Petition — CMI Corp. v. Lakeland Construction Co.
Supreme Court brief1976
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| i JUN 22 1976
WHORE 0! FP
In the y
SUPREME COURT OF THE UNITED STATES
OcToBer TERM, 1975
CMI CorporatTION,
Petitioner,
VERSUS
LAKELAND CONSTRUCTION Co., INc., and
MILLER ForMLEss Co., INc.,
Respondents.
PETITION FOR “’RIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
JerRRY J. DuN.ap, of
Dun ap, Coppinc & McCartuy
510 Fidelity Plaza
Oklahoma City, Oklahoma 73102
Attorney for Petitioner
June, 1976
UTTERBACK TYPESETTING Co.. 519 W. CALIF... OKLAHOMA CITY. PH. 238-0030
TABLE OF CONTENTS
PAGE
Cistiens Gels Eee... 1
Jurisdiction . ndiuissempliie saeolaaamancisaieaniainan 2
Questions Presented saonagichiietie Seana 2
Constitutional Provisions Involved peeved 2
Statutory Provision Involved aes ah Bea hen Te 3
Statement of the Case aides 3
Reasons for Granting the Writ poles 4
Conclusion — Be 6
APPENDICES
Appendix A—Patent Act of 1952:
c. 950, § 1, 66 Stat. 797, 35 U.S.C. § 101 | i
c. 950, § 1, 66 Stat. 798, 35 U.S.C. § 103 i
c. 950, § 1, 66 Stat. 812, 35 U.S.C. § 281 i
Appendix B—Judgment of United States Court of AP
peals, Seventh Circuit | iia ae
Appendix C—Opinion of United States Court of Ap-
peals, Seventh Circuit RR
Appendix D—Findings of Fact and Conclusions of
Law of the United States District Court for the
Northern District of Illinois, Eastern Division vi-lxv
Le
—
TABLE OF AUTHORITIES
oe a
CASEs: PAGE
Friljette, In re, 423 F.2d 1397 (C.C_P.A. 1970) oe 5
General Tire and Rubber Company v. Fisk Rubber
Corporation, 104 F.2d 740 (6th Cir. EE 4
Graham v. John Deere Co., 383 U.S. 1 (1966) _..... 4
Graver Tank & Mfg. Co. v. Linde Air Products Co.,
339 U.S. 605 (1950) ceuenianiens 6
J. R. Clark Co. v. Jones & Laughlin Steel Corp.,
288 F.2d 279 (7th Cir. 1961) peers ais 5
Land and Rogers, Application of, 368 F.2d 866 (C.C.
P.A. 1966) naan 4
CONSTITUTIONAL PROVISIONS:
United States Constitution—
Article I. Section 8, Clause 8 bere 2
STATUTES:
28 U.S.C. § 1254(1) 2
39 U.S.C. § 101 ma 2,3
35 U.S.C. §$ 103 a seuntusaidacseitness an
35 U.S.C. § 281 | 3
ACTs:
Patent Act of 1952—
c. 950, § 1, 66 Stat. 797, 35 U.S.C. § 101 an 3
c. 950, § 1, 66 Stat. 798, 35 U.S.C. § 103 _. mas 3
c. 950, § 1, 66 Stat. 812, 35 U.S.C. § 281 | ; 3
In the
Supreme Court of the United States
OctoBer TERM, 1975
Ne. ——
CMI Corporation,
Petitioner,
VERSUS
LAKELAND CONSTRUCTION Co., INc., and
MILLER ForMLEss Co., INC.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
CMI Corporation, prays that a Writ of Certiorari issue
to review the judgment of the United States Court of Ap-
peals for the Seventh Circuit entered in the above entitled
case on March 24, 1976, a copy of said judgment being ap-
pended hereto as Appendix B.
CITATIONS TO OPINIONS BELOW
The opirion of the United States Court of Appeals for
the Seventh Circuit was not published and a copy thereof
is appended hereto as Appendix C. The Findings of Fact
and Conclusions of Law of the District Court are appended
hereto as Appendix D.
—2—
JURISDICTION
The date of the judgment of the Court of Appeals
(Appendix B) was March 24, 1976, and said judgment was
entered on March 24, 1976.
Jurisdiction is conferred upon this Court to review the
judgment of the Court of Appeals by Writ of Certiorari by
the United States Code, Title 28 § 1254(1),.
QUESTIONS PRESENTED
1. When two patent applications by the same invent-
ors were co-pending, is the patent which issued on the first
filed application part of the prior art to the patent which
issued on the second application within the intent and
meaning of the “obviousness” statute, 35 U.S.C. § 103?
2. Where the claims of two patents issued from co-
pending applications to the same inventors at different
times and cover different structures, does a disclaimer of
the terminal portion of the second patent to issue which
extends beyond the expiration date of the first patent over-
come the defense of double patenting? (35 U.S.C. $101).
3. Is infringement avoided by use of structures well
known in the art to be interchangeable?
CONSTITUTIONAL PROVISIONS INVOL’ED
The Congress shall have power— To promoie * Pro-
gress of Science and Useful Arts by securing for lirnited
Times to Authors and Inventors the Exclusive Right to
their Writings and Discoveries. United States Constitution,
Article I, Section 8, Clause 8.
=
STATUTORY PROVISION INVOLVED
The Statutes involved are Sections 101, 103 and 281
of the Patent Act of 1952, c. 950, § 1, 66 Stat. 797, 35 U.S.C.
§ 101; c. 950, § 1, 66 Stat. 798, 35 U.S.C. §103; c. 950, § 1,
66 Stat. 812, 35 U.S.C. § 281. (Appendix A)
STATEMENT OF THE CASE
This action was commenced by petitioner CMI Corpo-
ration against respondents, Lakeland Construction Co., Inc.,
and Miller Formless Co., Inc., sceking an injunction and an
accounting for infringement of a patent owned by peti-
tioner. Respondent, Miller Formless Co., Inc., is a manu-
facturer of equipment which petitioners contend infringe
petitioner’s patent and respondent, Lakeland Construction
Co., is a user of said machines. The case was tried to the
District Court sitting without a jury on June 3 through 7
and June 10, 1974.
On January 24, 1975, the Honorable Richard W. Mc-
Laren, rendered judgment in favor of respondents ( Ap-
pendix D).
Upon appeal to the United States Court of Appeals
for the Seventh Circuit, that Court affirmed the judgment
of the District Court in an unpublished per curiam memo-
randum opinion (Appendix C).
In its memorandum opinion, the Court of Appeals
failed to respond to the petitioner’s arguments with re-
Spect to the questions presented herein and its opinion
is contrary to the previous law of the Seventh Circuit and
other circuits.
etiiin
REASONS FOR GRANTING THE WRIT
The District Court erroneously included the disclosure
contained in another of petitioner’s patents as a pertinent
portion of the prior art in reaching its conclusion that pe-
titioner’s patent-in-suit was “obvious” under the authority
of Graham v. John Deere Co., 383 U.S. 1 (1966). (Finding
of Fact 72, Appendix D, page 28.) The applications which
resulted in the two patents were admittedly co-pending
and the earlier issued patent used to render the patent-in-
suit “obvious” was admittedly the “parent” of the patent-
in-suit. The Court of Appeals for the Seventh Circuit
simply commented that the District Court had properly
applied the prescribed criteria for “obviousness” as set
forth in Graham v. John Deere Co., swpra, and made no
comment with respect to the erroneous inclusion of a co-
pending parent patent in the prior art heavily relied on to
invalidate the same inventors’ later issued patent. Peti-
tioner urges that it is a matter of long standing law in the
lower courts that a patentee’s prior patent is not “prior
art” within the meaning of 35 U.S.C. § 103 when the ap-
plication for the prior patent was pending at the time the
application for the patent-in-suit was filed. General Tire
and Rubber Company v. Fisk Rubber Corporation, 104 F.2d
740 (6th Cir. 1939); Application of Land and Rogers, 368
F.2d 866 (C.C.P.A. 1966). This Court should rule on this
important issue. Petitioner submits that the District Court
relied heavily on petitioner’s parent patent and the ex-
clusion of that patent from the pertinent prior art would
dramatically alter the District Court’s determination of the
“obviousness” of the patent-in-suit.
—
The District Court further concluded, and the Court
of Appeals for the Seventh Circuit affirmed, that by mis-
applying the appropriate rule as to Terminal Disclaimers,
the petitioner’s patent could be made invalid for double
patenting. The District Court and the Court of Appeals did
not dispute petitioner’s position that the Terminal Dis-
claimer overcame the defense of double patenting, but
merely iterated that the Terminal Disclaimer was not
timely filed, even though it was filed before trial. (Con-
clusions of Law, 10, 11 and 12, Appendix D, pages 39, 40;
Appendix C.)
The record in this case is clear that the claims of the
two patents cover different, not the same, structures. Pe-
titioner submits that the filing of the Terminal Disclaimer
tefore the trial of this case overcame any question of
douckie patenting, and the conclusions of the District Court
and the Court of Appeals are against the weight of au-
thority. In re Frilette, 423 F.2d 1397 (C.C.P.A. 1970); J. R.
Clark Co. v. Jones & Laughlin Stcel Corp., 288 F.2d 279
(7th Cir. 1961). This Court should rule on the effective-
ness Of Terminal Disclaimers, as well as the timeliness
thereof.
The District Court finally concluded, and the Court of
Appeals for the Seventh Circuit affirmed, that, even if pe-
titioner’s patent was valid, it would not be infringed by
the respondenis’ structure because four endless tracks on
a mainframe are distinctly different from two endless tracks
as called for in the patent and result in improved steering
capabilities. Petitioner submits that the record shows with-
out doubt that four track and two track assemblies were
well known to be interchangeable in the pertinent art and
==
the decisions of the lower courts in this case are directly
contrary to this Court’s decision in Graver Tank & Mfg.
Co. v. Linde Air Products Co., 339 U.S. 605 (1950).
CONCLUSION
For the foregoing reasons, this Petition for Writ of
Certiorari should be granted.
Respectfully submitted,
JERRY J. DuN.LAP, of
Dun.ap, Coppinc & McCartuy
510 Fidelity Plaza
Oklahoma City, Oklahoma 73102
Attorney for Petitioner
June, 1976 APPENDICES
APPENDIX A
PATENT ACT OF 1952, C. 350, § 1, 66 STAT. 797,
35 U.S.C. § 101
£101. Whoever invents or discovers any new and use-
ful process, machine, manufacture, or composition of mat-
ter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and re-
quirements of this title.
PATENT ACT OF 1952, C. 950, § 1, 66 STAT. 798,
35 U.S.C. § 103
$103. A patent may not ke obtained though the in-
vention is not identically disclosed or described as set forth
in section 102 of this title, if the differences between the
subject matter sought to be patented and the prior art are
such that the subject matter as a whole would have been
obvious at the time the invention was made to a person
having ordinary skill in the art to which said suject mat-
ter pertains. Patentability shall not be negatived by the
manner in which the invention was made.
PATENT ACT OF 1952, C. 950, § 1, 66 STAT. 812,
35 U.S.C. § 281
¢ 281. A patentce shall have remedy by civil action
for infringement of his patent.
~~
APPENDIX B
Unpublished Per Curiam Order
United States Court of Appeals
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
MARCH 24, 1976
Before
Hon. TOM C. CLARK, Associate Justice*
Hon. THOMAS E. FAIRCHILD, Chief Judge
Hon. WILBUR F. PELL, JR., Circuit Judge
CMI CORPORATION,
Plaintiff-Appellant,
Cross-Appeilee, District Court
No. 75-1264 & 75-1265 vs. for the Northern
| Appeal from the
|
|
| ae orn
LAKELAND CONSTRUCTION co,, { istrict of Illinois
|
}
United States
INC. and MILLER FORMLESS Eastern Division
CO., INC., Richard W. Me
Defendants-Appellees, Laren, Judge.
Cross-Appellants.
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Northern District of Illinois, Easter: Division, and was
argued by counsel.
On consideration whereof, it is ordere:! and adjudged
by this court that the judgment of the said District Court
in this cause appealed from be, and the same is hereby,
AFFIRMED, in accordance with the order of this court en-
tered this date. Costs of appeal are awarded to defendants.
* Associate Justice (Retired) Tom C. Clark of the Supreme Court of the
United States is sitting by designation.
ae
—ili—
APPENDIX C
Vnited States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
(ARGUED JUNE 13, 1975)
MARCH 24, 1976
Before
Hon. TOM C. CLARK, Associate Justice*
Hon. THOMAS E. FAIRCHILD, Chief Judge
Hon. WILBUR F. PELL, JR., Circuit Judge
CMI mana ery —_ | Appeal from the
Ms r . te ant, | United States
ross-Appellee, District Court
Nos. 75-1264 & 1265 vs. | for the Northern
LAKELAND CONSTRUCTION Co., ; District of Mlinois
INC. and MILLER FORMLESS Eastern Division
CO., INC., No. 72 C 106
Defendants-Appellees, RICHARD Mc-
Cross-Appellants. } LAREN, Judge.
ORDER
We are asked in plaintiff's appeal to review the order
of the district court which found that the claims 3, 5, and
8 of Patent 3,249,026 are invalid and that, even if valid,
the defendants’ concrete laying slip form machines did not
infringe these claims. The defendants have appealed from
ihe denial of attorneys’ fees.
*Asscciate Jrstice (Retired) Tom C. Clark of the Supreme Court of the
United Srates is sitting by designation.
—jy—
[APPENDIX]
The district court made findings of fact with great
care, aad set forth separate conclusions of law, recogniz-
ing expressly that portions of the findings may really be
conclusions of law. This is particularly true with respect
to obviousness.
Patent 3,249,026, entitled “Construction Machines” was
issued May 3, 1966 on an application filed July 3, 1962.
The district court rejected defendants contentions (1) that
the 3,249,026 patent in suit was anticipated and (2) that
the specifications and claims were so indefinite as not to
comply with 35 U.S.C. $112.
With respect to obviousness, the court concluded that
because of prior art not considered by the Patent Office,
the claims in suit do not enjoy the statutory presumption
of validity, and that a person skilled in the art would have
found the claimed combination obvious. The findings fully
complied with the requirements of Graham v. John Deere
Co., 383 U.S. 1 (1966). Appellant has not persuaded us
that any finding of fact is clearly erroneous, nor that the
conclusion of obviousness is an error.
“The district court agreed with defendants’ contention
that the 3,249,026 patent was invalid for double patenting.
The applications for the 3,249,026 patent and Patent 3,230,-
846, issued January 25, 1966 to the same inventors, were
co-pending. The district court concluded that the differ-
ence ketwceen the subject matter of the two was well known
and obvious, and that the subject matter of 3,249,026 was
not patentable over 3,230,846. Plaintiff filed a disclaimer,
immediately before trial, giving up the protection of 3,249,-
026 after the expiration of 3,230,846. The district court
concluded that this late action did not avoid the double
patenting defense. Although plaintiff points out an inac-
curacy in the district court’s assertion of the date the
defense was first pleaded, plaintiff has not persuaded us
that the court erred in its conclusion. ”
—_—_V—
(APPENDIX)
With respect to the claim of infringement, assuming
the claims were valid, the findings described the structure
and functioning of the accused machines, the Miller Form-
less curb and gutter machines, Models 70 and 71. The court
found sufficient real difference in structure and function
ketween the accused machines and the claims so that the
doctrine of equivalents is not applicable. The principal dif-
ference arises out of the four endless track system of the
accused machines, and the steering capabilities resulting
from their arrangement, as compared to the two endless
track system of the 3,249,026 patent. The court found and
concluded that there would be no infringement even if the
claims were valid. We agree.
Defendants appeal from the denial of their attorneys’
fees. Although the district court found that the inventors
failed to make known to the Examiner certain develop-
ments in roadbuilding machinery with which they had had
experience long before they filed their application, ex-
pressed concern that no real translation of a relevant Ger-
man patent was made by plaintiff's agent, and found that
plaintiff's agent failed to advise the Patent Office of certain
prior art patents of which the agent was aware, the court
conciuded that this was not an exceptional case within the
meaning of 35 U.S.C. $285. We find no abuse of discretion.
The Clerk of this Court is directed to enter judgment
affirming the judgment appealed from. Costs of appeal are
awarded to defendants.
onto
APPENDIX D
—_—----—
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CMI CORPORATION,
a corporation,
Plaintiff,
V. No. 72 C 106
LAKELAND CONSTRUCTION CO., INC.
a corporation, and MILLER
FORMLESS CO., INC., a corporation,
Defendants.
’
Nee eee ee Ne ee ee Se”
FINDINGS OF FACT
AND
CONCLUSIONS OF LAW
INTRODUCTION
This is a patent infringement action by CMI Corpo-
ration against the Lakeland Construction Co., Inc. and the
Miller Formless Co., Inc. for infringement of United States
Letters Patent 3,249,026. Defendants have filed a declara-
tory judgment counterclaim alleging invalidity of the pat-
ent and non-infringement. The case was tried to the Court,
and having examined all of the testimony and exhibits pre-
sented, and being full advised in the premises, the Court
finds that patent 3,249,026 is invalid. Furthermore, even if
the patent were valid, it would not be infringed.
The following shall constitute the Court’s findings of
fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
—Vvii—
[APPENDIX]
FINDINGS OF FACT
The Action and the Parties
1. This is an action for infringement of United States
Letters Patent No. 3,249,026 (hereinafter cited as ’026),
entitled “Construction Machines,” issued on May 3, 1966
(see Appendix 1 for complete text of the patent). The
patent in suit contains eight claims, but only claims 3, 5
and 8 are in issue in this case.
2. Plaintiff CMI Corporation (hereinafter cited as
CMI) is a corporation in the State of Oklahoma having
its principal place of business in Oklahoma City, Okla-
homa.
CMI manufactures and sells a broad range of auto-
matically controlled road building machines, namely, a
dual lane trimmer for finishing highway subgrades in prep-
aration for paving; dual lane and single lane highway slip
form pavers for placing either concrete or asphalt; a high-
way placer-spreader for positioning concrete ahead of the
highway slip form paver; concrete finishers; a single lane
trimmer known as the T-200; a suburban slip form paver
made in various widths; motor graders, and a small slip
form paver used to a large extent in slip forming curb and
gutters.
3. Defendant Lakeland Construction Co., Inc. (here-
inafter cited as Lakeland) is a corporation of the State of
Illinois having a regular and established place of business
in McHenry, Illinois.
Lakeland, which was formed in 1958, is a construc-
tion company engaged primarily in all facets of road and
highway construction and has, within the six years im-
mediately preceding the filing of the complaint in this case,
within the Eastern Division of the Northei District of
Illinois and elsewhere, used the accused Models 70 and 71
slip form concrete laying machines.
—viii—
{APPENDIX}
4. Defendant Miller Formless Co., Inc. (hereinafter
cited as Miller Formless) is a corporation of the State of
Illinois having a regular and established place of business
in McHenry, Illinois.
Miller Formless was formed in early 1970 and has,
within the six years immediately preceding the filing of
the complaint in this case, manufactured and sold, within
the Eastern Division of the Northern District of Illincis and
elsewhere, the concrete laying slip form machines identi-
fied as Models 70 and 71.
5. Plaintiff, the owner by assignment of the ’026 pat-
ent, contends that the manufacture, use and sale by de-
fendants of slip form concrete laying machines, identified
as Models 70 and 71 and frequently referred to as curb
and gutter machines, infringe each of the claims in issue.
6. Defendants contend that the claims in issue of the
patent in suit are invalid in that, inter alia, (a) the sub-
ject matter was anticipated under the provisions of 35
U.S.C. $102; (b) the machine disclosed in the patent in
suit is inoperable; (c) the subject matter of the claims in
issue was obvious within the meaning of 35 U.S.C. £103;
(d) the patent in suit fails to comply with the provisions
of 35 U.S.C. §112; (e) the subject matter of the claims
in issue is not patentable over the subject matter disclosed
and claimed in U. S. Patent No. 3,203,846 issued to the
same patentees; and defendants contend that the claims in
issue have not been infringed.
The Patent in Suit
7. The patented invention is directed to the support
and automatic control of a road building machine of the
type which requires precise control of its height and lateral
slope relative to a grade reference, such as a previously
finished surface or a wire or string iine, extending along-
side the path of travel of the machine. Examples of ma-
chines requiring such precise control are paving machines
=
[APPENDIX}
and graders used in providing a finished or smooth surface.
The essence of the invention is in supporting one side of
the machine with fore and aft supports, such as hydraulic
rams, connecting the frame to wheels or endless track units,
and supporting the opposite side of the frame of the ma-
chine with a single support at the center of the frame,
wherein the fore and aft supports are controlled by sens-
ing the height of that side of the machine relative to the
grade reference (surface or string line) and the single sup-
port is controlled either by a pendulum or by sensing the
height of that side of the frame relative to a second grade
reference to control the latera! disposition or slope of the
frame.
8. The claims in issue of the patent in suit read as
follows:
Claim 3:
A construction machine comprising:
a main frame;
at least one working tool carried by said main
frame for road engagement;
a track frame on each side of said main frame;
an endless track mounted upon each trace frame
and extending longitudinally thereof in the direc-
tion of travel;
propulsion means engaging each of said endless
tracks for moving said machine;
main frame support means connecting each side
of said main frame to one of said frame tracks,
one of said support means including a pair of hy-
draulically operated rams including linkage means
for respectively providing vertical adjustment
means for the front and rear of one side of said
main frame,
—X—
(APPENDIX)
the other of said support means including a single
hydraulically operated ram and linkage means for
pivotally connecting the other support means be-
tween a midportion of said track frame and said
main frame for providing vertical adjustment
means for the other side of said main frame;
a hydraulic pressure and return system connected
to said rams;
valve means disposed between said system and
cach of said rams and carried by said main frame;
vaive actuating means imeluded in each of said
valves,
the valve actuating means associated with said
pair of rams being disposed for engagement with
a grade contro] means disposed along one side of
the path to be traversed by said construction ma-
chine,
and the valve actuating means associated with
said single ram being disposed for engagement
with a slope control means.
Claim 5:
A construction machine in accordance with claim 3
in which said slope control means comprises
a pendulum means carried by said main frame
and movable in a plane transverse to said path.
Claim 8:
A construction machine comprising:
a frame,
a working tool carried thereby,
a pair of ground engagement means disposed ad-
jacent opposite sides of said frame for accomo-
dating transportation thereof.
——
[APPENDIX]
a pair of frame support means connecting oppo-
site sides of said frame to respective ground en-
gagement means adjustably supporting aid frame
thereon,
one of said frame support means including a pair
of extensible members connected to said frame at
spaced points,
the other frame support means being pivotally
connected to one of said ground support means
substantially centrally thereof and imcluding a
single extensible member,
actuating means operatively connected to said pair
of extensible members including a control lever
adapted for operative engagement with an ex-
terior grade control reference disposed along a
path to be traversed by said construction machine,
and actuating means for said single extensible
member operative to control the transverse slope
of said frame relative to said path.
The Development of the
Patented Invention
9. In 1958 or 1959, Raymond Gurries and John Cur-
lett, the co-patentees of the patent in suit, were on a high-
way construction job in Winters, California. While on that
job, they observed a slip form paving machine made by
Guntert & Zimmerman. The Guntert & Zimmerman ma-
chine was a two-track machine with the frame of the ma-
chine supported on the tracks by a hydraulic ram at each
corner of the frame, with each hydraulic ram being con-
trolled by a separate sensor riding a string line on the re-
spective side of the machine. Gurries and Curlett observed
that as the tracks of the Guntert & Zimmerman machine
were moving over uneven terrain, one of the four hy-
draulic rams was frequently not supporting the weight of
—xii—
[APPEND!X}
that corner of the frame of the machine. They also ob-
served that the rear two hydraulic cylinders or rams were
connected to the frame for vertical movement and the
machine incorporated a horn type warning system which
would be activated when either one or the two rear hy-
draulic cylinders had moved down with respect to the
frame a predetermined distance to give a warning to the
operator that that corner of the frame was not then being
supported, in order that appropriate corrective measures
could be taken to adequately support that corner of the
irame and prevent upsetting of the frame.
10. Following the observation of the problem in sup-
porting the Guntert & Zimmerman machine, Gurries and
Curlett began considering a solution to that problem. The
first solution they conceived is disclosed in U. S. Patent
No. 3,230,846, issued on January 25, 1966, on an application
filed May 15, 1961. The °846 patent discloses and claims
the use of two hydraulic rams on one side of the machine
individually controlled by sensors riding a strong line,
while the opposite side of the machine is supported by
fore and aft hydraulic rams which are locked together in
parallel and interconnected by a common conduit and con-
trolled either by a sensor at the middle of the frame riding
a string line or by a pendulum. In operation of that ma-
chine, oil is either added or removed from one of the com-
monly connected rams while the other is in a fixed posi-
tion, or is transferred between the commonly connected
rams as required to keep the center or midpoint of the
frame at that side of the machine at a given elevation even
though the track supporting the frame at that side of the
machine is moving over uneven terrain. This creates a
three-point suspension system.
11. Approximately one year after filing the applica-
tion for the 846 patent, Gurries and Curleit conceived the
use of a single hydraulic ram or cylinder to support the
frame of a machine at one side, rather than using two inter-
connected cylinders at that side, for directly supporting the
—xiii—
(APPENDIX)
center of the frame at that side at a precise height as con-
trolled either by a sensor riding a string line or by a pen-
dulum. This latter conception resulted in the filing of the
application for the patent in suit on July 3, 1962.
12. The sole material difference between the machines
described by the °846 and 026 patents is the substitution
of a single, hydraulically operated ram at the midpoint of
ene side of the machine for two interconnected rams which
effectively create a point of suspension at the midpoint of
the frame. There are, of course, minor mechanical differ-
ences which relate to the different linkages required by
the substitution of the rams.
Paper Patent and
Commercial Success
13. The ’026 patent has never been reduced to prac-
tice; it has no existence apart from the patent certificate.
No known drawings of the '026 subject matter were ever
made by the patentees or anyone else, either before or
since the patent application was filed. The construction
machine illustrated and described in the patent in suit has
never been manufactured and sold either by plaintiff or
by Gurries Manufacturing Co., plaintiff’s predecessor in
title.
14. Curbmaster of America, Inc. of Cedar Falls, Iowa,
was granted a license under the patent in suit, Patent No.
3,249,026, by agreement dated January 1, 1971. As of Jan-
uary 31, 1974, Curbmaster of America, Inc. had paid royal-
ties in the total amount of $86,506.84 pursuant to that li-
cense agreement. This is the only license issued under the
patent.
15. The construction machine illustrated and described
in the patent in suit was analyzed in principle on or about
November 1961, but no documents relating to such analysis
have teen found and no such construction machines were
tested by the patentees or by the plaintiff.
—xiv—
[APPENDIX]
16. Plaintiff has never marked any of the construction
machinery which it has manufactured, used or sold with
the number of the patent in suit, namely, 3,249,026.
17. The fact that Curbmaster of America, Inc. was
granted a license under the patent in suit does not enhance
the validity of the patent in suit under the circumstances
of this case. The evidence clearly established that the Curb-
master machine contains features not disclosed in the ’026
patent in suit and has definite advantages over the ’026
structure. The structure of the Curbmaster machine is dis-
closed in U. S. Patent No. 3,635,131. While the Curbmaster
structure incorporates three hydraulic jacks, two of which
are mounted on the left side and one on the right, the
structure also significantly utilizes an extensible member
which aids in stabilizing the righthand side of the Curb-
master machine. The patent in suit, in every embodiment,
discloses for the side of the machine where only one ram
is used only a single extensible member with a ram asso-
ciated therewith and link means for stabilization; the Curb-
master machine uses two extensible members and no link
means.
During the prosecution of the application which even-
tuated in Curbmaster patent No. 3,635,131 through the
Patent Office, the '026 patent in suit was cited as a refer-
ence against the application. The Court deems it significant
that in distinguishing the structure of the Curbmaster ma-
chine over that disclosed in the '026 patent, ‘he importance
of the second extensible member acting as a stabilizing
guide was emphasized. The mule or mold on the machine
is flexible, which is an added important feature.
18. The Court finds that the patent in suit is nothing
more than a “paper patent,” an established term used in
patent law to signify a patent showing a conception that
has never been built by the patentee, proven to be of sound
design, manufactured, sold or distributed.
—xv—
[APPENDIX]
Plaintiff failed to prove that the specific features
claimed in the '026 patent in suit were the reason for
the grant of the license to Curbmaster or account for any
commercial success which has accrued to the Curbmaster
machine. Indeed, the fact that only one licensee exists can
be taken as evidence against commercial success.
Presumption of Validity
19. The patent in suit is not entitled to the usual pre-
sumption of validity under 35 U.S.C. $282 for a number of
reasons. First, the Examiner failed to consider pertinent
prior art. There is no presumption of validity with respect
to the prior art exemplified by Allen patent No. 2,128,889,
issued in 1938, the Bucyrus-Erie development of 1937 vint-
age, the disclosure of Etgen patent No. 2,440,502, issued in
1948, and Gurries’ own developments of the late 1950’s.
Also, both the Patent Office Examimer, Nile C. Byers, and
the patent agent, Paul B. Fihe, who was in charge of the
prosecution of application Serial No. 207,207, which ulti-
mately issued as the "026 patent in suit, admittedly were
unaware of a slope controlled alternative embodiment dis-
closed in German patent No. 1,010,980, the principal prior
art reference.
20. The specification of the said German patent which
was published on June 27, 1957 refers to the elimination
of one guide wire on one side of the machine by the use
of a “waage” which the parties stipulated in advance of
trial shou)d be tr inslated as either a “balance” or a “spirit
level.”
21. German Patent No. 1,010,980 was cited as a ref-
erence against application Serial No. 110,087 in the initial
Patent Office Action of April 17, 1962 and Edward B. Gregg
obtained a copy of the said German patent prior to filing
an amendment im the Patent Office on October 15, 1962.
Application Serial No. 110,087, which ultimately issued on
January 25, 1966 as U. S. Patent No. 3,230,846, was drafted
—xvi—
[APPENDIX]
in the office of Edward B. Gregg and filed in the Patent
Office on July 3, 1962 as a continuation-in-part o. applica-
tion Serial No. 110,087 by Edward B. Gregg.
22. In the initial Office Action of October 30, 1963 in
application Serial No. 207,207, received by Edward B. Gregg
on November 4, 1963, the Examiner rejected all claims as
being unpatentable over German Patent No. 1,010,980 in
view of Alberts Patent No. 2,883,594.
23. On January 6, 1964, attorney Paul B. Fihe was
granted a power of attorney by Gurries Manufacturing
Company to represent apvlicants John Curlett and Ray-
mond A. Gurries in application Serial No. 207,207 and to
prosecute the said application. This power of attorney was
accepted by the Patent Office on January 20, 1964. On
January 6, 1964, attorney Paul B. Fihe was granted a power
of attorney by Gurries Manufacturing Company to repre-
sent applicants John Curlett and Raymond A. Gurries in
application Serial No. 110,087 and to prosecute the said
application. The power of attorney was accepted by the
Patent Office on January 28, 1964.
When Fihe took over prosecution of application Serial
No. 207,207, a copy of German Patent No. 1,010,980 which
had been cited as a reference by the Patent Office in its
first Office Action of October 30, 1963 was in the application
file. In this first Office Action, the Examiner also applied
Alberts patent No. 2,883,594 which disclosed a three-point
suspension mechanism for maintaining a platform for use
in either surveying or rocket launching in a desired hori-
zontal plane by the utilization of a level sensor.
24. Fihe looked at the drawings of the German patent
and was able to ascertain therefrom that in the structure
of the German reference there were two tracks, one on
each side of the main frame, and four cylinders, one at each
corner of the frame, providing a connection and support
between the frame and the respective track. Since he had
rr a ee ie me
—-xvii—
[APPENDIX]
no working knowledge of the German language, Fihe
showed the German patent on only one occasion prior to
April 1964 to a graduate student at Stanford University.
Fihe asked the student to read over the entire patent and
put to him one question, namely, whether there was any
suggestion or mention anywhere in the German patent of
using a three-point rather than a four-point suspension.
The student replied that there was not. Other than this
single instance involving the German graduate student,
Fihe never sought any other translation or interpretation
of the German patent.
25. Examiner Byers testified on deposition that in
applying the German patent as a reference he relied on the
drawings of that patent since he had no working knowledge
of the German text; he did not rely on the text of the
patent.
26. During the prosecution of the patent, Fihe repre-
sented that the German patent did not suggest a slope-
sensing mechanism. On deposition, Fihe stated that a “spirit
level,” such as is disclosed in the German patent as an
alternative embodiment, is “a slope-sensing mechanism.”
He also stated that at the time he made that representation
to the Patent Office he was not aware of the existence of a
slope sensor in the form of a spirit level in the German
patent, and he further stated that the German patent does
disclose that by using that slope sensor, one of the two
grade wires may be eliminated.
27. At the time he made the above representations
to the Patent Office, Fihe was familiar with Gurries, et al
patent No. 2,883,777 which disclosed the use of pendulums
for slope control in road graders, and with Gurries, et al
patent No. 3,000,122 which disclosed a system for slope con-
trol using a pendulum valve or manually operated valve,
but he did not advise the Patent Office of the existence of
these patents during prosecution of applications Serial Nos.
110.087 and 207,207.
—xviii—
[APPENDIX]
28. In the second Office Action of April 15, 1965, all
claims pending in the application were finally rejected, the
Examiner noting that the “German patent as modified [by
Alberts] is deemed to anticipate the structure claimed.”
On August 10, 1965, Fihe filed a Notice of Appeal to the
Board of Appeals from this final rejection. In his October 8,
1965 response to the April 15th action, Fihe repeated his
representations concerning the lack of a slope sensing
mechanism.
29. The Court is concerned that no real translation of
the German patent was made by either the agent or, appar-
ently, the Examiner during the pendency of the prosecution
of the patent even though it was cited as a prior art refer-
ence.
30. When German Patent No. 1,010,980 was cited by
the Patent Examiner, Mr. Byers, during the prosecution of
the application for 026, the German patent was located in
the Examiner’s search files in either class 94, subclass 46,
or class 94, subclass 46 of the AEC (automatic elevation
control) Digest. Ciass 94, subclass 46 was reclassified as
class 404, subclass 84 in the years 1971, 1972, 1973 and all of
the foreign patents previously maintained by the Examiner
in the Examiner’s files of class 94, subclass 46 and class 94,
subclass 46 AEC have been transferred into the Examiner’s
files of class 404, subclass 84. As of December 5, 1973, a copy
of German Patent No. 1,010,980 could not be found in the
Examiner’s search files of class 404, subclass 84.
The Patent Examiner, Mr. Byers, does not recall
whether or not there was a translation of German Patent
No. 1,010,980 in the Examiner’s search files when he found
such patent and cited it during the prosecution of the appli-
cation for the patent in suit.
As of December 5, 1973, a copy of French Patent No.
1,095,178 which corresponds to German Patent No. 1,010,980
was located in the Patent Examiner’s search files for class
—xix—
[APPENDIX]
37, subclass AL, which had the notation “some translation
in German 1,010,980 94/AEC” on the face thereof.
French Patent No. 1,095,178 was published on May 27,
1955 and was received in the U. S. Patent Office on August
22, 1955, and is the French equivalent of German Patent
1,010,980. The specification of French Patent 1,095,178 refers
to the mounting of a balancing device on a construction
machine whereby the elimination of one guide wire on one
side of the machine may be effected.
Double Patenting and
Operability
32. The alleged invention defined in the ’26 patent in
suit is not patentably distinct from that defined in the
earlier-issued ’846 patent. The sole material distinction
between the claimed invention of plaintiff's 026 and 846
patents was the alternate use of two interchangeable and
well-known equivalent vehicle suspension means. Both the
prior art and basic mechanics indicate that the substitution
of one cylinder (as shown in the ’026 patent) for two cylin-
ders, which are effectively operating as one, as disclosed in
the 846 patent, is not only the full mechanical equivalent
but also is merely a design choice.
33. The Court recognizes that while the complete dis-
closures of copending applications of the same inventors
are not prior art as to each other, under the doctrine of
double patenting the claim of the subsequently issued
patent must show a patentable and unobvious invention
beyond the claim of the first. As stated above, such is not
the case here.
34. On the eve of trial, which was over seven years
after the allowance of the patent and almost two years
since the filing of the suit, plaintiff filed in the United States
Patent Office a document entitled “Terminal Disclaimer
Under Rule 321” disclaiming the terminal part of the ’026
—xk xX —
[APPENDIX]
patent in suit which would extend beyond the expiration
date of the earlier issued ’846 patent with the result that
both of the said patents will expire on the same dav,
namely, January 25, 1983.
35. The Court finds that the filing of such a terminal
disclaimer was ineffective since disclaiming the terminal
portion of the life of a later issued patent in this case cannot
avoid the invalidity of the later filed patent to the same
subject matter. The Court is further concerned with the
timing of the disclaimer, coming at such a late date, espe-
cially since defendants’ answer had raised the issue several
vears earlier.
Status Under 35 U.S.C. $112
36. The Court believes that while some of the language
is ambiguous, as “linkage means,” this does not differ ma-
terially from the type of language used in patents in this
art and the basic concept is understandable. Several of the
alleged ambiguities are either transpositions or equivalent
terms for previously used language, and the Court believes
that the patent is operable and is not fatally defective in
light of 35 U.S.C. $112.
Anticipation Under 35 U.S.C. $102
37. The Court believes that the patent in suit is not
anticipated by U. S. Letters Patent 2,128,889 (Allen). While
the Allen patent discusses the use of hydraulic pressure to
maintain a grading machine at a certain level through the
use of three pumps, the patent does not disclose the use of
slope and horizontal controls to constantly adjust the ma-
chine while in motion. Certain other differences exist, so
that anticipation is not present. However, Allen is pertinent
on the question of obviousness.
Nee
—xxi—
[APPENDIX]
Obviousness—35 U.S.C. $103
38. Having considered the scope and content of the
prior art, the level of ordinary skill in the art and the differ-
ence between the claims and the prior art, the Court finds
that within the meaning of 35 U.S.C. §103, the subject
matter of claims 3, 5 and 8 of the patent in suit as a whole
would have been obvious at the time the invention was
made to a person having ordinary skill in the art.
The patentees of the patent in suit properly defined
the area of pertinent or analogous prior art when they
stated in their patent (Plaintiff's Trial Exhibit Number 1,
col. 7, lines 52-58):
“In the description hereinabove frequent reference
is made to ‘road building’ and to ‘road building ma-
chines.’ It will be understood that the invention has
wider application. For example, it can be applied to
earth working and/or paving machines used for such
purposes as airport construction, slab construction,
agricultural purposes, canal lining, etc.”
39. The relevant prior art with respect to three-point
suspension systems and grade and slope control mech isms
was highly developed at the time the patentees conceived
the structure embodied in their 846 and ’026 patents.
40. The prior art showed the interchangeability of one
or two parallel] rams, various three-point suspensions, vari-
ous grade and slope controls using external lines and pendu-
lums and every other aspect of the ’026 patent in suit.
41. During the prosecution of the application for the
patent in suit, the Patent Examiner considered and cited
the U. S. Patents of Earley 2,844,882; Guntert 2,864,452;
Alberts 2,883,594 and Shea 3,029,716; as well as German
Patent 1,010,980. Other pertinent prior art includes the
Etgen Patent 2,440,502, Vogelaar 2,801,511, Orelind 2,796,-
718, and Allen 2,128,889, the various Bucyrus-Erie develop-
—xxii—
[APPENDIX]
ments including Knox 2,202,009, and plaintiff’s predecessor’s
own work in the field. The Court also relies on the testi-
mony of defendants’ expert, Professor Strait.
42. The German patent discloses a two-track road
building machine wherein the frame of the machine is
supported at each side by fore and aft hydraulic rams
connected between the frame and the respective track
frame providing a four point support. Each hydraulic ram
is individually controlled by a sensor riding on a string line.
The specification of the German patent also refers to
the use of a “waage” which may be translated into English
as either a “balance” or a “spirit level.” Such specification
further makes mention of the elimination of one guide wire
by the use of a “waage.” This effectively allows for control
of one side of the machine by two guide wires and the other
side by some balancing device. The German patent also
discloses the interchangeability of either electric or hy-
draulic control means (see Defendants’ Exhibit 3, transla-
tion of the German patent, page 2). This is relevant in that
other references utilize electric control means.
43. The patent of Alberts discloses a platform leveling
apparatus wherein the platform is supported by three jacks
to provide a three point support. The jacks are controlled
by a pendulum device which is sensitive along two axes at
right angles to one another to maintain the platform level.
44. On several occasions the Patent Examiner rejected
the application in light of the German and Alberts patents.
The combination of the teachings of the two patents appears
obvious and is merely a mechanical operation.
45. The patent of Earley discloses a slip form paving
machine wherein each of the four corners of the frame of
the machine is supported by a hydraulic jack connected to a
wheeled truck. Each hydraulic jack is individually con-
trolled by a sensor riding a string line.
—Xnxiili-—
[APPENDIX]
46. The Guntert patent discloses a two track, slip form
paver wherein the frame of the machine is supported at
each side by fore and aft hydraulic cylinders or rams con-
necting the frame to the respective endless track. Each of
the hydraulic rams is individually controlled by a sensor
riding a string line.
47. The patent of Shea discloses an asphalt paver
wherein the cross slope of the screed, which controls the
thickness of the asphalt laid by the machine and which is a
working tool, is controlled by a pendulum.
48. The Allen patent teaches a road construction ma-
chine which supports working tools on a three-point
suspension from two longitudinally extending ground sup-
ports in the precise manner taught by Curlett ad Gurries
in the 026 patent. Allen uses two rams on one side of his
machine at points B and C to control the grade or elevation
of his main frame and working tools and a third ram A on
the opposite left side of his machine to control cross slope
of his tool. Allen also provides actuating controls on an
operator’s platform designated by the numeral 75. Allen
does not specifically disclose automatic reliance upon an
external grade reference to actuate the controls.
49. The inventor’s own prior activity serves as evi-
dence of the obviousness of the patent.
50. On January 15, 1954. Raymond A. Gurries started
the Raymond A. Gurries Manufacturing Company which
within a year was incorporated as Gurries Manufacturing
Co.
51. John Curlett was first employed by Raymond A.
Gurries Manufacturing Company on January 16, 1954 as
vice president and chief engineer, a title he retained until
1966 when he severed his employment with Gurries Manu-
facturing Co.
52. John Curlett has been employed as a project en-
gineer with FMC Ordnance Engineering since 1966.
—xxiv—
[APPENDIX]
53. The first product that ihe Raymond A. Gurries
Manufacturing Company actuaily made and sold was an
80 foot long land planer which was an agricultural machine
for leveling farm land.
The theory of the Gurries land planer was that the
cutting edge of the blade would lie exactly on a straight
line from the ground contact point of the front truck
wheels to the contact point of the tail caster wheel.
The hydraulic system of the Gurries land planer was de-
signed so as not to respond to small surface irregularities
but to adjust itself for the average contour of the ground
and thereby maintain a smooth cut or fill.
The Gurries land planer incorporated a system of
hydraulic servo valves to maintain a particular plane. This
was Raymond A. Gurries’ first personal experience with
servo valves and the land planer was used by him as a
proving ground for developing and gaining experience in
servos. The land planer in its early stages of development
did not employ any system for controlling the transverse
orientation of the blade. Many of the Gurries land planers
in varying sizes were manufactured and sold.
54. In 1955 or 1956, Gurries Mfg. Co. tried using a
50 foot land planer with a 10 foot wide cutting edge on
several road building jobs. These land planers which were
called “road planers” were sold and used in Colorado, Mon-
tana and Wyoming but they did not utilize any system to
correct slope or grade or elevation.
55. In late 1956 or early 1957, Gurries Manufacturing
Co. built a prototype road builder with a pendulum control
for cross slope, an auger screw for conveying the excess
material out from the bowl, and a manual control for
elevation.
56. Gurries, et al patent 2,883,777, issued April 28,
1959 on an application filed September 20, 1957, discloses
a road grader wherein the front of the frame of the ma-
—-xxv—
[APPENDIX]
chine was supported merely by fixed wheels with an oscil-
lating walking beam action between them. The wheels were
steerable but they were ecsentially fixed vertically in rela-
tion to the frame.
57. The structure of patent 2,883,777 shows how Gur-
ries first put a cross-slope control on the land planer to use
on highway work.
58. Gurries, et al patent 3.000,122, issued September
19, 1961 on an application filed January 19, 1959 discloses
essentially the configuration of the GARB-44 machine man-
ufactured by Gurries Manufacturing Co. that was sold to
Gordon Ball Construction in 1958 and was used by Bal] on
on a highway job at Winters, California in 1958.
59. The GARB-44 machine was also sometimes known
as the Gurries Automatic Road Builder.
60. The GARB-44, sold and used in 1958, was devel-
oped prior to the development of the machines disclosed
in applications Serial Nes. 110,087 and 207,207.
61. The GARB-44 was a machine built around a heavy
drag-scraper type bow! with wheels behind the scraper and
at each side of the long rigid frame. The fram. was sup-
ported by a front truck having a wheel at each side of the
frame.
62. The scraper bow] wheels of the GARB-44 were
controlled by a sensitive hydraulic system which operated
to adjust the grade or elevation of the scraper blade in
reference to (a) an indexing surface, (b) a tight wire or
(c) a long wheelbase, the choice of reference being at the
option of the operator.
63. The lateral attitude or cross slope of the scraper
blade of the GARB-44 was maintained by a pendulum con-
tro] at an angle selected by an operator.
64. In the GARB-44, the height or elevation of the
scraper blade could be held in a desired relationship to the
—xxvi—
([APPENDIX}
long 40 foot wheelbase from the front support wheels to
the tail-wheel. This gave a planing or straight line cutting
action that rapidly produced a uniform riding surface from
rough grade. Three options for scraper blade elevation con-
trol were:
(a) left wire trace—in which the grade wire servo
valve operated to automatically hold the scraper
blade at a desired height below a tightly stretched
piano wire set precisely parallel to the elevation of the
finished road;
(b) left side wheel trace—in which the left side gauge
wheel servo vaive operated to automatically hold
the scraper blade height at a desired height in relation
to a pattern surface directly to the left of the machine;
(c) right side wheel trace—same as left side wheel
with the desired pattern surface to the right of
the machine.
An additional servo valve operating simultaneously
with the scraper blade height servo valves took its signal
from a sensitive and precisely dampened pendulum. This
valve controlled the lateral attitude or cross slope of the
entire machine. The operator was able to set and vary the
cross slope from 0 to 25% fall, left or right.
65. The hydraulic system of the GARB-44 was a type
known as a closed-center system wherein the pump sup-
plied a constant head of pressure, ready for immediate
action with the slightest signal from the servo valves.
66. The 1962 Operator’s Manual for the Gurries Auto-
matic Road Builder accurately describes the structure and
operation of all of the GARB machines that were sold,
including the first of such 1958 machine.
67. Gurries Manufacturing Co. has never manufac-
tured a machine using tracks instead of wheels.
—xxvii—
[APPENDIX)
68. Prior to 1965, the closest machine to the drawings
of patent 3,230,846 that Gurries Manufacturing Co. had
ever designed was the GARB-44 used by Ball on the high-
way job at Winters, California in 1958.
69. Long prior to filing their applications which re-
sulted in the issuance of the 846 and ’026 patents, Gurries
and Curlett had obtained considerable experience with
three-point suspensions for purposes of stability as evi-
denced by the Gurries land planer and the GARB-44 Road-
builder. The inventors also had experience utilizing two
rams locked together mechanical’ in parallel and in the
utilization of a pendulum to conic] slope. None of these
developments was made known to the Patent Examiner.
70. The prior art also includes the Bucyrus-Erie Co.
excavators, which were used as early as 1937. The shovel
utilized four hydraulic supports, however, two were
mechanically linked and created a three-point suspension.
This concept was embodied in Knox patent 2,202,009.
71. Defendants adduced substantial proofs through
their expert witness, Professor Strait, concerning the teach-
ings of Etgen 2,440,502, Vogelaar 2.801,511 and Orelind
2.796.717 and Professor Strait’s own personal experience
and knowledge to establish that the interchangeable use of
one or two hvdraulic rams or cylinders was well known
in the prior art. None of these patents was cited or consid-
ered by the Patent Office during the prosecution of the
application which issued as the patent in suit.
72. Even assuming a presumption of validity, which
does not exist here, defendants have proved by clear and
convincing evidence that, measured against the prior art
as exemplified by Allen 2,128,889, the Bucyrus-Erie 950-B
series of commercial machines, Knox 2,209,009, the dis-
closures of Etgen 2,440,592, Vogelaar 2.801,511 and Orelind
2.796.717, the patentees’ own developments as evidenced by
the Gurries land planer the GARB-44 and the ’846 patent,
—xxviii—
(APPENDIX)
and the disclosures of the prior art references of the late
1950’s considered by the Patent Office, there are no “differ-
ences” within the meaning of the Graham v. Deere obvious-
ness test claimed in the ’026 patent.
73. Confirmation of the Court’s obviousness determi-
nation is found in the following facts:
a) Prior to 1962, one had the option within the skill
of the art to provide grade control either with a single
sensor on one side of the machine aligned with the working
tool or with two sensors in the front and back.
b) Prior to 1962, it was well known within the skill
of the art that if one wanted to get three-point suspension
from four-point suspension, one put a central support in
the middle connecting the main frame to two spaced ground-
engaging means.
c) Prior to 1962, three-point suspensions were widely
known for supporting rigid machines, and such three points
of suspension could be obtained either by connecting two
hydraulic cylinders in paralk | at the corners or by placing
a single cylinder in the middle.
d) Prior to 1962, the selective use of manual adjust-
ment of slope, automatic pendulum slope control, or the use
of two lines on opposite sides of the machine for slope
control was an option available in the construction machine
art.
74. Confirmation of the Court’s obviousness determi-
nation is also found in the admissions of plaintiff’s wit.ess
Kohls (a) that it was the state of the art as of 1961 that
grade could be controlled with either a manual valve
control or a grade sensor, laid on the ground; (b) that it
was prior art in 1961 to selectively use manual control, a
pendulum or two grade wires to control cross slope; (c)
that the fact that in a rigid construction machine with four
adjustable supports only three operate at any one time to
(APPENDIX)
support the load is “fundamental” and as fundamental or
obvious as “the difference between a four-legged and a
three-legged stool.”
75. Each and every element of the 026 combination
was admittedly old. The well known elements employed in
the 026 structure took on no new quality or function from
being brought into concert, and the alleged improvement
resulting from their unification is wanting in any unusual
or surprising consequences. Putting an old and well known
three-point suspension on an old and well known two-track
machine was not only obvious but was also merely a design
choice.
76. The elimination in the 026 structure of one of the
corner rams and the positioning of a single ram at the mid-
point of the frame for stability was an obvious mechanical
expedient and did not rise to the dignity of patentable
invention.
77. The record is devoid of any evidence tending to
establish that the structure of the patent in suit ever pro-
duc™! any unusual or surprising result.
Violation of 37 CFR 1.133
'8. The Court believes that no violation of this section
occurred since the substance of the interviews of October 8
and 11, 1965 were set forth in the text of the amendments
and were incorporated by reference when the fact that the
interview occurred was mentioned.
The Accused Device
79. The first slip form curb and gutter machine made
by the Miller brothers, Charies, David and Allen (presently
officers of Miller Formless) was constructed on the premises
of Lakeland in approximately March 1967. This prototype
machine employed four endless tracks, with an adjustable
support at each of the four corners of the frame of the
machine supporting the frame from an endless track. That
—xxx—
LAPPENDIX)}
machine was used on one job site, but was removed imme-
diately because it did not perform satisfactorily.
80. In about June 1967, the Miller brothers con-
structed a second prototype slip form curb and gutter
machine which was similar to that illustrated and described
in Miller patent 3,606,827. As shown in that patent, this
machine employs four tracks, with one side of the frame
being supported by fore and aft hydraulic cylinders con-
nected to individual endless tracks. The opposite side of the
frame is supported by a pair of hydraulic cylinders located
at the mid-portion of the frame and mechanically tied
together to act as one. The latter hydraulic cylinders are
connected to the front and rear endless tracks on the re-
spective side of the machine through a walking beam. The
structure results in a three point support for the frame of
the machine.
81. Between the construction of the first prototype in
about March 1967 and the second prototype in about June
1967, the Miller brothers reviewed up to three hundred
possible constructions by sketching and diagrammatic simu-
lation. The machine completed in June 1967 was success-
fully used for commercial work by Lakeland.
82. These 1967 prototype machines were constructed
on Lakeland’s premises in non-working hours by the Miller
brothers on their own time. They worked mornings before
work, nights after work, Saturdays, Sundays, and holidays
using salvage materials from worn-out pieces of equip-
ment available at Lakeland.
83. Application Serial No. 774,014 was filed in the U. S.
Patent Office on November 7, 1968. This application subse-
quently issued as Miller Patent 3,606,827 on September 21,
1971.
84. In May 1969, the Miller brothers constructed a
slip form curb and gutter machine in accordance with the
drawings and description of the Miller Patent 3,606,827.
—xxxi—
LAPPENDIX)
85. Approximately in May 1970, Miller Formless con-
structed a slip form curb and gutter machine designated
the Model 70 which basically conformed to the drawings
and description of the Miller Patent 3,606,827. There were
several differences, however. Among other things, the
Model 70 employed a pendulum type cross slope control
made by Honeywell Inc.
86. In March 1971, Miller Formless first constructed
its Model 71 slip form curb and gutter machine which is
shown and described in Miller Patent 3,710,695.
87. Each of the Miller Formless Models 70 and 71 slip
form curb and gutter machines utilizes a pair of endless
tracks on track frames at each side of the frame. One side
of the frame is supported by fore and aft hydraulic rams
or cylinders connected to the respective side of the frame
and pivotally connected to the track frame of the respective
endless track. Each of these hydraulic rams is enclosed in
a telescoping housing which transmits lateral forces he-
tween the frame and the respective endless tracks in vhe
same manner as the “stabilizer” used in the Curbmaster
of America machine. The opposite side of the frame is sup-
ported by a pair of hydraulic rams mechanically intercon-
nected and located at the mid point of that side of the frame.
The lower end of each of these latter hydraulic rams is
pivotally connected to the center of a walking beam, and
the opposite ends of the walking beam are in turn pivoiaily
connected to the track frames of the endless tracks on that
side of the machine. These latter two rams are also enclosed
in telescoping housings. The fore and aft hydraulic cylin-
ders are individually controlled by grade sensors riding a
grade line and the pair of hydraulic rams mechanically
interconnected at the center of the opposite side of the
frame are controlled by pendulum type cross slope control.
88. The Miller Formless Model 71 slip form curb and
gutter machine was first used in commercial work about
mid-April 1971 by defendant Lakeland on a job for the
—xxxii—
(APPENDIX)
State of Illinois involving the laying of curb and gutter
along Route 173 in northern Illinois.
89. The Miller Formless Model 71 slip form curb and
gutter machine was first sold to Highway Supply, Inc.,
Jessup, Maryland, on or about February 5, 1971 by Miller
Formless. Negotiations leading to the culmination of this
sale commenced early in January 1971.
90. On or about May 6, 1971, R. L. Chaides Construc-
tion Company of Santa Clara, California, took delivery of
a Miller Formless Model 71 barrier wall machine and a
freestanding curb and gutter mule. The order stated that
the said machine was “subject to approval to city, county,
state svecification and inspection.”
91. Some time in 1971 this machine was used by the
R. L.. Chaides Construction Co. to lay curb and gutter in
San Jose, California, and the machine successfully laid
between 400 and 600 feet of curb and gutter in that city.
92. Also in 1971, R. L. Chaides Construction Co. used
the Miller Formless machine on the first and third days
in a three-day period to lay between 2,000 and 3,000 feet
of curb and gutter in a subdivision in the City of Campbell,
California. The machine was operated by a man from Miller
Formless on that job. Approximately 200 to 300 feet of the
curb and gutter had to be removed and replaced by hand
at the direction of the City Inspector for Campbell, Cali-
fornia, because said curb and gutter did not meet the water
flow test specification of the City of Campbell.
93. The R. L. Chaides Construction Co. currently uses
a curb and gutter machine designated the “Easi-Pour”
which is manufactured by Huron Mfg. Corp. of Huron,
South Dakota. According to George F. Gonzales, a foreman
for Chaides, some of the curb and gutter laid by this ma-
chine has been removed.
—xxxiii—
(APPENDIX)
94. Gonzales has been involved in some curb and
gutter laid by hand which had to be removed for failure
to meet specifications.
95. The walking beam concept embodied in the Miller
Formless Model 71 curb and gutter machine was developed
prior to any awareness by defendants of the patent in suit.
Infringement
96. Plaintiff failed to sustain its burden of proof on
the infringement issue.
97. The manifest weight of the credible evidence estab-
lished the existence of substantial differences in means,
operation and results between the accused Miller Models 70
and 71 and the claimed structure of the patent in suit. As
noted above, the basic concept of a plane being determined
by three points, and this being the most stable structure
dates back at least to the time of Euclid. The issue here is
how the plane can best be determined and how other
desired functions can be accommodated in one machine.
The evidence indicates that the patent in suit and the
accused devices do not perform the same functions in the
same way, nor do they achieve the same result.
98. To aid its understanding of the structure and
principles of operation of the accused Miller machines, the
Court had the benefit of viewing two motion pictures which
graphically illustrated the versatility and maneuverability
of the Miller Formless curb and gutter machine. The ma-
chine includes a combination of four extremely accurate
sensors separately adjusting four independently steerable
tractors forming front and rear units and a five-point sus-
pension system which virtually straightens out rolling
uneven terrain.
99. Miller Models 70 and 71 have been afforded patents
known as Miller Patents 3,606,827 and 3,710,695. The ac-
cused machines are unlike the ’026 patent. They are
—Xxxiv—
[APPENDIX]
suspended from five points of connection supported on four
individual tractors resulting in unique slope, elevation and
steering correction. The steering correction results from
pivotal movement of either the front pair of tractors as in
automobile steering, the rear pair of tractors as in steering
the rear of a fire engine hook and ladder, or both producing
direct transverse movement of the frame without any turn-
ing whatsoever.
100. The left and right front tractors are tied together
with cross tie rods so that they steer together just like an
automobile. These tie rods are below the frame of the
machine and below the hydraulic adjustable supports and
form an integral part of the ground-engaging front end
tractor unit. The two rear tractors are similarly tied to-
gether as a traction unit and this rear unit functions to
steer the machine as well as provide compensation for
ground unevenness.
101. There is no similar structure either disclosed or
claimed in the 026 patent. To the contrary, the ’026 patent
shows a two track system. It has no steering, nor steerable
front and rear units and no transverse tie rods.
102. The four-track system of the accused device is
fundamentally different in structure and function than the
two track system of the '026 natent and is not merely a
splitting of one device into two. It also provides completely
different modes of grade and slope adjustment.
103. The front and back tractor systems of the accused
machine are entirely separate from one another and are
steerable independently of one another so that in the opera-
tion of the machine it is possible to turn just the front
tracks and not the rear. In actual operation, this is com-
monly done. It is possible to turn both sets of tracks so
they both turn in the same direction enabling the machine
to move transversely of its longitudinal axis. A maneuver
of this tvpe is impossible for a two-track machine of the
tvpe shown and claimed in the ’026 patent.
_
—xxxv—
[APPENDIX)
104. The accused devices also contain various other
elements which distinguish them from the patent in suit.
The method of connecting the frame to the tracks differs
substantially. The accused devices do not use direct link-
ages, but rather utilize a “saddle,” and several sets of
extensible members. Furthermore, the track frames are not
connected to the main frame as the patent requires. Instead,
each tractor is free of the main frame and the front and
rear tie rods connect the opposite front tractors and opposite
rear tractors together as a steerable unit. This aids in the
steering ability of the machine and wrovides for greater
precision.
105. The Court finds that the requirement of claim 8
that there be “a pair of ground engagement means disposed
adjacent opposite sides of said frame for accommodating
transportation thereof” is not met by the four-track sys-
tems. “Pair” must be interpreted to mean two. The four-
track system is not the equivalent of the two track system.
Although both systems are designed to go from one point
to another, their method of oneration, structure and results
achieved differ.
106. The Court finds that the Miller Models 70 and 71
are not the equivalent of the 026 structure defined in the
claims in suit because the said Miller Models are different
in structure and they do not perform substantially the same
function as the patented device, in substantially the same
way to achieve .ne same result.
107. The Court finds that the Miller Models 70 and 71
do not have the linkage means specifically required by
claims 3 and 5 and constructively required in claim 8. In
those accused models there is no track frame connected
with a linkage means to provide vertical adjustment be-
tween the track frame and the main frame.
108. The Court notes that the accused devices have
been natented and have achieved commercial success.
—xxxvi—
[APPEND!X)
Evaluation of Expert Testimony
109. In view of the circumstances of this case, the
Court deems it aavisable to comment briefly on the nature
of the expert testimony presented by the parties.
110. Eugene Kohls, presented to the Court by plaintiff
as its expert witness principally on the issue of infringe-
ment, had been associated for over 50 years with Ira Milton
Jones & Associates in Milwaukee. He was admitted to prac-
tice before the Patent Office as a patent agent in 1930 and
was admitted to the Bar in 1936. He has been continuously
engaged in the patent practice since 1930 specializing pri-
marily in the preparation and prosecution of patent
applications. He had acted as a patent expert in approxi-
mately 12 prior cases. He has had no engineering training.
111. Prior to testifying, Kohls had never had any
engineering experience nor had he had any practical ex-
perience in the field of vehicular machinery, including
construction machinery, agricultural machinery, or earth-
moving machinery and he emphasized that he was not
putting himself forth as a technical expert in those fields.
He also stated that he had no practical knowledge with
respect to vehicle suspensions. While Kohls had seen a
Miller machine in a parked position, he had never seen
the Miller Models 70 and 71 machines in actual operation
and, indeed, Kohls has never seen any machine operate in
curb and gutter work.
112. Defendants’ expert, Professor John Strait, re-
ceived a B.S. Degree in Mechanical Engineering from
Purdue University in 1938 ana an M.S. Degree in Agri-
cultural Engineering from the University of Minnesota
in 1945. At the time of trial, he was a Professor of Agricul-
tural Engineering at the University of Minnesota, a position
he has held since July 1965, having taught at that university
in the field of agricultural engineering continuously since
1938.
113. Professor Strait has specialized in the field of
agricultural machinery and power units, dividing his time
NS ae ee et ee te
ee ee eee See
—xxxvii—
[APPEND!X)
equally between teaching and research activities. A course
designated “tractors” which he has taught involves a de-
tailed study of the tractor engine, the chassis, power trans-
mission and control systems. He has also been responsible
for advising most of the graduate students working for
advanced degrees in the area of power machinery. He
has had experience in hydraulic controls and the response
of hydraulic systems to controls. He has authored approxi-
mately 50 publications or articles of a technical nature and
in the past 15 years has testified as an expert witness in
nine cases, certain of which involved hydraulically operated
and controlled machines used in the construction and farm
industries.
114. In preparing himself to testify on defendants’
behalf, Professor Strait studied the patent in suit, its file
history, the various file wrapper references and additional
prior art patents as well as the Curlett ’846 patent. Addi-
tionally, he studied commercial literature, reviewed certain
of his own files, viewed movies, talked with people versed
in the use of curb or formless concrete-laying machines
including the Miller brothers and a contractor and his fore-
man in Bloomington, Minnesota, who were actually using
the Miller Formless machine in laying curb. He was at that
construction site for approximately five hours. He also
spent the better part of a dav at the Miller Formless plant
seeing slip form paving machines being assembled and had
an opportunity to actuate the control systems of the accused
machine in the factory and note the response of the actua-
tion of those control systems.
115. The Court finds that the theoretical and legal
speculations and deductions of Kohls are entitled to little
weight compared to the judgments of Professor Strait based
as they were on a well informed study of the actual opera-
tion of the Miller Model 71 machine.
—xXxxviii—
[APPENDIX)
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and of the
subject matter of this suit. Venue is proper in this district.
2. Plaintiff is the owner, by assignment, of the patent
in suit, United States Letters Patent No. 2,249,026, entitled
“Construction Machines,” issued May 3, 1966.
3. Defendant contends that the ’026 patent is antici-
pated in light of the Allen patent. The Court rejects this
contention. In order for there to be anticipation, it is neces-
sary that the invention and prior art have the same
elements, united in the same way, and performing the same
function. Shelco, Inc. v. Dow Chemical Co., 466 F.2d 613,
614 (7th Cir. 1972). As found above, the two patents are
different and anticipation is not present.
4. The Court also rejects defendants’ claims regarding
invalidity based upon 35 U.S.C. §112, i.e., that the claims
were indefinite. The patent description is definite enough
to instruct a person with ordinary skill in the art as to the
construction of the device and as to the limits of the claims.
5. With respect to the defense of obviousness, under
35 U.S.C. $103, the scope and content of the prior art and
the claims at issue are to be ascertained; and the level of
ordinary skill in the pertinent art is to be resolved. Against
this background, the obviousness or unobviousness of the
subject matter is to be determined. Graham vy. John Deere
Co.. 383 U.S. 1, 17 (1966); Scott Paper Co. v. Fort Howard
Paper Co., 432 F.2d 1198, 1204 (7th Cir. 1970); Deep Weld-
ing, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227, 1232-33 (7th
Cir. 1969); Appleton Elec. Co. v. Efengee Elec. Supply Co.,
412 F.2d 579, 582 (7th Cir. 1969).
6. Courts should scrutinize combination patent claims
with care proportioned to the difficulty and improbability
of finding invention in an assembly of old elements, espe-
cially where all of the claims of the patent in suit are
—-Xxxix—
[APPENDIX]
directed to a combination which merely unites old elements
with no change in their respective functions and which
results in no effect greater than the sum of the effects of
the elements taken separately. Great Atlantic & Pacific Tea
Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152-53
(1950); Anderson’s-Black Rock, Inc. v. Pavement Salvage
Co., Inc., 396 U.S. 57 (1969); Continental Can Co. v. Old
Dominion Box Co., 393 F.2d 321 (2d Cir. 1968).
7. It is a well established principle that a mere carry-
ing forward of a thought, a change only in form, proportions
or degree, the substitution of equivalents which do the same
thing in the same way, by substantially the same means
with better results, is not such an invention as will sustain a
patent. Smith v. Nichols, 21 Wall. 112, 119 (1875); Schreyer
v. Chicago Motocoil Corp., 118 F.2d 852 (7th Cir. 1941);
B. F. Sturtevant Co. v. Massachusetts Hair & Felt Co., 122
F.2d 900, 907 (1st Cir. 1941).
8. The presumption of validity of a patent is rebuttable
and may be substantially weakened, if not destroyed where,
as here, pertinent prior art relied upon by the defendants
was not considered by the Patent Office. Scott Paper Co. v.
Fort Howard Paper Co., 432 F.2d 1198, 1203 (7th Cir. 1970);
T.P. Laboratories, Inc. v. Huge, 371 F.2d 231, 234 (7th Cir.
1966).
9. The machine in suit is obvious in light of the perti-
nent prior art. A person skilled in the art would have found
the combination obvious. See Speakman Co. v. Water Saver
Faucet Co., Inc., F.2d (7th Cir. May 28, 1974).
10. Double patenting exists where the alleged differ-
ences between the claims of the two patents involved do
not rise to the level of patentable invention. Miller v. Eagle
Mfg. Co., 151 U.S. 186, 198 (1894); Weatherhead Co. v.
Drilimaster Supply Co., 227 F.2d 98, 102 (7th Cir. 1955);
Graham-White Sales Corp. v. Prime Mfg. Co., 237 F.Supp.
694, 707 (E.D.Wis. 1964); aff'd per curiam, 343 F.2d 534 (7th
Cir. 1965).
—_— =
[APPENDIX]
11. Co-pending applications on which patents are
granted to the same inventors must not only constitute
invention over the prior art, but also must be patentably
distinct from each other to avoid double patenting. If double
patenting is found, the later of the two patents is invalid.
Weatherhead Co. v. Drillmaster Supply Co., 227 F.2d 98,
101 (7th Cir. 1955).
12. Prior art may be considered in determining
whether the second patent, in this case the ’026 patent, is
a patentable invention over the first. See Application of
Ornitz, 347 F.2d 586 (C.C.P.A. 1965). The prior art in the
present case makes it clear that the exchangeability of one
ram in the middie for two which are linked together
mechanically and operate as one was well known and was
obvious.
13. The filing of a terminal disclaimer, three days
before trial, does not obviate the vices of double patenting
and will not serve as a rebuttal to the double patenting
defense in this case. The 026 patent is invalid for double
patenting. See Hays v. Brenner, 357 F.2d 287, 290 (D.C.Cir.
1966); Sterling Varnish Co. v. Louis Allis Co., 149 F.Supp.
826 (E.D.Wis. 1957); compare M. Hanger, Inc. v. Cut Rate
Plastic Hangers, Inc., 372 F.Supp. 88, 93 (E.D.NY. 1974);
see also Application of Thorington, 418 F.2d 528, 533-34
(C.C.P.A. 1969); Application of Purdy, 393 F.2d 1010 (C.C.
P.A. 1968); C-Thru Prod., Inc. v. Uniflex, Inc., 262 F.Supp.
213 (E.D.N.Y. 1966), aff'd, 397 F.2d 952 (2d Cir. 1968); cf.
United Lens Corp. v. Doray Lamp Co., 93 F.2d 969 (7th
Cir. 1937).
1 Plainciff’s reliance on Techn‘trol lnctruments Corp. v. Coleman Instru-
ments Corp.. 255 FSupp. 630 (N.D. Ill. 1965). afd, 385 F2d 391
(7th Cir. 1967) is misplaced. It should first be noted thar in affirming
the district court, the Court of Appeals did not discuss the double
patenting issue or the validity of the terminal disclaimer. In its deter-
mination of the case, the district court made a number of findings. The
case there differed from the instant case in that it concerned a subcom-
bination patent with a combination patent, whereas the instant case
1 nt
—xli—
[APPENDIX]
14. Invalid patent claims cannot be infringed. Pam-
bello v. Hamilton Cosco, Inc., 377 F.2d 445, 447 (7th Cir.
1967); Toro Mfg. Corp. v. Jacobsen Mfg. Co., 357 F.2d 901,
904 (7th Cir. 1966); Simmons Co. v. Hill-Rom Co., 352 F.2d
886, 889 (7th Cir. 1965).
15. The burden with respect to infringement is on the
plaintiff to prove by a preponderance of evidence. Becker
v. Webcor, Inc., 289 F.2d 357, 360 (7th Cir. 1961); United
States Rubber Co. v. General Tire & Rubber Co., 128 F.2d
104, 108 (6th Cir. 1942).
16. In determining whether an accused device in-
fringes a valid patent, resort must be had in the first
instance to the words of the claim, but mere application of
claim phraseology is not alone enough to establish infringe-
ment since there must be real identity of means, operation
and result. Business Forms Finishing Serv., Inc. v. Carson,
452 F.2d 70, 76 (7th Cir. 1971); Warner & Swasey Co. v.
Held, 413 F.2d 229, 232 (7th Cir. 1969); Skirow v. Roberts
Colonial House, Inc., 361 F.2d 388, 391 (7th Cir. 1966);
North Star Ice Equip. Co. v. Akshun Mfg. Co., 301 F.2d 882,
886 (7th Cir. 1962).
Thus, the claims of a patent cannot be considered in a
vacuum, detached from the description in the patent speci-
fication, but rather must be interpreted in the light of the
patent as a whole, the prior art, and the file history of the
patent. Business Forms Finishing Serv., Inc. v. Carson, 452
F.2d 70, 76 (7th Cir. 1971); Leach v. Rockwood & Co., 404
F.2d 652, 656 (7th Cir. 1968).
17. Since the patent in suit is not of pioneer quality,
but is in a crowded art, and whatever advance made was
of a very narrow character, the patent must be limited on
1 (Continued )
is concerned with the same complete invention. Further. other issues,
such as multiple suits, are possible here. See also Sterling Varnish Co.
v. Louis Allis Co., 149 FSupp. 826 (ED. Wis. 1957).
—xlii—
[APPENDIX}
the issue of infringement to the precise structure disclosed
and claimed. Computing Scale Co. v. Automatic Scale Co.,
204 U.S. 609, 621 (1907); Kennatrack Corp. v. Stanley
Works, 314 F.2d 164, 166 (7th Cir. 1963); Simmons Co. v.
A. Brandwein & Co., 250 F.2d 440, 450 (7th Cir. 1957);
Beegle v. Thomson, 138 F.2d 875, 878 (7th Cir. 1943).
18. Under the doctrine of equivalents, a device in-
fringes if it performs substantially the same function as
the patented device, in substantially the same way, to
achieve the same result. Graver Tank & Mfg. Co. v. Linde
Air Prods. Co., 339 U.S. 605, 608 (1950); Ellipse Corp. v.
Ford Motor Co., 452 F.2d 163, 171 (7th Cir. 1971); Elgen
Mfg. Corp. v. Ventfabrics, Inc., 314 F.2d 440, 444 (1963).
19. What constitutes eauivalency must be determined
against the coniext of the patent, the prior art, and the
particular circumstances of the case. Graver Tank & Mfg.
Co. v. Linde Air Prods. Co., supra at 609; Elgen Mfg. Corp.
v. Ventfabrics, Inc., supra; Fife Mfg. Co. v. Stanford Engng.
Co., 299 F.2d 223, 226 (7th Cir 1962). In the present case,
as fully discussed in the findings of fact, there is not the
identity of means, operation or result, nor performance of
the same function in substantially the same way, required
for there to have heen infringement, even under the doc-
trine of equivalency, assuming, arguendo, the validity of
the patent. ,
20. Claims 3, 5 and 8 of Patent 3,249,026, the only
claims in suit, are each invalid.
21. Defendants’ counterclaim for a declaratory judg-
ment that Patent 3,249,026 is invalid is granted.
22. The accused Miller Formless concrete laying slip
form machines identified as Models 70 and 71 do not in-
fringe either claims 3, 5 or 8 of Patent 3,249,026.
23. The complaint herein is dismissed with costs
awarded to defendants.
Se oe AI eee he nl
a
—xliii—
[APPENDIX]
24. This is not an exceptional case within the mean-
ing of 35 U.S.C. §285 and, accordingly, defendants are not
entitled to an award of attorney fees.
25. Any finding of fact entered herein which may
te construed in whole or in part as a conclusion of law
shall be so deemed and treated as if set forth as a conclu-
sion of law herein and any conclusion of law entered herein
which may be construed in whole or in part as a finding
of fact shall be so deemed and treated.
IT IS SO ORDERED.
ENTERED:
(name illegible)
United States District Judge
DATED: January 23, 1975
—xliv—
[APPENDIX}
May 3, 1966 J. CURLETT ETAL
CONSTRUCTICN MACHINES
Filed July 3, 19¢2
3,243,026
3 Sheets-Sheet 1
“6,
Frie-3 git Ni loge
INVENTORS
SOaN LU ET?
Pav onod 4. GURUS
Ldiarendld dogg
aTTORN.
atuiis
May 3, 1966
Filed July 3, 1962
—xlv—-
[APPENDIX]
J. CURLETT ETAL 3,249,026
CONSTRUCTION MACHINES
3 Sheets-Shest 2
INVENTORS
Sonn Cveik rr
Rarmond 4. Gvaee/b$
_aTTOaN EY
bY
—xlvi—
[APPENDIX]
May 3, 1966 J. CURLETT ETAL
CONSTRUCTION MACHINES
Filed July 3, 1962
Fle e
3,249,026
3 Sheots-Sheot 3
BY
INVENTORS
JSown CvelL@er>
Rarreonod A. GURRES
QiwmcAh “x35
ATTORNEY
ee ee,
een ee ee ee eee reer
st i Rd ets Heth we
OR ok. Rat wee 2 to Nees awk
—xlvii—
[APPENDIX]
. 3,249,026
United States Patent Office Patented May 3, 1966
[column] ]
3,249,026
CONSTRUCTION MACHINES
John Curlett, Los Gatos, and Raymond A. Gurries, San
Jose, Calif., assignors to Gurries Manufacturing Co.,
San Jose, Calif., a corporation of California
Filed July 3, 1962, Ser. No. 207,207
8 Claims. (Cl. 94—46)
This invention relates to construction machines par-
ticularly useful in connection with the construction of
roads, canals, trenches and the like. More particularly,
the invention relates to an improved and simplified auto-
matic control system for maintaining the desired slope
and grade of the construction tools as the machine pro-
ceeds along a selected path regardless of the existing grade
and slope of the path. This application is a continuation-
in-part of our application Serial No. 110,087 filed May 15,
1961.
Construction machines of the type to be described are
utilized to a great extent for such operations as prepar-
ing road beds by scraping, laying one or more sub-bases
and kases thereon and finally surfacing the road with black
top and concrete.
Reduced to basic essentials, such construction machines
comprise: a main frame for carrying one or more appro-
priate road building tools such as strike-off blades, con-
veyor screws, scrapers, hoppers, levelers, ground engage-
ment or traction means such as wheels or endless tracks;
and adjustable support means for supporting the main
frame upon the traction means.
Since the traction means are in direct contact with
the ground where the grade, slope and general surface
—xlviii—
(APPENDIX)
conditions are usually different from the road surface level
to be constructed and are irregular, and since the road
building tools are carried by the main frame, adjustable
frame support means are utilized to maintain the plane
of the main frame and thereby the road building tool ac-
curately at a predetermined plane eflecting a desired
grade and slope irrespective of the grade, slope and irregu-
larities of the ground engaged by the traction means. Of
course, if the irregularities of the ground are very great,
the demands made upon the adjustable frame supports may
be somewhat reduced by utilizing angle blades mounted
to the front of the main frame and maintained at the level
of the working tool to precut a path over which the ground
traction units may move.
The term “grade” as used herein refers to the elevation
of the path traversed by the construction machine in the
direction of travel, ie. along the road. The term “slope,”
also known as “cross-grade,” as used herein refers to the
inclination of the path traversed by the construction ma-
chine in a direction perpendicular to the path of travel,
i.e., across the road.
A typicai adjustable main frame support means of
prior art construction machines comprise four hydraul-
ically operated rams connected to, respectively, the four
corners of the main frame and to the traction means. Each
of the hydraulic rams is controlled independently of the
other hydraulic rams either manually by an operator or
automatically by reference means such as two grade wires,
two grade surfaces or a combination thereof disposed along
and outside the road bed to be constructed. In this man-
ner, each of the four corners of the main frame is main-
tained at a selected height with respect to the respective
reference means.
These prior construction machines, because of their
four corner control, have certain inherent operational limi-
tations with respect to their stability, versatility and effi-
Pn eeRtes beeen. 4 Md OD Make dal ot cartel MC oR re I ne er a ee ete
—-xlix—
[APPENDIX]
ciency. As fully explained in the above referred to co-
pending application, it is necessary to provide two guide
levels, one along each side of the road, to control the
[column] 2
grade and slope of the tool-carrying main frame. Further-
more, four independently servo operated corner supports
provide what may be termed a four point suspension sys-
tem. Since only three of the four frame supports can
operate at any one time to determine the plane of the main
frame, one support is generally not supporting its associated
corner. Of course, such an unsupporting corner of the main
frame will be at the proper height due to the action of the
other three supports, but its support will not carry its por-
tion of the weight of the frame wheu the ground is uneven
and drops away since there can be no servo action as long
as the main frame is in its required plane. Consequently,
the full load of one side of the frame is then carried by
a single active support means designed to carry only one-
half of the load. Further, this extra weight thrust upon
the active support causes a variation of compaction under
the traction means to which it is connected and this extra
downward movement of the main frame requires correc-
tion to bring the main frame back to its proper plane.
Since the support of the main frame shifts continually to
a different set of three rams, there is extra duty put upon
the control system which detracts from the accuracy at
which the main frame can be maintained in the desired
plane.
The above referred to copending application describes
a construction machine which overcomes many of the
limitations of the prior art by effectively providing a three-
point main frame support utilizing four hydraulic rams.
Three point suspension is obtained by operating two
hydraulic rams along one side of the main frame in parallel
by a single control valve which may be actuated either by
a level guide along that side of the machine or by a pendu-
lum operated servo valve. The side of the machine having
a
[APPENDIX]
its two hydraulic rams operated in parallel controls the
slope of the main frame as fully explained in the copending
application.
The present invention involves a further simplification
of the invention described in the copending application by
providing a three point suspension system for the main
frame upon a four cornered traction means by utilizing
three hydraulic rams, one of which is constructed to bear
a double load. Each hydraulic ram is provided with its own
control for automatically maintaining the plane of the main
frame to reflect desired height, grade and slope.
By “four cornered traction means” is meant traction
means which supports the frame at four points as in a
four wheeled vehicle, but it is intended to include, also,
endless track and skid-type traction means.
It is an object of this invention to provide a simple
and stable support system for supporting the main frame
(or the tool if supported independently of the main frame)
of a construction machine upon its traction means.
It is a further object of this invention to provide a
construction machine for building roads, canals, ditches or
the like in which the height and grade of the moving tools
is automatically controlled by a grade level maintained
along to one side of the path to be traversed by the machine
and in which the slope is controlled either by a gravity-
operated sensor or by a second grade level.
It is another object of this invention to provide a sim-
plified road building machine having greatly improved
stability and versatility, which is more economical to op-
erate than those known heretofore and which distributes
the weight of the main frame so that each support means
carries a constant predetermined portion of the
It is still another object of this invention to provide a
road building machine which includes a more simplified
automatic leveling mechanism for supporting the main
anlin
[APPENDIX]
[column] 3
frame, during its advance, at a predetermined and accu-
rately held plane and height regardless of variations in the
grade, slope or height of the ground traversed.
In accordance with a preferred embodiment of the road
building machine of this invention, the adjustable main
frame support means associated with the front and back
of one side of the main frame each include a hydraulic
ram constructed to support about one-quarter of the load.
The rams are conventionally controlled, that is, each of
these two hydraulic rams has its own control valve with
its own valve actuating member which is actuated either
directly, or indirectly as through micro switches of sole-
noids, by engagement with a level guide placed along one
side of the road to be traversed. The other side of the
main frame is connected to an adjustable main frame
support means which includes but a single hydraulic ram
constructed to support about one-half of the load. The
double-duty ram is controlled by a control valve whose
actuating member is actuated to provide slope control
either by directly or indirectly engaging a second level
means or a gravity sensor such as a pendulum.
Other objects and a fuller understanding of the inven-
tion may be had by reference to the following description,
taken in conjunction with the accompanying drawings,
in which:
FIG. 1 is a top view of the construction machine of
this invention, certain conventional parts of the superstruc-
ture having been omitted for greater simplicity;
FIG. 2 is a side elevational view of the right side
(looking forward) of the construction machine of FIG. 1;
FIG. 3 is a view taken along line 3—3 of FIG. 1 and
shows the left side (looking forward) of the construction
machine.
—lii—-
(APPENDIX)
FIGS. 4 and 5 are views similar to that of FIG. 3, show-
ing further embodiments of the left side of the construction
machine of this invention.
FIG. 6 is a schematic hydraulic flow diagram of the
control system of this invention; and
FIG. 7 is a perspective view of a schematic control
svsiem useful in explaining the operation of this invention.
Referring now to the drawings, in which like reference
characters designate like parts, there is shown a construc-
tion machine 9 which incorporates the present invention.
Machine 9 comprises a main frame 10 having vertically
extending side frame members 12 and 14, two vertically
extending cross frame members 16 and 18 for connecting
side frame members 12 and 14 to one another, and two
horizontally exiending webs or ribs 20 and 22 for strength-
ening the connection between cross frame member 16 and
side frame members 12 and 14 for additional rigidity of,
main frame 10.
Suspended between and carried by side frame mem-
bers 12 and 14 (either directly or indirectly) are road
building tools such as striker blade 24 and conveyor screw
26. During operation of machine 9, these tools or at least one
of them are in contact with the ground and build the road
or dig the channel or lay the base or sub-base or perform
some other operation. Of course, a large number of dif-
ferent road building tools may be substituted for or added
to blade 24 and screw 26 depending on the particular op-
eration to be performed. In some instances, many different
tools are mounted in vertically ¢djustable mounts to be
selectively lowered for ground engagement to perform
certain well-known operations. In the case of laying base,
asphalt or concrete, appropriate hoppers are carried by
main frame 10 carrving the desired material to be deposited
upon the road bed.
—hii—
[APPENDIX]
Four traction means 30, 31, 32 and 33 associated re-
spectively with the front and rear of each side of main
frame 10 serve to support and to propel main frame 10
over the ground to be worked. In the embodiment shown
in FIG. 1, traction means 30, 31, 32 and 33 may comprise
spoke wheels engaging endless tracks 34 and 35. Wheels
30, 31, 32 and 33 are mounted upon short axles 37, 38,
39 and 40. Axles 37 and 38 are rotatably journaled in bear-
[column] 4
ings mounted in the end portions of a right side track frame
41, as best seen in FIG. 2. Similarly, axles 39 and 40 are
rotatably journaled in bearings mounted in the end portions
of a left side track frame 42, as best seen in FIG. 3.
It is within the contemplation of this invention to
utilize other traction means, such as coarsely treaded tires
mounted on wheels such as wheels 31, 32, 33 and 34; flanged
wheels running on rails; or skids. Drive units for propel-
ling construction machine 9 over the ground may be pro-
vided in the form of individual engines 44 and 45 mounted
respectively upon track frames 41 and 42. The drive shafts
of engines 44 and 45 may be connected by means of appro-
priate chain gears 47 and 48 respectively to suitable
sprockets rigidly mounted upon shafts 30 and 32 respec-
tively. Of course, other means of provulsion may be utilized
such as, for examonle, a tractor pulling the machine 9. Since
various forms of frame construction, traction means and
drive unit may be employed, no further particulars thereof
are deemed necessary.
Referring now particularly to FIGS. 1 and 2, there is
shown at right hand side adjustable main frame support
means for connecting support axles 37 and 38 respectively
to the front and rear of ‘*e right side of construction
machine 9. Axle 37 engages, at each of its ends, one
arm of a pair of rocker brackets 50 which are pivotally
mounted, by means of a bracket 51, to a bolster 52 bolted
or otherwise affixed to main frame 10. The other arms
—liv—
[APPENDIX]
of rocker bracket 50 are connected by a cross member 50a
which is pivotally mounted to a plunger 53 of a hydraulic
ram 54 also mounted to bolster 52 by means of a bracket
55. Similarly, axle 38 is rotatably supported, at opposite
ends, by a pair of links 60, the other end of which are con-
nected to a cross member 61. Cross member 61 pivotally
engages one arm of a pair of rocker brackets 62, which
are pivotally supported in a bracket 63 extending upwardly
and rearwardly from a bolster 64 rigidly mounted on main
frame 10. The other end of rocket brackets 62 are pivotally
connected to a plunger 65 of a hydraulic ram 66 which is
pivotally mounted on a bracket 67 extending upwardly
from bolster 64.
The combination of each hydraulic ram and its asso-
ciated linkages is referred to as adjustable main frame
support means. It is immediately apparent from FIG. 2 that
as hvdraulic ram 54 extends the rear right corner of main
frame 10 is raised due to rotation of rockers 50. Likewise,
a contraction of hydraulic ram 66 causes the right front
corner of main frame 10 to be lowered due to clock-wise
rotation of rocker arms 62. In general, extension of each of
the rams 54, 66 will cause movement of the frame in one
vertical direction and retraction will cause vertical move-
ment in the opposite direction, thereby raising or lowering
the respective corner of the frame.
Referring now to FIGS. 1 and 3, there is shown the
adjustable main frame support means for connecting the
left side of main frame 10 to traction means 32 and 33.
Left rear axle 39 is pivotally connected by means of a pair
of links 70 and bracket 71 to a bolster 72 rigidly mounted
to side plate 12 of main frame 10. The center of track frame
42 is straddled by and pivotally connected to one end of
a pair of links 73, the other end of which pivotally engage
a rocker arm 74 pivotally mounted in a bracket 75 rigidly
affixed to side plate 12. The other arm of rocker arm 74 is
pivotally connected to a plunger 76 of double duty hy-
Laat titel
soe
|
(APPENDIX)
draulic ram 77. The main body of ram 77 is pivotally con-
nected to a bracket 78 mounted upon bolster 79 rigidly
affixed to said plate 12.
As is immediately apparent by inspection, links 70 pull
main frame 10 as track frame 42 is propelled forward by
traction means 99. Also, the relative height between the
left side of main frame 10 and track frame 42 is deter-
mined by the angular position of rocker arm 74. If straddle
links 73, connecting rocker arm 74 to track frame 42, are
supported and secured to take side loads (loads perpen-
dicular to side plate 12) then the front end of track frame
[column] 5
42 may be left unsupported as shown. In case no side loads
can be taken by links 73 or in case additional supports
against side loads are desired, a further pair of links may
be utilized to secure the front of track frame 42 to side
place 12 in the manner shown and as described hereinafter
in connection with FIG. 4.
In operation, extension of hydraulic ram 77 causes
counterlockwise rotation of rocker arm 74 which raises the
entire left side of main frame 10 and more particularly
side plate 12 with respect to track frame 42. Likewise, upon
retraction of hydraulic ram 77, rocker arm 74 rotates clock-
wise causing lowering of side plate 12 with respect to track
frame 42.
Also mounted upon main frame 10 are three valves
110, 111 and 112, as will be more fully explained in connec-
tion with FIG. 6. Valve 110 has a control lever 120 which
is mounted to the re. = right side of main frame 10 to con-
trol ram 54. Valve 111 has a control lever 121 which is
mounted to the front right side of main frame 10 to control
ram 66. Valve 112, which has a contro] lever 122, is mounted
centrally along the left side of main frame 10 to control
ram 77.
FIG. 4 shows a further embodiment of an adjustable
main frame support means for supporting the left side
—lvi—
([APPENDIX])
of main frame 10 (or more specifically, side plate 12)
upon traction means 32 and 33. Rear axle 39 is connected
to bolster 72 by means of links 70 in the same manner
shown and described in connection with FIG. 3 so that
links 70 pull main frame 10 forward. Front axle 40 is
pivotally connected by means of a first pair of links 85
which in turn are pivotally connected to the ends of a
second pair of links 86. The other ends of links 86 are
pivotally mounted on bracket 87 fixedly attached to side
plate 12 by way of a bolster 88. The function of links 85
and 86 is ‘» take side loads and to keep track frame 42
parallel to side plate 12.
A link 89, which straddles track frame 42 and is
pivotally connected thereto, has its other end pivotally
connected to a plunger 92 of a double duty hydraulic ram
90. Ram 90 is rigidly affixed to side plate 12 by means of
hrackets 91 which extend outwardly from side plate 12.
As ram 90 extends, it raises bracket 91 and thereby side
bedy plate 12 with respect to track frame 42.
FIG. 5 shows still another embodiment of an adjustable
main frame support means for supporting the left side of
main frame 10 with respect to track frame 42. In this
embodiment, a bracket 93, rigid with side plate 12, is pro-
vided for pivotally mounting thereto a double duty ram 94.
The plunger 96 of ram 94 is provided with a link 95 which
straddles track frame 42 and is pivotally connected thereto.
Rear axle 39 (see FIG. 4) may be fastened to pull main
frame 10 in the same manner as shown in FIGS. 3 and 4.
FIG. 6 shows the hydraulic flow diagram in which the
three hydraulic rams 54, 66 and 77 are placed to corre-
spond with the placement of the rams in the top plan
view of FIG. 1. The hydraulic fluid system for operating
the three hydraulic rams includes a tank 100 for holding
hydraulic fluid, a pump 101 connected thereto to develop
hydraulic pressure, and a conventional regulator and by-
pass valve 102 connected across tank 100 and pump 101.
—lvii—
[APPENDIX]
Tank 100, pump 101 and valve 102 define a constant hy-
draulic fluid pressure system which supplies hydraulic fluid
at a predetermined constant pressure to a hydraulic pres-
sure line 103.
Hydraulic pressure line 103 is connected to the input
port of hydraulic contro] valves 110, 111 and 112 and pen-
dulum valve 113. Valves 110, 111, 112 and 113 may be of
the three-way closed-center type in which a central
plunger communicates the center port either with the
high pressure input port or with the low pressure output
port. The center port therefore permits flow in either
direction; i.e., high pressure from the high pressure input
port to the center port when the plunger is in one of its
two positions, and low pressure from the center port to
[column] 6
the low pressure output port when the plunger is in the
other of its two positions. Since the particular valve may
be of conventional design, no further description thereof
is deemed necessary.
As previously stated, high pressure line 103 is con-
nected to the high pressure input ports of control valves
110, 111 and 112 and also to the high pressure input port
of a pendulum valve 113. The center ports of control valves
110 and 111 are connected, respectively, to hydraulic rams
54 and 66. The hydraulic rams are extended by the intro-
duction of hydraulic fluid under high pressure and are
retracted by the removal of hydraulic fluid under low
pressure. A low pressure return line 105 is connected be-
tween the low pressure output ports of contro! valves 110
and 111 and hydraulic fluid tank 100.
The center ports of control valve 112 and pendulum
valve 113 are connected to the two input ports of a con-
ventional three-way selector valve 114 which has a single
output port and which may be manually operated. The
output port of selector valve 114 is connected to hydraulic
ram 77. In this manner, selector valve 114 controls whether
—lviii—
[APPENDIX]
the center port of control valve 112 or of pendulum valve
113 communicates with hydraulic ram 77. Return line 105
is also connected to the low pressure output port of valves
112 and 113.
Valves 110, 111 and 112 are actuated by control levers
120, 121 and 122 respectively, which are connected either
directly or indirectly to the center plungers of the valves
in a manner well known to those skilled in the art. By way
of example, contro] levers 120, 121 and 122 may be in
engagement (directly or indirectly) with grade wires 125
and 126 as shown in FIG. 1 (or with grade surfaces such
as pre-fabricated slabs) which are accurately set to a pre-
determined relation to the grade on each side of the road.
Wires would be supported at intervals at a predetermined
level by stakes or brackets (not shown) in a manner well
known in the art. As machine 9 advances with control
levers 120, 121 and 122 engaging, for example, grade wires
125 and 126 any change in the level of main frame 10 with
respect to wires 125 and 126 causes the control levers to
actuate their respective valves to return main frame 10 to
its proper level in relation to wires 125 and 126.
The height of the side associated with hydraulic ram
77 is controlled by lever 122 of control valve 112. If control
lever 122 is in engagement with a lever control means such
as grade wire 126, it will cause the center of that side of
the main frame to corresnond to the height of grade wire
126.
FIG. 7 is an illustration of the particular control pro-
vided by rams 54, 66 and 77. Rams 54 and 66 respectively
support the rear and front of the right side of main frame
10 upon track frame 41 which is provided with a driving
endless track 34. Ram 77 supports the center of the left side
of main frame 10 upon track frame 42 which is provided
with a driving endless track 35. The level of main frame 10
is determined solely by the rams 57 and 66. More particu-
larly, as main frame 10 passes over uneven ground the
— —s —
—lix—
[APPENDIX]
desired level is maintained by keeping main frame 10 at a
predetermined height in relation to the right hand grade
wire with the aid of rams 57 and 66.
The cross slope, that is the angular inclination of main
frame 10 transverse to the direction of motion, is main-
tained solely by ram 77. More particularly, ram 77 is
continually adjusted by a slope control means to provide
main frame 10 with the desired slope.
An important advantage realized with the control sys-
tem of this invention, in addition to increased stability,
is that the cross grade may be set by either the pendulum
valve 113 or by the lateral template controlled valve 112.
Pendulum valves are valves actuated by a pendulum which
always assumes a vertical position because of gravity forces
acting thereon. Valve 113 is set in such a way that the
pendulum closes the valve for a predetermined angular
[column| 7
position of the valve body (slope) and opens the valve
when the valve body angle differs from the predetermined
angular position. Depending upon the direction of deviation
hydraulic fluid is introduced into or is removed from the
ram 77. Such a pendulum valve is fully described and
claimed in U.S. Patent No. 2,934,078 entitled “Pendulum
Controlled Valve.”
By way of summary, the road building machine of this
invention may have the height of its tool carrying main
frame adjusted in a number of ways. The right side of
the main frame is controlled by valves actuated by a lever,
or the like, which is operated by a grade wire along the
side of the road or by a gauge wheel running on a pre-
formed slab laid along the side of the road. In case of
multiple lane roads, grade wires are strung first to provide
for the proper level of the first lane. Thereafter, the first
lane may be used to provide the grade level guide and the
valve actuating mechanism actuated by a gauge wheel
engaging the first lane surface. Suitable grade wire-
—
[APPENDIX]
operated and gauge wheel-operated mechanisms are well
known in the art and are shown in our copending applica-
tion Serial No. 198,392, filed May 11, 1962, entitled “Auto-
matic Level Control System For Construction Machines.”
The other side of the tool carrying main frame, with
its single ram, provides slope control. Slope control may be
obtained in any of several ways. For example, the actuating
lever 122 of valve 112 is in engagement with a grade wire
strung along the other side of the road. Alternatively the
valve 112 is onerated by a gauge wheel running on a pre-
formed slab. A third wav comprises the use of the gravity
operated pendulum valve 113, as explained hereinabove.
Any method of controlling the height of one side may
be combined with any method of control of the other side
of the main frame with equally good results. For example,
one side may be controlled by means of gauge wheels
engaging a preformed slab while the other side may be
controlled by a lever engaging a grade wire; or the height
of the main frame may be controlled with grade wires
running along both sides of the road, these grade wires
heing in engagement with levers for controlling the valves.
There has been described a novel road building ma-
chine in which the tool carrying main frame is provided
with a three-point suspension with ‘he aid of two standard
and one double duty hydraulic rams for greater stability
and versatility of operation. Two suspension points are the
front and back of one side of the main frame and the third
suspension point is substantially at the midpoint of the
other side of the main frame.
In the description hereinabove frequent reference is
made to “road building” and to “road building machines.”
It will be understood that the invention has wider appli-
cation. For example it can be applied to earth working
and ‘or paving machines used for such purposes as airport
construction, slab construction, agricultural purposes, canal
lining, etc.
aad we a
—lxi—
[APPENDIX]
What is claimed is:
1. A construction machine c mprising: a main frame;
at least one working tool carried by said main frame for
ground engagement; a pair of ground engagement means
disposed on opposite sides of said main frame, each engag-
ing the ground at positions spaced in the direction of
travel; a pair of main frame support means connecting
opposite sides of said main frame to respective ground
engagement means adjustably supporting said main frame
thereon, one of said main frame support means including
two fluid pressure operated rams connected to said frame
at spaced points and the other of said main frame support
means including one fluid pressure operated ram pivotally
joined to one of said ground engagement means substan-
tially centrally thereof relative to its direction of travel;
a fluid pressure and return system connected to said rams;
and normally closed valves disposed between said system
[column] 8
and each of said rams and carried by said main frame, each
valve including a valve actuating means disposed and
formed for engagement with a level control] means disposed
along and outside opposite sides of the path of said con-
struction machine.
2. A construction machine comprising: a main frame;
at least one working tool carried by said main frame for
ground engagement; a pair of ground engagement means
disposed on opposite sides of said main frame, one of said
ground engagement means being adapted to engage the
ground at positions spaced in the direction of travel; a
pair of main frame support means connecting opposite sides
of said main frame to respective ground engagement means
for adjustably supporting said main frame thereon, one of
said main frame support means including a pair of inde-
pendent linkage means for respectively connecting the
front and rear of one side of said main frame to the front
and rear respectively of the associated ground engagement
—lxii—
[APPENDIX]
means, the other of said main frame support means includ-
ing a further linkage means pivotally connecting the mid
portion of the other side of said main frame to the mid por-
tion of the associated ground engagement means; fluid
pressure operated rams included in each linkage means;
a fluid pressure and return system connected to said rams;
normally closed valves disposed between said system and
each of said rams and carried by said main frame, each
valve including a valve actuating means disposed and
formed for engagement with a level control means disposed
along the side of the path nearest to the side of said main
frame whose height it controls; a gravity operated valve
carried by said main frame and connected between said
system and the ram in said other main frame support
means; and a three-way selector valve connected between
the valves operating the last-mentioned ram for selecting
one of last-mentioned valves for communication with the
last-mentioned ram.
3. A construction machine comprising: a main frame;
at least one working tool carried by said main frame for
road engagement; a track frame on each side of said main
frame; an endless track mounted upon each track frame
and extending longitudinally thereof in the direction of
travel; propulsion means engaging each of said endless
tracks for moving said machine; main frame support means
connecting each side of said main frame to one of said
frame tracks, one of said support means including a pair of
hydraulically operated rams including linkage means for
respectively providing vertical adjustment means for the
front and rear of one side of said main frame, the other
of said support means including a single hydraulically op-
erated ram and linkage means for pivotally connecting
the other support means between a mid portion of said
track frame and said main frame for providing vertical
adjustment means for the other side of said main frame;
« hydraulic pressure and return system connected to
said rams; valve means disposed between said system
ino xetinds
i ee
hig 0
~~ Se
—)xiii—
[APPENDIX]
and each of said rams and carried by said main frame;
valve actuating means included in each of said valves, the
valve actuating means associated with said pair of rams
being disposed for engagement with a grade control means
disposed along one side of the path to be traversed by said
construction machine and the valve actuating means asso-
ciated with said single ram being disposed for engagement
with a slope control means.
4. A construction machine in accordance with claim 3
in which said slope control means comprises a level means
disposed along the other side of said path.
5. A construction machine in accordance with claim 3
in which said slope control means comprises a pendulum
means carried by said main frame and movable in a plane
transverse to said path.
6. A construction machine comprising: a main frame;
a working tool for road engagement carried by said main
frame; traction means extending longitudinally in the di-
rection of travel on either side of said main frame; first
and second main frame support means connecting the
[column] 9
front and rear of one side of said main frame to one of
said traction means, third main frame support means pivot-
ally connecting the other side of said main frame to the
other of said traction means, each of said main frame
support means including a hydraulically operated ram for
changing its effective vertical length; first, second and third
normally closed control valves mounted to said main frame
and associated respectively with the rams of said first,
second and third support means; a pendulum operated
valve responsive to changes of the slope of the said main
frame from a preselected slope mounted to said main
frame; a three-way selector valve; a hydraulic fluid pres-
sure and return system connected to said control valves
and said pendulum valve, said valves including valve actu-
ating means; said third valve and said pendulum valve
—lxiv—
[APPENDIX]
both being connected to said selector valve and said selector
valve being connected to operate the hydraulic ram of
said third support means in response to said third control
valve and said pendulum valve in accordance with the
position of said selector valve, said first and said second
control valve being connected to independently operate
the hydraulic rams associated with said first and second
support means, the actuating means associated with said
first and second control valves being formed and arranged
for engagement with a grade control means disposed along
the associated side of the path traversed by said construc-
tion machine, the actuating means associated with said
third control valve being formed and arranged for engage-
ment with a slope control means disposed on the other
side of the path traversed when said selector valve is com-
municating with ram associated with said third support
means with said third control valve.
7. A construction machine in accordance with claim 6
in which said third main frame support means comprises:
a cam lever pivotally journaled to said main frame, one
end of said cam lever being pivotally connected to one end
of the associated ram, the other end of the associated ram
being pivotally connected to said main frame; link means
fecolumn|] 10
pivotally connecting the other end of said cam lever to
the associated traction means; and at least one further
link means pivotally connecting one end of said traction
means to said main frame.
8. A construction machine comprising a frame, a
working tool carried thereby, a pair of ground engagement
means Cisposed adjacent opposite sides of said frame for
accommodating transportation thereof, a vair of frame
support means connecting opposite sides of said frame to
respective ground engagement means adjustably support-
ing said frame thereon, one of said frame support means
including a pair of extensible members connected to said
—lxv—
[APPENDIX]
frame at spaced points, the other frame support means
being pivotally connected to one of said ground support
means substantially centrally thereof and including a single
extensible member, actuating means operatively connected
to said pair of extensible members including a control lever
adapted for operative engagement with an exterior grade
contro] reference disposed along a path to be traversed by
said construction machine, and actuating means for said
single extensible member operative to control the trans-
verse slope of said frame relative to said path.
References Cited by the Examiner
UNITED STATES PATENTS
2,844,882 7/1958 Farley.
2,864,452 12/1958 Guntert.
2,883,594 4/1959 Alberts - _ 318—489
3,029,716 4/1962 Shea | ... 94 46
FOREIGN PATENTS
1,010,980 6/1957 Germany.
CHARLES E. O’CONNELL, Primary Examiner.
JACOB L. NACKENOFTF, Examiner.
N. C. BYERS, Assistant Examiner.
CERTIFICATE OF SERVICE
This is to certify that three copies of the foregoing
Petition for Writ of Certiorari were mailed first class, post-
age prepaid, to Theodore Anderson and Jim Dowdall of
Neuman, Williams, Anderson & Olson, 77 West Washing-
ton Street, Chicago, Illinois 60602, on this _._... day of
June, 1976.
JERRY J. DUNLAP
Attorney for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.