Philip Sitton Septic Tank Company v. Honer

• Decision Date: 29 December 1959
• Docket Number: No. 6123.,6123.
• Citation: Philip Sitton Septic Tank Company v. Honer, 274 F.2d 811 (10th Cir. 1959)
• Parties: PHILIP SITTON SEPTIC TANK COMPANY, Appellant, v. W. M. HONER d.b.a. Midwest Sanitation Company, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

274 F.2d 811 (1959)

PHILIP SITTON SEPTIC TANK COMPANY, Appellant, v. W. M. HONER d.b.a. Midwest Sanitation Company, Appellee.

No. 6123.

United States Court of Appeals Tenth Circuit.

December 29, 1959.

H. H. Brown, Washington, D. C. (John H. Widdowson, Wichita, Kan. and H. A. Toulmin, Jr., Washington, D. C., were with him on brief), for appellant.

Emmet A. Blaes, Wichita, Kan. (John W. Brimer, Wichita, Kan., was with him on brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges.

MURRAH, Chief Judge.

The appellant sued for infringement of its patent (No. 2,483,564) for an improved elliptical shaped septic tank, and for other appropriate relief. The trial court gave summary judgment on the grounds of both invalidity and non-infringement.

Our first question is whether the patent in suit is patentable over a prior patent (No. 2,440,762), issued to the same patentee for a polygon-type septic tank. The object of the patent in suit was to provide an improved septic tank of elliptical design in which the sludge formation would move uniformly over the bottom of the tank, and by this improved action or flow pattern, the life of the tank (i. e. the period between cleanings) would be prolonged. A further object of the patent was to provide a fully portable tank with maximum strength against ground pressures after installation. To accomplish these objectives, the patentee offered a tank "substantially elliptical in transverse cross section and in which the inner walls of the tank are in the form of a continuous are from the ends of the tank toward the middle thereof."¹ Counsel described the tank as elliptical shaped, substantially twice as long as wide, and the same size from top to bottom with elliptical cross-sections, and stated that the tank was thus designed to allow the sewage to move upwardly and downwardly as it flowed frictionlessly through the tank.

The prior tank (No. 762) was described as an improved concrete septic tank in the shape of a polygon, the wall section consisting of a "plurality of straight side wall portions or chordal sections that are continuous with one another to form a unit structure. These side wall portions or chordal sections are arranged generally as a conic section, such as an ellipse, but in the form of a polygon in view of the many straight sides of the wall section."² This septic tank, "generally in the form of an ellipse, in the nature of a polygon," was designed to give "the incoming waste matter a relatively large distance to travel to the outlet opening and permitting the settling of the waste matter in the tank," thus making it "superior to a circular tank of equal capacity because of the increased flow travel distance between inlet and outlet openings." The shape and design of this tank was said to also provide greater strength against ground pressure after installation.

The patent in suit (No. 564) is said to represent a combination of elements, all cooperating together to produce a new and unexpected result over the septic tank of the prior patent. And see Consolidated Electrodynamics Corp. v. Midwestern Instruments, 10 Cir., 260 F.2d 811; Doran Coffee Roasting Co. v. Wyott Mfg. Co., 10 Cir., 267 F.2d 200. The trial court's judgment of invalidity is based, in part at least, upon the admissions of the patentee on the record to the effect that the latter patent performed substantially the same operation in substantially the same way as the former. And, the patentee concedes as much in his brief. He insists, however, that his claim in the latter patent is not to the function or process, but to the structure or product itself; and that the trial court misconceived the claim and the result achieved by the patent which forms the basis for his invention.

It is of course true that "product patents or patents of compositions of matter are distinct from patents of the process by which the product may be produced * * *." And, that "the former, if sufficiently described, may exist and be sustained independently of the latter." Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 478, 72 L.Ed. 868. But, it is equally true that the product patent may not be enlarged by describing it "exclusively in terms of its use or function." Holland Furniture Co. v. Perkins Glue Co., supra.

The new and unexpected result which gives this structure patentable invention is said to lie in providing "a phenomenal increase in the...