De Mayo Coaling Co. v. Michener Stowage Co.

Second Circuit

De Mayo Coaling Co. v. Michener Stowage Co.

231 F. 736, 146 C.C.A. 20, 1916 U.S. App. LEXIS 1707

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 15, 1916

DocketNo. 145

StatusPublished

Cited by4 cases

This text of 231 F. 736 (De Mayo Coaling Co. v. Michener Stowage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Mayo Coaling Co. v. Michener Stowage Co., 231 F. 736, 146 C.C.A. 20, 1916 U.S. App. LEXIS 1707 (2d Cir. 1916).

Pincite

Opinion

LACOMBE, Circuit Judge.

[ 1 ] The Distinct Judge evidently was largely influenced by the circumstance that patentee’s apparatus was generally accepted and has had a great commercial success. Such a circumstance is frequently persuasive evidence of patentable novelty. In this concrete case, however, the weight of such evidence is much reduced because the single claim in controversy does not cover the whole of patentee’s device, but only a part of it, and it cannot be ascertained from the evidence that that particular part is what secured general acceptance. The case is very like the one we had before us in Doig v. Morgan Machine Company, 122 Fed. 460, 59 C. C. A. 616. In that case claims 5 and 6 were concerned with the adjustment of certain railways. We said:

“If it be conceded * * * that all prior box-nailing machines were failures ; that the machine of the patent was tliei first practical and commercially successful one; that it was accepted by the art, and has since monopolized the field—nevertheless such evidence is not helpful to a solution of the ques-' tion presented on these two claims. There is nothing to show that this minor improvement in one part of the machine contributed at all to any such far-reaching results. Speaking of the prior state of the art concerning the adjustment of the way-plates, complainant’s expert is careful to ‘emphasize the fact tl’at this feeder way-plate construction is combined with other elements insuring the proper delivery of the nails thereto, and the proper cutting out or cutting off of the nails into the chutes of the nail boxes. In other words, a nail-pan must be provided which will bring the nails in series to the way-pin tes of the feeder, suspended by their heads in proper position to be delivered to tho nailways of the feeder, for, if the nailways of the feeder be not continuously and properly supplied with nails in proper position to be conducted thereto, tho machine will not operate properly. In other words, we are dealing here with an entire organism, to wit, a feeding device for inevitably bringing the nails in proper supply to the chutes, so that the feeding mechanism and the nailing mechanism will operate in harmony.’ These two claims, however, do not include the nail supply box, nor the devices for securing passage from that box to the nailways, nor the devices for cutting them out at the end of the nail-ways and delivering them to the chutes, nor the nail chutes, nor the nailing mechanism. Of the 820 lines of the specification, barely 25 deal with the construction and operation of the nailways; and for aught that the record discloses the meritorious features of complainant’s box-nailing machine may lie wholly within the other parts of the completed structure.”

[738]*738[2] The De Mayo patent sets forth one prime and several minor objects of invention.

1. The prime one is the means for distributing the coal (when it has been lifted) into the various bunker hatches.

2. Another object is constructing the elevator proper, so that it will not spill coal, but deliver all raised in the buckets. This is effected partly by the form and arrangement of the buckets—partly by a shield on the side of the elevator nearest to the ship.

3. Another object is such arrangement of the delivery chute which leads to the coaling port that it may be readily adjusted to suit the lowering of the coal in the barge.

4. Another object is to provide means for sustaining the elevator proper “flexibly in position alongside of the ship, so that any movement of the barge from which the coal is taken will not destroy or rack any of the parts of the apparatus.”

As might be supposed, the record indicates that it was old to suspend the elevator from a davit, or boom, or what not on the ship by a tackle, and,' as the coal level sank, to pay out on the tackle, so as to keep the bottom of the elevator on the coal. The improvements of the patent last referred to are the “flexible arrangements” for preventing-racking of parts.

The testimony shows that the whole apparatus is a useful one, an improvement on the old art, greatly facilitating the process of coaling a large ship with numerous bunkers, without loss, wastage, or dust. When this testimony is studied, however, it is apparent that the distributor from the coal port to the several bunkers is a very important feature of the invention; it must be a great time-saver. So is the feature that by shape and arrangement of buckets, apron, and long shield any overflow will drop back into the barge and not be wasted. So, too, the “self-contained motor”; i. e., motor located on the frame itself to elevate the buckets is considered desirable. Such self-contained motors were old.

Incidentally it may be noted that the distributor on the ship is an element of claims 1, 2, 4, S, 6, 11, and 12. The shield is an element of claims 9 and 10., The details of buckets and apron are elements of claim 13. The location of the motor for raising the buckets on the frame is an element of claims 3, 7, 8, 9, 10, and possibly 2 and 11.

Such a combination of different subimprovements constituting a single structure may have a great commercial success, and yet such success may not be persuasive evidence that some one of the subimprovements discloses patentable invention. The single claim relied on here is No. 7, which reads:

“7. In an apparatus for coaling ships, the combination of a frame and elevating means thereon, means for driving the elevating means, the driving means being mounted on the frame, means mounted on the ship and connected with the upper part of the frame to suspend the same from the ship, and guy devices at each side of the frame said devices being in connection' with the frame and with the ship.”

A portion of Fig. 1 and Fig. la will sufficiently illustrate the devices which are features in claim 7:

[739]

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