Metals Recovery Co. v. Anaconda Copper Min. Co.

• Decision Date: 14 January 1929
• Docket Number: No. 5529.,5529.
• Citation: Metals Recovery Co. v. Anaconda Copper Min. Co., 31 F.2d 100 (9th Cir. 1929)
• Parties: METALS RECOVERY CO. v. ANACONDA COPPER MIN. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

31 F.2d 100 (1929)

METALS RECOVERY CO. v.ANACONDA COPPER MIN. CO.

No. 5529.

Circuit Court of Appeals, Ninth Circuit.

January 14, 1929.

William H. Davis and Merton W. Sage, both of New York City, and Edward B. Howell, of Butte, Mont., for appellant.

L. O. Evans, of Butte, Mont., and Charles Neave and John F. Neary, both of New York City, for appellee.

Before GILBERT, DIETRICH, and HUNT, Circuit Judges.

DIETRICH, Circuit Judge.

As the holder of patent No. 1,364,304(issued January 4, 1921, to Clement L. Perkins on application filed July 21, 1919), appellant brought this suit to enjoin infringement.The patent relates to "improvements in flotation of minerals."SeeHyde v. Minerals Separation, Ltd. (C. C. A.)214 F. 100;Minerals Separation v. Hyde, 242 U. S. 261, 37 S. Ct. 82, 61 L. Ed. 286;Butte & Superior Mining Co. v. Minerals Separation, Ltd. (C. C. A.)250 F. 241;Minerals Separation v. Butte & Superior Mining Co., 250 U. S. 336, 39 S. Ct. 496, 63 L. Ed. 1019.Thereunder, as before, the flotation operation consists in grinding the ore to a powder, adding a small quantity of some foreign substance or substances useful in creating a mineral-bearing froth, mixing with water to give fluidity, aerating the mixture by agitation, and drawing off the resultant froth or scum.The foreign substance or substances perform two essential functions; not only must a froth be generated, but the metalliferous particles of the slime must be so affected that they will adhere to the froth films and consequently be lifted to the surface.The two functions are commonly characterized as frothing and collecting, and may both be exercised by a single agent, or separately by different agents.Most of the important agents known to the prior art were oleaginous, and most, if not all, in various degrees performed both functions; some being predominantly frothers and others predominantly collectors.It was also known that in using a combination of two or more agents the proportions should be such as to give the best results with the particular ore under treatment.

Quoting from the patent application, the alleged invention "is based upon the discovery that improved results can be obtained by carrying out the flotation operation with the addition, to the ore or mineral pulp, of certain non-oleaginous solid organic compounds which themselves have substantially no frothing properties but which have valuable properties as collecting agents."The collecting power or activity of the agent, whether chemical or mechanical, seems to be somewhat of a mystery.In the patent Perkins suggests certain possible theories, but expressly declines to commit himself to any one of them.We are informed by the patent that while the collecting agents therein referred to "are substantially insoluble and are commonly referred to as insoluble nevertheless they are soluble to a very small degree," and that it is by reason of this solubility that they are able to perform the desired function; and further that by "non-frothing" is meant "substantially non-frothing"; that among such collecting agents "are included certain of the aromatic, thio-ureas and many of the azo and diazo compounds"; that one which the patentee "found of particular value is diazo-amino-benzene"; that "it is of advantage in many cases to add to the ore pulp a small amount of alkali which may be sufficient in amount to give to the ore pulp a distinct alkaline reaction."We are further informed that the amount of the collecting agent to be used will vary, and that the patentee had obtained good results with one-thirtieth of a pound to a ton of ore, but that more may be used, and he seems to think that ordinarily one-fourth of a pound is as little as should be used.By way of illustration, there are set forth four specific separation tests, in all of which diazo-amino-benzene was used as the collector and as a frother terpineol was used in two, pine oil in one, and in the other xylidin.Xylidin is spoken of as both a solvent and a frothing agent, and certain other chemicals are named as having like properties.Finally, we are informed that "the process in which organic nitrogen compounds, including azo and diazo compounds," are used, is claimed in a separate companion application, and that the "process in which thio-urea and other nitrogen-sulphur compounds, such as thio-carbanilid," are used, is claimed in two other patent applications made jointly by Perkins and one Sayre.Admittedly out of a large number of similar chemical substances tested by him, Perkins discovered a few that were superior collectors.No one of these, however, is used by the defendant, and all are covered either by claims of the instant patent which are not here in issue, or by other patents, so that, whatever the event of this suit, Perkins and his assigns hold a patent monopoly on all specific substances by him found to have superior collecting properties.But plaintiff's contention is that xanthate, the collecting agent used by defendant, falls within the scope of its patent claims, 1, 2, 3, and 4 (the only claims pleaded), which undoubtedly are broad enough to include not only the specific substances so discovered by the patentee, but a multitude of others which he had not found to have collecting properties, and many, if not most, of which are known to have no value for that purpose.

Claim 1 is as follows: "The method of effecting the concentration of minerals by flotation, which comprises adding to the mineral pulp a small amount of a substantially non-oleaginous organic mineral collecting agent which is substantially non-frothing, and subjecting the resulting mixture to a froth flotation operation; substantially as described."

No. 2 is like No. 1, except that it expressly provides that with the collector there shall be added "an agent having good frothing properties."Nos. 3 and 4 correspond respectively to 1 and 2 with a substitution of the phrase "reduced and easily oxidizable" for the term "non-oleaginous."

In short, it would seem that (excepting only the one contingency of a self-frothing ore) the patent assumes the use of some known frothing agent not otherwise described and is concerned only with the collecting agent which, in claim 1, is described as being a "substantially non-oleaginous organic mineral," that is, "substantially non-frothing," in claim 2, as a "substantially non-frothing non-oleaginous organic mineral," in claim 3, as a "reduced and easily oxidizable mineral," and in claim 4, as a "reduced and easily oxidizable organic mineral"...