated, the design is such that the accumulated water will be emptied from the basin within 1/2 to 2 days and thus prevent damage to the crop. In order to ensure that an inlet small enough to cause a temporary lake in the basin in light rains will nonetheless empty the basin within 2 days of heavy rains, a spillway is provided to carry around the barrier that water which is in excess of the volume which the inlet can handle in this period.

In operation, the silt will initially fill the irregularities on the floor of the basin. However, as a result of repeated depositions of silt, the floor of the basin will be built up. It therefore will become necessary, as the process continues, occasionally to raise the inlet end of the conduit to ensure that the inlet level is level with or slightly above the accumulated silt level which has become the floor of the dry basin.

The Patent Claim

The single method claim of the Karch patent, in indented form for ease of understanding, reads as follows:

The method of stopping erosion by silt-containing water flowing in a gully, and causing deposition of silt therefrom, comprising:

erecting a water barrier across said gully to provide a temporary retaining basin for at least some of said water, said barrier comprising a conduit positioned substantially horizontally beneath and transversely of said barrier, the inlet of said conduit being at the lowest point in the basin;
providing a spillway near one end of said barrier of lower elevation than the top of said barrier;
receiving silt-containing water in said basin; causing water to collect in said basin by discharging water from the floor of said basin solely through said conduit at a flow volume substantially less than that at which water enters said basin, and thereby causing deposition of silt from said water on the floor of said basin, in substantially successive increments at the ever-changing water periphery; and
continuously discharging desilted water from said conduit until said basin is empty;
whereby erosion in said gully is eliminated and said basin is thereafter operable as a safely cultivatable dry basin, wherein the basin floor slopes upwardly from the conduit level to the ultimate silt level.

Scope of the Claim

Defendant has contended that major flood control projects built by the Government since the 1920's4 anticipate the Karch claim and thus render it invalid for lack of novelty pursuant to 35 U.S.C. § 102. Such projects were primarily concerned with the formation of temporary lakes in rains so heavy, i. e., 2, 5, 10, or 50-year storms,5 that flood prevention measures become appropriate.

568 F.2d 725
The flood control structures were not intended and indeed did not result in the formation of temporary lakes in what may be termed a normal or typical rain. Rather, the flood control dams were designed to retain the high levels of water resulting from the unusual storms and thus prevent rivers from overflowing their banks and causing loss of life and property. The retained water would thereafter be discharged at a metered rate which could be conveniently and safely accommodated by the river

Plaintiff, to the contrary, contends that methods whose utility is limited to unusual heavy rain conditions are not within the Karch method. The Karch method, plaintiff contends, is limited to the collection of silt in normal, everyday intensity rains. The large scale, heavy rains cannot be retained by the water barrier of the method in suit, but instead flow over or around the barrier by way of the spillway.

Looking to the Karch specification to determine the context in which the claims are to be read, one finds:

This conduit is so designed that the rate of flow through it is substantially less than the normal rate of flow of water into the basin.
* * * * * *
* * * thus, if the conduit has been made too large, any simple, conventional arrangement can be made to reduce the area of the inlet opening, so that normal rainfalls will result in the formation of a temporary lake in the dry basin.

As explained by the patent specification, in heavy rains, Karch's spillway carries silt-containing...

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