Standard Stoker Co. v. BERKLEY MACH. WORKS & F. CO., 233-235.

• Decision Date: 26 October 1938
• Docket Number: No. 233-235.,233-235.
• Citation: 29 F. Supp. 349
• Court: U.S. District Court — Eastern District of Virginia
• Parties: STANDARD STOKER CO., Inc., v. BERKLEY MACH. WORKS & FOUNDRY CO., Inc.

29 F. Supp. 349

STANDARD STOKER CO., Inc., v. BERKLEY MACH. WORKS & FOUNDRY CO., Inc.

Nos. 233-235.

District Court, E. D. Virginia, Norfolk Division.

October 26, 1938.

COPYRIGHT MATERIAL OMITTED

Leigh D. Williams (of Williams, Loyall & Taylor), of Norfolk, Va., and C. V. Edwards (of Edwards, Bower & Pool), of New York City, for plaintiff.

Roland Thorp, of Norfolk, Va., and Jo. Baily Brown (of Brown, Critchlow & Flick), of Pittsburgh, Pa., for defendant.

WAY, District Judge.

The above numbered suits have by consent been heard and considered together. The suits were instituted in July, 1931, but allowed by the parties to remain dormant on the docket until the Court on its own motion ordered that they be tried or dismissed. Plaintiff charges defendant with the infringement of five patents of which plaintiff is the sole owner, having acquired the patents and all rights therein through valid assignments. The patents are:

(1) Lower patent No. 1,373,748, relating to locomotive stokers. This patent was granted April 5, 1921, to an assignee of Nathan M. Lower, the inventor, and may be referred to as the "Big End Conveyor Screw" patent.

(2) Hunt patent No. 1,690,116. Application for this was filed by Andrew M. Hunt, January 27, 1925. The patent was granted November 6, 1928, to an assignee of said Hunt, and may be described as the "Double Thread Conveyor Screw" patent.

(3) Hunt, No. 1,724,593. Application for this patent was filed by Andrew M. Hunt, January 27, 1925, the patent was granted to an assignee of Hunt on the 13th day of August, 1929, and will be referred to as the "Notch Conveyor Screw" patent.

(4) Lower, No. 1,455,058. Application for which was filed by said Nathan M. Lower on August 8, 1918. The patent was granted May 15, 1923, to an assignee of Lower. It relates to mechanism for the distribution of fuel coal in the locomotive fire box and for convenience will be referred to as the "One Piece Distributor" patent.

(5) Lower and Chalker, No. 1,642,076. Application for that patent was filed by Lower and Chalker March 13, 1922. The patent was granted September 13, 1927. All rights therein were subsequently acquired by plaintiff. This patent will be called the "Three Piece Distributor" patent.

To summarize, Patents Lower No. 1,373,748, and Hunt Nos. 1,690,116 and 1,724,593, relate to the means of conveying coal from the locomotive tender or fuel bin to the fire box, and patents, Lower No. 1,455,058 and Lower and Chalker No. 1,642,076, relate to the means of distributing the coal in the fire box of the locomotive.

The three conveyor screw patents relating to the means of conveying coal from the tender to the fire box as granted, except claim 14 of Hunt No. 1,724,593, combine the horizontal conveyor screw with numerous other parts not covered by said patents. With reference to the distributor patents, in patent No. 1,455,058, claims 1, 4 and 7 are of a patent per se, while claims 2, 3, 5, 6, 8 and 9 are combination claims. In No. 1,642,076 No. 11 is a combination claim.

The coal is conveyed by each type of conveyor screw in suit horizontally and forwardly from the locomotive tender or fuel bin where it settles by gravity into such trough through a metal trough or conduit to a transfer hopper into which the coal is discharged by the horizontal conveyor screw. From this hopper the coal is raised by two elevator screws which as they extend upwardly from the transfer hopper, generally diverge in V-shape. (See picture below.) At its upper end the elevator screw drops the coal onto a plate in a tube from which point the coal is blown forwardly by steam jets, which jets, in conjunction with other distributing means, distribute the coal both forwardly and laterally in the fire box of the locomotive.

I. Lower Patent No. 1,373,748

The "Big End Conveyor Screw"

Only two claims are based on this patent, to-wit:

"1. In a locomotive stoker, in combination, a fuel-transferring screw having its final turn of greater radius than the remainder of its turns, and fuel elevating screw means receiving from the transferring screw.

"2. In a locomotive stoker, in combination, a conduit for transferring fuel from the tender of the locomotive, a receiving chamber on the locomotive into which the conduit discharges, a screw conveyor in the conduit, the delivery end of the screw being of greater carrying capacity than the remaining portion thereof, and fuel elevating screw means leading from the receiving chamber."

The single novel feature claimed and disclosed in each entire combination is the enlarged final flight in the horizontal conveyor screw. Picture below.

This enlarged final flight, it is claimed by plaintiff, causes greater pressure on the coal as it is forced into the hopper at the terminal end of the horizontal conveyor screw and thereby affords freer and more continuous movement of the coal as it is carried out of the hopper and upwardly by the elevator screws. These alleged advantages are thus described in Lower's application for the patent:

"The screw (10) carries the fuel forwardly in the trough as a somewhat loose mass. As the material reaches the more contracted portion of the trough where it joins the box 6, it is taken up by the larger turn (11) of the screw and forced into the box with increased pressure. This pressure assists the elevating screw by effectively reducing the frictional resistance of the fuel thereon and checking a tendency of the column of ascending material to merely rotate in the elevating conduit. This increased capacity of the last turn 11 of the transferring screw also prevents a retardation of the fuel at the delivery end of the conduit which, should it occur, would cause the material to pile up at the forward end of the trough and overflow its walls." (p. 1, lines 82-99 incl.)

The stoker known as the Duplex, has been a commercial success. There are about 7,000 Duplex stokers still in use although the Duplex type stoker has been largely superseded since 1930 by the type B Stoker, the horizontal conveyor screw in which is covered by other patents already referred to. However, the commercial success which the Duplex stoker has achieved is only in a measure due to the improvement made in the horizontal conveyor screw.

Prior Art Patents: Against the "Big End Conveyor Screw" covered by patent No. 1,373,748, a number of prior patents are cited.

Gard No. 255,385, granted March 21, 1882, was considered while the application for Lower No. 1,373,748 was pending. The Gard patent relates specifically to the brick making art. The Gard conveyor screw shows an enlarged final flight at its delivery end. Lower distinguished his conveyor screw from that of Gard on the ground that the Gard conveyor screw was devised and constructed for use in a non-analogous art. Undoubtedly the two arts as practiced are very dissimilar. But the similarity between the final flights in the Gard and Lower screws is striking, and, in each case, at least one purpose of the enlarged final flight as expressed by the patentee in his application, is to exert greater pressure on the material conveyed as it is deposited in the receiving hopper or other receptacle.

That the enlarged final flight was the only novel feature claimed by Lower is illustrated by the following statement in his application:

"It is common practice for the fuel to be transferred from the tender to the locomotive by means of a screw conveyor working in a trough and conduit located below the tender floor and delivering to a chambered body carried by the locomotive, from which it is elevated by one or more similar screws. It is important to the efficient working of the elevating screws that the fuel be under pressure as it is taken up and carried forward by them, thereby reducing the frictional action upon it of the vane of the elevating screw. It is, nevertheless, desirable that there be a free movement of the fuel in the horizontal or transferring conduit." (p. 1, lines 15-29)

There is very sound reason, I think, to regard a conveyor screw with an enlarged final flight, not narrowly as a screw to convey clay in one instance for brick-making, or coal for fuel purposes in another, but in a larger and more inclusive sense, as a material conveying screw whether it is employed to convey clay, coal, or other materials not used in either of said arts. Regarded in the broader sense there can be little doubt that Lower's conveyor screw, patent No. 1,373,748, was anticipated by the prior art as disclosed by Gard in patent No. 255,385 granted in 1882.

Deacon No. 116,165. Deacon's device is for feeding furnaces with fuel and was patented June 20, 1871. It shows an enlarged final flight on the horizontal screw G in Fig. 2 of the patent. In the Deacon patent (Fig. 2) the coal is fed into a trough (F) where the conveyor screw (G) is, which in turn advances and at the same time crushes the coal. The coal is fed forward onto a platform where it is brushed into the firebox by paddles b. With reference to the description of the Deacon screw, I quote from the patent p. 1, column 2:

"* * * turn a deeply cut screw or worm, G, nearly equal in diameter at the fan box end to the internal diameter of the cylinder, but tapering uniformly to a smaller diameter at the hopper end, that portion of the screw directly beneath the hopper being merely a shaft with a very shallow thread."

It will be noted that Deacon's description, just quoted, refers to the locomotive tender as the "hopper". The patent goes on to show the purposes of the screw as follows:

(1) "Enables constant motion of fuel from hopper `(tender)' along cylinder and rendering quantity of fuel carried on during a given number of revolutions constant for different qualities of fuel."

(2) "To crush the coal."

The plaintiff maintains that this device shows no appreciation whatever of Lower's problem; that the enlarged flight was not created to put pressure against a body of coal being fed to an elevator...