Salvage Process Corp. v. ACME TANK CLEANING P. CORP.

• Decision Date: 10 January 1938
• Docket Number: No. 121.,121.
• Citation: 94 F.2d 69
• Parties: SALVAGE PROCESS CORPORATION et al. v. ACME TANK CLEANING PROCESS CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

94 F.2d 69 (1938)

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

No. 121.

Circuit Court of Appeals, Second Circuit.

January 10, 1938.

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 CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a decree for the plaintiff in a suit to enjoin the infringement of Claim 1 of Patent, No. 1,405,173, issued to Hervey J. Wheeler. The case has been already before us on appeal from an interlocutory injunction against infringing the same claim, which we reversed. Salvage Process Co. v. Acme Tank Cleaning Process Corp., 2 Cir., 86 F.2d 725. We refer to the statement of facts in that opinion, and proceed at once to the issue of infringement, for the defendant now, as before, acknowledges the validity of the claim. Our first decision assumed that the sludge might be emulsified at the entrance of the tube, 10, or in some part of its length, and we shall assume it now as well. Upon the trial the judge so found after actual inspection, and the defendant does not appear to dispute his conclusion. But this does not cover the first element of the claim; "a high vacuum" in the "receptacle." The specification defines both these terms; the "receptacles" are the "cylindrical exhaust tanks of large capacity" (p. 1, lines 75-76) marked "FF," into which the emulsion is directly ejected, and in which the prescribed vacuum is maintained through connections with the air pump, D. It is true that the specifications do not expressly so describe these tanks, but there is no other possible meaning for the word in the claim. The "high vacuum" must be twenty-five inches or more (p. 2, lines 7-8), and while we might not hold the patentee to the exact lower limit, there can be no doubt that the claim does not tolerate a vacuum as low as ten inches or twelve. Turning now to the defendant's apparatus there can be no vacuum in the chamber, 21, lower than twelve inches, because the relief valve, 26, will at that point begin to admit air. The defendant asserts that this positively proves that there is no "high vacuum" in the "receptacle" within the meaning of the claim. The plaintiff answers this reasoning as follows. The internal temperature of the chamber, 21, is estimated to be between 160 and 180 degrees Fahrenheit, and 161 degrees presuppose a steam pressure in the chamber of ten inches. Since the pressure of both steam and air within the chamber...