RESPONDENT: Pavement Salvage Company, Inc.
LOCATION: Riverbed of the Arkansas River
DOCKET NO.: 45
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 396 US 57 (1969)
ARGUED: Nov 10, 1969
DECIDED: Dec 08, 1969
Facts of the case
Media for Anderson's Black Rock, Inc. v. Pavement Salvage Company, Inc.
Audio Transcription for Oral Argument - November 10, 1969 in Anderson's Black Rock, Inc. v. Pavement Salvage Company, Inc.
Warren E. Burger:
Number 45, Anderson's-Blackrock against Pavement Salvage Company.
Mr. Borst, you may proceed whenever you are ready.
Alan W. Borst:
Thank you sir.
If the court pleases, this is a civil action, a case in patent infringement which was tried in the District Court for the Southern District of West Virginia.
The trial was had and a opinion was rendered in written form declined that the patent in suit namely Neville Patent, number 3,005,280 was invalid.
Not reaching the issue of infringement on account of that adjudication.
The appeal was then made to the Circuit Court of Appeals for the Fourth Circuit here in Richmond, before which we had oral argument and after that, decision was rendered reversing the District Court, remanding it to the District Court for consideration of the infringement issue.
Stay of that mandate was then granted on petitioner's request pending of course the termination of that whole matter by this court.
The Neville patent in suit, basically, discloses a street paver and suspended from the street paver is a heat generator.
The street paver basically comprises a hopper which receives bituminous materials from a truck which has obtained the materials from an asphalt plant.
A distributor which deposits the material on a roadbed and a tamper which in vibrating fashion compacts the material on the road -- on the bed and very often a screed which irons or planes the material so as to smooth it and should finally shape the pavement.
The heater which is suspended from the paver in the Neville case, in the Neville Patent is not used in the operation of the paver to form the pavement -- the first strip of pavement.
It is used solely when paving the second strip which is to be laid in abutting relation to the first strip.
The heater functions to preheat the longitudinal, marginal edge of the first strip -- had been laid and which had allowed to grow cool and then the paver itself deposits the asphalt on the roadbed and against the new -- the preheated edge so as to form a bond therewith, a union therewith and to make the so-called cold joint.
The claims in suit, and we have considered claimed for as representative call broadly for means for laying the asphalt and means for shaping the pavement.
And broadly, therefore, covers the paver itself.
The claim goes on to recite a radiant energy generating means and further in connection with the radiant energy generating means that it comprises a combustion chamber.
The lower plate of which is perforated.
And through the holes of the perforation or adjacent thereto propane gases or butane gases are fired and the plate thereby becomes incandescently hot and becomes a source of radiant energy or infrared heat.
The radiant energy generator in the Neville patent is disclosed as far it is claimed in the Schwank Patent number 2,775,294 and the Neville specification so states that the radiant energy generator that is disclosed in the Schwank Patent is entirely suitable for the patentee's purposes.
The components of the paver and the components of the generator are all old elements which are readily conceded by respondent.
In reversing the District Court --
There's is no process patent involved here though, is it, just two products?
Alan W. Borst:
There is no process claims, just apparatus claims.
In reversing the District Court the Circuit Court of Appeals commented that the steps which occupy the attention of the District Court were narrow ones and went on to decide to make its decision largely based on the satisfaction of the long felt need and eventual acceptance -- the eventual acceptance of Neville's concepts by respondents experts who were initially skeptical.
The court then went on to find that the method of forming the so-called cold joint between two asphalt lanes of concrete highway previous to Neville involve the process of cutting back the vertical marginal edge and painting it with asphalt.
We feel that both this finding of the of the Circuit Court of Appeals and the significance to be attached to the expert's original sceptability, and incredulity must be weighed in terms of the prior art which was extent at that time, included in that art was British patent number 756,911.
According to that patent, it was entirely feasible to cut back -- to heat the vertical edge of the first laid lane of concrete.
There is no mention in this prior art patent of cutting back that edge and painting it with hot asphalt.
We feel that knowledge of this patent as well as other patents of the prior art as we feel are particularly opposite and their disclosures should be imputed constructively to the respondents experts as well as to the patentee himself.