TANNAGE PATENT CO. V. DOlS'ALLAN.
811
tuethod does not make the method itself patentable, although the pattern should be patentable. 'fhe lines upon the pattern are not shown to have been known and used before. The llotchesshown, although _ used for the same, purpose, aee iiot the same things. The lines are new things on the pat· tern for aecomplishing the same purpose with the pattern, and the pattern, with lines qpon it, was,a new manufacture. To contrive them and plac;ft them there for the purpose would seem to involve constroctive ingenuity,_ wNeh amounted to an original ,conception of this .de, . vice as. an addition to the former pattern. No adequate reason is made to appear why the third, claim is not valid for the pattern with these lines upon it. The use of such patterns by the defendant does not appear to be disputed. The notch foJ;' sleeve buttons on the pat· terns used is an addition not affecting the use of the lines. If it is an improvement, the patented invention has been taken to put the improvement upon, and, th.e, taking of it is none the less an infringement. Ho. the plaintiff appears to be entitled to a decree upon this claim only. This and two other cases between the same parties have been heard Ilponthesame testimony, in one ofwbich the plaintiff is to have a decree, and in the other the defendant. Obviously, the cost of the testimony is to be. somehow apportioned. Perhaps the most equitable and practicable way would be to allow costs iII each case to the reeovparty for all but the flvidence, and to disallow costs for that in all the .cases. Decree for plaintiff as to third claim only.
TANNAGE PATENT CO. v. DONAl.LAN.
(Circuit Court, D. Massachusetts. No. 716. L PA'l'ENTS-INVENTION-PRESUMPTJONS.
April 7, 1899.)
·
The fact that a certain process of dyeing animal fibers, skins, etc., which is elaimed to anticipate a patented process of chrome tanning, was publiely known for more than 30 years, during a time when in· ventor!< and scientists were vainly endeavoring to discover a successful method of chrome tanuing, raises a strong presumption that such dyeing process did not fully diselose a practical tanning method. SAME-ANALOGOUS USE-DYEING AND TANNING.
2.
The two arts of dyeing and tanning are radically distinct, so that It would require invention of a high order to discover that an old dyeing process would produce merchantable chrome-tanned leather. SAMJ<;--ANTlCIPATION-AcCIDEN'rAL RESUI,TS.
3.
An aceidental result of a process, not contemplated and not recognized as important by the inventor, cannot anticipate a later patent. The Schultz Nos. and 291,785, for a process of tannJng by the green OXIde of chromIUm, known as "chrome tanning," were not antieipated eitller by the Heinzerling patent of 1881, for a process of chrome tanning, Which was never a commercial success, or by the FrancilIon l,'rench and Englisb patents of 1853, for a process of dyeIng animal ti bel'S, skins, etc.
4. SAME-OHltQME-TANNING PROCESS.
812
93 FEDERAL REPORTER.
This was a suit in equity by the Tannage Patent Company against JOhilJ:El J)onalm.n for alleged infringement of certain patents for a process of chrome tanning. On final headng. Fish, Storrow, for complainant. George L. Roberts and W. Orison , Vnderwood,for defendant. COLT, Circuit Judge. This suit relates to two patents issued to Augustus Schultz,January 8, 1884, for "a process of tawing hides and skins." No. 291,785 is'forthe general'process. Patent No. 291,784 contains 'l!\;illOre specific description oUlle solution which cumposes the second bath of the process. For present purposes they . may be regarded as oue .patent.· The Schultz patent is:for a process of mineral illnning, as distinguifIDed frbm old methods of bark' tanning. Specifically, it is for a procesS of tanning by the green oXide"of chromium, and is known as "chrofue tanning." As a practical and c9mmercial method for making mor0cCO leather it has proved very successful, and may be said to hate re'volutionized this branch of the tanning art. It is estimated that 80 percent. of the'moroeco leather at present produced in this cotintl.'yTislrrl1de by this process. Not 'only does it largely reduce the timebftannitig by the old methods, butthe leather itself is of a supeIn the patent of this character, and in liarmonywith what wepelieve to be the spirit and purpose of the patent laws of the Uniilid States, the cOUl'tis naturally inclined to sustain it, unless it clearly appears to be invalid under the law. Nor does it detract from the merit of such an invention that prior inventors had nearly solved the problem, or had reached a successful experimental stage in its solution. When the prior art is brought to invention, this is often found to be the situabear upon any tion. The Schultz process f()r chrome tanning is to first subject the skin to a bath of bichromate of potash, and then to a second bath in water, to whieh hydrowhich consists of sulphite of soda chloric acid is added to set free the sulphurous acid, whereby the chromic acid throughout the skin is reduced to the green oxide of chromium; tn other words, it is the reduction of chromic acid to chrom.ic oxide through sulphurolfs acid.. The prior tanning art does not disclose process. For 30 or 40 year;; before the date of the Schult7. patent, persons skilled in the art had striven to discover a practieal method of chrome tanning, but, with one exception, these efforts were failures. This record presents an exhaustive review of these old meth· to refer ,to the moSt important. The earliest ods. It method is described in the Warington British patent of 1846. 'Yarington uses for tanning vegetable matter," such as rhubarb, potatoes, ,pI'; (:,hemiqtl deoxidizing agents,such as gum, starch, or certaincomp()unds I:of sulphur, mixed with tanning material, such as bark; and he uses either bichromate of potash or diluted sulphuric acid to pre-vent putrefaction. 'He employs one-eighth to one-half a pound of bichromate of potash ill 100ga110ns of water; and in the of sulphuric acid a qtiarter of a pound to a pound of the acid to of watep. :Nobody.qpntenda t4at .the \Varington process
TANNAGE PATENT CO. V. DONALLAN.
813
was . Pfactically employed in tanning, and on its face it is very ver remote from the Schultz process. We come next to the Swedish patent, to Cavalin (Canllius), of May 1, 1850. He first describes a dyeing process which may be either a mineral one, as, "for instance, of one pa.rt of sulphate of protoxide of iron and six to twenty-four parts of water," or a vegetable one, with "leaves, sprigs, arid the bark of a majority of the perennial plants." He Jhen places the skins in a solution of chromate for tanning. In the second bath of Cavalin there is no suggestion of the sulphurous acid reducing bath of Schultz. Of this process, Heinzerling, in the Elements of Leather Making (1882), says, at page 144: "\Ve can 'regard Cavalin's process as a combination of iron, alumina and chrome tanning. The leather, however, showed an easily removable or deteriorating result in water, and was brittle, which made its practical application imIXIssible."
Morfit on the Art of Tanning (1852) says (page 401) of Cavalin and other similar processes: "It is doubtful whether leather made by any of the preceding processes will \11'E'8erVE' its durability for any length of time, as from its very nature it would be reasonable to expect it to crack, unless it be kept constantly greased."
Davis on the Manufacture of Leather (1885) says, on page 629: "Cavalin's method may be considered as a combination of tanning with ferric, aluminum, and chromic oxides. But a practical application of the process is not possible, since the leather loses its tannin easily when immersed in water, and its grain is brittle. * * * All the above-mentioned methods of tanning have been abandoned on account of the defective quality of the product prepared by them."
Professor H. R. Proctor says, in a lecture given October 9, 1893, when speaking of the Cavalin leather: "The resulting leather was a combined iron and chrome tannage, which is not a praetical success, though it is not impossible that some modification of it might be put to useful purpose."
The authorities on the subject of tanning, as well as an inspection of the Cavalin patent, demonstrate that it is not an anticipation of the Schultz process. In 1858, Dr. Frederick Knapp published an article on the nature of leather. This article is translated in Dingler's Polytechnical Journal, vol. 149, p. 305, and in 'Wagner's Jahresbericht (1858) p. 521. Speaking generally, the Knapp method relates to tanning with salts of the oxide of iron or of the oxide of chrome. It is a "single-bath process." The Schultz process depends, primarily, "upon the reduction throughout the skin of a compolmd of chromic acid." No compound of chromic acid is employed by Knapp, and no reduction of chromic add takes place when the skins are tanned. The Knapp method of treatment with iron and chromium salts has been unsuceessfuI. The literature of the art shows that the Knapp process never went into commen::inl use. Heinzerling on the Elements of Leather :.\faking (1882) p. 144, says: "The applieation of iron and chrome alum in tanning has already been formally proposed, ,md also been praetieally carrIed out. The use of these substauees' was soon, ho\\'ever, giYeIl up again, sinee tile l<'ather so prepal'eLl
814 salts."
;; i
kd:Vlirttage over the leather
with' ii' '.
. ',;,
Ji!l£/, ebrP,we {t1um,wall,j\tone tiW-e Pl'9posed and aetu. vractiee, .. us,e. <;If ,s. soon aban. doneli, as the"leather had no ad-vantage over tbat tanfied\Vlth alum llndaluillhili! ,salts." " , ' ! ' "! '" ;:' or:,,' '. i,. " :'" ':,' ,.' ,. ".:
i',' :,.-
,"
:
.. -
I
':,L:,
under'the head".
mg
"The hidt!sl1o npt tanneq ,W. solutions of s1,1cb metlillic salts a.s those ot. the ferrous and ferrjc oXide.s and zinc and chrbhll'um oXldes,"'.! 1 '. Though' 'a Ce'r'tlliiJ. the oxide Ilnd fibers no real, ls"'fol'ri:led,'Wciiuse tile substance when iinlshedis naUnted forcoriMcr'withwater;'forthen the 'tannin' is washed out. ... '" '" Although the exterior color of good, .sound leather may beimitate(l, the real .<H1alities of leather are, wap:ting. Knapp's process is nbt in use, dr 'is SO entirely JfIodified 'bY' Isubstltuting 'alum for metallic oxides that the skins are tawed by a combination of the preceding tawing process and the oil taWing. prOl:)essnowtq: 1m described."
'i;h 'j 0
i) ,
.:
Proetpr, in oil made by the use of basic ferric salts:
p. 219, says of leather
"The leather; 'hoWever; no mb\inJ tiie reSistance to wet and decay as baIlk-1:anned uIeatherj'and 'inv'ariably'has'a tendency to crack when sharply bent.'fb.e;pzfocess,hasbeen mollt'iJarefnlly worked out by Professor was' patented and' worked commereially for a short time in BrunsWick, but a'pparenUy without;financial success."
the Swan. British J)atent of 1866. Swan states tbat llis invention may be appliedt6 taIl;ning'i His methQQ. Js to immerse 1 per 'cent. ofchrbmealum, or in the skins in a. solution . aSdlutiOll of chromateor'bichrQmate ,of potash, ancl then to decompose the chrimiate or in' the skin. "by of oxalic or other similar acid," so as to reduce the bichromate and produce "the l'eqllired compound of chromtc'oxide." !t'Jil'established by this record that oxalic acid reduces slowly than sulphurous acid, and that it must be used wit4 great care to pre-vent injurious action on the raw The Swan not proved to be a practical method for tanning. is not the SchQltz'process, The Heinzerling English patent of '1880 and American patent of 1881 describe the only chrome-tanning' !process before Schultz which may be said to have gone 'into use. Heinzerling first left the hides in the ('chrome or, aluminous solution" from one to twenty days. It is unnecessary to refer, to the other operations of this complicated process, except to add that the hides were finally "exposed to'thelight twenty-five days ta sixty." Heiuzerling soaked his skins in a solution of' chromic acid or of a chromate and bichromate, but be never reached the Schultz process of' reduction through sulphurous acid. In ehrollle tanning there is no complete reduction until the hide turns gre,eri: In the Heinierling process it seems that the gradual effect of exposure to the light had to be relied upon to reduce the chromate. Davis on the Manufacture of Leather (1885) p. 634, says:
It is manifest that Knapp does not describe the; Schultz process.
TANNAGE PATENT CO. V. "DONALLAN.
815
"The cut of leather, prepared according to the described [Helnzerling] process is at first yellow, but becomesgralluaIly lighter, especially when expoS to the 'light, and turns finally to'a Jiearly whitish green." d
Concernipgfhe process, Prof. Proctor, in his textbook on Tanni.ng (1885)p.221, says: , "A process which has lJeenworked on a larger scale Is that of Dr. Heinzerling, introduced about 187S, with the usual promise of 'complete revolution' in the' leather trade, but which,in spite of the most determined and persevering' efforts of the Eglinton Chemical 'Company, who own the English patent, has failed to take any very prominent position in 'commerce."
In a lecture delivered October 9, 1893, after speaking of the Cavalin process; Prof. ,Proctor said: "Much later and much better known, if not more successful, was the Reinzerllng process as carried out by the Eglinton Chemical Company an' the Yorkshire Tanning Company. '.rhls could hardly be called a true chrometanning prQcess, since alum and salt were the principal tanning agents, and the, bichromate, which was used with them, was never systematically reduced to the green ,tanning form, though In course of time it gradually became partially changed at the expense of the Skill."
'Vagner's ,Chemical Tecllllology (1892) p. 889, says: "Heinzerling's chrome tanning is, in the opinion of the author, perfectly worthless." Upon examination of the present record, it appears-First, that, in the art of chrome tanning, no prior patent or publication describes the Schultz process; second, that no prior patent or publication disclosed a practical or commercial p:cocess for chrome tanning, with the single exception of Beinzerling, wbich was only successful to a limdegree, and which ca,nnot be, said to have solved the problem of practical .:hrome tanning ,w()rkedoutby Schultz; and, further, that the Heinzerling Process is not an anticipation of Schultz because the two methods are distinctly different. Although chrome tanning may be effected experimentally by' several of these old processes, as seeml' to appeartrom the evidence of the defendant's experts and the sam" pIes produced, we do not think ,this class of testimony detracts from the merit of the schultz process, or from its position in the art. On 'the con,trary,previous efforts and previous failures add to the importance of Schultz's discovery. A process carefully conducted ,by a skins, and yet be commercially skilled expert may be adequate to should have little perfectly worthless. Such 'experimlilntal or no weight in question of the validity of the,Schu,Itz patent. Ip,.the pf Patent Co. v. Zahn, 17 C. O. A. 552, 70 Fed. 1003, the circuit court of appeals for the Thil!d circuit, on final hearing, sustained the validity ()f the Schultz patents. In five other su,Hs brought by this complainant against various defendantEl preliminary injunctions and in three of these cases the order was' by the circuit court of appeals. ,Patent Co. v. Donallan, 75 Fed. 287;&mev. 77 Fed. 191; Adams v. Patent Co., 26 C. C. A. 326, 81 Fed. 178; vlerk v. Same, 28 C. C. A. 501" 84 Fed. 643; ,Ford Morocco Co. v. Tannage Patent Co., 28 C. C. A. 503, 84 Fed. 644. Tbe substantial defense in the present case is anticipation of the Schultz process based upon the Francillon French and English patents of. 1853. The Francillon patent was introduced in the prior injunction, against Adams, and carefully considered
court,: and by Judge fQ!;' the CQud) J;o, thl:! court It was also, befQre" this, court Qn rpotion for a, injunctiQn. It is true, however; thil.t the 'FranciUon.ipatenthas D,ofbeeti ,heretofore cQnsidered by any CQurt on fin a:'!: hearing, that this" (lefense is now for time'th,oroughly and presented; and that the is entitled to,bav,e this' Qf anticipation investigated lIP'on It'fu,rtber appeaI'$ that, in connection with the introductiQn of the Francillon patent, the whole prior art has,1;Jeenn;lOre f»IlYl>Fes,ented in than in any prior litigation. 'Afier the most diligent search, however, in ,tbis and f()reign countries, as)Ve,haveseen, no process such 8f?is,descrlbed,bySchultz has been fodpdJlJ,tpe prior tannage art. We have only left then to uetermine the,,Q,ne iroportant question whether' in view of Francillon there was any, patentable novelty in the Schultz method. Schultz a process of "tawing hides and' skins" with minerals. Francillon's patent is for a process of "dyeirj.g and, printing wool, and other animal fibers," including "skins." The Schultz patent is for a tanning The Francillonpatent is for a dyeing process. This is the fundamental distinction between the two. The Francillon patent was taken out in 1853. It was commented on in trade publications, and was well known. It nowhere purports to disclose a tanning process. It was used tor dyeing silks and wools. It does not appear that skins ,were ever dyed by this methQd.It WgS never used practically to tan a skin; !twas not until after the disMvery and great success of the Schultz process, and as a defense to the charge of infringement, that the expecrt witnesses for the defendant have found out by experiment thatthe'Francillon dyeing process wiJIin fact tan. And in this con· nection, and as going to show that the court should not be wholly gUided :by the experimental ,succeMofthe most eminent experts, it may be observed that Prof.iCarmichael also obtained good merchant· able chromHanned skinsftotn the ,Knapp, Cavalin, Swan, and Heinz· erlingprocesses,'3:lthougb,with,'the exception of Heinzerling, and then only to a limited extent,' these old methods had proved practical failures. " ' With the history of the development of the chrome-tanning art before us, showing for many years effort and repeated failure until'the Schultz patents,'and with theM patents repeatedly sustained by 'the courtBih other cases;'the pooQf:'bf an alleged anticipation in the form foreign patent 'issued 30 years before, should be clear, convi'nCinrg, and free frop! dQubt;, Before reaching the concluanticipation 'of Schultz, we sion that the' rrancillonprocess is tanning and the art of dyeing should besatisflied--:--first, tWit the are so nearlyanaldgolIs that there waSnbinventi<:m in the application to tanning; apd,second, that the Francillon of an old dyeing ful1,clear, and terms theSchuitz 'paterit for d1ei:ng sets out method of talluing, so that any oneskille(l in the art would be able to practice the' fIl(lh\:dtz proces,s by following the directions. of the Franpropositions is doubtful, the cillon specification. If either defendant's attack upon the Schulti'patent mnst fail. As a matter of commen' kriowledge, as well as scil:'iltific classification, tanning and
in
TANNAGE PATENT CO. V: DONALLAN.
817
dyeing are distinct arts. The art of tanning is to change a raw skin into leather. The art of dyeing is to fix color. The Century Dicti(mary defines tanning as "the art or process of converting hides and skins into leather," and dyeing as "the operation or practice of fixing co1'6rs in solution in texible and other porous substances." The Encyclopredia Britannica (1894) defines leather as follows: "Leather consists of the hides and skins of certain animals, prepared by chemical and mechanical means in such a manner as to resist influences to which in their natural cOlldition they are subject, and also to give them certain entirely new properties and qualities. Skins in an unprepared, moist condition are readily disintegrated and destroyed by putrefaction, and if they are dried raw they become hard, horny, and intractable. The art of the leather manufacturer is principally directed to overcoming the tendency to putrefaction, to securing suppleness in the material, to rendering it impervious to and unalterable by water, and to increasing the strength of the skin, and its power to resist tear and wear."
It defines dyeing as follows: "Dyeing is the art of coloring in a permanent manner porous or absorbent substances by impregnating them with coloring bodies. Most vegetable and animal bodies are porous or absorbent, and can be dyed; some minerals also, such as marble, can absorb liquid coloring matters; but the term 'dyeing' is usually cor:fined to the coloring of textile fibrous materials' by penetration. The supertcial application of pigments to tissues by means of adhesive vehicles, such as oil or albumen, as in painting or in some kinds of calico printing, is not considered as a case of dyeing, because the coloring bodies so applied do not penetrate the fiber, and are not intimately incorporated with it. The mere saturation of textile fiber with a solution of some colored body and subsequent drying do not constitute a case of dyeing, unless the color becomes in so far permanently attached to the fiber that it cannot be washed out again by the solvent employed or by common water."
Dyeing, technically speaking, and as contrasted with painting, means a saturation or impregnation of the fiber in order to secure fixation of color. As applied to some animal fibers, such as silk or wool, it means a thorough saturation; as applied to skins, it may signify a thorough or a partial saturation; in other words, skins may be dyed on the surface, or a portion of the way through, or all the way through. The dyeing of skins is effected either by plunging or dipping in the dyeing solution, or by spreading the dyeing material on the surface by brushing over it. Francillon was a French dyer. His patent discloses a process for the fixation of a permanent green color on animal fibers. As practiced commercially, this method 8eems to have been limited to dyeing silk and woolen fabrics. Wagner's Jahresbericht (1858), in review of the Francillon process, says: "Francillon described the following process for dyeing woolens and silk fabrics a permanent green by means of oxide of chromium."
He then sets out the steps of the process substantially as found in the Francillon patents. The Francillon French and English patents al'e substantially the same. 'With respect to these patents, Little, complahiant's expert, saJ's: "The Francillon patents relate directly and solely to a process of dyeing. They are :directed to dyers, and are to· be read from the dyers' point of view. They are, moreover, primarily directed to the dyeing of silk and wool." 93 F.-52
818 .I: ,I My
93 li'EDERAL REPORTER.,
In the: specification of bilil English patent, F.flplcillon says:
I,nve'n'tion of in dyeing and printing silk, wool, and other anitnal fibe1'll relates to a method of fixing upon silk, wool, and oth8ranim,al fibe1'S, Si(,ch,ashair, skins, the green oxide of chrome, ca,lled by French chemists sesqui-oxideof ch?'orrw, 01' the chromic oxide. of Berzelius. This oxide may either 'be applied and fixed alone, Or in order to produce various shades and' colors the axille may also be' employed in combination with variQn& ,substances, such as certain acids or oxides, or with coloring or astringent;matters. This object of the inventi()nmay be effected either by the Qxidatipn of chromous oxide, which may ,be effected upon the, substances either in the fibrous state ()rafter having been manufactured into the fabrics to be dyed, Or printed, or theeame effect may oe produced by the reduction of acid and its con,vers,ion in,,to Chron;J.ic, oxide. The Jix,',ing,,'operation ' is carrifld 9n, in the following manner: A cold saturated solution of bichrolaid evenly either upon the whole fabric 01' upon any part mate of potash which it,is,desir,ed to have colored, dyed, 01' stained; and I wOll,ld here observe that there are some kinds of fioers which are oetter impregnated with impure chromic acid, or even with bichromate of chloride (salt of peligot), than with a,perfectly pure salt. This operation is performed at the ordinary temperature, or at a temperature of thirty degrees, forty degrees, or fifty degrees of the centigrade thermometer, or even a higher temperature'may be employed, iwcordingtothe nlttureof the fiber to be operated upon, The jibe,' thus impregnated 'Ulith chromate or chromic acid is left in repose for some hours protected from' the solar rays. The operation of 1'educingthe chromic acid ,is then p'f'oceeded 'with" in order to depri'IJe the acid ,of a moiety of its ,oxygen, and to convert it into chromic oxide. It is well known that J;Ull,ny agents are capable of effecting the reduction of chrOinic acid eitherin a free state or in the form ofchromate,'aRd of oxide. Amongst these rllaybeparseveral ticularly mep,Uonedchloride oil tin, the hydro 'acids, phosphproH.l'\ Qxyriacids of,Sulphu,r, either free 01: in ,th,,8' fQr,m,',Ofasalt, QU, t.,mo,r,!I,especially Ii'Ulphurousaeid. ,This latter, ll,5, ,besides presenting tnead:vantage of economy, it tha.tofQJ;lly requiring for its action the, ,apparatus and PrpcllsseS foJ,' hleaching woolen and silken fabrics by means of sulphur. When the fibers or ifribric8 to be dyed have been impregnQ,ted witl), (Jh'l'ornic aoid, .1;lf6: to. be exposed in,a; top1;e of s'lflphurous Jp,gaseous form Q: in . .The ,s'li,lply!'tro'lfs acid i,!,staritll! effects tlie .reduction the chrOmtcacu'l, ana fibers pliSS from a brOwnish yellow color to either (J; grayish 'g1'eeft ora green,' act:t1Mingto whether. 'the,chromt!li0 .has 'been em· 'riloyed, alone or. ;'Ulithtlteadditio-n,; 0.1' ,arseni,c q,cjd!: .The;japricqr rYI1!t(3rial no'Ul.. ,fA, ,b,e" colQf; ftd(ect" tInt l:>Y mefl,ns of, the :ted upon woola'gr.aygreel1, and a sea :#eeIl;uP?:Q. sfl.lt:',1 m:u, tEl!>!>, hitense.: By: aading 0 the' chromate' preparatlonS,'R'g1'eat varletyi'bfshades of ,green may; be,prodtl:cM, As the chromicacidadts as a motdant alumina,awl oxide of iron, :yarns or. llpon whiCp",th,e,:<?}:u;pqpc ayiq; been be dyed Ul llla,adllr c()cmneaf, !!Ad other matters, and by thIS means ,several fancy' shades' m,!j.y,te prOduced; :but,in the' same manner as when mordants :bf,lIluDiina:and iron are :emp!Loyed together in order to produce complex shades, so the the prllcading mordants, ' still varying tints, which cannot easily be imitated by serves to other The cdloriilgor astringent matter may, when' they allow of it, be deposited and fixed at the same time 88 the chromate; and the sulphurous acid, be .alloweli to act afterwards. In conclusiCln, I desire it to be understood that I' cldjm. the application to, the dyeing and printing Of fibers, yarns, 'threads, silken and woolen fab?'ios, and other animal jibersor tissues (such as hair, feathers, O'r skins) of the' color produced' by the fixing thereq'T!- oj the green oxide of chrome (the sesqui-oxide of chrome of the French qhelXli,sts and the chromic oxide of Berzelius). This oxide I either a.pplY and fix alone, or in order to prod1'l.oo varidustints'I combine it (either at the time of applying it to the material or afterwards) either with certain acids, sucb as phosphoric, phosphorous, arsenic, or arsenious acid, or with certain oxides, such lUi' those of iron, lead, copper, or other metal, or with coloring matters which. require
0t
t,
TANNAGE PATENT CO. V. DONAL1.AN.
819
the assistance of an' oxide in order to combine with the fiber, ,and ,wpich find in the chromic oxide a mordant, and, lastly, with that no !et;ls,nUJUerons class of. Itstdngent matters by means of. which so many f.ast colors are produced. ' 'Tdb '1:l6t,theref.ore, intend to confine myself. to the process above described; bitt what I consider to be new, to clr,im as o!.rTlrY invention in the prQces,s, is dyeing, ,and printing aniJnaljibgrs, such as ha,ir;leathers, or skins, by means of chromic acid or' its tombinations, which may 'be reduced and converted into a chromic oxide, and fixed lYy any 'c'onvenient: chemical means, as aboile described." kll,9wn" ,that I, Augustus Schultz, a citizen of the United States, * * * have invented new and useful improvements in tawing hides and skins, of which the following: is a specification: This invention relates to a newprocess',for treating hides or skiml,said process consisting in subjecting saif/,hides or skin$, to the action of a bath prepared from a metallic salt, such as bichromate of potash, and of then treating the same with a bath containing' sulphurous acid: In carrying out my process, I unhair the raw hides and prepare them in the same manner in which they are made ready for tanning. If the hides have not been pickled, I subject them to the action of a bath of bichromate of pc;>,tash, in an acid,such as hydrochloric acid, or, if the hides have been pickled"t1LiJymay be treated in a solution of bichromate of potash in water withmtt't1J,e addition of an acid. In this solution the hides are left for a longer or shatter t'ime, according to their thickness and to the strength of the 'solution employed. 'A skiver or the face of a sheepskin can be done in a strong solution"as apovedescribed, in a,bout fifteen minutes, while a full skin '/IJouldrequire in: the same solution about one hour. I call the solution weak if it 'contains five per cent. or less of the weight of the skins of bichromate of potash, and I call the solution strong if it contains more than five per cent. of bichromate of potash. The skins are done if small pieces cut from the part thereof show that the solutions have entirely penetrated. The skil1$ are then, ready to be taken out olthe solution, and, after the adheri1lg liquor has 1'U'/'l.off, the skins are introduced into the second bath, which consists, by'pref(wence, of sulphite of soda dissolved in water, to which an aeidsuch as hydrochloric acid-should be added, in order to set free the sulphurous acid. The llydrochloric l;l.Cii! or its substitute may be added to the bath in a. free state OJ; through the medium of skins previously pickled, such skins being impregnated' with the proper acid. The solution may be strong or weak of sulphite, and the quantity of acid used at first may be less than requisite to exhaust the bath of the sulphite, and more acid may be added if the skins show that more is required, which is indicated by the color of the skins. When the are done, they show a whitish, blueish. or greenish color, according to the 'time they are kept in the sulphite bath. A skiver which first has been exposed to the action Of the bichromate bath for fifteen minutes will be ready by remaining ,in the, sulphite bath about twenty minutes. For thicker skins aproportionately longer time is required. For some skins-such as calf or steers' skins-it is desirable that tb,e same, after having been withdrawn from the second or sulphite bath, shall be returned to the bichromate bath, which imparts to them a brownish color, and leaves them in a favorable condition to be colored black. The leather coming from the sulphite bath is especially adapted for light and also for dark colors, and by prOper dyeing methods better and brighter colors can be produced than on leather done by tannin. After the leather is done in the manner above described, it may be colored, soaped, and greased in ,the usual way. Leather can also be made by reversing the operation and first soaking the hides in a sulphite bath, and then exposing them to the acl;ion of the bichromate bath. By using the baths described at a heat of about 800 Fahrenheit, the process will be done in a shorter time than if the baths are used cold. Tawed leather made by my process is very strong, soft, and elastic, ani! my process is applicable to hides or skins of every description. Iustead of sulphite of soda, I can use other sulphites or bisulphites in presence of an acid or an aqueous solution of sulphurous acid. What I claim as new, and desire' to secure by letters patent, is the within-describedproces8 for tawing hides and ski'/'l.s, said proces8 consisting in subjecting the hides or skins to the action oj a bath prepared from a metallic salt, Buch as bichromate !'
Be it
:patent No. 291 1785 1 says:
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of,1!.0tash.q,nd thentp aGtion of q bath qapable of evolving sulphurous acid, su,ch as a sdluiion 'of o/soda, in presenM'oj another acid, such as hy. drochloric acid, s'lll'Jstantially as described!';
We have pU;ts ot the above from the patents in order to draw'spe.cial att(lntion to them. .TJ>,e used ill the .· FrancHlon 'dyeing, process as in the SChultztannlng pl'ocess,. put tllemode of treatnJ,ent is not identical. The descl'iption in'the, Francillon patent is such as a dyer would find necessary to follow to successf,llllydye. wool,sillF, .,01' the surface of a patent is.'such as a tanner would ,find necesf$ary ,'to follow to successfully tan a skin. The literal following of the Francillon specification will not, in our opinion, tan a skin by accident.. It does not clearly or accurately describe or disc;lQse a tanning process. The Francillon patent says nothing about twoba,ths.A.s t9''t;b.e first operation it says: "A cold saturated solution of bichromate of potash is laid evenly upon the whole fabric or paM: which it is desired to have colored, dyed, or stained;" or, in, language of the French patent, the bichromate is to be deposite,d ((uniformly or on the textile fiber." To a skin dyer thiswo111d probably mean that the solution wasta be applied to the surface 'With a brush, which was one customary mode in dyeing skins. By the. $cllultz process, the. hides are first prepared fQr tanning, and then they ,are subjected to the action of a solution of bichromate of potash. ,In this solution the hides are left for a shorter or longer time, according to' their thickness and ttl the strength of the solutionemployed. As.to the' second operation, Fralicillon says:' uThe sulphurous acid instantly elfects the reduction of the GhrQmic acid;" or, as the ,French patent says, "The,latter reduces instantly the chro,This to the a'Ction of sulphurous acid and the instantaneouS reduction o,fthe acid is a sufficient description to the skilled dyer to enable him to dye wool, silk, or the surface of a skin, of the ch,romic acid and the change of color are. insta:ntaneous';butto effect tbe, reduction throughout the skin. which i{hecessaryin tanning, itis,required to remain in the second bath from 20 minutes to several hours. Schultz says as to the second operation: "A, skiver Which first has to. the action,of' the bichromate bath for fiftellU. minutes will be ready by remaining. in the sulphite bath aoout twenty minutes,_ ,For thicker skins a proportionately longer time is required,"
A comparison of the Francillon. and Schultz specifications demonstrates, we think, that tpe processes are not identical, just as the results to be accomplished aredilferent. To dye silk, wool, or the surface'of.a skin, itil! only necessary to followthe.instructions of Francillon, and toexIiosEhhe material,after the'first operation, for a few momeQts to the action of suWJmrous acid ,to obtain what is color;, but this is not the tanning process described and carried. oy SChultz, and WIlich the defendant uses with an immaterial'Iilo4,ification; ,""'itb tht::. Schultz process before him, it may be possible for. a slsilled e:xpert to tan a skin by following what he believes to be, a liberal construction Qf the Francillon specification. But that is not the' .question.' '.Francillon is not be interpreted , ," ','
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821
in the light of and with the knowledge of the Schultz process. The question is, assuming the Schultz process did not exist, does Francillon disclose a tanning process, and by· following literally his instructions have you solved the problem of a practical and commercial method of chrome tanning? We think this question must be answered in the negative.. The fact that the Francillon process was publicly known for more than 30 years before Schultz, and during a time when inventors and scientists were vainly endeavoring to discover a successful method of chrome tanning, raises a strong presumption on its face that Francillon did not fully disclose a practical tanning method. The disco'\'ery of a dyeing process for the production of color, by the fixation of chromic oxide upon wool, silk, skins, and other animal fibers, is quite a different thing from the discovery of a tanning process for the production of another substance called "leather." Indeed, if the Francillon patent for chrome dyeing disclosed a method by which chrometanning might be effected, we think, in view of the history of the two arts contained in this record, and of the fact that they are radically distinct, it would have been invention of a high order to have discovered that an old dyeing process would produce merchantable chrome-tanned leather. And when we add to this what we have found to be the fact, that the FrancilIon patents do not contain a full, clear, and exact description of the Schultz process, the conclusion follows that the Schultz patents are not anticipated by Francillon. The main arguments relied upon by the defendant seem to be: First. Francillon's patent was for a process for the fixation of chromic oxide' upon animal fibers including, specifically, skins, and it therefore includes both chrome dyeing and chrome tanning. The answer to this is that repeatedly In both the French and English patents Francillon limits his invention, and only claims as new the dyeing, or the dyeing and printing, of animal fibers. Second. This is a case of double use, bee-a use Schultz simply applied the old and well-known Francillon dyeing proe-ess to tanning. The answer to this is that, in our opinion, this is not a case of double use, because the art of dyeing and the art of tanning are not analogous, since the results or products produced are different, and because the FrancilIon patent for d.reing animal·fibers does not contain a full and clear description of the Schultz method for chrome tanning. It is true that the fixation of chromic oxide upon a skin will tan as well as d.re. It is also true that a skin dyed by the Fmne-illon process may be tanned on its surface, which does not make it leather, or accidentall.r tanned through and through, which would make it leather. But this result is not a sufficient reason for holding that FrancilIon anticipates Be-hultz. An aeeidental result not contemplated by a former inventor cannot anticipate a later patent. In Tilghman v. Proctor. 102 U. S. 707, 711, 712, Mr. Justice Bradley, speaking for the court, said: "'We do..not regard the accidental formation of fat acid in Perkins' steam cylinder '. * * as of any consequence in this inquiry. 'Vhat the process was by which it was generated or formed was never fully understood. Those engaged in the art of making candles, or in any other art in which fat acids are desirable, certainly never derived the least hint from this accidental phel.lomenon in regard to any practical process for manufacturing such acids. The accidental effects produced In Daniell's water barometer and in Wal-
· 822 "
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th '!maklng o't: forthtnn'anufacture of fat If the llclds,were'acl:Jidefltaliyl lU,iCl :t1nwitfingly produced, whilst the operRtors' ,were m: pUfsuit, of other and:dlp'ereut results" atten. tiQtl; ,l t s,.even Pll ing l>;uQ'Wp :WPl/.t ,,;a/l done or been nl\ Jt would. Pe absurd. to s,a.y tllat thl"; 'was ail do Tilghman'S theris. the same ",. I
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v.,¥anufacturing 00.,,106 U. S. IG6, ,!715,.17i3,l Sup. Ct. 198,; tJ)eQlougb, notwithstap,ding the prior The coq"t said: ." i:, , : . · · ." ·.,; alDounts i'eaUy. to this .oIlly:t!lat if. that burne!; is used ;now in. a way it.:Wlrl,ch 'it was uElvel,' desigued to be useo" and it is not sl:wwn}o have ever been used before 01ough's Invention, it may made to furnish a supplementary of gas:'. · · Any' further raising of the tube wllS accidental, and not apart of the!' law of the structure. ·· · · The structure' was not. designed, for the same· purpose as Cloughrll, no person look· ingatit;9r using it understand that it was to be. used in the way Clo,ugh's: is used, and ,it· is not. shown to l:!ave been really used and operated inthll-t ''ray.'" ..,. I " . . .. I
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"Suppose" it to be a fR<lt that·ill process lllumJOR. was dissolved 1j:l,cthebaW< aqode,an(1 was electrolyzed as In the Hall process, It was a IHere accident of, which De Ville made no note, and we maY rea'sonabiy Infef, he did not observe. 'Accidents of this character cannot be 'l'el'lM on as' anticipations' a pllltented process, when· the operator ddes 'not recognize the means by wbich U,le' ;acciqentai reIllld, not thereafwrconscioulillY adopt such meaullas a process fpl;' ' reaching the r,esult." . , ',' " ':' :' ;\' , : , , , .
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lJpOJlicareful consideration" we opinion that the Francillon patents do not anticipate the: Schultz ·. pa1:ents, and that the decision of the lcircuitcourt of appeals for the Tbirdcircuitinthe Zahn Case was correct, and should be followed by this court·· ' Decree for complainant. Ul\lTED STATES PLAYING-CAltD CO. v. SPALDING et aI.
(Circuit Court,S. D. New Ybrk. February 28; 1899.) PATENTfl..,...SUITS FOR
Where the question. of the violation by :l. defendant of an injunction Issued in a suit for hifrlngement of a patent depends on whether or not a new article sold by defendant since the granting of the Injunction Is an infringement Of, complainant's patent, which is an illtricate question, Ilependent on structure, and requiring a comparison Of the arti"le with others, and a consideration of other patents, the court will not undertake to determine.lt on a. motiOll fOJ: an attachment, but, no intentional violation being claimed, will deny the motion, and leave the complainant to his remedy by a new bilI.
OF INJUNCTION.
III :Jj:quity. On motion for l1:ttachment for violation of injunction. Arthur v.Briesen, for the motion. Fred. L. Chappel, WHEELER, in the opinion heretofore filed (92 Fed. 368) upon the motion for an attachment herein,