13 F.2d 454 (6th Cir. 1926), 4105, Permutit Co. v. Wadham

Docket Nº:4105.
Citation:13 F.2d 454
Party Name:PERMUTIT CO. v. WADHAM et al.
Case Date:June 08, 1926
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 454

13 F.2d 454 (6th Cir. 1926)



WADHAM et al.

No. 4105.

United States Court of Appeals, Sixth Circuit.

June 8, 1926

In Error to the District Court of the United States for the Southern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge.

Patent infringement suit by the Permutit Company against Frank L. Wadham and others. Decree for defendants (294 F. 370), and plaintiff appeals. Reversed, and remanded for interlocutory decree.

Page 455

James Q. Rice, of New York City, and John W. Peck, of Cincinnati, Ohio (M. C. Massie, of New York City, on the brief), for appellant.

Walter A. Knight, of Cincinnati, Ohio (Cromwell, Greist & Warden, of Chicago, Ill., and Knight & Phares, of Cincinnati, Ohio, on the brief), for appellees.

Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge.

This is the usual infringement suit based on claims 1 and 5 of patent 1,195,923, issued August 22, 1916, to Robert Gans, a German citizen, for a device for softening water.

The patent has been sustained upon final hearing in the Western District of New York, and, upon appeal, by the Second Circuit Court of Appeals, and again upon motion for preliminary injunction in the Southern District of New York. A full statement of the situation will be found in the opinions of Judge Hazel in the first of these cases (274 F. 937), of Judge Manton for the Circuit Court of Appeals in the same case (279 F.713), and of Judge Learned Hand in the second case (292 F. 239). Reference should be had to these opinions for a full history and description. The District Court in the present case reached the contrary result, and held the patent invalid, or, if valid, not infringed.

Without repeating the details found in these opinions, it is sufficient now to say that it had long been known with regard to zeolites, a somewhat rare natural mineral combination, that they had the faculty of taking up the lime from hard water, thereby making it soft. This having been accomplished, and the zeolites then being charged with this lime, it in turn could be removed by putting them in salt water, after which they would again be ready to perform the softening operation. It seems that this process continued practically only a laboratory operation until Dr. Gans invented an artificial zeolite, which could be produced in large quantities at a practicable cost. He was associated with the manufacturing and engineering firm of Ridel & Co., and this firm at once took up with Dr. Gans and other engineers the project of devising and constructing a large scale apparatus which would accomplish cheaply and quasi automatically the softening of water for industrial and domestic uses, and the necessary intermittent regeneration of the zeolites. The ultimately accepted and the successful result of these efforts was the process of the apparatus shown in the patent here in suit.

The process has gone into enormous use in this country, and rarely is there a case where a new art and industry are founded solely upon, and grow entirely from, a patent, so clearly as in this case. It is not claimed that there was ever any practice of the process by any one in the United States before the Gans application, and it is not to be denied that the entire commercial activities of all makers in this country have grown out of the commercial exploitation here by the owners of the patent. The actual savings in the arts and industries, as well as domestically, resulting from the existence of this successful and cheap method of turning hard water into soft, are beyond accurate computation, but are very great; and the practical benefit to the public resulting from the use of useful instances of applied science which have distinguished recent years. With this background, it is clear that the patent should be treated with all permissible liberality, and that the courts will go as far as they rightly can in the way of overlooking technical defects and overruling defenses which are not clearly fatal.

In view of the full treatment given in the other cases, and the due application of the familiar rule of comity, the case can well be disposed of by relatively brief comment upon

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the points now chiefly relied upon in defense and the respects in which it is claimed this record may be distinguished from the former ones. The fundamental defense, and the one by which the court below was perhaps in the end chiefly moved, was that the device, in substance, uses only the common and well known method by which water is...

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