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(274 F.) ant. If so, the plaintiff must work out its right to forfeit through the defendant's right to recall the books, and will be enjoined from its proposed course of seizing these books in the hands of the defendant's customers. There is an especial ground in equity for this, because, while such violence would be extremely disastrous to the defendant's business, it could not possibly benefit the plaintiff if the defendant recalls the books within a short time.
Settle decree on notice.
PERMUTIT CO. v. HARVEY LAUNDRY CO. et al.
(District Court, W. D. New York. June 16, 1921.) 1. Patents w69—Foreign publications, to anticipate, must give full descrip
Foreign publications, to constitute anticipations of a later patent, must disclose a complete and operative structure, and the description must be sufficiently clear, definite, and understandable to enable persons skilled in
the art to construct it. 2. Patents 328—1,195,923, for a water-softening apparatus, held valid and
The Gans patent, No. 1,195,923, for a water-softening apparatus, consisting of a filter device in which the water is passed through a zeolite bed, with the result of making it absolutely soft, and also of means for restoring the zeolite when exhausted by flowing with a salt solution, held
not anticipated by prior publications, valid, and infringed. 3. Patents mw 154–Disclaimer held valid.
A disclaimer filed some three years after issuance of a patent, the only
effect of which was to limit it in a single feature, held valid. 4. Patents @ww112 (3)—Issuance raises presumption of invention.
The rule that a doubt as to invention is to be resolved in favor of the patent is especially applicable in a case where the commercial utility of
the device is beyond dispute. 6. Patents en 62—Anticipation must be proved beyond reasonable doubt.
The burden rests on the party alleging it to prove anticipation beyond a reasonable doubt.
In Equity. Suit by the Permutit Company against the Harvey Laundry Company and the Refinite Company. Decree for complainant.
Philipp, Sawyer, Rice & Kennedy, of New York City (James Q. Rice and M. C. Massie, both of New York City, of counsel), for plaintiff.
Livingston Gifford, of New York City, John F. Stout, of Omaha, Neb., and Edward F. Colladay and David P. Wolhaupter, both of Washington, D. C. (Stout, Rose & Wells, of Omaha, Neb., and Shire & Jellinek, of Buffalo, N. Y., of counsel), for defendants.
HAZEL, District Judge. This is a suit in equity by the Permutit Company against the Harvey Laundry Company, a user of the apparatus in question, and the Refinite Company, intervener and manufacturer thereof, to enjoin infringements of letters patent No. 1,195,923, issued on August 22, 1916, on application filed August 5, 1911, to Dr. Robert Gans, of Pankow, Germany, who assigned the patent to the J. D. Riedel
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Aktiengesellshaft of Berlin, Germany; the latter afterwards assigning to the plaintiff.
The patent relates to an apparatus for softening water by using a mineral substance of relatively small grains of zeolites or hydrated alumino-silicates and their exchangeable bases. In their natural state zeolite grains are found in the soil. Their composition consists of silicates of alumina sodium, potassium and calcium, and they possess an appetite for lime and magnesia. Upon water passing through them, the lime and magnesia become separated. Their natural existence and inherent chemical properties were discovered in the year 1849, and afterwards the discovery was made that they were capable of absorbing the lime and magnesia from the water—the constituents that make water hard-and of exchanging their silicate bases for new bases and returning to their first bases upon giving up the lime and magnesia and again obtaining sodium salt. The exchange of silicate bases includes the capacity of adapting them in an operative apparatus for frequent and continuous use. There are different kinds of zeolites; those found in the soil and those prepared by melting together the various constituents and hydrating them. Plaintiff's zeolites are of the latter class while defendants' material, known to the trade by the name of "refinite," after mining is baked and crushed for utilization. The patent, though limited to a zeolite softening apparatus is concededly not limited to any particular class of zeolitic material.
In 1906 the patentee (Gans German patent, No. 197,111) invented a form of artificial zeolites by fusing the constituents, viz. clays and soda ash, and hydrating them, to which he gave the arbitrary name of "permutite," and he found out that hard water could be continuously softened by filtration through them, and that the artificial zeolites could be regenerated by washing them with a salt solution after the exhaustion of their softening bases. Such discovery, however, was not immediately commercially useful, because the device then used for softening water was defective and, as hereinafter stated, failed to attain the desired result.
At such time those skilled in the art believed, and the possibility was suggested, that zeolites would even prove useful for obtaining gold from sea water, or manganese from water, or purifying sugar juices, as well as softening hard water for domestic and industrial purposes. But such ideas have not come to pass, except that for the latter use they have, in recent years, become highly useful. The utility of the apparatus in suit for producing absolutely soft water is undisputed.
To carry the invention into effect, a cone bottom cylindrical casing is described in the specification, closed at the top by a cover plate (b). Inside there are several perforated plates one at the upper end carrying a layer of gravel or quartz through which the water is first filtered to remove the dirt, while the other, lower down in the casing, supports a bed of grain zeolites through which the water passes; the bed having a free space or distance at the top so that the varying sized grains may adjust themselves when water is admitted. The specification says that the water to be softened passes downward from the supply pipe (k) at the top of the casing, through the inlet valve (m) and inlet pipe (1) to
(274 F.) the filter layer (e); thence through the zeolite bed (f), where the lime and magnesia are detained; thence through the supporting bed of gravel or quartz (g), to the water collecting chamber (h), and through the perforated screen (i) to pipe (j) located at the bottom of the casing. When the zeolites are exhausted the inlet valve (m) and outlet (n) are closed, and common salt is run through the filter valve (0) for restoration to their original condition; the salt solution and lime of magnesia entirely leaving the casing at (1) and waste valve (P) at the bottom. There are described means for back-washing the zeolites to completely remove particles of brine remaining from the regeneration and slime or other impurities from the filter. Such means consist of passing the water upwardly through the zeolite bed and filter and to the outlet (). A stirring mechanism is also described but it is not involved herein. The proofs show that water of zero hardness by the use of zeolites was first produced in large quantities by the apparatus in suit. At such time, concededly, there were known structures for softening water (not zero
Iness), but all operated on a different principle, and in the main comprised apparatus of the so-called precipitation type.
Claims 1 and 5 alone are involved herein. They read as follows:
"1. A water softening apparatus comprising a casing, a filter bed consisting of a layer of sand or quartz and a layer of zeolites or hydrated alumino-sili. cates disposed on the layer of sand or quartz, means for permitting the passage of water through the casing, means for cutting off the supply of water on the exhaustion of the zeolites, and means for passing through the casing a solution of a salt capable of regenerating the zeolites.
“5. Water softening apparatus comprising a casing, a filter bed consisting of a layer of zeolites or alumino-silicates, supporting means for said layer, means for permitting the passage of water through the casing, means for cutting off the supply of water on the exhaustion of the zeolites, means for supplying and passing into the casing a solution of a salt capable of regenerating zeolites and means connected to the lowest point of the casing for removing the salt solution so introduced."
Nothing is said in the patent as to any novelty in either a downward or upward flow of the water in the apparatus, but on February 26, 1920, during the pendency of this action, the plaintiff filed a disclaimer limiting claim one to means for the downward passage of water to be softened through the layer of zeolites. Thus limited, claim 1 has these elements in combination:
(1) Cylindrical casing.
(4) Means for passing the water to be softened downwardly through the casing.
(5) Means for cutting off the supply of water on exhaustion of the zeolites.
(6) Means for passing through the casing a solution of a salt capable of regenerating or reconverting the zeolites.
Claim 5 specifies means for removing the salt solution after the regeneration of the exhausted zeolites at the lowest point of the casing.
The defenses are want of novelty anticipation by prior foreign publications, noninfringement, and invalidity of the disclaimer.
It is contended at the outset by defendants that the disclaimer substantially admits that the patentee was not the first inventor or discover
er of the apparatus in question, or its substantial counterpart, and that it was filed to avoid anticipation by the prior art and foreign publications, and, in any event, that the flowing of the water in an upward or downward direction in the apparatus and through the zeolites were well-known equivalents.
[1,2] The first question is whether the patentee was the first to successfully produce absolutely soft water in the use of zeolites by the adaptation of his patented apparatus. In answering it must first be determined what effect shall be given to the prior German patent, No. 197,111, dated April 6, 1908 (application October 28, 1906), and the later American patents, Nos. 943,535-960,887, and reissue, No. 13,686, to the inventor of the patent in suit, and assigned by him to J. D. Riedel Aktiengesellshaft, and the prior foreign publications—the Centralblatt article of September 7, 1907, containing the lecture or writing of Dr. Feldhoff, and the Zeitschrift article of May 28, 1909, by Dr. Siedler, together with his lecture, delivered in London, copies of which were circulated there and in this country more than two years before the application in suit.
Inasmuch as controlling importance is attached by defendants to what is described and illustrated in the prior foreign publications, the rule as to them may be stated here. Foreign publications, to constitute them anticipations of a later invention, must disclose a complete and operative structure, and, indeed, the description given must be suificiently clear and definite and understandable to enable persons skilled in the art or science to which the invention or device belongs to practice and construct it. Seymour v. Osborne, 11 Wall. 516, 20 L. Ed. 33; Badische Anilin & Soda Fabrik v. Kalle (C. C.) 94 Fed. 163. Drawings or exhibits, if any, shown in connection with prior publications, must be considered with the published description of the device, which the law requires must be in "full, clear, and exact terms," so that those desiring to manufacture the article or reduce it to practice may do so without either independent experiments or the exercise by them of the inventive faculty. If the prior description and drawings relied on do not conform to that rule, a subsequently issued patent in this country for the same invention is not defeated. Hanifen v. Godshalk Co. (C. C.) 84 Fed. 649. In Robinson on Patents, vol. 1, $ 329, it is stated that the invention described in the prior publication must be identical in all respects with that whose novelty it contradicts.
Such being the law, the assertion that the prior patents and foreign publications disclose the Gans patent in suit requires careful scrutiny of the evidence in support thereof. Did the prior publications and lectures teach the skilled in the art how to continuously produce absolutely soft water—that is, water of zero hardness—by flowing water through a zeolite bed contained in a filter device, or in any known container available to the public? The articles and lectures of Drs. Feldhoff and Sied. ler, who were skilled chemists in the employ of the Riedel Company, fairly establish extensive advertising of the Gans process for softening water by filtration. Not only was the process and its various uses in industrial fields extolled and exploited by the Riedel Company, but the mariner of its utilization for purifying sugar juices and softening water,
(274 F.) and the particular filter with which the result was to be obtained were spoken of in such positive terms that softening water by zeolitic action was seemingly a very simple accomplishment.
Dr. Feldhoff, in submitting the result of his laboratory experiments, not only described an apparatus, but he used a sketch in connection therewith. He asserted that, to obtain soft water, the hard water is filtered in a casing through zeolites which, after exhaustion of their bases, are regenerated by washing with sodium chloride. Inlet and outlet valves attached to the casing were sketched and described by him, together with connections extending to a brine tank and a mass of gravel or sand in the filter for supporting the “permutite,” that was placed between two perforated plates at the top, surmounted by a layer of excelsior, shavings, or gravel. In the tank or space near the top plate of the casing there was an outlet connection with pipes for passing the waste of the brine solution in back-washing. He specified the means for admitting hard water through pipes in the bottom of the casing, for the purpose of flowing the water upwardly, first through the supporting bed of gravel, then through the zeolites or permutite and excelsior, shavings, or gravel to the outlet. It was explained that, upon passing water through the zeolites, the sodium in the water exchanged for magnesium, with the result that the hard water became soft; that regeneration of the exhausted zeolites occurred upon introducing into the casing a salt solution, by means of a two-way valve positioned at the bottom of the casing, and operating, not only to disconnect the water, but also to connect a pipe for passing the salt solution upwardly to reverse the exchange of bases. In his laboratory experiments Dr. Feldhoff put the zeolites in a vessel and conducted the water downwardly, and upon doing so he said the water would be softened, and the regenerating solution could also enter the vessel at the top.
In the Zeitschrift article of May 28, 1909, Dr. Siedler referred to using a common filter for imbedding the permutite between "wood, wool or gravel,” and said that the lime and magnesium salts normally in hard water would be completely removed by the operation; that the material would be regenerated by passing through the filter a salt solution, that this could be repeated as often as desired without impairing the zeolites, and that hard water would soften to zero degrees. In his lecture, delivered in London, he stated that the construction of the filter was to be determined by local conditions, and that it might be arranged either for an upward or downward flow of water. I find from the evidence, however, that the prior publications were not in fact a disclosure of plaintiff's apparatus. The differences in the prior description and the apparatus in suit, true enough, were simple, and even seem to be of a minor character; but they nevertheless were consequential, and by their adaptation an apparatus eventuated by which absolutely soft water is produced by the use of zeolitic material.
The filter device of the prior Centralblatt publication was defective, and because of its defective construction was inoperative and incapable of being put into practical use by the mere exercise of mechanical skill. The plaintiff's apparatus, as the specification of the patenț clearly shows, does not assemble the material parts, so as to confine gravel or excel