Pennsylvania Crusher Co. v. Bethlehem Steel Co.

• Decision Date: 09 February 1951
• Docket Number: Civ. A. No. 6815.
• Citation: 95 F. Supp. 696
• Parties: PENNSYLVANIA CRUSHER CO. et al. v. BETHLEHEM STEEL CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

95 F. Supp. 696

PENNSYLVANIA CRUSHER CO. et al. v. BETHLEHEM STEEL CO. et al.

Civ. A. No. 6815.

United States District Court W. D. Pennsylvania.

February 9, 1951.

Pennie, Edmonds, Morton & Barrows, W. Brown Morton and Frank A. Bower, all of New York City, Harry S. Dunmire, Pittsburgh, Pa., for plaintiffs.

Harker H. Hittson, Columbus, Ohio, Brown, Critchlow, Flick & Peckham, Jo. Bailey Brown and Julian K. Miller, all of Pittsburgh, Pa., for defendants.

FOLLMER, District Judge.

The plaintiffs, Pennsylvania Crusher Company (hereafter referred to as "Pennsylvania") and Marguerite C. Schacht, Administratrix of the Estate of William H. Schacht, Deceased, (hereafter referred to as "Schacht") bring this action against the defendants, Bethlehem Steel Company (hereafter referred to as "Bethlehem") and The Jeffrey Manufacturing Company (hereafter referred to as "Jeffrey") alleging infringement of Claim 2¹ of a method patent No. 2,155,151 issued to William H. Schacht on April 18, 1939, and claims 4, 6, 9, and 10² of Patent No. 2,149,571 issued March 7, 1939, to Pennsylvania as Assignee of William A. Battey (hereafter referred to as the "Battey Patent"). The action is by Pennsylvania as licensee and Schacht as owner of the Schacht Patent, and by Pennsylvania as owner of the Battey Patent. Plaintiff Schacht is not concerned with the Battey Patent. The two patents involve two separate and distinct features which are the subjects of the alleged infringement, and will be considered separately.

Two machines (hereafter described) and the method of operation thereof are alleged to constitute infringements of the two patents in suit. The defendant, Bethlehem, is charged with infringement of both patents in the use of the two machines at its Johnstown, Pennsylvania, plant. Jeffrey is charged to be a contributory infringer of both patents in suit and also a direct infringer of the Battey Patent No. 2,149,571. Jeffrey has assumed the defense of the entire action.

From the pleadings and proof I make the following Findings of fact:

A. Generally.

1. Defendant Jeffrey manufactured and sold two 42" × 82" Type "B" swing hammermills to the defendant Bethlehem, which were ordered in April 1939, and placed in operation by Bethlehem not later than March 14, 1940, and have been in substantially continuous operation since that date.

2. Defendant Jeffrey has for many years manufactured and sold swing hammermills, such manufacturing and selling extending back at least as early as 1909. The machines alleged to constitute infringement of the patents in suit were manufactured by Jeffrey and sold to Bethlehem. They are swing hammermills with a central feed opening above the hammer rotor, which is mounted for rotation on a horizontal axis. Grate bars are positioned on each side of and adjacent to the bottom of the rotor but with a wide opening directly below the rotor through which tramp material may escape. Breaker plates are symmetrically arranged on each side of and above the rotor, and there is a projecting nose near the bottom of each breaker plate, which in operation is adjusted so as just to clear the hammers rotating past it. These Jeffrey-Bethlehem machines, except for the presence of breaker plates on both sides of the rotor, are essentially the same in structure as the 42" × 48" Type "B" Jeffrey Pulverizer, which has been manufactured and sold by Jeffrey for many years, long antedating the patents in suit.

B. As to Schacht Patent.

3. William H. Schacht filed an application for patent on a method of crushing on March 26, 1934, which was designated as a continuation-in-part of an application filed on January 7, 1933, which continuation-in-part issued as Patent No. 2,155,151 on April 18, 1939. This patent contains only method claims, and only claim 2 is declared upon in this suit.

4. The Schacht Patent No. 2,155,151 relates to a method of crushing material in which the particles to be crushed are fed into the path of the impact members, allegedly with sufficient velocity in relation to the speed and spacing of those members to carry substantially each particle of the stream fully into the path of an impact member, whereby it is squarely hit. Claim 2 of this patent is directed to a method of reducing material by impact in a primary single stage and is not concerned with secondary reduction.

5. Dechamp Patent No. 248,923 issued November 1, 1881, covers a disintegrating apparatus for use on a wide range of materials, which apparatus bears a striking similarity to that of Schacht, the construction being the full equivalent of that shown as Figure 6 in Schacht Patent No. 2,155,151. The Dechamp Patent teaches reduction by the penetration and impact principle more adequately, more in detail, with more of the variable factors involved, than does Schacht, and fully anticipates method claim 2 of Schacht Patent No. 2,155,151.

6. Tomlinson Patent No. 1,331,969 covers a rotary impact pulverizer which employs and fully anticipates method claim 2 of Schacht Patent No. 2,155,151.

7. Jeffrey manufactured and sold a swing hammer pulverizer predicated, with some modifications, upon Liggett Patent No. 1,125,137 issued January 19, 1915, and at least as early as 1926 in its Catalogue No. 368A in connection therewith called attention to the fact that variations in speed affected the obtaining of adequate impacting for different materials and also that the height of the feeding point had a bearing upon the efficiency of the machine. This was an anticipation of Schacht and an earlier recognition than Schacht's of the fundamental principle that greater penetration was obtained by increasing the velocity of the falling particles.

8. Patent No. 1,257,619 of C. S. Lincoln (Assigned to Allis-Chalmers Manufacturing Company) issued February 26, 1918, was for a portable crusher which in its method of operation employed the same fundamental laws of physics involved in Schacht's claim 2, and fully anticipated said claim. Allis-Chalmers started manufacturing this machine as early as 1915.

9. In 1924 the Allis-Chalmers Manufacturing Company of Milwaukee, Wisconsin, sold to Joseph N. Hanley a "portable crusher" outfit constructed in accordance with Lincoln Patent No. 1,257,619 in which the limestone was reduced by a jaw crusher and then elevated and dropped a distance of approximately five and one-half feet into a No. 1 Allis-Chalmers Pulverator. This portable unit was known as the "A-C Hummer." The vertical chute down which the material was dropped contained no baffles. It was publicly used for a number of years in the reduction of limestone. Its use involved the same principles of penetration and direct impact obtained through velocity attained in a gravity fall of the material and fully anticipated claim 2 of Schacht's Patent No. 2,155,151.

10. Not later than 1928, Allis-Chalmers Manufacturing Company printed and circulated its Bulletins Nos. 1452 and 1467, the latter being copyrighted in 1928. Said Bulletin No. 1452 on pages 3 and 4, and said Bulletin No. 1467 on pages 3, 4, and 5, fully disclose, illustrate and describe reduction of limestone by the penetration or impact principle. Each of the Allis-Chalmers Bulletins Nos. 1452 and 1467 constitutes a publication which shows anticipation of, and lack of invention in claim 2 of Schacht Patent No. 2,155,151.

11. In 1920 the Vermarco Lime Company at West Rutland, Vermont, had in operation a swing hammer pulverizer manufactured by the Universal Crusher Company of Cedar Rapids, Iowa, and sold by the Brainard Pulverizer Company of Chicago, Illinois, under the designation of a No. 18 Brainard Pulverizer. In this installation velocity was obtained by gravity in a free fall of the material to be pulverized, resulting in penetration and full face impact by the hammers. It was an utilization of the same fundamental principles and fully anticipated claim 2 of Schacht Patent No. 2,155,151.

C. As to Battey Patent.

12. William A. Battey filed an application for patent on a hammermill on Octomer 30, 1936, which issued as Patent No. 2,149,571 on March 7, 1939. Only Claims 4, 6, 9, and 10 are declared upon in this suit. These four claims involve substantially the following:

(a). "A reversible hammermill comprising a housing" in claims 4, 6, 9, and 10.

(b). "A crushing chamber within the housing and having a substantially horizontal axis" in claim 4.

"A crushing chamber" in claim 6.

"A crushing chamber within the housing and having a substantially horizontal axis, said crushing chamber having its opposite sides symmetrical with relation to a longitudinal vertical plane containing the chamber axis" in claims 9 and 10.

(c). "A system of hammers in the chamber rotated as a unit around a substantially horizontal axis" in claim 4.

"A system of swinging hammers in the chamber maintained in operative position by centrifugal force and rotated as a unit" in claim 6.

"A system of pivoted hammers in the chamber rotated as a unit around a substantially horizontal axis parallel with the axis of said chamber" in claims 9 and 10.

(d). "Means for rotating the hammer system at impact-crushing speed" in claim 4 but omitted in claim 6.

"Means for rotating the hammer system at impact crushing speed in either direction to initially fracture the material being crushed" in claims 9 and 10.

(e). "A feed inlet located centrally over the hammer system" in claims 4 and 6.

"Inlet means opening through the upper portion of the chamber wall and symmetrically arranged with reference to said vertical plane containing said axis for introducing the material to be crushed into the chamber over said hammer system" in claims 9 and 10.

(f). "A separate breaker plate at one side of the inlet mounted in the housing and spaced from the hammer path by a distance greater than the diameter of the largest piece of material to be crushed" in claims 4 and 6.

"A breaker plate forming a wall of said chamber at one side of said plane and mounted in the...