Badische Anilin & Soda Fabrik v. Kalle

104 F. 802, 44 C.C.A. 201, 1900 U.S. App. LEXIS 3981
CourtCourt of Appeals for the Second Circuit
DecidedOctober 16, 1900
DocketNo. 70
StatusPublished
Cited by32 cases

This text of 104 F. 802 (Badische Anilin & Soda Fabrik v. Kalle) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Badische Anilin & Soda Fabrik v. Kalle, 104 F. 802, 44 C.C.A. 201, 1900 U.S. App. LEXIS 3981 (2d Cir. 1900).

Opinion

LACOMBE, Circuit Judge

(after stating the facts as above). It would certainly seem a work of supererogation to undertake to add anything to the exhaustive discussion of the issues in this cause which is found in the opinion of Judge Coxe, sitting at circuit. 94 Fed. 163. Inasmuch, however, as the record is voluminous, the briefs and arguments most elaborate, it may be well to indicate, as briefly as the nature of the ease will admit, the reasons why we concur in his findings and conclusions.

Certain propositions are now either expressly conceded by both sides or are undisputed upon the proof. A preliminary statement of them will somewhat simplify the discussion.

The "earliest date of invention'’ is January 2, 1892, the date of the filing of the complete specification for the British patent. The chemical product safranine azo naphthol was old; the patent asserting, and the complainant contending, however, Unit the literature of the art discloses no prior safranine azo naphthol available as an anticipation which was soluble in water. It will, of course, be readily understood that a dyestuff which is insoluble in water is not as available in the art as is one which is water soluble. “I agree with the statement,’" says one of defendants’ witnesses, “that the nonsulphonated compounds, when once prepared, cannot be dyed on account of their insolubility.” The product in suit belongs to a group of chemical compounds prepared by the action of a diazo compound and an oxy, that is a phenolic body, which are referred to in the prior literature as insoluble in water; but prior to the patent it had been found that by the introduction of a sulpho-acid group they could be so transformed as to be rendered soluble for application in dyeing processes. The chemistry of this transformation need not be discussed here. It is sufficient to say that all the witnesses recognize two distinct varieties of azo dyes of the kind under discussion, — the unsulphonated and the sulphonated. Moreover, the solubility secured by sulphonation is gained at the cost of rendering the product unlit for cotton dyeing generally.

[806]*806There is no prior American patent, and although the answer, as amended, sets up a prior use at Buffalo, N. Y., no evidence was produced to establish it. There is no proof which would warrant a conclusion that the patentee at the time of his application did not believe himself to be the original and first inventor or discoverer. Therefore, under section 4923, Rev. St. U. S., testimony tending to show knowledge or use in a foreign country need not be discussed. It will be sufficient to inquire if there is proof that Julius’ invention was, prior to January 2, 1892, “patented or described in a printed publication”; and that description must be such as to show that the article described in the patent can be certainly arrived at by following the description (Atlantic Co. v. Parker, 16 Blatchf. 295, Fed. Cas. No. 625), without the assistance of local'prior knowledge or local prior use in the foreign country where the description is published..

Much time and space have been devoted to an effort to establish “prior use” in Germany. Since such prior use, if established, would be no defense, under section 4923, it is difficult to understand .why the record is thus incumbered. The various patents or publications on which defendants rely are the following:

Holliday Patent.

British letters patent were granted April 14, 1881 (No. 1,637), to Thomas Holliday, of the firm of Bead, Holliday & Sons, of Huddersfield, for an invention of “improvements in obtaining coloring matters for use in coloring cotton and other textile fabrics.” This is the first printed publication on the subject of safranine azo naphthol as a coloring matter. The specification states:

“The improvements relate to the employment of the coal-tar color, known in commerce as ‘safranine,’ and which color I treat with nitrous acid, and combine the product with alpha or beta naphthol. or mixtures thereof, and which combination may be made in the presence of the fiber. As an example for carrying out these improvements, I prepare — First, a solution of. say, 2 parts of naphthol, 1 part of caustic soda, and 100 parts of water; secondly, a solution composed of 1 part of safranine in 1,000 parts of water, with two parts of muriatic acid, 22 degrees Beaume; to this latter solution add 10 parts of nitrite of soda solution, 30 degrees Beaume. I do not, however, confine myself to this means of azotizing, as other methods may be adopted. By mixing these respective solutions, the coloring matter will bo precipitated. I prefer, in mixing these solutions, to add the second to the first, but this may be varied. The combination of the solutions in the presence of the fiber may be effected by first impregnating the fiber with the first-mentioned solution, and then with the second solution, and finally with an alkali, so as to fully develop the color. The order of the impregnations, as well as the strengths of the solutions, may be varied; care being taken that the azotized safranine, the naphthol, and the fiber are simultaneously present when an alkali operates to develop the color.”

It will be noted that this patent calls for a combination to be “made in the presence of the fiber”; tliat is, the fiber is first impregnated with one constituent, and then with the other. This was at the time a common method for dyeing with colors which, in combination, were insoluble, and at that time no dyes were produced on the fiber save those which were insoluble in water. A direction, therefore, to dye in presence of the fiber may fairly be taken as a-[807]*807declaration that the coloring' matter is insoluble. The three experts who testified for the complainant all stated that they had repeatedly experimented, following the directions of this Holliday patent, and that the product was inrariably insoluble in water. They were not cross-examined as to these experiments, nor did any witness for defendants contradict them in this particular. Therefore although the Holliday patent does not expressly state whether its product is soluble or insoluble, it must be understood to be water insoluble, and, indeed, defendants brief seems to concede this. The Holliday patent, therefore, does not describe a water-soluble safranine azo naphthol.

Chemische Industrie 1882, p. 7.

This is a mere reference to the Holliday patent. It is not separately discussed in appellants’ brief, and is referred to here solely to indicate that none of defendants’ alleged anticipations have been overlooked.

The Moniteur identifique.

In September, 1885, the firm of Beyer & Kegel applied for a German patent in manner following:

“Preparation of Xew Blue Coloring Matters.
“It is known that the safranines obtainable from primary aminos can be transformed with nitrous acid into diazo compounds. We have now found that the combinations of these diazotizod safranines with phenols or its sulpho acids form dyestuffs, which are distinguished by a dark blue, indigo-like shade. We give the following examples: (T) 32 kg. phono safranine are dissolved in a sufficient, quantity of water, mixed with about 25 kg. muriatic, acid, and converted into the hydrochlorate of the diazo compound by adding an aqueous solution of 7 kg. of sodium nitrite. This diazo compound is then poured into an alkaline solution of 22 kg. B-naplitlioI. whereby the coloring matter is formed.

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Bluebook (online)
104 F. 802, 44 C.C.A. 201, 1900 U.S. App. LEXIS 3981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badische-anilin-soda-fabrik-v-kalle-ca2-1900.