Societe Anonyme Du Filtre Chamberland Systeme Pasteur v. Allen

• Decision Date: 09 November 1898
• Docket Number: 556.
• Citation: 90 F. 815
• Parties: SOCIETE ANONYME DU FILTRE CHAMBERLAND SYSTEME PASTEUR et al. v. ALLEN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

90 F. 815

SOCIETE ANONYME DU FILTRE CHAMBERLAND SYSTEME PASTEUR et al. v. ALLEN et al.

No. 556.

United States Court of Appeals, Sixth Circuit.

November 9, 1898

Paul A. Staley, for appellants.

Almon Hall, for appellees.

Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

TAFT Circuit Judge.

This is an appeal from an order of the circuit court of the Northern district of Ohio refusing to grant a preliminary injunction on a bill filed by the Societe Anonyme Du Filtre Chamberland Systeme Pasteur and the Pasteur Chamberland Filter Company against Mortimer H. Allen and the Allen Manufacturing Company, to enjoin the infringement of letters patent No. 336,385, granted to Charles E. Chamberland for a filtering compound. 84 F. 812. The invention is described by the patentee in his specifications as follows:

'The means hitherto employed for filtering water ordinarily consist in the use of burned brick, powdered substances and various other materials, but which, either from the character of the materials themselves, or from the manner in which they are used or compounded, are not fully satisfactory, where great thoroughness in filtering is requisite. However efficient the named substances may be for filtering purposes, yet they do not, however, retain all germs or microbes, or extremely fine organisms, which are in suspension in the water or other liquid. * * * My invention is designed more completely to hold back and retain such germs. The compound is formed substantially of pipe clay, or any other suitable clay, and porcelain earth or its equivalents hereinafter named. The clay is diluted in water, and then mixed with porcelain earth or its equivalents. The porcelain earth is ground or reduced to fine powder in any suitable mill, after having been previously baked in any suitable kiln. The proportions are from twenty to forty per cent. of clay to sixty to eighty per cent. of porcelain earth or its equivalents. They may, however, vary more or less. I wish it, however, to be understood that I do not limit myself to the above-named substances; for the same or very much the same, result may be attained by using, for instance, silex, magnesia or its equivalent, instead of porcelain earth. * * * A filtering body produced from the above compound is homogeneous, and fulfills the required conditions for filtering. I do not wish to be understood as laying claim broadly to the materials hereinabove mentioned, as a filtering compound, but only when they are treated as above specified. ' 'I claim a filtering compound formed of porcelain earth baked and reduced to a powder and pipe clay, combined in the proportions set forth, the said compound being baked, substantially as set forth.'

The defendant M. Allen, it appears from the evidence, had been sales agent of the complainant company. He had nothing to do so far as the evidence shows, with the manufacture of the filtering compound, and was not possessed of any more of their trade secrets than was involved in the sale of the patented article. The complainant had great difficulty in finding out where the filtering material of the defendant was manufactured. Allen, the defendant, misled the complainant's agents on this point by false statements. They finally discovered, however, that the tubes or filtering vessels were made by the Brewer Pottery Company, at Tiffin, Ohio. Upon application to Brewer, the president of that company, for a sample of the material, he declined to give it, but said that he would testify in full when the suit was brought. The complainant obtained from Allen a piece of a broken tube, which was subjected to chemical and mechanical analysis. The results of these analyses are given in affidavits of chemists. They do not establish that the process of manufacture used was the same as that described in the patent, though they have some tendency to show that the materials were probably the same. Brewer, the president of the Brewer Pottery Company, makes an affidavit, introduced by the defendants, in which he swears that the process which he follows in making the filtering tubes for the defendants is a secret process, not known even to the defendants; that it is entirely different from that of the complainants; that he subjects the material to a heat of 3,000 degrees Fahrenheit,-- a heat which would utterly destroy the tubes of the complainants for filtering purposes; that the Allen tube is much less porous than the so-called Pasteur tube; that in the manufacture of the Allen tube there is no pipe clay or any ground, baked porcelain, or...