Luten v. Kansas City Bridge Co.
| Decision Date | 23 December 1922 |
| Docket Number | 5919. |
| Parties | LUTEN v. KANSAS CITY BRIDGE CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Russell T. MacFall, of Indianapolis, Ind. (Bowersock & Fizzell, of Kansas City, Mo., and Daniel Royse, on the brief), for appellant.
Samuel W. Sawyer, of Kansas City, Mo. (O.W. Pratt and Lathrop Morrow, Fox & Moore, all of Kansas City, Mo., on the brief) for appellee.
Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.
The plaintiff below has appealed from an order of the District Court granting a motion made by the defendant that the plaintiff's bill in equity for infringement of patents be dismissed. The plaintiff has alleged in his complaint that he was the inventor and the owner of the exclusive right to use the improvements described therein and patented to him by letters patent No. 802,004, issued October 17, 1905, and letters patent No. 1,106,880, issued August 11, 1914, and that the Kansas City Bridge Company, the defendant, had infringed claims 1 and 3 of patent No. 802,004, and claims 2 3, 4, 6, 8, 9, 11, 12, and 13 of patent No. 1,106,880, in the construction of a reinforced concrete bridge at Ellsworth Kan.
The art to which these patented improvements relate is that of the erection and removal of the false work for the construction of arches of considerable span, such as 75 feet and more, of bridges made of stone, masonry, or reinforced concrete. The desideratum which the patentee and his competitors in the art were seeking was the combination of mechanical elements and the method of operation thereof, by means of which the false work for the erection of such a bridge might be constructed, used, and removed in the most economical, safe, inexpensive, and efficient way, so that, as the false work was withdrawn after the completion of the arch, the stresses might be imposed upon it throughout its entire length and width, so slowly, gradually, and uniformly that its shape should be carefully preserved and the new arch should sustain no fall, shock, or injury as it settled into its final position and received its burden.
Such arches are built upon wooden arches or false work beneath them, and this false work is removed after their completion. There was difficulty and danger in this removal. If the false work were suddenly or too rapidly withdrawn, either in whole or in part, the new arches might fall. If the stresses which came upon it after its completion were not uniformly and gradually imposed on all the parts of the new arch as it settled into its permanent position, its shape might be changed, or parts of it might fall.
Prior to the alleged inventions of the patentee, the posts or uprights used to support the wooden arch of the false work were of sufficient size and cross-section to sustain beyond all doubt the weight of the arch of masonry or concrete, and in order to avoid the dangers of withdrawal of the false work those posts were based on greased wedges, or on sand in plugged boxes. When the concrete or masonry arch was complete, these wedges were driven out from beneath the uprights or posts, or, if they rested upon sand in boxes, the plugs were withdrawn from the boxes and the sand was permitted to run out. In these ways provision was made for the gradual settling of the new arch into its place. The plaintiff conceived, constructed, used, and obtained his patents for a new combination of mechanical elements, which, by a new method of operation, accomplished the construction and removal of the false work for such arches without the use of the large heavy uprights or posts, the greased wedges, and the sand and sand boxes.
His combination includes, instead of heavy posts or uprights of cross-section sufficient to support the new arch beyond doubt at all times, a plurality of light posts or uprights, each of which consists of two members, generally about six inches wide and two inches thick, the sum of the individual strength of which is sufficient to support the load which united they easily sustain. These two members stand on a secure footing. The upper end of one of them is nailed or otherwise fastened to one of the joists of the false work. The second member is fitted accurately under the joist by wedging or otherwise, is placed in such a position in relation to the first member as to form with it a post substantially T-shaped in cross-section. These two members are fastened together in this position by wire wound tightly around them, or by some similar means, so that each will strengthen the other while they are thus bound together, and so that they may be readily released from each other, so that each may separately buckle and yield under the same load, which, when they were bound together, had been easily sustained by them. These posts or supports are further strengthened by braces, which lie in a plane substantially parallel to the axis of the bridge and are attached to those of the members of the posts, which, under the applied load, will tend to buckle in the direction of the axis of the bridge. In his specification the patentee stated:
'This construction results in extremely light posts of great strength, placed with minimum of labor, and with secure connections, yet which will serve as an extremely rigid false work support during the erection of any structure.'
After the arch is completed and sufficiently set, the patentee causes the false work itself to settle and the stresses to be imposed upon the new arch gradually and uniformly, by selectively and gradually withdrawing the braces and cutting the wires which hold together the two members of each of the posts, and permitting those members to buckle as they will under the load which, united, they supported. This buckling of the members discloses at a glance what parts of the arch, if any, are settling too rapidly or too slowly, and enables the superintendent immediately to apply the proper remedy to prevent any change of the shape of the arch, or the fall of or shock to any part thereof.
Some of the advantages which the patentee claims result from the use of his combination are that it accomplishes the desired result more surely, safely, and effectively than the use of wedges or sand boxes; that the driving out of the wedges is heavy and dangerous work, which may result in a sudden fall or shock to the new arch, or some part thereof; that sand in boxes may become wet and refuse to flow at all, or may flow from some of the boxes and fail to flow from others; that in the use of the wedges or sand it is difficult to perceive quickly what parts of the arch may be settling too rapidly or too slowly, until it is too late to prevent shock, change of shape, and injury, while in the use of the plaintiff's combination the buckling members or posts show at a glance how each part of the arch is settling, and the selective handling of the wires and braces gives complete control of every part thereof at all times, and assures a slow, gradual, uniform, cushion settlement of the arch into its permanent position.
The patentee also claims that the use of his combination and method of operation is much less expensive than the use of the older methods; that it eliminates entirely the expense of using the wedges, sand boxes, and sand; that it substitutes for the heavy uprights or posts of the earlier art the light posts of two united, but separable, members, and thereby dispenses with a large force of laborers requisite to handle the heavy timbers, and enables two or three men to build and remove the false work; that it permits the repeated use in the construction of false work for successive bridges of the same light materials, while the heavier timbers of the earlier art are often useless for the construction of a second bridge and are expensive to transport.
Claim 2 is typical of the claims of patent No. 1,106,880. It reads in this way:
'A falsework centering comprising a joist supported by a compound compression member composed of a plurality of pieces, each having major and minor dimensions transverse to its length, the major dimension of one piece being arranged longitudinally of and overlapping the joist and transversely to the major dimension of another piece of the compression member, and a releasable connecting member to unite the pieces of the compression member.' Other claims in suit include the combination with the posts composed of two members with the braces which have been described.
In his complaint the plaintiff alleges that heretofore there have been produced by him or by others under his instructions and licenses more than...
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