244 F. 946 | 7th Cir. | 1917
(after stating the facts as above).
Smith’s most general conception of his machine as an entirety is' probably best stated in claim 32. There, the only limitations upon the form of the mixing receptacle are that it shall have but one opening, which must be clear and unobstructed and substantially concentric with the axis of revolution, and that it shall have a recognizable “middle.” The advantages of the one clear and unobstructed opening are that it may be used both for feed and discharge; that the feed may be one side where the materials are gathered and the discharge on the other side where the mixed concrete is being used; and that thereby a form of receptacle is provided wherein more than SO per cent, of the cubic capacity can be occupied by the ingredients that are being mixed, as against 10 or 15 per cent, in the cylindrical or horizontal drum machines which have ppenings at each end, one for feeding and the other for discharging. The saving of size and weight, in relation to the capacity of the machine, smaller cost of manufacture, lower selling price, decreased expense of operation, are of advantage both to the maker and the user. By having a “middle” part, as in a pot or jar, the tilting means and likewise the rotating means are applied
In the practical art. of building and using concrete mixing-machines these advantages, and the type of machine which made them possible, were unknown prior to Smith’s disclosure.
II. Anticipation. We have examined all the prior patents in the record. Two are especially relied upon. If these do not anticipate Smith’s conception and disclosure of means, it is needless to set forth the particulars of the other prior patents.
Day and Bampard’s British patent, No. 441 of 1878, exhibits a concrete mixer of the horizontal drum Lype. The receptacle is supported at its right-hand end by a series of rollers which are attached to the tilting frame. The left-hand end is supported by a shaft which is journaled in the tilting frame. The tilting’ frame is rectangular and entirely surrounds the drum receptacle. By means of trunnions at the middle of the sides the tilting frame is supported within a stationary rectangular frame. Materials are fed into the right-hand end of the drum through a circular opening, concentric with the axis of the dram. Attached to the right-hand end of the tilting frame is a hopper that extends into the feed opening. The dram is rotated by means of a toothed rack which encircles the drum and engages with a driving pinion journaled in one of the trunnions. When the material is mixed it is discharged through an opetiing at the left-hand end of the drum. For this purpose the receptacle and its tilting frame may be depressed at the left until the end of the drum strikes the ground at an angle of about 45°. The second claim covers “the combined arrangement, substantially as hereinbefore described and illustrated in the drawing annexed, wherely the mixing box can be revolved and at the same time tilted to and fro to- any desired angle.” In the specification the reference to “tilting to and fro” is that “the mixing box as the mixing progresses may also be rocked or oscillated on the trunnions to insure the perfect mixing of the materials.” When we look to the arrangement described and illustrated in the drawing, we find that the tilting to the right is very limited; it can proceed only to the point where the hopper which is permanently attached to the tilting frame strikes the right-hand end of the supporting frame. And even if the tilting axis were elevated so high that the left-hand end of the drum would not strike the ground the feed opening could not be carried below the horizontal position at the left on account of the hopper striking the fixed supporting frame at that end. Day and Bampard’s combination docs not include a mixing receptacle having one clear and unobstructed opening for feed and discharge, nor means for tilting the frame to any position in the entire circle of its revolution whereby the receptacle may be filled from any point above it and discharged either from the right-hand side or the left-hand side of the machine.
Taylor’s patent, No. 433,663, August 5, 1890, is for a tumbling ttox to clean castings. The machine is supported upon a fixed frame.
If the mechanics of the case left us in doubt, certain matters disclosed by the record should cause us to resolve that doubt in favor of the patentee. First. The usual presumption of validity is greatly fortified by the fact that all of the prior art patents which are now called to our attention were before the Patent Office when that tribunal was weighing the question of invention. Second. The great length of time that elapsed between the publication of the prior patents most strongly relied on and the application for the patent in suit. Those prior patents never made any impress upon the practical art of building and using concrete mixers, and are now brought to light only for purposes of'defense. Third. Assuming for the moment that appel-lees’ structure has not departed from their patent, a large and successful business has been built up; and machines of this type (made only by the parties involved in this cause) have taken, according to the evidence, a prominent place in the market for small' portable concrete mixers.
IV. Infringement. There is no contention that appellees’ commercial machine does not conform to the claims in suit in all respects except one; and that is in respect to “the tiltable frame in which the receptacle is supported.” In the specific claims, which are. addressed to the preferred form of structme, the tiltable frame is required to be in a plane to which the axis of the receptacle’s revolution is perpendicular. In the claims in suit there is no limitation with respect to the relation of the plane of the frame and the line of the axis of revolution. And if the preferred form of tiltable frame were placed in a plane in which the line of the axis of revolution would lie, there would seem to be no basis whatever for saying that the structure would not be within the letter and spirit of the claims in suit. The real defense of noninfringement is. that what is called a yoke in the commercial structure is not the tiltable frame of the claims in suit. The yoke has three sides. The portion of it at the bottom of the receptacle is longer than the diameter of the receptacle. From that portion uprights extend at each end 'up to the middle or largest diameter of the receptacle. It is evident that a pot-shaped receptacle, having about: its middle a toothed gear to be driven directly by a pinion journaled in a supporting trunnion, cduld not be supported by a tilting structure having less than three sides. If the two parallel arms of the yoke were extended and a fourth side added, so as completely to embrace the receptacle, there could be no question that the frame was present. The function of the “frame” is solely to afford a tiltable support. In the yoke, or frame of three sides with one side omitted, there is plainly the essential supporting means of the claims in suit, for the receptacle is prevented from falling out of the open end of the three-sided frame
It is to be remembered that the specification told the persons who proposed to use the invention as described in the claims in suit that they could employ a -frame of any form adapted for supporting the receptacle. Not only are the two forms the same in furnishing the tiltable support for the revoluble receptacle, but at the time Smith was speaking in his application the prior art showed that both forms were old and that each was adapted to afford a tiltable support for a re-voluble receptacle. This fact is exhibited in the examinations we have hereinbefore made of the Day and Dampard and Taylor patents. Therefore we find that appellees’ commercial structure was within their patent.
We conclude that all of the claims in suit are valid and infringed except claim 5. That claim calls for a receptacle provided with “means for charging and discharging the same.” “Means” is at once the singular and plural form. If this claim contemplates a receptacle with two openings, the claim reads literally upon the Day and Dampard structure. It seems to us however that the word, in view of the purposes and law of operation of the patent device, should be taken as the singular form; but when so taken tire claim becomes in essence identical with claim 32. Lamson Store Service Co. v. Hillman, 123 Fed. 416, 59 C. C. A. 510; Veneer Machinery Co. v. Grand Rapids Chair Co., 227 Fed. 419, 142 C. C. A. 115.
The decree, except as to claim 5, is affirmed.