Foamite-Childs Corporation v. Pyrene Mfg. Co.

• Decision Date: 08 October 1929
• Docket Number: No. 3882.,3882.
• Citation: 35 F.2d 287
• Parties: FOAMITE-CHILDS CORPORATION v. PYRENE MFG. CO.
• Court: U.S. Court of Appeals — Third Circuit

35 F.2d 287 (1929)

FOAMITE-CHILDS CORPORATION v.PYRENE MFG. CO.

No. 3882.

Circuit Court of Appeals, Third Circuit.

October 8, 1929.

Oscar W. Jeffery and Harry G. Kimball, both of New York City, for appellant.

Fish, Richardson & Neave and Maxwell Barus, all of New York City(William G. Mahaffy, of Wilmington, Del., of counsel), for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

The plaintiff-appellant brought suit against the defendant on May 9, 1924, and charged it with infringing claims 1, 3, and 6 of the United States letters patent No. 858,188 issued to Mr. A. G. Laurent of St. Petersburg, Russia, on June 25, 1907, for a hand fire-extinguishing apparatus, now owned by the plaintiff.As the bill was filed only a few weeks before the patent expired, the plaintiff did not ask for an injunction.

It is more difficult to extinguish a fire of burning oil, varnish, gasoline, naphtha, or other volatile substances than it is to put out an ordinary fire of burning wood.Water, thrown on an oil fire, being heavier than oil, sinks to the bottom of the oil instead of blanketing the top and keeping air from the fire.If oil is burning in a tank or container and a large quantity of water is thrown on it, the oil will rise to the top, overflow the tank, and the fire will spread.If oil is confined in a tank, it will generate gas, explode, burst the tank, and thus cause the fire to spread.Steam and certain gases may be used for putting out fires, but their efficiency is limited to use when the fire is in a chamber or confined space.When explosions blow out windows or make openings, their effectiveness ceases.Sand or sawdust mixed with soda deadens the flame, but the difficulty of applying these in sufficiently large quantities and the intensity of the radiant heat from oil fires restrict their use.The parties to this suit claim to be able to put out oil fires with the apparatus which they respectively use and describe in the following language.The defendant says of its apparatus:

"The soda and acid extinguisher ejects 2½ gallons of water; Phomene ejects 20 gallons of fire-fighting foam, and this foam is effective on burning liquids as well as dry materials.

"Phomene extinguishes burning oil, enamel, tar, wax, grease, shellac, lacquers, inflammable solvents or chemicals.Wherever such materials are used or stored, Phomene is an absolute essential, and in nearly every industry these inflammable materials are used; therefore we recommend Phomene for general protection, to replace the old style soda and acid extinguisher.

"Phomene is labeled by the Underwriters' Laboratories, and endorsed by insurance authorities generally as a substitute for the soda and acid extinguisher.Furthermore, Phomene is endorsed for many hazards where the soda and acid extinguisher would not be acceptable."

The plaintiff says of its apparatus:

"It is capable of delivering between eight and ten times the capacity of the extinquisher, that is, if our extinguisher had a capacity of three gallons, we would carry three gallons of liquid to the fire, but on inversion or operation, the device would deliver perhaps 25 to 30 gallons of a fire extinguishing medium.* * * That makes a form of foam, and in addition forms sufficient pressure to throw that foam through the nozzle of a distance of say 25 to 30 feet, which enables the operator to stand at a good distance from the fire and not be affected by the heat of it and still puts him in a position to extinguish the fire."

Claim 1 of the patent follows:

"A fire-extinguishing apparatus, comprising a receptacle containing separated gas-producing fire-extinguishing substances and a foam-producing substance which causes the substances to produce a gas-filled foam simultaneously with the evolution of gases."

Claim 3 differs from claim 1 in that it states that the foam-producing substance is mixed with one of the fire-extinguishing substances.Claim 6 is identical with claim 3, except that it specifies an extract of licorice root as the foam-producing substance.Each claim is for an apparatus.The formation of the foam, the patent says, is produced by adding to one of the liquids any appropriate viscous foam-forming substance.There are many of such substances, but "the most advantageous is extract of licorice root."

The patent does not purport to be the first to disclose practical methods and devices for producing and utilizing gas foam as a fire extinguishing agent.A method of extinguishing fires by projecting against burning surfaces lather-like bubbles was described and broadly claimed by Elmer Gates in his patent, No. 749,374, issued January 12, 1904.One of the plaintiff's witnesses in describing the "gas-filled foam" of the patent said: "You will get a good idea of it if you compare it to shaving lather."What Laurent claims is an apparatus and not a method nor a foam-forming substance.These were old.

The apparatus of Gates and the prior art had no mixing chamber; neither does the defendant's.The District Court found that the plaintiff's does have a mixing chamber, and its presence in the plaintiff's apparatus distinguishes it from the receptacles of the prior art and from the defendant's apparatus.There seems to be no question about the fact that the device of the defendant does not have a mixing chamber.Infringement depends upon whether or not the claims in issue of the plaintiff's patent have a mixing chamber in the apparatus which they describe and claim.

Claims 2, 5, and 7 state that the fire-extinguishing apparatus has a "mixing chamber."Claims 3, 4, and 6 do not expressly contain a "mixing chamber," but state that the foam-producing substance is "mixed" with one of the fire-extinguishing substances.Claim 1 does not state that it contains a "mixing chamber," nor does it say that the foam-producing substance is "mixed" with one of the fire-extinguishing substances, but says that the receptacle, which all the claims have, contains "gas-producing fire-extinguishing substances and a foam-producing substance which causes the substances to produce a gas filled foam simultaneously with the evolution of gases."In the claims which do not specifically mention the "mixing chamber," but state that the foam-producing substance is "mixed" with one of the fire-extinguishing substances to cause a gas-filled foam to be produced simultaneously with the evolution of gases, the question arises as to whether or not the mixing is done in the receptacle when these substances come together in a "mixing chamber" or elsewhere and otherwise.

The patent says that:

"This invention has for its object to provide a hand fire extinguishing apparatus of the kind in which two or more liquids, arranged separately in a common container, are caused to mingle in the case of fire so that they generate gases which expel the liquids in a powerful jet.

"In appliances of this kind hitherto employed, when the appliance was utilized, the two or more liquids have been completely mixed one with the other, so that the pressure within the container became relatively high and it was consequently necessary to make the container strong.Further, it was also impossible to stop the jet before the apparatus was emptied, even when the issue became no longer necessary, so that the appliance had to be recharged after use on every occasion before it was possible to use it again.

"The defects are obviated by means of the present invention, owing to the fact that it sprays foam instead of liquid.The weight of this foam being from 8 to 10 times lighter than water, a jet of foam from 6 to 8 meters high can be produced with a pressure of but one atmosphere, and the container may therefore be formed from ordinary tin or galvanized iron by soldering.In addition to this, the mixture of the two or more liquids forming the foam takes place in such a manner that only the quantities required for the formation of a certain quantity of foam are mixed together, and further mixing takes place gradually as this foam is sprayed out.As a result of this, the operation of the appliance may be caused to cease at any moment, and it may be re-started at any time as long as the apparatus contains any of the liquids.The formation of the foam is produced by adding to one of the liquids (or to both of them) any appropriate viscous foam-forming substances.There are many such substances, but the most advantageous is extract of licorice root (succus liquiritæ)."

The apparatus of this invention sprays foam rather than liquid, and this would indicate that the "mixing" was done in the apparatus.The foam is produced in the receptacle containing the different substances in separate compartments, and "the mixture of the two or more liquids forming the foam takes place in such a manner that only the quantities required for the formation of a certain quantity are mixed together, and further mixing takes place gradually as this foam is sprayed out."So the foam is produced from mixing the two substances in the receptacle, not in the compartment containing either substance, but in a separate compartment or "mixing chamber," and is then "sprayed out."We are compelled to interpret the limitation of the claims in issue, 1, 3, and 6, and the prior art, the disclosures in the specification, and the claims themselves, drive us to the conclusion that all three claims in issue contain a receptacle of some kind called a "mixing chamber" in which the substances are mixed and "cause a gas-filled foam to be produced simultaneously with the evolution of gases."The claims in accordance with the general practice state the same thing in different language.Moreover, figures 1 and 2 distinctly show mixing chambers.Figure 4 is not so clear, but it seems to show a section which is used as a mixing chamber.Figures 3 and 5 are simply horizontal sections of 2 and 4.The learned District Judge said of Figures 4 and 5: "Though the...