Minerals Separation, Limited, v. Butte & Superior Mining Co.

• Court: U.S. District Court — District of Montana
• Citation: Minerals Separation, Limited, v. Butte & Superior Mining Co., 245 F. 577 (D. Mont. 1917)
• Decision Date: 25 August 1917
• Docket Number: 8.
• Parties: MINERALS SEPARATION, LIMITED, et al., v. BUTTE & SUPERIOR MINING CO.

245 F. 577

MINERALS SEPARATION, LIMITED, et al., v. BUTTE & SUPERIOR MINING CO.

No. 8.

United States District Court, D. Montana.

August 25, 1917

Henry D. Williams, William H. Kenyon, and Lindley M. Garrison, all of New York City, and Odell W. McConnell, of Helena, Mont for plaintiffs.

W. A Scott and Thomas F. Sheridan, both of Chicago, Ill., and J Bruce Kremer, of Butte, Mont., for defendant.

BOURQUIN District Judge.

This is trial on the merits of the suit reported in 237 F. 401. It involves the patent and claims of the Hyde suit, wherein the Supreme Court (242 U.S. 261, 37 Sup.Ct. 82, 61 L.Ed. 286) held the patent valid, but some claims invalid. The issues are as in the Hyde suit, viz. novelty, invention infringement, and in addition defenses of unreasonable delay and defects in disclaimer of the invalid claims, and estoppel by reason of statements by plaintiffs' counsel to the Supreme Court in arguing the Hyde suit. The evidence herein is that submitted during 25 days and also the record in the Hyde suit. So far as heretofore known, the nature and history of the discovery and invention (a process of ore concentration by air flotation) are fairly set out in reports of the Hyde suit (242 U.S. 261, 37 Sup.Ct. 82, 61 L.Ed. 286; 214 F. 100, . . . C.C.A. . . .; (D.C.) 207 F. 956), of the Miami suit (244 F. 752, . . . C.C.A. . . .; (D.C.) 237 F. 609), and of foreign suits cited in footnote on page 754 of 244 Fed., page . . . of . . . C.C.A. This suit is an important contribution, and yet it discloses that, though the use of the process is very wide, extensive and growing, its simplicity, economy, and success still surprise and gratify the metallurgical world, and its laws or principles of operation still interest and puzzle the scientists. 'In the beginning it was very little knowledge and mostly guesswork, and since then there has been every year a little more knowledge and still a great deal of guesswork,' testifies one of defendant's experts, Prof. Bancroft, of Cornell, a physical chemist of note, acquainted with the process since 1906, and lecturer upon it since 1912. Though speaking for himself alone, the learned doctor's estimate might well be applied to all, practical layman and expert scientist alike.

At the same time, though heretofore somewhat ambiguous and obscure, present knowledge warrants the conclusion that the gist of this remarkable and valuable process and the actual discovery and invention are that, whereas, theretofore in ore concentration air had been used in desultory and fugitive bubbles as a makeshift incident of and supplement to oil and skin flotation, air can be made to do all the work by creating in water ore pulp modified by a suitable oily contaminant an infinitude of bubbles. It is the first of its kind, and the patent sufficiently discloses it and methods to those skilled in the art.

Ambiguity and obscurity were as much due to the extreme mechanical simplicity of the process as to the inability then and now to know and explain all its laws or principles. The tendency was to attach prime importance to reduction in amount of oil used, when in fact this is but a necessary incident (for which there are substitutes if not equivalents) to the creation of the infinitude of bubbles that do the work. Despite this tendency, and to overlook the simple and obvious, the patent fairly clearly sets out the various ways and means to create this infinitude of bubbles and that they do the work. The tests to determine which kind and amount of 'oily substance yields the proportion of froth or scum desired,' that flotation is 'mainly from the inclusion of air bubbles,' the froth, the agitation, all are so many guides in the patent, pointing the skilled operator to and including the infinitude of bubbles and the degree of agitation and amount of soap or oil to produce such bubbles, as surely as the word 'crystallization' points to appropriate temperature in Commercial Co. v. Canning Co., 135 U.S. 189, 10 Sup.Ct. 718, 34 L.Ed. 88, and the words 'uttered sound' by the 'human voice' to articulate speech in the Telephone Cases, 126 U.S. 531, 8 Sup.Ct. 778, 31 L.Ed. 863.

Of the new evidence herein are learned dissertations upon the philosophy of the process, upon the philosophy of bubbles, the heart of it, by Profs. Bancroft, of Cornell, and Taggart and Beach, of Yale, and Drs. Sadtler, of Philadelphia, and Grosvenor, of New York. From these it is gathered that the mere introduction of particles of air into a liquid does not create bubbles, but that they are created by subsequent agitation, either applied, or self-agitation. Air particles, introduced into pure water, are incapable of creating bubbles. The reasons are the surface tension of the water, and the lack of viscosity to create a sufficient film about the air particles, compel the escape of the air particles into the atmosphere, and no bubble is formed. Some soaps and oils possess the quality to lessen this surface tension of water and to give or increase this necessary viscosity. Their addition in appropriate quantity to water enables air particles introduced therein to create bubbles. Rather, the meeting and coaction of water, oil, and air create a film composed of all three, and which surrounds the air particles. This film is more viscous than the mass of the water, and, rising to the surface, the tension of which (and of the film) has been reduced by the oil, maintains itself as an air bubble. This quality of oil is of first importance in the process. Another of lesser importance, and which all oils possess, is the 'preferential affinity for metalliferous matter over gangue. ' Of lesser importance because it is now known (and patented) that, given another contaminant than oil, but which possesses the like bubble-making quality, though not the said 'preferential affinity,' the process is equally successfully worked. Air also possesses this 'preferential affinity,' and in view of the foregoing it well may be that the capture as well as the flotation of the metallic particles is more due to the great volume of air than to the infinitesimal oil. That in this process air without oil cannot capture and retain the metallic particles seems due to its inability to create bubbles without oil. And why this capture in any case is still of the unsolved phenomena of the process. On the other hand, water has a preferential affinity for gangue over metalliferous matter; that is, it wets the former more readily than it does the latter. And this contributes to the process, in that oil and air displace water from the surface of metalliferous matter more easily and quickly than from gangue, and so more readily capture and float the former than the latter. At the same time, despite these preferential affinities, in successful operation of the process the bubbles generally float more gangue than metal, more in quantity, but not in proportion, and why is also unsolved.

There are 'critical proportions' of any oil used in this process; perhaps not a sharp divide, but rather a broad one. For the amount of oil to produce sufficient and efficient bubbles must depend on many other factors, viz. the working cell space, amount of water, degree of agitation, kind and amount of ore, and perhaps on occasion amount of metallic content, kind of oil, etc. For example, if a ton of ore be agitated in a lake of water, doubtless a lake of oil will be necessary to create sufficient bubbles to capture the metal in the ore. But with bona fide operations in a good, workmanlike manner, with the proportion of space, water, agitation, etc., such operations and manner dictate, the range in amount of oil will be narrow and well within 1 per cent. on the ore. These 'critical proportions' are like those known to and solved by every child with its pipe and bowl of suds. Too little soap, the bubbles are few, small, fragile, and break quickly. Too much soap, they flow from the pipe in a torrent, are heavy, and refuse to float. The right amount of soap, the 'critical proportions,' his bubbles are large, detach readily, and float high, far, and for long. So is it with the bubbles in this process. With excess oil, but not enough to defeat bubbles altogether, though of fair aspect to the eye, the bubbles will not do the work. In the excess oil in the films the metallic particles do not cling, but swim or slide to the bubble's lower surface, 'neck off,' detach, and sink. The untechnical workman recognizes there are 'critical proportions' of oil, and small deviation from the predetermined amount in the feed, whether more or less, manifests itself to him in the appearance of the froth and poorer results; and he knows and remedies the error in oil.

Metallic content of ore seems of little importance-- sometimes seems to require oil inversely. For example, a local operator with the process upon ore from the same vein as defendant's uses seven tenths of a pound of oil per ton of ore of 11.23 per cent. zinc content, making 50.59 per cent. concentrates with 94 per cent. recoveries, and in the same plant uses 2.83 pounds of the like oil per ton of tails of .97 per cent. copper content, making 9.085 per cent. concentrates and .266 per cent. tails. It is apparent it is the air, and not at all the oil, that floats the mineral, noting that in the first of this example 211 pounds of zinc are floated by air bubbles in the creation of which only seven tenths of a pound of oil is used. How the air particles are introduced into the pulp is immaterial. For, introduced, they are still particles, and not bubbles. Agitation subsequent to introduction is vital, and alone can convert air particles into water-oil-air bubbles. It is this subsequent agitation that within the claims of the patent agitates 'the mixture until the...