Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; James H. Wilkerson, Judge.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
This litigation involves validity and infringement of reissue patent to Hart, No. 16,374, July 6, 1926, of original No. 1,522,624, January 13, 1925.The specification states: "The present invention relates to dump cars, more particularly of the type known as ballast cars, and has for its object to provide a simple, economical, and efficient car by means of which ballast may be deposited either between the rails or outside of the rails, or both between the rails and outside the rails without flooding the track."
In the margin appear two of the claims,*fn1 claim 4 typifying the first four claims, which were those of the original patent, and claim 5 the two claims added by the re-issue.
Figs. 1 and 2 are here shown.
The controversy concerns mainly the inner doors 14" of the hoppers on each side of the center sill 3 of the car, through which doors the ballast from the hoppers is dropped onto the roadbed between the rails 9.
Fig. 1 has an arcuate member 16 on each side of the center sill designed to prevent the ballast from starting to flow until after the opening doors had passed this member. The specification describes this feature in its treatment of Fig. 1, but the accused cars do not have it. Fig. 2 does not show this member.
The doors 14" are hinged at the apexes 11-11 of the hoppers. From the hinges they extend, when closed, a short distance in an upwardly slanting direction, where there is a bend across the doors, and they thence extend horizontally toward the center sill, their outer upward surfaces contacting with the bottom of the sill.
The District Court decreed the patent to be invalid and not infringed by appellees' cars, and these are here the issues.
The art wherein these parties have wrought is an old one.As far back as 1887 Rodger was granted United States patent No. 374,006, for "Improved Self-Emptying Hopper-Wagons for Ballasting on Railways," wherein the invention was specified to consist of a hopper in the car with a door at the bottom, by opening which the moving car distributes the ballast evenly in a continuous heap between the rails. There appear in the record twenty other United States patents in the same art, granted from time to time, each presumably contributing something to it.
What, if anything, did Hart contribute, and is his patent valid? Other United States patents in the prior art had shown hoppers on each side of a center sill, with bottom doors for dumping ballast between the rails and outside of them. Included in them is No. 937,416 to Campbell, 1909, to which further reference will be made.
When the inner doors 14" of the Hart patent are closed their outer edges are in close proximity with each other under the sill, and in such position the ballast will not be discharged. Owing to the peculiar shape of the doors as described, the arcs of their descent will apparently come into actual contact, thereafter separating until at about 15b or 15c of their arcs the edges of the doors are sufficiently far apart to permit ballast to begin passing between them. In the further descent of the doors the opening progressively enlarged and the flow of ballast increased, but by that time the tendency of the then well-descended doors is to restrain sufficiently the spreading of the ballast between the rails so that the rails may not be flooded.
Had the flow of the ballast commenced immediately upon the doors beginning to open, and not been held until the doors were about one-third opened, the greater tendency of the ballast to spread between the ...