WALRATH tI. PACIFIC PAV.ca.
883 ,
;tWALlUITH "'. PA(n:Fio PAV. Co. . CoNSoLIDATED. BITUMINOUS ROCK
"
Co. "'. W ALltATH. March 4,1800.)
(OircuU
o,QUrt, N. D. California.
a
BAME-PRIOR STATE Oll' ART-FROCESS 1I'0R WORKING BITUMINOUS SAND·RoClL
HeM, OIl the evidence add,uced,that letters patent No. S42,852 for a paving, rooflng, and,}JoUding comP9und"granted to Walrath on June 1, 1886) are yalld. but in View. of tlie state of the art, must be Umited to a process in whicn the bituminous'material is alone in onevesseli and8team is generated in another and distinCt vellsel and conveyed therefrom by a pipe .inti> the mass of bituminous ma,:tihat !laid ste!W1'will; permeate apd thereby disintegrate the bItuminous
(SlItzabuabvthe. Cow1.) .
. . ., , Bill for the infringement or two letters patent,onenumbered319.125, granted 'to 3"adson Rice,Andrew Steiger,and Isaac L.Thurher,on June 2, 1885, 'Using AspbalttIIDi"aiId the other, num'Pered 342,8p2;granted to on June 1, 188'6, entitied".:Paving, ROQfJng, :and Building Compound." The material portions oHhe specification (}f the first patent are asfoUows: ,. large bit\llIiinous deposits,in California known as' asphaltum,' wniob'is<used for val'iouspurposeB, but principally for roollng ,buildings, in and sidewalks 'and for bast\ment floors. The only process for working asphaltum heretofore in use has been to beat it inan open iron: receptil.Cle Witb ooal·tar or Some oily substance or ingredient, and when ina liqUid statetcimtx it with gravel or coarse sand and subject the combination to an intense beRt untHthoroughly'cooked.' and then to apply it in a dissolvtJdor li<tui'dstate to the uSlls:for which it was intendelil. By this,process.. tbe nat· ural qualities of the llSphaltum were deRtro)"ed. the aotion ;Gf the ;flre volatilizing and evaporating portions oiits valuable constItuents; rendering it· brittle and porous, and when expOsed to the heat'of the sun, or to rnoistllre of any kind. it wOuld crumble and ,decompose. The objPct of our in,vention is topreplue asphilltum for the purposes of roofing buildings, fOfpa;vihg strtJets and sidewalks; for basement tioors,and alLother purposes,for which it is now commonly used by a new process heretofore unknown or used, and to prfServe tbenaturll1'elastic and adhesive properties contained Ihasphaltumin its na. tive state without the addition of coal-tar, oil, or any otherol1y substance whatever, and turedllce the exppnseof handlingrt. To carry out our invention, we take; the asphaltllllUn' its mltive state and softetior dissolve it by the' aid of holl,water, steam, or superheated steam, and when: dissolved or in a plastic stJatetoapply it to the uses for wh.i,ch it is intended. We:then press it iron; or rollers heated for that purpos!', but DOtto a temperature thatwooldburri the matel'lal,which gives it a slDuotb surfaoo and renders itcompltct' "Snd, solid. ,Wllenthe'8sphaltum is disl!olVtld or. softened by our process, clean sand may be added, if desired, to giveJt ,tbe con-
In Equity.
884
FEDERAL REPORTER,
vol. 41.
sistency: but without the addition of sand or other ingredient we can also use asphaltum by our .lor making floor tiling by placing the material in moulds and subjecting it to pressure which gives it a firm solid form with a smooth surface whiclds susceptible of a fine polish. In OUl; proctlss of working asphaltum we use ari'ot-dinary steam-boiler for supplying the' hot water, steam, or superheated steam, and a close or open vessel. stirring by hand or by machinery. HaVing' 'fUlly described our invention, whatwe claim as new, and desire to secure by letters patent of the United States, Is:-The PI'OCPSS of preparing roofing and paving material consisting in the following steps: First, softening native asphaltum by the application of hot water or steam thereto, and, secondly, pressing it under heated rollers or other heated irons, s ubstantially as a,nd' for the p set forth. ',' The material portions of the specification of the second patent are as follows:, . "My has for its Object the production of a new pavement, roofing and, btIildi\lg material or compound which possesses ina su'perlative degree all those qualities which are recognized, as,· being necesslli;yjn material to be used for those purposes. 'The base of my compound is 8 new natural product which has recently been discovered near Santa Oruz, in Californ ia.This Sllbstance or material is found in the shape of a deposit Or}nllle, and is called ever been , bituminous sand-rock.' and no other deposit of such discovered witbin my knowledge. The material 01' substance seems to have once been a sandstone, but by some process of nature it became saturated with petroleum 'oil, and possibly'otller subsflaoCle8iso thatin.:its:cl1\lde:state it presents a dark granular is j\1\d:,tenllcious, and has a strong of petl:oleum.; .. ]3p\lbjecting it.. toheatthe oil can be dl'ivlln off,andit then becomes of fire,to this hon-like escape" wblch burn wi'tha 'blue flame, leaving nothing but sand. asa resIdue. To manufacture mypavirig, rooling,aM building compound, I take'tliili bituminOlls'sand-l'ock and"heat it by means of steam in a suitablevessel.,whicb, m8IY open Dr closed. Whe.n:sufficientlysoftened by the steaID, it will 'be in a semi-liquid condition; so that, it can be spread by suitable raking implements in a thin. course or layer over the surface to be paved or roofed. I then roll and smooth it (:lown with ,!Je"ted irons until it has become firm, and until the water which it has ti\ken. up from the steam and the volatile part of the oil have evaporated, which will leave a firm,hard, but-elastic sul'face that will wear a great: length of time. For building ,pu,l'pOses, and, for ,one class of paVing. I convert the bituminous saild.roekinto bricksot blockS of .the.desired size. In; t.his case I t1'eat the sand-rock with steam; as above specified, and in 8cldit!oJI'I add some llarthy 01' mineral substance-such as sulphltte or carbonate of as.to give it density and body. and then I sllbject it to. pressure in,moulds, thllsforming blocks or bricks, which can be used for paVing or building purposes. Having thus described my invention, what I claim, and desire to ,secure by letters patent, is:' , ·· 1. The :process of treating oituminous sand-rock with steam, for the pu.r. ' pose above desclJ'ibed.'" "2. The process of, forming pavements or roofs of bituminous which consists in softening the rock by treating it with steam and rolling or ironing it with hot ironsto:afirm slll'face, sUbstantiaUy as described.: "3.. Bricks or blooksfor"paving and building purposes; composed,of bituminous sand-rock softened by steam and mixed with 8a1ithy or minerltlsu stances and sUbjected ,to pressure in moulds, substantially as d'escribed. "4. A paving composition consisting of bitumino.UB Band-rock Boftened by steam,sulistantialIy as descrilied."
WALRATH V. PACIFIC PAV. CO.
885
Scrivener Boone, for complainant in first case, and respondent in second case. M. A. Wheaton, for respondent in first case, and complainant in second case. SAWYER, J. t (oraUy.) I have examined these two cases with care. The first case is a suit by Walrath to restrain the Pacific Paving Company, tlae defendant in that suit, from infringing upon his letters patent fora process of treating bituminous sand-rock for paving purposes. The second suit is a counter-suit which was instituted by the Consolidated Bituminous Rock Company against Walrath, charging him with infringing upon certain prior patents of which it is the assignee. Both cases are represented by the same .counsel and both have been submitted on the testimony taken in the first case. The Walrath patellt purports to be a pat{:nt for treating bituminous for paving purposes, while the other only of asphaltum.. It..is eyident however. that both pat.. ents refer to the same material because bpth parties use .the same material from the same mine. And inconsistent with this inter-, pretation:that the elder patent refersto·tbe material as asphaltum, since it ill shown t,l1;at it actually contains asphaltum, as one of its component parts. :Upon examinatiqn I think both of these patents are valid, since the processes described in them are different.. Both patents refer to steamas the effective agent for reducing the material, but the 'patentees prodace the stearn-and utilize it in a different-manner. In the. prior patent owned by the Consolidated Bituminous Rock Company, the water is poured into the kettle with the material to be dissolved and both are boiled together. During the boiling steam is generated, which passes up through the bituminous material in the kettle partly dissolving it, and the water is got rid of in part in this way. In. this elder patent the claim covers the use of both water and steam and this is the process the patentee of that patent used, They.never used any other until after Walrath obtained his patent and commenced to use his process. , think t,heprocess covered hy this elder patent is a patentable processaJ;ld I think the patent is good and covers the use of steam generated in that mode. The subsequent patent to Walrath is also for an improvement in processes for treating bituminous sand-rock. Instead of ptltting the material in water and boiling the two together, thereby generating the steam in the same vessel, he fJenerates the steam in a 8eparateboiler or,vessel, and dispenses with the use .of water in the same kettle or vessel, which seems to be an improvement. It must be :an improvement because the patentees of the prior patent adopted this latter mode and proceeding after Walrath ,hag., demonstrated its ,value. I think, therefore, there must be a decree ;in both cC3ses, in. the one case a decree enjoining the defenda.nt Walrath from using steam in ,the mode applied by the patentee of the prior patent, and in the other case,viz., Walrath v. Pacific Paving Company, WalriJih has a valid. patent for the improvement in generating steam in an outside .ve88eland conve1jing the steam alone to the material to be dis8olved. ,
FEDEitA.L REPo-alrER, ';01.41/
;Boone'-Did your 'honor take notie'e: lof the fact that there' Was a license: that the Walratp Com pany haq a lipense to ulle the prior p,ate,nt? Oourt-I do not' thiHkr Walrath irifringedwliile'he had that license. It is only what he has done since the expiration of that license. Mr. Boonr--What he has done since then the material with water it!' all open kettle aJidgenerating'steamfu way? ' ,PheCOurt......yes. ,.; , , Mr. Wheaton-Is it intended to limit the decree to the use of the open vessel?"', ' , The P-ourt-Noj either open or 'Mr. Boone-In the first patent issued to Judson alid Rice they praeticedit, and they never used it in a1\y other way exc:ept in an open 'kettle. untU'Mr.Walrath patented it and hsedfhisprocess of generating steam , .. do not limit their elaim to an open kettle. They in the kettle and boii it the steam in the slime 'vessel. . That is ·.. I do not suppose it matters .' whether the kettle was open dr' closed. : " . jfr; W7ieiztlln--In the Walrath 'Odse'the bomplaint does not charge an infringement before thebriilgitlg ofthe 1 stiit. . I suppose an' injunction . . ' '.'. .. ",,'follows in that? 2'hehurt-Then there'fij'ho anything but an injunction. asked accounting. '. ' , 'rAe eourt';"';"There is no occliSibn' fora:Ii &QCounting in the ' Walrath aw if· the complaint in case had only threatebedto!usetbe process. ,e', .. we ask(ot Is an injullctlOll--that is'sufficient. 2'he &ourt-Vel'Y .. . '. . 'Mr. Wbeaton-I have ·'contracts· on hand alid I askthlWthe injunction be suspended 30 >, M,., BOdnr--\V e have no objection. " T1uJ(J(Juft:";"Very likely:y6uwill be able to' arrange it among yourselveswhett .find. out whtit your<rights That is the main 'propoaition'-to' , 1 I · ,.
'.1
II
(DIstrict OoW'e, }y.·D. PennwZ11an1,a. ,April 1, 1890.)
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had long been: 'In the exclusiveoccupallcy of a certahl ,portlOD .of th& " Ill,lblic wl1arl, of, 4.l1egheny c:ity, paying a still'!lated sum for ." and he kept fastened to shore two fioats on WhlCh he carrled on the buslDess of II t, "Ntail vender of coal, 'havingtbere(>n an otllce'aitdsooles, and one of the floats hav,ing to shore, 'wagons Were driven. His practice Wa& ,to, buy oor"g.oes' of cOal, and have .theloadedbarges brought'to the fioats an.d there kept until . he had retailed the ',Held,tha'tl'the'citY'dld not owe to him the high measur& of care due from aWharfillger to to a publio wbarf for safa mooring', and using the same 'bl the ordinary way.' , .
i " .' Libelant
011
doiL:-YARU.