Texas Co. v. Anderson-Prichard Refining Corporation, 1485.

• Decision Date: 07 March 1940
• Docket Number: No. 1485.,1485.
• Parties: TEXAS CO. v. ANDERSON-PRICHARD REFINING CORPORATION.
• Court: U.S. District Court — Western District of Oklahoma

32 F. Supp. 347

TEXAS CO. v. ANDERSON-PRICHARD REFINING CORPORATION.

No. 1485.

District Court, W. D. Oklahoma.

March 7, 1940.

Ames, Cochran, Monnet, Hayes & Ames, of Oklahoma City, Okl. (Newton A. Burgess, of New York City, Brady Cole, of Houston, Tex., Benjamin B. Schneider, of Chicago, Ill., and Drury W. Cooper, of New York City, of counsel), for plaintiff.

Ames, Thiess, Olsen & Mecklenburger, of Chicago, Ill., and Jarman, Brown, Looney & Watts, of Oklahoma City, Okl. (Arthur C. Denison, of Cleveland, Ohio, and J. Bernhard Thiess, Thorley von Holst, Sidney Neuman, and Robert W. Poore, all of Chicago, Ill., of counsel), for defendant.

KENNEDY, District Judge.

This is a patent case involving oil cracking process Patent No. 1,883,850 issued October 18, 1932, to Otto Behimer and assigned to the plaintiff company. The set-up of this law suit portends a battle of the giants in the petroleum refining industry. The record discloses that the principal patents involving oil cracking in the industry are concentrated in two corporations known as the Universal Oil Products Company, which is a subsidiary controlled by the Shell, the Standard of California, and the Atlantic Refining; and the Gasoline Products Company, which is a subsidiary of the Standard of Indiana and the Texas, and that at the time of the trial agreements were in existence between many of these companies and with other large concerns engaged in the petroleum refining industry which involved indemnifying clauses, waivers, permits, cross-licensing, and the like. On the other hand, the defendant is a member of a group of refining companies comprising the Champlin, the Globe, the Skelly, the Rock Island, the Omar, the Root, and Cities Service, and perhaps some others at one time or another who are or had been users of what is known as the Winkler-Koch Process (the one challenged in this suit), and among themselves they have by assessments on the basis of barrels of gasoline manufactured, contributed to a fund through an organization known as the Winkler-Koch Patent Company for the purpose of defending this process against the charge of infringement throughout different parts of the country and in various courts. The resources of the plaintiff group tied together in the manner heretofore indicated will be recognized as very substantial, and the testimony shows that the group of which the defendant is a member has raised something in excess of $1,000,000 for defense. The significance of the evidence which disclosed the foregoing facts in the case at bar is not fully apparent to the trial court in the solution of any of the issues of the case except perhaps to accentuate the importance of the litigation in the petroleum world, together with a basis upon which the plaintiff presents its argument, that the industry generally has recognized the legitimacy of the patent owned by plaintiff and to which tribute is paid; and the argument on behalf of the defendant that it has a right to refuse tribute to a practical monopoly in the oil cracking industry in the use of what it conceives to be a non-infringing process. So far as this court is concerned in the present action, the wealth and substantial character of the affected litigants do not greatly add to the burden of the court in seeking a solution to the problems presented, except as it may suggest an added responsibility on account of the seeming importance of the matter at hand. On the other hand, no particular worry need be occasioned the court on account of the ever-mounting expense.

Time does not seem to have been an element of importance when it is considered that the files disclose the beginning of the suit in 1933, with issues joined within reasonable time thereafter and except for a slight revamping of pleadings, the case remained dormant for nearly six years when trial was eventually reached through the "kidnapping" of a Judge from another district. It is worthy of mention that the case has been well and thoroughly tried. Five thousand pages of testimony were taken, together with the introduction of hundreds of exhibits requiring a trial period of six weeks. Over a thousand pages of printed trial briefs with appendices and proposed findings were presented, with a concluding oral argument of twenty-five hours, transcribed into a record of 750 pages. Earnest and untiring effort has been put forth to educate the trial court, little acquainted with patent litigation. The burden thereby imposed has not been a light one. To add to this complicated matter it has been developed that there are hundreds of patents covering oil cracking processes and thousands of cases in the books involving this class and kindred kinds of patents, all of which seem to have been cited on the one side or the other in counsels' briefs and arguments. One case of this character in a lifetime ought to be enough to fully satisfy the ambition of the most energetic judicial servant. With this brief outline of the picture confronting the trial court at the time a decision is imminent, an effort will be made in as brief a space as possible to outline the views of the court and at least with a reasonably prompt decision send the case on its way to the appellate courts, believing that its proper ultimate resting place should be in the bosom of the Supreme Court.

Specific reference to pleadings would seem to be unnecessary as the issues have been frankly and fully stated by counsel so as to be concise and little apt to be misunderstood. In simplified form, the issues between the litigants may be stated as follows: The plaintiff claims that the process used by the defendant is an infringement upon the claims of plaintiff's patent. The defendant claims (1) that its process is so different from the plaintiff's as not to infringe; (2) that the plaintiff abandoned or disclaimed certain features of his patent in Patent Office proceedings; and (3) that if defendant's process is interpreted to read upon the claims of plaintiff's patent that then the patent is anticipated by prior patents and disclosures in the art. There are 44 claims set forth in the Behimer patent but not all are tendered by plaintiff as an issue in this suit. Those relied upon are claims 14, 19, 21, 22, 23, 25, 29, 35, 36, 38, 39, 40 and 41. It has seemed to be satisfactory to counsel for plaintiff to rely upon two claims as substantially setting forth the nature of the patent for the purposes of comparison with defendant's process in determining the issue of infringement. These are claims 38 and 39 and are quoted from the patent as follows:

"38. A process of converting relatively heavy into lighter hydrocarbons, which comprises charging a stream of oil through a coil in a heating zone where said oil is heated to a cracking temperature, passing the oil to a zone maintained at a cracking temperature where conversion thereof occurs, separating the lighter products from the residual oil by vaporization, introducing generated vapors to a reflux condenser, returning reflux condensate mixed with charging stock under a forced mechanical pressure to said heating coil, preventing the return of residual oil to the heating coil, and maintaining superatmospheric pressure on the oil undergoing conversion in said system.

"39. A process of cracking oil which comprises subjecting oil in a fired heating zone to a cracking temperature solely by the application of external heat, delivering the highly heated oil into a heat insulated zone where separation of vapors from residual oil takes place, discharging the residual oil, subjecting separated vapors to partial condensation to separate out the heavier constituents thereof as a condensate, removing uncondensed vapors and positively returning condensate unmixed with residual oil by maintaining mechanically applied pressure to the heating zone for further treatment and continuously supplying charging stock to the process."

Flow diagrams of both the process of plaintiff and the process of defendant have been introduced as plaintiff's Exhibits Nos. 134 and 135, respectively, with a very definite explanation and interpretation of the nature of the process used by each party. Time will not suffice to give a complete description of the theories upon which the respective counsel base their very divergent views. The matter will be somewhat considered in attempting to discover the outstanding elements of each process with a view to solving the infringement issue.

We learn from the interpretation of the Patent Statutes that in the application for a patent there shall be contained a written description of the device and of the manner and process of making, compounding and using it in such full, clear, concise and exact terms as to enable any person skilled in the art or science to which it pertains, or to which it is most nearly connected, to make, construct, compound and use the same. Incandescent Lamp Patent, 159 U.S. 465, 16 S.Ct. 75, 40 L.Ed. 221. It has been held that the scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specifications. Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871, L.R.A.1917E, 1187, Ann.Cas. 1918A, 959. Again, we see that the specifications and claims of a patent constitute a contract between the United States and the patentee and that they should be read and construed together, not for the purpose of limiting, contracting or expanding the claims but for the purpose of ascertaining from the entire agreement the actual intention of the parties. Jensen-Salsbery Laboratories v. Franklin Serum Co., 10 Cir., 72 F.2d 15. These cases seem to impose upon the court the duty of examining the specifications for the purpose of clarifying as far as possible the intention of the patentee as to the nature of his device or process upon which he sought favorable action by the Government in giving him a monopoly...