Petition for Writ of Certiorari — Nugey v. Oliver Manufacturing Supply Co.

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W532 5 ae oct 7 a6 -

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Peer sae 3 a ante 3

~ 7 ) re IN THE. . | -

Supreme ‘Coixtt af the Awited States

October Term... 1963

—————————— —

ANTHONY L.. NUGEY,

‘ , Petitianer,

~ OLIVER WANUFACTURING SUPPLY. €O., a éorpera-

tion of | New Jersey, and VWAMIE re! EGRING©,

Exeentrix of the Estate of PA PSY PEELEEGRINGO,

Respondents,

—_—_

PETITION FOR A WRIT OF CERTIORARE TO THE

— UNITED ST LTES COURT -OF APPEALS FOR

THE ae eel

Awtrioeny LN GEY, :

oo ; Petitioner, .

12741 Pierpont Street,

Raliway, New Jersey.

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> MAXIMILIAN: Bante, \

L. Warton Baper. As : ae,

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Lopem APPEAL PaesS, INn¢., 41 VESES, STREET. New York, N. ¥. W Orth 2-0689

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Citation of Opinions Below csesre707°""" eee ren

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Jurisdietion .---- oo a vawees seoes Je cum peneee® 1

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Facts’ ..+++*: veecagee*g? bs see eoaeee res oce¥ee yon z

i Argument Relied on for Reliance of Writ ..teeeee 3

Cone]usion «++ eee => een

* APPENDIX? Ni : .

Opinion ‘of United States Court of Appeals for —

the Third £ ireuit By gwaesaee ere fe}

| - Judgment of the’ ‘United States Court of Ap-

pr eae peals for the Third Cireuit ...eere 17

Judgment, of the Court of kppenls for the. a

or Third Cirenit Denying Potions” *s Peti- SF ips

eee on tor Rehearing .. ey Se a ied 18.-

CASES CITED

Atlantic & pit ‘fie Tea Co. v. Supermarket Equip- ;

ment Corp. 340.0. S. 4 inane uuereass* a

“Copense- Mfg. Co. ¥: American Photocopy Equip-

ment Company. ‘ogg Fed. (2nd) TTD cedecvere ; Dd o

Se Se ee

ee ay oe de es eg paar

Glus v. Brooklyn Eastern District Terminal, : 309 :

ae i Eee eeegieeawiaaes mcteke 7

‘ Graver Tank & Mfg. Co. v. Linde Air Products: a

IE ois sr asvegesssage eas 6

Gross v. J. F. “D. Mfg..Co., Ine., 314 roe (2nd) 196 Me

Leiter Minerals, Ine. v. U.'S., 352 U. s. 220°... oe

Morales v. City of Galveston, 370 U.S. 165 “ ae ae 7

Porte rev. "Aetna Casualty: & Surety Co., 370 U S.

ics Vata ravens sas eee bes sesceeeeees 7

| boalibwenene Sugar & Molasses Co. ‘v. Riv er Ter-

minals Corp., 360 uv. S.:411 ..s... iionaeeegus ees

Turnbow v. C. LR, 368 U, 8 887 «0, SEO 7

U. S:'v. Uniop: Pacific Railroad: Co... 353 U. | 112° 7

| .STATUTES CITED

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ie Oe OF :.):.:..... Rie AUR ree

e. °

} IN THE

Supreme Court uf the Huited Stats

-OctosrR _— 1963

— o—_-—_—__——_-- —

. AntHony L. Nucey,

; .. Petitioner,

vs. " 4y?

le

Or VER — FACTURING “Suppiy Co, a corporation of New

Jersey, and Mamie PE LLEGRINO, Executrix of. the Estate

of Patsy PELLEGRINO, ern eter P)

° ae a — ee : D 2 # = ? x Respondents.

wt atl ~ & ;

—. $$$ -— ; . Fa

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR’

= '

eee _ <THE THIRD CIRCUIT Ef :

To the Supreme Court of the United States: eS

“Anthony L. Nuvéy,. of Rahway; New Jorsey prays that

a Writ of Certiorari issue to review the ghdement of the

ie United States hewn. Appeals enteredzon June 19, 1963.

"We / SY

/ Fd .

Citation of Opinions Below.

_ (See Appendix)

Fag 7 Jurjédiction a

Rica of . ~~ bncit is based upon »suUS. G.

1254(1). . = : :

“On June 19, 1963 the U nitedd States Court of Appeals.

. for the Third Ait entered, : a judgment affirming al

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_aetoeniyation of the United ‘States - piatriet Court for

the ‘District of ‘New Jersey filed June ‘24, 1960, . which

judgment held United States Patent Xo. 2,075, ss in. suit

therein invalid: , : a ee

Petitioner, on June 2, 1963, requested an extension of

time to. file a. Petition ~ for Re. Hearing, to the United

States Court of Appeals for the Third Gireuit: On July

8, 1963 the U nited States Court of Appeals, granted petiy >

tioner. hantil - July 19.. 1963 to file his Petition ‘for. Re/

Hearing. Said Petition for Re- Hearing was duly filed

and: on August 5: 1965 the: Unitéd States Court of Ape

peals denied petitioner’s . Petition. - The instant: Petitian

for a Writ of Certioral is filed within ninety (90) days

’ from the date of the | ys foresaid denial ot suid Petition

for Re- ‘Hearing.

; Facts —

. =! : * z .

Pet Stioner Anthony L. Nucey, having ee forty (40)

years” experience | im _professional el pyincering develop-

ment ihelndims oil. refineries. food gulants. clay plants and *

beverage plants, a. licensed professional engineer im the

States of - Connectiett, New Norky New Jersey,” ~Pennsy!-

«Vania, North 4 Carolina “and - 10, tho slewctopet of a num:

her of products including enzsare products, cinder blocks,

ceramic ware, dries. and the like. and the «| holier ol

“Lapproximately ten (10) issued United . States patents,

developed a novel apparatits ‘for the guring’ of cinder

blocks (Joint APE ndix Page 9a).

?

This novel ‘apparatus was sommunicated by Nugey to

the defendant: -Pellegrino who was subst! antially the sole.

owner of the corporate defendant. De foadant Pellegrive,

on information and’ belief, had been conv icted Of. criminal

prcome tax ev asion during the course of this action (Joint

.

.

3

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a o>. at

‘ F . a oo 3

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; Appendix Page 21a). After communication of the afore-

‘said invention by Nugey to Pellegrino,. Pellegrino manu-

;) factured an estimated: seventy-five million (75,000,000):

‘einder blocks utilizing Nugey’s apparatus and. obtained

a profit estimated at SeVen Million Five Hundred Thou-

sand Dollars ($7, 200,000.00) (Joint Appendix Page 127a).

Nugey patented the apparatus involved which is disclosed

in-the patent in suit. 4 oe

.

Upon defendant's failure to compensate Nugey. for the

use of his patented invention ‘Nugey brought the instant .

-action.. The District Court found the patent jnvakd as:

anticipated ‘by a combination of prior art, references, the

Court of Appeals affirmed, and this. Petition for a Writ

of Certiorari has been. filed in this Court to review the

‘ determination below. eee ee ee ay

7

Argument Relied on for Reliance of Writ

The. instant application brings ur a question which. is

pelieved to be of substantial and controlling importance.

Pursuant . to the ‘coustitutional provision Congress has:

the right to grant patents to inveptors for their inver-

tions and discoveries.- In. 1952 the varjous - patent laws

were codified in 35 UL S.C. and, since it is admitted by

the Opinions below that the precise etrueture utilized by

‘ Nugey- is not found in a single reference, reliance for

the determination of invalidity below must be; found ‘in

35 U.S.C. 103. This section reads as follow8:,

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‘Sy “+A patent may not ‘be obtained though the in-

Ce kention is ‘not identically disclosed or deseribed

as set forth in 102 of this Title, where the differ-

ences between the anbject matter songht to be

patented) and the prior wrt are sich that the sith-

ject. matter as a whole would have heen obvious, at

ag s

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c

The

4°

the time the tevenition was made‘to a ‘person hay-

ing: owlinary skilljin the art to which said subject -

“matter pertains. Patentability shall not be nega-—

tived by the manuers in which the invention. was

made.’’, ,

8 "ti.

reviser’s notes in connection with tis section state

the following “itificant clause:

: basis for the addition at a later: lime of some: eri-

+)

. This Court has not seen “fit. to. ere ant. a Petition for a.

Writ ‘of Certiorarl in‘any pate nt-caee since the promulga.

tion ‘ef the’ Pateu Act of 71992... Determinations cqneern- |

jetta * “This paragraph ix added with the viéw °

that an explicit statement in the statute may have

some stabilizing effect, and. also to serve ‘as a

teria which may be worked out. we oF.

mg. the standards of. Invention required in order to sup-

“port a valid patent haye- been conspicuously -absent.- As

a result’ patent litigation Has degenerated into’ ‘the law

of the, jungle’. For example, in the instant case the

. Distriet Judge, in*invalidating the patent in suit as coti-

~ stituting what, in Ais opinion, constituted an unpatentalte

-- aggregation | of prior structures chad this to say (Joint

Appents;: p. 147a): , 3 |

“Well, [ envisaze. that three Judges -in. Phila-

delphia would be harassed to try to upset my find-

‘ings; Tf they: vdo they: will, be siliv, if they dongt

they will be very wise. But i think that they mipst

be given credit * figr having definite perceptiveness

of knowing what things are about and ‘where coun-

sel have gone asttaty.’

The

JF,

a

- al .

Second Cirenit, Court of Appeals, in Gross vv.

D. Mig. Cb., Ine. dA Ped. (2nd) 196 summarily -

\ Site ie a) Pest 2 ta et Ou :

aeversed a determination of the District . Judge holding a

mtent valid and infringed with the summary: statement

that the legal standards for patentability were not com- ||

“plied with. On the other hand the Seventh Cireuit- Court

of Appéails in Copease Miq. Co. v. American. Photoc opy

Equipment Company, 2G8 Fed. (2nd) 772 (777), in. sum-

J amarily reversing a determination of .the: Distiiet “Coust

holding a certain upton iiivalid had this’ to say:”

\

co. eh * A in’ every patent casé, there is here a

presumption that “the patent in suit is valid. .The

! . ‘

burde is of establishimg irvail: dity rests on defend-

e 4

ant * > The presumption iY not -an idle westiire

*“ * * Ld is not to be ov erthrewn exe ept by iloar

‘and cogent evidence. * * * ” is

2s

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fe - : v tues a a

Thus the state. of patent law the United States

borders on chaos.” Since no. de sikas standards, exist, for

“the de! lermination of the preseuce or. absence of, invention

ell patentee not only. must invent, Hew subject matter, ‘at-

tempt to intérest others in its exploitation, run all ‘the

risks of atnew business, and-add to the subject matter of °

vserul knowledge doat then, after doing al] af thix and -

seeing his efforts erowned: with - “secesst becomes involved

Mm expensive, costly and lengthy: pateit. litigation. - : Simi-

farly -a-busitiesstian devisjug a new product cannot be

certain that.the fruits 6f Iss laber well hot be unlawtolly

“appropriated hy a competitor until litigatiol is termi-°

“nated. — ‘

° . it ~ ; ‘ 7 = .

.-- respectfuily +sabriitted to this ‘Court- that “if the

standards of myention -_ ed by the Distriet Judge and

the Court of | Appeals i inthe ynstant case were, to be ‘the

iaw then no mpchanical or machine patent of any type

Would be valid. Any machine or mechanical device must.

° e . * ay .

be. of neees=ity, a combination of levers, chambers, gears,

- 7 : Pd . 2 .

a

6

*

ie

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seams and linkages. In any machine thie components

thereof will be Yound’ separately in_ the prior art. For

example the steam engine wtilized the well- known, force of.

a vapor against a piston whieh Uroveca driven member by

linkages, “By the standards applied in the instant ease

Jamies W att would have made no invention. tel

Petitioner. wishes to strone® urge to this Court that

‘he scientific preeminence of ihe Uirited. St nies has heen

dropping by reason of the facet that an- inventor is, no

longwet given atfoquate protection by the Courts.

Contrast. the positions of the “plainti ff and the indi:

vidual defendant in this ditigation. If present standards

ppited: by some Courts are toscont iufie gots anventorship ,

‘in this country will hecem: a ton art?

This Court has spoken concerning the standards to be

applied in connection with patentable Invertion in two (2) _

cases recently whieh are- Graver —— dd Mia Conv. Linde

fir Products Co., 236 US. 271 (275), where the Court,

in finding that a certain keen fiux contained the ele-

nients of invention held_as follows:

. e . -

“<e * *. the facts-as. found with respeet “to Fi

‘four flux claims war fant a conelision here that .as

sao omatter of law those sti iwutory requi rements liave

heen waa oe - ae

.

¥ lhe iffer this Congt in, Greaf atlantic d& Pacific Tea

Co. ¥. Supermarket Equipment Corp. MOA, S..147, held *s

® mechanical -padeut consisting of an opem tray and a

pair of arms, Invadid. ;

. .

In the ease.at bar we are dealing. With an invntion. of

extreme commercial Importance, The deferdant reaped

substantial. profits from the use of plaintift? < Invention

“tor whiek plaintiff wast not compensated, Concededly the

e .

Court of Appeals heid that all of the elements required to”

make plaiitiff’s invention tne success that it was were

not shown in the prior art. Here, if in any ease, the dis-

cretion of this Court to review the determinations of the

Courts below should “be exercised.

© Petitioner will conclude by Setting forth.the large num-

ber of eases wherein this Court has held that where a case

is of importance or where. substantial’ questions involving |

the interpret ation. of statutes ure present certiorari will

be eranted. These cuses are its follows:

Glus Vv. * Brooklan Kastérn District Terminal, oo

U.S 271; %

Leiter Minerals, Ineov. U8. 852-U. a 220;

Southice stern Suaur as la s Co. ¥. Pipa Ter-

minals € ‘ord, 360 U.S. 411; °° | .

Ui. &. x. U wron Picifii, Re ce Co,, 858 T.S8..1124

Porter v. Aetna Casnatty Surety Ca., 370°7T, S.

sty: oe

Morale sv. Coty of Galveston, 370 B.S. 165;

© . Calbeck vy. Travels rs Tusurance Co. 370 U. S. a4;

Turnbow vo CLT. RL 368.0, OS: OOT.

CONCLUSION

The Petition: for a Writ Cieiaiineet shaudd be

granted. : : ss ¢

< : — ~ : ie

Dated ; “October 4 +. 1963: ¢

Respeetfully submitted,

-

ANTHON\ L. Nuaey,

Petitioner.

Vexmmian Bater, °

eo Wanron BADER,

Counsel,

APPENDIX i:

Opinion of United States Court of Appeals for the

° | . "Third Circuit

”

“By Lane, District Judge:

Plaintiff, Anthony Lo Nugey, instituted > this action

against defendants, Oliver Manufacturing Sup ply Com-

pany and Patsy. Pellegrino, alleging infringeme nt oof

United States, Patent 2.575462, which describes an ap

paratus for curing building blocks. Deterdants raised. the

‘defenses of invalidity and non-infringement. Claim of

invalidity was based upon want ef invention over: prior

grt and non- infringement wpon a ficense- that plaintiff had

eranted defendants and ‘defendants’ po rights therein.

Jueisdivtion is founded pon TSC. 6 15n8,

Tliis appeal is from the district court's determination

of invalidity based upen a finding that the prior art is

replete with anticipation ot the. Various chums of the pat-

ent in sut.

During the pe riod 1958-4953, defendant Pell Berio had

engaged In the manatactire A cinder and cement buile ling

blocks. in’ Rahway. New. Jersey, and thereafter in’ Pert

Nath. . ‘ : . ‘ ’ al

Reading. Both plants were mnider the ownership of; de-”

- fendant Oliver Maiiutacturing Supply Company, a corpo-

‘ation of thes State. of” Now Jersey in which Pellegrino

‘] president and prime ipark ste Aol ter,

Suilding blocks ane ieohdad to form and -size.. froin’

batches-of material consisting primarily of water mixtures

of sand, cement, and cinders. The blocks are cured by sub-

jection to a dived: ation process “tollowed by earbonation.

Normal. caring. process involves presetting the molded

blocks for a periad af two-wud-achalf hours, then stowly

raising the,temperature over a two-hour period to schon

mately 190° bP "The bloeks are then subjected to a hydra-

‘turing precess War revised so as to feathre three separate

5

tion process for five hours at this temperature, after which

the blocks are dried out to a prescribed moisture content.

Because hydration is not completed in the five-hour period, —

the process must be continued for a much longer. period

before the block develops fyll strength. This is usually

acComplisheds by storing the blocks in the open “air for

from two to four weeks, with carbonation taking place at

a’slow rate. While ¢arlonation would be most effective

if-started atter the blocks are completely hydrated, this .

cannot be accomplished beeanse hvelration continues for ¢

long period of time With the development of more ‘and

more strength. ‘The carbon dioxide absorbed during car-

honation under ngrmal conditions comes trom the atnros-

phere ee ‘

Thronghout ‘the vears efforts had been made to dewise |

nreans and methods for fspecding the enring. of synthetic’

bnilding materials and redneing the cost ef production.

¢ Phe nse of high early strength ‘cement té effect a quicker

setting in the block and ‘of caleinm chlor ide to dry the.

water’ ont’ faster? were commen omothorls and were used

hy defendants long he an ph: untiff Nugey joined thém in

1945. - Plaintiff was a consulting engineer and. althongh

without prior “experience in the building block: industry,

he interested himself in an attempt to devise apnaratis

and discover’ chemicals that would enable defendants to”

develop a quicker and more, economic curing process,

At “plaintiff: Nugey" s direction, ‘defendants? ~ manufae-

‘nt coordina ited phases:

J 2 1 M& reaction unit consisting .of wa heater of

suffteient. capacity for discharging thie products of

combristion cinte a curing eheamber and to maintain

e the aptimum temperature for euring.

20 A recireglating. or diet System. to accomplish

(a) cireniation of the products of combustion frem

10

the reaction nnit to the curing chamber and hack -

to the reaction unit; ‘(b) exhaustion of the super: |

saturated air ‘from, jhe curing chamber and -ad~

mission ‘of fresh air at the same time; (¢) regaila-

tion of the temperature, moisture and carbon di-

oxide. content of the air passing through the cur-

ing chamber. ,

8, A. balanced equveyor system for the purpose

of moving blocks throaeh and removing them from

the chamber affer the optimum euring period. ,

On February 9, 1947, plaintiff: Nugey’s assignee, Dri-

Fast Process Corportion, filed suit im the New Jersey

Chancery ourt against Oliver and Pellegrino, alleging

that Nugey had, on or about September 26, 1949, granted

defendant Pellegrino the. exclusive right to use’ secret

processes Nugey had developed, and defendant had. failed

-to pay the agreed royalties for such use, On February

-16, 1949, Nugey made application for a patent for an

“ apparatus for euring building bloek. - Shortly thereafter,

on October 18, 1949, the state court litigation was ter-

minated.-by entry of consent judgment in which was

incorporated by reference an agreement entered into by

‘the parties on October 15, 1949, wherein Nugey and

yssignee granted to defendants Pellegrino and Oliver a

license for, the use of. the “process Nugey had purportedly

conceived in September 194. On November 20, 1991, the

Patent Office granted to Nugey fie patent now in suit.

The Nugey patent ‘consist: essentially of a continnous

serpentine kiln composed of “parallel straight, sections

ee . - @& . >

jomed. by cirentar seetiens at. their ends, such that the

two: open ends of the kiln are At the same end of the

apparatus and relatively close to each other. The blocks

to be cured ate transported through the kiln by a con-

veyor. The conveyor consists of straight seetions within

a

the Pat&mt Office disallowed such a cham as being anticigated. by the

. perfor art.

ee ree! Be ae

a

each straight. section of the kiln, and separate curved |

sections within the curved sections of the kiln so. that

the blocks move on a continnons path through ‘the kiln.’

~The conveyor receives the blocks to be cured direetly

from the ‘bloek-forming press. .The apparatus is designed

so there is a continuous tlow ‘of blocks through the kiln

at a speed equal to that ‘of the output of the block-forming

press. At the outlet end of the kiln the blocks ate yn,

loaded from the trays which: éarried. them through the

‘kiln and the “empty trays are transported by the con-

veyor back to the forming press for reloading.

The blocks are enred by hot ruses being passed ‘over

them. These het gases are einerated by combustion and

are circulated by awfan so that the flow of gases through

the kiln is in-a ‘direction opposite that of the movement

of ‘the blocks, The patent specifieations disclose the prod-

nets of combustion entering at’the outlet end of the kiln,

Wand being withdrawn from the kiln at the inlet end. The

patent apparatus has a provision for either discharging

the gases to the air or recirculating them through the

combustion equipment and back again through the kiln.

The patent also provides for introducing fresh air into =

-s4-" . es ’ e ——o- aD

fhe combustion. equipment erther alone or tn a muaxture

with the gases exhausted from the kiln:

The hasie design of subject patent is clearly anticipated

by Lang, patent 1.663.209 , (1928), wherein there. is dis-

closed a+ serpentine kiln with parallel straight ‘sections

joined by eurved sections. Lang provides for a continu-

ous conveyor within the kilt, said conveyor receiving the

bricks to be treated from an _antomatic ‘prick-forming

machine, carryiug them through the kiln and discharging

While it might seem lovigal ‘to Use a continuous one-piece CONVEVOr

1

12

them at.the exit of the kiln, with the conveyor returning

to the brick-forming macliine to receive mores bricks to.

he treated. Both Lang and the: subject . patent, employ

the feature of a kiln taking the continuous output of: a

machine forming, the products to be treated. Lang. also.

employs the use of products of combustion to treat the

. products being eured and the patent suggests the use of

pa “counter current of. the gases.

Subject patent contains several features not found in ;

the Lang patent. These are: *

1. Use of a counter eurrent of the.g@ases by ‘in-

» troducing them inte the outlet end-of the kilr and -

withdrawing them from the inlet end ‘of the kiln.

2. Use of a systeni of valves whereby the air

« entering the reaction ‘mit can be varied between

vse of outside air, ase of the ‘gas withdrawn sapees

‘the kiln, or a combination of the two. SS ieee

J ea cr ee ower ‘i sieeliabie the gases

throwxhout the unit

AS ‘4. Use of a separate reaction unit to generate

“the mesons of combustion used to cure the blocks.

'5. Use of, a seetionalized rather than a. continu.

ogs conveyor, although the fanetion of both con: |

veyvors Is the same.

© hea RRs e ts eet

Four of these element* ate. found present im other

patents granted prior to the one in suit. ae

-

I The use of a counter current flow ef gas is found in

several patents, inclitding Nimmo patent 444,153 (1891)

whic h discloses a kiln for Kak ing and barning erncibles

in ‘which‘there is a single Contintons conve vor. meving the

‘objects In a confter current to the flow -of the products ‘of -

combustion, The Lang patent also suggests ‘the use of

counter eurrent, but. this does not take place throughout ”

the. whole unit, whijJe the Harrison patent 1,916,949 (1933).

shows: the . use of a conveyor with a current of carbon

‘dioxide in contitinous cireulation and counter to the flow

of the material being treated,

" ' ° al

Le TT. Colbert) patent. 1.697596 (1929) describes an ap.

paratns for dPing coramc ware. Through a system of

ducts. air is heated in a furnace, then passes through a

‘fan which poshes it through the ducts to the dryimg tu.

nel. There issa-provasion at the fan for mixing outside

air with the air heated by ‘the furnace. Upon ex Xiting,

_ from. the tunnel, the heated.air traveis through another

justmient of the dampers, the, heated Rir may be redircu-

lated throngh the fan or exhqusted inte, the atinosjhere,

system of duets controlled hy dampers, By mpi ade

“Gebniich pateut 1.061.145 (1954) provides for wl “oven

which is-lieated by conveetion. The heating unit is next

-

to the oven and the wir Which is heated. is ¢ ‘eulated mA hy ss

-a fan from the. heating unit, through the sven, and. back

/ -

again throvgh the heabert 2

a < : «

-Tih. The nsé of a ‘Tage: toe cirenlate ae vas is fourd

in the Colbert 1097006 (1929 ) sand Gehnrich 1,961,148

(VOB) patents. ;

_. Several patents diselose a separate reaction nnit,

Ine ‘nding Gely wrieh oD, Wl, r43 (15 Wb cand ( ‘albert. i He, 5 mia)

- (19299, . ‘

V. As to a seetionalized conve vor, ‘the fifth element. not

preset in Ls i, oN nathan. of the Patiley sont MNS

(TST) discioses the use of a seep ionali imal Ggnvevor, al-

“thengh no provision is male fer cen aie w through

the kiln. Tedeed. we find ne patent, in those elted to was,

ha) : } wh } } “gat . Aa

whieh Chines disclose a sectiongdiiZed COnMVeOVOr Pron iWiug nN

8,

—<v

p | 14

continuous flow.” There is, however, no contention made

that the sectionalized conveyor is a unique feature of sub-

ject patent, and it is a matter of common know ledge that

conveyors of very many types and descriptions have. hads?

long-term usage in, manufacturing processes, . Finally, as -

the manufacturing apparatus thai had been used by de-

». fendants employed’ a contifinous conveyer, there could be-

no basis for a finding of infringement as toe this element:

We are in agreement with the court below that the in-

vention «in suit ‘contains hothing new, that it is nothing

more than an aggregation of elements to be found in the

prior art, aud that there is no clement of inventive genius

involved in combining these parts, ya

P “Tt remains the law that the, “mere. gregation

of a number of old parts or-elements bt in the -

: aggregation, perferm or produce no’ new or differ--..

“ent function or operation than that theretofore’

performed or produced by them, is not patentable

invention’. - Lincolu. Ruaines ring (oa, of THinois 4

Stewart Warner Corp.. 3s, 208 U.S. 545,

d8 S.Ct. 662, 664, 82 L.Ed. 1008. Compare the

similar language in Richards ¢. age Elévator

Co., 1895, 159 ULS. 477, 487, 16 S.Ct. 53, 40 L.Ed.

995." leo Nar Nurh. Tee. v. Ager P ype F.2d 931,

* 932-33 (3d Cir, 1961). .

“More must be done than to utiliz® the skill of

the art: in bringing old tools into new camlsina-

“tions.” Cuno Corp, ov: Automatic Devices ‘Corp.

: p. , p.,

"314 US. — Sata

See ies the recent opinion ofsthis court in Chemical

’* Construction Corp. ¢. Jones & Langhlin Steel Corp. a aa.

~. F.2d 367 (3d Cir, 1962).

—

qt

4 . »

" We should’ dispose of one. more claim. plaintiff advanced

at trial to the effect that the patent. apparatus is unique.

in that itpinvolves a’ sequential hydration and carbonation,

in@ that hydsation is sulistantia!ly completed - before car-

bonation is commenced.2. We find. uo merit in this conten-

tion. There is noclaim in the patent for such a feature.

“It is well settled that the claims in a patent are the

measure of “the patentee’ s rights’? L. S.J Donaldson’ v.

Litt: Mour, Tne., 209 F.2d 412, 417 (Sth Cir. 1962). See

Daries-Young Soap Cov v. Nu-Pro Manufacturing Co., 2738

bd $54 (Sb Cir, 1959) ** However worthy it may be,

however essential to the patent, an unpatented part of a

‘combination “patent. is No more ontitled. to monopolistic

protection than any other unpatented device.” Mercoid |

Corps a. Mane 5 i Howe yell Re qulator Co., 320 US.

SO, GSE IIE, ae oe

oo

We find therefore Nugey is not entitied to any protec

tion on his assertion of sequential hydration and c&rbo-

nat hon. fh oa =

om .

: The appellant's brief contains the following des ription: of this

pTOu OSs @ ; aX ‘ “* 2

“The green blocks containing water move through the sinuous

kiln The temoersture of the kila is high. The prevailing high

temperature accelerates hydration.” It is clear, he refore,, that as

_ the moist green Sloehs move threugh the Tong sinuous path un-

der the prevailing high temperature that -the-anlivdrous cement

undergoes hydration se that they are full hydrated as. they .

ap yproae hy the outlet end thereof. .

“The reaction products fi som the reaction. unit (primarily car-

bon diexide)+ cRRer the kiln at the point where the fully hydrated .

blocks are about to emerge frem the kitn, Accordingly, the fully

. “hydrated blocks meet the vapors from. the reaction unit: wliere

; these {por “ontain dees mavinum content of gar! ion dioxide,

As ine ‘vapors are propelled in,their loop through the kiln, the

carbon diosile content thereof digninis lass in consequenre of

the absorption’ by the hydrated blocks of carbon dioxide with:

which. they rome Rt cont t “ar n'y thy nfovement. of the gases

through the kiln.” * Appellant's Driet at 8-9.

oy

1

A furthér reason for abiiiiaie the claim of sequential

hydration and carbonation is that there has heen no re-

- duction to ‘practice. Plaintiff has testified that he never *

constructed: the apparatus described in the patent; and —

that his sole tests were performed on-a two-inch cube in

a laboratory apparatus, in which he blew the gases over.

the cube rather than-moving the eube through the gases.

+ Clearly, this experiment wonld ‘not be sufficient to validate

‘ .the claim, if, in fact, it had been. set out in the patent.

See /Elmore v. Schmitt, 278 F.2d ato, 512-13 (GOES.

1960). meer

/ The judgment will be sffirmed.

eg

A True Copy:

Teste: —

Clerk of the United States Court. of a

for the ibid Circwtt.

+ ae

.

_ Judgment of the United States Court of Appeal for the

Third Circuit |

vU NITED STATES COU RT OF AP PEALS

For THE Turrp Crretrr.

No. ‘13,727

-

ANTHONY I. NUGEY,

Appellant,

Vs.

Ouiver Maxvr&feturtse Sceppey Co. and .Mamir Peuue-

~ oreo, Executrix of the Estate of Patsy. PELLEGRINO.

o

af

1?

Ox AppeaL From tHe Untrep States District, Court ror

rok District of New JERSEY.

Present: -° *...

StaLey and Formas, Cireuit Judges. and Liane, District

Judge. (Sane tee ae Og

, JUDGMENT. :

ag. v - \ > é ‘ i

This cause canie on to be heard on the feeord from the

United States District Court for the District of New Jer-*

-sey and was argued by counsel

On consideration whereof, it is tow here grdered and

adjudged by this Court.that the judgment of the said Tis-

trict Court filed June 19, 1961 in this case be. and “the

same is. hereby affirmed, with costs. oan

Attest:

‘ ; Ia O. CRESKOFF

pee 1, - Clerk

~ +o Received .& Filed °

are Jun 19 1963:

: Iba O. Creskorr,

Clerk

18°.

= ° a. °

°

Judgment of the Court of ‘ener for the:Third Cireuit -

¥

Ina O. Crrskorr,

Denying Petitioner’s Petition for Rehearing

UNITED STATES COURT, OF. APPEALS

For: THE Piriep “Circuit

No. 13.727 |

4. a

_ ad

Astuony Le Nvgey,

Ouiver MaNnvracturInG Suppiy Co., a Corporation of New

Jersey, and Mamie ‘PELLEGRINO, Exeenirix of the Estate

of Patsy, PELI EGRINO.

4y

1)

Scr Petition ror REHEARING

Present: .

McLarenurs, Starry, Hastie, Forman and Sith,

_ Cirenit Judges, and ,Laxe, District Judge

After, due eonsideration the petition for ‘rehearing in

the above- entitled case -is hereby denied.

Dated: August 5, 1962

By’ the Court

e | ‘STALEY

° wo Cireuit Judge

Received & Filed _ .

Aug. 5 1963 _ * oe

Clerk . ew

: . cacy ite _ Appellant,

a)