Lanyon Zinc Co. v. Brown

• Decision Date: 17 March 1902
• Docket Number: 1,586.
• Parties: LANYON ZINC CO. v. BROWN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F. 150

LANYON ZINC CO. v. BROWN et al.

No. 1,586.

United States Court of Appeals, Eighth Circuit.

March 17, 1902

Albert H. Walker (John H. Atwood, on the brief), for appellant.

Philip C. Dyrenforth, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is an appeal from an order granting an injunction pendente lite in a patent case. The infringing device, the use of which was restrained, is an ore-roasting furnace, manufactured in full accordance with letters patent No. 523,013, issued to Alfred Ropp in January, 1895. This patent was considered by this court in the case of Extraction Co. v. Brown, 43 C.C.A. 568, 104 F. 345, and it was held that an ore-roasting furnace constructed in accordance with the specifications of that patent, with a supplemental chamber designed to protect the rabble operating mechanism from the direct action of flames and dust, and located underneath the hearth of the oven instead of at the side thereof, infringed claim 1 of patent No. 471,264, granted to Horace F. Brown on March 22 1892. This court held, in substance, for reasons fully stated in its opinion, that claim 1 of the Brown patent should be construed to cover a supplemental chamber placed beneath the main roasting chamber, and designed to protect the rabble operating mechanism from the direct action of the flames heat, and dust within the oven, because a supplemental chamber so placed was a mechanical equivalent for a supplemental chamber located at the side of the oven and designed for the same purpose. 43 C.C.A. 576, 577, 104 F 353, 354. A motion for a rehearing having been filed after the announcement of our decision in that case, we declined to recede from that construction of the Brown patent, although we did hold that the device covered by claim 4 of the Brown patent, which we had not considered in our original opinion, was anticipated by earlier patents, and that the claim was void. 49 C.C.A. 147, 110 F. 665. The present action, which was entitled in the lower court 'Horace F. Brown, Selwyn C. Edgar, and Collinsville Zinc Co. v. Lanyon Zinc Co.,' was pending in the lower court when the decision in the case of Extraction Co. v. Brown, last referred to, was announced; and as it appeared that the Lanyon Zinc Company, the defendant below and the appellant here, was using the Ropp furnace, and that the use thereof constituted the grievance of which the plaintiffs below complained, the circuit court, very shortly after the announcement of that decision, granted an injunction pendente lite. The injunction, by its terms, was to become effective on May 15, 1901, the order granting the same having been made on April 24, 1901; but before it became effective the operation of the injunction was further suspended by an order duly made and entered of record in the lower court, until the appeal from the order granting the injunction was heard and determined, or until the decision of the case on final hearing by the lower court, whichever event should occur first. This order, deferring the time when the injunction should take effect, was made on condition that the Lanyon Zinc Company should give a bond in the sum of $40,000, which was subsequently executed, conditioned to pay such damages as might be occasioned by the delay. The case has not yet been reached for final hearing in the lower court, although it is said that most of the testimony has been taken, but the appeal from the restraining order was reached in its regular course at the present term of this court, and counsel for the appellees insisted on their right to a hearing and upon the entry of such a decree as they were entitled to upon the record that had been lodged in this court.

This assignment of errors, which was filed in the lower court specifies four as having been committed. The first and the third errors so assigned are-- First, that the lower court erred in holding claim 1 of patent 471,264, being the Brown patent, to be valid; and, third, in adjudging that the doings of the defendant, the Lanyon Zinc Company, although it was confessedly using a Ropp furnace, infringed claim 1 of the Brown patent. Both to these questions were considered and decided in Extraction Co. v. Brown, 43 C.C.A. 568, 104 F. 345, as heretofore stated; and, although it is true that the decision was rendered in a case to which the appellant was not a party, yet it disposes of the two errors last mentioned, so far as this court is concerned, unless the appellant has brought upon the record some new facts which are sufficiently potent to overthrow the conclusion that was formerly reached, concerning the Brown patent. We do not find in the record any new facts which, in our judgment, are entitled to such weight. It is true that on the hearing of the motion for an injunction the appellant did introduce in evidence letters patent 227,818, issued on May 18, 1880, to William C. Munroe, which patent was not in evidence in the former case, and it is likewise true that it introduced the affidavits of certain experts which are to the effect that, in view of the Munroe patent, the device covered by claim 1 of the Brown patent was within the reach of ordinary mechanical skill, and hence was not patentable. This is the only additional testimony which was not before us on the...