Midland Flour Milling Co. v. Bobbitt

• Decision Date: 23 March 1934
• Docket Number: 9742.,No. 9722,9722
• Citation: 70 F.2d 416
• Parties: MIDLAND FLOUR MILLING CO. v. BOBBITT. BOBBITT v. MIDLAND FLOUR MILLING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 416 (1934)

MIDLAND FLOUR MILLING CO. v. BOBBITT.

BOBBITT v. MIDLAND FLOUR MILLING CO.

Nos. 9722, 9742.

Circuit Court of Appeals, Eighth Circuit.

March 23, 1934.

Henry M. Huxley, of Chicago, Ill. (M. L. Alden, of Kansas City, Kan., and Edward S. Rogers, and James H. Rogers, both of Chicago, Ill., on the brief), for Midland Flour Milling Company.

Bruce S. Elliott, of St. Louis, Mo., and William L. Vandeventer, of Kansas City, Mo., for Robert L. Bobbitt.

Before GARDNER and WOODROUGH, Circuit Judges, and MARTINEAU, District Judge.

GARDNER, Circuit Judge.

This is a patent suit in which Robert L. Bobbitt, as plaintiff below, sought to enjoin the Midland Flour Milling Company, defendant, charging infringement of claims 3 and 4 of Letters Patent No. 1,354,878, dated May 5, 1920, for an improvement in dust collectors. The application for patent was filed November 27, 1914.

The patent relates to a type of dust collector in which dust-laden air is tangentially introduced into the upper cylindrical portion of a chamber, the lower part of which is in the form of a cone, the dust being discharged through an opening near the apex of the cone and the purified air being discharged upwardly through an opening in the center of the top of the collector. Patentability is bottomed on the claim that plaintiff introduced into the art as it then existed the feature of having the total height of the dust collector about three and a half times its greatest diameter. It is recited in the patent that:

"This type of dust collector is well known and in very general use. Such dust collectors are in all cases, so far as I am aware, of relatively short height compared with their width, their total height ranging from one-fourth to one-half greater than the greatest diameter, which, of course, is at the top."

Claims 3 and 4, which are the only ones involved in this suit, read as follows:

"3. A separating chamber having a tangential inlet for dust-laden air and adapted to confine a whirling body of air and dust, an opening at one end thereof for purified air, and a relatively small centrally disposed opening at the other end for dust, said chamber having a tapering portion of the shape of a cone whose altitude is substantially three times the diameter of its base, said dust outlet opening being adjacent to the apex of said cone.

"4. A separating chamber having a cylindrical portion, a tangential inlet for dust-laden air in said cylindrical portion, an outlet for purified air, an outlet for dust, and a tapering portion of the shape of a cone having an altitude equal to substantially three times the diameter of its base and having a smooth uninterrupted inner surface, said dust outlet opening being located adjacent to the apex of said cone."

The bill of complaint is in conventional form, and the answer in effect pleads invalidity and noninfringement, and also pleads prior publication and prior public use. The lower court sustained the validity of the patent and found infringement as to certain of the devices used by the defendant, holding that dust collectors in use by the defendant having a cone proportion of between 2.50 and 3.50 to 1, infringed plaintiff's claims 3 and 4, but that defendant's devices in which the cone ratio was more than 3.50 to 1 did not infringe. Both parties have appealed, the defendant claiming that the court erred in holding the patent valid. and the plaintiff claiming that the court erred in limiting his patent to those devices having a cone in which the ratio of the altitude of the cone to the diameter at the base was between 2.50 and 3.50 to 1.

In support of its contention that plaintiff's patent is invalid, defendant urges: (1) His invention or discovery was described in a printed publication prior to plaintiff's discovery thereof; (2) that the invention was in public use and sale for more than two years prior to his application for patent; (3) that it was anticipated by the prior art and lacking in invention over the prior art; (4) that plaintiff has been guilty of laches.

Section 31, title 35, U. S. C. (35 USCA § 31) provides as follows:

"Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor."

Prior publications rest upon the same ground as prior patents so far as anticipation is concerned, and no valid patent under the above-quoted statute can be obtained if the invention or device was disclosed in a printed publication, either in this or any foreign country, before the invention or discovery was made. Bone v. Commissioners of Marion County, 251 U. S. 134, 40 S. Ct. 96, 64 L.Ed. 188; Thacher v. Falmouth (D. C.) 235 F. 151, affirmed (C. C. A. 1) 241 F. 869.

To be effective as an anticipation, the printed or public disclosure of the subject of patent must be in such terms as to enable a person skilled in the art of the science to which it pertains to make, construct, and practice the invention without assistance from the patent which it is said to have anticipated.

There was received in evidence a printed publication entitled "Roller Mill and Silo Manual," published in Liverpool, England, in 1901. On page 154 of this publication appears the following description:

"One form of dust collector of the Vortex type, very suitable for coarse dust material, now much in use, is that known under a variety of titles as the `Cyclone,' `Climax,' `Tornado,' `Whirlwind,' etc. These are generally constructed in the shape of an inverted cone of sheet steel, zinc, terne plate, or wood, with a shallow cylindrical part on the top, in the center of which is an opening for the treated air to escape, and another opening in the side into which the dust-laden air is blown. The dust, impelled by centrifugal action, is supposed to remain close to the inside surface of the cone, and to gradually gravitate towards the bottom outlet at the apex of the cone. Some of these collectors have a second cone or perforated cylinder, etc. inside. Although simple in construction these appliances require attention in order to get good work, and for this purpose should be placed where they may be easily inspected. A series of these cones may be grouped either vertically or horizontally until the required capacity for proper purification of the air has been obtained. This compounding has been carried out successfully in many cases. To suit various special positions the machines are made right and left hand as regards the inlet openings.

"Another method adopted is to place the machine in a dust room, so that the finer dust may be collected there, or to pass it through a textile collector from which the air may flow into the atmosphere.

"A Vortex machine of this class about 4 feet diameter by 10 feet high has a capacity for treating 1,500 cubic feet of air per minute, and one of 6 feet by 14 feet high about 2,000 cubic feet per minute."

Defendant produced at the trial a diagram or drawing based upon this publication. It is quite unnecessary to refer to the testimony showing that this diagram, appearing as defendant's Exhibit 17, was properly deducible by one skilled in the art from the above-quoted article, because the court specifically finds that:

"There was undisputed testimony on behalf of defendant, that the drawing, Defendant's Exhibit No. 17, correctly represents a centrifugal or Vortex type dust collector described on page 154 of `The Roller Mill and Silo Manual', Defendant's Exhibit 29."

We here insert for purpose of convenient comparison an outline drawing of Figure 1 of plaintiff's patent, and an outline of Exhibit 17, based on the above-quoted publication of 1901.

Plaintiff, testifying on his own behalf, on being shown copy of the diagram produced from the "Roller Mill and Silo Manual," testified:

"I would consider defendant's Exhibit 17 an infringement. I consider this a long cone collector. This probably would come under my invention."

If the device as disclosed by this publication would, if produced after plaintiff received his patent, be an infringement, then it would seem that its earlier disclosure would be an anticipation. Knapp v. Morss, 150 U. S. 221, 14 S. Ct. 81, 37 L. Ed. 1059; Peters v. Active Manufacturing Co., 129 U. S. 530, 9 S. Ct. 389, 32 L. Ed. 738.

The publication describes a Vortex type of dust collector, which is the type of collector described in the patent. It appears from the evidence without dispute that it required only mechanical skill of one skilled in the art to construct the device from the disclosure in the publication, and taking plaintiff's own testimony, it seems clearly established that his invention was described in this publication some thirteen years before he applied for patent.

The above-quoted statute limits the inventions for which a patent may be obtained to those "not in public use or on sale in this country for more than two years prior to his application." Twyman v. Radiant Glass Co. (C. C. A. 8) 56 F.(2d) 119; Brush v. Condit, 132 U. S. 39, 10 S. Ct. 1, 33 L. Ed. 251; Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 249, 8 S. Ct. 122, 31 L. Ed. 141.

Plaintiff applied for patent on November 27, 1914. Prior to that time there had confessedly been installed certain of these devices. The first was installed by plaintiff in an alfalfa mill operated by himself and his brother at Valley Center, Kan., in 1908, and it is admitted by plaintiff that the dust...