AS BOYLE CO. v. Harris-Thomas Co.

• Decision Date: 08 February 1937
• Docket Number: No. 4091.,4091.
• Citation: 18 F. Supp. 177
• Parties: A. S. BOYLE CO. v. HARRIS-THOMAS CO. et al.
• Court: U.S. District Court — District of Massachusetts

18 F. Supp. 177

A. S. BOYLE CO. v. HARRIS-THOMAS CO. et al.

No. 4091.

District Court, D. Massachusetts.

February 8, 1937.

George P. Dike, Cedric W. Porter, and Dike, Calver & Gray, all of Boston, Mass., for plaintiff.

Ellis Spear, Jr., of Boston, Mass., for defendant.

McLELLAN, District Judge.

This is a suit for infringement of the patent under which the plaintiff's preparation known as "plastic wood" is made and sold in the United States, patent No. 1,838,618, issued to Manfred Ethelwold Griffiths on December 29, 1931, upon an application filed on November 17, 1923. Proceedings in the Patent Office and in the Supreme Court of the District of Columbia occupied the years between the date of the application and the date of the issue.

Statements of fact and conclusions appearing herein may be taken as findings of fact and conclusions of law in accordance with the equity rules.

The defendants are Harris-Thomas Company and Low Supply Company. The plaintiff's brief makes no reference to the Low Supply Company, no evidence was introduced against it, and no claim was asserted at the trial against it, and as to this defendant the bill should be dismissed. Hereafter in this opinion when the defendant is referred to, it will be understood that the Harris-Thomas Company alone is meant.

The defenses are invalidity and non-infringement. The defendant offered no testimony on either issue, but in support of its allegations as to invalidity presented, as evidence of the prior art, a great number of patents and some excerpts from text-books and other publications.

The nature of the invention is thus stated in the specification:

"This invention relates to plastic compositions and has for its object to provide a plastic mass which may be used for many purposes, for example, for filling, coating or moulding, having properties not found in the usual filling and like compositions.

"The invention in brief consists in a plastic composition comprising a solution of nitro-cellulose, a resinous body and a non-drying oil in a ketonic liquor, to which solution a filler is added * * *

"The mixture is treated in a kneeding machine until it is of uniform consistency. It may then be employed for a number of purposes; for example, it may be used by pattern makers for filleting and similar work, by joiners and cabinet makers for filling screw and nail holes, shakes in timber, openings at joints and for preparing or repairing mouldings and carvings, or by shoemakers for building up or repairing lasts.

"A plastic composition prepared as described above hardens quickly when exposed to the air, adheres firmly to any clean dry foundation, does not blister or powder when exposed to moderate heat and is not affected by water, gasoline or other available liquids."

Ingredients suggested in the specification are celluloid scrap, castor oil, and ester gum, dissolved in industrial spirit, benzol, and acetone. To this solution wood flour is added. Various formulæ are given for the combination of these ingredients, and the limits within which the proportions may be varied are stated.

The claims in issue follow:

"5. A doughy, putty-like plastic composition comprising nitrocellulose in a solution containing a volatile liquid, and a finely divided cellulose filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood.

"6. A doughy putty-like plastic composition comprising nitrocellulose in a solution containing a volatile liquid and a finely divided cellulose filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood, said filler being present in not less than fifteen parts by weight."

"8. A doughy putty-like plastic composition, comprising nitrocellulose in a solution containing a volatile liquid, a non-drying oil and a finely divided wood filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood."

"11. A doughy putty-like plastic composition, comprising nitrocellulose in a solution volatile in part at least and containing a ketonic liquor, a non-drying oil, and a finely divided cellulose filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood, said filler being present in not less than fifteen parts by weight."

"13. A doughy putty-like plastic composition comprising nitrocellulose in a solution volatile in part at least and containing acetone, castor oil, a resinous body, and a finely divided cellulose filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood."

"15. A doughy, putty-like plastic composition comprising nitro-cellulose in a solution containing a volatile liquid, a non-drying oil, and a resinous body, and a finely divided wood filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood, said wood filler being present in not less than fifteen parts by weight.

"16. A doughy, putty-like plastic composition comprising nitro-cellulose in a solution containing a volatile liquid, a non-drying oil, and a resinous body, and a finely divided wood filler in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood.

"17. A composition of matter for hole filling and filleting, which before exposure to the air is dough-like and putty-like, and contains finely divided wood, nitrocellulose and a volatile liquid, and after exposure to the air has a wood-like rigidity and solidity and is essentially finely divided wood held together by the nitrocellulose.

"18. A composition of matter for hole filling and filleting, which before exposure to the air is dough-like and putty-like and contains a volatile liquid, nitrocellulose, and about 15 to about 30 percent by weight of finely divided wood, and which after exposure to the air has a wood-like solidity and rigidity and is essentially the finely divided wood held together by the nitrocellulose."

In the combination described in these claims the nitrocellulose is the ingredient upon which all else depends. Without it there would be no plasticity and no hardening into the solidity of wood. Nitrocellulose, with which every one is familiar when it appears in the form of celluloid, is the result of treating cotton or other vegetable fiber in nitric acid or in a mixture of nitric acid and sulphuric acid. It may be reduced to a plastic mass by the use of a suitable solvent, and in this state it may be molded into any desired form and hardens permanently into that form upon evaporation of the solvent. If applied in its plastic form, it will adhere firmly to almost any clean surface. These are the properties of nitrocellulose that the patentee employs. By mixing wood flour with plastic nitrocellulose he obtains a putty-like material which remains plastic until exposed to the air. Packed in air-tight cans or tubes it is available for use by the consumer very much as ordinary putty is used. It adheres to any wooden surface and solidifies quickly to the hardness of wood. Like wood, it may be sawed, whittled, planed, bored, painted, varnished, or treated in any way that wood might be treated.

"Plastic wood" has many uses. It was first produced in England to meet a demand from shoe manufacturers for a material with which shoemakers could restore the surface of shoe lasts when they became pitted with nail holes after repeated use. It is now in common use, not only by shoemakers, but by carpenters, painters, and boat repairers, and it is also much used for small repairs in the home.

The invention has been a...