The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-06-06
BUTTE 8 SUPERIOR Co.
WINS FLO TAT|0N CASE
A DECISION OF FAR REACHING
IMPORTANCE INVOLVING
MANY MILLIONS.

The United States court Of appeals
at San Francisco has reversed the de-
cision of the federal court of Mon
tana in the case brought by the Min
erals Separation company against the
Butte & Superior company for in
fringement of patent, and In which
damages amounting to $4,000, 900
had been awarded against the Butte
& Superior. The decision Of the
appellate courts quotes that of the SUI
preme court of the United States in
the case of the Mineral Separation
against Hyde in which the higher
body pointed out that there were
many Investigators at work in the
field to which the process in the suit
related when the patentees came into
II, and that 1t was while engaged in
study of prior kindred process that
their discovery was made. and con-
tinued
while the evidence In the case
makes 1t clear that they discovered
the final step which converted expert
ment into solution, turned failure
into success Cthe former patents hav-
ing used so much oil as to make its
cost prohibitive). yet the investiga-
tons preceding We're SO informing
that this final step was not a long
one and patent must be confined to
th, h,t nf oil
within the proportions often describ-
cd in the testimony and in the claims
OF the patent as critical proportions.
amounting to "A fraction Of l per cent
on the ore.' Continuing, the circuit
court says:
Amounting to a fraction Of l per
cent on the ore is very far from say
ing amounting to every fraction OF
one thing, every farction is a very
different thing. 1t Is obvious. we
think, that if the supreme court had
meant to extend the scope of the
patent to l per cent of oil on the ore.
as is here contended by the appellees,
II would not have said anything about
fraction of the per cent--certainly
there would have been no necessity
such specific language as it employed
without purpose cannot be justly
imputed to that great tribunal.
That the critical proportions
u,,,ntntipy 20 Al f,.antinn of 1 nor naut
on the ore, so protected by the SUI
preme court in It's decision, does not
include every fraction of the per cent
on the ore is, we think, very clearly
shown by the same opinion where,
after describing the prior state of the
art. the court said;
Into this field of investigation at
this state of its development came
the patentees of the patent in suit.
There were experienced metallurgists
of London, OF inventive genius and
with financial resources, and they en-
tered upon an investigation of the
processes of oil concentration of ores
which was continued through several
years. and consisted of very extend
ed series of experiments, in which the
quantities of oil, of water and of acid
used and the extent and character of
the agitation of the mass under treat
nient resorted to. were varied and al
most unparalleled extent as to each
factor, and the results were carefully
tabulated and interpreted 1t was
while pursuing comprehensive in
Nestigation of this character, having,
as the evidence shows, the special
purpose In mind at the time to trace
the effect on the results of the pro-
cess of a reduction to the vanishing
point Of the quantity of oil used that |
the discovery embodied in the patent
In suit was made
Not Extending Monopoly.
Nothing, it seems to u.s." says the
circuit court, can be clearer from
the foregoing quotations from the |
opinion of the supreme court than |
that 1t did not intend to extend the
monopoly of the patent in suit to the
use of per cent of oil on the orc
for 1t, in effect. thereby distinctly de-
clares and adjudges that the discov-
cry If the appellee experime.:, ers'
only rose to the dignity of invention
when they ascertained that the de-
sired results could be and were OBJ
tanned by the use of five-tenths Tone
half of ] per cent? of oil on the ore.
with still better results as the guam
THY was reduced to the vanishing
point at less than one tenth of l per
cent. The quantity of oil that gave
birth to the invention--five- tenths
tone-half Of | per cent on the. ore at
which point no more granulation ex-
ists)-due to the lesser and extreme
limit of the minute quantity Qess
than one-tenth of l per cent? at
which the desired result ceases, are
the critical proportions, amounting to a
fraction of l per cent on the ORE" to
which the appellees' patent is con-
fined by the supreme court as we UNI
derstand its opinion.
And that is just what appears