262 F. 958 | 6th Cir. | 1920
Lead Opinion
(after stating the facts as above). [1, 2] It goes without saying that the Smith patent can get no advantage merely because it has been owned and commercially exploited along with the Callahan patent- Upon this record, Smith cannot claim to be tire inventor of anything shown by Callahan’s application, except as the latter is modified by the later concession of priority. The Callahan patent is not a part of the prior art, in the sense in which that phrase is used with reference only to publications, but the Smith patent, both as to anticipation and as to the presence of invention, must be judged upon the basis of which the earlier Callahan application is a part. Lemley v. Dobson-Evans Co., 243 Fed. 391, 156 C. C. A. 171. It must therefore be assumed, as against Smith, that the advance of his claim 1 consisted merely in taking the concrete elevating and distributing apparatus of Callahan and substituting for Callahan’s simple discharging conduit, revolving only at the point of attachment tortile receiving hopper, the compound discharging conduit consisting of two or more sections revolubly connected with each other.
If the matter were to be considered in the broadest sense, there
It is not contended that the patent is anticipated, in the strict sense of that term, but the defendant’s position, approved by the court below, is that Callahan only put together old and familiar elements, and that his advance did not involve invention over what had gone before. To determine this question, we must know, first, the character of the relations between what was old and this new arrangement; and, second, whether his claims are properly characterized by reference to his real advance. To elevate material to a fixed and invariable height, and to distribute it therefrom by gravity, through a swinging, revolving chute, to different discharge spots upon a lower level, was common. As we have said, in considering the Smith patent, this was familiar in the class of grain elevators. The typical so-called grain elevator, or storage house, was a permanent structure, and grain was carried by various types of elevating apparatus to the permanent top floor or level. From the bottom of the bin there situated depended a swinging chute, which could be moved about so as to discharge,' upon the floor below, into any storage bin opening from that level. These grain elevators, like others of similar type shown by the record, entirely lack the only substantial novelty claimed for Callahan. They did not have a temporary receiving bin or hopper with a connected discharge chute vertically adjustable in an elevator tower, adapted to distribute the material upon successive levels. If invention lies in this thought and its practical application, the grain elevators are not important.
Next we are cited to several examples of unloading apparatus for vessels, of which the English patent to Baillie, No. 10,380 of 1888, is as relevant as any. In this device, which was for transferring coai from a barge to the ship alongside, there was a receiving bin or hopper located in an elevated framework or staging on the barge, and from which a depending chute carried the material away by gravity to the proper bunker in the ship. The coal contents of the barge were raised to this point by an endless chain of buckets over an inclined mast or support pivoted to the vertical frame at its upper end. Evidently, as the contents of the hold of the vessel became lowered, this mast must be extended further down, or further to one side, and this could be done either by an extension of the lower end or by lowering the upper pivoted point. The patent shows both methods of adjustment. The bin and pivot could be lowered upon this supporting stage a short distance — not more than the height of the bin. The point of final delivery was not changed. Such vertical adjustability as there was in the bin was incidental to raising and lowering the whole “tower” to accommodate it to the point where elevation be
This leaves for consideration only the patent to Theiss et al., No. 866,466, of September 17, 1907. It is not to be doubted that this is suggestive of the idea and the apparatus of Callahan; whether it is more than'a mere suggestion is the question. Theiss’ apparatus, like Baillie’s, was intended for unloading coal from a barge and loading it into the hold of a ship. It consisted essentially of a tower-shaped structure permanently erected upon the deck of a barge or scow. It was intended to reach a distance substantially higher than the coal-receiving hatchways of the particular ship which might be selected to be served; there was never occasion to make it any higher. This tower carried an elevator car or skip which was loaded with coal when it was at the bottom of the tower, and then was elevated as far as necessary to be dumped into a receiving bin, which bin was capable of vertical adjustment on the tower. This receiving bin in turn dumped into a chute, which, at its lower end, discharged through the hatchway of the vessel to be loaded. This chute was not revolubly connected with the bin or tower. It could not be moved laterally. It was carried, by the tower, in ways or guides which gave the chute its inclination and permitted it to slide therein longitudinally. There was a permitted adjustment of the guide by which the angle of inclination could be changed, but this was done by releasing and readjusting and refastening the guideways, and could not be done as a part of the operation of the device while in use.
The adjustment and fixing of the chute, in order to discharge into a desired hatchway, was a complicated matter. First, the carrying scow must be so positioned and fastened with reference to the ship that the tower was exactly opposite the hatchway. Second, the receiving bin and the chute must be adjusted vertically in the tower at such a position that the chute, in its carrying guides, would be pointed at the hatchway. Third, the chute must be slid downward and outward, in the direction at which it was pointed, until its lower end. entered the hatchway. If, then, it was next desired to reach another hatchway on the same transverse line, the vertical adjustment of the bin and the chute carrier, and the aiming of the chute at the new hatchway and its longitudinal extension into contact therewith, must be repeated. If it were desired to reach hatchways further forward or aft, the scow and its entire apparatus must be released and floated alongside the ship to its new position. In the broadest sense, this patent shows a plan of elevating material to an adjustable vertical height, and from there distributing it by gravity to selected position? upon a lower level; but it shows this idea in a very rudimentary form. It would be practically useless, for the purposes now involved.
In details of construction and of claim reading, there is ample differentiation. Claim 5 of Callahan, above quoted, will not read on Theiss. A comparison of the Theiss apparatus with this claim shows: (a) That the Theiss apparatus is not “for the purpose described,” in any restricted sense of that phrase, (b) That Theiss has a relatively short supporting framework, rather than a relatively high and
Callahan’s conception, that this material could be thus treated so as to deliver it from the ground all about the successive several floors of a high building and with practically no manual labor, except that involved in the story by story adjustment of the apparatus, involved, we think, inventive thought of a high order, when accompanied as it was by the devising of suitable apparatus to carry out the thought, which apparatus substantially differed from anything which had ever been constructed for any purpose, although every element was old. It is true, in a sense, that the Callahan device is produced upon the basis of Theiss’ structure by substituting for the longitudinally sliding and extensible delivery chute of Theiss, the revolubly mounted chute of the grain elevators; but this is not the whole truth. Callahan built up his tower to a height never thought of by Theiss, and which Theiss could not have accomplished without capsizing his barge; and Callahan supplied a chute-supporting boom
As upon every such question, there is no authoritative decision which compels one or the other conclusion. The doubtful inference is rather one of fact; but we select and refer to' a few instances where invention has been found — by the Supreme Court or by this court — and the facts of which may well be thought to present no stronger inferences in its favor than do those of the instant case: Loom Co. v. Higgins, 105 U. S. 581, 590, 26 L. Ed. 1177; Hobbs v. Beach, 180 U. S. 383, 393, 21 Sup. Ct. 409, 45 L. Ed. 586; Expanded Metal Co. v. Bradford, 214 U. S. 366, 381, 29 Sup. Ct. 652, 53 L. Ed. 1034; National Co. v. Aiken, 163 Fed. 254, 259, 91 C. C. A. 114; Warren v. Owosso, 166 Fed. 309, 92 C. C. A. 227; Morgan Co. v. Alliance Co., 176 Fed. 100, 109, 100 C. C. A. 30; Ferro-Concrete Co. v. Concrete Co., 206 Fed. 666, 124 C. C. A. 466; International Co. v. Sievert, 213 Fed. 225, 129 C. C. A. 569.
We do not overlook the fact that some, and perhaps a considerable portion, of the practical and commercial success has been due to the use of the feature covered by the Smith patent; but this does not detract from the patentable and inventive merit of Callahan’s idea. An oscillating or swinging chute, even without Smith’s secondary swivel, would make the primary distribution of the concrete throughout the floor or level, leaving the secondary and more accurate distribution to be accomplished by further means. We have held that the particular means adopted by Smith did not involve invention, and we can hardly say that much of the credit due to public use should be taken away from Callahan, because he had not himself adopted an improvement, and refinement which, however important to commercial success, was within the grasp of the men ordinarily skilled in the art.
We have considered claim 5. Claims 1, 2, and 13, also in suit, use more general terms and are superficially somewhat broader; but we think, in connection with the specification, they necessarily intend that the means for receiving the concrete from the raising means and •taking it to the conduit are vertically adjustable in the tower. This may fairly be implied from the requirement that the material is to be
Infringement is not denied.
The decree below, as entered, must be set aside, and the record remanded for a new decree, modified in accordance with this opinion.
We speak thus of Callahan’s form, because of the necessary effect of the filing dates, the concession, and the form of the issued claims.
Berger Co. v. Trussed Co., 257 Fed. 741, - C. C. A. -; Edwards v. Dayton Co., 257 Fed. 980,- C. C. A. —; Van Dorn Co. v. Mathis Co., 260 Fed. 400, - C. C. A.-.
Rehearing
On Petition for Rehearing.
It is also true enough that Callahan specifically contemplated building his tower up section by section, as the building progressed; but this was a matter of preference. His drawing shows tibe completed tower,
In other respects, further review of the case leaves our stated conclusions unchanged,- and the application for rehearing will be disallowed.