Linde Air Products Co. v. Morse Dry Dock & Repair Co.
| Decision Date | 22 January 1917 |
| Citation | 239 F. 909 |
| Parties | LINDE AIR PRODUCTS CO. v. MORSE DRY DOCK & REPAIR CO. |
| Court | U.S. District Court — Eastern District of New York |
On Settlement of Decree, March 1, 1917.
Kerr Page, Cooper & Hayward, of New York City (Thomas B. Kerr and Drury W. Cooper, both of New York City, of counsel), for plaintiff.
Gifford & Bull, of New York City (Livingston Gifford and C. G Heylmun, both of New York City, and J. B. Hull, of Cleveland Ohio, of counsel), for defendant.
This is an action for infringement of United States method patent No. 831,078, issued September 18, 1906 (upon application filed August 22, 1905), to one Felix Jottrand, a Belgian, who in applying for the patent in question stated that he then resided near Brussels. The Jottrand United States patent is stated by the inventor to cover--
'a method of cutting plates, pipes, and other metal articles; * * * and it has for its object to enable such articles, particularly those of iron or other readily oxidizable metal, to be cut almost instantaneously.'
The method consists--
'in heating the object to be cut along the line of section by means of a blowpipe, * * * and to simultaneously direct upon the said line at a certain distance from the jet of the heating blowpipe a jet of oxygen under pressure to effect the cutting of the object by chemical action upon the heated part, the metal being raised to such a temperature as to enable oxidation to take place rapidly without fusion of the metal, while the oxides, which are more fusible than the metal itself, flow readily, and the severance is perfectly clean, as though the metal had been sawed.'
The specifications describe in general an apparatus supplying the two jets above referred to: One, the jet of the preheating flame; the other, the jet for the oxygen. The 'certain distance' referred to is provided for by arranging and regulating, relatively to the heating nozzle, the conduit for the oxygen, so as to 'direct a jet of oxygen to the point which has been raised to the proper temperature by the heating flame.'
The testimony, at considerable length, analyzes and describes these various steps, in order to make clear the propositions which are presented, as soon as study of the art has prepared a foundation for consideration of the language used. It appears that materials such as steel and certain grades of iron (wrought iron, etc.) oxidize at a temperature appreciably less than the melting point of the material. For instance, the melting point of steel is between 1,300 and 1,400 degrees C., while the melting point of iron is from 1,520 to 1,587 degrees C. If either steel or malleable iron be heated cherry red--that is, to a point approximating 1,000 degrees C.-- it will unite or combine rapidly with oxygen. The magnetic oxide or slag produced by this chemical action has a melting point between 1,250 and 1,260 degrees C.
The evident purpose of Jottrand, as described, was to accomplish the precise results which may be observed in practice. Experiments at the trial, the commercial operations of parties licensed under the Jottrand patent, those acts of the defendant which are claimed to infringe the Jottrand patent, and the other uses which are set forth in the testimony, all show the same chemical processes caused by a similar physical arrangement of parts and conditions.
In all so-called commercial cutting, with any form of torch, such as those brought into this case as exhibits, a supply of gas suitable for use in a blowpipe is ignited at the nozzle of the blowpipe in order to give the preheating flame. In practice, the various parties seem to be in agreement, that the most convenient and best form of nozzle consists of a number of apertures forming an outer ring for combustible gas. In the center of this ring is a contracted aperture connected with the supply of oxygen under pressure (controlled by a valve or cock) independent of the supply pipes leading to the mixture chamber for the combustible gas of the outer ring. From this central opening can be projected a 'jet' or pencil of oxygen, which will penetrate the heating flame and come in contact with the heated metal in a narrow path, as the nozzle is moved in the direction of the desired cut. This will increase combustion, and yet will not drown or smother the heating flame by a large excess of oxygen, which is not of itself a combustible gas.
In the Jottrand patent the oxygen nozzle is shown as a separate tube outside of the blowpipe nozzle, which may or may not present a single aperture. In the case at bar the plaintiff alleges that the nozzle, showing the oxygen jet in the center of a ring formed by the apertures of the blowpipe nozzle, is but an equivalent for the structure shown and described in the specifications and drawings of the method patent in suit.
The defendant, in alleging the defense of invalidity or lack of invention, admits this doctrine of equivalency, but at the same time insists upon the plea of noninfringement, if the Jottrand device patent be brought into the case for the purpose of drawing proof from that from of torch which literally complies with the specifications and drawings. As both the plaintiff and the defendant in practice use the equivalent form of nozzle, which is like the blowpipes of the prior art, the device patent was withdrawn from the suit.
The defendant bases its claim of lack of invention, nonpatentability, and anticipation, aside from alleged public use by one Harris, which will be discussed later, upon the same evidence as that offered to show the state of the prior art. The record shows that in the early part of the nineteenth century an oxyhydrogen or compound blowpipe, with two concentric nozzles, was invented by Dr. Robert Hare, of Philadelphia. In this form of blowpipe the oxygen nozzle was inside the ring of the hydrogen nozzle, and the blowpipe was used to fuse substances which had previously been considered infusible, including platinum. In 1832 a burner was invented by Professor Daniell, of King's College, London, which was described in the various editions of Silliman's Chemistry, and which as late as 1888 was the subject of a paper read by one Thomas Fletcher before the Society of Chemical Industry, at Liverpool, in which such experiments were described, as fusing the end of a 3/16-inch wrought iron rod, or the fusing of a hole through a chilled iron plate, such as those used in burglar proof safes.
The general form of the Daniell blowpipe or burner has two tapering concentric internal bores, with a stopcock connecting the internal or smaller tube with oxygen gas, while the outer or larger tube supplies hydrogen or other combustible gas, with the intention of uniting these gases in combustion at the end of the tube, in order to produce the hot flame required. The inner tube was used for the transmission of the oxygen gas under pressure, thus forming a blowpipe, in which the jet or pencil from the inner tube would force itself into the flame at the nozzle. The chemical effect of oxygen upon heated iron was of course well known during the nineteenth century, as were also the melting temperatures of iron and iron oxide, as stated above.
In the Fletcher process of fusing holes in an iron plate by means of a Daniell blowpipe, certain chemical reactions, with physical changes, took place, as to which all the witnesses in the present case seem to be in accord. The heating effect of the blowpipe raised the temperature of the iron to a point where the supply of oxygen served the double purpose of feeding the blowpipe flame and of oxidizing the heated metal against which the blowpipe was directed. As soon as this oxidation took place, a great increase in heat was produced, which, in turn, immediately raised the temperature of the surrounding particles above the melting point of the iron, and to a greater degree above the melting point of the iron oxide itself. The evident problem presented would be determined by the size and proportions of the object upon which the flame was directed. If the melting process extended through the plate, a hole would be perforated. If the melting occurred at the edge or end of the piece of metal, the molten part would drop off.
Upon May 25, 1901, a German patent was taken out by one Herman A. E. Menne, No. 137,588, followed by United States patent No. 703,940, of December 12, 1901, and German patents Nos. 140,149, 143,640, and 147,541, all during the year 1902, and elucidated in an address published in the 'Zeitschrift' of July-September, 1904. These patents were all process patents, while United States patent No. 705,418 and German patent No. 140,148 were obtained for a device to be used in carrying out the processes named. Dr. Menne developed his method from the necessities of opening tap holes to blast furnaces, or removing the metallic masses which form at times through cooling in and around the openings of blast furnaces, and which, if not removed, may cause the loss of the entire contents and occasion delay in cutting out the refractory material after cooling. But from the practice in connection with blast furnaces, Dr. Menne, in the address in question, says:
'Another very extensively used application of the method has been found in the rapid dismounting, piercing, separation, slotting of iron and steel pieces of any kind, as, for instance, anchor bolts, armor plates, clutch pieces, pump rods, etc., in that the sawing through or rasping through, etc., operation usually requiring hours and days, is shortened to a few minutes, and that the work may be carried on in loco.'
He also says:
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In re Williams
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