The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1919-06-19
Flotation Patent Infringement Case Be.
tween Minerals Separations and Butte
& Superior Must be Retired

The decision of the supreme court
of the United States in the case or the
Minerals Separation company against
the Butte & Superior company, being
final in its determination Of the issues
involved, means in fact a retrial OF the
case, as appears from the following
review of the opinion by the Boston
News Bureau:
That the controversy between the
Butte & Superior company ana the
Minerals Separation company VIII
have to be retired is disclosed by the
wording of the decision which was re-
Gently handed down by the United
States supreme court. The earlier re-
ports received in Butte did not dis
close the full text Of the decision, ana
1t was the opinion of local counsei
that the order did not call for retrial'
However, in the review of the decision
nv the Boston News Bureau OF June y
II appears that a new trial will be ne
cessary. The court said: since the
case must be retired, there remains TO
be considered the reversal by the CIR
cult court of appeals" and other mat
tiers, pointing out that the evidence
was far from satisfying, and especial
ly doubtful on numerous points, lndl-
eating that there were many things
that needed clarifying involved in the
case. The review of the News Bureau
is as follows:
The patent of the Minerals Separa'
ton company relating to improve
contains 10 claims, of which but i've
the fraction of l per cent claims
were involved in the case which thu
United States supreme court has JUS
decided The Butte q Superior com
pany was the defendant in the htiga
ton brought by the Minerals Separa
ton company and denied the validit!
of the patent and the claim of in
fringement.
The opinion of the supreme court II
this case, so vitality affecting the min
ing industry, covers IA printed pages
from which we abstract as follows:
"The lower courts followed the de
cision by this court lin Minerals Sep
aration suit against Hyde) and sus
tanned the patent except as to tn
three small quantity of oil claims
The new evidence introduced on tn
validity issue is meager in amount
and of a character so unsatisfying tina
we see no reason for modifying on
former conclusion.
Chief Controversy.
THE chief controversy in the cas-
centers about the claim of infringe
ment based upon the use of oil by tn
respondent in excess of 1 per cent o
(of the weight of the ore, after tn
decision of the former case by TIM
court The evidence shows, and coun
sci now admit, that prior to the deci
sion by this court December, 1916, tn
respondent used in its ore concentra
ton operations various oils in quanti
ties less than one-half of per cen
on the ore but that from January
1917, to the time of trial, with the ex
ception of two or three weeks, 1t use
oils of a composition . in guam
titles in excess of per cent on tn
ore. In other respects it's method
were substantially those of the pat
ent in suit.
ION this showing the district coul
found the patent infringed by the re
spondent when it used oil in quaint
ties greater than, as well as when
used ii in quantities less than, l pc
appeals held the patent infringed on
ly when the respondent used oil |
quantities equal to or less than one
half Of per cent on the ore, and
therefore reversed both Of the holding
of the district court, but allowed re
covery for the period when less tina
one-half of 1 per cent of oil on tn
ore was used.
"The circuit court of appeals derlv
ed its authority to limit the claims t
one-half of per cent on the ore fror
the construction which it placed upo
the following clause of the opinion o
this court in the former case, viz.
1.-The patent must be confined t
the results obtained by the use of Of
within the proportions often describe
in the testimony and in the claims o
the patent as critical proportions
amounting to fraction of l per cen
on the ore
Amount of Oil.
'"rhe reasoning which carried tw
members of the court to their conclu
sion was that, as shown by the evi
dence of the patentees and the argu
ment of their counsel, the amount o
oil which is critical in the sense o
marking the point of transition fror
the processes of the prior art to tn
process of discovery of the patent,
ne-half Of / per cent of oil on the or
and that therefore this court, by usin
the expression quoted, intended t
limit the claims not to fraction of
per cent but to a fraction of one-hal
of / per cent on the ore
1.-THE specifications of the paten
point out that the proportion Of min
eral which floats in the form of frot