Salvage Process Corp. v. ACME TANK C. PROCESS CORP.

• Decision Date: 07 December 1936
• Docket Number: No. 191.,191.
• Citation: 86 F.2d 725
• Parties: SALVAGE PROCESS CORPORATION et al. v. ACME TANK CLEANING PROCESS CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

86 F.2d 725 (1936)

SALVAGE PROCESS CORPORATION et al. v. ACME TANK CLEANING PROCESS CORPORATION.

No. 191.

Circuit Court of Appeals, Second Circuit.

December 7, 1936.

W. Hastings Swenarton, of New York City, for appellant.

Samuel E. Darby, Jr., and Darby & Darby, all of New York City, for appellees.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the defendant from an injunction, pendente lite, upon claim one of patent No. 1,405,173, issued on January 31, 1922, to H. J. Wheeler; upon claims one and two of patent No. 1,894,234, issued January 3, 1933, to G. R. Engstrand; and upon claim five of patent No. 1,964,726, issued on July 3, 1934, to the same Engstrand. All three patents relate to a method of pumping oil sludge or sediment from the bottom of a ship over the side into a barge.

Wheeler's Patent.

Wheeler's claim one is for the method of sucking the sludge through a pipe-line into the barge by "creating a high vacuum * * * and admitting air in small quantities into the suction end of the conveying pipe to emulsify said material." It takes advantage of the well-known law of physics that, although by direct suction the lift of water is limited even at sea levels to only thirty-four feet, much higher lifts are possible if the sucked-up column is broken by the admission of air. Such a method was for example disclosed by Schutte, in patent 248,355 of October 18, 1881. That discovery was never, however, applied to the elevation of sludge from the bottom of a ship, and Judge Campbell held the patent valid in the year 1924, not for the new use, but because the sludge was "emulsified." Wheeler's apparatus is extremely simple; the suction end of the line is completely immersed in the sludge, an ordinary reciprocating pump creates suction in receiving tanks on the barge alongside, and a valve near the intake is kept open to mix air with the column of sludge soon after it enters the line. The defendant has an apparatus in gross outline like Wheeler's, but without any valve for the admission of air; the plaintiffs' theory is that it accomplishes the same result by only partially submerging the nozzle. Upon on the barge alongside is a duplex pump near the discharge end, and a steam evactor pump, leading off from the pump's receiving chamber to an exhaust tank, creates the vacuum in the receiver and in the line. The defendant's affidavits — which on application for injunction pendente lite must be taken as true — are not altogether clear about the degree of vacuum so attained in the receiver. We read them as meaning that it never gets higher than ten inches, but it is possible that this figure should be twelve; in any event it is not the vacuum of at least twenty-five inches, prescribed by Wheeler in his specifications (page 2, lines 6-10). The defendant can work with so low a vacuum — indeed it says it cannot use a higher one — only because it does not wholly depend upon it. Near the intake end of the pipe is a steam jet, which sucks the sludge till it passes, and pushes it forward after it has done so. The defendant says that the sludge passes through the line in slugs alternating with sections of steam; that is the "bubble and piston" method, already known to the art (patent No. 536,858, issued April 2, 1895, to Donato). Judge Campbell distinguished...