Thacher v. Transit Const. Co.

• Decision Date: 07 June 1916
• Docket Number: 290.
• Citation: 234 F. 640
• Parties: THACHER v. TRANSIT CONST. CO.
• Court: U.S. Court of Appeals — Second Circuit

234 F. 640

THACHER v. TRANSIT CONST. CO.

No. 290.

United States Court of Appeals, Second Circuit.

June 7, 1916

A. A Thomas, of New York City, for appellant.

E. C Seward, of New York City (Brown & Seward and Wm. McK. Barber all of New York City, of counsel), for appellee.

Before COXE and WARD, Circuit Judges, and CHATFIELD, District Judge.

CHATFIELD District Judge.

This action involves a charge of infringement of claims 1 and 3 of patent No. 617,615, granted to Edwin Thacher, the plaintiff-appellant, on January 10, 1899, upon an application filed October 16, 1896. Claim 1 sufficiently shows the question presented and reads as follows:

'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.'

The District Court found the patent valid, following a decision by Judge Rose (Thacher v. Mayor, etc., of Baltimore (D.C.) 219 F. 909), in which the claims of the patent were held both valid and infringed.

On the question of infringement, however, the District Court, in the present action, reached the conclusion that the structure of the defendant, which consists of a series of concrete arches to support the Ashokan bridge of the aqueduct for the city of New York, did not include pairs of bars or rods of which one bar of each pair was 'independent of the other,' in the sense in which those words were used in the claims of the patent. It therefore held the claims not infringed and, in so doing, stated that the structure under consideration by Judge Rose was substantially the same as that described in the patent. The invention claimed in this patent 'relates to concrete arches for bridges or vault-covering or for spanning openings in building construction.'

The file wrapper shows, among the citations by the Patent Office, a patent, No. 545,301, granted August 27, 1895, to one Milliken, which was not pleaded as an anticipation, but was the only patent of the prior art presented in the record or discussed in the opinion of the court below. This Milliken patent provided a method for the construction of arches, partitions, floor, etc., and evidently contemplated the use of I-bars or iron beams from which the concrete arch should spring. This arch was to be made by concrete poured around and through wire netting or corrugated metal, so woven or bent as to connect and inclose longitudinal strengthening bars, which bars were to be placed at different levels in the arch, and were to follow the lines of curvature according to their location. These bars were to be interwoven in or fastened to the wire mesh or corrugated metal, and were to be as long as the total arc of the span. When applied to a bridge it can be seen that no such mass of rods, corrugated plates, or wire mesh could be evenly bent into an arch of varying thickness. The larger the span the more impossible would be the construction, and no machinery could make the metallic arch in one piece for transportation or bend it in shape if first assembled for the entire length.

In this sense the Milliken patent is impracticable and could not be considered as an anticipation of the Thacher patent. This Milliken patent was not mentioned by Judge Rose in the Baltimore Case, supra. In the court below, however, the Milliken patent was considered in so far as it disclosed a concrete arch with upper and lower bars imbedded in the concrete in pairs, each bar having the same relative position with respect to the upper and lower faces of the arch as the bars of each pair shown in the Thacher patent.

The defendant has not appealed from the finding of the court that the patent is valid, and it is necessary to consider only the question of infringement. But the plaintiff-appellant has added to its brief a copy of the Von Emperger patent No. 583,464, allowed June 1, 1897, upon an application filed May 19, 1896. This was held by Judge Rose in the Baltimore Case to have been antedated by Thacher, and the defendant in this case has not questioned the action of the Patent Office in allowing Thacher his patent as a prior invention to Von Emperger. Hence Von Emperger is not available as an anticipation nor as a part of the prior art.

The Von Emperger patent shows the use of ribs or longitudinal strengthening rods in pairs, of which each pair is 'reinforced by distance rods between said ribs and by diagonals connecting the two adjacent pairs of ribs. ' In some of the drawings of the Von Emperger patent, it is evident that the inventor was contemplating merely the formation of a truss or skeleton structure, which could be erected on the spot, and need not be completed before the concrete was poured around the lower part, in place of using a solid iron beam or solid truss sufficient to span the entire arch. But Von Emperger relies upon the idea of strengthening the arch by the use of a pair of rods substantially in a vertical plane, of which one shall follow the curvature of the lower surface and the other the curvature of the upper surface, and in which pair connection in the vertical plane may be merely by distance rods to keep the strengthening bars in shape or in place until the concrete can harden around them. In this, so far as the mere presence of a pair of bars is concerned, Von Emperger evidently had in mind the same idea as Thacher, but he did not claim this alone as invention, nor does Von Emperger seem to rely upon the mere presence of the pair of strengthening bars without reference to their connection with the other parts of what he in effect treats as a girder. In this way his patent is exactly the same as the Milliken patent, in that it has rods present which correspond in position and in material to the rods called for by the Thacher patent, but which do not perform the same functions in the same 'independent' way.

The specifications in the original Thacher application show that the patentee was seeking to imbed his bars firmly, and that he contemplated for this purpose the use of bars with extensions or projections in order to allow better holding by the concrete. He also contemplated the possibility of using jointed or extension bars, so that they might be put in place in smaller sections, and that the lower bar or the lower part of each bar could be...