The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-06-06

reducing oil your invention came into
existence.
Mr.. Kenyon--At about one-half OF
per cent Of oil.
Mr.. Justice McReynolds-Before
you got to the one-half of l per cent
did you have any invention?
Mr.. kenyon--We were passing from
the region Of cattermole, which was
a distinct
Mr.. Justice McReynolds--I want to
know when your invention came into
existence.
Mr.. Kenyon-This invention was
not reached, / should say. from those
| figures, until about IS, that Is. one
half Of l per cent of oil was reached.
Mr.. Justice McReynolds-At / per
cent you had no invention?
Mr.. Kenyon--No.
Mr.. Justice McReynolds-At one
half Of l per cent you did have an
invention?
Mr.. Kenyon-It began to come--re-
mote-but 1t began to come. At .03
OF per cent the flow vastly increased.
At Il Of l per cent the flow again
vastly increased.
Mr.. Justice McReynolds-When this
flow Is more than one-half of per
cent of oil it does not infringe?
Mr. Kenyon-It does not infringe.
! Mr. Justice Pitney--What have you
to say In answer to what Mr.. Scott
said the other day, to the effect that
is per cent. or perhaps more, Of oil
would give the same result with in
creased agitation?
! Mr.. Williams-Absolutely no.
| Mr.. Kenyon-It would not
Justice Pitney-I understood him
to say SO yesterday and / supposed
there was something in the record to
justify 1t.
Mr.. Kenyon-Nothing; that will be
a part of my argument. in as much
as it appears without dispute that the
appellant company has never used in
its process any oil in quantity as
small as one-half of / per cent, 1t
results from the views above express
ed that the judgment must be revers-
ed and the case remanded with dir
ections to the court below to dismiss
the bill at the complainants cost,
without regard to the question raised
respecting the sufficiency of the dis
claimer filed by the appellee COM
pany or to its resultant effect"
Dissenting Opinion.
Justice Morrow. concurring in part
and dissenting in part, said:
Il concur in the opinion of the ma
jority of the court that the decree
should be reversed, but | do not con-
cur In the direction that the bill be
dismissed. l am of the opinion that
the use Of an oil, or oily liquid in
defendants separation process in a
quantity not amounting to more than
q fraction of l per cent on the ore is
within the express terms of claims
l, 2, 3 and IL of plaintiffs patent, and
is an infringement of such patent.
But | am of opinion that the use of
oil, or oily liquid in quantity
amounting to more than fraction of
l per cent on the ore is not within
the terms of claims l, 2, and IL and
Is therefore not an infringement upon
nlDintih'c hof
should be entered accordingly"
Separate Opinion by Hunt.
Justice Hunt. concurring, said:
mo monopoly could be given on.
the use of a small quantity of oil for
that was old 1t was new, however,
to avoid the use of larger quantities
The patent must be confined to the
use of critical proportions.
Again, when counsel had the coll
loquy quoted in the opinion of Judge
Ross with the supreme court, the
guiding thought evident in the mind
OF the inquiring justices was to stamp
pr ecision upon the point when inven-
ton in the process began to appear.
With apparent definite purpose of
meeting the interrogatories plaintiff
told the court that invention began to
come when in the descending uses of
Of oil as small as a guam
tlty of five-tenths of l per cent was
used and was first present when
three-tenths and two-tenths of l per
cent was used. OF course, court
should cautiously consider a response
often quickly made by counsel in an
swer to questions put from the bench |
lest an injustice may follow by attach
ing undue weight TO an isolated argu- |
answer. But In this mat |
ter we are earnestly trying to gather |
the scope and accurate meaning OF |
the expressed thought of the court. |
We may therefore refer to the fact |
that the exact position of the plaintiff |
Is to the invention was called for not |
once, but twice, not generally, nor in
directly, but positively, simply and un-
Hence, in the controversy
rs to the true Interpretation of the
opinion the questions put and an
'wers given may be fairly resorted to
not as conclusive at all, but as aids