Fritz W. Glitsch & Sons v. Wyatt Metal & Boiler Works

• Decision Date: 15 July 1955
• Docket Number: No. 15291.,15291.
• Citation: Fritz W. Glitsch & Sons v. Wyatt Metal & Boiler Works, 224 F.2d 331 (5th Cir. 1955)
• Parties: FRITZ W. GLITSCH & SONS, Inc., Appellant, v. WYATT METAL & BOILER WORKS, Appellee. WYATT METAL & BOILER WORKS, Appellant, v. FRITZ W. GLITSCH & SONS, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 331 (1955)

FRITZ W. GLITSCH & SONS, Inc., Appellant, v. WYATT METAL & BOILER WORKS, Appellee.

WYATT METAL & BOILER WORKS, Appellant, v. FRITZ W. GLITSCH & SONS, Inc., Appellee.

No. 15291.

United States Court of Appeals Fifth Circuit.

July 15, 1955.

John A. Dienner, Edward C. Grelle, Chicago, Ill., Joseph H. Schley, Alto B. Cervin, Dallas, Tex., for appellant.

Garrett R. Tucker, Jr., Delmar L. Sroufe, Frank B. Pugsley, Houston, Tex., Ralph W. Malone, Dallas, Tex. (Baker, Botts, Andrews & Shepherd, Houston, Tex., Malone, Lipscomb & Seay, Dallas, Tex., of counsel), for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

This is a patent appeal and cross-appeal from a judgment of the district court holding appellant's Reissue Patent No. 22,946 for a "Bubble Tower" valid, but not infringed by certain devices manufactured and sold by Wyatt Metal & Boiler Works. Glitsch & Sons, Inc., hereinafter called Glitsch, appeals mainly from the holding of non-infringement, the denial of damages and injunctive relief; while Wyatt Metal & Boiler Works, hereinafter called Wyatt, cross-appeals from the holding of validity and the taxation of costs against it.

The patent in suit is a reissue of U. S. Patent No. 2,210,808 originally issued on August 6, 1940, to Hans C. Glitsch, President of the Glitsch corporation. It relates to "bubble trays" for use in "bubble towers", such devices being used mainly in the refining of petroleum and the separation of crude oil into gasoline, kerosene, etc. by means of fractional distillation. The patent testimony and exhibits reveal these "bubble towers" as containing a number of "bubble trays" mounted at different elevations within a cylindrical tank, the various trays being provided with numerous short tubes extending through openings in the floor of the tray, the tubes being covered by "bubble caps", so that the vapor coming up through the short tubes is compelled to pass down under the rims of the cups, which rims are submerged in the liquid held on the tray, and the part of the vapor not then liquefying bubbles up to the next higher tray. Fractional condensation of the constituent vapors is thereby effected at various temperatures maintained at the different tray levels, from each of which the accumulated liquids are drawn off in a continuous process.

Specifically, Claims 3, 11, 12, 13, 14, 16, 17 and 18 of the Glitsch reissue patent in suit are alleged to be infringed by four different types of trays manufactured and sold by Wyatt. Four typical claims setting forth the alleged novelty of the Glitsch invention are quoted in the margin.¹ Glitsch, having prevailed below on the issue of validity, here attempts to establish infringement by applying the detailed structure of each type of accused device, illustrated in material part by colored drawings in brief, to one of these typical claims of the Glitsch patent, color for color and element for element, or its equivalent. On its cross-appeal attacking the holding of validity, Wyatt insists that, by standards appropriate for an improvement or combination patent,² these claims reveal mere mechanical skill rather than patentable invention, and are therefore clearly invalid; that they are further invalid for anticipation by a number of prior art patents, principally the Foster-Wheeler stainless steel bubble tray built in 1934 for use by a Chicago plant of The Armour Company in the fractional distillation of fatty meat acids, and the Lowe patent No. 558,319, issued in 1896 for the purification of lime from feed water,³ neither of which were cited or considered as prior art references by the Patent Office before issuance of the Glitsch reissue patent in suit, and which Wyatt insists so pre-empt the inventive concept, if any, embodied in the Glitsch patent as to upset the normal presumption of its validity from issuance which might otherwise attach.⁴

The patentee Glitsch makes no broad claim to have invented bubble towers, bubble trays, or bubble caps, as such, or to have discovered the particular process of fractional distillation used, these structures and the process admittedly being well known in the petroleum refining art long before the advent of his patent.⁵ As stated in his patent, one primary object of the particular improvement combination claimed as his invention was the construction of a more durable and efficient bubble tray made of a lightweight metal, such as stainless steel, which would be more resistant to corrosion than the conventional steel and cast iron trays then in use, and yet would still be cheap enough to be commercially feasible. In addition to their tendency to corrode from the "sour" crude oil and carbon deposits left by the refining process, Glitsch insists that the conventional type steel and cast iron trays had other disadvantages for commercial use, resulting from their heavy weight and inherent stiffness, which made them difficult to install within a "bubble tower", their slowness to heat up to necessary refining temperatures and likewise to cool down after a "run", their unyielding resistance to a possible "bubble tower" explosion which enhanced the chance of operational equipment loss, etc.

Though appellant concedes that "the invention looks simple, now that it has been successfully produced," it insists that "that appearance of simplicity is deceptive," for in order to accomplish his purpose Glitsch allegedly had to solve a vast array of complex problems peculiar to the refining art which he claims that none of his predecessor contributors to the art had successfully resolved. Among these problems allegedly first encountered and solved by Glitsch were those inherent in designing a bubble tray which would, in spite of its lightweight construction, retain enough rigidity and strength to remain level while supporting a liquid load, still resist corrosion, be constructed in removable sections so as to facilitate assembly within the limited space available inside a bubble tower, and come apart easily so as to prevent destruction in the event of an explosion. The patentee Glitsch supposedly solved all of these problems by his conception of supporting a thin, lightweight metal "bubble tray", preferably made of stainless steel because of its corrosion-resistant qualities, upon a number of spaced parallel beams or trusses extending from side to side across the inside space of a "bubble tower", with the beams fastened at each end to the side of the tower in such manner as to support the weight of the tray, and without the necessity of forming flanges or attaching the heavy stiffening bars used to support the conventional type cast-iron and steel bubble tray plates. He then conceived the idea of cutting the light tray metal into strips wide enough to span the space between the parallel beams within the tower, and placed the edges of adjacent tray strips side by side on each beam with a gap between the edges so as to allow for normal heat expansion and contraction, afterwards securing each metal tray strip so as to create a uniformly level tray floor by means of a row of bolts with large diameter washers spaced lengthwise each beam in such fashion as to bridge and secure the expansion gap between the adjacent strip edges.

Essentially on the basis of the above ideas, supposedly originating exclusively with its patentee, Glitsch vigorously defends the validity of its concept in bubble tray design as a patentable improvement combination entitled to protective monopoly, the inventive concept supposedly exhibited by its patented structure allegedly being beyond the capacity of ordinary...