American Patents Development Corp. v. Carbice Corp.

• Decision Date: 21 April 1928
• Docket Number: No. 3119.,3119.
• Parties: AMERICAN PATENTS DEVELOPMENT CORPORATION v. CARBICE CORPORATION OF AMERICA.
• Court: U.S. District Court — Eastern District of New York

25 F.2d 730 (1928)

AMERICAN PATENTS DEVELOPMENT CORPORATION v. CARBICE CORPORATION OF AMERICA.

No. 3119.

District Court, E. D. New York.

April 21, 1928.

Charles Neave, George C. Dean, and Clarence D. Kerr, all of New York City, for plaintiff.

Darby & Darby and Samuel E. Darby, Jr., all of New York City, for defendant.

CAMPBELL, District Judge.

This is an action in equity in which plaintiff charges the defendant with the infringement of patent No. 1,595,426, issued to Thomas B. Slate, for refrigerating apparatus, dated August 10, 1926; an earlier patent, No. 1,511,306, issued to said Slate, for improvement in methods of an apparatus for refrigeration and preserving perishable products, dated October 14, 1924, having been withdrawn from suit on the opening of the trial.

Defendant offers the defenses of invalidity and noninfringement.

Plaintiff bases this suit on claims 2, 3, 4, 6, 7, and 9 of patent No. 1,595,426, which read as follows:

"2. A heavily insulated package inclosing in close proximity to a parcel or mass of material not damaged by overfreezing during shipment, a quantity of frozen carbon dioxide insulated from, but in freezing relation to, said parcel or mass, so that portions of the material are more directly and intensely refrigerated than other portions, for the purpose and with the result of sufficiently refrigerating more remote portions, whereby, on absorption of heat through said insulation, said carbon dioxide passes directly from the solid to the gaseous state, and said gas, as formed, escapes in freezing and insulating relation to said materials.

"3. A transportation package, consisting of a vented protective casing of insulating material inclosing a quantity of frozen carbon dioxide sufficient to afford refrigeration for the desired period and a quantity of freezable product in freezing proximity to said carbon dioxide and the gas evaporated therefrom, and arranged so that said frozen carbon dioxide is less accessible for exterior heat than said freezable products.

"4. A protective casing of insulating material having therein a quantity of frozen carbon dioxide sufficient to afford refrigeration for the desired period and a quantity of freezable product separated from, but in freezing proximity to, said frozen carbon dioxide and insulated by the gas evaporated therefrom."

"6. A transportation package, consisting of a protective casing of insulating material having packed therein a quantity of frozen carbon dioxide in an insulating container and a quantity of freezable product in freezing proximity to said frozen carbon dioxide and the gas evaporated therefrom, arranged so that said frozen carbon dioxide is less accessible for exterior heat than said freezable products.

"7. A transportation package, consisting of a vented protective casing of insulating material having packed therein a quantity of freezable product in freezing proximity to a quantity of frozen carbon dioxide sufficient to afford the desired amount of refrigeration."

"9. An insulated shipping case, similar parcels of perishable products packed solidly in said case, surrounding and supporting an insulated container of frozen carbon dioxide, having dimensions corresponding to and fitting among the said parcels."

To me this suit appears to be an attempt on the part of plaintiff to do by indirection what it could not do directly, viz. obtain a monopoly in the manufacture and sale of solid carbon dioxide as a refrigerant, which the patentee did not discover, nor has he a patent for it specifically. No process or method is claimed nor is one described in the patent in suit. What is enumerated in the claims in suit is a refrigerating apparatus, material to be refrigerated, and frozen carbon dioxide as a refrigerant.

Plaintiff does not make nor sell, nor has it licensed any one to make, the refrigerating apparatus claimed in the patent in suit. All that plaintiff or defendant does is to manufacture and sell solid or frozen carbon dioxide, the chemical symbol of which is CO2.

Plaintiff does not and cannot claim to be the discoverer of solid carbon dioxide. Since 1845, solid carbon dioxide has been known to be one of if not the coldest elements ordinarily met with and having a temperature of 148°. It was also known, long before the earliest date with which we are here concerned, that solid carbon dioxide could be pressed into solid blocks; that when exposed to the atmosphere it sublimed — that is, it went into a gaseous state without passing through the liquid state, very slowly; and that, notwithstanding its extremely low temperature, its evaporation caused the formation of an insulating layer of gas...