Steinfur Patents Corp. v. Meisel-Galland Co., Inc., 4941

• Decision Date: 22 May 1939
• Docket Number: 6512.,No. 4941,4941
• Citation: 27 F. Supp. 737
• Parties: STEINFUR PATENTS CORPORATION v. MEISEL-GALLAND CO., Inc., et al. SAME v. MICHAEL MILLER FUR DYEING CORPORATION et al.
• Court: U.S. District Court — Eastern District of New York

27 F. Supp. 737

STEINFUR PATENTS CORPORATION v. MEISEL-GALLAND CO., Inc., et al.

SAME v. MICHAEL MILLER FUR DYEING CORPORATION et al.

Nos. 4941, 6512.

District Court, E. D. New York.

May 22, 1939.

Abel E. Blackmar, Jr., of New York City, special master.

Lemlein & Wolsky, of New York City (Morris H. Wolsky, of New York City, of counsel), for plaintiff.

Louis H. Solomon, of New York City, for defendants William E. Popkin and Michael Miller.

BYERS, District Judge.

Hearing on exceptions to report and findings made by Special Master to whom was referred the question of alleged violation of injunction and infringement by the individual defendants, William E. Popkin in the first cause and Michael Miller in the second.

The Special Master has found infringement as follows:

As to Popkin: Patent No. 1,573,200 (Process) at least as to claims 6, 7, 19, and 22. Patent No. 1,564,378 (Product) at least as to claims 1, 6, 11, 12, 14, 16, 21, and 22.

As to Miller: Patent No. 1,564,378 at least as to claims 11, 12, 14, and 16.

That each defendant has violated the injunction heretofore issued and served upon him.

The plaintiff excepts to the failure to find violations of other claims, and the defendants to the findings as made, on the general theory that no infringement is established by the evidence.

The findings result from a report which sufficiently discusses the issues and the testimony to render unnecessary any extended comment upon either, in the disposition of these exceptions.

The scope and status of the patents have been expounded in Steinfur Patents Corporation v. J. Meyerson, Inc., et al., D.C., 56 F.2d 372, modified and affirmed sub nom Steinfur Patents Corporation v. William Beyer, Inc., et al., 2 Cir., 62 F.2d 238.

They have to do with a process for bleaching and dyeing furs (No. 1,573,200) and with the furs so bleached and dyed (No. 1,564,378).

Validity and infringement were established in the above case, and the issue now presented has to do solely with the extent to which these defendants are to be deemed to be in contempt for having disobeyed the injunction issued and served upon them in connection with that decision.

It is necessary to recall that the plaintiff's process, stated broadly, consists in treating animal skins with ferrous sulphate (FeSO4. 7H2O) and then bleaching them by the application of hydrogen peroxide, after which they may be dyed as desired.

The defendants assert that their process avoids infringement because the ferrous sulphate used in the first stage of operation is changed, by intermediate introduction of an undisclosed chemical agent, into ferric sulphate (Fe2(SO4)3) after which the bleaching is accomplished by the use of peroxide of hydrogen in an alkaline state, and that this is such a departure from the teaching of the process patent, that infringement of both patents is avoided and in consequence there is no violation of the injunction.

With that position, the Special Master does not agree, and no reason has been brought to light by the defendants' briefs to induce the court to reach a different conclusion.

The defendants' argument, stated briefly, is that a ferric rather than a ferrous mordant (fixing agent) was deemed to be desirable because superior bleaching qualities were thereby imparted to the skin; that to overcome the practical objections to that procedure, due to the deleterious effect of the ferric mordant upon the leather as distinguished from the hair of the skin, a method was perfected by Popkin's corporation, whereby the ferrous mordant initially employed was changed into a ferric state before the bleaching action was set up, and thus the desired result was accomplished.

Incidentally, the defendants refused to disclose the chemical constituency of the intermediate step, and it thereby became necessary for the Master to ascertain how far the defendants' assertions were sustained by the evidence, a process involving the taking of 1842 pages of testimony.

The argument proceeds to the general effect that the Master should not have reached the conclusion that the intermediate step did not accomplish its avowed object, since the bleaching of the defendants' skins was actually accomplished while the hairs were sufficiently impregnated by ferrous sulphate to indicate that the defendants' departure from the process of the plaintiff's patent was more apparent than real.

Under this contention, it is asserted that the tests for the presence of ferrous sulphate in the final stage were not sufficiently convincing to sustain the Master's conclusion on the subject. The record convincingly demonstrates the care with which he scrutinized the testimony as it went in and such experimentation as was conducted in his presence. He had to draw his conclusions by weighing the testimony of one expert against the other, and his report is not criticized as lacking in insight or understanding of the weight to be attributed to the argumentative as distinguished from the demonstrable elements in the case.

At best, the defendants are forced to assert that there was only a little ferrous sulphate present when the bleaching was undertaken.

Probably this means that the defendants should be permitted to infringe, just a little.

Stress is laid upon the alkali aspect of the bleaching solution employed by the defendants, who add alkalis to the peroxide of hydrogen to effect the bleach.

The argument is thus stated: "* * * so that the plaintiff's process starts out with hydrogen peroxide per se and ends with the hydrogen peroxide supplemented with ferrous sulphate, which is a compound of sulphuric acid." (So is ferric sulphate.)

But the patent does not teach the employment of an acid bleach. The pH of the bleach is not indicated in any of the claims.

The defendants next argue that, if the conversion which they say is accomplished, of ferrous to ferric, prior to the bleach, is complete, the Master is in error in concluding that, in the operation of that process, the ferric sulphate is changed back to ferrous, resulting in the practice of the teaching of the patent. In other words, that he...