Petition for Writ of Certiorari — Powers-Kennedy Co. v. Concrete Co.
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SUPREME COURT OF THE UNITED $
OcTOBER TERM, 1928
» No | EOL gg S
POWERS-KENNEDY CONTRACTING CORP. and
ANTHONY G. FLECK
Petitioners
v.
CONCRETE MIXING AND CONVEYING CO.
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CIRCUIT COURT OF APPEALS 4
FOR THE SECOND CIRCUIT
and
BRIEF FOR PETITIONERS
and
APPENDIX CONTAINING CONFLICTING OPINIONS OF
THE LOWER COURTS
3
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z
4
Joun D. MorGAn
, ALAN M. JOHNSON
Counsel for Petitioners
APPRAL PRIFTING CO., 882 THAMES GT., NEW YORE OIFY¥
SUBJECT INDEX.
Petition Sor writ of COTUbOPOHE 5 ...<ccscccesnuciaesess
Summary statement of the matter involved
Reasons relied on for the allowance of the writ..
o£ 8, ee Perr rT
Brief in support of petition for writ of certiorari ....
Opinions of the courts below ...............4.-.
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TABLE OF CASES CITED.
Concrete Appliance Co. v. Gomery, 269
U.S. p. 177; Supreme Court Reporter,
ke ee ka ee eee ks
Concrete Mixing & Conveying Co. v. Ulen,
12 Fed. (2nd) 929 (not in this suit)..
Same. C. C. A. 2nd Circuit, 12 Fed. (2nd)
BE peanu weet ehGlen cue We Oe a aaR ade
Concrete Mixing & Conveying Co. v.
Powers-Kennedy Contracting Corp.
(decision in this suit not reported) ..
Powers-Kennedy Contracting Co., et al.
v. Concrete Appliance Co. (2nd Ct.
Court of Appeals), 27 Fed. R. (2nd)
Brief
Page
3,4, 5, 10
4,8
Ee en ES 1, 2, 3,5, 6, 8, 10
Concrete Mixing & Conveying Co. v. R. C.
Storrie € Company (Judge Bourquin’s
decision), 23 Fed. (2nd) 131 ........
Concrete Mixing & Conveying Co. v. R. C.
Storrie & Company (decision of the
Court of Appeals of Ninth Circuit,
dated August 20, 1928; not yet report-
MP kis cckteakoen ener needa ee
Appendix
Page
43
RR A RR TL RR AM ANTE ROE NE IEE EB ELC 3A SEIN TER EES
Supreme Court of the United States
OCTOBER TERM, 1928.
POWERS-KENNEDY CONTRACTING CorR-
PORATION and ANTHONY G. FLECK,
Petitioners,
oe. No
CONCRETE MIXING AND CONVEYING
CoMPANY,
Respondent.
PETITION FOR WRIT OF CERTIORARI.
May it Please the Court:
The petition of the Powers-Kennedy Contracting Cor-
poration and Anthony G. Fleck respectfully shows te this
Honorable Court:
Summary Statement of the Matter Involved.
The basis for this petition is that the Circuit Court
of Appeals for the Second Circuit has held, in an opinion
(27 Fed. [2nd] 668, and Appendix to our Brief, pp.
24-31) filed July 17, 1928, that United States Patent
No. 1,127,660, to McMichael (R., pp. 372-379) -is valid, and
the Circuit Court of Appeals for the Ninth Circuit has
held, in an opinion filed August 20, 1928, that said Patent
No. 1,127,660 is invalid (not yet reported—Appendix to
our Brief, pp. 43-53).
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The Circuit Court of Appeals for the Second Circuit
upheld the patent by a divided court, Judge MAnron, the
presiding Judge, dissenting. The Circuit Court of Appeals
of the Ninth Circuit invalidated the patent by a unani-
mous opinion (Concrete Mixing and Conveying Co. v.
R. C. Storrie & Co.—See Appendix to our Brief, pp.
43-53). Thus, in these two litigations, two Circuit Judges
have held Patent No. 1,127,660 to be valid, and four Cir-
cuit Judges have held the patent to be invalid.
The records in the two suits in so far as they bear
on the question of validity or invalidity of the patent
are substantially identical. On the questions of infringe-
ment (if the patent be valid) the two records are “widely
different,” as stated in the opinion of the Court of Appeals
for the Ninth Circuit.
The question of the validity or invalidity of this
McMichael Patent No. 1,127,660, is one of great and far-
reaching industrial importance. Under the decision of
the Court of Appeals for the Second Circuit, it is a valid,
and in effect, a pioneer patent (Appendix to our Brief,
p. 26, lines 12-22) and as such would completely con-
trol the pneumatic placing of concrete for the life
of the patent, while under the decision of the Court of
Appeals for the Ninth Circuit, the pneumatic placing of
concrete is free to all. This industry not only is of vast
proportions but extends to all parts of the country, and
affects many thousands of building projects of all kinds.
This uncertainty and the consequent injury to industry
can only be terminated by this Court.
The patent to Smith, 122,497 (R., 389-394) was in the
records of both suits. As to this patent, the Circuit Court
of Appeals, Second Circuit, held:
“* * * whether it was practically operable may
well be doubted. * * * It cannot be regarded
as an anticipation.” (See Opinion, Appendix to
our Brief, p. 27, lines 24-33).
As to this Smith patent, the Circuit Court of Appeals
of the Ninth Circuit held:
“The specifications described the apparatus as
specially adapted to the manufacture and convec-
tion of concrete composition through pipes so as
to set quickly upon reaching its destination, and
form a solid’ mass of artilicial stone, and uncon-
tradicted testimony was given of the successful use
of the Smith machine in conveying concrete
through a pipe by compressed air.” (Italics ours.)
The Circuit Court of Appeals of the Ninth Circuit,
correctly applied the controlling authority of this Court
in the case, namely, Concrete Appliances Co. v. Gomery,
269 U. S. 177, as to the anticipating relation of the other
prior patents showing similar mechanism to that of
McMichael’s patent for pneumatically conveying ma-
terials other than concrete, holding:
“It is true that Duckham was engaged in moving
a material quite different from concrete, but that
fact is not of importance on a question of antici-
pation (Concrete Appliances Co. v. Gomery, 269
U. S. 177).” (Appendix to our Brief, p. 46, lines
16-19.)
The Circuit Court of Appeals, Second Circuit, on the
5 contrary, held this authority to be restricted to the pre-
; cise facts of that case and as having no bearing on the
present absolutely analogous case, nor any general bear-
ing whatsoever, holding:
j “But the Gomery decision does not rest merely
on the assumption that apparatus for coal and
grain could have been used for wet concrete with-
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out inventive thought. * * * The idea was
already of common knowledge and was being ap-
plied generally.”
In view of these contradictory holdings, the Gomery
decision means one thing in the Ninth Circuit, and ex-
actly the opposite in the Second Circuit, and its authority
and meaning in the remaining circuits is undetermined.
The Circuit Court of Appeals of the Second Circuit sus-
tained the validity of the patent by a divided court, as
previously noted, and, it would appear to your petitioners,
it inferentially desires this Court to pass upon the validity
of this patent:
“Whether this was the ground adopted to dis-
tinguish them in the Ulen case, or whether the
Court as then constituted accepted the slug theory,
does not appear and is not important. On some
ground we distinguished the prior art and sustained
the validity of the patent, and that ruling we should
follow until its error is pointed out by higher au-
thority.” (Italics your petitioners.’) (Appendix,
p. 30, line 31, to p. 31, line 3.)
Reasons Relied on for the Allowance of the Writ.
1. The Circuit Court of Appeals of the Second and
Ninth Circuits have rendered conflicting decisions as to
the validity of McMichael patent No. 1,127,660.
2. Absolutely opposite constructions were given by
those two tribunals to the controlling decision of this Court
in Concrete Appliance Co. vy. Gomery, 269 U. S. p. 177, in
which your Honors held:
“The observations of common experience in the
mechanical arts would lead one to expect that, once
the feasibility of using ‘wet’ concrete in building
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operations wag established, the mechanical skill of
those familiarwith engineering and building prob-
lems would seek to make use of known methods
and appliances for the convenient handling of this
new building material.
“To say nothing of the universally known
methods and appliances for raising and distributing
water, there were ready at hand widely used and
generally understood appliances for the elevation
and distribution of mobile substances, such as grain
and coal, which involved, both in principle and in
practical detail, all the elements described in the
Callahan claims. Failure to make use of these
obviously applicable methods and appliances in
combination, suitable to the particular work in
hand, in dealing with a new, plastic material cap-
able of similar treatment, would, we think, have
evidenced a want of ordinary mechanical skill and
of familiarity with construction problems and
methods.”
3. Consequently, the Circuit Court of Appeals of the
Ninth Circuit gave full effect to the decision in applying
the prior art, stating:
“It is true that Duckham 3as engaged in moving
material quite different from concrete, but that fact
is not of importance on the question of anticipation
(Concrete Appliance Co, v, Gomery, 269 U, S. 177).”
But, the Circuit Court of Appeals of the Second Circuit
refused to follow this authority, holding:
“The Supreme Court case [Concrete Appliance
Co. v. Gomery, 269 U. S. 177] does not require us to
reconsider the validity of the McMichael patent”
(Appendix, p. 26, lines 28-30).
4. Because of this refusal of the Circuit Court of Ap-
6
peals of the Second Circuit all of ‘he anticipating and
invalidating prior art was disregarded aad set aside (Ap-
pendix, pp. 25-26).
5. In the face of Smith patent 122,197, which discloses
a tank, a supply pipe for compressed air and a concrete
conveying pipe, the Second Circuit Court of Appeals held
the McMichael patent to be, in effect, a pioneer patent, as
follows:
“To do this was to make a new machine, and
one who thought of doing it would have had a
new and inventive idea; that is, that of blowing
concrete, which had not been done before.” (italics
ours.)
6. Four out of six Circuit Judges who considered these |
two cases held the patent to be invalid.
7. The fact, as a secondary defense, that McMichael
was not a prior inventor, and, therefore, for that reason
the patent is invalid.
8 The fact, as a secondary defense, that McMichael
introduced new matter into his application while pending
before the Patent Office, and on this ground the patent
is invalid.
9. The fact, as a secondary defense, that McMichael’s
machine will not operate as described in the specification
of the patent, and on this ground the patent is invalid.
» 7. =
10. The fact, as a secondary defense, that the Court
of Appeals of the Second Circuit did not give proper
weight to a copyrighted article published in the Journal
of the Western Society of Engineers on May 13, 1918, by
Mr. Kirkland, the respondent's chief‘ engineer, several
* years before any suit was brought on the McMichael pat-
eee See ee Fe te OP eee
ent, in which he described the operation of the McMichael
machine (R., pp. 147, 148) which is exactly the same as
the operation of the sand, grain, coal and ash pneumatic
blowers, of record, and wherein Kirkland also stated that
he “blew” or transported both concrete and limestone
screenings with the McMichael machine as the job de-
manded. Also in not giving proper weight to testimony
of prior use, based on this documentary evidence, sup-
ported by oral testimony; all of which, if properly
weighed, would show that the McMichael patent is invalid
on this secondary ground.
WHenrerore, your petitioners respectfully pray that a
writ of certiorari be issued out of and under the seal of
this Honorable Court, directed to the Circuit Court of
Appeals of the Second Circuit, commanding that Court
to certify and to send to this Court for its review and
determination, on a day certain to be therein named, a
full and complete transcript of the record and all proceed-
ings in the case entitled on its docket—No. 9732, Concrete
Mixing and Conveying Company, Plaintiff-Appellee ov.
Powers-Kennedy Contrecting Corporation and Anthony
G. Fleck, Defendants-Appellants, and that the decree of
the said Circuit Court of Appeals for the Second Circuit
may be reversed by this Honorable Court, and that your
petitioners may have such other and further relief in the
premises as to this Honorable Court may seem meet and
just; and your petitioners will ever pray.
PoOWERS-KENNEDY CONTRACTING CORPORATION
and ANTHONY G. FLEcK,
By JoHn D. Morgan,
ALAN M. JOHNSON,
Counsel.
SUPREME COURT OF THE UNITED STATES,
Ocrover Teno, 1928.
POWERS-KENNEDY CONTRACTING Cor-
PORATION and ANTHONY G. FLECK,
Pelitioners,
he No.
CONCRETE MIXING AND CONVEYING
COMPANY,
Respondent.
BRIEF IN SUPPORT OF PETITION FOR WRIT
OF CERTIORARI.
i.
Opinions of the Courts Below. Z
The opinion of the Circuit Court of Appeals of the Sec-
ond Circuit in this case was handed down July 17, 1928
(27 Fed. [2nd) 668; R., 411, and Appendix hereto, p. 21).
The opinion of the district judge was not reporied, but is
printed in R., 417, and Appendix hereto (p. 22).
The conflicting opinion of the Court of Appeals of the
Ninth Circuit in Concrete Mixing & Conveying Co. v. R.C.
Storrie & Co. was handed down August 20, 1928, and
has not been reported (See Appendix hereto, p. 43).
The opinion of the District Judge in that case is reported
in 23 Fed. (2nd) 131 (Appendix hereto, p. 32).
The “Ulen suit” (Concrete Mixing & Conveying Co. v.
Ulen Contracting Corp.) is referred to freely in the record
and decisions, and the decision of the District Judge
therein is found in 12 Fed. (2nd) 929 (Appendix, p. 15).
The opinion of the Court of Appeals of the Second Cir-
cuit is found in 12 Fed. (2nd) 931 (Appendix, p. 21).
Your petitioners were in nowise connected with the
Ulen suit. =a
To more readily clarify the position of the Court of
Appeals for the Second Circuit, a brief detailed considera-
tion of the decisions will be had.
In the trial of said Ulen suit in the District Court, Judge
A. N. Hanp brushed aside the prior art having substan-
tially the same structure and mode of operation as the
McMichael patent for the reason that the materials
handled or “blown” were not the same. On this point,
he held:
“A device for transporting sand, ashes, or coal,
even, by means of an apparatus having a structural
resemblance to complainant’s device nearer than
we find, furnishes no anticipation of the patent,
and MecMichael’s conveyor, when applied to con-
crete, is not objectionable as a double use. Con-
crete Appliances Co. v. Meinken (C. C. A.), 262
F. at page 964. As Judge Denison remarked in
the foregoing case: ‘Certainly the art of loading
coal into a ship for fuel is not the same art as
that of distributing wet concrete to a building struc-
ture; nor is the analogy very close.’ ”
This decision of the Circuit Court of Appeals of the
Sixth Circuit (Concrete Appliances v. Meinken, 262 Fed.
964) upon which Judge Hanp relied, was one of the con-
flicting decisions which brought the Callahan patent be-
fore your Honors on certiorari in Concrete Appliance
Co. v. Gomery, 269 U. S., p. 177, and this particular ruling
as to the invalidating effect of the prior art was emphati-
cally reversed in the passage from Concrete Appliances
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10
Co. v. Gomery, quoted at pages 4 and 5 of our accompany-
ing petition.
The Gomery decision was handed down by your Honors
on November 16, 1925.
Notwithstanding that the District Judge in the Ulen
suit had followed the Court of Appeals of the Sixth Cir-
cuit in disregarding the prior patents, for blowing grout
(which is wet concrete with only small stones or none),
sand, wheat, ashes, ete., and further notwithstanding the
explicit reversal of the decision of the Court of Appeals
of the Sixth Circuit by your Honors in the Gomery de-
cision, the Court of Appeals, Second Circuit, on May 3,
1926 (12 Fed. {2nd} 931), aflirmed the District Court per
curiam, without opinion.
In the present case, the Court of Appeals of the Sec-
ond Circuit again refused to follow your Honors’ decision
in the Gomery case, and, in fact, persisted in following
the reversed decision of the Court of Appeals of the Sixth
Circuit, and their own decision in the Ulen suit based
thereon, stating:
“* * * that ruling we should follow, until its
error is pointed out by higher authority.” (Ltalics
ours.)
II.
Jurisdiction.
The date of the opinion of the Circuit Court of Ap-
peals of the Second Circuit is July 17, 1928—27 Fed. (2nd)
668. The mandate has been stayed until October 15, 1928,
pending the filing of this petition. The petitioners are
under bond for some 421,000.
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III,
Statement of tke Case.
A full statement of the case has been given in the ac-
companying petition, and, in the interest of brevity, the
statement will not be repeated at this , oint.
Iv.
Specification of Errors.
A full statement of the errors has also been made in
the petition, and, for the sake of brevity, will not be here
repeated.
V.
Argument.
The facts and reasons which have been set forth in the
accompanying petition, and preceding portions of this
brief, are believed to be sufficient to set this cause before
your Honors, and that fuller argument at this point may
be waived for the sake of brevity, except that Farnham
patent 747,396 (R., 44) for “blowing” sand, having essen-
tially the same structure as McMichael, exemplifies a part
of the prior art which was disregarded by the Second
Circuit Court of Appeals. It is reproduced, pages 55 et
seq. Appendix hereto.
CONCLUSION.
It is, therefore, respectfully submitted that this case is
one calling for the exercise by this Court of its super-
visory powers, in order that the confusion and uncer-
tainty in the trade due to the conflicting decisions of the
er
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12
Circuit Court of Appeals of the Second and Ninth Circuits,
on the validity of the McMichael patent, be terminated,
and that to such an end a writ of certiorari should be
granted and this Court should review the decision of the
Circuit Court of Appeals for the Second Circuit and
finally reverse it.
Respectfully submitted,
Joun D, Monrcan,
ALAN M. JOHNSON,
Counsel for Petitioners.
APPENDIX.
CONFLICTING OPINIONS OF THE COURTS
of the
SECOND AND NINTH CIRCUITS
on the
VALIDITY OF McMICHAEL PATENT NO. 1,127,660
13
15
UNITED STATES DISTRICT COURT,
SouTHERN District or New York.
(Concrete Mixing & Conveying Com-
PANY,
Conrplainants,
v. E 26/325
Wien Contractinc Corporation and
SHANDAKEN TUNNEL CORPORATION,
Defendants.
SrepnHen J. Cox, Solicitor for Complainant, Ste-
puen J. Cox and A. G. McCaces, Counsel.
JAMES L. Srevanr, Solicitor and Counsel for
Defendant Ulen Contracting Corporation.
Frank S. Moore, Solicitor for Defendant Shan-
daken Tunnel Corporation, James L. STevARrt,
Counsel.
Avoustus N. Hanp, District Judge:
This is a suit for infringement of U. S. Letters Patent
No. 1,127,660 to John H. McMichael, granted February
“th, 1915, Claims 2, 4, 6, 17, 21, 22, 28, 34 and 35.
The invention has for its object to provide a method
of and an apparatus for elevating and transporting con-
crete. The patentee describes concrete in the specifica-
tion as “a composition containing relatively large pieces
of rock or stone as uniform in size as poss*dle, together
with predetermined proportions of sand, cement and
water.” Pneumatic pressure is used to compress the con-
crete into a restricted conduit pipe and then additional
- rm
5 an ed
Se et ed
Ena wereenreeseere
16
pressure by means of a jet of compressed air is applied
to the mass near the entrance of the conduit pipe, thereby
pushing the mass into and along the conduit. The Me-
Michael invention is a most interesting one and has ap-
parently met with general acceptance. Engineers at first
distrusted the possibility of lifting and conveying con-
crete long distances by the McMichael device. The very
material would be likely to clog any long pipe line. More-
over the weight would be so great if conveyed as a mass
by means of pressure from the rear, that too great
pressure for safety would be required, if, indeed, enough
could be applied where the distance was long and con-
crete, as in some cases, was lifted eighty feet. Various
aitempts to convey sand appear in a number of patents,
and in the Goldie Patent No, 707,810, sand was ejected
under railroad ties by steam pressure.
In the Farnham Patent No. 747,396, there was a sand-
blast apparatus shown where the sand was carried into
the discharge pipe by gravity aided by compressed air
and then ejected by an air blast nozzle entering the dis-
charge pipe in the general direction thereof. The patent
to Sticker No. 758,118 is likewise for a sandblast.
None of these patents, in my opinion, would teach any-
one with imagination and talents short of a real inventive
faculty to install a conveyor which wouid obviate the de-
lay and expense of laying concrete by hand about the
forms on which a tunnel is built. They were kinetic
devices for floating light material. This was in substance
so even in the case of the Goldie patent where dry
cement, or cement mixed with sand or gravel, was ejected
from a short hose by an air or steam waterblast. It is
not accomplished by a heavy air pressure as in the patent
in suit, but by air or steam velocity.
4
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17
In the MeMichael patent the second blast of compressed
air at once cuts the concrete mass and shoves along the
segment of concrete. The segment to be shoved along
is of comparatively small weight and dimension so that
it can be carried without clogging the discharge pipe.
Mr. Kirkland, the chief engineer of the complainant, de-
scribed this at page 9 of the record:
“Q12. What is the effect as you have observed
the operation of the machine of working the jet at
the bottom: directed at a line or an angle to the
tievel of the material in passing from the main
vessel? A. The air breaks up or penetrates the
mass as it goes toward the outlet, detaching por-
tions of it, so that these portions will present a sur-
face to the oncoming booster jet so that they may
be forced through the pipe.
“Q13. And are these batches solid or in detached
portions? A. They come on in waves. Sometimes
the successive portions of each batch follow each
other so rapidly through the pipe that to the casual
observer it would be almost impossible to tell
whether it was a continuous stream or successive
batches, but in long pipe lines, the successive
batches are more pronounced and one observing
them will note a wave,—that the material comes
in waves.
“QU. How far has concrete been conveyed and
placed in this apparatus from the apparatus itself?
A. On the Twin Peaks tunnel in San Francisco we
placed it at a distance of 4,900 feet from the ma-
chine.”
Mr. Bateman, the superintendent of the well known
contractors Booth & Flinn, confirmed the foregoing testi-
mony as to the discharge of the concrete from the com-
plainant’s macliine in sections.
i
#
18
Complainant’s expert, Frederick Ray, said:
“The net result of that is that it is possible to
handle this concrete in slugs through a long pipe
with a cemparatively low pressure of air, that is
a pressure of air around 100 pounds whercas to
force it as a continuous stream through such a
pipe, might take thousands gf pounds or it might
even be impossible, but certainly concrete can be
forced through a certain length of pipe” (Minutes,
p. 91).
Mr. Ray points out the portion of the specification
which indicates that the inventor understood these ad-
vantages of his invention. McMichael says at page 2, lines
45 to 100 of the specification:
‘
Ce A ISIC us NS EL CSOD RAWAL ELI GEER tha AR ICD: PONE LER ROL i a
“It will be observed that the upper air pipe 8
serves merely to supply air to the upper part of
the chamber 1, the pressure of the air being uni-
formly applied over the entire upper surface of
the mass. The lower pipe 10, however, serves to
direct a jet of air moving at a considerable velocity
directly against portions of the mass as they move
toward and into the discharge duct. The two pipes
thus act in very different ways, the upper pipe
supplying air which acts by pressure and the lower
pipe supplying air which acts by velocity. On ac-
count of the presence of large and small particles,
and on account of the presence of water, a mass
of concrete forming materials (whether completely
mixed or not) is relatively compact and impervi-
ous to air, and on this account the upper air body
acts by applying a uniform pressure to the entire
upper mass surface and without any substantial ‘
penetration of the air itself to the interior of the
mass. Air from the lower pipe 10 may force itself
into the body of the mass, and the relatively small
air jet acting upon the relatively large stream of
19
outward moving materials directly engages with
the submasses to push them along. This action
of the two air bodies in my apparatus is to be con-
tracted with the action of air in earlier devices
which were so constructed that light materials such
as grain or ashes could be caught in large moving
air bodies and carried along in suspension with
each particle separated from the others. One of
the strongly marked and novel matters incident to
this provision of the pipe 10 for introducing air
directly into the discharge pipe, Whether consid-
ered by itself or considered as supplemental to the
agency such as the air from pipe 8 tending to effect
downward and forward propulsion of the entire
nrass, is this, that the rapidly moving air from pipe
8 to pipe 10 acts upon sub-masses, successively of
the general mass, at points near those where they
enter the delivery pipe, the result being that the
thorough commingling of the ingredients (rock
pieces, sand, cement and water) well understood by
the engineer to be essential to a perfect concrete, can
¢ be attained with great rapidity and with a perfect,
uniform, distribution of the various ingredients as
concerns the relative positions of all the compo-
nent particles.” ¢
A device for transporting sand, ashes or coal even by
means of an apparatus having a structural resemblance
to complainant’s device nearer than we find furnishes no
anticipation of the patent and McMichael’s conveyor when
applied to concrete is not objectionable as a double use.
Concrete Appliance Co. v. Meinken, 262 Fed. at p. 964. As
Judge Denison remarked in the foregoing case:
“Certainly the art of loading coal into a ship for
fuel is not the same art as that of distributing wet
concrete to a building structure; nor is the analogy
very close.” See also Hobbs v. Beech, 180 U. S. at
p. 389.
20
The appreciation by the inventor of the necessity of
limiting the concrete to be conveyed to sections of mode-
rate size and weight and his method by the second air jet
of securing the cutting off of a segment from the mass of
concrete and a propulsion of this segment through the
discharge pipe involves invention of a high order. His
device has displaced all other methods for rapidly and
economically conveying, lifting and placing concrete at
long distances from the initial source of supply and has
been used in numerous great enterprises. In such circum-
stances his claims should be read broadly and given a
fair range of equivalents. When so read I think the de-
fendants plainly infringe.
The process claims are limited to no particular form
of apparatus so that the contention that they are for a
mere function seems without merit. Expanded Metal v.
Bradford, 214 U. S. 366; Buffalo Forge Co. v. City of
Buffalo, 255 Fed. 83. _
I find claims 2, 4, 6, 17, 21, 22, 28, 34 and 35 valid and
infringed, and grant an interlocutory decree to the com-
plainant with the usual reference.
A. N. H.,
D. J.
Filed August 4, 1925.
————eEewe
21
CIRCUIT COURT OF APPEALS,
SECOND CIRCUIT.
CONCRETE MIXING & CONVEYING Co.,
Plaintiff-A ppellee,
D.
No. 332.
ULEN ContRACTING CoRPORATION and
SHANDAKEN TUNNEL CORPORATION,
Defendants-A ppellants.
May 3, 1926.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK.
James L. Strevart, of New York City, for Appel-
lants.
STEPHEN J. Cox, of New York City, and WiLuiaMs,
Brapbury, McCaresp & HINKLE, of Chicago, IIL,
for Appellee.
Before Rocers, HouGu and Mack, Circuit Judges.
Per Curiam. Decree (12 F. [2d] 929) affirmed.
+1177 :
Been tr Pores
BS nel Beebe ve
22
UNITED STATES DISTRICT COURT,
SOUTHETS — YORK.
CONCRETE MIXING AND CONVEYING Co.,
Complainant,
against
E 350/204
Powers-KENNEDY CONTRACTING Cor-
PORATION and ANTHONY G. FLECK,
Defendants.
STEPHEN J. Cox, Solicitor and Counsel for Com-
plainant.
JoHnN D. MorGan, Solicitor for Defendants; JOHN
D. MorGan and ALAN M. JOHNSON, Counsel.
Avuaustus N. Hanon, District Judge:
This is an attempt to retry the issues determined in the
case of Concrete Mixing & Conveying Co. v. Ulen Con-
tracting Corporation, 12 Fed. (2d) 929; 931. The main
reliance is upon a prior use which is alleged to have oc-
curred over twenty vears ago. No contemporary sketches
are produced and the two witnesses attempt to describe
from memory a mechanism which was not used except
on two occasions. If such a practical device as that of
the patent in suit had been employed, it is hardly likely
that a contractor used to conducting large enterprises
would not have sought a patent, or at least have taken
advantage of something which in recent years has met
with signal success. I am not satisfied that the defend-
ants have established the prior use.
Aside from this new proof the defendants rely on the
“ f
23
old contention made in the earlier case that their de-
vice is purely kinetic. I do not regard it as theoretically
probable that masses of concrete containing gravel stones
of a diameter running to one and a half inches can be
blown long distances by compressed air and I think the
sstimony of Mr. Ray that he could detect the passage of
a series OT
the more probable fe . Moreover, if air were |
floating the concrete it would be bound to pass through
‘he pipe and the pressure would be so rapidly reduced
that the heavier portions would be left in the pipe.
All of the claims were infringed until the Powers-Ken- ©
nedy structure was impaired in the hope of avoiding in- :
fringement. After ceasing to introduce pressure behind
the mass of concrete by means of closing the upper valve,
it is true that some of the claims are not met, yet some of (
them are. There is undoubtedly a pressure behind the —
mass if defendants’ machine far greater than ordinary
,
f
w When he put his ear to the outlet pipe is |
air pressure and varying according to the freedom with
which the air in the outlet tube is passing through it. As
each slug was discharged, the pressure in the discharge
pipe would lessen and the pressure behind the mass
amounting to something like thirty pounds would force
a further slug into the outlet. If this were not so, the
high pressure through the discharge pipe would hold back
the concrete.
As for the point raised that patents for kinetic devices
are pertinent prior art, it is answered by the fact that
neither the patent in suit nor the defendants’ device is
kinetic in operation.
The complainant is entitled to an interlocutory decree
with the usual reference, the same to be settled on notice.
A. N. H.,
D. J.
.
November 8, 1926.
24
CIRCUIT COURT OF APPEALS,
SECOND CIRCUFT.
CONCRETE MIXING & CONVEYING Co.
at No. 131.
POWERS-KENNEDY CONTRACTING Cor-
PORATION, ef al.
July 17, 1928.
Appeal from the District Court of the United States for
the Southern District of New York.
Suit by the Concrete Mixing & Conveying Company
against the Powers-Kennedy Contracting Corporation and
another for infringement of claims Nos. 2, 4, 6, 17, 21, 22,
28, 34, and 35 of McMichael patent, No. 1,127,660, granted
February 9, 1915, for “methods of an apparatus for trans-
porting and treating concrete.” Defendant corporation
was builder of the Queensboro Crosstown subway in
Forty-second street, New York City, and used in this work
a machine for conveying and placing concrete by com-
pressed air, which is alleged to infringe the patent in suit.
The individual defendant furnished the machine to the
corporation. Decree for complainant, and defendants
appeal. Aflirmed.
Appeal from the District Court of the United States sor
the Southern District of New York.
Joun D. Morcax, of New York City (ALAN M.
Jounson, of New York City, of counsel), for
appellants.
25
STEPHEN J. Cox, of New York City (WILLIAMs,
Brappery, McCates & HINKLE, of Chicago, IIL,
of counsel), for appellee.
Before—Manton, L. HANb, and Swan, Circuit Judges.
SWAN, Circuit Judge. These same claims were held
valid and infringed by the same District Judge in Con-
crete Mixing & Conveying Co. v. Ulen Contracting Corp.,
12 F. (2d) 929. We aflirmed that decree without opinion.
12 F. (2d) 931. A detailed description of the patent in
suit need not be here repeated. Subsequently Judge
Bourgutn held the patent invalid in Concrete Mixing &
Conveying Co, v. R. C. Storrie & Co. (D. C.) 23 F. (2d) 131.
It is urged that, because of his decision and the case of
Concrete Appliance Co. v. Gomery, 269 U. S. 177, 46 S. Ct.
42, 70 L. Ed. 222, as well as because of new matter intro-
duced in this record, we should reconsider the validity
of the patent.
The new matter is, of course, open to us and will be
dealt with hereafter. The Supreme Court case, however,
contains nothing, in our opinion, which casts doubt upon
the correctness of the Ulen decision; in fact, it was before
us when that decision was made. It holds, affirming the
judgment of the Circuit Court of Appeals for the Third
Circuit in 291 F. 486, that the Callahan patent, which
covered an apparatus operating on the gravity principle
for distributing “wet” concrete, was invalid, because it
merely nade use of known methods and appliances for
the convenient handling of this recently accepted building
material. The appellants’ argument runs that, since the
Supreme. Court emphasizes that old apparatus used for
distributing water, grain, or coal was readily adaptable
for handling concrete, so the prior art patents for blowing
wh See Mie Btwn d on Rip dh
ve verry
yee
_ -
a |
26)
sand, grain, or grout, which in the Ulen case were held
not to invalidate McMichael’s patent, should now be
deemed complete anticipations of it. But the Gomery de-
cision does not rest merely on the assumption that ap-
paratus for coal and grain could have been used for wet
concrete without inventive thought. Adaptations of old
carriers to handle concrete were shown to have been fre-
quently made for several years before the application for
the patent there in suit. The idea was already of com-
mon knowledge and was being applicd generally. There-
fore Callahan’s adaptation was not an invention.
(1) But that is a very differen@ituation from the one
before us in the Ulen case, where nobody before Mc-
Michael had ever used a pneumatic apparatus to trans-
port concrete. The Warren and Farnham sand-blast ma-
chines (patents No. 671,303 and No. 747,396) could not
have been so used without increasing the size of the dis-
charge pipes and cutting off the sand-blast nozzles. To
do this was to make a new machine, and one who thought
of doing it would have had a new and inventive idea;
that is, that of blowing concrete, which had not been done
before. When that is so, the physical change in the ap-
paratus need be very little to sustain a patent. The only
reason why a new one is not patentable is that the law
grants patents only for new things, not for new ideas.
Similarly Goldie’s tnachine (patent No. 707,810) for blow-
ing cement could not, so far as appears, have been used
as it stood for concrete, and never was so used. The
Supreme Court case does not require us to reconsider
the validity of MeMichacl’s patent.
(2) In the suit against Storrie & Co., Judge Bourgutn
seems to have relied to some extent, at least, upon pat-
4
‘
\
27
ents which were not in the record in the Ulen case and are
not now before us. But whatever the court as now con-
stituted might think of the correctness of our furmer rul-
ing, it is our duty to follow it, unless new evidence raises
questions of the patent’s validity not previously consid-
ered. See Cortelyou v. Charles E. Johnson & Co., 145 F,
933, 934 (C. C. A. 2); Crier v. Innes, 170 F. 324 (C. C. A. 2).
The new evidence of the patent art upon which appel-
lants rely to distinguish the Ulen decision includes two
patents granted in 1872 to W. H. Smith. No. 122,497 is for
an improvement in conerete pavements and claims con-
crete “prepared for use in a liquid or semiliquid condi-
tion, capable of flowing in pipes and running into molds.”
No. 122,198 discloses a machine for mixing liquid concrete
and conveying it by a discharge pipe from the mixer to
the spot where it is to be laid. The concrete is to flow
through the discharge pipe by gravity, or, as an alterna-
tive, after flowing by gravity through a small winding
passage into a chamber, F, is to be forced into the dis-
charse pipe by the pressure of steam or compressed air
admitted into the chamber above the mass of the concrete,
The chamber has a flat bottom of large area relative to
the size of the discharge pipe, the outlet of which opens
into the center of the bottom. While this machine dis-
closes the idea of forcing concrete through a pipe by
compressed air, whether it was practically operable may
well be doubted. It would seem that a large quantity of
the concrete, or at least the stones of which it is partly
composed, would necessarily accumulate upon the flat
bottom of the chamber. In any event, it was very dif-
ferent from MeMichael’s device, which injects air into the
conerete at its entrance into the discharge outlet. It can-
not be regarded as an anticipation.
lia it
NN ee Bo 8 eae Le 2,
a. prea)
NS BI tl os 5. Lain does
28
Nor can the argument that the patent in suit is limited*
to “dry” concrete, as distinguished from defendants’ “wet”
concrete, prevail. It declares on page 3, line 55: “It is
equally well adapted for the treating and handling of a
mass containing a considerable excess of water, in case
such an excess is for any reason found desirable.” The
other new references in the Patent Office (Canniff, Mc-
Ilvrid Beach, and Davidson) we regard as less persuasive
than those which were passed upon in the Ulen case.
(3, 4) The new defense of prior use was held by the
District Court not sufliciently proved, and with this we
agree. This use was of a machine which Artingstall and
Fanning said that they saw laying a concrete floor in 1903,
subsequently changing the date to 1904. That was 22
vears before they gave their testimony, and there was no
documentary corroboration of any kind. It is true that
in 1918 Artingstall described very generally before a meet-
ing of engineers that this process was practiced in 1903,
but that cannot be deemed documentary corroboration.
Fanning says the machine was also used in one section
of a tunnel in Chicago in 1903, and was apparently aban-
doned as too expensive. It is one thing to say that a con-
tinuous use to date may be found on oral testimony to
have started at a given time, and quite another to say thai
such testimony is enough when it describes only a casual
use, ‘abandoned thereafter, and never entering into the
art until after the patent in suit was applied for, an in-
terval of nearly 3 years. Such casual and abandoned
uses do not contribute to the stock of knowledge which
makes up the art. If we may invalidate a patent upon
such prior uses, so proved, no patent would be safe. A
prior use, such as constitutes an anticipation, was not
proven with the degree of certainty which the courts re-
29
quire. See Deering v. Winona Hartester Works, 155 U.
S. 286, 300, 15 S. Ct. 118, 39 L. Ed. 153; Internat. Cork Co.
v. New Process Cork Co., 6 F. (2d) 420, 424 (C. C. A. 2);
De Laski & Thropp Co. v. Fisk Rubber Co., 203 F. 986
(C. C. A. 1).
Much argument has been expended in an effort to estab-
lish just how the plaintiff's and defendants’ machines
operate in sending the concrete through the discharge
pipe—the plaintiff contending that both discharge it in a
succession of slugs or pistons, while the defendants claim
that both, or at least theirs, operate kinetically and float
the materials in the air, just as sand or grain is carried
in floatation. To us the dispute seems irrelevant. The
patent says nothing which commits the patentee to the
slug method of operation. The theory is built upon the
use of the phrase “submasses,” as in lines 72 and 89, page
2, where it is said that the lower air jet “engages with the
submasses to push them along.” But this cannot mean
solid “slugs,” for on the same page, lines 92-99, the effect
is said to be thoroughly to commingle all the ingredients
and insure\a better mix. Again, at line 113, page 3: “The
delivery pipe itself becomes a mixing chamber, wherein
pneumatic mixing is effected or continued.” And see,
also, line 86, page 3. Such statements necessarily forbid
the notion of solid slugs. All that is meant by “submasses”
is the portions that descend into the discharge pipe, 14,
and by their descent are separated from the general mass
in the main chamber 7. I is a synonym for “portions of
the mass as they move toward and into the discharge
duct.” Line 53, page 2.
Moreover, several of the claims in suit are for the ap-
paratus, or machine, and if they are infringed it is enough
for the purposes of this suit, whether the machine dis-
aS arr GS ca i a iG cali
a En Ser ea
DDiictestteititerns.rci sisi siteccastosmneasit So ae tL cs Bheeg ae ee TT BOOS
30
charges its concrete kinetically or in successive slugs.
Neither theory is entirely persuasive. Artingstall’s opin-
ion that the inner portion would be blown ahead of that
at the circumference of the pipe, which would be retarded
by friction, seems sensible. On the other hand, it is diffi-
cult to believe that particles of the mixture, including
stones of an inch and half in diameter, are floated inde-
pendently in the air, as sand or grain is blown. Ray’s
testimony regarding the stones effectively disposes of that
possibility under any such pressures as are used. It would
seem to us that the mass as a whole must block the pass-
age of air, forming an obstruction which yields at differ-
ent points, because of its uneven power of resistance, and
that the heavier stones must be carried by the impact and
momentum and cohesion of the lighter substances, the
whole mass going forward in a constantly agitated mixed
stream, just as McMichael describes. But whether the
coficrete goes forward as we imagine, or in some other
manner, there is no sufficient reason to suppose that de-
fendants’ machine does not operate in the same manner
as plaintiff's, whatever that manner may be. The District
Court on conflicting evidence found infringement of the
method claims (4 and 6), as well as of the apparatus
claims. We are not convinced that this finding was
wrong.
Apparently the “slug” theory was brought into the argu-
ment because it was thought necessary to distinguish in
this way from Farnham, Warren, and Goldie. We have
already suggested that those machines would require
modifications to operate with concrete containing stones
an inch and a half in diameter. Whether this was the
ground adopted to distinguish them in the Ulen case, or
whether the court as then constituted accepted the slug
theory, does not appear, and is not important. On some
a
we Drs .
aa
31
ground we distinguished the prior art, and sustained the
validity of the patent, and that ruling we should follow,
until its error is pointed out by higher authority.
It is urged that the defendants’ structure and operation
are different, in that (1) they do not use “dry,” air-
impervious concrete; (2) they do not put compressed air
pressure behind the concrete mass; (3) they do not use a
second compressed air stream at the bottom of the cham-
ber, to break the dry concrete into slugs; and (4) they do
not push the concrete through the delivery pipe in “slugs”
by air pressure from behind.
We have already alluded to a portion of the specifica-
tions which indicatcs that the patent is not limited to
“dry” concrete. It is true that the defendants’ machine
in its present form, whether or not this was so when the
suit was started, is operated without an air inlet into the
discharge chamber above the mass of concrete. But it is
admitted by defendants’ witnesses that, as soon as air is
injected into the discharge pipe, it is forced through the
concrete and establishes a pressure in the chamber above.
Mr. Ray, plaintiff's expert, testified that, because of this,
the operation without the top air inlet is identically the
same for all practical purposes as with the top inlet.
While the claims which specify an upper air inlet
(e. g., claims 2, 17, 34, and 35) might not be in-
fringed by a machine which omits it, the other claims in
suit make no reference to the upper air inlet. We think
there is clearly infringement of claims 4, 6, 21, 22, and 28.
The final decree appealed from awards money damages,
and is sustainable on the infringement of these claims,
even though other claims in suit were not infringed by the
machine used by defendants at the time of the trial.
The decree is accordingly affirmed.
MANTON, Circuit Judge dissents.
32
DISTRICT COURT, WESTERN DISTRICT,
WASHINGTON,
NORTHERN DIVISION.
ConcreETE Mixinc & CONVEYING Co.
Dv. No. 394.
R. C. Storrie & Co.
November 12, 1927.
In Equity. Suit by the Concrete Mixing & Conveying
Company against R. C. Storrie & Co. Decree for defend-
ant. €
Lynn A. WILLIAMS, CLirForD C, BrApBURY and
AuBerT G. McCaces, all of Chicago, Ill., and
BaATTLe, HuLBert & HELSELL, of Seattle, Wash.,
for Plaintiff.
CHarLes E. TOwNSEND, of San Francisco, Cal.
(S. F. Cuapwick, of Seattle, Wash., and WIL-
LIAM A. Lortus, of San Francisco, Cal., of
counsel), for Defendant.
Bovurguin, District Judge:
This infringement suit involves claims 1, 2, 17, 18, 24, 29,
34 and 35 of McMichael’s patent 1,127,660, granted Feb-
ruary 9, 1915, on application filed January 14, 1907. The
usual defenses are interposed.
The answer alleges there are 10,000 patents in the art,
cites 100, and there are ‘an extraordinary number of ref-
erences. For this, palliation is attempted by semi-
_
33
apolegetic “inability to forecast how they may be judged
by the court,” which may be taken as a courteous ex-
pression of doubt of the court's comprehension, or of fond
hope that it may be deluded. Of the claims in suit, 2, 17,
34, and 35 were held valid in Concrete, etc., Co. v. Corp.
(D, C.) 12 F. (2d) 929, Id. (C. C. A.) 12 F. (2d) 931. The
record of that case differs from this at bar.
In the beginning McMichael’s application was limited
to “improvements in apparatus for transporting granular
and plastic building material, such as sand, plaster,
mortar, and concrete.” Then, as now, the apparatus con-
sisted of an upright cylindrical container, with hopper
bottom terminating in a discharge pipe to the hopper con-
nected by a U-bend. Two separately controlled air pipes
connected with the container; one at the top, the other
near the bottem and pointing downward. The specifica-
tion in description of function and operation stated that
air “under any desired pressure,” admitted through the
upper pipe and over the material, by its pressure would
force the latter downward and through the discharge
pipe; that as the material passed through the U-bend it
would be more or less tightly packed, which would tend
to “hold the water and the granular material with which
it is mixed intact, so that the tendency to blow the water
out of the material is eliminated”; that “to loosen the
material at the lower end of the hopper, should the same
become packed, I provide the additienal air pipe adapted
to discharge air through the material.”
Of six claims, one only related to the lower air and as
follows: “An air pipe to deliver air at the lower end of
the hopper, substantially as described.” McMichael’s
prosecution of the application was dilatory to the limit
of time, once incurring forfeiture. After more than two
pe er eg emyeecmpenmneeemyn mena at a eee ae
3f
years, interference was declared with Leake. The latter’s
application had been filed October 7, 1907, and was for
“improvements in a cement mixing and distributing
system * * * for preparing a concrete mixture and
delivering it.” Leake’s apparatus contained all of Mc-
Michael's, and more, but without the U-bend. Its air pipes
were of single control, and that for the lower air
terminated in three nozzles opposed in one plane. In
function and operation Leake’s specification stated that
the upper air would force the concrete down past the
said nozzles, “where it can be detached in portions and
blown” into and through the discharge pipe.
Several of his claims were variations of this following,
viz.: “The method of conducting plastic material through
a closed conduit, which consists in introducing the plastic
material in a mass in a chamber connected to said con-
duit, introducing relatively compressed air behind the
whole mass and behind a front portion thereof, and there-
by detaching successive portions and driving them from
the chamber into the conduit and along the latter.”
For the purposes of interference, to McMichael the
Commissioner suggested four claims, including the claim
aforesaid verbatim from Leake, which McMichael
promptly accepted as substitutes for his six, thereupon
canceled by him. The interference was not concluded, for
that plaintiff became assignee of both applications. Ulti-
mately patents were granted for both, Leake’s, 1,215,558,
upon February 13, 1917; but, whereas McMichael’s con-
tains the aforesaid claim verbatim from Leake and sev-
eral like, but of some difference, in phraseology, Leake’s,
curiously enough, changed the form theretofore his own,
but retained the substance, In the meantime Bliss, of
Washington, had become attorney for both applications,
35
and January 24, 1911, and later in behalf of McMichael,
he filed very extensive amendments of specification and
claims, increasing the latter to 35.
In the course of these proceedings in McMichael (to
which the comment in Greenwalt’s Case [D. C.] 3 F.
{2d} 660, is applicable), the invention is expanded to in-
clude method, as well as apparatus, and by exclusion is
restricted to only concrete. Although the amended epeci-
fication included the function originally ascribed to the
‘lower air as aforesaid, it also declared that McMichael
had “found” that the lower air is “very effective in aiding
the passage of the material into and through” the dis-
charge pipe; that, “in cases where the friction” by the
mass driven down by the upper air “is serious,” the lower
air “gives to the material the velocity which is needed to
carry it to the remote point of delivery”; that it “acts
upon the submasses successively, * * * the result be-
ing thorough commingling of the ingredients,” for that
“the delivery pipe itself becomes a mixing chamber,” but
therein “the components are not driven apart or carried
to different distances because of differences in specific
gravity.”
The amendments so far ignore the U-bend, so prom-
inent in the original application and claimed eo nomine,
that its function in respect to granular material in the
original claimed is eliminated, along with all reference
to granular material itself, and in only two or more claims
of the patent is it indicated by the statement that the dis-
charge pipe is “provided with a bend,” without any func-
tion or effect ascribed to it, save that “the material will
be more or less tightly packed as it is directed there-
through.” The latter Standing alone, is not beneficial,
and, because detrimental, the U-bend in practice is no
longer used or incorporated in the apparatus.
a TCT i a ies
a
3b
The amended specification also stated that the upper
air is the primary torce, the pressure of which “compels
the entire mass to escape into the pipe with great rapidity
and force,” thence assisted in discharge by the lower air.
In practice, the air pressure is maintained at 100 pounds,
and the container holds about two cubic yards or less of
concrete. The claims in issue are for apparatus and
method in their various elements.
The charge of infringement against defendants is
predicated upon their use of Hackley’s apparatus, patent
1,619,297 of 1927. This latter is an oblong container, ovoid
in cross-section, without upper air pipes, but having four
~_
lower air pipes. The discharge pipe is at the bottom
and one end, and the disposition of the lower air pipes
is entrance at the bottom, pointing towards the discharge
pipe, one opening into the entrance of the latter, one
opening into the opposite end of the container, and be-
tween them open the other two and equalizing the dis-
at
tances between all of them in order. In operation the
container filled, the air is first admitted through the pipe
opening in the entrance to the discharge pipe, and there-
after through the others progressively to the rear as the
concrete subsiding in front of them is driven out through
the discharge pipe.
Plaintiff's contentions as they appear in its brief are
that McMichael invented (1) the hopper-bottomed con-
tainer; (2) application of compressed air to convey con-
crete; and (3) the method of the lower air to detach por- 1
tions of the concrete, which alternating with like slugs of
air, are driven through the discharge pipe.
In respeci to the first, containers with hopper bottoms
to direct the flow of their contents preceded McMichael
for time so long, the memory of man runneth not to the
contrary,
37
In respect to the second, long prior to McMichael were
many devices more or less like his, in which the art of
compressed air to convey mobile substances was de-
veloped and used. Whether or not it had yet been ap-
plied to concrete, to the latter is but a new and analogous
use, devoid of novelty or invention. The aflinity and
analogy of concrete to other mobile substances, com-
monly thus conveyed, was recognized by McMichael him-
self in his association of it with sand and other granular
materials in his original application. His subsequent ex-
clusion of all but concrete of those so associated is sug-
gestive of preparation for litigation to come. To extend
the art to concrete when it came into extensive use, not
invention, but only common sense, to say nothing of
ordinary mechanical skill to be expected in the progress
of the art, was required. In principle, it differs none from
like extension of the use of a wheelbarrow to convey
concrete, For a principle, appliance and method, applied
to substances in general, will naturally embrace any new
substance, even as a statute relating to a genus will open
to include newly created specigs.
The instant case cannot be distinguished in principle
from Concrete, ete., Co. v. Gomery, 269 U. S. 177, 46
S. Ct. 42, 70 L. Ed. 222, wherein it is held that appliances
and method of conveying mobile Substances by gravity
extended to concrete when it came into use, and a sub-
sequent patent to thus convey concrete is invalid, For
gravity, substitute compressed air, and that case “reads
on” this.
Moreover, prior to McMichael were patents for ap-
Pliances and methods to convey concrete by the agency
of compressed air. Amongst these are Smith, 122,498
of 1872, Cannif, 873,345 of 1%6, and Mcllvrid, 958,421 of
Sheeler sale ain Se TIO, cc
ere Ob Eee eer AL
tt) te ee ee ee ee ee ee
38
1905. In so far as it is argued that some of these are for
grout, and will not function with less liquid concrete, the
answer is they can be used for any practical flowable
concrete, and they have been. They are of the simplicity
of McMichael’s, and even average intelligence will per-
ceive their ability to operate successfully.
The-variety of concrete is not material, save in respect
to the mere incidentals of pressure and size of container,
load, and discharge conduit. In any apparatus, includ-
ing McMichael, the concrete must be flowable in quality,
and the pressure in due proportion to the weight and
friction of the load ahead of it. To suit these incidentals
to circumstances is mechanical, and not invention. And
this is true, be the container capacity or load discharged
in one slug (continuous stream) or in several shorter
slugs.
Adverting to the third of plaintiff's contentions, the
first observation is that the slug theory is nol proven and
is untenable. With 100 pounds of air from the primary
upper air pipe behind it, the concrete stands not on the
order of its going, but goes at once, and through the dis-
charge pipe “with great rapidity and speed.” In these
circumstances, the upper air does not halt until the lower
air has neatly cut off and removed a slug of concrete,
nor does the lower air, of like pressure from the common
reservoir, halt until within the field of its activity has
been projected sufficient concrete to form any slug.
In the nature of things, the patent now stipulating what
the application originally did not, viz. simultaneous and
constant application of both upper and lower air, the
lower air can but some disintegrate and aerate the mass
of concrete as it rushes by, and thereby lubricate, lighten,
and assist its flow through the conduit. The lower air
PP OPPS tery Wr
39
but joins and flows in the same direction and with the
stream of concrete. It may be that, if the upper and
lower air were alternately applied, some quasi slug ac-
tion would follow, akin to the action of Saunders’ “air-
lift pump,” patent 597,023 of 1896, but not when simul-
taneously applied as here,
Taking McMichael as it is, to expect or secure move-
ment of the concrete in alternate slugs of concrete and
air would do violence to the laws of nature and confound
reason, It cannot be done. Moreover, the proof is clear,
vy plaintiff's witness as by defendant's, and some who
are interested in plaintiff, that the concrete discharges in
a continuous aerated or mixed stream of concrete and
air, and not at all in any slug formation,
As between Wilkin’s test, discrediting the slug theory,
and Ray's, supporting it, the former's is calculated to
more nearly approach accuracy, Evidently McMichael
“found” the basis of the slug theory in Leake, and his
claim aforesaid by the Commissioner presented to and
adopted by McMichael. Until then McMichael did not
suggest that the lower air had any such function or result;
until then, he limited the lower air in some undefined
volume and pressure to only some time use if the mate-
rial chanced to pack in the hopper, to blow through the
material and loosen it, in function, object, and result,
nothing but a convenient substitute for a crowbar.
To thereafter broaden his claims, to embrace the idea
and method of Leake, avails McMichael nothing. See
Hobbs v. Beach, 180 U. S. 396, 21 S. Ct, 409, 45 L. Ed. 586.
The impression irresistibly created by the facts is that,
after knowledge of Leake, all McMichael’s amendments
Were to include Leake’s idea and method, and to exclude
from McMichael’s original application all possible that
ee any oe Pare,
re
w
Zs
was inconsistent therewith. Be that as it may, that in
McMichael as in Leake the lower air serves a useful pur-
pose clearly appears; but, as between them, in its present
aspect in McMichael it is the idea and method of Leake,
and not McMichael, in that, prior to McMichael, Leake had
conceived the idea, and in 1905 in New Orleans had pub-
licly and successfully employed it in concrete building
operations.
For, despite Leake’s reluctance to testify against his
assignee, the plaintiff, the evidence in quality and quantity
inspires confidence and constrains conviction of the truth
of the fact and beyond reasonable doubt. Neither of
them, however, is inventor of the thing. Before them, it
was old in the art.
Amongst many patents asserted to be anticipatory of
the idea and use of the lower air, but three need be con-
sidered. Of these, the first and second are Duckham's
English patents 4,100 of 1875, and 15,348 of 1885. They
are for apparatus and method to convey the spoil or
mud excavated in dredging. To that end are’ employed
a container for the material, compressed air above or
behind it to drive it down to and through the discharge
pipe, and like air through several nozzles in the bottom
and pointing towards the discharge pipe, “to keep the
mud agitated and prevent any thick deposit in the tank.”
The third is Kolsche’s German patent, 18,394 of 1882,
for “apparatus for conveying substances, slack, sandy, or
granular material, by means of a current of air.” The
apparatus is like McMichael’s, without the U-bend; that is,
it is an upright cylindrical container, with hopper bot-
tom terminating in a discharge pipe. Compressed air is
applied above or behind the material in the container, to
force it down and into the discharge pipe, and at that
41
point like air is admitted to assist in driving the material
through the pipe.
Without any change, perhaps, save adjustments to cir-
cumstances as always, Kolsche's apparatus and method
will transport concrete as does McMichael’s. Kolsche
could rightfully devote it to that analogous use. It fol-
lows that McMichael’s essentially unchanged application
of Kolsche to analogous materials and uses, is not inven-
tion. In principle, essential design, function, operation,
object, and result, Kolsche and McMichael are one and
the same. Either reads on the other. Kolsche, if later
and devoted to concrete, might infringe McMichael, and
by the same token, being earlier, he anticipates him.
The same is true of Duckham, especially in respect to
MeMichael’s application originally, and their common use
of the lower air to prevent or relieve packing of the mate-
rial, It must be remembered that the test of “analogous
uses” is not from whence comes and where goes the mate-
rials, to what ultimate end or use, or their nature, but
is the method of conveyance. Although fertilizer and
flour be unlike, and for ends as wide apart as the poles,
a wheelbarrow conveying both is devoted to analogous
uses, in patent law.
In so far as the third contention counts upon non-
separation of the components in the discharge pipe, this
result is imputed to non-existent slug action, and is in-
consistent with the claim that the ingredients continue in
active mixation throughout the pipe. But note that in
the original application this function of the U-bend was
in relation to granular material only, and, with the lat-
ter's elimination from the patent, the function was like-
wise eliminated. It may be added that the nonseparation
of components of plastic materials is due to that mutual
42
cohesiveness which granular materials do n6t possess.
All the elements of McMichael are old. It does not appear
that he discovered, invented, combined, or made any-
thing new.
That serves to dispose of the case, and the defense of
noninfringement needs no more consideration than to
note that Hackley’s apparatus is a different combination
than McMichael’s, has no upright cylindrical hopper bot-
tomed container, is without the U-bend, employs no upper
air, save some incidental back pressure, does not dis-
charge slug fashion, as claimed is the invention of Mc-
Michael, and so does not infringe. Likewise of the de-
fense of insufficient supplemental oath to McMichael. It
is noted that this was required by the Commissioner,
February 18, 1911, was supplied by Bliss, February 17,
1912, purports to have been executed by McMichael, of
Toledo, before Bliss, Jr., in Chicago, March 6, 1911, dis-
closes in some lettering and spelling of McMichael’s sig-
nature, striking differences from his signature to his ap-
plication, applies to only part of the claims, and that Mc-
Michael some time died.
The finding and conclusion are that the claims in suit
are void for want of novelty and invention.
Decree accordingly.
43 ’
IN THE
UNITED STATES CIRCUIT COURT OF APPEALS,
For THE NINTH Circurr.
CONCRETE MIXING AND CONVEYING Com-
PANY (a Corporation),
Appellant,
D. No. 5425.
Rh. C. Srorrre & Company (a Partner-
ship),
Appellee.
Lyxwn A. Wittiams, C. C. Brappury and A. G. Mc-
Cates, of Chicago, Illinois, Attorneys for Plain-
tiff-Appellant.
Cuas. E. Townsenp of San Francisco, Attorney
for Defendant.
Before Ginnerr. RupkKiIn and Dierricu, Circuit Judges.
The appellant brought a suit alleging infringement of
Claims 1, 2, 17, 18, 24, 29 and 35 of Patent No. 1,127,660,
», to John H. McMichael, assignor,
n apparatus for, transporting and
issued F ebruary 9,
for a “Method of,
treating concrete.®¥
14, 1907, and was pending in the Patent Office more than
eight years. As originally filed, the application was for
“Improvements in apparatus for transporting granular
and plastic building material, such as sand, plaster,
mortar and concrete.” The apparatus, as patented, con-
sists of a vertical closed cylinder, tapering toward the
base, to discharge into a U-bend connected with a conduit
1e application was filed January
(eater NEI ra
At
having an air nozzle at the top of the cylinder and an air
nozzle near the entrance to the U-bend, each separately
controlled, under pressure of which the concrete mate-
rigi in the chamber is forced through the conduit and
carried to the point where it is to be deposited. It was
claimed that the appellee infringed by use of the device
as described in Letters Patent No. 1,619,297, issued March
1, 1927, to Roy C. Hackley, for a “Concrete Gun,” which
consists of a horizontally disposed oblong tank, ovoid in
cross section, with the narrow portion disposed down-
wardly and with a tapering nozzle to which is connected
a discharge pipe for conveying the concrete. Air pres-
sure is furnished by four air supply pipes extending with-
in and along the bottom of the container and terminated
at different points intermediate the ends of the tank. Into
the pipe which terminates nearest the exit the air is first
admitted and thereafter into the others in their order
until all the concrete is driven into the discharge pipe.
In the specifications it is said that the pipe which ter-
minates near the nozzle insures that pressure shall always
be present there directing the concrete into the discharge
pipe, and that the remaining pipes serve to advance the
body of concrete along the bottom of the tank until the
tank is completely emptied. The containers in both the
appellant’s and the appellee's patents are filled with con-
crete through openings in the top which are then closed
by air-tight lids. At the close of the trial the court be-
low found the appellant’s patent anticipated and invalid,
and that, even conceding its validity, it had not been in-
fringed by the appellee (Concrete Mixing & Conveying
Co. v. R. C. Storrie & Co., 23 Fed, 2d 131).
Gitpert, Circuit Judge, after stating the facts:
In the prior art were shown numerous patents involv-
45
ing the use of compressed air for conveying through pipes
a wide variety of materials such as concrete, crude oil,
dredge spoil, sand and Water, grain, molten sulphur, ete.
As to all prior patents the appellant insists that none is
anticipatory of its combination, for that they all lack the
salient feature thereof, the arch-breaking nozzle or any-
thing that could exercise the function thereof. Of the
prior patents we find it necessary to refer particularly to
but three, the patent to Smith, No. 122,498, of January 2,
1872, and the English patents to Duckham, one, No. 4,400,
of 1875, and one, No. 15,3 18, of 1885. The Smith patent
was for “An improvement in the manufacture of concrete
pavements and machinery for same.” The specifications
described the apparatus as specially adapted to the manu-
facture and convection of concrete composition through
Pipes so as to set quickly upon reaching its destination
and form a solid mass of. artificial stone, and uncontra-
dicted testimony was given of the successful use of the
Smith machine in conveying concrete through a pipe by
compressed air, The device contained all the features of
the appellant's patent except the nozzle for admission of
air near the point of exit. The Duckham patent of 1875
was for improvements in discharging mud or soil from
dredges. The mud was received in tanks capable of be-
ing closed air-iight, with the exception of inlets for the
compressed air and an outlet for the spoils. In the speci-
fications Duckham said, “I prefer to inject compressed
air through a number of nozzles at the bottom
of the tank, said nozzles being pointed toward the outlet.
By this means the particles are prohibited from settling
and are kept in suspension until the whole is expelled
from the tank, Compressed air may, moreover, be ad-
mitted into the discharge pipe with the same object.” We
ameoe
as
46
think it indisputable that Duckham, in prescribing the use
of pipes for the admission of compressed air in the tank,
the same distributed along the bottom of the tank and
one of them locatable at the exit, presented the use of all
that is included in the appellant’s combination, save and
except the U-bend, an exception which is negligible so
far as the present litigation is concerned, and if there is
distinction in the fact that Duckham used no air pressure
above the contents of the tank and thus omitted one of
the features of the appellant’s combination, that feature
is also absent from the Hackley combination used by the
appellee. But the appellant asserts that Duckham was
working with a material which would flow with facility
and that the nozzles which he used were intended for no
other purpose than to stir up the mud in the bottom of
the tank. It is true that Duckham was engaged in moving
a material quite different from concrete, but that fact is
not of importance on a question of anticipation (Con-
crete Appliances Co. v. Gomery, 269 U. S. 177). In his
second patent of December 14, 1885, Duckham says:
“The mud or spoil was received directly from the dredging
buckets in a tank or tanks, whence it was expelled through
outlet pipes by means of compressed air admitted at the
upper part of the tank, assisted by compressed air and
water injected at the bottom of the tank to agitate the
mud and prevent thick deposit,” and, if we may refer to
the Engineering Publication Minutes of the Proceedings
of the Institution of Civil Engineers (1887), in evidence
here, we find that Duckham stated that “with clay or
stiff mud, if the nozzles of the air-injection pipes were
too small, the compressed air, instead of driving out the
materia!, simply pierced holes through it, escaping
through the discharge pipe and carrying along with it all
PR RRR cen peermmeeRe seers
47
the liquid and thin material in the tanks. This defect
was easily rectified by rearranging and increasing the
size of thetarge injection nozzles, and the apparatus now
gives most satisfaclory results.”
It is assigned as error that the trial court found that
Leake had made the invention in issue prior to the date
of MeMichael’s application. In the opinion of the trial
court it is said, “Prior to McMichael, Leake had conceived
the idea and in 1905 in New Orleans had publicly and suc-
cessfully employed it in concrete building operations, for
despite Leake’s reluctance to testify against his assignee,
the plaintiff, the evidence, in quality and quantity, inspires
contidence and constrains conviction of the truth of the °
fact. and beyond reasonable doubt.” The McMichael ap-
plication was filed January 14, 1907, and nine months
later, on October 7, 1907, was filed Leake’s application,
which presented everything contained in the McMichael
application with the exception of the U-bend. Leake said:
“The object of my invention is to provide a method and
apparatus for preparing a concrete mixture and deliver-
ing it while in a plastic condition to the place where it
is to be utilized. Another object of my invention is to
move plastic concrete from one place to another by means
of air pressure.” On May 12, 1909, interference was de-
clared between MeMichael and Leake and Wm. W,
Darley, who had applicd for a patent on “apparatus for
handling ashes and other materials.” Leake and Darley,
each filed an aflidavit setting forth their respective dates
of conception and reduction to practice. Darley was dis-
missed from the interference as being found subsequent
in time to the others. Leake’s aflidavit stated that he
“conceived the invention set forth in the declaration of
interference on or about the 1st day of February, 1905,
“reas:
rind Seta
48
that he first made drawings of the invention on or about
the Ist day of March, 1905, and first explained the inven-
tion to others on or about the Ist day of June, 1905, that
he first embodied his invention in a full-sized machine,
which was completed on or about the Ist day of Septem-
ber, 1905, and that on or about the Ist day of September,
1905, the said machine was first successfully operated in
the City of New Orleans, and State of Louisiana, and that
he has since made and used other machines embodying
the same invention.” Before the interference was de-
clared it was represented on behalf of Leake’s applica-
tion that he had done a large amount of experimental
work in connection with his invention. “He has success-
fully moved concrete from the place where it is mixed
to the place where it is to be used, by means of air pres-
sure, using the apparatus disclosed in his application.”
Again it was said: “He has given considerable time and
thought to this matter and has actually constructed sev-
eral plants where this is done. Their operation is highly
successful and appears to be a decided improvement over
previously known methods for handling plastic concrete.”
But no showing was made or evidence offered to carry
the McMichael invention further back than the date of
his application nor was any proceeding had in the Patent
Office upon his application until 19 months thereafter
when, for a consideration of 36,000, Leake assigned his
application to MeMichacl’s attorney, who later assigned
it to the appellant, which had also become the owner of
the McMichael application. The long period of inaction
and silence on the part of McMichael, unexplained as it
is, together with the payment to Leake of so large a sum
of money as $6,000, payable, as it was, in annual install-
ments until March 1, 1920, is strongly suggestive of the
ee |
i
49
inference that McMichael recognized the priority of
Leake’s invention and could furnish no proof to the con-
trary. As a witness for the appellee in the court below,
Leake testified that he conceived the idea of moving con-
crete as set forth in his application, about February 1,
1905; that he made a container in which to put the con-
crete and by the means of an air pipe extending there-
from shot it up on top of a powerhouse then being con-
structed in New Orleans; that when the air pressure was
applied, the concrete all went up and landed on there;
that later he built a commercial apparatus in Chicago
and operated it in conveying dry cinders to the fifth floor
of a building. His testimony, together with his prelim-
inary statement, carried the date of his invention back
of that of McMichael and showed an actual reduction to
practice by Leake as early as 1905. We find no ground
for disturbing the trial court’s conclusion. The question
at issue was, which of two applicants for patent was the
inventor? Both presented drawings and plans of the
same invention. Leake furnished evidence of the time,
place and circumstances of the reduction of his inven-
tion to practice. There was no denial of the truth of his
testimony. In Armstrong v. De Forest Radio Telephone
& Tel. Co., 280 Fed. 581, 590, it was said: “While it is true
that uncorroborated testimony of an inventor is to be ac-
cepted with caution * yet there is no rule of law
that requires the rejection of the uncorroborated testi-
mony of an inventor as to the date of its conception. The
Court must be satisfied as to the fact of the demonstration
and that the conception was complete.” In Reed vy. Cutter,
1 Story 590, 596, Mr. Justice Srory said: “If the inven-
lion is effected and put into actual use by the first and
original inventor, it is of no consequence whether the in-
eo)
vention is extensively known or used, or whether the
knowledge or use thereof is limited to a few persons, or
even to the first inventor himself.” So in C. F. Mueller
Co. v. A. Seregas Sons, 12 Fed. (2d) 517, 518, considering
the question which of two was the real inventor, Judge
Hoven said: “The question of invention as between
Mueller and Wild is really only one of veracity. There
are no presumptions or artificial rules regulating such
an investigation, and the evidence of one witness may
be suflicient,” citing Thompkins v. N. Y. Woven Wire, etc.,
Co., 159 Fed. 133. That the testimony of one witness may
be sufficient in such a case is held in Mayor vy. A. & H. G.
Mutschler, 248 Fed. 911, 914, where it was said that one
witness may suftice if the surrounding circumstances are
confirmatory.
But it is insisted that neither Leake’s combination nor
that of Duckham can operate successfully, as does that
of the appellant, to convey concrete and pack it at the
place where delivered more effectively than could be done
by hand tamping, a result which, it is said, is accom-
plished by the appellant's delivery of the concrete with
velocity and momentum in successive slugs or parcels.
The tiral judge held that the slug theory is not proven
and is untenable, and said, “It may be that if the upper
and lower air were alternately applicd some quasi-slug
action will follow, akin to the action of Saunders’ air-lift
pump, Patent 597,123 of 1896, but not when simultaneously
applied, as here.” There was no suggestion of a slug
theory in the original application of McMichael, but when
the patent was issued, more than eight vears later, it was
stated in the specifications that the lower air pipe ad-
jacent to the discharge duct “serves the double function
of preventing choking in the entranee to the delivery pipe
=.
51
and of supplying air under pressure in sharp jets directly
to the delivery pipe itself.” The slug theory was obviously
adopted, from expressions found in Leake’s application
in which he proposed the use of a combination consisting
of two tanks discharging into a single conduit alternately,
by means of which the main body of concrete “can be de- :
tached in portions and blown into the conduit and driven
along the same.” Such a result might be accomplished
by the use of his combination, but it is not apparent that
any slug action occurs in the use of either the McMichael
or the Hackley combination. In neither is there inter-
mittent pressure or “sharp jets” of air and in both there
must necessarily be exerted a steady and continuous force :
from the upper and the lower air nozzles combining to
drive forward the concrete and deliver it in a practically
unbroken stream, and if, indeed, a temporary obstruction
of material at the exit should occur it is not believed that
its release would result in a slug action or a constantly
intermittent propulsion of concrete, or that if such an in-
termittent action could in practice be accomplished any
advantage would thereby be attained. The decided
weight of the testimony is to the contrary. It is stated in
the btief of appellant's counsel that the appellee's
engineer, Hackley, admitted that the appellant's ap-
paratus “operates on the slg principle.” We do not so
understand Hackley’s testimony. What he said was that
the air mixes with the concrete and as such prevents it
from discharging as a solid mass, and that “the mass is
broken up into portions which are driven ahead under
high velocity by the air discharging from the pipe 34, this
being of considerable importance as it positively prevents
choking or blocking up of the apparatus.” Hackley was
speaking only of such breaking up of the discharging
al ie ee ae ws
52
column as resulted from the admixture of air and con-
crete in the discharge pipe. He testified to having had
experience in using the applicant's combination and that
in so using it the concrete issued in a continuous stream
and that in the use of his own device the concrete came
out in a continuous stream mixed with the air, that the
speed of the discharge thereof could be controlled by
the operation of the valves and in use was so controlled
as to make it as slow as possible for the purpose of pre-
venting separation of the concrete and to prevent wear on
the pipes, and that when the concrete is discharged it
flows by gravity down the sides. Brock, a witness for the
appellant, testified that in the Skagit tunnel the concrete,
when it came out through the 8-inch discharge pipe,
“flowed down gently like over both sides.” And such was
the testimony of all the witnesses who observed the
operation of the device in the Skagit tunnel. In fact,
there is but one witness for the slug theory, Ray, a con-
sulting engineer and patent expert. He testified, in an-
swer to the question: “How many slugs moved in a sec-
ond?” “There may be twenty or thirty come out in a
second, Then there will be a lapse of a second or two
when none will pass through. Then there will generally
be a group of two or more in the next quarter sec-
ond. * * * It is impossible for the naked eye to detect
the individual slugs of material issuing from the dis-
charge end of the duct.” Wilkins, an electrical engineer,
an expert, testified, on behalf of the appelice, that he was
familiar with the apparatus in controversy and had made
tests in its operation, that in the use thereof there were
no slugs or plugs such as Ray had testified to, that it was
a continuous flow of the mixture of air and concrete, and
that it issued from the discharge pipe without spurts or
i
53
dumps. The court below credited the testimony of Wil-
kins as against Ray, and we think the court was sup-
ported by the overwhelming weight of the testimony.
We think that the slug theory, when all is said, has no
bearing upon the merits of the present controversy, for
whether or not the appellant's apparatus operated to
deliver concrete in slugs or sections, it is very clear that
the Hackley apparatus operates in delivering a constant
stream of concrete, interrupted only so far as it is in-
terfered with by the air which accompanies it through the
discharge pipe. Hackley used a horizontal tank and in
his specifications he said: “With the present apparatus
the concrete does not tend to pack or bridge around the
nozzle as is the case where vertical tanks are used. The
mass of concrete which any one air stream is compelled
to move is relatively small and unpacked, and therefore
the device operates quickly and easily and without dan-
ger of becoming clogged.” The decisions in Concrete Mix-
ing & Conveying Co. v. Ulen Contracting Corp., 12 Fed.
2d) 929, and Concrete Mixing & Conveying Co. v. The
Powers-Kennedy Company, relied upon by the appellant,
were based on records widely different from that in the
case at bar.
The decree is affirmed.
(Endorsed): Opinion filed August 20, 1928. Paul P.
O'Brien, Clerk.
eee oo wt tees
ARIUS DR Lea oat ailesil
g
No. 747,396. PATENTED DEC. 22, 1903. i
N. FARNHAM. f
SAND BLAST APPARATUS. é
APPLICATION FILED APR 10, 1903, &
* go MODEL :
‘
oh shina 5 . INVENTOR a
| a AL Beeler’ te lrd SH 9 pea
: PKC ‘Che. fae Tm rj
No. 747,396.
UNITED STATES
4
Application fled April 10, 1903.
Jaall whom it may concern:
Beit known that I, NEAL FARNHAM, a citi-
sen of the United States, residing at Chicago,
in the county of Cook and State of Illinois,
s bave invented certain new and useful Im-
provements in Sand-Blast Apparatus; and |
do declare the following to be a fall, clear,
and exact description of the invention, such
as Will enable others skilled in the art to which
o itappertains to make and use the same, ref-
erence being had to the accompanying draw-
ing, and to the figures of reference marked
thereon, which forms a part of this specifica-
tion.
5 Myinvention relates to a sand-biast appa-
ratus; and it has forits objeot to producesuch
an apparatus in which the sand will pass from
the reservoir or tauk by gravity alone or by
gravity aided: by compressed air within the
reservoir uuder regulation, the sand passing
from the tank through a del‘ very-pipe lead-
ing W a blast-pipe provided with a blast noz-
ue or jet whose point of discharge is sub-
stantially beneath the discharge of the de-
livery-pipe into the blast-pipe, so as to pre-
vent any backflow of air from the sand-car-
rying pipe or hose into the delivery-pipe and
at hesame tiine permitting the air-blast from
the blast-nozzle to impact against the sand
as it flows from the discharge-pipe, so as to
drive it through the sand-carrying hose to
the point of its application.
It has, further, for its purpose to provide a
coupling between the vertical discharge- pipe
leading from the sand-tank, the saud-carry-
iug hose, und the air-blast-supply pipe, ar-
ranged so that the coupling will stand at an
oblique angle to the longitudinal axis of the
lischarge-pipa, whereby the air-blast will be
projected at an oblique angle across the dis-
charge-méuth of the vertical discharge-pipe,
the purpose of the tirst and second stated ob-
jects being to facilitate the freer passage of
the sand from the tank through the discharge
and into the sand-carrying hose and without
clogging of the sand at either end of the dis-
charge-pipe, which otherWise would be liable
to occur by reason of back pressure of air in
the discharge-pipe and condersation of mois-
ture ir the air-blast.
Tothe accomplishment of the foregoing and
,
Patented December 22, 1903.
PATENT OFFICE.
NEAL FARNHAM, OF CHICAGO, ILLINOIS.
SAND-BLAST APPARATU.
SPECIFICATION forming part of Letters Patent No. 747,396, dated December 22, 1903.
Serial No. 151,998. (Mo model.)
pear the invention consists in the construc-
tion and in the arrangement of parts herein
after particularly described and then sought
to be clearly defined by the claims, reference
being had to the accow panying drawing, form-
ing # part hereof, and in which the,figure isa
side elevation of a sand-tank having my in-
vention applied, a portion of the upper part
of the tank being broken away. .
Iu the drawing the numeral | designates
a tank of any suitable couffguration and di-
mensions designed .v hold the sand. From
the bottom of the tank leads a discharge-pipe
2, provided with suitable valves or valve 3
to regulate the flow of saad through the pipe.
To the lower end of the discharge-pipe is at-
tached a Y-coupling 4, which is inglined to
the pipe 2 and, as shown, stands obliquely
or at an angle of about forty-five degrees,
more or less, to the longitudinal axis of the
discharge-pipe. To oue end of this coupling
is attached, by a nipple 5 or othérwise, a sand-
carrying hose 6 of any desired length to lead
to the puint of application of the sand-blast,
which hose may be of pliable material or of
rigid material provided with any desired num-
ber of flexible joints 6. Totheotherend of the
coupling is connected an air-blast pipe 7, to
which compressed air is supplied through a T
or other coupling 8 from a suitable soyrce of
supply. The otherend of the pipe 7 opens into
the upper part of the tank 1, and said pipe is
provided witha valve 9, by which thesupply of
cut off, and it is also provided with a valve
10, by which the supply of coupressed air to
the blast-nozzle may be controlled. At the
point where the air-blast pipe 7 connects with
the inclined coupling 4 it is prévided with a
nozzle or jet 11, which enters the coupling, so
that its point of discharge will lie below the
dischatye- mouth of the discharge-pipe 2, lead-
iug from the tank, the best results being ob-
tained when its point of discharge is about
midway of the discharge-mouth of the dis-
charge-pipe. By thus positioning the air-
blast nozzle the air is projected across the
mouth of the discharge-pipe 2 without the
blast passing up into the discharge-pipe and
at the same time creates a suction across the
discharge-pipe and down through the same,
such other objects as may hereinafter ap-
so that the downflow of the sand through the
air to the tank may be regulated or entirely .
$5
60
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65
EL UT OLY PILLS, BEAL ICE IE LION See
7°
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&
7s
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85
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102
ee
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Ne cance De NR atin calc
4
pipe isgreatiy facilitated. At the same time
the faree of the air-blast from the nozzle
across the month of the discharge pipe strikes
the sand ss i! issves from the mouth of the
s pipe and propels it with velocity away from
the pipe sud through the carrying-bose and
prevents any back tlow or back pressure from
the huse or coupling aud iuto the discharge-
ipe.
10 aa not only retard the downflow of the
sand, but it would also result in the sand be-
‘oming moist from condensatinu of the com-
pressed arr, and thus the pipe would become
clogged ane the eMoccent working of the de-
ig Viveintest red with, Phe inelination of the
coupling at
e@ Pipe also vids in the rapid flow of the sand
fromthe mouthed the discharge pipe, so as to
aid in preventing backflow or back pressure
20 of air.
By adjustiueit of the valve 9 more ur less
peessure of alr may be wdimitted to the tank
to assist the outflow of sand therefrom and
its outidow regulated to a nicety, or the air
ag may be entirely cut off from the tank,
Thetank way besupported fromthe groapd
Upon any suitavle stand or otherwise sup-
ported.
Thave indicated onthe drawing the pre- |
30 ferred dimensions uf the parts, but they may
be varied within reasonable limits,
Having described wy invention and set
forth its merits, what | claim is—
1, Asad blast apparatus comprising th-
the lower end of the discharge: |
| tank, the discharge pipe leadias
If this back pressure were permitted,
'tunk,
747,396
tank, the discharge pipe leading from it, ‘ue
Com prossed - air-supply pipe, sand-carry ig
hose, aud the air-blast puzzle lias ingeits point
of discharge beneath the mouth of the dia.
charge-pipe leading frou: the tunk, substan-
tially as described.
2. Asaud-blast apparatus o Maperisinige Che
1 ‘oun ty the
inclined coupling atts lowe bet thea»
chargespipe. the compres ccaiesuppis ine
the sand ithas’
nozle entering the inediwed coantiuw aad
having its PomMt oo ised
mouth of thediselwary e jlo bev efi
tanh, substantially ieseri bed,
Wh A sand tlasi apparatus Coluprising: |
the discharge-snmipe jeading frovu ity te
the sand-earrying hee tie compressedsai
supply pipe opening ote he opper part of
the tank and having th dpi. and lower en
trolling - Vaives, the (uel sad couplings be-
tween the saod - carrying hose, the Com:
Pressed-air-supply pipe ain? the discharze
pipe from the iamk, and che aireblast mozety
haviig its point of Biseharge on the ine
coup one beveath the mouth of the diseliarnge:
Carrs fig Dos . ng
yt
liati @ ty eee
'
sé
Ft
vthed
) Pipe from the tank, substantially as dy
sesrhed
Bry testipe cerry whi ¢ Tk Inv eianrgts
} ‘ '\ +t ” H tN Uy SUplita. dace
I presences of twe witnes
NEAL FARNUAM
\V af theessaen:
Wott. ffosprisos
{
GCeiver, *h
35
40
wr
wn
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