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23 F.(2d) 15

The Butler Patent, No. 1,581,784. As stated in the specifications: "This invention relates to road-building machinery, and especially to devices for supplying surfacing materials to roadways in a continuous, even, and automatic manner.

"The invention is designed particularly to deposit a hot asphaltic concrete mix upon roadways and spread same evenly and continuously.

"As now practiced, asphaltic concrete, mixed in some central plant, is conveyed to the street or other point of deposit, where the contents of the conveyance are dumped. The load thus deposited is then shoveled and raked by hand labor to the depth required and desired. Owing to the difficulty and almost impossible work of obtaining a regular and even surface by hand raking and manual labor in general, road and roadways built on this plan are uneven, undulating, and irregular, and unable to sustain the wear of traffic and retain a desirable even surface.

"The object of this invention, therefore, is to obviate this need of manual attention to the hot concrete mix deposited upon the roadbed, and to provide a simple and effective means for automatically spreading the prepared mix over a roadbed in any desired thickness, evenly and expeditiously.

"The invention, as shown in a preferred form in the drawing, embodies a receiver 1, into which is arranged to be deposited the asphaltic mix. The receiver 1 is provided with side walls 2, a rear wall 4, and a bottom 5, which inclines to the rear of the receiver and terminates in an apron 6, which as seen in Figs. 2, 3, and 4, extends below the rear wall 4 and side walls 2 of the receiver, providing between such apron and rear wall 4 a longitudinally extending throat 7, the transverse area of which is arranged to be determined by a blade 8, which, as pointed out presently, is operable upon and relative to said rear wall 4. The rear wall 4 is inclined to the vertical, and co-operates with the inclined bottom 5 in discharging the contents of the receiver."

The claims and drawings are set forth in full in the margin.1

The Butler Patent, No. 1,605,094. The specification states:

"My invention relates to a means for laying mineral aggregates in the building of roadways, and it has particular reference to a device for delivering upon a surface in a continuous manner a regulable mass of material discharging from a container.

1.See Appendix 1 at end of case.

"Various objects are aimed at by this invention, and the most important of them may be stated to be the provision of a device of this character, in which the material to be laid is received, and from which it discharges by natural gravitation in an uninterrupted flow while in motion, in which the material during the passage therefrom onto the ground offers no impedance to the free draft of this device, in which the mineral aggregates or other contents leave the device substantially by rolling motion and in frictionless manner, thereby preventing any dragging of the material laid, with the inevitable consequences of uneven or irregular deposit, and in which the entire weight of the material is sustained by and within the container, and from which a definite amount is paid out for a required sur

face.

"Another object of the invention is to provide a device of this character, which may be supported entirely above and free of the surface over which it is to be moved by means having rolling contact with the surface, whereby the loaded device may freely follow any direction of the vehicle by which it is drawn.

"My invention consists of a container adapted to receive the charge of, and to be drawn by, a vehicle, and to lay its contents upon the ground or other surface during the movement of the container over the surface. It consists, further, of a container which is supported freely above the surface to be traversed and supplied thereby by means having rolling or frictionless contact with the surface, and which feeds out the contents in regulated continuous stream. Attention is hereby called to many devices known in this art, in which hoppers having open bottoms are employed for distributing purposes, and in which skids are used either entirely or partly as supports for the hoppers. My experience has shown that devices with open bottoms act merely as inclosures for guiding the mass of aggregates without sustaining any of its weight, which is carried entirely by the ground or surface to be laid; consequently the movement of the inclosure over the ground is resisted by the superimposed mass, which therefore must be dragged over the portion contacting the ground.

"One of the main objects of this invention, therefore, is to provide a device in which the material deposited therein may be laid in a continuous stream, without dragging the same and producing unevenness in the layer."

The claims and drawings of the patent are also set forth in the margin.2

2 See Appendix 2 at end of case.

[1-4] Appellants insist that the three patents in suit are invalid, in view of the prior art. The Circuit Court of Appeal for the Second Circuit has said that the principal question in cases of this character is:

"Has the patentee added anything of value to the sum of human knowledge? Has he made the world's work easier, cheaper and safer? Would the return to the prior art be a retrogression? When the court has answered this question, or these questions, in the affirmative, the effort should be to give the inventor the just reward of the contribution he has made. The effort should increase in proportion as the contribution is valuable. Where the court has to deal with a device which has achieved undisputed success and accomplishes a result never attained before, which is new, useful, and in large demand, it is generally safe to conclude that the man who made it is an inventor. The court may resort to strict, and it may even be to harsh, construction, when the patentee has done nothing more than make a trivial improvement upon a well-known structure which produces no new result; but it should be correspondingly liberal when convinced that the patentee's improvement is so radical as to put the old methods out of action. The courts have frequently held that one who takes an old machine, and by a few even inconsequential changes compels it to perform a new function, and do important work which no one before ever dreamed it capable of performing, is entitled to rank as an inventor." O'Rourke Engineering Const. Co. v. McMullen (C. C. A.) 160 F. 933, 938.

"The keynote of all the decisions is the extent of the benefit conferred upon mankind. Where the court has determined that this benefit is valuable and extensive, it will, we think, be difficult to find a well-considered case where the patent has been overthrown on the ground of nonpatentability." O'Rourke Engineering Const. Co. v. McMullen, supra.

In the same case the court quotes from Hobbs v. Beach, 180 U. S. 383, 392, 21 S. Ct. 409, 413 (45 L. Ed. 586), as follows:

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While none of the elements of the Beach patent-taken separately, or perhaps even in a somewhat similar combination -was new, their adaption to this new use and the minor changes required for that purpose resulted in the establishment of practically a new industry, and was a decided step in advance of any that had theretofore been made."

"In administering the patent law, the court first looks into the art to find what the real merit of the alleged discovery or inven

tion is, and whether it has advanced the art substantially. If it has done so, then the court is liberal in its construction of the patent to secure to the inventor the reward he deserves. If what he has done works only a slight step forward, and that which he says is a discovery is on the border line between mere mechanical change and real invention, then his patent, if sustained, will be given a narrow scope, and infringement will be found only in approximate copies of the new device. It is this differing attitude of the courts toward genuine discoveries and slight improvements that reconciles the sometimes apparently conflicting instances of construing specifications and the finding of equivalents in alleged infringements. In the case before us, for the reasons we have already reviewed, we think that Eibel made a very useful discovery, which has substantially advanced the art. His was not a pioneer patent, creating a new art; but a patent which is only an improvement on an old machine may be very meritorious and entitled to liberal treatment." Eibel Co. v. Paper Co., 261 U. S. 45, 63, 43 S. Ct. 322, 328 (67 L. Ed. 523).

"The defendant claimed that the complainant's device was anticipated by the prior art. To authorize the allowance of a patent, there must be a substantial difference in principle from prior inventions. To amount to anticipation it is essential that there should be identity in substance, and the two things must accomplish the same purpose by substantially the same means, operating in substantially the same way. And a patentee's claim to an invention is anticipated when it appears that another made the invention before the date when the patentee made it. The anticipation may consist of prior patents or publications. And if prior invention is shown to have existed and been in use, it is clearly of no consequence whether it was patented or not. In the case at bar our attention has been called to a number of prior patents which defendant alleges show that the complainant's device was anticipated. But an examination of the patents referred to convinces us that there is absolutely nothing in the claim of anticipation by the prior art. The prior patents do not disclose or in any way suggest the invention of the patent in suit." Boyce v. Stewart-Warner Speedometer Corporation (C. C. A.) 220 F. 118, 124.

As to the Prior Art.

The British patent to Stone, No. 1,115, is for "an improved system of casting or moulding applicable to ceilings, internal and external walls, roads, navigable vessels, and

23 F.(2d) 15

other large surface structures." It was issued in 1872, and describes a traveling hopper, mounted on wheels and operated on rails, and which contains material to be deposited upon the roadway. The specification contains the following statement:

"This invention relates to casting or moulding surface structures in position by means of dies or moulds, and consists of an improved system of arranging and filling the moulds, and keying or attaching the moulded sections together. The moulded work is formed in the position it is intended to remain in, such as ceilings, roofs, the covering of walls, forming of chimney pieces, skirtings, mouldings, and so forth, in contradistinction of first moulding or casting them, and then fixing them in the position they are intended to permanently remain in.

"In applying this invention to horizontal surfaces, such as foot or road ways, promenades, and other similar surfaces, the moulds are turned face downwards, and held up a sufficient distance above the foundation to admit of the requisite quantity of surfacing material to be run underneath. The mould in this case is formed with an orifice with a hopper mouth for running in the plastic material. "In lieu of using the moulds for horizontal surfaces, plastic material may be run on in sections by means of using dovetail rails or guide pieces and a roller, which roller is formed with a scraper or leveler running in front and a hopper-shaped feeder. The roller runs on the rails or guides feeding the fluid, then scraping or leveling it, and then rolling and setting it. These rollers may be formed with collars or projections leaving grooves or gutters in the work. When one section is rolled and set the rails are removed, replaced, and again laid parallel to the work, and the action repeated, the plastic material entering into the dovetail groove left by the rail, and thus keying or attaching to the completed work.

"In the case of roadways, the grooves formed by the roller may be filled in with wood or other elastic material to prevent draught animals from slipping."

There seems to be a vast difference in this patent and the patents in suit. It does not seem to contemplate the use of a spreader in connection with a vehicle or truck containing the material to be used on the roadway, as described in the said three patents, or either thereof, nor is it capable of such use.

The Schellenger patent, No. 1,029,894, is for a distributer for dumping wagons and cars, issued June 18, 1912. In this patent provision is made for the delivery of the road

material in advance of the rear wheels of a horse-drawn vehicle, and not from a machine used in combination with a motor truck, which truck delivers the material at the rear.

In the first place, the Schellenger machine is so constructed that it cannot lay the material in width as great as the width between the wheels of the wagon. Figure 2 of the drawing illustrates this. In the second place, it is not clear how the space or channel between the strips of roadbed is to be filled. The specification provides: "These intervals between the first-named strips of roadbed may be afterward filled to a uniform depth by driving the wagon upon the parallel strips of road-making material first distributed, and by turning up the side boards 38, as previously described. Fig. 2 shows a cross-section of a roadbed with two parallel strips of road-making material, so placed as to leave an interval between the strips, which interval may be afterward filled as above described."

Such a device could not compare favorably with or anticipate the patents in suit, or provide for a uniform distribution of the road material along the roadway. In the machine of the Myers patent in suit the adjoining layers of material are close together, thus avoiding the necessity of hand labor, or of driving the wagon over parallel strips of road-making material as above provided in the Schellenger patent.

The evidence in the case, as well as the specifications and drawings of the Myers and Schellenger patents, show a decided structural difference. We therefore conclude that the Schellenger patent is not pertinent to the Myers disclosure and does not anticipate the same; furthermore, that the teaching of the patents in suit is not carried out in either of these two patents, or in any of the other patents cited as constituting or shown in the prior art.

One of the witnesses in the case has correctly stated: "There is nothing in the prior art which anticipates the fundamental idea of the Myers patent, of a combination of a dumping truck, with a distributing machine located at the rear of the truck, so that the material falling from the truck will fall into it, and in contact with the ground, and as a leveling device or gauge which determines the thickness of the material spread upon the ground."

This patent does not disclose "the fundamental idea of the Myers patent, of the combination of dump vehicle-whether horse or motor drawn is immaterial—that discharges at the end of the vehicle, and an intermediary

device which is drawn on the ground in the rear of the vehicle, as a discharge gate or end gate, which controls the discharge, and that fixes the level of the layer discharged from the material."

The supports of the hopper-shaped device of the Schellenger patent are materially different from those of the Myers patent; there is no roller in the Schellenger patent corresponding to the roller of the Foster patent; neither is there any stepping arrangement corresponding to that of the Fike patent, nor gates at the end of the hopperlike casing that controls or regulates the lateral discharge of material at the ends of the casing.

It is true that Schellenger in his specification states: While I have illustrated my distributer as used with a wagon having a discharge opening disposed about midway of the wagon body, it will be obvious that the distributer might be used with a wagon discharging in any other manner, as, for instance, from the rear; it only being necessary that the distributer shall be disposed immediately beneath the discharge opening of the wagon, so that the load as it is discharged from the wagon body will pass into the discharging hopper and by said hopper be distributed properly and to an even depth along the roadbed.

Neither do I wish

to limit myself to any particular form of dumping wagon and gate therefor, as it is obvious that other forms of dumping vehicle than that shown, provided with other forms of discharge gate, might be used without departing from the spirit of the invention."

It is, however, significant that he fails to amplify his statement by indicating what he had in mind, or to indicate in his drawings definitely the character of the machine or combination he had in mind, for distributing the road material upon the roadway, or its workings. Manifestly such a statement is entirely too general and indefinite.

These suggestions of what might be done do not carry conviction. "The claims of his patent limit his exclusive privileges, and his specifications may be referred to, to explain and to restrict, but never to expand, them." Stirrat v. Excelsior Manuf'g Co. (C. C. A.) 61 F. 980, 984. We do not think his claims warrant a construction broad enough to cover or anticipate the three patents in suit.

We have given due and careful consideration to the other patents cited as showing prior publication and anticipation, and arrived at the conclusion that the appellee's structure was not anticipated by the prior art, that the combination involved invention, and that it was a step forward in the art. The

evidence shows that prior to the year 1917 there was nothing known to the art which would perform the functions of the Burch spreader. Even if all the elements of the combination had been used before, and the functions of each were well known to the art, we think they have never been combined for effectuating the purpose accomplished by appellee.

We quote and adopt the testimony of one of the witnesses who testified in the case as correctly stating the points of similarity between the machine of the three patents in suit and the machine manufactured by the defendants:

"(1) All of these machines are constructed for use at the rear end of a dumping truck, and all may, with equal facility, be attached to and detached from the dumping truck. An important advantage of having the machine as an attachment to the dumping truck is that the dumping truck does not have to be specially provided for use with a spreader, but may be put to any of the uses to which such a truck is put, so that, for example, on a road-building job a truck which could be used for hauling dirt or other material to or from the job could be utilized with one of the spreaders.

"(2) All of the machines have the general connection between the spreader and the truck, which is at once an exceedingly simple device for the purpose, and one which involves very little labor in attaching the spreader to the truck and detaching it from it.

"(3) All of the machines have a hoppershaped casing that is freely open at the top and has a rear wall and a front wall, which inclines downwardly and rearwardly, and terminates at an outlet opening at the bottom of the casing, and in all of them the gravity or weight of the material dropped from the truck into the casing is utilized to cause this passage through the casing and its delivery to the subgrade of the surface to be covered.

"(4) All of the machines have a vertically adjusted gate on the back wall that compels the material issuing from the machine to have a certain level, and thus assures uniform or practically uniform depth of road material delivered from the machine.

"(5) All of the machines have two widely separated ground-engaging supports, that bring the center of gravity of the machine within its base for support, and thus assure that the leveling gate or gauge at the back wall shall not be lowered by any sinking of the rear part of the machine, which would result in lessening the vertical thickness or

23 F.(2d) 15

depth of the course of material below the requirements of the road specifications.

"(6) In the case of all of the machines, the forward ground-engaging and supporting member consists of a rotating or rolling device, such as a wheel or a roller or cylinder.

"(7) Considering particularly the machine of the Foster patent and defendants' machine, the weight of material falling from the truck into the hopper-shaped casing is utilized to press the forward, road-smoothing roller against the surface to be smoothed, and so facilitate or promote the smoothing action of that forward roller.

"(8) In both defendants' and Foster's machines, the front roller is a permanently associated element in the machine, so that the roller, having performed its function of smoothing the surface, prepares the surface for the reception of the road material, and nothing intervenes between that roller and the point of discharge of the material to the road surface which would disturb or furrow up the surface after it has been smoothed by this smoothing roller.

"(9) In both the machine of the Foster patent and the defendants' machine, the long front roller is of special advantage in sandy or soft soil, because it affords a more extended support and insures the elimination of the likelihood of any sinking or depression of the machine into the soil, which would change the level of the material leveling gate at the rear of the machine.

"(10) In both the machine of the Fike patent and defendants' machine, there is a construction by which there can be an overhang of an already laid course at the margin, to assure the delivery of stone or road material at the junction point between the two courses, and thus result in uniformity of thickness or depth of the course at that point. "(11) In both the Fike and the defendants' machines, there are the vertically adjustable gates at the two ends of the machine, which control the discharge of material at the end of the machine, so as to enable the delivery of the material laterally of the machine, close to the curb, or to the outer edge of a course already spread upon the road, and that avoids the necessity of employing hand labor to fill up gaps or spaces which might otherwise exist."

The patents in suit, in our opinion, do not describe a structure or machine operating in the same way as those described in the prior art, nor do they accomplish the same purpose by substantially the same means.

We think the inventions of these patents are incorporated in the appellant's and ap

pellee's machines, as they are now constructed. While in the Butler machine the appellants do not use precisely all of the parts of the Burch machine, they do use mechanical equivalents for the absent parts, and the result is substantially the same.

Unquestionably there is some difference in the structure of the machines, but we think there is no difference in principle. We look more to the substance of things than their forms.

"Where a combination patent marks a distinct advance in the art to which it relates, as does the appellant's invention here, the term 'mechanical equivalent' should have a reasonably broad and generous interpretation, and protection against the use of mechanical equivalents in a combination patent is governed by the same rules as patents for other inventions. Imhaeuser v. Buerk, 101 U. S. 647, 25 L. Ed. 945. The fact, if it be a fact, that the infringing machine is superior, more useful, and more acceptable to the public than that of the appellant, does not avoid infringement, so long as the essential features of the appellant's patented machine are used, unless its superiority is due to a difference in function or mode of operation or some essential change in character. Morley Machine Co. v. Lancaster, 129 U. S. 263, 9 S. Ct. 299, 32 L. Ed. 715; Hoyt v. Horne, 145 U. S. 302, 12 S. Ct. 922, 36 L. Ed. 713; Lourie Implement Co. v. Lenhart, 130 F. 122, 64 C. C. A. 456; Diamond Match Co. v. Ruby Match Co. (C. C.) 127 F. 341; Whitely v. Fadner (C. C.) 73 F. 486." Smith Cannery Machines Co. v. Seattle-Astoria I. W. (C. C. A.) 261 F. 85, 88.

"Defendants therefore cannot escape infringement by adding to or taking from the patented device by changing its form, or even by making it somewhat more or less efficient, while they retain its principle and mode of operation and attain its results by the use of the same or equivalent mechanical means. Lourie v. Lenhart, 130 F. 122, 64 C. C. A. 456; [Leston] Letson v. Alaska Packers' Association, 130 F. 129, 64 C. C. A. 463; Eck v. Kutz (C. C.) 132 F. 758. By varying the encircling means, but producing the same results in substantially the same manner, there is infringement. Both physical and mechanical encircling, with centering, are found in defendants' machine. Union Paper Bag Machine Co. v. Murphy, 97 U. S. 120, 24 L. Ed. 935; Kinloch Telephone Co. v. Western Electric Co., 113 F. 659, 51 C. C. A. [369] 362; Auto Pneumatic Action Co. v. Kindler & Collins [(C. C. A.) 247 F. 323], supra; Pangborn Corporation v. Sly Mfg. Co. (C.

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