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April 17, 1936


The opinion of the court was delivered by: GIBSON

GIBSON, District Judge.

The court makes the following findings of fact:

1. This is a suit for the infringement of two patents relating to the distillation of petroleum. Loomis patent No. 1,756,032, issued April 29, 1930, upon an application filed June 8, 1922, is for a process applicable to the distillation of crude petroleum generally, or petroleum from which the lighter fractions have been removed. Loomis and Lewis patent No. 1,746,198, issued February 4, 1930, upon an application filed June 2, 1924, is for a method for the vacuum distillation and rectification of paraffin distillate.

 2. These two patents are owned by the plaintiff, Standard Oil Development Company, a subsidiary of the Standard Oil Company of New Jersey. The defendant, James B. Berry Son's Company, is a Pennsylvania corporation, a subsidiary of the Quaker State Oil Refining Company, and conducts the operations against which the suit is directed at its refinery at Oil City, Pa.

 Findings Relating to the Loomis Patent.

 3. Petroleum is a very complex mixture of different hydrocarbons which may be separated according to their volatilities by distillation.

 The conventional method of distillation in use at the time of the Loomis invention in 1922 involved the use of large cylindrical vessels known as shell stills. In its simplest form, this distillation was conducted by placing a charge of oil in a still and applying heat. The constituents of the highest volatility were vaporized first and, as the temperature was increased, constituents of progressively lower volatility were vaporized. The vapors were condensed and the condensate segregated as desired to form the various commercial products such as gasoline, kerosene, etc.

 Shell stills were also used in batteries to enable continuous operation. In this operation the oil was passed through a series of shell stills maintained at progressively higher temperatures, products of successively lower volatility being vaporized and withdrawn from the respective stills.

 In some distilling operations the oil was heated in a coil pipe heater placed in a furnace.

 4. Rectification columns were sometimes used in connection with shell stills to improve the separation between products of relatively high volatility, such as gasoline, kerosene, etc. This was accomplished by passing the vapors from the shell still upward through a column which contained means, such as "bubble plates," for compelling intimate contact between the rising vapors and a descending stream of liquid "reflux" condensed from the vapors at the top of the column. The heat for this operation was conventionally applied to the still at the bottom of the column. In the conventional use of a rectification column, the product was fed to the middle of the column, and this was done in some operations.

 5. Petroleum is quite sensitive to heat, its heavier molecules decomposing if maintained long at high temperature. Sometimes, as when large quantities of gasoline are desired, petroleum is deliberately decomposed or "cracked" by subjecting it to high temperatures. But any considerable destruction of the heavier molecules is disadvantageous where it is desired to produce lubricating oils.

 6. Two outstanding characteristics of shell still operation were the long time during which the oil was maintained under heat and the relatively high temperature necessary to secure the desired vaporization. Both of these things were correlatively conducive to decomposition. The temperatures required to vaporize lubricating stocks in shell stills at atmospheric pressure are within the cracking range.

 7. The process disclosed by the Loomis patent for the distillation of petroleum is carried out with the aid of one or more pipe stills and rectification columns. Considering the operation of a single pipe still-bubble tower unit, the oil is passed rapidly through the pipe still -- a coil located in a suitable furnace -- and is heated in this way in a very short time to a temperature sufficient to vaporize that portion of the feed which it is desired to remove as distillate and also enough of the balance to serve as reflux in the rectification column. The entire feed (both the vaporized and unvaporized portions) is then discharged from the pipe still directly into an intermediate zone of the rectification column. The feed contains substantially all of the heat that is required for the operation. The specifications, however, mention steam, in open or closed coils, as a heating means at the bottom of the column. Also, heated product from the second unit is returned to the preceding unit. Steam is admitted at the bottom and rises through the column in intimate countercurrent contact with the descending liquid in one form of the operation. Light fractions dissolved in this descending oil are "stripped" from it by the rising steam. The rising steam passes through the liquid in the separating chamber and continues upward in the column with the vaporized portion of the feed. A portion of the vapor reaching the top of the column is condensed and permitted to flow back down the column against the rising vapors. The interaction between this descending condensate, or reflux, and the rising vapors gives a rectificatory separation between the distillate and the residue.

 The residue from this column may be fed to a second pipe still-bubble tower unit where it undergoes a similar treatment.

 Either or both of the columns may be operated under vacuum to reduce the temperature required for the distillation.

 As a result of its operation, each unit puts out one distillate and a residue.

 8. The use of the pipe still greatly reduces the time under heat. It also assists in the prevention of cracking by the vaporization of the heavy fractions in the presence of the light ends. The carrying effect of the light ends, which is utilized in this "flash" vaporization, enables a greater amount of vaporization to be obtained at the same temperature, or the same amount of vaporization at a lower temperature, than could be obtained by the progressive vaporization of the old shell stills.

 The application of the heat for the rectification operation to an intermediate point in the rectification column (through the feed stream) combined with the steam stripping of the unvaporized portion of the feed flowing down through the column, enables the operation to be conducted at a lower temperature level than would be possible if the heat were applied at the bottom of the column, as in shell still operations, and therefore permits the vaporization and rectification of heavy oils that could otherwise not be vaporized and rectified without cracking.

 The imposition of a vacuum upon the system, which further reduces the temperature necessary for a given vaporization, also contributes to the ultimate result.

 9. Claims 10, 11, and 12 of the Loomis patent are in suit. Claim 12, which is typical, is as follows:

 12. The method of distilling hydrocarbon oils which comprises passing the oil in an externally heated confined streain through a heating zone, discharging the oil into an unheated separating chamber, supplying steam in said chamber so as to pass through the liquid therein, removing separated vapors and steam from said chamber, subjecting the removed vapors and steam to a controlled refluxing action and returning reflux to the separating chamber."

 Claims 10 and 11 are substantially the same except that they do not include the provision that reflux is returned to the separating chamber and claim 10 specifically includes the operation of the system under vacuum.

 10. The claims in suit were taken from Hunneman patent No. 1,676,609, issued July 10, 1928, and were made in a renewal application by an amendment filed July 2, 1929, seven years after the original application was filed. The renewal application was made by plaintiff, and was not supported by oath of the original patentee, Loomis, that he was the inventor. The claims in suit were presented four years after the patentee, Loomis, and Mr. Howard, an officer of plaintiff company, had seen the operation of a Peterkin still (patent No. 1,709,874) which was substantially identical with defendant's atmospheric unit, and more than two years after the disclosure of said Peterkin still in "Heat Engineering," a publication widely distributed among the oil refiners of the country.

 11.No single unit, or combination of units, as described by the specifications of the Loomis patent, have ever been put into commercial use.

 12. The defendant is operating two pipe still-bubble tower units connected in series. The first of these units, referred to as the Foster-Wheeler unit, is operated at atmospheric pressure. The second, or Badger unit, is operated under vacuum. The operation column. Steam is admitted at the base the operation disclosed in the Loomis patent.

 Crude petroleum is externally heated as it passes in a confined stream through the pipe still of defendant's Foster-Wheeler unit. It is then discharged into an unheated intermediate zone of the rectification of each of these units closely parallels of the column and at several upper parts of the column, and passes upwardly through the liquid descending, stripping out the light ends. The oil vapors and steam which flow upwardly through the column are subjected to rectification by contact with a part of the condensate which flows down through the column. The operation of this atmospheric unit is covered by Loomis claims 11 and 12.

 The reduced crude discharged from this unit as its residual product is fed to the vacuum unit. The operation of the vacuum unit is the same as that of the atmospheric unit except that the rectification column operates at subatmospheric pressure.

 13. The method of petroleum distillation of plaintiff's Loomis patent discloses the use of a coil heater, the feeding of the heated oil from the coil to a middle section of a fractionating tower, the use of open steam for stripping purposes (one form), the subjecting of the steam with the vapors of the heated oil to a controlled refluxing action (i.e., by a condenser), and the maintenance of subatmospheric pressure upon the system. All of these elements were old in the petroleum art, and each acted to perform its ordinary and well-known function, the total result being the addition of the individual results of the elements of the operation. 14. All features of the claims of the Loomis patent are disclosed in patents of the prior art, as follows: Vaughan Patent No. 49,689 Aug. 29, 1865; Frasch Patent No. 845,735 Feb. 26, 1907; Borrmann Patent No. 1,220,067 March 20, 1917; Bergstrom Patent No. 1,271,654 July 9, 1918; Hudson et al. Patent No. 1,303,321 May 13, 1919; Koppers Patent No. 1,323,396 Dec. 2, 1919; Tschudy Patent No. 1,348,606 Aug. 3, 1920; Primrose Patent No. 1,614,689 Jan. 18, 1927, Filed April 7. 1921; Behimer Patent No. 1,936,657 Nov. 28, 1933, Filed April 7, 1921; Baudry Patent (British) No. 29,479 Dec. 31, 1904.


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