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Bradley's involved here is for the use of a pile of ore as a containing vessel for the bath to be electrolyzed, in accordance with the directions of the main patent. It does not seem to me, except as it involves the process described in the main patent, to have any bearing on the question of interference with the Cowles patents. Having thus considered the scope and extent of the Bradley process of 1883, we come now to consider what is the real essence of the Cowles patents. The gist of the Cowles invention is the use of granular carbon or other equivalent resistance material distributed through the mass of granulated ore to carry the current from one electrode to the other, and by its low conductivity or resistance to produce intense heat, not at a single point or in a single line, but throughout the ore, and by the heat thus generated to fuse the ore, and to separate the metal element by the chemical action of the carbon upon the nonmetallic element of the ore, just as iron and other like ores are smelted in a furnace.
The claims of the first or main patent of the Cowles brothers relate, the first one to the fusion of the ore by the process described, the second to its smelting or reduction by the reagency of the same carbon used to generate the heat, and the third and fourth claims are but variations from the second. This Cowles patent was not intended to disrupt the metallic compounds by electrolysis. There is a suggestion in the patent that the current has a disrupting or disintegrating effect of assistance in the reduction and distillation of zinc ores in accordance with the specifications of the patent, like the disrupting effect of the current in the solution. Whether this obscure statement is a blind intimation that electrolysis takes place or not is somewhat difficult to determine. But, even if it is, certainly the main purpose of the Cowles brothers in their patent was to accomplish the reduction of the ores therein mentioned by the chemical reaction of the carbon, and not by the electrolytical disrupting of the ore. It is confidently claimed, however, on behalf of the defendant, and the claim is rested on elaborate expert evidence, that the main agent in reducing metals from their ores by the Cowles process is the electrolytic action of the current after the ore is fused by the heating contact of the incandescent carbon distributed through its pulverized mass. In my opinion, it is immaterial whether this theory be true or not, for, even if electrolysis is necessarily present in the Cowles process as the main and leading agent for its successful carrying on, the claims of the Cowles patents are not at all affected by anythin'g disclosed in the Bradley process of 1883, either in the specifications or in the claims allowed by the department. The only valid claims of novelty in the Bradley process, as we have shown, are of a combination which must have, as part of it, the initial fusion of the dry ore by the electric arc. This was the difficulty which Sir Humphrey Davy seems not to have been able to overcome in the process of electrolysis with internal heating, and this difficulty, if the Cowles process is an electrolytic process, was overcome in it, not by the use of the electric arc, but by the establishment of a continuous current through granulated carbon placed between the anode
and the cathode. In other words, the Bradley process and the Cow. les process, if they both involve electrolysis, and thus cover common ground, do not interfere with each other, because the common ground covered was well known in the history of the art, and was not subject to the monopoly of either.
But much has been said concerning the suggestion in one of the Cowles patents (the one to Alfred Cowles, No. 319,945) that in some cases pulverized ore might alone be used where it is a sufficient conductor of electricity without carbon. This is the only suggestion of the kind in all the five patents belonging to the Cowles Company. It is said that, in furnaces operated with the granulated ore alone without the carbon, we should necessarily have a reproduction of the Bradley process, and therefore that the Bradley process would interfere with the Alfred Cowles patent to that extent. ment is untenable, first because the evidence shows that the suggestion of the Alfred Cowles patent is wholly impracticable. There is no ore disclosed in the record which in its dry state is a sufficient conductor to permit the passage of a current, and, unless the current can pass through the resistance material which is to generate the heat, the process must be a failure. Again, the suggestion of the patent was never embodied in any of the claims allowed. Therefore the Cowles Company, without regard to the Bradley process, would have no monopoly on it, and their patents could not be said to be interfered with in respect of the process which they did not own.
Finally, I do not think that it is by any means clear that electrolysis in the Cowles patents, as they are described in the specifications of the patents, plays any considerable part in the reduction of metals. In the first place, in one of the Cowles patents it is stated that there is no deposit of metal upon the carbon plate which makes the cathode. There has been no evidence introduced to show that this statement is a mistake. If there were any electrolysis between the electrodes, the metal must be deposited at the cathode. Prof. Morton, the chief expert for the defendants, on his examination in chief developed and illustrated a theory by which every two pieces of the granulated carbon lying next to each other in the fused ore constitute an electrolytic pair, and electrolysis goes on everywhere in the bath, wherever two such adjacent granules of carbon could be found. Out of the mouth of this same witness, by the crossexamination of counsel for the complainant, who proved himself both on examination and in the argument to be a learned expert himself, the elaborate and convincing theory developed by Prof. Morton was shown to have but limited application to the Cowles furnaces. His statement in chief gave the impression that the melted ore would find its way and form a film between every two adjacent grains of carbon in the furnace, and that between each two grains thus separated by the film an electric cell would form, and electrolysis would go on; but when counsel for the complainant brought out from the witness the fact that the counter electro motive force needed in each electrolytic cell for the work of electrolysis would require to produce electrolysis in the number of cells which must thus occur in a
Cowles furnace of ordinary dimensions a voltage three or four times that actually used in the Cowles furnaces, he was obliged to admit that the number of cells in the furnace would be much less than that which his answers in chief would have led a nonexpert to suppose. When bis attention was called to the statement in the Alfred Cowles patent that there was no deposit on the cathode of metal, he immediately supposed an aggregation of carbon granules there, so closely united as to prevent the fused ore from finding its way to the cathode, departing thereby from the principal hypothesis of his theory, as originally stated, that the fused ore would necessarily thread its way in between all the loose particles of carbon in the fu
The effect of his answers on cross-examination was to weaken much the probative force of his general statement that the chief agent in reducing metals under the Cowles patents was electrolysis. Prof. Morton did demonstrate that some electrolysis must go on in the Cowles furnace, and this, indeed, was not denied on behalf of the complainant. He demonstrated it by electrolyzing a solution of sulphate of copper with carbon, in which the result of electrolysis was seen in the particles of copper distributed all over the bottom of the glass disk in which the experiment was performed, and not coniineil to the cathode. While these show that electrolysis must go on to some extent in the Cowles furnaces, they do not show that the smelting effect of the high heat and the carbon reagent is not the important and principal means of reducing the metal in the Cowles process.
In one of the papers published in connection with the Cowles process, a Mr. Darrow reports an experiment by the Cowles Company for the purpose of determining whether electrolysis played any considerable part in the Cowles furnaces. His experiment consisted in the operation of the furnaces with a continuous current, and then with an alternating current. It was conceded, at that time, that electrolysis was impossible in an alternating current. Prof. Morton and others question this, but there is no substantial evidence that the theory is unsound. Mr. Darrow's announced result was that there was substantially no difference in the product of the Cowles furnace from an alternating current and from a continuous current. Prof. Morton, from the figures of Mr. Darrow, thinks that there is a wide difference demonstrated. If such a difference could be shown, it would go far to prove the claim now made on behalf of the Cowles Company that electrolysis played a great part in their furnaces, but no such experiment has been attempted since Darrow's, or, if attempted, has not been shown in evidence. On the whole, from the entire record, including the evidence of Prof. Langley and Prof. Haynes, and of Prof. Morton on cross-examination, I conclude that there is electrolysis present as an incidental feature in the Cowles furnaces, but that the presence of carbon, instead of aiding the electrolysis, interferes with it, and that it is by no means an important feature in the reduction of metals under the Cowles patent.
Evidence appears in the record of the operation of the Cowles furnaces at Lockport, N. Y., and these are used to show that electrolysis must go on. One of the chief evidences is said to be the bubbling of the gas at the anode. But on cross-examination of the witnesses it was developed that the operation of the furnaces was a departure from the Cowles method, in that the carbon was only about 10 per cent. of the mixture, and would hardly form a continuous conductor; that the fusion was begun by the electric arc; and that in fact the process described in the Bradley patent was the one which was used.
For the reasons given I am satisfied that the Bradley patent was not intended to be conveyed by the assignment of May 8, 1885, and that it was not, in any view, included within the general terms of that assignment. The finding of the court will be that the valid title of United States patents Nos. 464,933 and 468,148, issued to Charles S. Bradley and mentioned in the bill, is now in the complainant by lawful assignment; that neither the defendant the Cowles Electric Smelting & Aluminum Company nor Alanson T. Osborn has any title to these patents; and that the assignment of them, executed by the Cowles Company to Osborn, and placed upon the record in the patent office, had no effect to carry title to them, and constitutes a cloud upon the title of the complainant. The decree of the court will be that the defendants shall cancel the record of the said assignment by the Cowles Company to Osborn in the patent office, and that the defendants, and each of them, shall be perpetually enjoined from asserting any title or claim of title to the patents described in the bill. The cross-bill of the defendant the Cowles Company will be dismissed, and the costs of the cause taxed to it.
CARTER-CRUME CO. V. ASHLEY et al.
(Circuit Court, N. D. New York. June 26, 1895.) PATENTS–SALESMEN'S CHECK BOOKS-INJUNCTION PENDENTE LITE.
Injunction pendente lite against infringement of the Carter reissue patent (No. 10,359), for improvement in salesmen's check books, will be granted, the patent having but 342 years to run, complainant having built up a large business employing many men and much capital, defendants being small users, the manufacturer who sold to them being a small and recently organized corporation; a decision sustaining the patent having been rendered six years ago, in a case in which substantially the same defenses now relied upon were presented, there having, since such time, been general acquiescence in complainant's rights, and there being little doubt that defendants' book is an infringement.
Suit by the Carter-Crume Company against John W. Ashley and others for infringement of patent. Complainant moves for preliminary injunction.
C. H. Duell, for complainant.
COXE, District Judge. The complainant, as owner of reissued letters patent, No. 10,359, asks for an injunction restraining the defendants from infringing pendente lite. The patent was granted to John R. Carter for improvements in check books used by salesmen. It is dated July 24, 1883. The original patent is dated January 24, 1882. The application for the reissue was filed May 17, 1883. The reasons that induce the court to issue the writ may be briefly stated as follows:
First. The patent will expire in about three and a half years. During the long period that it has been in existence its owners have built up a large and flourishing business under it employing many men and several hundred thousand dollars of capital.
Second. The defendants are small users. The amount involved so far as they are concerned is less than $25. To cease infringing during the pendency of the suit can cause them little inconvenience. On the contrary, should infringement continue it will result in serious if not irreparable loss to the complainant.
Third. The manufacturer who sold the books to the defendants is the American Counter Check Book Company, a West Virginia corporation recently incorporated with very little actual capital and no good will behind it. Little harm can be done by requiring it to desist from infringing until the final hearing.
Fourth. The complainant's patent has been in existence 137 years. During that time various attempts have been made to evade the patent but usually without success. The acquiescence in the rights of complainant during the last four years has been general.
Fifth. In 1889 the then owner of the patent brought a suit in the Eastern district of Michigan against Charles A. Hurlburt and others, and moved for a preliminary injunction before Judge Brown, now Mr. Justice Brown. The answer alleged the invalidity of the patent as a reissue and, substantially, all the defenses which are now re
The court decided that the patent was valid and infringed and would have granted an injunction outright but for the fact that the complainant was guilty of laches in bringing the suit. The order was for an injunction unless the defendants filed a bond within thirty days. It is manifest that the complainant's case is much stronger than it was five years ago. Then, with no previous adjudication of any kind and a much weaker case of acquiescence, Judge Brown thought the patent sufficiently strong to warrant an alternative writ. The complainant to-day presents the case 'of 1889 plus the weight of Judge Brown's decision and five years of peaceful enjoyment.
Sixth. There can be little doubt that the defendants' book infringes the first and second claims of the patent unless they are to be confined to the exact structure described and shown. The court in the Michigan case saw no necessity for a construction so limited. The defendants' book may be an improvement, but nevertheless, it has all the features of the claims. The transfer leaf is not attached, as is the leaf of the patent, but it is "bound in the book” in the same sense that the Carter leaf is so bound. The manner of the binding is not the essence of the invention.
The foregoing considerations present a strong case for an injunotion. This is manifest. The defendants seek to avoid the force of