Noble Co. v. CS Johnson Company

• Decision Date: 15 February 1957
• Docket Number: No. 11814.,11814.
• Parties: NOBLE CO., Plaintiff-Appellee, v. The C. S. JOHNSON COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

241 F.2d 469 (1957)

NOBLE CO., Plaintiff-Appellee, v. The C. S. JOHNSON COMPANY, Defendant-Appellant.

No. 11814.

United States Court of Appeals Seventh Circuit.

February 15, 1957.

Richard Russell Wolfe, Jarrett Ross Clark, Chicago, Ill., Meyer & Capel Champaign, Ill., for appellant, Carlson, Pitzner, Hubbard & Wolfe, Chicago, Ill., William A. Denny, Milwaukee, Wis., of counsel.

A. Donham Owen, San Francisco, Cal., Edmund C. Rogers, St. Louis, Mo., for appellee.

Before DUFFY, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Defendant, herein referred to as Johnson Company, has appealed from a judgment of the district court, following a trial on defendant's counterclaim and the reply thereto of plaintiff, herein referred to as Noble Co.¹ The court having filed 41 findings of fact and 18 conclusions of law, its judgment declared invalid United States patent 2,109,534, as to claim 31, and United States patent 2,199,289, as to claim 2,² and dismissed the counterclaim for infringement thereof. The district court found that neither patent is valid and that the improvements, if any, in said patents over prior art were not beyond mechanical skill and do not reach the status of invention.

Both parties manufacture and sell plants for making concrete. It is with such plants that this case is concerned. The 2199 patent deals with a central mixing plant, while the 2109 patent relates to a batching device with mix selection.³

In the record before us there are over 450 pages of oral testimony, in addition to much documentary evidence.

1. We feel that rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., applies to this case. The rule⁴ requires that an appellate court make allowance for the advantages possessed by the trial court in appraising the significance of conflicting testimony and reverse only clearly erroneous findings of fact.

As to 2199:

Finding 3 of the district court follows:

"3. In Johnson patent No. 2199, application was filed February 6, 1935 and issued April 30, 1940. It is termed a `Central Mixing Plant\', sometimes characterized also as a `Vertical Flow Plant\'. There are storage bins for sand, cement, and several sizes of gravel located at the top of the plant. The materials are lifted or dumped into these various bins. Under each bin is a weighing device called a batcher. The materials from the bins are permitted to flow into the batchers by opening and closing of a gate. Below the batchers is a hopper to collect the various materials making up the mix or aggregate. A suitable chute is provided below the hopper to convey the aggregate into one or more of the mixers which are arranged below the hopper. The mixers have a single end opening, charging and discharging at the center axis of the plant. A receiver is provided below the mixers to receive the mixed concrete from the various mixers. The flow of gravity operates the plant."

Claim 2 reads:

"In a central mixing plant, a plurality of mixers having charging openings, said mixers being disposed with their charging openings directed towards a common center, and said mixers being further adapted to discharge towards the aforesaid common center, an aggregate collecting hopper supported at an elevation above said mixers, a movable distributing chute leading from said aggregate collecting hopper and adjustable about a vertical axis passing substantially through the common center aforesaid to direct aggregates from the hopper to any selected one of the mixers, and a mixed concrete receiver common to all of the mixers and disposed below the mixers, the said receiver being open at its upper end and extending laterally about a vertical axis passing through the aforesaid common center so as to be capable of selectively receiving mixed concrete from the mixers."

Finding 5 follows:

"5. This claim, specification and evidence disclose that the elements upon which No. 2199 is to stand for invention and validity as a patent are:

"1. A plurality of single ended mixers with their charge-discharge openings all pointed toward the center of the plant.

"2. An aggregate collecting hopper above the mixers.

"3. A distributing chute below the aggregate hopper movable to feed the aggregate into any one of the mixers.

"4. A receiver below the mixers, of a shape to receive concrete from all the mixers."

This plant is known in the art as a vertical flow plant because the aggregates flow by gravity from top to bottom.

The district court found, in finding 6, that the prior art in evidence discloses that each of the foregoing elements is old, citing, in finding 7, that tilting mixers, which were charged and discharged from one end, were disclosed in Brown patent, No. 1,314,124, August 26, 1919; Piispanen patent, No. 1,780,940, November 11, 1930; A. G. Reed patent, No. 1,848,223, March 8, 1932, and in the Waterlip reference in "Pit & Quarry" publication dated March 26, 1930; citing in finding 9, that aggregate collecting hoppers were disclosed in the Herbert plant in 1931 and the Madden Dam plant; and citing in finding 8, that a movable distributing chute was disclosed in W. Watson patent, No. 282,425, and in the Herbert plant built by Johnson in 1931 and the Madden Dam plant which was sold and planned by Johnson in 1932, and in Bolz patent, No. 997,742 dated July 11, 1911; and citing, in finding 10, that a mixed concrete receiver such as described in 2199 is disclosed in the Madden Dam plant and the Waterlip plant as shown in "Pit & Quarry" publication of March 26, 1930.

Thereupon, in finding 12, the district court found that the prior art anticipates patent 2199.

The district court in findings 13 through 17 proceeded to analyze the prior art as to the functioning of the various elements used therein and the results obtained thereby. Thus, in finding 13, the court found that the "vertical flow plant", such as appears in 2199, is shown in a catalog published in 1931 by the Stephens-Adamson Mfg. Co. There, drawings for a concrete making plant show overhead bins for different materials, which were filled by a conveyor, batchers, receiving hopper and a chute below the hopper to convey the aggregates into a mixer. Finding 14 revealed that a distributing chute and a flopgate were utilized in the Waterlip plant. This apparatus was located under an aggregate hopper and permitted the aggregates to be placed in either of two mixers, which were charged and discharged from one end and were tilted into a common receiving hopper for discharge. Finding 15 pointed out that the height of the bins was lowered in the Herbert plant, with reduced expense in elevating materials to the bins, and that this was also present in the Waterlip and Stephens-Adamson plants. Finding 16 found that, insofar as the use in 2199 of a short chute charging a mixer meant better premixing and less mixing time, this was also achieved in the Herbert and Waterlip plants. Finding 17, in effect, found that the Madden plant, by substituting single-end mixers, could also achieve a short direct chuting from the aggregate collecting hoppers into the mixers with only a mechanical change. The district court concluded in findings 18 and 19 that there was no invention and that the functions of "the old elements are the same in 2199 as in the prior art and no new results are obtained by their association."

As to 2109:

The district court found, in finding 20:

"20. The Johnson patent No. 2109 issued March 1, 1938, on an application filed June 27, 1935. Here again we have a `central mixing plant\' which `deals primarily with problems arising in the construction of such plants when designed for the mixing of huge quantities of concrete such as may be employed in the building of large dams and similar artificial masonry projects.\' The patent describes means for the control of the proportions or relative weights of the different aggregates that are to make up the particular batches."

Claim 31 reads:

"In a materials proportioning plant, in combination, supply means for different aggregates, proportioning devices for receiving each one of said aggregates from the supply means, a plurality of measuring instrumentalities for each proportioning device, and a common control for said measuring instrumentalities for rendering one of said measuring instrumentalities for each proportioning device operative for measuring a predetermined quantity of materials handled by each proportioning device."

In findings 22 and 23, the court said:

"22. Johnson, in his specifications shows that he utilized beam scales instead of dial scales, which were interchangeable in the art according to the evidence, with a separate scale under each batcher. To shorten this description reference will be made to the scales for the sand, cement, and gravel. Each of these scales had a main beam at the top with a ladder hanging from it onto which any one or more of several ingredient beams could be lowered. Each of the ingredient beams is held off the ladder, and hence, free from the main beam, by a small hydraulic ram plunger. If any plunger is withdrawn, its beam is lowered onto the ladder. Johnson connected all of the number one beam rams together, all of the number 2 beam rams together, and all of the number 3 beam rams together. These several connections were then brought down to a single hydraulic valve that controlled the inlet of hydraulic pressure. The valve could be moved to place in use the number one beam rams, the number 2 beam rams, or the number 3 beam rams by being moved to one of the three positions at the control stand as shown in Figure 7, Sheet 5 of the patent. The poises on the various ingredient beams could be pre-set so that one operator could select the desired mix.

"23. In 2109, we find four elements in a materials proportioning plant, in combination, which is not limited to the size of the plant:

"1. Supply bins;

"2. Individual batchers, one for each bin;

"3. A multiple beam scale for

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