207 F. 956 | D. Mont. | 1913
Complainants are owner and its licensee oT United States patent No. 835,120, for improvements in a process of ore concentration, issued on an application filed May 29, 1905, by said owner’s grantors, Messrs. Sulman, Picard, and Ballot, of Uondon, England, joint inventors and patentees, and this suit is for infringement of certain claims of said patent by defendant, a former employe of said owner, and by it trained in the process. The defenses are various grounds of invalidity, hereinafter noted so far as of merit and seriously urged, and noninfringement.
The invention claimed, in general terms, may be said to be the discovery, in March, 1905, that if a very small and appropriate quantity of an oily substance, ranging around .02 per cent, to .5 per cent, of the weight of the ore he added to a pulp of water and finely pulverized ore (the slimes being helpful and most easily recovered), and the whole vigorously agitated and thereby thoroughly aerated by great and excess quantities of air, the metalliferous particles are oiled and adhere in a complete envelope to or of bubbles of the air, and rise to the surface of the mixture on cessation of agitation, forming a strong, coherent, and stable froth easily removed. The process may be aided by heat to more quickly and effectively disseminate the oily substance through the pulp, and bring it into contact with the metalliferous particles, and may also he aided by a mineral acid or salt up to 1 per cent, thereof of the weight of the ore to increase the preferential affinity of the 'oil for metal over gangue, but not sufficient acid to cause chemical action on the metal, nor is it intended to generate gas for flotation. The patent specification is full, complete, and clear to those skilled in the art, and describes one well-known apparatus of mixing vessels, spitzkasten, etc., and the operation of the process therewith.
The claims are general and particular, all calling for oil and agitation to produce a froth, some defining a range of quantities of oily substance, some likewise of acid, some specifying oily substance alone, some oily substance in various combinations with heat or acid anil with both. The main defense of invalidity is' lack of novelty and anticipation. In reference thereto it appears from the evidence that the use of oil, air, and agitation in ore concentration, separately and in various combinations, and with other ingredients, was well known to the art prior to the discovery of the process in suit. To briefly summarize the prior processes, some of them were bulk oil processes, using oil in such large quantities that, il taking up the metalliferous panicles in the pulp the mass thereof was yet sufficiently buoyant to float to the surface of the water, the gangue sinking. Concentration being more essential for lean ores, economy is the foundation of success ; so other of these processes reduced the amount of oil to a degree where it was not sufficient of itself to float the metal, and to aid therein air, steam, or gas was injected to render the mass spongy. Another
For anticipation, defendant relies most upon Froment’s patents and working description. They date from 1902 and 1903. The process thereof is one wherein the ore is carefully crushed in two operations so as to minimize slime, and is first deslimed, for that the slime, is “too fine to be treated,” quoting Froment. Thereupoxi to a mixture of deslimed ore and water, oil axid carbonate of lime (which xnay be lixnestone) are added proportionate to the weight and richness of the ore, from 1 per cent, of oil in weight of the ore for ore contaiixing up to 5 per cent, of metal, to 3% per cent, of oil for ore containing 50 per cexit. of metal, and about 1 per cent, of carbonate of lime in weight of the ore, or 2% per cent, in difficult cases, or more, and in like proportions to the oil for richer ore, it requiring more gas. Agitation in mixers containing two stirrers revolving in opposite directions and for a few xnixiutes, or about 10 minutes, at about 300 revolutions per xninute, the "chief point” being that all metallic particles are brought “into thorough contact with the oil,” is described by Froment. The mixture is then discharged into a vat containing a perforated coil through which sulphuric acid is introduced and in quaxxtity about cent, per cent, of the cax'bonate of lime, and a rake therein txxrns slowly and about 10 to 12 revolutions per minute, to pi-event- the ore collecting-at the bottom in too compact a mass-.
Steam may also be-injected through said coil to assist the reaction, but it is necessary in only cold countries. The reaction of the acid generates gas which in hubbies carry the sulphides to the surface, there skimmed or pushed into a hopper. Such thereof as fall back and sink are otherwise recovered. A large proportion of the oil may be recovered from the concentrates in a press. Froxnent’s patents refer to the use of "gas of any kind,” that the bubbles will “become covered with an envelope of sulphides,” and, rising to the surface, “form a kind of metallic magma,” and that the “formation of these
Complainants’ process has, in instances, displaced some of the prior, and has firmly established itself as a new and valuable method of ore reduction. The evidence shows many and large plants thereof, built or building, in widely separated parts of the world. Its successful operations, practically from discovery, have recovered, and largely from waste and tailings, values aggregating near $9,000,000, and at a profit of near $4,000,000 to the patent owner and its licensees. Detailed comment in respect to anticipation is little necessary save to Froment. Looking to the evidence, and therefrom contrasting his process with complainants’, Froment’s requires several times the quantity of oil that does this in suit, both by examination of the patents and working description and by tests in evidence. Froment crushes the ore in two operations, and deslimes it before treatment because the slime is too fine to be treated by his process, while the process in suit needs but one crushing operation, and finds slime advantageous and most easily recovered. Froment employs carbonate of lime; the process in suit does not. Froment requires acid, and in greater quantity and for a different function than does the process in suit, which latter may or may not use acid. Loth may use heat, and both require agitation, Froment, agitation only to disseminate the oil, the process in suit for that purpose, and also to aerate. Froment’s result is by flotation by gas generated in situ; this in suit is by flotation by air introduced by vigorous agitation. Froment’s product is like unto a magma, a spongy, pasty mass of oil and metallic particles, and more or less gas bubbles, while this in suit is a froth of oil and metallic particles and air bubbles. Froment’s requires oil in such quantity that he deems it worthy of recovery from the concentrates so far as it can be; this in suit so little oil it disappears, is not sensible to sight or touch upon the concentrates, but only to analysis. In Froment’s it would seem that the metallic particles are floated like the basket of a balloon, while in tliL, like the very envelope of a balloon. Froment’s is costly, while this is cheap—relatively. And from the evidence it would seem that Froment’s process would fail in practical operation, while this in suit has
One of the complainant’s experts, Dr. Adolf Diebman, of London, characterizes Froment’s product as not a froth but a magmá, and his process as one involving the principles of skin flotation assisted by bubbles of carbonic acid. He further testifies that in the process in suit is produced a result which was never obtained before; that the froth is of a peculiar character, “consisting of air bubbles which, in their covering film, have the minerals embedded in such manner that they form a complete surface all over the air bubbles”; that though “the very light and easily destructible air bubbles are covered with a heavy mineral, yet the froth is stable and utterly different, so far as this property is concerned, from any froth known” to him; that “it appears as if the minerals were protecting the tender air bubble like an armor guarding it,” so that “the froth has a long life,” and one is “tempted to say'it is permanent, at least as far as metallurgical operations are concerned”; that he himself had “seen a froth standing for 24 hours without the least change having taken place”; that a “very striking difference between the previous processes and tire process of the patent in suit is the difference between failure and success”; that “the simplicity of the operation as compared with the prior attempts is startling.”
Another of complainants’ experts, Dr. Charles F. Chandler, of New York, testified that the process in'suit is new and surprising; that “there is nothing like it disclosed in the prior art.” These and other learned gentlemen gave at length reasons for the foregoing and like views and conclusions. Defendant’s expert, Dr. Eugene A. Byrnes, of Washington, is to the contrary.
In this suit the doctrine of equivalents has no application. The process in suit is so clearly new that no exhaustive discussion of facts, cases, or law is necessary to distinguish it from other processes, or to demonstrate its novelty. The patentees herein discovered a new, cheap, simple, practical, and useful way or process to combine oil and air, and by agitation to float and secure the metallic content in ore concentration. The argument that the prior state of the art was such that to any one skilled therein the process in suit at the time of its discovery was obvious may, under the circumstances, be well answered by the cases:
"Kuowleclge after the event is always easy. * * But the law has other tests of invention than subtle conjectures of what might have been seen and yet was not.” Rubber Co. Case, 220 U. S. 435, 31 Sup. Ct. 444, 55 L. Ed. 527.
See Expanded Metal Case, 214 U. S. 381, 29 Sup. Ct. 652, 53 L. Ed. 1034.
And to the argument that in operating Froment, in rightful economy and decrease of oil and in rightful omission of carbonate of lime in treating ore containing it in sufficient quantity, his process would approximate this in suit and arrive at a like froth, and hence lack of novelty in' the latter, the response is that the fact that infringement may be easy does not impeach an otherwise valid invention, and that if Froment’s methods are modified until they approximate complainants’ and produce a like product, the px-ocess is no longer Froment’s but is complainants’. At the argumexit, with apparatus a number of tests and demonstrations were made in the presence of the court, both of the process in suit, of Froment’s, and of others of the pribr art, of much assistance in arriving at conclusions herein.
Upon all the evidence the court is of the opinion the defexrse of lack of novelty and anticipation is not established.
It is worthy of note that during the taking of testimony complainants repeatedly offered to repeat, in the presence of defendant and his counsel, any of the tests or experiments testified to by their experts. They also repeatedly objected to tests, experiments, and apparatus and operations of defendant, unless an opportunity was offered complainants to repeat the experiments, and unless defendant furnished like materials therefor, and unless the apparatus were offered in evidence or access to them was given complainants. Save for some of defendant’s materials furnished complainant, it does not appear to what extent, if at all, defendant obviated these objections. Otherwise the consideration of the case might be affected by them. See Steel Co. Case, 185 U. S. 420, 22 Sup. Ct. 698, 46 L. Ed. 968.
A decree in accordance herewith, as demanded in the bill of complaint other than for treble damages, will be entered; an accounting to be had before the master.