Evening journal., 1916-09-30
court DECISION
MAY COST COOPER
S1OO,OOO,OOO
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Continued from First Page)
which is most far-reechirg in its appli-
cation to copper producing companies.
Counsel in the case included Henry ID.
Williams and William Houston Kenyon,
both of New York city, and Thomas r.
Bayard, of this city, for the complain
ants Thomas +. Sheriden and Walter
A. Scott. Of Chicago, and John +. Neary,
Of this city, appeared for the defendant.
Judge Bradford in the first portion
OF his opinion enters into a scientific
discussion OF the various extraction
and separation processes in the pro.
ductiOn OF copper. He analysed the
processes and patents at issue in the
case before Linn at great length.
After discussing the air fiotation
process Of separation and refinement,
Judge Bradford added:
One Of the principal questions in
the case Is whether patentable inven-
tion was involved in the discovery
that the minute proportion Of per
cent, Of oil to the ore was sufficient
for commercially successful opera
lions in ore concentration. On this
question | had some doubt during the
presentation OF the case. But that
doubt has since been removed. Sui
man, Picard and Ballot had for more
than two years prior to March 1905,
been interested I'm conducting ore con-
oentration under what was known as
the 'Cattermole process. and had
been seeking TO improve the same in
such manner as to render It more eff
ficient and less expensive There
we're a number Of patent relating to
this process"
Judge Bradford then reviews in de-
tail the prior art patents. The pat
entees, II. II. Sulman, II. r. Picard
and John Ballot. shortly before
March, 1905, instructed A. Howard
Higgins, one OF their engineers, to
investigate by experiments certain
points in their bearing upon the Cat
termOle process. On March 16. 1906.
Higgins made his report Of his expert
ments to the effect that by reducing
the amount OF oil from six per cent.
OF the weight of the ore to a fraction
OF one per cent. the mineral instead
of forming granules and sinking to
inc bottom, came to the surface in the
form or froth. In regard to this
discovery, Judge Bradford said:
There was, l think, patentable in
venuon in the discovery thus made
in March, 1905. Prior to that time
there had been no suggestion in the
art that the proportion OF / per cent.
of oil to ore or any other fraction OF
! per cent. Of oil to ore would or
might result in successful concentra-
ton. Further, the result reached
was an utter surprise. Experiments
were conducted with reference to the
Cattermole process, and all OF the Cat
termole patents required The forma-
ton and sinking of granules contain
ing the metallic particles, and mot
their 1otation. The teaching of that
process was that the metallic PARTICLES
should go TO the bottom and that of
the first patent in suit that th,,y
should go TO the top. But while tho
ascertainment that such a minute pro-
portion OF oil would effect Nuccesy-
ful concentration of ore through a
Notation process was a disc overy. n
was nevertheless OF such a Character.
viewed with respect to- the circum-
stances under which Il was made. as
to involve invention and colfer pat
entability The statutes provide for
patenting new and useful inventions
and discoveries, but a bare discovery
unaccompanied by the exercise OF
any invention In reaching IL or utiliz.
ing II 70 practice would not Justify or.
support a monopoly in the discovery.
In the present case, However the
tacts disclose not a bare discovery,
but a discovery coupled " ith iven-
ton in usefully applying Il. In such
cases patents properly may be grant
ed. The defendant lays much stress
upon the proposition that the reduc-
ton OF the amount OF oil in tile pro-
cess for the concentration Of ore did
not and could not involve patentable
invention, but only an ascertalnment
OF the proper degree in which oil
should be used which was readily
discOverable by any one competent
10 conduct or superintendent n pro-
cess Of ore concentration: and fur
Their, that motives OF economy would
naturally have suggested reduction
In the quantity OF oil to the extent Of
its excess over what was necessary
for the accomplishment Of the pur-
poses OF the process. But if such a
reduction was obvious, why is il that
ii was never made prior TO the dis
cOvery in question? The fact that
economy required the use Of the least
quantity of oil sufficient for the con-
duct OF the process affords cogent
evidence that the feasibility OF effect
ing a reduction was not obvious, but
properly the subject of patentable in
rapffov NJ ora TO-DAY .tndavcroudc
how the use OF only per cent. ot oil
operates to secure the mineral froth
Of the first patent in suit. This Is tes-
titled 10 by the experts and is admit
ted on both sides. II the principle of
operation OF the discovery is insolv-
able to the human mind today it could
not have been predicted or anticipated
by the human mind in March. 1905.
The fact that the underlying principle
OF the process was not understood by