# Appendix — Anderson's-Black Rock, Inc. v. Pavement Salvage Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 57

## Text

TABLE OF CONTENTS

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inion and Mandate United States Court of Ap-
peals for the Fourth Circuit, November 6, 1968

_ Order of the United States Court of Appeals for the
Fourth Circuit Filed November 22, 1968 ......

Opinion of the District Court, 8S. D. W. Va., July
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: Final Decree of the District Court, S. D. W. Va.,
© March 23, 1967 «02.2. eeeseeeeereeeeeeees
_ Excerpts From Trial Transcript .................
= From Deposition of Leslie B. Crowley

Claims 16 and 18 as Originally Filed in Neville
Ne Sek ka eEN ENTE Een we es oo

? Words extolling its own products in sales promo-
tional material should be discounted, perhaps, but the
‘“‘dramatic breakthrough’’ was. Neville’s; the ‘‘revolution-
ary’’ application of the energy was his, not Aeroil’s. Such
statements, of course, are quite inconsistent with Aeroil’s
present position that what Neville did would have been
obvious to a person having ordinary skill in the art.

As we have indicated, it is not contended that Neville’s
claims are anticipated by any prior art patent. It is con-
tended that three or more of them, together, disclose all
that Neville claimed, and that because he cannot separately
claim the generator or the basic paving machine, he can-
not claim the combination. The defense is simply obvious-
ness. The prior art, however, is predominantly a long
history of failure to solve the problem by heat treatment.
At a time when the industry was concenirating on a quite
different, though expensive, partial corrective, there was
nothing in the junk pile of prior art heat treatment patents
to make it obvious to anyone that they supplied the ulti-
mate solution. That this is so is forcefully demonstrated
by the duration of the fruitless search, by the skepticism

10a

Opimion and Mandate United States Court of Appeals

and incredulity with which experts in the field received
Neville’s disclosure, by its commercial success after dem-
onstrations dissipated the disbelief of the experts, by the
conduct of competitors in accepting licenses and pur-
chasing equipment and the bold tribute of the alleged
infringer in hailing it as the very antithesis of the obvious.

The District Court was not unimpressed with all of this,
but it viewed the question as if it were known that the
answer lay in heat treatment and that a generator of the
type described by Neville would do the job. Had it been
known that the result could be achieved by a generator and
a paving machine handled separately but cooperatively,
combining the two in one machine for the sake of con-
venience would have been an obvious step, but that was
not known. Neville supplied the whole of the answer which
had completely eluded the industry. His contribution can-
not be judged without reference to its salient feature, dis-
closure of the fact that the solution lay in the use of a
specified kind of infra-red generator in combination with
the basic paving machine.

We reverse the judgment holding the patent invalid and
remand for further proceedings on the infringement and
other issues.

Reversed and remanded.
Craven, Circuit Judge, dissenting:

The court concedes, as I read the opinion, that what
makes the thing work is better radiant heat generators of
the Schwank type. It is not even contended that Pavement
Salvage can monopolize such improvements. Nor is it
demonstrated to my satisfaction that the combination on
one chassis of the paving machine and heat generator is

lla

Opinion and Mandate United States Court of Appeals

necessary to produce the desired result. Yet, the combi-
nation is held patentable, though for all we know the same
desired result may be achieved by two machines juxtaposed
and separately propelled.

I adopt what was said by Judge Field in his unpublished
opinion below:

‘‘[P]laintiff has combined four elements which
were known in the prior art. Three of the elements,
the screed, leveler and spreader, when constructed
on one chassis would not be a patentable invention.
However, plaintiff added to this combination the ele-
ment of a radiant burner. The burner, by itself, is
also not patentable. Therefore, the question here is
whether the addition of the burner to the paving
machine which contains the other three elements has
overcome the obviousness of the total combination.

‘¢ . . Plaintiff’s patent is a combination patent.

The question of radiant heat was old in the art. The

pivotal question would be more logically appear to

be, assuming that the radiant heat would work effec-

tively, was it obvious that a more successful machine

would evolve if all of the elements were constructed

on one chassis? It is my opinion that such a com-

Gf bination was reasonably obvious to one possessing

€ ordinary skill in the art.

“In A & P Tea Co. v. Supermarket Corporation,
340 U. S. 147 (1950) the Court made the following
statements :

‘It is agreed that the key to patentability of a
mechanical device that brings old factors into co-
operation is presence or lack of invention.

12a

Opinion and Mandate United States Court of Appeals

‘The negative rule accrued from many litigations
was condensed about as precisely as the subject
permits in Lincoln Engineering Co. v. Stewart-
Warner Corp., 303 U. S. 545, 549:

‘‘The mere aggregation of a number ‘of old parts
or elements which, in the aggregation, perform or
produce no new or different function or operation
than that theretofore performed or produced by
them, is not patentable invention.’’

‘The conjunction or concert of known elements
must contribute something; only when the whole in
some way exceeds the sum of its parts is the accum-
ulation of old devices patentable. Elements may,
of course, especially in chemistry or electronics,
take on some new quality or function from being
brought into concert, but this is not a usual result
of uniting elements old in mechanics.’

‘*The Court then makes this meaningful ubserva-
tion:

‘Courts should scrutinize combination claims
with a care proportioned to the difficulty and im-

probability of finding invention in an assembly of
old elements.’

‘*Plaintiff contends that its combination of elements has
solved the age-old problems of asphalt paving; that the
invention has, by its combination, produced a new result
which has advanced the art, and further points to its com-

mercial success and the fact that it has answered a long-felt
want.

13a

Opinion and Mandate United States Court of Appeals

‘*Entron of Maryland v. Jerrold, 295 F. 2d 670 (4th Cir.
1961), set forth the standard for determining whether the
elements of a combination exhibit a new result in the fol-
lowing language:

‘The inquiry should more appr#** ely be directed
to whether the elements of the oy » «on perform
or produce a new, different or additionai function or
operation . . . in the combination than that thereto-
fore performed or produced by them.’

‘“‘It is my opinion that plaintiff’s combination in no way
exceeds the sum of its parts. Each element of the combina-
tion performs in the same manner and performs the same
job that it formerly did when not in combination. All that
plaintiff has done is to construct four elements known in the
prior art on one chassis. In regard to plaintiff’s contention
of commercial success, see A &P Tea Co. v. Supermarket
Corp., supra, at 153, wherein the Court stated:

‘The Court of Appeals and the respondent both
lean heavily on evidence that this device filled a long-
felt want and has enjoyed commercial success. But
commercial suczess without invention will not make
patentability ...’

‘‘Based upon the foregoing, it is my opinion that the
Neville patent is not a valid patent .. .’’

I think Julge Field correctly adjudged invalidity of the
patent and that the court, in reversing his decision, ignores
the teaching of Lincoln Engimeering Co. v. Stewart-Warner
Corp., 303 U. S. 545, 549 (1938), relied upon by the district
court.

I respectfully dissent.

l4a

Order of the United States Court of Appeals for the
Fourth Circuit Filed November 22, 1968

UNITED STATES COURT OF APPEALS
For Tue Fourrs Crrecuir
No. 12,020.

de.
4

Pavement Satvace Company, Inc.,
Appellant,

V8.

Awnverson’s Buiack Rock, Inc.,
Appellee.

Appeal from the United States District Court for the
Southern District of West Virginia, at Charleston.

»™=
.

Upon the petition of the appellee by its counsel, and for
cause shown,

It is ordered that the mandate be, and it is hereby,
stayed pending application of the appellee in the Supreme
Court of the United States for a writ of certiorari to this
Court, provided the application is filed in the Supreme
Court within the time prescribed by law .

s/ Ciement F, Haynsworrn, Jp.
Chief Judge, Fourth Circuit.
A True Copy, Teste:

Samvzet W. Punuses, Clerk
By Jo Ann Krexparriog,
Deputy Clerk

Filed Nov 22 1968
Samvuge., W. Puuuies
Clerk

lida

Opinion of the District Court, 8. D. W. Va., July 25, 1967

July 25, 1967
Edward W. Eardley, Esquire
Steptoe & Johnson
Attorneys at Law
Kanawha Valley Building
Charlston, W. Va. 25301

Frank L. Taylor, Jr., Esquire
Kay, Casto & Chaney
Attorneys at Law

Charleston National Bank Bldg.
Charleston, W. Va. 25301

Re: Pavement Salvage Company, Ine.
v. Andersons’-Black Rock, Inc.
Civil Action No. 2927

Gentlemen :

I have given careful consideration to the motion of
the plaintiff for a new trial and to amend the judgment
entered in this case, and have concluded that the motion
presents no material or grounds which would justify any
change in the conclusions which I reached in this case
as set forth in my opinion filed on March 23, 1967.

Accordingly, the motion will be denied and counsel may
prepare an appropriate order.

Very truly yours,

Joun A. Fretps, Jz.
United States District Judge

l6a

Opinion of the District Court, S$. D. W. Va.,
March 23, 1964
IN THE
DISTRICT COURT OF THE UNITED STATES
For tHe Sournern Distaict or West Vincinua
At CHARLESTON
Civil Action No. 2927

,™
i

Pavement Satvace Company, Inc.,
Plaintiff,
Vv.

Anpezsons’ Buack Rock, Luc.,
Defendant.

Orinion

Pavement Salvage Company, Incorporated (hereinafter
called Pavement Salvage) brought this action for patent
infringement against Andersons’-Black Rock, Incorporated
(hereinafter called Andersons’). The patent in suit United
States Patent No. 3,055,280 for ‘‘Means for Treating Bitu-
minous Pavement’’ (hereinafter called the Neville patent)
and was issued on September 25, 1962. Application for the
patent was filed February 20, 1959, by Charles A. Neville.
The patent was assigned by Neville to Pavement Salvage.

Paving materials for highways consist of two ‘‘classes”’
of concrete—-Portland cement concrete and bituminous
concrete, the latter being the class in which we are inter-
ested, Bituminous concrete is formed by heating an asphal-
tic material to a sufficient temperature to make it readily

lia
Opinion of the District Court

workable and then mixing it with a heated aggregate (sand
or gravel).

The problem of keeping transportation moving and the
width of the modern highways makes it desirable to pave
the roadway in two or more strips. It is here that the
problem is created. The bituminous mixture used must be
poured at a temperature of 250° to 290° Fahrenheit in
order that it be pliable and capable of being shaped. As
is frequently the case, the first strip of asphalt has cooled
substantially by the time the adjoining strip is to be laid,
creating what is known as a ‘‘cold joint’’. This so-called
cold joint results in a poor bonding between the strips,
allowing dirt nad water to enter between them, ultimately
leading to deterioration of the roadway. This deteriora-
tion brought about by the cold joint has long been a prob-
lem in the field of highway paving.

In an effort to eliminate the cold joint, three procedures
have been attempted. One approach was the use of a
direct flame on the asphalt in an attempt to soften it
sufficiently to produce a homogeneous fusion with the
atrip being laid. This, however, frequently caused the
asphalt to carbonize, resulting in poor bonding of the
two strips.

Another theory bas been to cut back several inches from
the edge of the previously laid strip and paint the strip
with hot asphalt. This has proved more successful than
the use of the direct flame but ordinarily the cold joint is
still present.

The third method is that of using radiant heat rather
than direct heat. This procedure was used as early as
1905 in patching asphalt, and is the method which is most
widely utilized by the paving industry today.

18a

Opimion of the District Court

The Neville patent description claims a combination of
apparatus for delivering penetrative radiant energy to the
exposed edge of the primary lane of pavement, placing
bituminous material against that lane, and then shaping
the newly placed material to desired contour and surface.
The apparatus or machine which performs these functions
is the invention which is involved in the present contro-
versy.

The Neville patent has nine claims, eight of which
Andersons’ have allegedly infringed. The claim which is
best illustrative of the patent is claim 4, which states:

‘‘4, Bituminous material paving apparatus com-
prising penetrative radiant energy generating
means, bituminous material placing means, and
pavement shaping means, said generating means
being supported at a distance from the pavement
and being movable along the surface whereby expos-
ure of the pavement to generated energy is limited
and scorching of the pavement avoided, said gener-
ating means comprising an enclosed chamber having
a perforate member forming a lower surface of said
generating means, and means to supply fuel to said
generating means and pass it outwardly through
said perforate member while combusting the fuel
adjacent said perforate member thereby heating
said perforate member to a high temperature
whereby penetrative radiant energy is generated
and directed against a portion of previously placed
bituminous material, said bituminous material plac-
ing means being disposed to place additional bitu-
minous material adjacent the section exposed to
said penetrative radiant energy, said pavement

19a

Opinion of the District Court

shaping means being disposed to shape the newly
placed bituminous material to a desired contour
and finish.’’

The other alleged infringed claims are merely descriptive
of the various aspects of the invention.

The patent then merely claims a paving apparatus com-
prised of: (1) a penetrative radiant energy generating
means, (2) a bituminous material placing means and (3) a
means for shaping pavement. Prior art indicates that
these individual means were known and used for a long
period by persons familiar with the art of highway paving
prior to the advent of the Neville invention.

In considering the prior art in chronological order, the
first relevant patent is United States Patent No. 799,014
(referred to hereafter as the Morcom patent) which was
issued in 1905. This patent teaches the repair of asphalt
pavement by the use of radiant heat. In describing his
invention Morcom stated:

‘*In my improved construction the heat is con-
veyed by radiation from the bottom of the combus-
tion-chamber, which is maintained in suitable proxi-
mity to the pavement, whereby the heat is effectu-
ally applied. * * *

‘««* * * This heat prepares the said portion of
the pavement to receive the new material and unite
therewith, as heretofore explained.’’

Here then was an apparatus patent in 1905 which used
radiant heat for the purpose of repairing asphalt, Pave-
ment Salvage contends that this does not apply to the
Neville patent because the Morcom invention was for

20a

Opinion of the District Court

‘*‘patching’’ caly, whereas the Neville machine provides
for the continuous paving along a strip to prevent a cold
joint. Concededly, the Morcom patent teaches only the
process of radiant heat and does not go into the process of
spreading and shaping the bituminous concrete.

In 1915 United States Patent No. 1,136,294 was issued to
Charles Switzer. This patent pertained to an invention for
heating asphalt pavement. The object thereof was to soften
the surface by radiant heat, so that a weighted roller,
when run over the pavement, would smooth or shape it.
In this patent the radiant heating mechanism and the
roller were combined in one frame. Again it should be —
pointed out that this provided no means for the simultane-
ous dispersion of the asphaltic material.

United States Patent No. 2,053,709 was issued in 1935
and pertained to a ‘“‘road reconditioning method and
machine’. The inventor, B. H. Flynn, stated that:

‘“‘The invention relates to the conditioning of
gravel roads, asphalt roads, * * * after the surfaces
thereof have become so rough and/or undulatory
that even the most careful resurfacing in the custom-
ary ways will not restore them to the smoothness
required. * * * It is the object of my invention,
however, to provide for effectively reconditioning
the surfaces of the roads * * * without disturbing
anything but the surface material, and moreover to
provide for reuse of the material.’’

% Flynn’s patent goes on to say that the roadway is

heated to between 125° and 150° Fahrenheit and the heated
surface is then hewed away. The material which is hewed
away is spread upon the subsurface and ‘‘then sprayed

Zla

Opinion of the District Court

with cut-back asphalt or other suitable binder * * * proving
a new surface’’. This invention combines the heating of
the road surface to make it workable and, to a degree, the
application of a new surface, by the use of a binding mate-
rial sprayed from the machine together with fragments of
the old road surface. No specific means for heating the
road was mentioned nor did it provide any method to
shape and smooth the new road surface.

I. M. Wells was granted Letters Patent No. 2,254,463 in
1941 pertaining to a means for constructing and recon-
structing road surfaces. This machine consists of a
heater to soften the road surface, an apparatus for dispens-
ing aggregate with the semi-liquid surface and a roller for
imbedding the aggregate into the surface. The roller
would also serve to shape the asphalt. The method of
heating is stated thusly:

‘«* * * The flames from the burners are indicated
as directed down onto the road surface for convert-
ing the top material of the road into a semi-fluid ~
mass. However, the heating of the road is not lim-
ited to this specific method of heating or to the
specific structure shown.”’

The patent granted J. L. Fizzell in 1955, Patent No.
2,705,906, performs much the same function as the Flynn
and Wells patents. The patent describes an ‘‘asphalt
road heater planer’’. The functions performed consist of
heating the road surface and planing a portion therefrom
in order to level and smooth it.

There is no need to discuss Patent No. 2,775,294 issued
in 1956 to G. Schwank which discloses a radiation burner,
since the burner itself is not covered by the Neville patent
except as one of the elements of the combination.

22a

Opinion of the District Court

The Neville patent is, as stated before, a combination
patent combining the elements of a screed, a spreader, a
leveler and a radiation burner. The patent as issued calls
for a combination of these elements on one chassis.

The present controversy resulted from the action of
Andersons’ placing a radiation heater on the front of a
Blaw-Knox paver, thus allowing the defendant’s machine
to perform the same functions with the same basic elements
as those described in plaintiff’s patent. Pavement Salvage
claims that its patent has been infringed whereas defend-
ant, Andersons’, in its answer challenges the validity of
plaintiff’s patent and denies infringement. The two issues,
of course, are: (1) is plaintiff’s patent valid, and (2) if so,
has defendant been guilty of infringement.

In regard to the issue of validity, it is conceded by plain-
tiff that its invention is merely a combination of elements.
Plaintiff further conceded that each of the elements
was known to the prior art. However, plaintiff contends
that the combination of these elements presents a new and
useful result amounting to inventiveness, and further, no
single item of the prior art discloses the claimed combina-
tion. 35 USCA §103 states that:

‘*A patent may not be obtained though the inven-
tion is not identically disclosed or described as set
forth in Section 102 of this title, if the differences

‘ between the subject matter sought to be patented and
the prior art are such that the subject matter as a
whole would have been obvious at the time the inven-
tion was made to a person having ordinary skill in
the art to which said subject matter pertains. Pat-
entability shall not be negatived by the manner
in which the invention was made.”’

23a

Opinion of the District Court

The validity of plaintiff’s patent is therefore dependent
upon this section of the Code and the case law evolving
therefrom. Title 35 USCA Section 282 provides that a
patent shall be presumed valid and casts the burden of
establishing invalidity upon the party asserting it. In
commenting on this statutory burden in Universal Incor-
porated v. Kay Manufacturing Corp., 301 F. 2d 140 (4th
Cir. 1962) the Court stated:

‘‘The plaintiff is also entitled to the benefits of
the statute, 35 USCA Section 282. * * * We do not
think as the plaintiff contends that an infringer
must prove invalidity beyond a reasonable doubt.
The cases on which the plaintiff relies for this rule,
* * * were cases in which priority of discovery of
the same invention was the issue rather than
invalidity by reason of relevant disclosures of the
prior art.’’

See also Keiser v. High Poimt Hardware, 311 F., 2d 850
(4th Cir. 1962) and United States Pipe and Foundry Co.
v. Woodward Iron Co., 327 F. 2d 242 (4th Cir. 1964).

In the present case the defendant, then, must prove

that plaintiff’s invention was unpatentable, and this must

- be done by showing that the invention was obvious in the

prior art, and that the combination in its patent has

created no additional or different function nor produced
any unusual or unique results.

In Graham v. John Deere Co., 383 U. S. 1 (1966), the
Court referred to the statutory test of obviousness as set
forth in 35 USCA §103, and went on to state with respect
to the 1952 Patent Act:

“‘The Act sets out the conditions of patentability
in three sections. An analysis of the structure of

24a

Opinion of the District Court

these three sections indicates that patentabiilty is -
dependent upon three explicit conditions: novelty
and utility as articulated and defined in $101 and
§102, and nonobviousness, the new statutory for-
mulation, as set out in §103. * * *”

As was stated earlier, plaintiff has combined four ele-
ments which were known in the prior art. Three of the
elements, the screed, leveler and spreader, when con-
structed on one chassis would not be a patentable inven-
tion. However, plaintiff added to this combination the
element of a radiant burner. The burner, by itself, is also
not patentable. Therefore, the question here is whether
the addition of the burner to the paving machine which
contains the other three elements has overcome obvious.
ness of the total combination.

The plaintiff bases his argument of unobviousness on
the following points: The testimony of plaintiff’s wit-
nesses Witkoski and Crowley, who stated that during the
critical period they were doubtful whether plaintiff’s
invention would be successful. These witnesses, however,
were basing their opinion on the fact that they were
doubtful that radiant heat would solve the problem of
cold joints. I am of the opinion that this does not get to
the heart of validity. Plaintiff’s patent is a combination
patent. The question of radiant heat was old in the art.
The pivotal question would more logically appear to be,
assuming that the radiant heat would work effectively,
was it obvious that a more successful machine would
evolve if all of the elements were constructed on one
chassis? It is my opinion that such a combination was
reasonably obvious to one possessing ordinary skill in the
art.

25a

Opinion of the District Court

Plaintiff relies on Blaw-Knox v. I. D. Lam Company,
230 F. 2d 373 (7th Cir. 1956) in which the patent was one
for paving heavy concrete highways. There the patent
solved problems which had been prevalent for years, and
persons skilled in the art had attempted to utilize various
combinations and suggestions to solve the problem. How-
ever, that is not the situation in the present case. In
asphalt paving the only real problem has been the cold
joint, and the prior art shows that radiant heat is the
most successful answer to the problem.

In A & P Tea Co. v. Supermarket Corporation, 340 U. 8.
147 (1950) the Court made the following statements:

‘‘It is agreed that the key to patentability of a
mechanical device that brings old factors into
cooperation is presence or lack of invention.

‘‘The negative rule accrued from many litigations
was condensed about as precisely as the subject per-
mits in Lincoln Engimeering Co. v. Stewart-Warner
Corp., 303 U. S. 545, 549: ‘The mere aggregation of
a number of old parts or elements which, in the
aggregation, perform or produce no new or differ-
ent function or operation than that theretofore
performed or produced by them, is not patentable

invention.’ ’’
a e e

‘‘The conjunction or concert of known elements
must contribute something; only when the whole in
some way exceeds the sum of its parts is the accu-
mulation of old devices patentable. Elements may,
of course, especially in chemistry or electronics,
take on some new quality or function from being

26a

Opinion of the District Court

brought into concert, but this is not a usual result of
uniting elements old in mechanics.”’

The Court then makes this meaningful observation:

‘Courts should scrutinize combination patent
claims with a care proportioned to the difficulty and
improbability of finding invention in an assembly
of old elements.’’

Plaintiff contends that its combination of elements has
solved the age-old problems of asphalt paving; that the
invention has, by its combination, produced a new result
which has advanced the art, and further points to its
commercial success and the fact that it has answered a
long-felt want.

Entron of Maryland v. Jerrold, 295 F. 2a 670 (4th Cir.
1961), set forth the standard for determining whether
the elements of a combination exhibit a new result in the

following language:

“‘The inquiry should more appropriately be di-
rected to whether the elements of the combination
perform or produce a new, different or additional
function or operation * * * in the combination than
that theretofore performed or produced by them.”

It is my opinion that plaintiff’s combination in no
way exceeds the sum of its parts. Each element of the
combination performs in the same manner and performs
that same job that it formerly did when not in combination.
All that plaintiff has done is to construct four elements
known in the prior art on one chassis. In regard to plain-
tiff’s contention of commercial success, see A & P Tea Co.

27a

Opinion of the District Court

v. Supermarket Corp., supra, at 153, wherein the Court
stated :
‘““The Court of Appeals and the respondent both
lean heavily on evidence that this device filled a
long-felt want and has enjoyed commercial success.
But commercial success without invention will not
make patentability. * * * ”’

Based upon the foregoing, it is my opinion that the
Neville patent is not a valid patent, and hence I find no
need to rule on the question of infringement. Counsel may
prepare an appropriate order incorporating this opinion
by reference therein.

Joun A, Frew, Jz.
United States District Judge

Dated March 23, 1967

28a
Final Decree of the District Court, S. D. W. Va.,
March 23, 1967

IN THE
UNITED STATES DISTRICT COURT

For tae Sovutnern Disrricr or West Vincinia
Civil Action No. 2927

-%
4

Pavement Satvace Company, Inc.,

Plaintiff,
v.

Anpenson’s Buack Rock, Inc.,
Defendant.

Fryau Decrer

This cause having been heard in open trial before me
and having thereafter been briefed by counsel it is, upon
consideration thereof, OBDERED, ADJUDGED AND DECREED as
follows:

1. That my Opinion dated March 23, 1967, be in lieu
of findings of fact and conclusions of law.

2. That United States Letters Patent No. 3,055,280 in
suit is invalid.
3. That the complaint herein be, and the same hereby ~
is, dismissed with costs to the Defendant,
Enter: This 29th day of May, 1967.

Joun A. Fier, Jn.
Judge.
Approved by:
Frank L. Taytor, Jr.
Epwarp W. Eanpizy

29a

Excerpts From Trial Transcript
(5)

Francis C. Wrrxoski, called as witness on behalf of the
plaintiff, being first duly sworn, was examined and testi-
fied as follows:

(6)

In 1955 I was appointed as director of research and
testing for the Pennsylvania Department of Highways.
The responsibilities in this appointment included respon-
sibility for all of the materials used in the construction
of highways in Pennsylvania as well as concern for the
development of new materials, new products and new
methods in the technology of building roadways or build-
ing highways.

During the time that I served as the director of
research I was also a member of the American Associ-
ation of State Highway Officials committee on materials
and served as chairman of a subcommittee on paint mate-
rials and on several other committees, all involved with
highway construction or highway building.

(18)

*** A A blacktop paver is a mobile piece of equipment.
It can move along under its own power either on track or
on rubber tires. The trucker backs into the hopper, lifts
his bed and then the paver takes over. In other words,
the paver is able to push the truck and accept material
from the bed of the truck as it is being laid.

Q. Is the hopper the front end of the paver?

(19)

A. The hopper is the front end of the paver, yes. Then
the material goes from the hopper by a conveyer or belt

30a

Francis C. Witkoski—for Plaintiff —Direct

means through the machine and then it is placed or
spread. You have a tamper and a cutoff screed, All of or
at least most of the paving machines have self-leveling
devices, self-leveling bars.

In other words, if they are resurfacing or if they are
surfacing on a new roadway you may find slight indenta-
tions. This self-leveling bar then takes care of filling up
these indentations or the inconsistencies on the surface.
It certainly isn’t as flat as this desk top.

(20)

* * * Now, these machines can lay generally a width of
from eight to twelve feet of bituminous concrete pave-
ment. When they do this, of course, they are not able
then to lay the full width of a roadway because we are
talking most generally now of pavements that are twenty-
four feet wide and wider, so that the contractor has some
alternatives there.

He can either use one paver and pave one lane for a
day—let’s say a day’s run—and then end up with an
exposed edge or a joint, or he can have two pavers run-
ning in tandem, one following the other, oh, about twenty-
five or fifty feet somewhere, working distance. If he does
this, then, of course, he is able to get full width covering.

If he doesn’t run in tandem, and this is not always pos-
sible because when they are resurfacing you have to make
provision for the maintenance of traffic and all contrac-
tors, of course, don’t have a sufficient number of pavers
anyhow, so that generally they will lay the one lane,
one day’s run. Then the next day they come back and
start all over again and lay another lane to abut this edge,
this two inch or two and a half inch edge that they have
left,

3la

Francis C. Witkoski—for Plaintiff—Direct

Depending upon the specifications of the state, here
again that varies. Some states require that you cut back
into the joint an inch or two inches and paint the exposed
edge with
(21)

an asphaltic material, that is just plain asphalt, just the
plain black asphalt, before you run your second course.

The Court: How would you cut back into the
joint? :

The Witness: There are a couple of ways to do
it, either by hand or by using a pneumatic air
hammer. It depends on how strict or how stringent
the inspection is, and that it has to be cut and re-
painted, you see.

The Court: With a hot asphalt?

The Witness: With a hot asphalt, before the
abutting course is laid. These are the alternatives
that they have.

o = *

(22)

* * * A. Your Honor, this is the joint that we are talking
about. We could be looking down the roadway in this
direction. This is the full width of the roadway and we
have placed one

(23)

lane. In practice then it isn’t laid perfectly straight, you
see, so that the requirement is generally that the mate-
rial be cut back, this part then erased and the exposed
material painted.

The reason that they require the painting is that as
it is cut you disturb the structural strength that you have

32a

Francis C, Witkoski—for Plaintiff—Direct

here. If it is put on at the same time, then it follows
that these particles can fit together and coalesce into a
single or individual piece and resemble the body of the
pavement here, but as soon as we lay the material we
begin to cool it and as we cool it we set it and these
materials then take the place that they will eventually end
up in.

To cut it, we disturb this structural strength and so
the exposed stone is repainted and then another hot course
is Jaid against it in hopes that what we do is end up
with a complete ribbon of material without any sign of a
joint or a juncture.

The problem with this is many fold and it is an old
problem for reasons that can be readily seen. As you
cut it, as I said, you disturb the structural strength first
of all. Secondly, you build in a joint. By building in a
joint, then you set your pavement, you immediately build
in deterioration or the potential of deterioration because
water, fine dirt and then the freezing and the thawing
have their start in this

(24)

general area, and then we get disintegration.

Q. Excuse me just a moment, please. Mr. Witoski, you
say ‘‘this general area’. Do you mean now the place at
which the two parallel courses abut? A. Yes.

Q. Thank you. A. At the joint. In other words,
when we construct this way, when we build a joint this
way, we are building a problem in by ourselves, you see,
and setting up this pavement for eventual deterioration.
I think that clarifies the reason why and how we cut
it. Some states require that you cut back as much as four
inches into the old wearing course. Should I continue
with this?

33a

Francis C. Witkoski—for Plaintiff—Direct

Q. I want to develop with you fully—I think this is
the Court’s question—there is a celd joint? A. This is
what is referred to as a cold joint, yes.

Q. That is where one course is laid and comes down? A.
And then eventually you put another course against it
after it has cooled. As I said, as soon as you put your
one lane down, your material begins to cool and set and
if you allow this—if you pave for a day’s run you end
up with one lane and then this joint is cold.

(25)

The Court: Now, when you cut back and you get
your

hot asphalt in there and then start laying your
other course adjacent to it and abutting up against
that joint, does this hot asphalt help cure these con-
ditions or these possibilities of water or fine dirt
seeping into the joint?

The Witness: Your Honor, I don’t think that we
can say that it cures them, but it is the thing that
has been thought of as the best way of getting past
the problem, and actually the painting is just to
cover up the exposed pieces of aggregate.

For example, if you use pieces of limestone and
you cut it, the edge where it is cut is white; it is
just an exposed stone, so we repaint it and hope
that with new hot asphalt it will get in there, and
we try to close up this joint.

The Court: Was that the most common method
of meeting this problem?

The Witness: That is even today a common
method of meeting the problem.

The Court: All right. Go ahead, gentlemen.

34a

Francis C, Witkoski—for Plaintiff—Direct

Q. Is the painting a successful cure for the problems
of a cold joint? A. No, sir, it isn’t.

The Court: In other words, when you say it isn’t
successful, I assume that you stiil have these prob-
lems of water.

(26)
The Witness: Yes, sir, you very definitely do.
You very definitely do because you actually in cut-
ting it, you get a nice pathway for the water,
make it easy for the water to get into there.
* * *
(27)

Q. Mr. Witkoski, has the result of a cold joint been a
problem in the construction and maintenance of bitumi-
nous highways? A. Yes, sir, it very definitely has been,
and is.

Q. What are some of the undesirable results of the cold
joint? A. The deterioration of the pavement. Pave-
ments are designed to last for many years. Some of the
pavements are designed to last for twenty years, forty
years, or fifty years, and with an opening such as this, a
cold joint, as I said, we build in deterioration so that ac-
tually after a winter in some cases or two you not only see
this line of demarcation where your cold joint is, but you
see that some of the material is beginning to come »ut,
that you begin to lose material at the joint, and as that
happens this degradation continues from the joint, from
the cold joint inward into the center of the lane ; the center
of both lanes, as a matter of fact, and we have this

(28)
cupping action where we lose bituminous conerete and
then we require repairs in this general area.

35a

Francis C. Witkoski—for Plaintiff-——Direct
(49)

Q. Mr. Witkoski, did you ever meet Charles A, Neville?
A. Yes, sir, I did.

Q. Will you tell the Court how you came to meet Mr.
Neville and what transpired at that time? A. While I
was director of research for the Pennsylvania Depart-
ment of Highways one of my responsibilities was to meet
with people who had new materials or new equipment
that we could possibly incorporate into our specifications.

I don’t remember exactly when I met or when Charle
Neville came to my office. However, it was sometime
between 1955 and 1960. It was sometime during my
tenure that he came into my office, and during the course
of the discussion he told me very generally that he had
invented a piece of equipment that would heat the asphalt
and that would not burn the asphalt. In other words, he
had the secret to eliminating cold joints.

Charle Neville was a man that you wouldn’t forget if
you had seen him once. He was a very tall man, very
large man, as a matter of fact, and outspoken to say the
least. After some time in meeting with him I told him
in not quite these terms that I didn’t quite believe that he
had such a piece of equipment. That was my first encoun-
ter or my first meeting with Mr. Neville.

Q. Did you hear of Mr. Neville later?

(46)

A. Yes, I did. In the fall—the first meeting I had with
him I remember was in the summertime, and then the
following fall I had a request from the Pittsburgh Engi-
neering District to use an infrared heater on a bituminous
concrete paver.

We had trouble with joints, with cold joints, in not
only the metropolitan areas—that is Pittsburgh and Phila-

36a
Francis C, Witkoski—for Plaintiff—Direct

delphia—but we also had it on all of our highways. We
had a research team, a group of paving engineers from
the Central Laboratory, as a matter of fact, in the Pitts-
burgh area at this time looking over some of the failures
that we had in pavements, and by failures I mean areas
where we had newly laid bituminous concrete that were
showing signs of raveling or the loss of fine materials
along the longitudinal joints.

This request that we had then we certainly were inter-
ested in because anything that would help eliminate this
problem would have been to our advantage. So this
group saw this piece of equipment, which was either hung
or carried alongside of the bituminous paver, and they
reported back to me that it looked good.

As a result of that we then asked Mr. Neville and Mr.
Walker to supply us in the Highway Department labora-

tory with a few of these burners, just the burner unit
itself, the

(47)

purpose there being for us to give it some laboratory
testing to investigate it more fully.

We had a field report that it looked pretty good so we
wanted to follow this up with some laboratory work, and
they did deliver two or three of these burner units and the
bituminous concrete laboratory kept them over the winter
and we heated various types of mixes, we checked the
distance from the surfaces of the mix, we checked the
penetrations—as many things as we possibly could on a
laboratory scale.

Q. Did you continue to have an interest following that?
A. Yes, because after that the joint heater or the first of
the joint heaters, I guess the prototype or the model was

37a
Alexander Quayle—for Defendant—Direct

finally made and we, of course, were interested in it
because it did work.

(82)

ALEXANDER QuayYLg, called as a witness on behalf of the
defendant, being first duly sworn, was examined and testi-
fied as follows:

Direct examination by Mr. Borst:

Q. Where do you live, Mr. Quayle? A. Ridgewood,
New Jersey.

Q. And what is your present occupation? A. Vice-
President of Aeroil Products Company, South Hacken-
sack, New Jersey.

(102)

Q. I hand the witness a copy of the exhibit. Does the
teaching in Morcom deal with the subject of repairing
asphalt pavement? A. Yes. It covers a means of treating
asphalt pavement by the application of radiant energy.

Q. In particular what problems in the repair of asphalt
pavement does the Morcom patent expressly allude to and
purport to solve? A. Well, he raises the problem of
burning the surface of the asphalt by methods in use
prior to his patent and he solves

(103)

that problem in the same manner as the Neville patent by
the application of infrared or radiant energy. He also
raises the problem of treating asphalt in place rather than
removing it for treatment, and he solves this also in the
same manner as the Neville patent by the application of
radiant or infrared energy to the asphalt.

38a

Alexander Quayle—for Defendant—Direct

(113)

Q. Now, supposing we are to hang an infrared burner
on such a paver. Would there in your view be any change
or modification of the mechanical functioning of the con-
veyor means? A. No, none at all. The heater would have
no effect on the conveyor.

Q. Mechanically they are independent of each other!
A. Yes.

(114)

Q. With regard to the leveler or screed, is its function-
ing at all dependent on whether heaters are present? A.
No, it wouldn’t be dependent on either the heaters or
the conveyors. The screed and the tamper could be a sepa-
rate item. As a matter of fact, one of the companies I rep.
resent, the Muller Machinery Company, makes a separate
asphalt tamper and it performs the same function when it
is separate as when it is a part of the asphalt paving
machine that Barber-Greene makes.

Q. There is, then, no what we might call joint action
between any of the three basic components of the paver and
heater? A. No. The heater is hung on the paver merely
because that’s a convenient place to hang it when heating
the longitudinal joint. As a matter of fact, both ourselves
and Pavement Salvage make a separate heater which heats
the transverse joint and is not hung on the paving machine.

It performs exactly the same function on the transverse
joint as a separate heater, as this heater performs on the
longitudinal joint and it heats it to attempt to give a
better bond.

Q. Do I understand you to say. then that when the
radiant heater is removed from the chassis for use on
the transverse

39a

Alexander Quayle—for Defendant—C ross
(115)

joint that the distributor and screed function just as
effectively as they did when the heater was on the chassis?
A. Yes. When you take the heater off what you have left
is a standard Barber-Greene paving machine.

Q. Is the mechanical operation of any one of the three
main components in Neville changed or affected in any
manner by the presence of the other components? A. No, I
would say they are not.

(120) 7 6 @

Q. What is the name of this agency? A. The name at
the time the tests were made was National Bituminous
Concrete Association. They have changed their name
since. They are called now the National Asphalt Paving
Association. They are a national organization of paving
companies.

(121) . ” °

Q. To what do you attribute this failure to make such
recommendations? A. Well, the tests showed that the
infrared heat did not improve the tensile strength of the
joint and I think they agree with Mr. Witkoski, and I
would agree also, that tensile strength is a very important
property of the joint; and since the tests didn’t increase
the tensile strength, they felt that while there was a joint
problem, it apparently wasn’t solved by infrared, so they
went on to make tests on other aspects of it and other
areas where they felt they might improve the joint other
than the use of infrared.

(124) . * ~

Cross examination by Mr. Blenko:
(127) * * +

Q. And then after that you had turned your attention
to the particular type of heater which we are interested
in here, that is, joint heaters and the like. A. Yes.

40a

Alexander Quayle—for Defendant—Cross

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" Infra-Red Highway Patchers and Joint Seabers 2... ae ae
HE-PR-32—HE-PR-8

Pavers Tools and Accessories wie

Smoothers—Tampers—Asphalt Rake—Hoe-Scarifier—fland “Type Squeegee—Lute—
Asphalt Sandals—Smoothie Too! Heater—Heated Asphalt Roller

Rubberized Asphalt Kettles (Oil Jacketed Type) 0.0... seen 6

Oe i cs acscnmticrsavsussensvesooricws Siokioed 7
Combination Tool Heater & Kettle—Toolmaster Deluxc—utility Tool Toters

Bottom Fired Kettles for Melting cia Tars,

IE OE I icici cacecancevccescsnpnnsnsovescc pe reese. Gas 8
Deluxe Heetmaster Tube Fired Kettles ............. ARTA, NOR mee Ne 5
"Cut Back and Emulsion Sprayers ......cccccccccocccscsccssseessssseseeeeeen ieee 10
Portable Compressed Air and Hand Pump Sprayers ................... 11
Vertical Heavy Duty Sprayers—Horizontal Heavy Duty Sprayers—4& 5 Gal. ‘Medium
Duty Hand Spray Outfits
Portable and Heavy Duty Steam Cleaners ooeoeccceccecccceee a esse 12
i on icok ichssepanodsimdausincanalaeass a
Portable Lead Melting Furnaces . rE SNE AP SOU 14
Compound Melting Pots . . a Bai 15
, ; Thawing Torches and Heavy Duty Burners 16
Thawing Torches—Combination Heavy Duly Thawing Outlits—-Upright Burner Outfits
—Portable L-P Gas Torches

Heetmaster and Bottom Fired Kettle Torches and

Bituminous Distributor Burners 17
Ce Ssteanace and Utility Torches . cs ae
No. 99 Seiics of Utility Torch2s--Compressed hir- Atomizing Typ: Low

Pressure Torches

Z

it INFRARED PATCHER
TRAILER MOUNTED

A. — HE-PR-48

Is designed for the PERMANENT repair of Bituminous bumps, cracks and pot-holes.
Properly used, the unit will not burn existing material, but will heat large areas, which
can be raked and rolled without adding new material.

Pot hole repairs are made permanent through the creation of a homogeneous joint
between the old material and the new. Only through an Infra-Red process such as this

@ permanent result possible.

The HE-PR-48 is mounted on a 2-wheel trailer chassis with a hand winch for raising
Infra-Red generators. The generators themselves achieve penetration
area 16 square feet within 3 minutes. With this increased coverage

and faster penetration time, a smaller crew is needed than previously used for this type
n be trailed behind an ordinary pick-up truck. Perfect for road
repair work where time is of an essence in keeping traffic flowing smoothly.

© DOES NOT BURN ASPHALT
© REPAIRS ASPHALT PERMANENTLY
© IDEAL FOR HOLES, CRACKS, BUMPS

SPLUCIFIGATIONS

ad

Length—-Healer Unit 52”

Wkth—testes elt di—C“=~=
a: Serene, ae a
Weight OOS 10 SaaS 100 Ibe. __- @&
Overall [ Dimensions Se 4 a Bx 10x54 __, 8x 100 54
BTU Rating = 80000 (20,000 170,000
RE OE none
Pilot Light Std. Std, Std.

v

PAVERS TOOLS AND A

SMOOTHERS
Model Stock No. Weight Dimensions _ Overall Length Handle
0 Smoother 76902 47 Ibs. 64" x 10” 6'7" 1%” Steel Pipe
1 Smoother 76901 57 Ibs. 7” x11" 6'7" 1%” Steel Pipe
TAMPERS
Base Overall
Model : Stock No. Weight Dimensions Length Handle
i Tamper 76161 17 Ibs. 6" x 6” & 1%” Steel Pipe
2 Tamper 76162 3i Ibs. 6"x8" 4° 8” 1%” Steel Pipe
3 Tamper 76163 36 Ibs. 6" x8" 4’ 8" 1%” Steel Pipe
Heavy Duty

A.— ASPHALT RAKE

Forged from bar steel. Head 16%" wide, 14 teeth 4” -™ Shank 18”. Safe to heat and
clean. Handle 5’. Weight 814 Ibs.

B. — HOE-SCARIFIER

Blade 10” wide with serrated head on one side and scoring point on other. ¥%” pipe
handle 6° long. Weight 1344 Ibs.

C.— HAND TYPE SQUEEGEE

Bituminous grout and seal coat spreading. Double rubber composition blade 20” long x 14”
thick x 5” wide, removable. 34” extra heavy pipe handle 6’ long. Weight 18 Ibs. BLADES
Extra composition rubber blade. Weight 144 ‘bs.

D.— LUTE

Lightweight 36” aluminum lute. One edge serrated, the other straight. Handle 8° long.
Optional 6° extension handle.

E.— ASPHALT SANDALS

Strap over pavers shoes, wood soles with inside drop heel. Heavy galvanized counter.
Smoeth bottoms. Adjustable padded straps over toe and inslep. Medium, Stock No. 76150;
Large, Stock No. 76151. Weight: pair 4 Ibs.

“F. — SMOOTHIE TOOL HEATER

Heats two tampers or smoothers. Propane fired. Mounted on whecls or legs for truck
mounting. Does not include gas hose or bottle. Height with handle 38”. Width, not including
wheels 18”. Inside width of tool chamber 15°. length 141%”. Weight 135 Ibs.

G.— HEATED ASPHALT ROLLER

A “finishing roller" as well as a “one man paver” for walks, driveways, and patios. Illus-
tration shows compact unit with handle telescoped to 5 feet. For quick transportation, a
hook is provided for the roller to hang from a truck tailboard. Asphalt does not adhere to
roller, no scrapers o1 water sprays necded. Two LPG burners. Hose and regulator furnished
Does not include gas bottle.

SPECIFICATIONS : ak

Steel Roller Width 18” Heat Up Time 10) Min
“Diameter % Steel ==” Maximum LPG

[Dimensions Gey age gts Pa oe nn nption Per Me. 2.5 bel
Length (Handle telescoped) i ae ea _ Weights

Length (Handle extended) . 96" = Without Bottle = 148 Ibs,

~ Width ~~ 9g Rolling With Bottle = 185 Ibs.

- RAST aaa UREA Shipping (No Botti) «160 Ibs]

bulletin no. HE-PR-5

Permanent asphalt repair now costs less than

@

ly |

IB soe ... PERMANENTLY

BTU INFRA-
RED generators mounted beneath stainiess stee! para-
bolic reflectors. It is furnished complete with wheels,
handies, pressure regulators, lighting torch and bottie

chain. The unit is operated at gas pres-
sure of 20 psi, and consumes LPG fuel, which is con-
trolied through a high pressure regulator.

HE-PR-32

Length Heater Box 31”
Width Heater Box 34”
Weight ° 110 Ibs.
Overall Dimensions 40x70x34
Wheels 8” Steel
BTU Rating 120,000

R52 PATCHER

ther gives PERMANENT repair on \arger holes,
sunken sections of roads and resurfacing of
ys and runways. For patching asphalt over old and
and sewer lines, = oom —
applying epoxy coating. Elimin cutting
on chuck holes, with air compressors and chip-
is, also — of new asphalt and tools, there-

is the asphalt crew to repair more holes per day.
52 is self contained and has racks for carry-
own fuel botties. The heating grid is adjustable
flexibility to the operator for varying weather

and surface conditions. Easily towed by a
The unit has 10 INFRA-RED generators

52
Heater Unit 52”
Heater Unit 48”
Dimensions:
gt! 10 ft. 6 in.
: 70 in.
ght with bottles 61 in.
pater Frame 33 in.
ng 600,000
ic Tires 5:90x15 4 ply.

pprox. 725 ibs. with bottles empty.

HE-PR-8DW JOINT AND
CRACK SEALER

Here is the unit for sealing cracks and joints PER'MAN
ENTLY. The HE-PR-8DW is a single unit on wheeis to
permit you to operate on smali areas as driveways,
arking lots, transverse joints on highways and roads.
he HE-PR-8DW is also AVAILABLE as a TWIN PATCHER
as shown in photo and Specs. below.

HE-PR-BOW

Length — Heater Box 48
Width — Heater Box 10 :
Weight 100 It
Overall Dimensions 8x 10x54
BTU Rating 120,000
Wheels Std
Pilot Light Sid

HE-PR-BDW TWIN

Length — Heater Box
Width — Heater Box

Weight l
Overall Dimensions B
BTU Rating
Wheels

Pilot Light

All our INIFRA-RED products specifically utilix
diant Heat method w assure you of the most ex:
eflicient, und dependable periormance in repan
PERMANENTLY.

and eliminates
inates ing
the er

D
. The unt is easily
— LPG bottle racks
ell necessary hose, light-

rall Length

i wid ro
brall Height with bottles 61”
er Frame Height 33”
U Rating 1,200,000
ent, approx. 1.700 Ibs.
ht adjustme Hand Winch

Bottle Rack (4) 100 Ibs. bottle cap.

PERMANENT ASPHALT REPAIR

This remarkable new development is a dramatic break-
through in asphalt highway and road maintenance.
INFRA-RED heat is not new, but the application is rev-
olutionary. The INFRA-RED process softens the asphait
without burning the surface. It eliminates the necessity
of repair of the same chuck holes, cracks, and joints
every year. Resurface only once with INFRA-RED and

; the repair is PERMANENT.

before after

Shown here is the visual proof of the INFRA-RED
process. These photos demonstrate the perfect result
achieved with !NFRA-RED. This repair was made with
existing asphait, no new asphalt was needed. The bond
of the surface is PERMANENT and no injury was made
to the asphait. The joint between old and new surface
becomes bonded PERMANENTLY. There will be no pick-
up of i to repair the following years, once an INFRA-
RED unit is used on the job it becomes PERMANENT.

Complete Specifications on all INFRA-RED units are on
the oe pages. There is a unit to fit every purpose,
from chuck holes to complete highway resurfacing.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0126%3A1. Public record. Not legal advice.