219 F. 909 | D. Maryland | 1915
The plaintiff sues the mayor and city council of Baltimore, hereinafter called the city, for an infringement of the first and third claims of letters patent No. 617,615, issued to him January 10, 1899. According to the patent, the invention relates to :
“Concrete arches for bridges or vault covering or for spanning openings for building construction; and it has for its object an improved arch structure in which iron or steel bars are imbedded in concrete near the outer and inner surfaces of the arch in such a manner as to assist the concrete in resisting the thrusts and bending moments to which the arch is subjected.”
The first claim is for:
“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 intradós and the extrados of the arch and extending well into the abutments, each bar of a pair being independent of the other, substantially as described.”
The defenses are nonvalidity and noninfringement. A number of prior American and foreign patents have been cited. All of them which are seriously relied upon were considered by the Patent Office before the claims were passed to issue. It is unnecessary to review them in detail. Both sides agree that one Monier, a Frenchman, was the pioneer in the art. His original purpose was modest enough. He wished to cover metal boxes and basins for flowers and plants with cement, his idea apparently being to preserve the metal and perhaps to give it a more ornamental appearance. His patent was issued in 1867. He soon found that his invention could advantageously be put to many more uses than he had at first anticipated. From time to time he applied for and obtained those certificates of addition for which the French law provides. By one of them granted in 1873 his invention was made applicable to bridges. In all the forms of his invention and all the purposes to which he sought to apply it, a metallic grillage remained an essential element of the completed structure. Many other inventors followed him into the field in which he had been the pioneer. A number of different ways of combining metal and concrete were suggested by them. Some of them pointed out that their methods of making the combination were specially adapted to arch construction. The patent in suit, it will be noted, is limited to bars, of which one of each ¡pair shall be near the intradós and the other the extrados of the arch. The advantage of this arrangement is clearly explained by plaintiff’s expert. He shows that the metallic reinforcement is the more valuable the further it is away from the neutral axis of the arch and the nearer it is to the upper and lower surfaces thereof — that is to say, what in technical language the patentee calls the extrados and the intradós— provided, always, that the metal is sufficiently embodied in the concrete to be thoroughly incorporated therein.
As the very competent experts and engineers examined on behalf of the. city did not question this theory, it may be accepted as true.
There are other patents in which the metallic reinforcement is on or near the surface of the arch, but it is not in the form of I bars in pairs each independent of the other arranged one above the other, and at least one of each pair extending well into the abutments. Each one
Under the circumstances, I am not prepared to hold that the claims in suit are void either because of direct anticipation, or because, in view of the state of the prior art, they do not disclose invention.
Distinctions which do not differentiate the alleged infringing structure from the invention described and claimed in the patent in suit are immaterial.
One of the drawings of the patent shows an arch with a spandrel filling. The patent says that the abutment, the arch, and the spandrel filling there shown constitute the complete structure. In defendant’s construction there is no spandrel filling, the roadway being supported on metallic posts which in their turn are sustained by the piers and arches. There is not a word about spandrel filling in the claims. It is utterly immaterial, for any. purpose connected with the construction in suit, whether there shall be any or not. Plaintiff’s patent would be infringed
That in the city’s arches the upper bar of each pair is not vertically directly over the lower is true. In some cases it is an inch and a half out of the vertical lines. The city’s engineer says that there was no purpose in so -arranging the bars. It was a mere accident in the design of construction. It is not suggested that such a slight departure from the form shown in the patent makes any real difference. It should be remembered that the second claim is not in suit. That does require, as the first and third do not, that one bar of each pair shall be vertically above the other. No opinion is, of course, here intimated as to whether an infringement of even the second claim could be avoided by a change of the arrangement of the bars so slight in fact as to be unimportant in effect.
The city constructed a series of spans and arches which supported a viaduct of considerable length. It followed that in all cases at least one end of each arch was supported by what is technically a pier rather than an abutment. It is perfectly obvious, however, that the word “abutment,” as used by the patentee, was intended to include both abutments and piers. If the structure calls for only one span, there will be one arch supported by two abutments. If there be more than one arch, the ends of some of them will be supported by piers. After a pier has been erected, it can be changed into an abutment, or an abutment into a pier.
The plaintiff- is therefore entitled to a decree for an injunction and an accounting. The injunction, however, will be limited to forbidding future infringements. It will do the plaintiff no good to decree the destruction of the present structure, and the city much useless harm.
A decree in accordance with this opinion may be submitted.