Atlantic Dynamite Co. v. Climax Powder Manuf'g Co.

72 F. 925, 1895 U.S. App. LEXIS 3303
CourtU.S. Circuit Court for the District of Western Pennsylvania
DecidedMarch 10, 1895
StatusPublished
Cited by1 cases

This text of 72 F. 925 (Atlantic Dynamite Co. v. Climax Powder Manuf'g Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Western Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Dynamite Co. v. Climax Powder Manuf'g Co., 72 F. 925, 1895 U.S. App. LEXIS 3303 (circtwdpa 1895).

Opinion

BUFFINGTON, District Judge.

This is a bill in equity, brought by the Atlantic Dynamite Company and the Repauno Chemical Company, assignees of two patents, hereinafter referred to as the “Schra-der Patents,” for alleged infringement of the same, against the Climax Powder Manufacturing Company. The patents in question are No. 333,344. for an explosive compound, applied for May 29, 1884, and issued December 29, 3885, to John C. Schrader and Russell S.Penniman,his assignee (the single claim of which is for “the porous-grained dope, substantially as hereinbefore set forth, embodying in each grain thereof a cellular mass of sulphur, within which combustible or noncombustible matters, such as vegetable or woody fiber, or coal, or asbestus, or furnace slag, or nitrates, are held as components of said grains”), and No. 333,347, for dynamite, applied [926]*926for June 3, 1884, and issued December 29, 1885, to the same parties ■(the single claim of which is for “the explosive compound, substantially as hereinbefore described, containing nitroglycerine housed and retained within hard cellular grains, composed in part of particles of solid carbonaceous matter held by a porous structure of sul-phur”)-

The first patent is for a “dope” or base for an explosive; the second, for the dope embodied in the first patent with nitroglycerine added. Complainants contend their patents are pioneer ones, and, as such, their claims are entitled to a broad construction; while respondents contend the patents are void for lack of invention, or, if valid, that, by reason “of the express limitations and restrictions of the specifications and claims of the said letters patent, and the disclaimers made by said patentee during the prosecution of the applications for said patents, neither of said letters patent can be construed to cover or include anything ever made, sold, or used by the respondents.” The record-presents a great amount of testimony, a very considerable portion of which is given by eminent chemists, and presents many questions of interest. It has received from the court the most careful and painstaking consideration of which a nonprofessional person in those lines of learning is capable. The view we take of this case does not require us to pass upon every question raised in the proofs, interesting as such inquiry would be to us; but we deem it our province to confine ourselves wholly to those questions which, in our judgment, constitute the issues in this case. Conceding, for present purposes, the validity of the patents, we have two inquiries before us: First, the nature of the invention disclosed by the patents, and the interpretation of their claims; and, secondly, have the claims, as thus determined, been infringed by respondents?

As complainants contend their patents are pioneer ones in nitroglycerine explosives, inquiry must" be made as to the prior art. Nitroglycerine was discovered by Sobrero, an Italian chemist, in 1846. It is a fluid1 formed by the action of concentrated nitric acid, in the presence of strong sulphuric acid, upon glycerine, at a low temperature. It freezes or crystallizes at 40 degrees Fahrenheit, and slowly liquifies again at 50 degrees. It must be handled with great care, as it is readily exploded by a blow or shock. This fact, added to its liability to leakage, virtually prevented its transportation. Sobrero’s discovery proved of little practical importance until about 1864, when Alfred Nobel, a Swede, made its commercial use possible. He found that “kieselguhr,” an infusorial earth obtained in Germany, could be used as a dope or base to absorb and retain as much as 75 per cent, of nitroglycerine, and the powerful explosive thus produced could be transported with comparative safety. His new mixture was given the now familiar name of dynamite, and to Nobel is due the credit of the application of nitroglycerine to practical use. The kieselguhr dope, it will be noted, was, so far as the explosive was concerned, an inert mass; and its sole purpose was as a receptacle for nitroglycerine. In 1873, Nobel, in his patent, No. 141,455, disclosed the idea of using a combustible dope, which, while capable of carrying the nitroglycerine, would also contribute to the explosive force of the [927]*927compound. His compound consisted of 70 parts of pulverized nitrate of soda, 10 parts of pulverized resin and 20 parts of nitroglycerine. He specified that, “instead of resin, other carbons or hydrocarbons, coal,” etc., might be used, and that 5 to 8 parts of flour sulphur may be added. These ingredients were to be thoroughly mixed, “so that,, so far as possible, each separate particle of the pulverized solid ingredients may have a coating of nitroglycerine.” In 1874, Mowbray, in patent Ho. 150,428, taught the use of extremely minute scales of mica as a base, which, though noncombustible, were externally coated with nitroglycerine, as contrasted with the absorbing or capillary action of Nobel’s kieselguhr. The external coating or film of nitroglycerine, thus shown with a noncombustible'dope, has been used to great advantage to increase the efficacy of the explosive, when, in the subsequent development of the art, it was applied to a combustible dope. It will be noted that all of these powders required a large amount of nitroglycerine; the lowest, ihe Nobel, having 20 per cent. They were of a class which, from this fact, came, in the after development of the art, to be styled “high-grade powders.”

In 1870, Egbert Judson, of California, made a marked departure from prior methods, in patent No. 183,704. His idea was to largely reduce the amount of nitroglycerine, and thus cheapen cost, but at (lie same time produce a powerful explosive. His specification recites that, in former practice, seldom less than 15 per cent, of nitroglycerine had proved effective, while, in fact, from 30 to 40 per cent, was generally used: that his purpose was to produce a cheap, safe, and powerful explosive, with 1, 2, or 3 per cent, nitroglycerine. He contemplated, also, as we shall see, the possibility of the use of as much as 15 per cent. The specification recognized that, owing to the absorbent nature of prior dopes, a small percentage of nitroglycerine was “so completely absorbed or taken up by the dry mixture that the compound becomes practically inexplosive.” Judson’s object was to so modify or counteract the absorbent capacity of the dope “that,” as he says, “its grains * * * will receive and retain the nitroglycerine upon their surfaces, or mainly upon their surfaces, with little or no absorption.” By this means, a very small proportion of it would maintain an external continuity throughout the grain mass, and make the whole explosive. He also purposed lessening its tendency to absorb moisture. To secure these results, he directed that “the grains or particles of the dry mixture shall be coated, cemented, varnished, or smeared with some combustible substance, offering resistance to absorption of nitroglycerine and of water,” etc. He suggests a range of variation in the ingredients, from such as are “extremely fine or pulverulent,” to those which are coarser, — a fact worthy of consideration in determining the scope of the patents and the experiments made by the respective experts. As illustrative of one method of making his powder, he takes 15 parts of sulphur, 3 of resin, 2 of asphalt, 70 of nitrate of soda, and 10 of anthracite coal. The sulphur, resin, and asphalt are melted together, and well stirred, and in this mixture, while melted, the nitrate of soda and coal, both ■pulverized and thoroughly dried, are to be mixed and well, stirred, until thoroughly varnished, cemented, or coated by the melted mix[928]*928ture.

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Bluebook (online)
72 F. 925, 1895 U.S. App. LEXIS 3303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-dynamite-co-v-climax-powder-manufg-co-circtwdpa-1895.