Floridin Co. v. Attapulgus Clay Co., 7634.
| Decision Date | 30 January 1942 |
| Docket Number | No. 7634.,7634. |
| Citation | 125 F.2d 669 |
| Parties | FLORIDIN CO. v. ATTAPULGUS CLAY CO. |
| Court | U.S. Court of Appeals — Third Circuit |
John J. Darby, of Washington, D. C., and George P. Dike, of Boston, Mass., (Hugh M. Morris and S. Samuel Arsht, both of Wilmington, Del., on the brief), for plaintiff-appellant.
Maxwell Barus, of New York City and Herbert L. Cohen, of Wilmington, Del. (Paul R. Ames, of New York City, on the brief), for defendant-appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
This case involves the validity of the patent known as the Hartshorne patent (No. 2,079,854) for the treatment of fuller's earth designed to increase the capacity of that substance for decolorizing oil. The District Court held the plaintiff's patent invalid for anticipation by and lack of invention over Ikeda patent No. 1,630,660 (owned by defendant) and the corresponding Ikeda Japanese patent No. 42,368. The plaintiff appeals to this court.
The complex colloidal aluminum silicate known as fuller's earth has changed in commercial use from the function of removing oil from wool to that of removing color from oil. Under the process in use before any of the patents involved in this litigation were issued, fuller's earth was dug from the ground in large lumps which were reduced in size by a crusher and dried in a kiln. The dried earth was then ground to granular form and the product run through sifting screens to secure the desired sizes. Crude oil percolated through these grains was thereby lightened to the desired shade. The instant suit is a by-product of the attempts of the producers of fuller's earth to increase its decolorizing capacity. The attempts have been successful. But the plaintiff claims that the defendant is operating in violation of its patent.
The change which the plaintiff has made in the process through the Hartshorne patent comes at an intermediate stage in the series. Instead of drying the small lumps of clay after they have gone through the crusher, as in the older method, under the Hartshorne process the lumps are ground and then mixed with water, following which the mass is run through an extrusion machine and forced out through holes in a die plate under high pressure. After the squeezing out of the pencil-like pieces from this machine they are dried in a kiln and then ground and sifted as in the former process. The extrusion machine was compared, by the trial court, to an ordinary kitchen meat-grinder. While the plaintiff is reluctant to admit the accuracy of the homely comparison we think it is correct. The action is precisely like that of the meat-grinder with, of course, a machine which is obviously much larger and under pressure which is very greatly increased.
The defendant denies that this presents anything patentable. All the steps in the process except the mixing with the water and extruding through the machine were known before. If there is anything patentable, says the defendant, Ikeda discovered it prior to Hartshorne.
Plaintiff contends, on the other hand, that Hartshorne's extrusion process differs from that taught by Ikeda because of the pressure conditions surrounding the extrusion. We think this point is completely answered by the specifications of the Ikeda patent. These described the plasticity of the clay and the size of the holes through which the mixture is to be extruded, and thereby necessarily embrace the application of considerable pressure. The evidence establishes that the pressure thus created is within the minimum prescribed by Hartshorne. It is true that only the latter talks in terms of pounds per square inch. But Ikeda's pressure, although not so specified, necessarily results from following the teaching of his patent. We see no essential difference between the two. Expert testimony offered by the plaintiff brings out the point that additional factors such as the length of the screw in the extrusion machine and the space between the back of the die plate and the end of the screw also affect pressure. This, however, is at most a matter of experimentation with different known types of extrusion machines. It involves no more than a variation in degree normally determined by the skill of one versed in the art and is not a matter of invention. 1 Walker on Patents (Deller's Ed. 1937) § 27.
The plaintiff contends, upon the question of anticipation, that Ikeda's patent had been in force for some time, and that no one concerned in the problem of oil decolorization had found any help from it on the problem involved. The lower court found as a fact that defendant learned about the Ikeda patent only after defendant had itself decided that "* * * it would like to use such a machine extruding machine in the treatment of its fuller's earth if the patent situation permitted". This finding is supported by substantial evidence and is thus controlling here on appeal. Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c. But even aside from this, there is additional testimony to the effect that defendant purchased Ikeda only just before Hartshorne's patent was allowed, so that there would still not be a sufficient showing of a failure on the part of Ikeda, once its application to this art had been attempted, to disclose that in which a worker in the art would be interested. The teachings of a patent, although never fully appreciated or utilized, are nevertheless to be accorded their full measure. The essence of the Ikeda patent is the extrusion of fuller's earth under described conditions. Hartshorne does just that.
The plaintiff points out, what is doubtless true, that Ikeda was never interested in the oil decolorizing capacity of fuller's earth but rather its use in drying air, and that his patent has nothing whatever to do with the problem with which those working in fuller's earth had been long confronted and which was not solved except by Hartshorne. It is without significance, however, that Ikeda made no mention of the particular use to which his process could be put, or that he did not appreciate or understand the problem to its fullest extent. A patent will protect its holder in his monopoly over whatever use it is capable. Enterprise Mfg. Co. v. Shakespeare Co., 6 Cir., 1939, 106 F.2d 800,...
To continue reading
Request your trial
-
International Carbonic Eng. Co. v. Natural Carb. Prod.
...See: United States Hoffman Machinery Corp. v. Pantex Pressing Mach., Inc., 3 Cir., 1930, 44 F.2d 685, 688; Floridin Co. v. Attapulgas Clay Co., 3 Cir., 1941, 125 F.2d 669, 671; Carbide & Carbon Chemicals Corporation v. Texas Co., 5 Cir., 1929, 31 F.2d 32, 33, 34; John Bean Mfg. Co. et al. v......
-
Baldwin-Lima-Hamilton Corp. v. Tatnall Meas. Sys. Co.
...effect prior to the Precision Instrument case. Floridin Co. v. Attapulgus Clay Co., D.C.Del.1940, 35 F.Supp. 810, 814; affirmed 3 Cir., 1942, 125 F.2d 669. 20 Another similar statement referring to "strain sensitivity factor" also is included in the 21 In April 1938 Dr. Ruge, while a staff ......
-
De Cew v. Union Bag & Paper Corporation
...accorded its full import. Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 48 S.Ct. 380, 72 L.Ed. 610; Floridin Co. v. Attapulgus Clay Co., 3 Cir., 125 F.2d 669; Ranco, Inc., v. Gwynn, 6 Cir., 128 F.2d 437. The further contention that the Weygang patent "was permitted to lapse fo......
-
General Electric Co. v. Jewel Incandescent Lamp Co.
...Lovell Mfg. Co. v. Cary, 147 U.S. 623, 13 S.Ct. 472, 37 L.Ed. 307; Brown et al. v. Piper, 91 U.S. 37, 23 L.Ed. 200; Floridin Co. v. Attapulgus Clay Co., 3 Cir., 125 F.2d 669; Goodman et al. v. Paul E. Hawkinson Co., 9 Cir., 120 F.2d 167; Dorr Co., Inc. et al. v. Yabucoa Sugar Co., 1 Cir., 1......