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February 28, 1956


The opinion of the court was delivered by: Platt, District Judge.

The plaintiff, Noble Co., a California Corporation, hereinafter referred to as "Noble", filed this action against the C.S. Johnson Company, an Illinois Corporation, hereinafter referred to as "Johnson", to obtain a declaratory judgment pursuant to Section 2201, Title 28 U.S.C.A. Noble alleged that a controversy had arisen on the validity and infringement of Johnson patents No. 2,199,289 hereinafter referred to as 2199, and No. 2,109,534 hereinafter referred to as 2109. Johnson filed a counterclaim alleging the ownership of the patents by virtue of an assignment from C.S. Johnson, the inventor, and the infringement of both patents by Noble. Noble answered the counterclaim admitting the ownership of the patents but alleging their invalidity and denying the infringement. The trial proceeded upon the counterclaim by stipulation.

In Johnson patent No. 2199, application was filed February 6, 1935 and issued April 30, 1940. It is termed a "Central Mixing Plant" or a "Vertical Flow Plant". There are storage bins for sand, cement and gravel located at the top of the plant. The materials are lifted or dumped into various bins. Under each bin is a weighing device called a batcher. The materials from the bins are permitted to flow into the batchers by opening and closing of a gate. Below the batchers is a hopper to collect the various materials making up the mix or aggregate. A suitable chute is provided below the hopper to convey the aggregate into one or more of the mixers which are arranged below the hopper. The mixers have a single end opening, charging and discharging at the center axis of the plant. A receiver is provided below the mixers to receive the mixed concrete from the various mixers. The flow of gravity operates the plant.

In patent No. 2199 it was stipulated that Johnson would stand on claim No. 2 which reads as follows:

This claim, specification and evidence disclose that the elements upon which No. 2199 is to stand for invention and validity as a patent are:

    1. A plurality of single ended mixers with their
  charge-discharge openings all pointed toward the
  center of the plant.

2. An aggregate collecting hopper above the mixers.

    3. A distributing chute below the aggregate hopper
  movable to feed the aggregate into any one of the
    4. A receiver below the mixers, of a shape to
  receive concrete from all the mixers.

The prior art in evidence discloses that each of these elements was old. None of the prior art hereinafter referred to was cited in the patent office. Tilting mixers which were charged and discharged from one end are disclosed in the Brown patent, No. 1,314,124, August 26, 1919, Piispanen patent, No. 1,780,940, November 11, 1930, A.G. Reed patent, No. 1,848,223, March 8, 1932. Johnson insists that single end mixers were not commonly available at the time of his invention. This does not destroy the conclusion that they were old in the art. The movable distributing chute is found in W. Watson patent, No. 282,425, July 31, 1883. This invention relates to an improvement in grain elevators. This is analogous art and was so considered in Concrete Appliances Co. v. Gomery, 269 U.S. 177, 181, 46 S.Ct. 42, 70 L.Ed. 222. In the Herbert plant built by Johnson in 1931 and the Madden Dam plant which was sold and planned by Johnson in 1932 we find a movable distributing chute. Madden appeared in a publication of "Engineering News Record" December 8, 1932. Such a chute was also used in Bolz patent, No. 997,742 dated July 11, 1911, where the materials were moved to one side or the other by a flopgate. Aggregate collecting hoppers from which the aggregates flow into the distributing chute were used in the Herbert plant in 1931 and the Madden Dam plant. The mixed concrete receiver is described in the patent at p. 3, col. 2 as being a "hopper, car-body, or any desired type of receptacle or holder means, * * broadly characterized as a receiver for mixed concrete." Such a concrete receiver to receive from all the mixers was used in Madden Dam plant and Waterlip plant as shown in "Pit & Quarry" publication of March 26, 1930. Although Figure 2 in patent 2199 indicates four mixers claim 2 neither limits the size nor the number of mixers.

The prior art anticipates this patent. The "vertical flow plant" such as appears in 2199 is shown on "Stephens-Adamson" plant in the publication in catalogue of 1931. The drawing shows the overhead bins for different materials which were filled by a conveyor. "The materials are withdrawn from the bins by feeders and discharged into the weigh hoppers." It shows the bins, batchers, receiving hoppers, and the chute below the hopper to convey the aggregates into the mixer. The Waterlip plant utilized the distributing chute in the form of a flopgate under an aggregate hopper which permitted the aggregates to be placed in one or the other of two mixers which charged and discharged from one end and tilted to be discharged into a common receiving hopper. All the elements functioning as in Johnson 2199.

Johnson further contends that by the use of a short chute charging a mixer facing the center axis of the plant premixing was obtained and it required less time for the aggregates to remain in the mixers after water was added. This was also achieved in the Herbert plant and accomplished in the Waterlip plant. Madden was a center axis plant and if single end charge and discharge mixers are substituted it requires only the mechanical change of a direct chute from the aggregate collecting hopper instead of chutes with elbows to charge the mixers.

In view of the prior art this court cannot see that there is an invention in 2199. It is the general rule that all the elements of a combination claim need not be found in a single prior art. Richmond Screw Anchor Co. v. Umbach, 7 Cir., 173 F.2d 521, certiorari denied 337 U.S. 919, 69 S.Ct. 1161, 93 L.Ed. 1728. It must be concluded after an examination of these old elements that patent 2199 is invalid because the functions of ...

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