284 U.S. 52 (1931), 3, Permutit Co. v. Graver Corporation

Docket Nº:No. 3
Citation:284 U.S. 52, 52 S.Ct. 53, 76 L.Ed. 163
Party Name:Permutit Co. v. Graver Corporation
Case Date:November 23, 1931
Court:United States Supreme Court
 
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284 U.S. 52 (1931)

52 S.Ct. 53, 76 L.Ed. 163

Permutit Co.

v.

Graver Corporation

No. 3

United States Supreme Court

Nov. 23, 1931

Argued October 15, 16, 1931

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

1. A patent which fails to describe in the specification, and to point out particularly and distinctly claim, an invention or discovery, is void. R.S. § 4888. P. 57.

2. While drawings may be referred to for illustration and may be used as an aid in interpreting the specification or claim, they are of no avail where there is an entire absence of description of the alleged invention or a failure to claim it. P. 60.

3. Patent No. 1,195,923 (Claims 1 and 5) to Gans, for an apparatus for softening water, is void, for want of disclosure and want of invention. Pp. 57-60.

This apparatus employs the process of softening water by means of zeolites, which take up calcium and magnesium from hard water, giving up their sodium base, and are "regenerated" when washed by a solution of common salt. The light zeolite particles rest upon a filter-bed of sand and gravel within the container in which the water is treated. When the water, or the regenerating salt solution, is flowed through them from below, they are likely to be

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washed away. To prevent this, in the earlier filter, a metal screen was placed close above the bed of zeolite. The patentee was alleged to have discovered that this "locking" of the zeolites interfered with their efficient action, and that it was necessary to have an open space above them in which they might rise, or "boil," and spread out and reform in the bed, and the alleged invention chiefly relied upon in the litigation lay in removal of the close-fitting cover and in placing the screen some distance above the layer; but this was not mentioned in the specification or in either of the claims. A further contention, under Claim 5, that there was invention in placing the means for removing the salt solution at the lowest point of the casing is also rejected. "It does not require the exercise of the inventive faculty to place at the bottom of a receptacle the outlet through which it is to be drained."

43 F.2d 898 affirmed.

Certiorari, 283 U.S. 812, to review a decree affirming a decree of the District Court, 37 F.2d 385, dismissing a suit to enjoin alleged infringement of a patent.

BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the court.

The Permutit Company is the owner of Gans patent No. 1,195,923, for an apparatus for softening water, applied for August 5, 1911, and granted August 22, 1916. It brought, on February 23, 1928, this suit in the federal court for northern Illinois against Graver Corporation to enjoin infringement of claims 1 and 5. The defendant denied both the validity of the patent and the infringement. The District Court held both claims invalid, 37 F.2d 385. The Circuit Court of Appeals for the Seventh Circuit affirmed that decision, and also held that the

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defendant's "presently used structures" do not infringe Claim 5, 43 F.2d 898. Certiorari was granted because of conflict with earlier decisions in other circuits.1

Water is hard because it contains the salts of calcium and magnesium. It may be softened by distillation or by adding to the water certain other chemicals through which the hardening constituents in solution are changed to an insoluble form and precipitated. Such softening may also be effected by the use of zeolite, a hydrated alumino-silicate found in nature. When hard water is passed through zeolites, they give up their sodium to the water, and take from it the calcium and magnesium as a new base. Zeolites have the peculiar quality that, after becoming exhausted in such use, they may be regenerated by passing a solution of common salt through them, whereupon they give up their new base of calcium and magnesium and take back their sodium base. They retain indefinitely these valuable properties.

The chemical attributes of zeolites and their effect upon hard water had been known long before the application for the patent in suit. But zeolites were not employed commercially as a water softener because, as then found in nature, they were ill adapted for use in filters, and the expense of mining them was large. Gans invented a process for producing artificial zeolites and a process of softening water by means of them. The United States patents issued for those inventions had expired before

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the commencement of this suit, which is upon a patent for an apparatus

in which the zeolites or alumino-silicates can be used in a filter and be regenerated therein so as to be capable of continuous use for the softening of water.

The essential elements of the water softening process in which this apparatus is employed are the passage of water through zeolites, their regeneration by recharging them with the sodium chloride solution, [52 S.Ct. 54] and the rinsing of them thereafter, so that no noticeable tinge of salt will be found in the filtered water. A drawing was attached to the specification as an example of a filter provided according to the invention claimed.

As described in the specification, the apparatus consists of a cylindrical container within which are "a number of horizontally disposed perforated plates." Near the bottom is one upon which rests a layer of sand (or quartz). This supports a bed of zeolites. At some distance above the zeolites is another perforated bed of sand "through which the water to be softened may be first filtered." There are piping connections so that the hard water may be run into the casing through the zeolite bed and out to the soft water service line. The chamber is also provided with means for cutting off the hard water and introducing a flow of salt water to regenerate the zeolites, and with means for washing out of the container the contaminated brine and any accumulated dirt. As so constructed, the filter may operate by letting the hard water flow either downward through the upper sand bed to the zeolites or upward to them through the lower sand bed. On March 2, 1920, The Permutit Company disclaimed from the scope of Claim 1 any apparatus "in which the water to be softened is so introduced into the casing that it passes upwardly through said layer of zeolites." It is conceded that Graver Corporation's 1927 type of water softener does not infringe Claim 1, as, in it, the water passes upward.

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The specification also describes, and the drawing indicates, a modified form of apparatus provided with means for stirring the zeolites in washing. No stirrer is employed in the defendants' apparatus.

First. The apparatus described in the specification closely resembles sand filters long used. The elements enumerated above, alone and in combination, are confessedly old. The only invention seriously urged under Claim 1 is the substitution of a "free" for a "locked" zeolite bed, a matter which is not referred to either in the specification or in the Claim. In earlier filters, the zeolites had been held in place by locking the bed -- that is, by placing a metal screen either immediately over the layer of zeolites or over a layer of burlap or excelsior resting upon them. The occasion for a screen is that zeolite grains are lighter than the sand and gravel on which they rest. In flowing the water or the regenerating solution upward through the zeolite bed in an upflow softener, or in backwashing the zeolites in a downflow softener for the purpose of cleansing them of...

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