Permutit Co. v. Wadham
| Decision Date | 08 November 1923 |
| Docket Number | 277. |
| Citation | 294 F. 370 |
| Parties | PERMUTIT CO. v. WADHAM et al. |
| Court | U.S. District Court — Eastern District of Michigan |
James Q. Rice and M. C. Massie, both of New York City, and Whittemore, Hulbert, Whittemore & Belknap, of Detroit, Mich for plaintiff.
Walter A. Knight, of Cincinnati, Ohio, Franklin M. Warden, of Chicago, Ill., and William M. Swan, of Detroit, Mich., for defendants.
The plaintiff, the Permutit Company, a corporation of Delaware brought its bill of complaint in this court against Frank L Wadham, Barnet Dalitz, Aaron Jackson, and Nathan Dalitz, a copartnership doing business in Detroit under the name and style of Massachusetts Laundry Company. The original bill charged infringement of United States letters patent No 1,195,923, for the softening of water, granted August 22, 1916, to J. D. Riedel Aktiengesellschaft, of Germany, on the application of Robert Gans, filed August 5, 1911, and also charged infringement of United States letters patent No. 1,276,629, of August 20, 1918, for method of an apparatus for softening water, which were granted to the plaintiff on an application of Thomas R. Duggan, filed October 23, 1916. Plaintiff acquired ownership of the Gans patent through assignment from the Riedel Aktiengesellschaft.
The apparatus complained of was manufactured and installed for the Massachusetts Laundry by the Borromite Company of America, which intervened and became a party defendant.
After certain depositions had been taken on behalf of defendants, the plaintiff withdrew the Duggan patent by filing an amended bill omitting reference thereto.
The Gans patent relates to the art of softening water by what is known as the zeolite process. The softening is accomplished by merely passing hard water through a filter bed of granular sodium zeolites. Zeolites are minerals which have the peculiar faculty of exchanging the base with which they may be chemically combined for another which is present in a solution brought into contact with the zeolites. In their use for softening water, the zeolites-- or, as they are sometimes known, the double silicates of alumina, or of iron, or of both, as the case may be-- when containing a sodium base will exchange that base for the calcium and magnesium in hard water; the exchange continuing until the sodium in the zeolites has been exhausted. This exchange leaves the water soft. These same zeolites, now having a calcium base, may be re-established as agencies for the further softening of water by bringing them into contact with a solution of sodium chloride, or common salt brine, in which case the brine picks up the calcium from the zeolites and leaves in its place an equal amount of sodium. This step of the process is commonly called 'regeneration.'
The Gans patent provides apparatus in which the softening of water and the regeneration of the zeolites may be carried on alternately. The patent does not purport to cover the zeolites themselves, or their use for the softening of water. Zeolites, their properties, and their utility in this direction had been known and described many years prior to the filing of the application for the Gans patent.
Zeolites are of two general classes-- those found in nature and those prepared artificially. Gans, the inventor of the patent in suit, may be given credit for having discovered and perfected certain methods of preparing zeolites synthetically. With his discoveries in this direction the commercial use of zeolites commenced. Later on, when the art was established in this country, certain deposits of glauconite, commonly known as 'green sand,' present in large quantities in New Jersey and elsewhere, were found to have all of the properties and characteristics necessary in the softening of water by the base exchange method, and to be readily adaptable for commercial utilization.
The plaintiff uses zeolites of the artificial type, while defendants use the green sand. There is no contest in this case over the right of defendants to use their zeolites. The whole question centers about the apparatus in which these zeolites are employed; the Gans patent in suit relating solely to apparatus. The structural elements of the Gans apparatus may be summarized as comprising a cylindrical casing, having a mechanical filter bed of sand or quartz in the upper portion and a filter bed of zeolites in the lower portion thereof, with suitable pipes and valves to permit and control the passage of hard water through the casing and through the filter bed of zeolites therein for softening the water, and the subsequent passage of sodium chloride solution through the casing and zeolite filter bed for regenerating the zeolites. Auxiliary valves and pipes are provided for backwashing the filter beds to remove impurities in suspension, which have been arrested and collected by the filter beds.
The invention claimed by Gans resided in details of construction. No automatic operations or mechanical movements are involved in claims 1 and 5 of his patent, which are here in issue. As granted by the Patent Office, claim 1 reads as follows:
In tracing the history of this claim through the Patent Office, it is notable that the margin of patentability therein is restricted to disposition of the layer of zeolites upon a layer of sand or quartz. Gans failed to persuade the Patent Office that the claim, unless so limited, was patentable, for the file wrapper discloses that another claim, substantially the same as claim 1 of the patent, except for the limitation noted, was presented concurrently therewith, and was vigorously prosecuted on behalf of Gans, but without effect; the Patent Office holding that no new patentable combination was provided. The Bommarius patents, No. 519,565, No. 632,091, and No. 708,899, of earlier date, showed the same combination of structural elements. The Patent Office also took the view that the substitution of a filtering material of zeolites, as advocated by Gans, for the filtering material of sand provided by Bommarius, was a mere double use of the old Bommarius apparatus. Gans subsequently canceled and abandoned the broader claim.
It is to be observed that the means for backwashing the filter beds to which I have alluded are not included in claim 1, nor comprehended in the recital of elements which compose the claim. Gans' use of his apparatus involves passage of hard water through the casing from the top to the bottom, and passage of the regenerating solution also from top to bottom; withdrawals in both cases being made from the lowermost point of the casing. These are the only steps mentioned in the claim. I must assign, as the reason for failure to claim the means for effecting backwashing of the filter beds, the admission of want of novelty in this step, which is found at the beginning of page 2 of the specification, where it is stated that the backwashing is to be accomplished in the usual manner, by passing a current of water through the zeolite filter bed in the reverse direction, for the purpose of removing slime, mechanically collected matter, etc., which would mean a flow of backwash water from the bottom to the top of the casing. The same Bommarius patents cited by the Examiner during the prosecution of the Gans application fully disclose such backwashing for the purposes stated, and that there was nothing patentable to Gans in this step, or in the means for accomplishing it, is expressly conceded in the specification of the patent in suit. Moreover, all reference to backwashing was added to the specification by the patent solicitor long after the original application was sworn to, and there has been no supplemental oath by Gans upon which to support this claim of inventorship now being made for him by some one else.
Claim 5 of the Gans patent is as follows:
The file wrapper establishes that the feature of novelty upon which this claim rests is the last element of the combination; the means shown and described consisting of a funnel-shaped bottom to the casing which permits complete draining of the regenerating salt solution.
The defendants' device complained of comprises a series of stacks built up of individual cylindrical water softening units. Each unit comprises a casing in the bottom of which is disposed a filter bed of green sand or natural zeolites supported by a layer of gravel. There is no upper mechanical filter bed within the casing, such as shown and described in the Gans patent. The water to be treated is subjected to prefiltration through an outside sand filter connected and associated with the units through suitable piping. So far as the claims here involved are concerned, it makes no difference whether or not there is a sand filter at all for cleaning the water, or, if there is, whether it be within or without the casing, or even...
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Permutit Co v. Graver Corporation
...by the Sixty Circuit Court of Appeals, Permutit Co. v. Wadham, 13 F.(2d) 454, 458, 15 F.(2d) 20; reversing the decision in (D. C.) 294 F. 370, which had held the patent invalid. 2 It was contended by defendant that the 'free bed' had been fully described in prior printed publications more t......
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Permutit Co. v. Graver Corporation, 4390.
...have been reported. 292 F. 239; 274 F. 937. The same claims have been held invalid by two District Courts, the decision of Judge Tuttle (294 F. 370) being reversed in 13 F.(2d) 454. In the instant suit the District Court, in a well-reasoned opinion, expressed its unwillingness to follow the......
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