257 F. 423 | 8th Cir. | 1919
This is a suit by the T. B. Smith Company and others for infringement of certain claims of patent No. 803,721, issued to that company as assignee November 7, 1905, for an improvement in mixing machines especially adapted for mixing concrete, etc. A prior suit in the Seventh Circuit by the same plaintiffs against one P'oster was defended by the present defendant, the Cement Tile Machinery Company, as the maker and vendor of the machine claimed to infringe. It was held in that case that the Smith patent was not anticipated by prior patents, among which were a British patent, No. 441, to
The defendant’s modified structure is equally deficient in the two features mentioned by which Smith’s was distinguished from Taylor’s. Its tilting frame carrying the receptacle cannot move in an entire circle of revolution, nor in an arc sufficient for the discharge of the materials from the receptacle on either side of the loading point. The discharge can be on but one side. This is not, as in the machine sold to Foster and involved in the former suit, due to a fashionable form of the receptacle, limiting its motion, and which could be abandoned at pleasure, but to the essential character of the mechanical means employed by defendant for its rotation. In plaintiffs’ structure a toothed rack around the middle of the receptacle is engaged by a driving pinion on the end of a shaft passing through a hollow trunnion. This simple and direct means for rotating the receptacle does not restrain the revolution or movement of the tilting frame. But defendant employs a train of gears, which with the frames blocks and limits the movement that constitutes the distinguishing feature of plaintiffs’ structure. All of the elements in plaintiffs’ patent appeared in the patents to Day and Tampard and to Taylor, but the combination of them was held in the former case to be new, and to produce a new or better result. But defendant does not secure that result, nor does he employ the particular means specified by plaintiffs, or other means within the comparatively narrow range of equivalents to which plaintiffs are entitled.
The decree is affirmed.