16 Blatchf. 281 | U.S. Circuit Court for the District of Southern New York | 1879
This is an application for a preliminary injunction founded on reissued letters patent No. 5,799, granted to the Giant Powder Company, March 17th, 1874, the original patent having been granted to Julius Bandmann, as assignee of Alfred Nobel, the inventor, as No. 78,317, May 26th, 1868, being the same reissue considered in the case of the same plaintiff against Jasper R. Rand and others, [Case No. 626,] derided herewith. The powder of the defendants in the present case is known as Neptune powder, and is composed of •56 parts of nitrate of soda, 14 parts of charcoal, and 30 parts of nitro-glycerine. It is the same powder which was lield by this court, in May, 1878, in the case of the same plaintiff against the Neptune Powder Company, to be an infringement of No. 5,799. Many views now urged in defence in this case have been considered at length and overruled in the decision in the case against Rand. Those views were, “to some extent, presented and passed upon in the case against the Neptune Powder Company, but no written decision was given in that case, [nowhere reported.] There are, however, some points taken in the present case which are not discussed in the decision in the Rand case, and those points are also urged as grounds for dissolving the injunction granted in the case against the Neptune Powder ■Company.
Stress is laid on the fact that a compound made of 30 per cent, of nitro-glycerine and 70 per cent, of infusorial earth, will not explode, while the defendants' compound will explode, although it has but 30 per cent, •of nitro-glycerine, and its gunpowder ingredients will not absorb a greater amount •of nitro-glycerine. But, it is a plain direction •of the patent, that an absorbent must be used which will absorb and retain sufficient nitro-glycerine to make the compound explodable by detonation, at the place of designed use. The less the absorbing and holding ■capacity of the absorbent, the less the explosive force of the nitro-glycerine absorbed, because the less the quantity of nitro-glycer-ine absorbed. There is nothing in the patent which admits of the use of an absorbent which will not, with the nitro-glycerine, make a compound explodable by detonation, ■or of the use, with an absorbent which will Absorb and hold sufficient nitro-glycerine to make a compound explodable by detonation, of an insufficient quantity of nitroglycerine for such purpose. It is, therefore, of no consequence that a particular proportion of nitro-glycerine with a particular absorbent will not make a compound explodable by detonation, such compound being outside of the patent.
On the question of novelty, a book published in Germany, in the German language, is introduced, called Dingler’s Polytechnic Journal, volume 171, 1864, page 443, cviii. The particular article is headed: “On Nobel’s blasting powder, improved by addition of nitro-glycerine. By B. Turly, mining engineer.” The translation of the text is as follows: “W. Nobel, an engineer of Stockholm, has taken out a patent in different countries for an improved blasting and shooting powder. His improvement consists in making the ordinary powder considerably stronger by an addition of nitro-glycerine. As is known, nitro-glycerine is a very clear oleaginous liquid, is ignited at about 170° C., without exploding, but burns slowly away with a crackling and snapping noise. If this oil is poured on a solid foundation and struck heavily with an iron hammer, it explodes with a violent detonation, but only on the spot where the hammer touches the liquid, while all the rest of the mass of oil remains unchanged, that is, unexploded. The combustion of the liquid follows without the development of any gas perceptible by the odor. From this relation this much appears, that this mass, in and of itself, is quite harmless, and requires a strong concussion or blow to make it partially explode; that its employment has, at least, no greater danger than that of common powder. But, in combination with common powder, nitro-glycer-ine developes a very considerable strength, and this new nitro-glycerine powder is at least three to five times stronger than ordinary powder or blasting powder. In the fortress of Carlborg, on the Wetten Lake, Mr. Nobel has made experiments with his powder in the presence of a commission. Bomb shells with ordinary and the improved powder were bursted, and the effect of the latter is said to have been five to seven times that of the ordinary powder. The experiments of blasting rocks, performed in my presence, have, however, in general, shown only a three times greater development of strength, but always the result that merits the greatest attention. Besides, it is not to be left out of the consideration, that a bore hole can only be quite generally compared with a grenade or bomb; that, while these missiles consist of homogeneous cast iron, in which the strength must show itself proportionally much greater—in a bore hole in a rock, in most cases, a certain part of the foroe is uselessly lost, so that, consequently the effect will be proportionally a smaller one than in the former case. Nevertheless, this new powder is an essential improvement
Professor Henry Morton, in an affidavit on the part of the defendants, says, that he finds in said article the following description of experiments: “The blasting experiments were conducted as follows: The powder used differs from the blasting powder ordinarily in use here, in being much finer and not round, but longish and angular. Nobel states that this powder is common Swedish gunpowder, which has the same price as (Nora blasting powder?). The improved powder was used in zinc cartridge cases, 18 millimetres in width, and in length varying from 75 to 150 and 200 millimetres. These zinc cases, which are open at one end, are filled with the ordinary gunpowder, after which so much nitro-glycerine is poured in as can find room in the interstices of the powder. The powder soaked with the oil has an increased weight of 40 per cent.?” He further says, that, in order to repeat the experiment so described, he took “a quantity of common blasting powder, such as is sold throughout the country, and, having first removed from it all dust by means of a fine sieve, passed it through a coarse sieve, so as to secure only the moderately fine grains;” that “the powder so obtained corresponded, in all respects,” as he believes, “to that described in the above extract as being much finer than that ordinarily in use, and not round but angular;” that he “then selected
Mr. Robert J. Howe, one of the defendants, says, in an affidavit: “It is a well-known fact, that gunpowder is more effective when exploded by percussion caps than by simple fuse. Some consumers (contractors) always use percussion caps for that purpose. For the same reason, caps are better to explode the improved blasting powder, but the improved gunpowder is largely used by some parties and exploded (without cap) by fuse alone. In such use, the gunpowder of the mixture explodes the nitro-glycerine of the mixture.”
Mr. Thomas Varney, an expert for the plaintiff, testifies as follows, in an affidavit, in regard to the foregoing affidavits of Professor Morton and Mr. Howe: “I have read the affidavits of Professor Henry Morton and Robert J. Howe. I understand how Professor Morton máde his mixture of nitroglycerine and gunpowder, in imitation of that described in the report of Mr. Turly, in Dingler’s Journal of 1864. I have made and further tested Dr. Morton’s mixture, to ascertain whether his opinion was correct, that this mixture was a safety one—as safe as the powder made by the defendants. I find it is not. I experimented with two kinds of gunpowder. In one case I used common blasting powder. In the other I used the Laflin & Rand Orange Ducking Powder—a powder closely resembling that used by Professor Morton both in structure and size of grain. The proportions of nitro-glycerine and gunpowder were the same in each case, and the same as Professor Morton’s, to wit, 28% parts, by weight, of nitro-glycerine to 71% of gunpowder. I placed these mixtures upon several thicknesses of paper and allowed them .to remain in a room having a temperature of 75° Fahrenheit for 45 hours, and then weighed them. I found they had lost almost two-thirds of their nitro-glycer-ine, the same having drained out of the mixture and became absorbed into the paper, going through ten thicknesses thereof. * * * This mixture is not a safety one, nor is it dynamite,” (meaning, the compound of No. 5,799,) “or the same thing as that made by the defendants. It is leaky. If it should be packed in paper cartridges, and these cartridges be packed in wooden cases, and be carried in cars, as is done with the powder made by the defendants,. nitro-glye-erine would drain from it and run into the springs, journals and other machinery beneath and upon the wheels and rails, as was the case with the leaky dualin at Worcester, Massachusetts, and the result would be the same as in that case—the entire cargo of powder would be exploded; whereas, the powder made by the defendants is thus packed and transported without the slightest danger of explosion from this source, because it is not leaky. The mixture in the Turly experiment was not made according to the rules of the dynamite patent,” (meaning No. 5,799,) “but the defendant’s powder is, to wit, so much nitro-glycerine is put in as will make the mixture an efficient explosive, and be retained without leakage, and no more. The leading rule for making the old mixture, as stated by Turly, is, that so much nitro-glycerine was poured in as could find room in the interstices of the powder. I tried this also, and found the mixture much more wet and leaky than the others above described. The reason why the old mixture was put into zinc cases instead of paper ones or directly into the bore hole, was because it was leaky and had to be treated like liquid nitro-glycerine. I have carefully studied the French patent of 1863, the English one of 1864, and the memoranda filed in the American patent office in 1865,” (the last is a part of the contents of the file wrapper in the matter of the patent granted to Nobel, No. 50,617, October 24th, 1865, for “substitute for gunpowder,” and being the original of reissues, Nos. 4.818, division D, and 4,819, division É, both dated March 19th, 1872,) “being all the evidence, except the Turly report, referred to by the defendants herein as either anticipating the dynamite invention or tending otherwise to invalidate it. My views as to the old mixtures, and some of the grounds for them, are as follows: I regard them as really merely
In reply to the foregoing affidavit of Mr. Varney, the defendants produced the affidavit of Charles Leibshner, to show that the Swedish gunpowder mentioned by Turly must have been an uncompressed, unglazed, saltpetre powder, and that the gunpowder used by Mr. Varney, in his experiments, was a compressed and glazed powder, so that the former would be a better absorbent than the latter. The defendant Howe also makes an affidavit to the effect that unpressed powder is comparatively loose, porous and absorbent, and would readily absorb and retain 30 per cent, of nitro-glycerine, while pressed powder is hard, compact and non-absorbent; and that he believes the Swedish gunpowder of the Turly article was uncompressed, unglazed gunpowder. Professor Morton also makes an affidavit, in reply to that of Mr. Varney. He says: “I have examined what I understand to be the powders named by Mr. Var-ney, namely, the ‘common blasting powder’ used in this vicinity at present, and the ‘Laf-lin & Rand Orange Ducking Powder,’ and find them to differ in a very essential respect from the powder used by me in the experiment mentioned by me in my said previous affidavit, and from the powder which I believe to have been used in the experiments recited in the Turly extract. That is to say, these powders, used by Mr. Varney, are extremely hard and compact, and not porous, or capable of absorbing a fluid, and are, moreover, highly glazed with black lead; while, on the contrary, the powder which I employed in my experiment, and which I believe to be that described in the Turly extract, was a powder made without compression, in the manner in general use long ago, and, consequently, light, porous and eminently absorbent. I repeated the experiments with these powders as described by Mr. Varney, and found that, when they were mixed with nitro-glycerine in the proportions named, they produced by no means dry powders, but, on the contrary, refusing to absorb the nitroglycerine, the grains of powder were simply drenched on the outside with nitro-glycerine, which ran from them into the vessel in which they were mixed, or drained from them into the paper on which I spread a
To those affidavits the plaintiff replies by several affidavits. There is an .affidavit of T. P. Shaffner, setting forth, that, during the year 1864, he was engaged by the Swedish government, at Stockholm, in experimenting with explosives, and was well acquainted with the powder mentioned in the Turly article as being used in the experiments of Nobel, and knows that that powder was compressed and was very hard; that, although he has been acquainted with different kinds of powder, both in this country and in foreign countries, from long before 1864 down to the present time, the powder referred to in said article as having been used in the experiments of Nobel was the hardest powder he ever handled, and was, also, a highly glazed powder; that it was much harder than any blasting powder he has ever known; that Turly, in said article, says: “After the cartridge is filled with powder and oil, it is tightly closed with a stopper of cork, twenty millimetres long. It will be better to solder the cartridge;” and that it is perfectly clear to his mind, that the use of the cork stopper (“tightly closed”) and of the solder, was to keep the nitro-glycerine from leaking out, for, the article says, that “as much nitroglycerine is poured upon it as can And room in the interstices of the powder.” There is also an affidavit of John Schrader, to the effect, that he poured upon some medium sized grains of the powder in a vial, as much nitro-glycerine, at about 70° Fahrenheit, as could find room in the interstices of the powder; that the powder became saturated in about three minutes; that the powder was represented as the kind used many years ago, being made in stamp mills, and not either pressed or glazed; and that it is very soft and absorbent, but, like all absorbents, when saturated with nitro-glycerine in the manner above described, the mixture is leaky, and is substantially as dangerous for handling and transport as pure nitro-glycerine. There is also an affidavit of Alfred Mordecai, the author of “Report of Experiments made at Washington Arsenal, in 1843 and 1844,” published in 1845. He states, that the experiments described in that Report were made, and the Report was printed, under his immediate superintendence; that the powder therein mentioned as Swedish musket powder was part of a sample of gunpowder brought from Sweden in 1840, by a commission of officers of the ordnance department of the United States, of whom he was one; that the powder is mentioned in the report of the commission as “a sample of gunpowder from the royal manufactory;” that It was contained in a sealed glass bottle; and that it is correctly described in said “Report of Experiments” as “musket powder, glazed, grain very hard, fracture slaty.” It is also shown, by various European books, that powder is described, in 1S42, as being pressed in a hydraulic or screw press, and smoothed or polished, to make it dense, and to take off its rough surface, splintering edges and corners, and to make angular powder round; that powder is described, in 1850, as being submitted to a pressure of about 75 tons to a superficial foot, and made hard, and then glazed, with the result of giving an equal degree of density to the grgins, and a polish to their surface, and rendering the powder less susceptible of absorbing moisture; and that it is described, from 1807 to 1861, as being pressed and glazed.
To such affidavits the defendants reply. Oarll Dittmar says, that the powder generally used for all purposes, on the continent of Europe, in 1864 and 1865, was loose, porous and absorbent in character, capable of absorbing 30 per cent, of nitro-glycerine, more or less; that, as a general thing, no hydraulic or screw presses were used in the manufacture of gunpowder, on the continent of Europe, prior to 1865, nor up to 1869; that the structure of the powders made in this country, at the present day, which have been subjected to the pressure of powerful hydraulic or screw presses, is essentially different from that made with the stamp mills and without pressure, the former being hard, compact, and slow of absorption, and the latter light, porous, and readily absorbent; and that he has no doubt that the powder alluded to in the Turly article as “common Swedish gunpowder” was a loose, porous, absorbent powder, uncompressed, and that the nitro-glycerine, used in the proportions cited by Turly, was all taken up by the powder
The Turly article starts out with stating, that what Nobel had invented and patented before January 1st, 1864, was an improvement which made ordinary powder, for blasting and shooting, considerably stronger by adding to it nitro-glycerine. This evidently refers to Nobel’s specifications of September, 1863, in the English and French patents to Nobel, referred to in the Band case; and the article of Turly alludes to no other feature of the compound made of nitro-glycerine and gunpowder, except that it is stronger in its effects, when exploded, than ordinary powder. The only place in the Turly article where any suggestion is made .as to the percentage, in weight, of the added nitro-glycer-ine, is in the account of the blasting experiments. The description manifestly is narrating an experiment where the cartridge is filled with the two substances at the bore hole and then immediately used. There is no suggestion of a resulting dry powder, capable of transportation, or of any thing but a wet mixture, in a vessel which is to be tightly corked, because it would otherwise allow the nitro-glycerine to leak out, when it is turned with the cork downward, in which position it is inserted in the bore hole. The cartridge is then imbedded in gunpowder in .the bore hole, and the gunpowder is fired by a fuse. The description is entirely insufficient as an anticipation of Noble's invention. All the speculation indulged in as to what the Swedish cannon powder was, and all the experiments to show that a powder which is assumed to be what that was, will, with the addition of the indicated proportion of nitroglycerine, make a dry compound, amount to nothing, in the face of the fact, that the article does not suggest that the blasting compound was a dry powder, or a safety powder, or such a compound as the patent sued on describes. The prior description, to invalidate the patent, must be such as to show' that the article described in the patent can be certainly arrived at by following the prior description; and it is not enough to show, that, by the lucky accident of taking gunpowder of the proper quality, a compound may be obtained which is unlike that indicated by such description. By the light of •what Nobel has taught in the patent sued on, much can now be asserted to be seen in what ■was published before, which.no one ever, in fact, saw in it before the original of the patent sued on was taken out. There is no evidence that any one, from the Turly article, or by any method supposed to be described in it. made, before the invention in question, as patented by Nobel, in the original of the patent sued on, was made by him, the safety powder which constitutes that invention. So far from this, the Turly article starts out with the assertion, that a mass of liquid nitro-glycerine is quite harmless in and of itself, and that its employment has no greater danger than that of common powder. The memoranda referred to by Mr. Varney, in his affidavit, show, in common with the English and French patents to which he refers, nothing more than attempts by Nobel to mix gunpowder with nitro-glycerine, and then to burn the nitro-glycerine by igniting the gunpowder. After that, he discovered that nitro-glycerine could be exploded in a mass, under given conditions, by detonation, and then its liability to accidental explosion in mass by concussion in handling and transportation was observed, and then followed the invention we are considering.
In every view the case for the plaintiff Is such as to warrant the granting of a preliminary injunction, in this case, and the denial of the motion to vacate the injunction against the Neptune Powder Company.
