Vandenburgh v. Concrete Steel Co.

Second Circuit

Vandenburgh v. Concrete Steel Co.

258 F. 143, 169 C.C.A. 138, 1919 U.S. App. LEXIS 1171

CourtCourt of Appeals for the Second Circuit

DecidedApril 16, 1919

DocketNo. 172

StatusPublished

Cited by4 cases

This text of 258 F. 143 (Vandenburgh v. Concrete Steel 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

Vandenburgh v. Concrete Steel Co., 258 F. 143, 169 C.C.A. 138, 1919 U.S. App. LEXIS 1171 (2d Cir. 1919).

Pincite

Opinion

WARD, Circuit Judge.

[1] United States reissued patent 14,182, to George E. Vandenburgh, for a concrete reinforcing bar, was held void for want of invention by the District Court for the Western District of Pennsylvania in the suit of Vandenburgh v. Electric Welding Co., 259 Fed. 579. while the court below dismissed the bill in this case against the Concrete Steel Company for noninfringement. Both courts held that the original patent did not contemplate collapsibility of the structure, because the spiral coil was described as rigidly fixed by kerfs and spurs on the reinforcing bar. For this reason it was held that claims 1 and 2 of the reissue, which were intended to cover collapsibility of the structure, were invalid, as too broad. We agree in this conclusion.

But claim 3 of the reissue is literally the same as claim 3 of the original patent, and claim 5 of the reissue is literally the same as claim 4 of the original patent. These claims should be construed consistently with the specifications, which are also literally the same in each patent, as meaning that the spiral coil is rigidly connected with the longitudinal bar at each point of contact. So construed, the claim describes a continuous spiral rigidly and integrally connected with kerfs and spurs in the bar, constituting a trusslike structure within the body of the concrete, resisting lateral and longitudinal strains, and which can be-more cheaply manufactured than if'the spiral were riveted or welded to the bar at each point of contact.

[2] The defendant’s witness Cummings frankly admits that this form of reinforcing structure was new in cement work and has come into general use. The fact that claims 1 and 2 of the reissue are invalid, as too broad, does not invalidate claims 3 and 5. Gage v. Her[144]*144ring, 107 U. S. 640, 646, 2 Sup. Ct. 819, 27 L. Ed. 601. The defendant’s structure when set up to receive the concrete is exactly the same as plaintiff’s, except that the spiral coil is not rigidly fixed by kerfs and spurs on the bar. ■ This enables the structure to be collapsed when not in use, a commercial improvement for purposes of shipment, but which does not justify the defendant’s appropriation of the plaintiff’s structure.

The decree is reversed, with half costs to the plaintiff.

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WARD, Circuit Judge.

[1] United States reissued patent 14,182, to George E. Vandenburgh, for a concrete reinforcing bar, was held void for want of invention by the District Court for the Western District of Pennsylvania in the suit of Vandenburgh v. Electric Welding Co., 259 Fed. 579. while the court below dismissed the bill in this case against the Concrete Steel Company for noninfringement. Both courts held that the original patent did not contemplate collapsibility of the structure, because the spiral coil was described as rigidly fixed by kerfs and spurs on the reinforcing bar. For this reason it was held that claims 1 and 2 of the reissue, which were intended to cover collapsibility of the structure, were invalid, as too broad. We agree in this conclusion.

But claim 3 of the reissue is literally the same as claim 3 of the original patent, and claim 5 of the reissue is literally the same as claim 4 of the original patent. These claims should be construed consistently with the specifications, which are also literally the same in each patent, as meaning that the spiral coil is rigidly connected with the longitudinal bar at each point of contact. So construed, the claim describes a continuous spiral rigidly and integrally connected with kerfs and spurs in the bar, constituting a trusslike structure within the body of the concrete, resisting lateral and longitudinal strains, and which can be-more cheaply manufactured than if'the spiral were riveted or welded to the bar at each point of contact.

[2] The defendant’s witness Cummings frankly admits that this form of reinforcing structure was new in cement work and has come into general use. The fact that claims 1 and 2 of the reissue are invalid, as too broad, does not invalidate claims 3 and 5. Gage v. Her[144]*144ring, 107 U. S. 640, 646, 2 Sup. Ct. 819, 27 L. Ed. 601. The defendant’s structure when set up to receive the concrete is exactly the same as plaintiff’s, except that the spiral coil is not rigidly fixed by kerfs and spurs on the bar. ■ This enables the structure to be collapsed when not in use, a commercial improvement for purposes of shipment, but which does not justify the defendant’s appropriation of the plaintiff’s structure.

The decree is reversed, with half costs to the plaintiff.

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258 F. 143, 169 C.C.A. 138, 1919 U.S. App. LEXIS 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandenburgh-v-concrete-steel-co-ca2-1919.

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