Tolfree v. Wetzler

• Decision Date: 21 May 1928
• Docket Number: No. 3595.,3595.
• Parties: TOLFREE v. WETZLER et al.
• Court: U.S. Court of Appeals — Third Circuit

25 F.2d 553 (1928)

TOLFREE v. WETZLER et al.

No. 3595.

Circuit Court of Appeals, Third Circuit.

April 4, 1928.

Rehearing Denied May 21, 1928.

Stephen H. Philbin, and Henry R. Ashton, both of New York City, and Frederick P. Fish, of Boston, Mass., for appellant.

Harry B. Rook and Russell M. Everett, both of Newark, N. J., for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

This appeal from a decree dismissing the bill turns on the narrow question of whether patent No. 1,281,690, granted October 15, 1918, to Stern, for a method of stopping leaks in automobile radiators and other receptacles, involves invention. If it does, the defendant is an imitation infringer.

Turning first to the disclosure of the patent, the specification states it is a method of stopping leaks in metal vessels, which "involves the employment of a leak-stopping ingredient which, with water, is adapted to form a colloidal solution." We pause here to say that a colloidal solution is one which does not settle in fluid, but remains in suspension. The patentee goes on to state:

"The essential constituent of the composition is a substance commercially known as cube gambier, which is an extract from certain trees or shrubs and contains catechin and tannin, although other bark extracts containing catechin or similar compounds may be employed or substances having similar characteristics. The composition may be produced in the following manner: the gambier may be liquified by heat, and while hot may be added to a mixture of seven parts by weight of alcohol and one part by weight of water. This mixture may be placed in a closed vessel and agitated and heated for say 24 hours, and the temperature may be gradually increased until the contents reach about 350 degrees F., at which time a considerable pressure will be developed, then the temperature is reduced to about 35 degrees F., whereupon a colloidal solution is formed, which may be placed in cans for shipment; the gambier, which is the leak-stopping ingredient, being in a colloidal state."

Cans containing about a half pint of this solution are sold by plaintiff and defendant at $6 each, and small quantities thereof are poured in automobile radiators. When a leak occurs, the solution finds the leak and escapes through it, or, as stated in the specification:

"The colloidal solution of water and leak-stopping ingredients thus contained in the vessel will be circulated by any suitable means, such, for instance, as a pump associated therewith, so that the leak-stopping ingredients will be positively moved about and find lodgment at the leak opening, and when so disposed will in time be exposed to the air and become hard, and practically insoluble, and thus effectively close the opening."

That this solution was useful is proved by the public buying from both plaintiff and defendant at high price for small quantities. The proofs show it was used by the United States on all long-distance aeroplane flights since the NC-4 trans-Atlantic flight in 1919, including the McMillan Arctic expedition of 1925. We shall not quote the evidence bearing thereon, but restrict ourselves to saying that the results in metal leak stopping by this fluid solution present a case of an unusual kind, and we are satisfied the contribution of this patentee to the art was one so effective, unlooked for, and simple as to brand it unusual in character. Moreover, the disclosure was original and novel. Gambier had been used for years in the tanning art and in other ways; its qualities were known. Indeed, in connection with pulverized asbestos, a Chilean tree, glucose, and claret wine, gambier was made part of a mixture in patent No. 1,117,526, to Seely, for "coating the interior of inflatable tires to render them...