WS Godwin Co. v. International Steel Tie Co.

• Decision Date: 03 November 1924
• Docket Number: No. 2024.,2024.
• Citation: 2 F.2d 198
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: W. S. GODWIN CO. v. INTERNATIONAL STEEL TIE CO.

2 F.2d 198 (1924)

W. S. GODWIN CO. v. INTERNATIONAL STEEL TIE CO.

No. 2024.

Circuit Court of Appeals, Sixth Circuit.

November 3, 1924.

Titian W. Johnson, of Washington, D. C. (Hull, Brock & West, of Cleveland, Ohio, on the brief), for appellant.

Frederick S. Stitt, of Washington, D. C. (Day & Day, of Cleveland, Ohio, on the brief), for appellee.

Before DENISON and DONAHUE, Circuit Judges, and SATER, District Judge.

DENISON, Circuit Judge.

Infringement suit on patent 1,324,391, December 9, 1919, W. S. Godwin, paving guard. The District Judge thought that the patent, while not anticipated in the strict sense, yet was invalid for lack of invention. If it is to be regarded merely as a step in the evolution of a guard for the edge of a concrete pavement, we agree; but we think the device is entitled to a more liberal view, in that it has a distinct and novel utility.

Pavements have now come into very common use which are composed of at least two separately laid strata. There is a foundation composed of concrete, which is poured when wet and then permitted to set. There is also a surface applied after the foundation is hard, and very commonly consisting of a plastic material, like asphalt, which is formed under very heavy rolling pressure. The edge of this upper layer must be firmly retained under construction by a resisting form, and also must be protected after construction against injury from wheels passing over and across it. For these purposes Godwin devised an angle iron, rolled and formed so as to have, for example, a horizontal flange of three inches and a vertical one of two inches. It was made in units of considerable length. The horizontal flange was provided with anchors made by slitting longitudinal sections which remained attached to the flange at one end only and were then bent down and toward the center of the roadway. When making ready to pour the concrete, the angle iron was placed in position at the edge of the road with the horizontal flange level with the top of the foundation. When the concrete had set around the bent-down sections and the pavement was ready for the surface, the device had become firmly anchored in position and the vertical flange formed a limiting edge for the surface in the construction and remained as a permanent guard against traffic injury. It was thus at once a form for making and a guard for preserving the surface part of a two layer pavement.

While the device is simple, it seems to have had a substantial amount of use and acceptance, in substitution for concrete or stone curbs, which were the only devices formerly in use for this double purpose, and it is thought by some competent road engineers to be cheaper and more efficient than the other method. It was the first device shown by the art to be used for this double purpose for this type of roadway, and we think it entitled to protection in that association. The nearest thing is the French patent of Freese. This was similar in a mechanical way, but it was adapted and intended for a pavement having an upper layer of wooden blocks. It had an upwardly projecting flange just high enough to catch and retain the...