Miller v. Tilley, 13957.
| Decision Date | 30 December 1949 |
| Docket Number | No. 13957.,13957. |
| Citation | 178 F.2d 526 |
| Parties | MILLER v. TILLEY et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ira Milton Jones, Milwaukee, Wis. (Estill E. Ezell, St. Louis, Mo., on the brief), for appellant.
Alfred W. Petchaft, St. Louis, Mo., for appellees.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
The question for decision is whether the findings of the District Court that claims 3, 4 and 7 of United States Letters Patent No. 1,888,234 and claims 1, 2 and 5 of United States Letters Patent No. 1,960,276 were void for want of invention, are clearly erroneous. The District Court entered a judgment of dismissal of this action, in which the defendants (appellees) were charged by Edward J. Miller, the plaintiff (appellant), with having infringed the above specified claims of these two patents, which are owned by him. He seeks a reversal upon the ground that the court should have found that the claims in suit were valid and infringed.
Both patents were issued to Edward J. Miller, — No. 1,888,234 on November 22, 1932, upon an application filed November 9, 1929, and No. 1,960,276 on May 29, 1934, upon an application filed August 22, 1932. The first of these patents will be referred to as the "method patent," and the second as the "corner mold patent."
The method patent is entitled, "Method of and apparatus for applying wall finishes," and states: "This invention relates to certain new and useful improvements in wall finishes and refers more particularly to a method of applying a plastic material to resemble various types of stone and other similar surfaces." Claim 4, which is typical of the claims in suit of that patent, reads as follows:
The corner mold patent is entitled, "Apparatus for applying wall finishes." Claim 5, which may be regarded as typical of the three claims of the patent which are here involved, reads:
The method patent, No. 1,888,234, describes and claims a process for applying plastic material (usually cement or concrete mixture, in a plastic state) to the walls of buildings by the use of a shallow mold with an irregular bottom surface which forms a face resembling that of stone. The mold shown in the patent has sides movable with respect to the bottom. A sheet of waxed paper is first placed in the mold; powdered coloring material is sprinkled on the paper; the mold is filled with the plastic material, and is then pressed against the wall to be treated, so that the material will adhere to the wall and will take the stone-like impression of the mold surface. When the mold is withdrawn, the plastic material adheres to the wall, and the waxed paper adheres to the face of the material. The purposes of the waxed paper are said to be to prevent the plastic material from sticking to the mold, to prevent the too rapid drying of the material, to protect against drippings, to obtain full use of the coloring matter, and to prevent sagging of the material after the withdrawal of the mold. The mold which is described in the method patent illustrates the means for applying a simulated stone veneer to a two-dimensional surface.
The corner mold patent, No. 1,960,276, discloses an apparatus for applying the plastic material to corners. This apparatus consists of two surface molds hinged...
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