Hyde v. Minerals Separation

• Decision Date: 04 May 1914
• Docket Number: 2346.
• Citation: Hyde v. Minerals Separation, 214 F. 100 (9th Cir. 1914)
• Parties: HYDE v. MINERALS SEPARATION, Limited, et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

214 F. 100

HYDE v. MINERALS SEPARATION, Limited, et al. ^[1]

No. 2346.

United States Court of Appeals, Ninth Circuit.

May 4, 1914

Thomas F. Sheridan and Walter A. Scott, both of Chicago, Ill., J Bruce Kremer, of Butte, Mont., George L. Wilkinson, of Chicago, Ill., and K. R. Babbitt, of New York City, for appellant.

Henry D. Williams, of New York City, John H. Miller, of San Francisco, Cal., and Odel W. McConnell, of Helena, Mont., for appellees.

Before GILBERT and ROSS, Circuit Judges, and DIETRICH, District Judge.

GILBERT Circuit Judge.

This is an appeal from the decree of the court below sustaining letters patent No. 835,120, issued to Sulman, Picard, and Ballot, on November 6, 1906, and assigned to Minerals Separation, Limited, and Minerals Separation American Syndicate, Limited, adjudging the appellant therein to have infringed the same, and enjoining further infringement. The patent is for new and useful improvements in ore concentration. Its object is to separate metalliferous matter from gangue, by means of oils and fatty acids which have a preferential affinity for metalliferous matter. In the specifications reference is made to United States Letters Patent No. 777,273, granted to A. E. Cattermole. The Cattermole patent specifies that an amount of oil, varying from 4 per cent. to 6 per cent. of the weight of metalliferous matter present, is agitated with an ore pulp so as to form granules which can be separated from the gangue. The specifications of the patent in suit state that the inventors have found that:

'If the proportion of oily substance be considerably reduced (say, to a fraction of 1 per cent. on the ore), granulation ceases to take place, and after vigorous agitation there is a tendency for a part of the oil-coated metalliferous matter to rise to the surface of the pulp in the form of a froth or scum.'

And the specifications add:

'The proportion of mineral which floats in the form of froth varies considerably with different ores, and with different oily substances, and, before utilizing the facts above mentioned in the concentration of any particular ore, a simple preliminary test is necessary to determine which oily substance yields the proportion of froth or scum desired.'

There are 13 claims in the patent. The first is:

'The herein described process of concentrating ores, which consists in mixing the powdered ore with water, adding a small proportion of an oily liquid having a preferential affinity for metalliferous matter (amounting to a fraction of 1 per cent. on the ore), agitating the mixture until the oil-coated mineral matter forms into a froth, and separating the froth from the remainder by flotation.'

The next three claims specify the quantity of oil as amounting to 'a fraction of 1 per cent. on the ore. ' The second claim adds to the first the use of slightly acidified water. The third adds to the second 'warming the mixture.' The fourth adds to the third 'and removing the oily coating from the mineral. ' The fifth specifies the oil as 'oleic acid of a quantity of from 0.02-0.5 per cent. on the ore. ' The sixth adds to the fifth the use of water containing 1 per cent. of sulphuric acid. The seventh adds 'warming the mixture to 30 degrees-40 degrees centigrade. ' The eighth specifies the use of oleic-soap solution, to produce oleic acid, 'amounting to 0.02-0.5 per cent. ' The ninth is:

'The process of concentrating powdered ores which consists in separating the mineral from the gangue by coating the mineral with oil in water containing a small quantity of oil, agitating the mixture to form a froth, and separating the froth.'

The tenth adds to the ninth 'warming the mixture'; and the eleventh adds the use of acid. The twelfth adds 'separating the froth from the remainder of the mixture'; and the thirteenth adds a current of water to carry off the coarser minerals, and 'filtering off the froth and removing the oleic acid therefrom by treatment with an alkali.'

The answer of the appellant denied that Sulman, Picard, and Ballot were the first inventors of the process, or that there was any invention described in the patent, and denied infringement, and alleged that the process described in the patent was old and not patentable; that the process had been included in certain patents which were enumerated in the answer. The appellant was adjudged to have infringed claims numbered 1, 2, 3, 5, 6, 7, 9, 10, 11, and 12.

The appellees' process depends primarily upon the affinity of oil for the metalliferous portion of powdered ore when mixed with water. It is conceded that that affinity and the fact that oil will carry the metalliferous portions to the surface of the mixture while the rock or gangue will sink, have been known for many years. That which is presented as new in the patent, and as the pivotal discovery on which its validity depends, is the formation of a froth or scum containing the metalliferous matter produced by agitation of the pulverized ore in water, by the action of oil in a quantity less than 1 per cent. of the quantity of ore treated.

Turning to the patents which are adverted to as showing the prior art, we find the following: The British patent to Haynes, No. 488, issued in 1860, recommends the use of from 11 to 25 per cent. of oil by weight to the finely powdered ore; the mixture to be agitated with water, either warm or cold, until the earthy matter sinks and the metal is gathered by the oil. In that process the sunken earthy matter is removed, fresh ore is replaced, and the operation repeated with the same oil until it will take up no more metalliferous matter. The United States patent, No. 348,157, issued to Everson, in 1886, specifies the use of oil in quantities varying from 5 to 18 per cent. Miss Everson was the first to make the important discovery that the affinity of the oil for the metal was increased by the addition of an acid. In the description of her process, she states that, in the operation, the mass is broken up and thoroughly stirred in water, in a vessel provided with a mechanical stirrer, and having an outlet or outlets at the bottom for the escape of the water and sand. The Schwarz United States patent, No. 807,503, applied for in May, 1904, and granted in December, 1905, describes a process in which the dry ore is first mixed with enough oil to make a thick pasty mass, and water is thereafter added, and the mass is agitated so as to cause the metallic particles to float. The quantity of oil to be used is not further specified, but it is in the testimony that the Schwartz process has been experimentally used with cotton seed oil; the quantity used being 3.6 per cent. of the ore treated. The United States patent to Kirby, No. 809,959, was applied for December 14, 1903, and granted January 16, 1906. The oil, used by Kirby was kerosene oil in which 5 per cent. of bitumen was dissolved. One of the claims is as follows:

'The process of separating minerals, which consists in mixing together the pulverized mineral material, a considerable quantity of water and a solution of bitumen in a distillable hydrocarbon liquid, the proportion of bitumen in solution being substantially sufficient to insure the coating and entrainment of the mineral particles; and allowing the same to settle, and removing therefrom the floating layer of said solution and the mineral particles which have been coated thereby.'

In his specifications he says:

'These materials to be so thoroughly agitated together as to finely subdivide said solution into small globules, and bring said globules into contact with substantially all of the pulverized mineral particles, which will by preference adhere to them.'

And, in describing the means for the agitation, he specified a 'vertically rotating shaft' in the mixing tank, which it is said is to be 'rotated rapidly.' No specific quantity of oil is prescribed, but it is stated in the specifications that a sufficient amount of the kerosene and bitumen in solution is to be used; 'excellent results being obtained by using one-fourth to three-fourths as much by weight as ore.'

In the Froment Italian patent, issued May 20, 1902, and the British patent to Froment, issued June 4, 1903, the invention described is declared to consist 'of a modification of what is known as the oil process of ore concentration. ' The modification consisted in releasing gas from the finely powdered ore, and 'adding a suitable oil,' resulting in a flotation of the oil and metal to the surface. Froment mentions the use of gas to aid in the flotation of sulphides reduced to powder and moistened by a fatty substance, in explanation of which the patentee says that if, for example, in a test tube there is placed ten grams of sulphurated copper ore, with its gangue, a gram of limestone, the whole reduced to powder, and there is added thereto 30 grams of water, a few drops of sulphuric acid 'and a thin layer of ordinary oil,' and the mixture is agitated for a second, the whole of the copper pyrite will instantly rise to the top of the liquid. The patentees of the appellees' patent purchased from Froment on November 17, 1903, the Froment patent, and Froment agreed to send all possible information, together with the plans, drawings, and a model plant, to England, for the use of the purchasers. The agreement was carried out in December, 1903. The instructions which Froment sent contain the following:

'If the ore contains more than 5 per cent. of metallic matter, such as copper, lead, it will be necessary to use a little more oil. As a general rule one may assume 1 per cent. of oil for ore containing up to 5 per cent. of metals, 1 1/2 per cent. of oil for ore containing up to 10 per cent. and so on, up to ores containing 50 per cent. of metallic

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