Miller v. Electro Bleaching Gas Co.
| Decision Date | 28 October 1921 |
| Docket Number | 5800. |
| Citation | 276 F. 379 |
| Parties | MILLER et al. v. ELECTRO BLEACHING GAS CO. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arthur C. Brown, of Kansas City, Mo., for appellants.
Loren N. Wood, of New York City (David M. Proctor, of Kansas City Mo., and Drury W. Cooper, of New York City, on the brief) for appellee.
Before HOOK, Circuit Judge, and TRIEBER and NEBLETT, District Judges.
This is an appeal from a decree adjudging letters patent No 1,142,361 valid and that the appellants, defendants in the court below, were guilty of contributory infringement. The complaint is in the usual form and charges the defendants with contributing to the use and practice of the process of antisepticizing water, which constitutes the invention set forth in the claims of said letters patent.
The answer admits the issuing of the letters patent to the appellee, the plaintiff assignee of George Ornstein, but denies infringement of any of the 12 claims on which the patent was issued and also attacks the validity of the letters patent, upon the ground that none of the claims of said letters patent can be lawfully construed so as to cover and embrace any device or apparatus made, used, or sold by these defendants; and the further ground that the alleged improvements set forth in said letters patent, particularly pointed out in the 12 claims thereof, were not novel and patentable when produced by the patentee, but that the process described in the claims had been previously patented and described in sundry patents and printed publications notice of which was given by the defendants to the plaintiff.
In view of the conclusions reached it is unnecessary to pass upon the validity of the letters patent in this opinion.
In the original application Mr. Ornstein asked for letters patent on the process as well as the apparatus, but the request for the apparatus, after having been rejected by the examiner of the Patent Office, was withdrawn and only the application for a process patent was asked and finally, after several rejections and amendments, granted. In the original applications for both letters patents, the apparatus was fully described in the specifications as well as claims; but the application upon which the letters patent were finally granted does not describe the apparatus in any of the claims, but only the process of antisepticizing waters, although in the specifications the apparatus to be used is described, and also illustrations of three kinds of apparatus which may be used are filed. In the specifications it is also stated that 'several apparatus are susceptible of use in the process. ' Among other contrivances in the apparatus there is a shut-off valve and a regulating valve, but no mention of either of these valves or any other parts of the apparatus is set out in any one of the twelve claims.
The apparatus by which the patented process is made operative, as shown by the figures accompanying the application, comprises an absorption tower, through which the minor flow of water passes downward to absorb an upwardly moving current of chlorine gas. The chlorine is supplied from a tank of compressed and liquified chlorine gas from which a pipe leads into the lower part of the tower. The tank is provided with a shut-off valve and the supply pipe with a pressure reducing valve and a regulating valve. Water is supplied to the tower from any suitable source.
The infringement charged is a chlorine gas-pressure regulator, performing the same office and producing the same result as the pressure reducing and regulating valves of plaintiff's apparatus.
The plaintiff had sold to the city of Chicago, for use in its municipal water plants, a number of complete sets of its apparatus; later the city purchased from defendants a Miller chlorine gas-pressure regulator to replace the corresponding part in plaintiff's apparatus. The reason the city of Chicago made the change, as testified by its assistant city engineer, was that defendants' valves enabled the city to obtain better regulation of gas flow from defendants' valves and a great saving in maintenance costs.
Plaintiff also sold a set of apparatus to the city of Kansas City, Mo., which thereafter purchased from defendants one of their chlorine gas-pressure regulator valves. The reason this last purchase was made, as testified by the city's chemist in charge of water purification of Kansas City, was that plaintiff's valve mechanism was insufficient in capacity to get the required quantity of gas into the coke filled tower.
Do the sales of these valves constitute contributory infringement of plaintiff's process patent? The learned District Judge held they did.
It is neither charged nor claimed that defendants had employed the process of the patent in suit, nor that they had made or sold apparatus for employing that process. All the defendants did was the sales of...
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