type (the oil flows in a direction counter to the flow of the flue gases), and consists of 4-inch tubing forming coils approximately 1,600 feet in length. The coils are located in a furnace having a convection heat section and a radiant heat section.
7. As originally filed in the Patent Office, the application contained twelve apparatus claims, and later three others were added. All of these apparatus claims were rejected upon the prior art.
The claims in suit are method claims. They disclose a method of distilling hydrocarbon oils which differs from that set forth in the prior Peterkin patent No. 1,709,874, application June 4, 1925, only by the substitution of steaming columns for the condensers shown by Peterkin for the purpose of raising the flash point of each side stream distillate. The method and extent of the heating of the oil, its discharge into a fractionating and stripping column, the operation of the column, the withdrawal in side streams of a portion of the reflux in the column from intermediate plates, were all exactly as shown by Peterkin.
8. In November, 1924, plaintiff built and successfully operated a unit which was substantially as whown by the drawings and specifications of the Peterkin patent.
9. An exhausting section, or steaming column, had been long known in, and was a common tool of, the art of distilling hydrocarbon oils, at the time the application in suit was filed. Its employment was the use of an old device for accomplishing its well-known effect, and its attachment to an intermediate side stream of the Peterkin patent did not constitute invention.
10. Prior to the grant of the patent in suit, manufacturers of equipment for the distillation of petroleum, other than plaintiff, had built fractionating and stripping towers, similar to that of defendant, which provided means for stripping intermediate side streams.
11. The feature of taking off a side stream from a rectifying column, the amount of which being less than the whole of the condensate at the point of withdrawal, and the balance of the condensate going down the column countercurrent to rising vapors, is disclosed in Weisberg patent No. 1,676,232, issued July 3, 1928, pursuant to application filed November 29, 1921.
12. The Vacuum Oil Company, from 1918 to 1928, at its Olean, N.Y., refinery, operated a fractionating unit which was made up of a shell heater, a tower into the bottom of which oil vapors from the heater were discharged, and means for condensing the vapors as they passed upwardly, creating a plurality of fractions which differed in their boiling points. These fractions were drawn off as side streams, each fraction being stripped by open steam before withdrawal. This unit, as originally constructed, was based upon the teaching of Wright & Atwood patent No. 1,278,280, issued September 10, 1918, which discloses a method of bringing side streams of petroleum to specifications by stripping them by means of open steam prior to their withdrawal from the fractionating tower, i.e., interior stripping, as in Fig. No. 2 of the patent in suit.
13. Fig. No. 2 of the drawing attached to the patent in suit, as illustrating a form of apparatus for the operation of the process of the patent, disclosed a fractionating and rectifying tower wherein side streams were stripped by means of open steam prior to their withdrawal from the tower. This form, which is similar to defendant's tower in operation, was not the suggestion of the patentee herein, Joseph W. Lewis, Jr. Lewis' suggested form was as in Fig. 1 of the drawings, which shows short steaming columns outside of the tower. Fig. No. 2 was inserted in the instant patent after an interference had been declared with Primrose patent No. 1,893,906.
14. The Shell Company, in its operation at Martinez, Cal., as early as 1916, conducted a petroleum distillation operation wherein the oil was heated in a coil pipe, discharged into a separating chamber, with condenser attached, and steam stripped, the vapors being forwarded to eight dephlegmators, each consisting of a rectifying section, a partial condenser, thereby furnishing reflux, and a stripping section. Open steam was used in each dephlegmator to strip the particular part of the side stream within it. This unit was described in a book written by Dr. E. H. Leslie in 1923, entitled "Motor Fuels." In it he suggested a substitution of a steaming column for the separators shown by the patent.
The Shell Company also operated a petroleum distillery at Wood River, Ill., in April, 1925, where a slight difference in the procedure existed. The residue from the evaporator was sent through a series of steaming columns for stripping.
15. The date of discovery of the patent in suit is anticipated by Leslie and Baker patent No. 1,868,466, filed June 29, 1925, and issued July 19, 1932.
16. The use of open steam for effecting vaporization, and particularly for stripping either residual oil or a distillate, is one of the most common and frequently used expedients in distillation for the purpose of obtaining a specification product, and was known in the petroleum art long before Lewis' application for the patent in suit.
17. The charge that plaintiff has suppressed evidence has not been established by the proof.
Conclusions of Law.
I. Defendant infringes the patent in suit if the patent is valid.
II. Claims 1 and 2 of Lewis patent No. 1,680,421 are invalid, because they present nothing but an aggregation of elements, each of which was old in the distillation art and performed its regular and well-known function.
III. Said claims in suit are invalid, because they disclose merely the use of a steaming cloumn to strip a distillate side stream which has been produced from a fractionating and rectifying tower, old in the art, the steaming column being a device long used in the distillation of petroleum and operating under the claims to function as it always had functioned in accordance with the laws of its being.
IV. A steaming column and its function being so long and well known in the distillation art as to be a "tool" of the art, no one may appropriate its use to himself and exclude others from using it in any usual way for any purpose to which it might be applied.
V. That a number of equipment manufacturers, prior to the issuance of the patent in suit, independently of the patentee or his assignee, installed apparatus similar to the alleged infringing device, tends to show that the alleged invention was a product of mechanical skill, and not invention.
VI. The plaintiff's bill of complaint should be dismissed.
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