October 4, 1934
KOPPEL INDUSTRIAL CAR & EQUIPMENT CO.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
THOMPSON, Circuit Judge.
This is an appeal from a decree of the District Court for the Western District of Pennsylvania granting an injunction and accounting for alleged infringement of Brynoldt patent, No. 1,298,450, for apparatus for constructing concrete walls, which patent had been assigned to the appellee, Blaw-Knox Company. The patent states as follows: "This invention relates to the process and apparatus for constructing concrete walls and more particularly that class of walls required for canal locks, retaining walls, and the like, and has for its principal objects; the provision of means whereby a single wall form may be used to construct a wall of greater length than the form with a minimum of apparatus and manipulation; the provision of an apparatus wherein a wall form may be supported without the customary use of tie rods, or in the case of a very high wall with a minimum of number of tie rods, or in the case of a very high wall with a minimum number of tie rods; the provision of a mold form wherein the strain upon the supports and tie rods is equalized throughout the length of the mold form; The provision of improved methods of supporting the bulkheads closing the ends of the forms whereby the form may be detached from the finished wall section and moved to a new position with a minimum of labor and time consumed in its operation; the provision of efficient means for adjusting the mold forms with respect to the supports, and such other objects as may hereinafter appear."
The claims in suit are as follows:
"3. In a wall mold apparatus, the combination of a pair of side trusses connected adjacent the top so as to constitute a member adapted to straddle the work, a pair of oppositely disposed wall mold sections supported within said member, and means for supporting the lower ends of the side trusses against displacement."
"5. In a wall mold apparatus, the combination of a pair of substantially vertical truss members adapted to lie on opposite sides of the work, means connecting the upper portions of said members to prevent displacement thereof, means adapted to prevent displacement of the lower portions of said members, two oppositely disposed wall mold sections between said truss members, and means for supporting the sections from the said members"
"7. In a wall mold apparatus, the combination of a pair of upwardly extending truss members adapted to lie on opposite sides of the work, means connecting the upper portions of said members to prevent displacement thereof, means adapted to prevent displacement of the lower portions of said members, and two oppositely disposed wall mold sections between the truss members.
"8. In a wall mold apparatus, the combination of a substantially U-shaped inverted truss member adapted to straddle the work, and two oppositely disposed wall mold sections supported within the member."
"19. In a wall mold apparatus, the combination of upright truss members, a pair of oppositely disposed wall mold sections supported therein, and means adapted to connect the sections at a plurality of points in the area thereof to prevent relative displacement."
The appellant's form of apparatus was designed by two former employees of the appellee.
The court below found as a fact and it is not disputed that, prior to the invention disclosed in the patent, the construction of high concrete walls in heavy massive work, such as that to which the invention relates, was accomplished by casting in lifts.
It is also not disputed that the U-shaped inverted truss member adapted to straddle the work was new in the art. The appellant concedes this in its brief, from which we quote: "All of the figures upon which plaintiff bases its argument of commercial success are based upon the use of forms having the rigid integral U-shaped movable trussed housings, which defendant has not denied may be a patentable invention, and which it has scrupulously respected, see R. 133-4."
The court found that the only practical distinction between the appellee's inverted U-shaped rigid construction and that of the appellant was in the use by the latter of struts bolted to an inner trough section so as to make the top structure a single unit; and that the struts so used were, for all practical purposes, the equivalent of the truss construction of the patent in suit.
We find no error in the conclusion of the court below that the appellant's construction comes within the invention of the patent as a form "having the rigid integral U-shaped movable trussed housings." That conclusion is based inter alia upon the court's findings of fact Nos. 41 to 44 and 47 to 50.
After careful examination and consideration of the entire record and the briefs in the case, we find that the court below, in its findings of fact, conclusions of law, and opinion, has thoroughly and with painstaking care discusses the invention of the patent in suit and the prior art, and has compared the appellant's structure with that of the patent. A further discussion of the issues in the case would be a needless repetition of what has been, in our view, well and conclusively stated by the trial court. We find no error in the findings of fact, conclusions of law, and the opinion of the learned judge, set out above.
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