Permutit Co. v. Wadham

294 F. 370, 1923 U.S. Dist. LEXIS 1155
CourtDistrict Court, E.D. Michigan
DecidedNovember 8, 1923
DocketNo. 277
StatusPublished
Cited by2 cases

This text of 294 F. 370 (Permutit Co. v. Wadham) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Permutit Co. v. Wadham, 294 F. 370, 1923 U.S. Dist. LEXIS 1155 (E.D. Mich. 1923).

Opinion

TUTTLE, District Judge.

The plaintiff, the Permutit Company, a corporation of Delaware, brought its bill of complaint in this court against Frank I,. Wadham, Barnet Dalitz, Aaron Jackson, and Nathan Dalitz, a copartnership doing business in Detroit under the name and style of Massachusetts Laundry Company. The original bill charged infringement of United States letters patent No. 1,195,923, for the softening of water, granted August 22, 1916, to J. D. Riedel Aktien - gesellschaft, of Germany, on the application of Robert Gans, filed August 5, 1911, and also charged infringement of United States letters patent No. 1,276,629, of August 20, 1918, for method of an apparatus for softening water, which were granted to the plaintiff on an application of Thomas R. Dpiggan, filed October 23, 1916. Plaintiff acquired ownership of the Gans patent through assignment from the Riedel Aktiengesellschaft.

The apparatus complained of was manufactured and installed for the Massachusetts Laundry by the Borromile Company of America, which intervened and became a party defendant.

After certain depositions had been taken on behalf of defendants, the plaintiff withdrew the Duggan patent by filing an amended bill omitting reference thereto.

The Gans patent relates to the art of softening water by what is known as the zeolite process. The softening is accomplished by merely passing hard water through a filter bed of granular sodium [372]*372zeolites. Zeolites are minerals which have the peculiar faculty of exchanging the base with which they may be chemically combined for another which is present in a solution brought into contact with the zeolites. In their use for softening water, the zeolites — or, as they are sometimes known, the double silicates of, alumina, or of iron, or of both, as the case may be — when containing a sodium base will exchange that base for the calcium and magnesium in hard water; the exchange continuing until the sodium in the zeolites has been exhaust-' ed. This exchange leaves the water soft. These same zeolites, now having a calcium base, may be re-established as agencies for the further softening of. water by bringing them into contact with a solution of sodium chloride, or common salt brine, in which case the brine picks up the calcium from the zeolites and leaves in its place an equal amount of sodium. This step of the process is commonly called “regeneration.”

The Gans patent provides apparatus in which the softening of water and the regeneration of the zeolites may be' carried on alternately. The patent does not purport to cover the zeolites themselves, or their use for the softening of water. Zeolites, their properties, and their utility in this direction had been known and described many years prior to the filing of the application for the Gans patent.

Zeolites are of two general classes — those found in nature and those prepared artificially. Gans, the inventor of the patent in suit, may be given credit for having ¿discovered and perfected certain methods of preparing zeolites synthetically. With his discoveries in this direction the commercial use of zeolites commenced. Later on, when the art was established in this country, certain deposits of glauconite, commonly known as “green sand,” present in large quantities in New Jersey and elsewhere, were found to have all of the properties ancb characteristics necessary in the softening of water by the base exchange method, and to be readily adaptable for commercial utilization.

The plaintiff uses zeolites of the artificial type, while' defendants use the green sand. There is no contest in this case over the right of defendants to use their, zeolites. The whole question centers about the apparatus in which these zeolites’ are employed; the Gans patent in suit relating solely to apparatus. The structural elements of the Gans apparatus may be summarized as comprising a cylindrical casing, having a mechanical filter bed of sand or quartz in 'the upper portion and a filter bed of zeolites in the lower portion thereof, with suitable pipes and valves to permit and control the passage of hard water through the casing and through the filter bed of zeolites therein for softening the water, and the subsequent passage of sodium chloride solution through the casing and zeolite filter bed for regenerating the zeolites.' Auxiliary valves and pipes are provided for backwashing the filtef beds to remove impurities in suspension, which have been arrested and collected by the filter beds.

The invention claimed by Gans resided in details of construction. No automatic operations or mechanical movements are involved in claims 1 and 5 of his patent, which are here in issuer As granted by the Patent Office, claim 1 reads as follows:

[373]*373“1. A water-softening apparatus comprising a casing, a filter bed consisting of a layer of sand or quartz and a layer of zeolites or hydrated alumino-silicates disposed on the layer of sand or quartz, means for permitting the passage of water through the easing, means for cutting oft the supply of water on the exhaustion of the zeolites, and means for passing through the casing a solution of a salt capable of regenerating the zeolites.”

In tracing the history of this "claim through the Patent Office, it is notable -that the margin of patentability therein is restricted to disposition of the layer of zeolites upon a layer of sand or quartz. Gans failed to persuade the Patent Office that the claim, unless so limited, was patentable, for the file wrapper discloses that another claim, substantially the same as claim 1 of the patent, except for the ^limitation noted, was presented concurrently therewith, and was vigorously prosecuted on behalf of Gans, but without effect; the Patent Office holding that no new patentable combination was provided. The Bom-marius patents, .No. 519,565, No. 632,091, and No. 708,899, of earlier date, showed the same combination of structural- elements. The Patent Office also took the view that the substitution of a filtering material of zeolites, as advocated by Gans, for the filtering material of sand provided by Bommarius, was a mere double use of the old Bom-marius apparatus. Gans subsequently canceled and abandoned the broader claim.

It is to be observed that the means for backwashing the filter beds to which I have alluded are not included in claim 1, nor comprehended in the recital of elements which compose the claim. Gans’ use of his apparatus involves passage of hard water through the casing from: the top to the bottom, and passage of the regenerating solution also from top to bottom; withdrawals in both cases being made from the lowermost point of the casing. These are the only steps mentioned in the claim. I must assign, as the reason for failure to claim the means for effecting backwashing of the filter beds, the admission of want of novelty in this step, which is found at the beginning of page 2 of the specification, where it is stated that the backwashing is to be accomplished in the usual manner, by passing a current of water through the zeolite filter bed in the reverse direction, for the purpose of removing slime, mechanically collected matter, etc., which would mean a flow of backwash water from the bottom to the top of the casing. The same Bommarius patents cited by the Examiner during the prosecution of the Gans application fully disclose such backwashing for the purposes stated, and that there was nothing patentable to Gans in this step, or in the means for accomplishing it, is expressly conceded -in the specification of the patent in suit.

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Related

Permutit Co. v. Graver Corp.
284 U.S. 52 (Supreme Court, 1931)
Permutit Co. v. Graver Corporation
43 F.2d 898 (Seventh Circuit, 1930)

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Bluebook (online)
294 F. 370, 1923 U.S. Dist. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/permutit-co-v-wadham-mied-1923.