American Street Flushing Co. v. D. Connolly Boiler Co.

LACOMBE, Circuit Judge. This patent was first examined and prior art exhaustively discussed by the Court of Appeals for the Eighth Circuit, which sustained its validity and construed its claims giving full weight to the proceedings by way of amendment in the Patent Office. St. Louis Street F. M. Co. v. American Street F. M. Co., 156 Fed. 574, 84 C. C. A. 340. In the cause at bar (F. R.), Judge Hazel followed this earlier decision, but himself discussed the various issues and found that the machines of defendant infringed the claims as so construed. We fully concur in his reasoning and conclusions. The additional patent, Beckwith 554,168, adds nothing material to the showing of the prior art. The nozzles of defendant’s machine may be so adjusted that a considerable part of the stream will strike the pavement at an angle so sharp as to dig out the filling material from between the blocks or bricks, if used on a pavement thus constructed; but it is not so arranged that it can act only in that way. It is readily adjustable so that much the greater part of the stream— 75 per cent, or more — will operate just as it does in the patented structure. We do not think infringement is avoided by applying some small fraction of the stream discharged somewhat differently. It seems unnecessary to add anything to Judge Hazel’s discussion of the case. Decree is affirmed, with costs.