Commercial Acetylene Co. v. Schroeder

• Decision Date: 07 January 1913
• Docket Number: 1,950.
• Citation: 203 F. 276
• Parties: COMMERCIAL ACETYLENE CO. et al. v. SCHROEDER et al.
• Court: U.S. Court of Appeals — Seventh Circuit

203 F. 276

COMMERCIAL ACETYLENE CO. et al. v. SCHROEDER et al.

No. 1,950.

United States Court of Appeals, Seventh Circuit.

January 7, 1913

John P Bartlett, Clarence Winter, and Keyes Winter, all of New York City, and Charles H. Hamill, of Chicago, Ill., for appellants.

Robert H. Parkinson, of Chicago, Ill. (John S. Miller, Merritt Starr, and Wallace R. Lane, all of Chicago, Ill., of counsel), for appellees.

Before BAKER and SEAMAN, Circuit Judges, and HUMPHREY, District Judge.

HUMPHREY District Judge.

A considerable volume of prior litigation on the patent in suit is to be found in the books, but this is the first case in which the defenses here presented appear to have had the consideration of the court.

The Court of Appeals of the Sixth Circuit, in 192 F. 321, held that it would not review the discretion of the court below in following the Milwaukee court on an application for a preliminary restraining order, but that the question of validity would be open on final hearing; and the Court of Appeals of the Eighth Circuit in Commercial Acetylene Company et al. v. Fireball, etc., Co., 198 F. 650, held that it was discretionary with the Circuit Court to grant the temporary order, that this discretion was for the Circuit Court, and not for the Court of Appeals, but that the question of validity was open for final hearing.

The patent in suit is described in claims 1, 2, and 5 as follows:

'1. A closed vessel containing a supersaturated solution of acetylene produced by forcing acetylene into a solvent under pressure; said vessel having an outlet for the acetylene gas, which escapes from the solvent when the pressure is released or reduced, and means for controlling said outlet whereby the gas may escape therethrough at substantially uniform pressure, substantially as described.

'2. A prepared vessel consisting of a tight shell or vessel, a solvent of acetylene contained within said vessel, and acetylene dissolved in and held by said solvent under pressure and constituting therewith a supersaturated solution; the package being provided at a point above the solvent with a reducing valve, substantially as and for the purpose set forth.'

'5. As a new article of manufacture, a gas package comprising a holder or tight vessel, a contained charge of acetone, a volume or body of gas dissolved by and compressed and contained within the solvent, and a reducing valve applied to an opening and extending to the interior of the holder above the level of the solvent, substantially as set forth.'

The defense is, first, noninfringement; and, second, that the patent expired prior to the suit by reason of the expiration of the British patent substantially identical with the patent in suit.

The claims of the British patent are as...