228 F.2d 885 (3rd Cir. 1956), 11631, Metals Disintegrating Co., Inc. v. Reynolds Metals Co.

Docket Nº:11631.
Citation:228 F.2d 885, 108 U.S.P.Q. 143
Case Date:January 13, 1956
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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228 F.2d 885 (3rd Cir. 1956)

108 U.S.P.Q. 143




No. 11631.

United States Court of Appeals, Third Circuit.

January 13, 1956

Argued Nov. 3, 1955.

W. D. Keith, New York City (Arthur G. Connolly, Wilmington, Del., Paul S. Bolger, New York City, on the brief), for plaintiff.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This is an action for infringement of two patents, No. 2, 002, 891 and No. 2, 144, 953, both used in the manufacture of aluminum paints. The District Court held both valid and found infringement of each from the date plaintiff purged itself of their prior misuse. D.C.D.Del.1955, 130 F.Supp. 227. Appellant, contending that both patents are invalid for lack of invention, does not contest the claim of infringement if they are valid, but argues that, in any event, the District Court erred in fixing the date when purge was effected.

The setting of the controversy is this. The basic components of metallic paints are a liquid paint vehicle and a pigment in the form of finely divided metal particles. Much of today's aluminum paint is made by mixing a leafing aluminum bronze paste with an ordinary paint vehicle such as varnish. 'Bronze' as used here is neither a metal nor a color, but rather the form of small flakelike particles to which certain metals, and particularly aluminum, can be and are reduced for various commercial uses. Thus, aluminum bronze is aluminum in tiny flaked particles. 'Leafing' or 'mirroring'

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is a property which bronzed particles may be caused to exhibit in such liquids as oils and varnishes. It is the property of rising to the surface of the liquid and there dispersing yet overlapping to form a thin continuous metallic film. This extraordinary behavior must be artificially induced, particularly since the metal is specifically heavier than the liquid vehicle. It is important in metallic paint because it increases opacity, coverage and brilliance of finish.

In this connection it should be noted that two distinct problems are involved in the art of making aluminum pigment. First, a quantity of aluminum must be reduced to the bronze form. Second, a satisfactory leafing quality must be imparted to the bronze. Before the inventor Everett Hall devised the process described in Patent No. 2, 002, 891, hereinafter called Hall '891, it was the teaching and practice in this field that these two essentials be accomplished in separate stages. In the first stage a milling operation reduced the metal to bronze. There followed a separate process of 'polishing' the flakelike particles with a leafing agent, often stearic acid, and 'aging' these treated particles. According to the evidence in this case and the proper findings of the District Court thereon, this polishing and aging was the commercially accepted method of inducing leafing until Hall devised the process here in question.

The new teaching of Hall '891 was a method of reducing and processing the metal in a single stage to produce a leafing paste which was more satisfactory to handle than the familiar leafing powder and made a better paint. More particularly, Hall '891 taught that where aluminum, while being reduced by impact in a ball mill, is treated with approximately 3 per cent of its weight of stearic acid in a volatile liquid like paint thinner in the presence of oxygen and heat, a satisfactory leafing quality will be imparted to the bronze; that evaporation of the excess liquid at a temperature not more than 50 degrees C. will leave a homogeneous, stable paste which is a satisfactory leafing pigment; and, if a leafing powder is desired, this may by accomplished by...

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