Thacher v. Inhabitants of Town of Falmouth

• Decision Date: 27 June 1916
• Docket Number: 731.
• Citation: 235 F. 151
• Parties: THACHER v. INHABITANTS OF TOWN OF FALMOUTH.
• Court: U.S. District Court — District of Maine

235 F. 151

THACHER v. INHABITANTS OF TOWN OF FALMOUTH.

No. 731.

United States District Court, D. Maine.

June 27, 1916

A Alexander Thomas, of New York City, for complainant.

S. W Bates and David E. Moulton, both of Portland, Me., for defendant.

HALE District Judge.

This suit in equity alleges infringement of the first and third claims of letters patent of the United States, No. 617,615 issued to the complainant, Edwin Thacher, January 10, 1899 and relating to concrete arches for bridges, or vault covering, or for spanning openings in building construction. The claims in suit are:

'1. The combination with abutments, and a concrete arch spanning the intervening space, of a series of metal bars, in pairs, one bar of each pair above the other, near the intrados and extrados of the arch, and extending well into the abutments, each bar of a pair being independent of the other, substantially as described.'

'3. The combination with abutments, and a concrete arch spanning the space between the abutments, of a series of metal bars in pairs, one bar of each pair above the other bar, near the extrados and intrados of the arch, each bar of the pair being independent of the other, and one bar of each pair extending well into the abutment, substantially as described.'

At the outset of the specification, the inventor says:

'My invention relates to concrete arches for bridges or vault covering, or for spanning openings in building construction; and it has for its object an improved arch structure in which iron or steel bars are imbedded in concrete near the outer and inner surfaces of the arch in such a manner as to assist the concrete in resisting the thrusts and bending moments to which the arch is subjected.' The inventor then proceeds to state in detail certain details of his construction:

'By my invention I provide, first, for an effective connection between the bars and the concrete, employing lugs, dowels, bolts, or rivets, which pass through the bars and project into the concrete, in which they are embedded, and thereby reinforce the adhesion between the metal and the concrete and prevent any end movement of the bar through the concrete, so that the complete crushing or shearing of the concrete must take place before a separation can be effected. Second, I employ bars of such a form that they can readily and cheaply be spliced if a greater length of bar is required than that which can be conveniently rolled or shipped. Third, I provide bars that can be manufactured at a small cost and as a standard or stock article and can be readily bent when used to the curve of the arch into which they are to enter. Consequently they can be stored or shipped in straight form. In ordinary structures and generally I arrange the bars in pairs, which are usually disposed so that one of the pair rests vertically above the other member of the pair; although I do not consider this manner of disposing of the bars as essential in all cases. The bars acts as the flanges of beams to resist bending moments, whereas the shearing stresses, which are small, are taken by the concrete alone. In their normal condition the bars and the concrete act together, and the work done by each depends on its moment of inertia and modulus of elasticity; but if the concrete is defective and has a tendency to crack, the bars will greatly aid in resisting such tendency, and if a crack should take place the relation of the parts will be changed, and the bars will do the work of the concrete, and prevent the falling of the structure.'

The defendants say that the claims in suit are invalid by reason of anticipation, and because, in view of the state of the prior art, they do not disclose invention. They allege also that, under a proper construction of this claim, no infringement is shown.

The patent has been sustained by the District Court of Maryland. Thacher v. Mayor and City Council of Baltimore (D.C.) 219 F. 909. The opinion of Judge Rose has been affirmed by the Circuit Court of Appeals for the Fourth Circuit. 230 F. 1022, 144 C.C.A. 659. It has been sustained in Thacher v. Transit Const. Co. (D.C.) 228 F. 905, where Judge Thomas, for the District Court in the Southern District of New York, held that the patent was valid, but was not infringed by the defendant company. The decision of Judge Thomas has been affirmed by the United States Circuit Court of Appeals for the Second Circuit, 234 F. 640, . . . C.C.A. . . . .

The defendants, however, have cited certain printed publications relating to examples of German Monier construction, which, it is contended, were not before the court in the cases to which I have referred, were not shown in the Patent Office, and are now for the first time brought before a court.

The Revised Statutes of the United States, in section 4886, provide:

'Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof,' etc. Comp. St. 1913, Sec. 9430.

The defendants contend that the invention disclosed in the patent in suit was described in a printed publication in this and in a foreign country before the invention set forth in the patent.

An important publication, brought to the attention of the court, is the following: It is in evidence that in 1895 the Zeitechrift, of the Austrian Society of Engineers and Architects, published in a supplement the results of a series of tests made in full-sized arch bridges of certain well-known types, for the purpose of getting data for calculations. Among other publications was the description of a bridge 75 feet long, built on the Monier plan, with longitudinal wires about one-half inch in diameter and cross-wires about one-fourth inch in diameter. The proofs contain also cuts and descriptions of the bridge construction. This publication is shown to have been made some time before the application for this patent was filed. The complainant objects to the Zeitschrift as a publication. I find, however, that it was published in May, 1895, before the date of Thacher's invention; that it is the official journal of the Austrian Society of Engineers and Architects. I can see no reason why it should not be admitted as one of the proofs in the case.

A printed publication is anything which is printed, and, without any injunction of secrecy, is distributed to any part of the public in any country. Walker on Patents (4th Ed.) Sec. 56. In Rosenwasser v. Spieth, 129 U.S. 47, 9 Sup.Ct. 229, 32 L.Ed. 628, the Supreme Court held that the device before it had been anticipated in a German publication half a century before. The publication in that case does not appear to have been anything more distinct or definite than the publication before us in the case at bar.

In Britton v. White Manufacturing Co. (C.C.) 61 F. 93, 95, for the purpose of showing the state of the art, Judge Townsend of the Circuit Court admitted in evidence a pamphlet purporting to be a number of a coachmakers' magazine, printed for general circulation, bound up with other numbers, and containing references to advertisements, with terms therefor.

I think the Zeitschrift must be held to disclose a construction having in combination all the elements of the patent in suit. It contains the abutments, the concrete arch, the series of pairs of bars, one bar of each pair near the intrados, and the other pair near the extrados; it shows each bar extending well into the abutments, after the completion of the abutments. I...