Byerley v. Sun Co.

• Citation: 181 F. 138
• Decision Date: 15 July 1910
• Docket Number: 201.
• Parties: BYERLEY v. SUN CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

181 F. 138

BYERLEY v. SUN CO.

No. 201.

United States Circuit Court, E.D. Pennsylvania.

July 15, 1910

W. K Richardson and Harrison F. Lyman, for complainant.

Wm. L Pierce and Augustus B. Stoughton, for respondents.

ORR District Judge (specially presiding).

The complainant, who is the inventor and owner, charges the defendant with infringement of letters patent of the United States No. 524,130, dated August 7, 1894, and issued to the complainant, Francis X. Byerley, for a process of making asphaltic products and also for the products themselves. The bill is in the usual form, and prays the customary relief. The defenses in the answer are many, and such as have been urged in the proofs or arguments will hereafter be considered in detail.

As stated by the patentee, the invention relates more particularly to the manufacture of solid bodies from petroleum. He says:

'In the manufacture of petroleum products, it has been customary to distill the crude oil in externally heated stills, so as to drive off the naphtha and the burning oil with more or less of the heavier oils, leaving a residuum or tar which can be further distilled, if desired, down to a solid body. As the distillation of petroleum residuum or tar has heretofore been commonly conducted, it has resulted, when pushed to the production in the still of a body which is solid in the still or which solidifies on codling, in the formation of a coke or a coke-containing pitch.'

Again he says:

'In accordance with the present invention petroleum residuum or tar is distilled down to a solid body by a prolonged exposure to a pitch-forming noncoking temperature, say about six hundred degrees Fahrenheit (600 degress) F., more or less, with agitation and exposure to air or analogous gas or gaseous mixture. By this means, are produced black (or very dark brown) bodies readily soluble in petroleum naphtha, say benzine of 62 degresss Baume, which the cokes or pitches heretofore made from petroleum, so far as I am aware, are not unless in comparatively small proportions. These bodies are believed to be new and are included in the invention as new articles of manufacture, as well as their process of production. They vary, according to the extent to which the process is pushed, in hardness at atmospheric temperatures (say at 60 degress Fahrenheit) from a rubber-like consistency to a mass of hardness and conchoidal fracture like the natural asphaltums (as for example Trinidad asphaltum and the so-called gilsonite from Utah). At a lower temperature the less hard bodies become harder and have a conchoidal fracture. The bodies melt at from about 200 degress Fahrenheit to about 400 degress Fahrenheit. The higher melting bodies, say those melting at from 350 degress Fahrenheit to 400 degress Fahrenheit, or in other words those which have been sufficiently freed from oil to have a drying quality, are well adapted to varnish-making, being employed in place of the natural asphaltum. These bodies may be used also for paving and roofing and analogous purposes to which natural asphaltums are applied, but in order to melt at the temperatures which workers in those industries have found convenient to use, it is necessary, as with Trinidad asphaltum, to employ oil or the like to render them sufficiently limpid at such temperatures; and it is better therefore for such uses to employ bodies of less hardness, which have sufficient oily matter present to melt at a convenient temperature.'

The patentee then calls attention to the different compositions of crude petroleum from different localities, and says that, while he has successfully treated petroleum residuum proceeding from the ordinary distillation of Lima oil, yet it is intended by him 'to include tar or residuum from other petroleum. ' Likewise, after describing his apparatus and an illustrative run with Lima tar, he says:

'It is also not to be understood that the temperature most advantageous for Lima tar is necessarily the most advantageous for other petroleum tar or tar other than petroleum tar; but from the illustration and working figures given those skilled in the art will be enabled to effect a useful result on other tars.'

One further reference to the specifications is proper at this point. The patentee says:

'It is important in all cases to avoid a coking temperature, as the coke produced is not only itself an injurious ingredient in the asphaltum, but its formation indicates an alteration in the tar, or in bodies thereof, which it is desirable to avoid.'

The claims of the patent alleged to be infringed are as follows;

'1. The process of making asphaltic products, by prolonged exposure of petroleum tar to a pitch-forming noncoking temperature in a still, with agitation of said tar, and exposure of the same to air, substantially as described.

'2. The herein described new asphaltic petroleum products, soluble in benzine, varying in hardness at atmospheric temperatures from a rubber-like consistency to a mass of a hardness and conchoidal fracture like the natural asphaltums, the less hard having also a conchoidal fracture at lower temperatures, melting at from about 200 degress Fahrenheit to about 400 degress Fahrenheit according to hardness, and in general having characteristics belonging to asphaltic residual products from a prolonged exposure of petroleum tar to a pitch-forming noncoking temperature in a still with agitation of said tar, and exposure of the same to air in contradistinction to previously known natural or artificial products of a more or less asphaltic character, substantially as set forth.

'3. The process of making asphaltic products, by prolonged exposure of petroleum tar to a pitch-forming noncoking temperature in a still, with exhaustion of the products of distillation, agitation of the tar, and exposure of said tar to air, substantially as described.

'6. The process of making asphaltic or pitchy bodies, by prolonged exposure of petroleum tar to a pitch-forming temperature in a still, with agitation of said tar, and exposure of the same to air, substantially as described.

'7. The process of making asphaltic or pitchy bodies, by prolonged exposure of petroleum tar to a pitch-forming temperature in a still, with exhaustion of the products of distillation, agitation of said tar, and exposure of the same to air, substantially as described.

'8. The process of making asphaltic or pitchy bodies, by subjecting pitch-yielding tar to a pitch-forming noncoking temperature, with agitation of the tar, and exposure of the same to air, substantially as described.

'9. The process of making asphaltic or pitchy bodies, by subjecting pitch-yielding tar to a pitch-forming noncoking temperature, with exhaustion of the products of distillation, agitation of the tar, and exposure of the same to air, substantially as described.

'10. The process of distilling petroleum or pitch-forming oil (including tar), by heating the same in a still, with exhaustion of the products of distillation, agitation of the oil, and exposure to air, the temperature of said oil be gradually increased during the distillation to a pitch-forming noncoking temperature and continued at such temperature until a solid or product solidifying on cooling is obtained, substantially as described.'

All of said claims, except claim 2, relate to the...