Transcript of Record — Standard Oil Co. (Indiana) v. United States

‘Supreme Court of the United States

OCTOBER TERM,19300

2 raxnanp OiL COMPANY (INDIANA), STANDARD

| © OIL COMPANY (NEW JERSEY), STANDARD DE- -

|. VELOPMENT COMPANY, ET AL, APPELLANTS, —

| ° DHE UNITED-STATES OF

— | OCTOBER TERM, 1990.

SG sani

Ss

aes OIL COMPANY (INDIANA), STANDARD

__ Ol, COMPANY (NEW JERSEY), STANDARD DE-

VELOPMENT COMPANY, ET AL, APPELLANTS,

% | | *

eye! ’ v8. :

THE UNITED STATES OF AMERICA

_ APPMAL. ‘FROM THE DISTRICT COURT r Or THE UNITED STATES -

eee FOR THE NORTHERN eheaaisicinial or ILLINOIS ie

La ; f

vot ye ES

°

_ INDEX:

967-8281

Warten K. Lewis: aaa oe cssesese 1900 5006

; pane & anes, peoscdeesee: SAR OO

Charles W. Schheffer.....2.......... 1817) 3674

Roar snare Sone a 1318 8677

* . Ralph H. McKee. (recalled)......... 1828 . 3685 _

George, B. micas oe Ree baveas s ve . ue oe. Vee

Warren K._ Lewis | Saseailad occ: SD baad A

Sratad senile narrative statement of Patent evi- %

Ke * dence cedercetenseaees eeeeees steer eeeassedeeees (4405. 8807 ae

& Darwen (Ina), Prins, Wasuinefor, D.C, Oompm 6 100 :

.

Burton’s: own“ oils are the round, ‘black dots: near r the Salis {

-. qurve in the lower left-hand part of the diagram. _ 2

- [fol.967] You will-see that they seatter arid fiuetuate, Tike :

any such series of actual determinaticns. -But he does shew _

‘a series of oils which have a certain typical gravity-visousity as

relationship, and- which, of course, tend to increase in vis- _-

ie cosity as you see, as the Baume gravity drops off, :

: Or, in other words, as the oils get heavier in gravity the

: viscosity tends to’increase. ~* |

~Q. Now, you. can take each, of those points, can you, oa es

verify it from the table? --

A. Yes. For example, in a plot like this, any india: on

‘the chart represents either some actual or some theoretical -

; oi, ‘which oil has the viscosity found by passing horizentally Sa

- ‘to the jeft-harid scale, and, the gravity, found by passing.

ae vertically down to. tlie lower scale.

- > For-example, the first oil-in‘Burton’s table is 28, 9 gravity, ae”

and 36 viscosity, and you will-note-that,it,comes above'the _

~ point 28.9, on the. gravity scale, and opposite the — 36,

on the viscosity scale. we

-. Similarly the position of each one of those eben cor-

responds to one. pair: of values given in the table, and can

be very readily: verified from that ‘table: ss for

.Q. Now, in addition to-these nineteen round ots ‘which

form a rough curve, for the Burton oils, have’/you put on.

‘this chart the other’points that Burton located’ on his other’

two tables, for his mid-continent oils and/ his California

ils? fe

were Yes, sir, I have: The. cll black triaaigglel repre- :

~ gent the California oils, mentioned in/ the: Burton omens

table. Those are six in number. ' Vans

a You will note that. they, too, form a more or less: charac-: :

- teristic series belonging in a certain family, and that we

might draw a rough line, or. curvé, _ representing their gen-

eral characteristics. And you will ‘also note that this fam-

ily of oils lies very much to the Tight and above ‘the oils

- cited by Burton. ae

In other words, for a given gravity, which i is , represented :

_ by one vertical line, where the viscosity of a Burton oil

might. at aah gravity, be’ about 50 seconds, the sapenee $

gogo

of thir. California oil is 138 seconds—a very great differ .

ence--bearing out the point which Burton. mentioned.

Also, we get the same result if we compare oils of a simi-

lar viscosity, along a horizontal line.. - . tNecetine C3 S

_ The mid-continent oils cited by Burton, are also shown

on this chart in the form of small black squares, five in _

number, and, again, you will note that those oils form a

[fol. 968] fairly characteristic series, still further away

from the Burton type of oils than were the California oils.

|. Talso wish to point out that on account of the limitations

of the Saybolt instrument, which does not give any read-

ings below 30 seconds—that, is, even the most fluid hydro-

carbons will flow through in about that time—the curves

\:. mecessarily flatten off to the right, somewhat above thirty

—.* In other words, all these curves will necessarily break ~

- away to the right, near the lower part, because, for ex-

ample, kerosene, from these fluids, of 45 Baume gravity will .

‘have a viscosity around 32 seconds.

’s oils are characteristically below and

of the characteristic curves for the ordinary

way to obtain similar products, even today, is to carry

out the operations which, while not under the narrower

limHation of the Burton product patent, i the es-

sentiat features of holding a stock like gas vil, for a: long

period of ‘tim a cracking temperature, removing the

heavier material and separatiyg it from the heaviest tar, —

essentially as Burton did. These are reglly uniquely dif-

ferent hydrocarbons, a quite remarkaple type of hydro-_

earbon—we don’t know, even today, just what they are—

but those, and other properties, show them to be quite dif-

ferent from ordinary petroleum hydrocarbons, or other ©

_ hydrocarbon mixtures in the prior a-t.

_ As I shall show, the real oils that were cited in sha pd

[fol. 969] art, also fall among these similar oils which\Bur- .

- ton cited, rather than approaching, at all closely, to the

Burton type of oils. | | | fs ngste oo ee

‘The Master: What is in my mind is this: if some other

manufacturer should find it desirable to make a product —

having a relationship of gravity and viscosity similar to

what is described in this Burton patent, and should go

about some other process to manufacture it, do-you feel that

the Burton product patent would enable you to prevent

him from doing sot) e rm Pina

_° .''he Witness: Well,:there are, of course, other limita-

. tions which Burton mentions. For example, he mentions

his hydrocarbons being of petroleum origin. He also men- :

- tions that they are substantially saturated, In other words, .

a person might make up such a mixture from benzol, which ~

is of rather low viscosity, for its gravity, or might take -

some peculiar coal tar product, or brown coal tar distil-

late, and artificially make a series of oils which would be _

like Burton’s, in this ofe respect, but which could be very

3 rage a mag ga from Burton in other respects. But |

. I should say that unless you can distinguish it by one of —

these limitations which Burton has, himself, made, that —

“it would come under the disclosure—of this patent, on a —

. Mew product.’ =.

. Q Now, having gone through the plotting which Bur- y

- ton did, if you want to find out whether any other prior.

a : ‘art oil had the gravity and viscosity characteristics of the

__. Burton product, what would you have todo?. _ i

r ; \

\

-. \A. Simply, if it was not’ already inSaybolt units, or

‘see whether it tended to fall among the characteristics of

i 1

a4

E

“gS Bs

ner

ry

Baume units, convert it to those ynits and plot it here, and

the. Bi oil, or whether it fell, more or less, among the

prior art oils, which Burton, himself, acknowledged. _.

; w, tell us what is the significance of the Burton -

equation which is mentioned in his specif. ,_

and in his claims? Senet Ae Roe

tala 3 oh

r rig tery f including a large scale plot, along with ae

the patent, Burton chose another common expedient, which —

is quite familiar, of expressing the unique relationship be-

tween viseosity and gravity, by means of an equation, —_

That is, for convenience in handling the equation, we -

| Swill call viscosity X, and gravity-Y, and then an equation ——

_ simply-is a method of ‘stating a certain relationship be

. tween Xand WY 6 oe a :

It turns out to be rath a complicated form of equa- |

; (fol. 970] tion, but it is.an equation meant merely to rep-) ¢

“resent this unique relatig

- just.as a plot might hav® done it,

hip that he is talking about— _

We can take this equation which represents a certain re-..._

lationship between gravity and viscosity, and draw a line

which represents that equation, _ « : |

_ That is me simply by solving the n for values -

of viscosity g to any assumed. of grav- :

a ity. If, for example, we want to find where the ec tion. :

comes on the 25 Baume line—we put in the 25 Bauk 2 fi :

F

g

€

ie

. In this case Burton’s equation comes somewhat closer

‘to the prior art than do the bulk of his points; ay

‘This practice of representing a curve -by an equation

js a very common practice in mathematics. ===

Q; And to a mathematician what is the significance ot;

the equation as indicating the curve? = es rp

A. The equation is simply an easy and simple method

-. to him, at least, of indicating the curve. Some of us. rather.

prefer the curves for ease of visualizing. aR Ss tan 8

"-Q, Now, please discuss the mathematical and ‘graphical

deviations of sus observed points, from the line of

“gay, this curve passes through

exactly satisfy the equation. Any other pol

_ will, therefore, if we substitute its values of gravity and vis

cosity in the equation, not satisfy the eqy ation, but show

a remainder left over, which we may calla deviation from

the equation, as plaintiff’s rt has d 1. nade pas

{fol. 971] “The Master: If & steps out one degree in either

direction, it is outside? Ba eee SA: aa i

- Phe Witness: It is outside of the exact equation, In -

fact, it would be almost impossible to get mere than one

as in a thousand experimental points, which would be ex-._

_ aetly.on the equation. The equation is just the way we _

“ean represent the general trend of the system. ..

‘What we find is characteristic of this Burton equation .

ig the deviation of his actual oils, which you will note, in

a deviations varying from minus 422 to minus 11604, for the .

_°. point which, in a mathermatical sense, at least, is furthest

_.. -from the curve. AN nc ast eer Hay Pace

_ There is-one point which is shown as coming just above —

. the curve, which gives a small positive deviation—I say

+ small, because the magnitude in any mathematical equa- —

| tion, is purely relative—a small deviation of + 1459, ac-

cording to my calculations.”

‘What we can say, then, with regard to the curve repre-

_ senting the equation, is that the Burton oils are char- —

a tically as shown. by his own specifications, oils which

show either very small positive deviations, or negative |

deviations from this equation—up to ten or twelve thou-

Dt oe Pow -

Rens a

- alb-but one case, fall below the line, and as indicated, have —

_- sand. These would be fairly considered as within the pur- _

_ View of Burton’s description. - = ...

_» .Q. Because these are actual oils which he describes? Ra

A. Yes, ‘sir, as being new and unique in this ‘Viscosity —

‘woationenip i aes

.Q. And of which the equation was, stated as ‘being an

‘ approximate representation? a gta |

or Yes, it is: meant only. to be approximate, of course.

- .Q. What is the’ magnitude of the deviation from the :

. Burton equation, of the prior art oils which he, himself, a

| A. The one which showed the smallest devidtion from :

his equation ig one of the California oils, with a viscosity 4

of approximgtely 146, which shows a positive deviation of

132750—in-Other words, a positive deviation nearly a hun- :

dred times as great as any of Burton’s oils. FU

“,Q. Please point that out-to the Master. That oil which .

- has the. least deviation of any prior art oil that he names

_' in his own patent? = Gace a tee

A. (Pointing,) Yes, sir, and you will note that it comes,

measuring in this way, among the closest to the curve. The-

[fol. 972} deviation, as measured ‘mathematically, and as

measured graphically, will not exactly correspond in the |

different parts of the chart. % a

The other oils cited by Burton all have greater devia-

tions than these, the maximum being another one of the

California oils shown at the top of this chart, which gives

@ positive deviation of 497961... es cutale calech fee 23

I may add that these deviations are approximately the -

“ame 4s plaintiff’s expert finally gave, although they do

‘-., vary by matters of a hundred or more, which is probably —

due’ to differences in the extent to which the figures are

carried out—or the ‘number of significant figures used:

‘Mine were done mainly on the calculating machine; some

of them being checked by ordinary calculation. But I am -

"perfectly willing, as far as the variations.in the figures

_ tare concerned, to accept Dr. McKee’s. The variations be- rad

_ tween our figures are not significant, as compared with the ~~

_ tremendous differences between Burton’s particular. oils _ uett

; _>Q. Now, have you marked on this chart the deviations,

+ plus and minus, for each of those oils of Burton’s table? > . 4

\ y ~

ss -- 3287

A, ¥ea, I have inarked on the ¢hdrt all the prigr art oils

showing plus deviations, while all but one of Burtor ’s oils.

show minus deviations. ie BD otek .

Q. In other words, his actual oils outdid his equation in reo

their difference from the art? nee 1 aye A

"4 Yes, his actual oils are even more different from the

art than is his characteristic equation. =, gis 00k

Q. Now, I want you to refer to the Aisi Publies-

tion. “Exhibit No. 118,”’ which plai expert cited

against this product patent, and ure, briefly, the

method of producing Aisinman’s oils, with that of making — 3

as to the nature of the products that Aisinman would pro-. —

duce, as compared with Burton. sak | Wie

A. Aisinman’s oils are merely the heavier products of —

an ordinary coking distillation, mest of them being lubri- |

eants, made in the ordinary coking operation, without pres- .

gure, and starting with crude oil. Whereas; Burton’s, as

I have already pointed out, are a type of hydrécarbons, not

present in ordinary crude oils, so far as we can determine,

and made by prolonged cracking under pressure, “and at

high temperature, of gas oils, form.a new. type of hydro-

‘ carbons, quite different from what we get from ordinary

crude... oi ; Oi

[fol. 973] One would, therefore, expect Aisinman’s oils to

differ from Burton’s in the same way that the other prior -

art oils differ. : PR TES ry

. _ There is no reason, whatever, to think that Aisinman. _

would get anything but a typical series of oils, made from

' mid-continent, or whatever type of crude he was work- -

ingon. Nene oe

Q. That ‘Aisinman Publication—as I recall it—and I

want you to correct me if I am wrong—is merely a descrip-*

tion of the ordinary coking still operation, in its early he

_ days—is that right? = hy Wee 3 -

_. .°Q, Now; do the actual ojls disclosed by Aisinman, have

_' ‘the gravity-viscosity relationship whieh you say you would —

: . Burton’s oils, and state what one would naturally expect

?

4A. Yes, they do—they: fall quite closely in the series of

_ oils which Burton. gives, except that. Aisinman gives one

oil with very light gravity, which comes’ somewhat out of

of

/ the range that Burton was describing, but even that is of | :

high viscosity for its gravity.

.Q. Now, have you plotted on the chart the gravity and

' Viscosity of the actual Aisinman oils? I don’t want you :

to discuss them but just. state whether they are there. -

A. Yes, sir, Ihave. che

Q. And “they are show are they, by the hollow black. 7

’ triangles on the chart, with solid lines? 2 :

A. Yes. This oil (indicating), this oil, this oil, and this’

‘oil are the actual oils which Aisfnman describes in his ref-

_ erence, and you will 1ote, that they form part of the series _ ed

-” which is characteristically différent from the Burton series

‘and quite close to the prior art oils which Burton, him-

self, cited. :

Q. Plaintiff’s expert indicated, however, that some of the

.. Aisinman oils came very close to Burton’s equation—how

Was he able to reach such a conclusion? -

A. Aisinman speaks, on page 1489 of the Book of Ex-

hibits, in the last three lines, of oils varying in specific

gravity, from .8 to .9, and in viscosity from 2 to 4 Engler.

Of course: that means to anyone skilled in the art; that .

he had a series of oils varying from one oil-with a viscosity

of 2 and a specific gravity of .8 up to.a viscosity of 4 and

_ -€ specific gravity of .9, and those two oils ‘are represented |

by the 2 hallow triangles which I have mentioned, on the

’ chart. Undoubtedly he had other oils in the general range ~

between these limits, |

Q. That is this one would-have a viscosity of ¢

| [fol. 974] A. Yes, and a specific gravity of 8—the oneon

the right of the‘chart—and this one would have a viscosity

of 4 and a specific-gravity of .9—somewhat heaviér—and

_. he means to disclose, undoubtedly, 4 series of oils ranging

. in that general direction. - nt ais’ tek

Plaintiff’s expert’s conclusion that Aisinman discloses |

"oil which came somewhere close to Burton was. based on an

entire misapprehension of this reference, in whieh he in--~

- dieated that Aisinman was disclosing not only the oils

which I mention, which’ are quite clear to anyone skilled in

oan but that he also meant to indicate oils with the _ ee

di ter specific gravity and the higher viscosity, and oil,’

also, with the heavier specific gravity and the’ lower vis- —

- eosity.

ge sear ld child was about three feet tall; and his ten year

tes *

aaa

“4 ¥

In other words, .he was crossing, or p ewitching the ends - =

of the series that Aisinman actually discloses, |

‘ The best way to make clear what this means, or aoata

to, is to suppose that a man made a statement that he had

a series of childrén Varying in age from 2 to 10 years,and =

+ varying in height from 3 to 5 feet. Now, anyone would

- know, of course,.that he meant to disclose. that. his: two

old. child was about five feet, ‘and that his other children —

-’ varied in between, in height’ and age—along a more or

less normal curve. Whereas, according to the method of -

' interpretation used by Plaintiff’s expert, ‘that father would

be held to disclose that he had a child two years old ‘and -- |

five feet tall, and another one ten years old and only three

feet -tall—this. resulting from wneete = ends of the

~ reference.

In other words, that method ee a an: imaginary

dwarf and an imaginary giant, neither of which were meant

to be disclosed, at all, by. the reference. The imaginary

' dwarf, of course, automatically has a low viscosity for

its gravity, and ‘lence, we find that the imaginary dwarf

‘ oils series, are those which seem to come rather close to

Burton’s oils.

Q. Have you plotted on this chart the imaginary oils .

: that Dr. MeKee conjured up hére?

- A. Yes, I -have. In ‘the Aisinman reference I have

plotted out the two actual oils by two solid line triangles.

- The imaginary dwarf oil, having the viscosity of the light

‘oil, and the gravity of the heavier oil, supposedly, is the ~—

dotted triangle at this point, which, being abnormally low—

far jower than Aisinman’s thought, or disclosure, does

happen to come fairly close to, the Burton equation. yh

(fol. 975] ° The. Master: And would vole say that it came _

within the ‘disclosure of the patent, here?

_ The Witness: That would be a matter of aE

_ would say, That shows a plus deviation of 37412; whereas

‘the nearest Burton oil shows a plus deviatich of only 1459. .

It comes muck closer than any actual oil, ‘and it is largely

a question of argument as to just where Burton’s precise

~ gline of demarcation, would come. it roe, be a Rasa |

“am close Teference. 9 ;

-* 3290 | :

2 \ ste: can any such ol ‘with those silieialiels be ages Boe

- by. the actual process that Aisinman describes? hier

Pie A. No, it cannot. 24

—Q: Now, take the other i imaginary oil that plaintiff's. ex.

pert conjured up—the one in the upper right hand corner

of the reetangle—and ‘tell us, in words, ‘what. that would

actually be?

A. That would mean that we had an oil with a ‘gravity of:

- & little over 45—which I ee wer a—which had a vis- —

cosity of 135 seconds—in other words, in-the light lubricat-

- Ing oil range, and, of course no such combination has ever —

been seen, and I-don t think it can be produced by any

_ Means. - Ba

Q. And in order to switch those ends he has to make two -

oils which are imaginary? :

A. Yes. :

Q. And neither one Foe them-i ‘is one that an oll man ever

yz . Sawt aA 3 :

|. A; No. a

Q. Now, did plaintiff’ *s expert oben’ this same is Aeipiidient

of switching ends of series, or any other reference?

A. Yes. Every time there is a series of oils cited, plain- - -

tiff’s expert adopted the expedient of switching the énds,

-and every time he thus created an imaginary dwarf oil, :

which came closer to. Burton than any of the actual oils |

Q. And, also, what you “have called an imaginary giant “y

oil, on the other side and further away? f

‘A. Yes. The other two cases are the. references in Aisin.

A. Yes, the other two imaginary oils that he took from

Aisinman, are again arranged in the rectangle, with- the

_ two real oils—I point to the two solid triangles, which rep- __

__ [fol. 976] resent the higher viscosity actual oils of Aisin-.

Ke Set ee ee ary Gwark and thé imaginary giant

_. Here, the fact that the gravities of the two real‘oils are _

ie rather close together, means that the switching of the ends __

_ does not produce as p y an absurd a result as before:

: : “BOL

~ govered the whole range, from the lightestto the heaviest

of his oils, we might have had a rectangle which would

have given us one oil up in the upper right hand corner

of the chart, and another oil down right among the Bur-

ees eee ererhe ss SIU PES en

_° But, we might, say, fortunately, Aisinman_ covered a —

- .° pather: narrow range in his separate disclosures, rather

than covering a wide range, which would make switching

ends a much more patently absurd proposition, =

Q. If you made the normal statement that one would —

-' make about the products from.crude oil, and apply the same.

gasoline as thick as cylinder ‘oil, wouldn’t you?

A. Yes. ke: 7 cae IAT eR

Q. And, conversely, you. would get a cylinder oil as thin

as gasoline? plniiesl SDS e Pane ae an

Pays Cy (Sue eee Mama Re ; caer

Q. Now, will you just show us what he did with the

Riebeck product oils when-he switched the ends and got

the two imaginary oils? e eS ;

A. The Riebeck. product oils are shown as hollow squares .

these in‘solid lines being the two real oils, and the two |

dotted hollow squares being the two imaginary oils.

_ . Again, the imaginary dwarf of the series, comes the. -

-. closest to the Burton reference, but since"we are not cover-.

ing a wide range deviation from Burton is still quite large.

Whereas, the imaginary giant oil has a deviation of plus

four hundred thousand. —— ‘es san tar at

- Q. Near the close of his cross-examination, on page 800

of the Record, plaintiff’s expert. gave a corrected table,

_ eovering most of the references which'he cited against this

patent. Now, I wish you would point out, in that table,

which of those oils are the real oils; and which are the

-.. imaginary ones?’ -~ os sale he 3

A. The first twelye of these pis represent three series,

_ two from Aisinman and one from Riebeck. ‘For convenience

_. I haye lettered the oils in series from A to M—the letters

A, B, C and D, therefore,represent one. series, and E, F,

_ G@ and H.a second series, and I, J, K, and L, a third series.

the group of four, are the real oils. The second oils in”

Bnet series B, F and J, are the imaginary giant oils, made _

‘procedure that the plaintiff’s expert did, you would get a eG

~ [fal.977] In each of these cases the first and last oils of —

ry, o-* ‘ . dk ® “—@ . : od e

by combining in high viscosity with low gravity, dnd the —

third ones, C, G and K; are the imaginary dwarf oils, which

are the ones ‘in each series which come closest. to the Bur-

ton equation, being made by combining the low viscosity

-*; — with the heavy gravity, to give a disclosure which was not © 4

> . - within the scope of the true disclosure. i) eh

.I have marked the’ imaginary giant oils, plus, and the =

3 imaginary dwarf oils minus, in each series. coe oa

.¢ ' Q. Plaintiff’s expert told us, on cross-examination—and

you have corifirmed his. judgment—that all normal series _

of oils the gravity and viscosity go up together? © st

Re MMS Boe BELO shave ee fad

- Q. That is, oil- gets heavier and thicker, as you take it

off? * ie Sak tar ae

-.Q. And ‘jn these groups the ones that you. say are real,

are the ones that are light and thin—I mean, the lighter

and thinner—and the heavier and thicker. ‘ _

. Respectively, yes. "4

. ° Q. That is, in the first one, 80 means that it is lighter

- 1 the 90, in weight, does it not? - Dt ae ee .

-, Ac \¥ea, sir. pak 1 Say ei as que |

_ ‘Q. In the first group, A, B, C, and D? ae

ih. Zee, ity. .- | re see: N 4

ers * the Engler viscosity of 2, means that it is the. :

hMawridhs 0. a fii,

. i : A, Yes, ir. otne CREE ae Soa

. Q. And the 4 means that it is thicker? ee

. A. Yes, sir, - | f

_Q. So that you put together only the light weight and

_ the. thin viscosity, and the heavy weight and the thick vis-

_ A. Yes, using them in the same order that Engler does. ©

Q. Just as if he had said, “trespectively’’ in his dis- -

_ A. Yes, sir, that being absolutely implied to anyoné who

isfamiliar withoils, .- .° Hechter sal an

_ &. You would say ‘varying the gravity from 8 to .9,.

nd the viscosity from 2 to 4 respectively??? = 8§«s_ («si(iti‘( tt

S ES a te

+ Q. And that is all you have done here? _ Sages

é i. “to. 978) le sia: ae plaintift’s eipert aipiets from.

. the ‘‘respective,”” you say the oils: are imaginary - :

Nie A Yeas ee

-*. Q, And these same things that.I Have po ated out with

, . Z este ened tid Perigeie

ae . = age : EO aie

ei a * My Fi . - i é a's

co bs “ $293 Se

~ - . apa

.

- yegard to the first series, is ee bic’ a have done hers

ith the other two?

aa Yes, sir. ; | ;

-Q. Your selection of what are real and what are imagi-

nary, depends on precisely thé same considerations that I

have just. gone over with you, on the first four? saat’

A You.

Q. Now, I wish you would please refer to the diserepan-

cies calculated for these twelve oils, by the plaintiff’s ex-

pert, on the basis of the Bureau of Standards Conversion § —~

-. Tables, which have been admitted by plaintiff’s expert as

: ‘being the most accurate conversion tables available, and

discuss their significance. .

A. Confining ourselves, first, to the real oils disclosed, _ .

the deviations vary from oil * which is plus 126000—and

I will omit the lact three figur’s, as not being of particular -

moment—to oil-H which is the Manes one, with 407,000 °

. positive deviation. :

In other words, these real oils of Aisinman and of. Rie-

- beck, cover practically the same range as Burton’s own dis-

22 ‘dosure of the oils, which had deviations varying from

: plus 132,000 to plus 497,000. .

‘Referring to the imaginary dwarfs, there are, in each

case, closer than the real oils in the series, the closest hav-. -

-. ing a deviation of plus 37000, which I have noted on the .

-- ghart is the one that comes within a reasonable range of the ©

~~ Burton‘equation,. not a real oil—but is not of particular

“ate significance—and no other of these twelve oils has a pate

in Aower than 126000.

< The Master: What do. you mean n by its ot beitig a ‘eat

oe cae you mean it is merely 3 a — ienigi:

| Narycompound? = -

The Witness: Tt ie merely’ iin “oll “whos +. opertion are.

| imaginary, made by distorting, or switching the description

"given in the reference. It is in exactly the same place as

_ I Mlugtrated by the example of a family—a father says he.

has children ranging from 2 to ten years age, and from |

_sopeaags lacie auaboie coe usd —

°. Qo

eee eg

gee ee

* lose that the two year | old child i is five fect i in height; and

[fol. 979] the ten year old. child is three feet in height,

I call these the imaginary members of the family—just

- as these oils are. the imaginary members of this family,

not disclosed, or not intended to.be disclosed sae the man

who was making the deseription.

' , Q,-And they could not have been, produced, in the case of

_.. Aisinman’s oils, at least—they could not have possibly been

'-_- produced by. the the process described? :

-. A. Certainly not, in the first series of oils, which contain ~

the only one which comes at all close td the Burton equation.

_. Q. And the process described would produce, would they

not, the oils which you have said were the Teal oils?

A. eae

Q. As one skilled in. the art, would normally an this

disclosure of Aisinman! :

a ee *

— Q. You have, already discussed the Saibies of the oils es

- mentioned by Aisinman, stating that they are ordinary

oils made by the ordinary distillation of American crude.

What is the character of the two real Riebeck oils I and

-. L that you have named in the table? ;

A. These two oils are the heavy tar left:in the still, or

withdrawn from the still, after Riebeck .has cracked his

~ heavy dark paraffin oils (which are, as I have shown, brown |

coal tar oils), taking off 25 to 30 per cent of distillate. In. |

other words, they are residues left in the still after a light .

cracking of brown coal tar. o They, of course, differ —

. from the Burton oils in very many respects, . starting with

'» the entirely different types of compounds present in brown —

+. goal tar, as compared with’ those in Burton’s saturated —

gas oil; ‘also in the fact that cracking has been far less z

severe, taking off a comparatively small amount of a lightly -

- eracked distillate, and icularly differing in the fact that —

they have not beeti tilled from the black tarry resi-- —

due, which would of course make them entirely unsuitable

_ for-Burton’s twine oil, for example. In other words, they

differ in very many ways, not being even a petroleum. ‘prod- |

a uct, thought we would still have to examine to see whether - ©

OF aot ora have a unique meer Viesesisy peanorey: of

aa ie phy about their saturation?

. $ ar *) y ; ye) . ‘

“8 uf ‘ 3295 t *

A. I presame they are quite apaienabel: and ser: piob-

* ably contain quite an appreciable amount of oxygen com-

- pounds, ‘in view of racter of the brown: coal tar oils

~ ffol. 980] from which’ they start; but I cannot state

definitely in this respect.

Q. What is the sulphuric al absorption of, Burton i}

twine oil of this patent?

A, As a rule less than 20 per eent- soluble eulphiiric acid. |

As he’ himself says, they are highly saturated oils—sur-

tee prisingly ‘80, . considering . the method by which they are.

- produced, ee

Q. Does. merely finding idasityblgconit ‘telatinaahip:

‘answer this Burton disclosure, or would you have to find

other things?

_ A...No, we would have to find 2 an oil which ‘was essen-

tially a: petroleum product and one, which was largely _

saturated, because he clearly imposed both of these limita- —

tions in his description.

Q. So far as the mere visooslty-gravity relationship is

concerned, could you obtain that by. mixtures of other ae ;

things?

ae Yes, I imagine a mixture of some heavy tar with a.

product like benzol, for example, or other artificial combi- -

nations, might be made up which would come fairly close:

to having this gravity-viscosity relationship, at least as far —

as producing an individual oil which would meet the de-- —

scription. Burton, however, describes not only certain in- —

’ dividual oils, but he says that these are cuts made by split- a

ting: up | his twine oil as a whole, and I do not know of any

way in which you could make up a mixture which would —

not only be similar to Burton’s starting oil, but which when :

fractions as he gets. .

: distilled inté fractions le the same typical series ot

Q. By the way, how wo these oxygen-containing com- ;

pounds affect the gravity? —. us

A, They would tend to increase the gravity quite mark-

a _ edly. ‘All oxygen-containing compounds have high gravity :

‘compared to similar hydrocarbons.

= he Master: Wad say that an oil. could be made up a

he correspond substantially to the product of the patent? ===

The Witness: Could be made. ep o by. using spa toes

eS eS us particularly. : :

° patent? ®

»,+ The Master: Non-petroleum products? vie

_ ‘The Witness: Yes. Benzol and tar, for example. |

_ The Master: You mean benzol and coal tar? . ale

‘. + The Witness: Well, benzol and coal tar or benzol and ie

' petroleum tar, if desired. ves GER ee al

[fol. 981]. The Master: Benzol is a possible product from /

petroleum, isn’t it? = Neil hes ty a

The Witness: Yes, it is a possible product from petro- ©

_ The Master: Let us assume that this patent is a valid ©

_ patent, on the'\product and.some person conceives that an

oil of that kind \is salable, and he makes benzol and he makes.

The Witness: From petroleum?

The Master: Yes, and he puts them

puts them on th

Burton’s process

. ould not marke

}

The Witness

not be met by that mix

tion of Burton to the

has a certain gravity.

- till it, you get a,

‘black dots on the

> (ot hénsol-and

_- ‘which he gives being the fact that if. on take a sampl

the oil and distill it ‘you get this characteristic series of

; ‘

MP INENE Sacihen roe ht coy tte.

- f. »,

7 Sige

: actopt yt parion similar ering procnsés, start- .

; ing with stocks similar to gas oil. -

Q This method of re-di tiling an oil rs determine ia

properties is a common and\regular method?

3 “A. Yes, used in identify’ and testing oils quite gem

erally. :

x Q. Just about as frequently as \peamnring ifs gravity?

A. Yes, almost.

Q. Even with the aid of the oi gen-containing eom- )

pounds, how do these Riebeck oils cox mpare in their’ ‘erav-— en

ity-viscosity relationships with Burton's? i

A. Even with the aid of these oxygen: COr

pounds the deviation of the real oils is 252,000 and 398,000,

. respectively, that of the imaginary dwarf being 174,000—

all positive deviations, and very, very far fro! m the Burton

_ oils, which are almost entirely below the line 0 the equa-

”” tion, small negative deviations. I am referring Ov to the

’ — :two real oils and the.two imaginary oils i in the Asi |

_*. the Riebeck operation. _ tied ;

- Q. I wish you would please summarize the effect of these

referenges and their bearing on the Burton disclosure. ‘

A. We find, considering all these references, that there _

_.. ig nothing which comes appreciably closer to Burton’s oils

__-. than the oils which he himself cited and. acknowledged as \ i

_ part of the prior art, save for the one imaginary dwarf oil

, ereated by switching th ends on the first Aisinman refér- —

ence. Outside of that, the gils all fall in the same general

area, with the same genpral deviations, as those oils that

_ Burton ‘himself cited as eeial characteristic of oe Lesinw3

art of this patent i is he citing prior

The Witness: The two lower tables deancites the prior

srt clle—-Ghat in, the reguiar-oila froan-Onliforaiaardde 5nd

from mid-continent crude, which have certain viscosity- —

‘{fol.982] gravity characteristics, and which ~~ will Te

call I siakeed. as the solid squares—— =

_ The Master: They were such oils as came within, hie

— _ 2or—378

ey :

he? Ree Ae Lats ;

The Witness: I mean those are. the ordinary products

that are made by ordinary refining methods, ‘‘Some com.

Wie\

3298-

\ he Witness: By prion known processes, well known in

theart. i aa Stan Ce

The Master: He does not say anything about that, does

‘mon petroleum oils made by other processeg’’, as distinct

from his new process, : :

And those figures that he gives. in those ast two

te of the common oils, for the purpose of distinguish--

- ing, give the true and correct figures, as you know them, do - mat

. _ they not, of the actual common*lubricants taken from those “ J

Ct eee Bsn pert es :

. A. Substantially: so, yes. oe ee as Lee a

‘Q. By ordinayy refining methods. So that fhe art that:

the plaintiff’s expert produced, in so far as it is real, dif- -

- fers just the same as that which Burton acknowledged in

the patent?

. - 54 pert A vet é = RES

A. Two or three references we have not yet discussed,

_. but with regard to these twel references I have already .

shown that‘to be true, and it is also true of the other refer- Se

‘ences which I will discuss later.

_.» Q. Have you plotted all of these deviation figures on % : :

your chart? —

_ A. Yes, I have marked the numerical value of the devia.

___ tions, which differ a little from those of plaintiff’s expert;

I am perfectly willing to accept either figure, so far as

hat is concerned. _—-- pian

_. Q. And you have already explained how each. of. these e

four forms a rectangle, one diagonal of which is teal and

the otherimaginary? = =——S a ae eae

Ae Wee tees,

S This Riebeck oil M, the one which you put down, was that,

the last one on your table?’ .

A. That is the last one in the table of plaintiff's: expert,

- page 800 of the record.- | | : re

.

juare with the cross in the middle, Asitnotf

Q. And that one i

original raw material? __.

bi

Pe >

Sd

Q. And that is the oil that is plotted down here bythe:

8 Riebeck’s brown coal tar oil, the -

|

|

ae

Ses

rth

yer &

\

Q, That i is a real ail? Ana oy

A: Yes. There is only one oil whine: Sieic ot piaile

a range, he gives just one oil, so there is no chance for ne |

switching the ends, and we have just the one disclosure.

That oil is, of course, not a petroleum product, and

_greatly from Burton’s oiis in not having been subjected to to

any similar eracking process, in being highly unsaturated, .

and containing a great many oxygen compounds, all of’

_which differentiate it very, very. clearly from Burton’s

product. By virtue of the.fact that it has these oxygen bis

compounds present, it ie ee low viscosity for

its gravity, but even thérfits deviation is about --59, 000,

. which is some forty. times-as large as the only positive de- ;

“yiation shown by any of Burton’s own oils. By referring. : :

to the chart it will be noted that even with the. aid of these

oxygen compounds, it is still well above. the curve of the . .

' Burton equation, and still well above the ore waich Burton

disclosed. « x

Q. I want-it perfectly clear that this is net the ‘eracked .

_- product of ‘Riebeck but the raw material that he starts,

with: -- Pes psa Baa:

A. The raw material that he starts with for his press re j

. distillation, .

Q. Brown. coal tar oil itself. -In the beginning of your

"testimony when you were discussing — ee |

The Master: What differencp does it make. if iti isa an ‘s }

ee wa tar product if the first claim of your. snes is ‘sus-

tained? r

‘Mr. Wiles: Well, it is not. a petroleum, oil it al it, is ‘

totally different. thing. allo 2 wi

Q. In the beginning of your segs Mr “Wilson, you f

* devel and contrasted the shale oils. and the brown coal

tar dils on the one hand, and the American petroleum prod- —

- nets on the other, giving: ‘their broad gerieral differences, —

: — out how little of each was in the other. Do those -

cts that you then stated apply to this original Riebeck., -

[fol. 983] starting material, the last -one the: pl ntiff’s exe

% pert gave in the table? :

cee. Those. apply so far as my, itatealenk: regarding brow

coal tar fils are concerned..-Of course; Burton was not ~

here dealing with a crude petroleum, but with a acked —

q ” yepenaae ‘yeaa he does. oe sale a his ot aa

¢ Re Fork 7

‘ \ , ©

| A , ;

‘ ie‘ : 5,

“¢ a

;

| stahtially saturated, which is: true \in point: of fact, and in

. . that respect it differentiates itself bary clearly from -prod-

* uets like the brown coal tar oil, which are highly unsaturated.

- + and confain a great deal essen compounds, not being.

‘anything approaching a pure h ydrocarbon mixture; ee

The Master: Those limitations, however, in regard to

Saturation, are not in any of the dlaims, are they?

_. The Witness: In the third claim Knotice he says, ‘mainly.

of the paraffin series,’’ and I have pointed out that the com.-

mon usage of-that term in the industry at that time, every-

thing which was saturated was assumed to be a member of *

the paraffin series. Also he says in hia specification, line

76, that his ‘“‘mixture of. oils is largely of the saturated or.

paraffin series’. = .- cee Ge eh

The Master: Yes, but I am speaking of your claim now,

‘ not your specification. Nn | ae

«Phe Witness: Well, I spoke about the fact that he says

in the claim, ‘‘of the paraffin Series’’, and I am showing by .

. his spevification ‘that when he says ‘‘paraffin series’? he -

‘means saturated, because he says, ‘‘largely of the saturated

' .. OF paraffin series.’” |

‘. Q. That statement does in fact apply to the product of

the Burton patent, does it not? >

A, It is largely saturated, yes. : :

__Q. And it does not ap-ly to browivoal tar oil? * .

ar a a

| Q. And as a matter of fact the socalled brown coal tar

is largely not a hydrocarbon oil at all? | - : ae

- A. Well, to a.considerable extent, but I do not know just

- what percentage. yao Jee gars have ten to thirty —

per cent of what are known as tar acids, which are oxygen-

Cor taining compounds, and they also contain other oxygen

compounds. rec Sere Tlie tice :

_Q. And those would greatly iricrease its gravity, would \

they not? - Se Redes Tab ee . os

AL Yes. Fahettishcetegh\

&. On the Master’s question, further, claim 2 of the

_ [fol984] patent in a general way describes the process of

manufacture. Will following that process result in a

‘ largely saturated product? ante ;

eae ee ES i oa - 9 Eset

’ Q, And the Brown coal tar oil is not of that-kind?

BF . ¢ Shake os ° a

: ee

Whatever *be its gravity-viscosity relationship? =.

A; That is correct. “+ HONE SEE Sa ae We

*Q/-Se that the gravity-viscosity relationship is only one

of the criteria which Burton sets up, as you understand it?’ —

‘A. Yes. He is describing a new product which differs in z

aq number of characteristics. from the prior ari. He uses

that as the most convenient method of distinguishing from -

ordinary petroleum oils. = % =e 5 fe a tap

.Q. Plaintiff’s expert in his direct testimony on page 370 |

and following cited several references against this patent

-* and cited a number of oils which he claimed show Very

small deviations from the equation. Some of these were

and‘some were not later mentioned in the cross-examina-

tion and the connection between his first reference and his -

Jater ones is not always clear, because of some unexplained

changes that he made in his calculations. -Soe I want you

to take all:and everything that he mentioned and consider

~ jt in detail, in either-place. In the beginning I find on page

' 370 and page 371 that he cites.an oil with-2 Baume gravity

of 10.73 and a viscosity\of 239, which he said gave a plus

deviation of 12,144, and he says that is in the same

as the oils given in the patent, which deviate to the extent -

of 11,613. What are the facts ‘on that reference? |

-A. The oil referred to here is really’Riebeck’s imaginary #

- . dwarf oil K, which later appears with somewhat different

figuras in the corrected table given by plaintiff’s experton

page 800. The correspondenge of the two oils might not _—

at first sight be recognized, because the Baume given here.

as 10.73 really should be 17.45, this error being admitted _

by plaintiff’s expert on cross-examination, page 728- Asa —

result, the actual deviation shown in the corrected table of

-plaintiff’s expert is plus’ 174,000, even though this is the

imaginary drawf with the ends switched, I would also .

- gall attention to the fact that the statement that this de-

viation of plus 12,144 is in the same range as given by the ~

_ patent itself, is not really accurate, because while it is true

[fol. 985] that Burton does show deviations as high as

11,000; those deviations were all negative, the one positive.

-. deviation be-ng only a matter of 1400... Pes ee

- Q. So that in ‘his original reference in his direct testi-

_ mony plaintiff’s expert not.only switched the ends of- the

series, asyou have explained, te make an imaginary oil, but

*

he also reduced -the gravity: seven points and thereby

brought. it sémewhere near the equation. . ageias ta:

. A. The figures given there are in error in both of those

respects, but were later corrected in the table, though the

correspondence is rather hard to trace. | ig 2

Q. Where do the real oils corresponding to this first cita-

tion fall?. . pec asih ea 7 = :

A. They are oils I and L-in the table, page:800, and have

deviations varying from plus 250,000 to plus 296,000. _

They vary very far from the Burton description. . 8 ~—

Q. The second reference to which I want to call to your

_ attention, which he cites on page 371, is an article by Eng- °

ler and Singer, which plaintiff’s expert claimed to be an

anticipation, because the oils they produced have quite low

viscosity, and he said, - ays *

“*By inference there is nothing abnormal in the way of —_-

the gravities of these oils.’’ What have-you to say-on that

referencé? arty hare | teers Domne

The Master: Take an-oil of 15 degrees Baume gravity -

and 130 viscosity, and another oil seventeen and a fraction

~ Baume gravity and 139 of viscosity. Could anybody, any

dealer in the products, without an analysis of it, discover

any differences between’ the two products? Would it be

seen inatubegr—— - | - pate ene

The Witness\-You could not determine it visually, no;

you could determinevit in about five seconds with a hydrom-~ .

"eter, however, an instragpk \ which is used universally by

buyers and sellers#in the industry, fo check up.on the char- °

acteristics of the products. A great many petraleum prod-

ucts are bought with a specification of. only one or two de-

grees Baume between the limits which must be met.

Q. I would like to ga into- this a little more. in detail.

‘When, yon buy oil and sell oil, Mr. Wilson, you measure

and specify gravities, do you not? =~ ass

_[fol..986] A. Yes, especially on the lighter products and

onfdeloils, ssi: ee Sit eee i, 2 ee

Q. Everybody tests those-as a matter of course with the —

same certainty that you would weigh any product on a

Q. By the ordinary hydrometer put into a graduate?

A. Into any suitable vessel. NS SIU SE ee

Q. You also buy and sell products continuously .on boil- __

_ ing point specifications, do you not? oe 5 AA aie is

“A: Yes, products such as gasoliné and similar light -

naphthas. ; Bett Sean

-Q. And there is a regular method of measuring, those _

- things, by what we call a Bureau of Mines fractionation, is ©

there not?. Shot fer es ee ee ee

A. Yes. -. : rei ors accep e re :

Q. And making those inspections is routine in every shop —

that handles oil at all, is it not? <0 oe eee

A. Practically so. Of course, there are some of the smal-

ler dealers who do not pay much attention to specifications,

- but practically everyone that is equipped’to make’ distilla-

tions, viscosity tests and gravities de buy on specifications, .

and they do determine gravities if nothing else. we

-+ he Master: Would a twine manufacturer in the use of _

-. the oil discover any substantial differences between those |

. “twooils?. =~ PD ee ee ete

' * he: Witness: He certainly could, and I think in general

he would. He would generally. check up on that. He wants

a heavy gravity oil and he is paying for'that. It affects ha =

pocketbook pretty closely, because the heavier the gravity

the more pounds of twine he has to sell for a given amount

of oil on the twine. pa : gor : e

Q.: The Master asked a question about analysis here and

“whether you.would have to analyze. This regular Bureau

of Mines fractionation that is made‘constantly, how long *

does it take? | ee ce Ne SARS SOM gh

‘A. If you have the apparatus set: up, it takes about fif-

- teen minutes to make a distillation. The gravity test is.

the simplest, requiring only a few seconds. The viscosity © -

test requires a few minutes, and a complete boiling point .

curve, about fifteen minutes. Those are the three main

_ tests that are used in buying and selling oils. There is very’

seldom any analysis as such except on some highly refined -

_- lubricating oils or medicinal .oils, or certain products of

thet kinds 22

' The Master :, Take another thing. Following this -proe-

. ess, when you are following a process of distilling of this

- nature, you have-some fluctuations of temperature, do you P

mott . ee

. BS

The Witness: Certainly.

= ‘The Master: And you have some. fluctuations of ‘pres:

mee Vite NOE 8 a aes ae

__° Phe Master: Is the product invariably of the same rela-.

_ tion of degrees of send agar

The Witness: No, it shows characteristics variations of — >

. the magnitude which is in fact shown in Burton’s own

charts. Y

ou notice that these oils-are not-on a smooth oe

curve, some are a little above the average, and some area >

little below the average. . You will find quite appreciable

variations. But I know by actual experience that even a

'- procéss that is as different as the Holmes-Manley gives a

_ pressure tar which is in fact closer to these points on the -

‘average than the equation is to the points:*'In other words,

we will get some variations in this general range of devia--

_ tions of from zero to minus teri or twelve thousand, quite.

. eharacteristically, due to fluctuations in the. stock or the E

_» Process or other things: But none of the fluctuations ever

come anywhere near approaching the prior art oils. They

Be will simply fluctuate back and forth in a rather narrow .-

range below the equation. eet

. [fol. 987] . The Master: Mr. Wilson, when-did you say that '

you went to the Standard Oil Company of Indiana?. :

_ The Witness: In 1922; the fall of 1922. i ae

. The Mager: Then -you ‘have no’ personal knowledge of .

- the ¢ ial situation or the exigencies which brought

. about the alleged invention or discovery of this Burton pat-.. =

ent. we have been talking about? — 2 |

‘The Witness: Not from direct personal knowledge, but

_ from a stndy of the literature and from a discussion with _

, Manymen, bothinside—- ee

The Master: We are not speaking of the technical art’

_ with relation to it; I am only speaking of the external'cir-

; cumstances and business exigencies; particularly with rela- _

tion to the makiflg of binder twine, for the binder reaper.

ee Wades ic fe at as pivttoitie

__+he Witness: No, on that point I have no pa icular

Z 2 : ‘The Master: And no knowledge of. the binder twine art.

. and its requirements in respect tp some find of a finishing

= product to finish the twine? | acca ah a

. No, sir. =

The Master:.What do you know, if anything, of the pro: SF

* “ Cae ee ee

: - tT ee OG

“ pS Pa

ecto

,

; The Witness: | Why, if is my nndeastindtig ty ei: :

certain amount of oil on’ there and they like to have it a

heavy oil, but not too viscous.

. The Master : That is just general, of. course; ‘that is as- :

suming; but you have no special knowledge of that art?

The Witness: I have: no special. knowledge of that ‘art, Se

- duction of parafiin oils priorto.19121

‘.. The Witness: I am familiar with the general practice a8

it was carried out in coking stills: which were then very —

much the same as now.

-- The Master: Paraffin oils were requived commercially

and were manufactured prior to 1912?

_The Witness: Oh, yes, by very much the same methods as

. are used today. .._—

- - The Master: Well, the product of this patent i isa parafin

oil, is it not, in this product patent? ie

The. Witness : Not in the sense in which the industry ordi- . -

_, narily terms it. It consists mainly of saturated hydrocar-

bons which Burtor at that time, in common with the rest -

_ of the industry, called saturated or paraffin hydrocarbons,

'- but even they would not have called it, I do not believe, a

- paraffin oil, because paraffin oils are characteristically oils ©

containing paraffin or from which paraffin wax as such has

-been separated. In other words, the term ‘‘paraffin oils’’ .

does not refer so much to the hydrocarbons. that are present

as to the fact that they are made from paraffin distillate,

[fol. 988] . In other words, from the same distillate as con-

tained the paraffin wax. Of course, the European use of —

the term ‘paraffin oils’’ is quite different, as I pointed out. -.

The Master: He selected the material "to. operate on as —

being the tar which contains th paraffin constituents?

P32 The Witness: The saturated fonstituents, yes. |

~The Master: It distingi s it as parafin Sesame ec :

; does it not?

‘ The Witness: Asa intone of fact, we today believe we

there are practically no paraffin hydrocarbons i in Burton’s ©

- twine oil. In ‘other words, that its unique character is due’

to the presence of other ’ saturated compounds, probably

oe ring compounds, but as I pointed out, the common practice _

then ‘was to refer to —- which was saturated as

_ Q. “Paraffin” originally meant, I believe you said, with.

.. out affinity? . She "1h <P oe

AL Yes, tn Sh a pea © ieee | :

~Q. What kind of affinity was referr to? .

A. Affinity with sulphuric ‘acid? | aoe ;

_ Q. So that the oils that‘did not go into.solution in con.

eentrated sulphuric acid were normally called paraffine? .-

gee es Se Pare

- Q. And many of those we now know were not strictly of:

the technical, chemical paraffin series?. —--_—

A. Yes, -As shown by work in‘the last five or ten years,

Q. ‘Now, is the oil of this, Burton patent’you are discuss-

ing; of a character which, according to that. older phrase

meaning without affinity for cencentrated sulphuric acid; ” é

largely paraffin? .. -

_A. Yes.‘ In that sense: We do not even today know just

what kind of hydrocarbons are in this Burton oil. They are

_& very peculiar type of hydrocarbons which do not seem to

_ be found any place else. We presume they have some form

of ring structure; but we do not, even know-that for certain.

. The Master: You do riot even know that Burton was ity. =

ing to get this particular oil at the time when he first de- ie

-. veloped it? eo se aude

- The Witness: I-do not know what he was trying——

‘The Master: That he was constantly trying for it or

wpether it was just a cut of a process that he was using for.

_ the purpose of getting as much of the naphthenes out as

possible. :

The Witness: It may have been that he discovered the

product in just making a study from a standpoint of scien-

_ tific interest of the character of -his pressure tar.

Burton is still alive. . _ Luss

Mr. Wiles: I shall not ask him that question, ‘because I

. take it as a matter of law, it makes no difference whether

_ it is an accidental discovery or a conscious one. Poe

The Master: I do not think it does, if it was a discovery.

_ [fol. 989]. Yes, there is’ no question bu! what these are a —

_ ‘very unique type of hydrocarbon is this oil. As I Say, the

_ &tavity-viscosity relationships are’ sifiply an easy manner

_ of indicating something very fundamental involved.

fe

The Master: There is no use to speculate. IT “ suppose. a.

eages 4

~

“The Master we may go < on suite your examination: ~ I eae

“will still continue to grope. a ae

Mr. Wiles: When you get an oil that i is as heavy as water, Soe

oo or nearly as heavy as water, and almost as thin—that is,

exaggerating, but actually which approaches at all in that .

direction, a very heavy, very thin oil, you are clear off the —

~ track of all ordinary oils. This is a unique beast, and we -

know of nothing like it at all,

The Master: Still reaffirming, are you? |

- The Witness: Yes, sir, that is correct. Of:course, it is:

quite a bit lighter than water by the time it gets down to a

_. that viscosity, ‘but it is — out of the range of any- ae

ee thing: that we know.

Q. The second reference which Dr. McKee chads on ‘page

‘- 371 is:‘the Engler-Singer artigle which he claimed. was an .

anticipation, because the oils they. produced have quite low

~ viscosities, and he said:

_ “And by inference there i is : nothing abnormal i in the way

OE the gravities of these oils.”” i

f

What have you-to say on that? ere

A. As I have already pointed: at Burton, of course,

“never - dreamed of re to patent: low visooslty oils as:

OOO gg.

‘The mere fact that : an oil .is of low visoonity ‘Aces not

‘bring it within the range of. what he is considering. Itis _,

a question of whether it has an abnormally low viscosity

- for its gravity. - : aoe

» “Therefore, when 1 plain Git g wit says. about, the grav- .

ey ities ‘‘by inference there is nothing abnormal in the way ~

: of the gravities”’, why, that at once indicates that it pre-

“sumably is a: normal dil with normal relationship between ©

_ gravity and viscosity and therefore radically different from.”

that of Burton, whose oils have a very ee relation< Se

_, .ship between gravity and viscosity. ' AG

. There are many low viscosity oils, of course. ‘Weaes gas a

ve oil, every kerosene would be an anticipation on that theory, ne

“> [fol..990] because they have -low voscosities and there is”.

+. nothing abnormal about their gravities. Se ?

__. The Master: In a ‘paraffin oil is. the viscosity low with

reference to ia specific ssi s ,

/-for such gravities has a viscosity of less than fifty seconds. —

- ity of .9 and an Engler viscosity of 2; whereas, what Aisin-

: _-, [fol. 991] about the order of deviations that they: have.

~

— “ ps3 o c : * z ae

- 5 “ . ’ 2

’ Se [eee / :

_ The Witness: No, it is high. The. paraffin oils, you no-

_ tiee, are in the upper part of the chart, _Even for gravities os

as much as 25 Baume they have quite high viscosity;: vis.

Cosities of several hundred seconds; whereas ‘Burton’s. oi}

a

Pe

The ordinary paraffin oils are exactly what Burton is dis. _ S

’ tinguishing from when he gives an. example of'the ordinary =

~ paraffin oils as he prodeed by the older processes to con- ce

trast with:his own. . res EE: 4

,

_Q. Now, do you agree with plaintiff’s expert when he _

says that ‘‘In fact, there is presumably nothing abnormal. _

about the Engler-Singer gravities??’ Sai Soles oa

© A. The material that he has described is made from fish “2 |

~:oil, and I do not know just what is’ normal for fish oil or

.for the products of cracking ‘fish oll; and therefore I can... ~

not say whether they. would really be normal or abnormal, |

In any case, they are not petroleum products and they dif.

fer very widely from anything which Burton described. © ©

' Q. Now, in the next reference, Aisinman, on, page 372, 6

" ~plaintiff’s expert cites an oil with a specific gravity of 09

- and an Engler viscosity. of 2, which he says has a deviation

of minus 8341 aceording to Battle and plhs $g according —

_ to the Bureau of Standards table. Now, whapare the facts

' gaboutthat oil? {| | ee tise Dae a

__, A. In the ‘first place, i a oil is again the artificial dwarf a

_ of the series. That is, that is the oil with the specific grav.

man really cited was oils: varying from 0.8 to 0,9 in ‘gravity

and from 2 to 4 in viscosity, the 2 viscosity obviously ree

_ ferring to the .8 gravity and the 4 viscosity to the .9 grav-

ity.. But. by combining the 2 Baume with the :9 ‘specific: —

gravity plaintiff’s: expert made the imaginary dwarf oil — :

- which comes closer to Burton than the real ous of the

series. He here reports a deviation in the ohe case of ~~

* - minus 8341 and in the other case, according to the Bureau ae

of Standards’ table, of plus 8284. The first would, of

course, put it right down among the Burton oils.“ That.is __

| However, when you go to the corrected. table this same. a

- » ou, which is really oil’ C of the table, plaintiffs’ expert re- —

| apes: to have deviations which this time are both posi- ~

a, Z aa felt

5 Seeds Sbroad af nagte

> ; . Ee

= Fs ie Pesan. Puck

>. - f * AS

tive; that for the Bahest of. Rendside s Being pins 37,254

nd that according fo Battle-plus 10,899; which of course.

-~ are quite different/from those’ previously quoted. How- _

’ ever, since this is Only an imaginary oil it does no “matter ae

_, © particularly how great its deviations are. == =,

Us '?. In this case plaintiff’s expert not only. switehed the

"ends of the series so'as to. combine the heavy gravity with —

the low viscosity which nobody in the industry Woulever:

dream of, but he also made a mistake in caleulatfdy

least he misstated the results of his. calculation g

_ greatly exaggerate the error that he made. AS

. ‘A, Apparently so. . | =~

Q. Now, what are the two oils: hick he cites on page 3% 3

from Aisinman? -

a he The next two oils cited are sabidbens of the next Re

_ peries. In this case eh ection stro e for two, the

first which is the artificial dwarf which I called G, and

the other of which is is the actual oil E. In this casehe |

-_. gives on page 372 a deviation of plus 42,874, whereas in. _

~. \\ the corrected table he mentions this samé oil as having a

' deviation of plus 201,294; while the other real. oil H which = |

‘~~ “he gives on page 372 as having a deviation of plus 26,569, .

-- jn his final table. he gives as plus 265,292.. This is’not only

an enormous change i in figures but reverses the order. Ac-

- . cording to this, the real qil was closer than the imaginary. —

- gil, but in the corrected table the real oil is considerably

further ‘away. from the imaginary oil, although all of them —

_ are,quite far away. . eens

-. /Q. In this matter, too, the plaintiff ’s expert not only

- _gwitched the erids of the series for-one-of the oils, but as ee

: - both of them he misstated the arithmetical facts..

_A. Yes, there are some errors involved some place.

IT might ‘say, ‘that: these calculations are not simple and it

is much easier to see the whole situation by. plotting the. —

. > Oils, in which ease there is no chance to make a mistake, but’

__. [fol. 992] I believe plaintiff’s expert. testified that he had

+ not plotted these results... iat

_ Q. When you say they are not simple, Mr. Wilson, itis .

. Merely a matter of carefully carrying out and the solving

_ of an ordinary equation in simple algebra;is it-not? ©. -

A = it is a matter of very cangial work, ti —s

"+ -Q. You have just got to multiply and add and div} ° itn he |

pipe: et ; eo 1

. - Niseosity oils) up to comparatively heavy and higher vis-

Je

|

'. or any of the oils which Burton ¢ites. ‘ Plaintiff’s expert: : |

' said that the Aisinman oi! had a Baume gravity of about

. 20'degrees, whereas actually, it is 20.65. gravity, and its vis

‘tion which réads: substantially like the third claim of the :

_ Burton patent, as to whether any of the Pppapriedind show.

- ‘the lower viscosity ; and thell

~ magnitude of the numbers ,

_' gpond in a normal way. That is, he says from 20 td 10,

_. Baume and from 50 to 200 viscosity. So that the first two ie

_ go together and the second two go together, as you ‘would _ a

. is no question as to what that could mean. __ !

| [fol. 993] Now, the Aisinman’reference is nowhere near -

A. With rather Jarge numbers. | ae : / oe

Q. And be careful you do not make a mistake? ~

By hie a hwloagges ig Keg

Q. Now, plaintiff’s expert on page 372 was asked a ques.

_ a petroleum oil having a Baume gravity of 15 degrees and

a viscosity of approximately 130 seconds measured by the” = --

Saybolt viscosimeter at 100 degrees Fahrenheit, and com’

prising a mixtare of fractions mainly of the paraffin series.

_and having a Baume gravity ranging from approximately. —

20 degrees, tv 10 degrees and. the corresponding viscosity

_ ranging approximately from 50-to-200”, and he cited an oil _

of Aisinman as meeting this description: What is the fact? =<

. A. This wording clearly ot to a composite oil which —

-has a Baume gravity of about 15 and a viscosity of: about

130 seconds, and as further describing the oil states that _

_-if'you take it and distill it yougivill get.a series of oils from

‘light, low viscosity oils—(tha®is, comparatively light, low

cosity oils, the ranges being /from 20 to 10 in gravity and

from 50 to 200 in viscosity, this corresponding to the left-

hand two-thirds of the curve in the drawing. |

_ ‘Of course,:there is no question here

‘Baume, the lighter oil, co

but what the 20 |

sponds to the 50 viscosity; __

0 Baume to the 200 viscosity. |

because he has-reversed the —

order to: make them corre- |

/

That is made even more cl

PEPE i

Q. He says a corresponding viscosity also?” skegi pes

A. Yes, héalso says a:corresponding viscosity, 80 there

—not within a very, very great distance.of the specific oil

|

Cs ry yer Oe eT Ra be

isk aja tday con

Ae

22 S Goes

a? Ba

PA >

ee - casity by the sisi ous tual of. obaak 300 is setoadly ie

“+ 841.6 seconds. In ather words, it is over five’points lighter.

‘in gravity than Burton’s specifie oil, and yet instead See

, being less Viscous it is about — three times as. — ey

‘ag the Burton oil. - ea

— Q. I wish you road point that lowly Mr. Wiléon? :

AL (Referring to chart.) This is actually the Aisinman _

: ail H in the table of plaintiff’s: expert. . That is, this oil to

- which Iam pointing, with a little over 345 seconds viscos- -

ity, as compared with Burton’s oil down in this region.’ ~

It has lighter gravity and yet very much higher viscosity. .

No one could certainly say these bore the slightest resem-

“« blance to one another, and the only way in which I think

_ plaintiff ’s expert could. possibly have-conceived a.similar- ——

ity’is this time by switching the — of ‘the Burton diselo- |

gure...

_ In other words, just as ‘the imaginary dwarf of the prior

* art oils comes ‘hearer to the Burton curve than any of the -

_ true ones,.so. the imaginary giant of the. Burton disclosure.

comes fairly close to the prior art. That is, if you switch

‘the ends pf this patent ‘and put together the. twenty gravity, «©

which is the light gravity, and the 200, which is the heavy _—

viscosity, you get something which i is nearer to Aisinman, _

‘~ glthough even then it-is:still a long: -ways below the '341 sec- —

onds \Aisinman oil; but that is not Burton’s- disclosure. .

_ Burton never did or meant to-disclose or indicated thathe ~

~~ had an oil of 20 gravity. and 200 viscosity, which was only.

«. ereated by this same process of ‘ewitehing. pesca and taking Petes

: the imaginary, giant.” RS ae

_ .Q. And Aisinmap, I think it has been cleanly brought out

‘is an ordinary oil made. by ordinary processes, is it nott

- A. Yes, by cooking crude petroleum. sae

— [fol. 994] . Q Just the same*kind of oil as Burton was re-

- ferring to in the: second and third tables given ‘in his pat

vent? - ra: ,

Sha Fon. “ ge

~ Q. And it actually does i in. fact coreaal to ‘the oily.

co - piven in thdse two, tables very~ closely, as-shown = the co

~ chart, does it not? | er mea a

A. Yes, it is right in. that ‘general. group. Need

on Q. The last statement which plaintiff’s eiaak Sane: i:

os “this pramection: is on page 373 with regard to’ whether. any ,

[: é

| Cu

prior art processes made petroleum oils by a method similar

to that of: Burton. . This answer in the second paragraph .

of page 373 is. not at all clear, and I judge that he first

suggested Aisinman and then withdrew him, because of the

z fact that he does not distill under pressure. He then ap-

_ pears to say that Riebeck’s residue from: his process wopld

> this? .

produce essentially similar oils except that they had not ©

beerf distilled at_the ‘last stage. What are the facts on

A. Of course, Riebeck’s oils, as I have already pointed

‘out, differed from those prodiced by Burton in starting

_ with quite different: types of oils—that is, the very dirty

-brown.coal tar oils or oil gas tar or distillates from oil gas

_ -tar;. Riebeck’s. oil also differed in the amount of cracking

it had undergone, because he was: mainly interested in

taking kerosene by light cracking; and the oils differed,

further, as plaintiff’s expert acknowledged, in the fact that

_ ‘Riebeck did not redistill his product to separate out the

_ tar and get an overhead product, this omission of course,

being fatal either for its use as twine oil or for its use:as ;

~ eyele stock. © ‘ 8 ee

Q:. You used the term “overhead product”, Mr. Wilson.

That is a technical term in the trade. I wish-you would

. state what it means.. We may have'to use it several times.

A. The term ‘‘overhead product’? which I think I have

already defined, is the common distinction between the part

- distilled off from an oil in a still and the part’ which re-

‘mains behind. In other words, the operation of distillation

. Yesiduum which is left ini the stil. ©

generally results in a distillate or overhead product and a

Q. Is there any other evidence given ‘by Riebeck himself

and that of Burton? —

A. Yes, one very striking example is given by these very

-_ gravity-viscosity relationships that we have been speaking

_ about. It is of course evident that Burton starts with oils |

] which- have a normal relationship between the

vities.. By his cracking process he

sils which are much lower in their .

viscosity for-a given gravity, or much higher in: gravity

_ for a given viscosity. ‘That is the striking and pronounced =

which indicates any marked-difference between his process» ”

iscosity and gravity—that is, they have relatively high —_

- viscosities for their. :

- produces a new series

(2 8818

hate which he brings stihl: cherei Riebeck, on the

other hand, starts with an oil which is. nearer:to Burton than ,

his finished products, and goes.in éxactly the opposite direc- ~

tion, changing from a brown coal tar oil, which has.a plus

deviation of 55,000, to pressure tars whose plus variation va- -

ries from 240,000 to 297,000. This very marked change,

~ going in exactly ‘the opposite direction, is one of the best —

evidences in‘the world of the entirely different nature of

the starting material and of the finished material and of

. the reactions which take tite, I have arent Make out

that—— ; |

The Master: See if I understand tliat. Teo ‘Rie-

: beck, instead of choosing brown coal tar. for: his starting

point, had been irt a locality. wliere petroleum tars and resi-

dues were more accessible than coal tar, and-had- pursued

his same operation.. -You- idea i is he would have gotten far-

ther away from Burton?

The Witness: I do not know what he would haye done. -

in that case.. Of course, the amount of his cracking was.

_ so different, and even then his charging stock would be

different. So-really I do not know which way he would

* go if het had taken crude asabage and cracked to make’

‘kerosene... - ’

_ The Master: I do not mean crude petroleum ; To mean

some of ‘the residual petroleum.

The Witness: Well, the same thing is true. I do’ not

know which way those. would ‘have gone. I am simply

pointing out that as far as. we have his disclosure, it was

radically different from anything that Burton did. What —

he might have accomplished by taking-a reduced ¢rude I

cannot really tell. Of course, if he had taken Burton’s

gas oil and cracked to. make gasoline, he would have gone

in the same direction Burton did..

‘The Master: -If one skilled in. the at had only before.

him all that Riebeck could teach him, and: being requested .

to make sonie kind of twine oil, and being accessible toa —

- yegion where tar from’ petroleum was to be found, could he |

with that teaching on that material sag ah anwcige cor re-

quited product? Pe

. its weight—that i is, a heavy oil that was, thin—what would

@ which is a thin oil and not in the lubricant range, and hes.

a Se nC en gcay \y

[fol. 996] The Witness: I don’t iu he could. I don’ MS :

know; I have ‘never : pee it tried. But I do not think he

could.

' The Master: Of edurse, what the mytileel man skilled j in

the art could do i is/a very wide.range,’ differing with the

opinion and interest of the one who answers the question,

Q. If he had. wanted to get an oil which was’ thinner for ..:

he have learned from the Riebeck disclosure? as

.. >A. He would have learned. that it was better to take thé eae

brown coal tar oils that -you started with, rather than the

residues after the cracking operation, because the brown coal

tars that he started with were actually quite-thin, for their

weight compared to most ordinary oils. The only indica-

_ tion that one skilled in the art would get from looking at ey

Riebeck would be ‘that according to that disclosure the

cracking process gives a residue which, instead of being. less’

viscous for its gravity, is actually much ‘more viscous for

its Lesa

a Q..And is it-not a fact 1 hat chang

ticular merit of the Riebeck process? me,

A. Yes, that is true. Riebeck emphasizes that tliese par-

affin oils are not suitable for use as lubricants and by carry-

ing out this operation he produces good lubricants. He ~

emphasizes that strongly. And, as this shows, he is de- —

scribing here the highly viscous materials which he con! .~

\siders make good lubricants. Of course, Burton’s. oils are

not in any sense satisfactory lubricants.

Q. And after Riebeck has taken this brown coal tar oil, oil

treated it by his cracking process, it has eetoally 2 moved

into the lu t range, has, it not? ones

“A. Yes, ithas. Beith hy Gen :

Q. Just the opposite of Burton. | ' eats

The Witness; Yes. . Ci

Q. I believe you quoted Dr, McKec’s 8 ioe on shale oil, =a

where he talked about the contrast’ between cracking well ;

petroleum and cracking oil of the shale type. ’ I. believe

you quoted a part where he said-that they were exactly

opposite in their natures. How does this change’of Rie- =

[fol. 997] beck’s raw material into a more wee omarleasa ee?

aes oil baw on that vagal oe a

A. I believe Dr. McKee’s statement was that) the results.

- were opposite. That was more in respect to their satura-

‘tion, however, whereas this is in respect to their viscosity.

I do not;know whether they are opposite in the same sense _

or not, but they are both in marked contract to|the Burton.

operation. ee ee eg

~°Q. During his’ cross-examination Dr. McKee testified in»

‘answer to a question by the Master that. one \attempting

-to.carry out the Dewar & Redwood or the Pielsticker proc-

ess, or the Barbet process, might mnocently roduce the —

Burton twine oil product. What is your opinion. on this .

‘matter? og : Aer rahe dane ce

A. Ihave already pointed out that.all of these prior art. .

processes, in the first-place, started with quite different

starting materials from those of Burton, andj also they .

- erack to quite different extents (that is, those which were ©

operating by ‘bulk pressure distillation_and. which would

therefore have anything even remotely resembling Bur-

a ton’s tar). This difference in the starting material and

difference in the extent of cracki nl ib i

“be reflected in the differences in the character of the pres-

sure’tar. - But in addition to this, whenever the: prior art —

speaks of the nature of this pressure tar it brings out. these: -

differences very clearly, and, as I have already pointed

out, both Riebeck and Barbet speak of their pressure tars. —

_. as containing desirable lubricating fractions; whereas Bur- .

ton’s pressure tar on account of this different starting ma-

terial and different extent of cracking, contains as farasI —

‘ *

Pod nai Eee

know, absolutely nothing: whi h_ WoL be suitable tor-use

as a lubricant.” ‘As further evidence of the difference, wher- —

ever, like Riebeck, they do describe the charactet of their —

- pressure tar, we find its gravity-viscosity relationships up, |

among the prior art oils and not among the Burton oils—

» which is also further indicatién of the relatively light na--

tare ofthe cracking. In addition to that, none of them =.

‘ disclose the essential step of re-distilling this pressure tar.

to get satisfactory light colored product, that being one im-

- portant step in Burton’s invention. Therefore, they never

-- had anything which would have been suitable either as cycle

_ stock or as twine oil.

, he Master: The fact that they mention that their pres: |

gure tars contained desirable lubricants implied’a redistil- —

Ting to get those lubricants, did itnott’ ©

\ ;

3316 a om ais yea

[fol. 998] . The Witness: Apparently they got those lubri-

eants by treating with acid, as near as we can tell from. any —

references I\have seen. They removed the undesirable

_, materials by treating with acid, just as cylinder stocks are

treated. =... ty Ase: :

_ Plaintiff’s expert also said that practically all of these

. processes would produce very similar products. If that is

the case, then they would all be somewhat similar to those

' of Riebeck, who is the only man whe did disclose the exact

character of his tar, andthat would mean that they would

all be among the prior art oils rather than bearing any

close relationship to Burton.’ Certainly there is not among

' them anything which would be at all close to Burton’s

process. : ; i

~ Q: I wish particularly in connection with the matters you

have just mentioned, to call your attention again to the Bars

bet ‘statement with reference to,his-pressuré tar, in fact the

heavy.ends of lis pressure tar... What bearing has that?

A. He states that it can be pressed for paraffin, whereas

such an operation is absolutely hopeless on the Burton:

pressure ‘tax. ¥ : boa?

Q. .Plaintiff’s expert stated on page 375 and he later re-

iterated pnder cross-examination on page 823 and following

that the old shale oil lubricants are practically the same as

Burton’s twine oil. In gupport of this position he gave no

actual data, but-he stated that the Burton. product owed

s low viscosity with réspect to gravity, to its high content

of unsaturated carbons,. which he believed, he said, was’

probably around 75 per cent for the twine oil, as it-was in

the case of the shale oil lubricants. What are the facts on _

A. Plaintiff’s expert could hardly have chosen a more

' striking way to show the great difference between Burton’s

su

‘saturated low viscosity pressure tar and the _

- shale oil lubricants, in. assuming, as he apparently did, that

“s 7

e

z

content of unsaturated hydrocarbons. He not only showed

unsa

‘a complete lack of knowledge of the product, but'disregard-

_ ed Burton’s very clear statements as to the ianaiber'et the aa

§

viscosity of 'Burton’s material was due to the high

A

j mt

a

k

hea

4

od Bis ~

gravity-viscosity relationship, showing that it is not in ©

any sense due to its content of unsaturateds but. due tothe ——

peculiar character of the saturated’hydrocarbons which are ~

_present. Hoek wid OES ES ea ae 7

" Tn contrast, plaintiff’s expert said in one place that shale”

lubricants are from 50 to 80 per cent unsaturated, and in

another case, speaking of the refined shale lubricants, that,

they are about 75 per cent unsaturated. Even if the shale

lubricants did prove to have similar gravity-viscosity re-

lationships, which they do not, as I shall show, they would

still be very far different from Burton’s description, both in — rs

not being petroletm oils and in pot being substantially sat- _—~

urated products. Barns Np cee oe ie eo

.. , Q. So in fitting the shale lubricants to the Burton prod-

uct, Dr. McKee mis-stated the facts about the Burton prod-. =

‘uct and then fitted the references on? © Sper

[fol: 999] —. The statement which plaintiff’s expert made

about the Burton patent was incorrect,:and therefore the |

similarity which he concluded therefrom was also incor-

rect. ‘. ray

‘Q. In this connection, plaintiff’s expert also quoted some,

- statements of Lyder, at the Catlin Shale. Oil Plant, as to the

difficulty of producing high viscosity oils from shale. He

said, also, that he was sure there was some data available,

showing the gravity, viscosity relationship prior to 1913, |

put did not comply with the Magter’s suggestion’that if he

-found them he might produce them as exhibits. é

‘ What information can you give as to the viscosity grav-

ity relationships of shale oil lubricants? ¥ $i,

“A. I-happened to have in my laboratory two shale oil

. lubricants obtained from this same Catlin plant, at which

‘Lyder was working, and I had determinations made of their

gravities and viscosities, and found that both of them had

gravities between 25 and 26 Baume and viscosities of 237

and 358 respectively. This places the lubricants a little

__ bit above the other prior art’ lubricants, one coming ‘right

beside the upper, solid black square on the chart, and the

“+ other coming above the imaginary giant oil of Aisinman, —

». _ which is ‘on the 25 gravity line, just above 350 viscosity.

_--Y don’t know whether or not those are typical, but.those .

_» ‘+ are the only data I-have, and are interesting as coming |

_ from the plant in which Mr. Lyder was working, from whom |

_~ _. plaintiff’s expert quoted. PPshes Oe hs be aa ade

a

—_

8318 | |

> . Q. ‘When-yot said’ you had these, they were in your lab:

_ oratory ‘at the time plaintiff’s expert. was 'testifying—is

that true? °” Bs SRS Ai ORES BN ee ally OEE age)

A. Yes, sir. G | ougnl mites

Q. You’ hed obtained them before ‘that? :

A. Yes, we:obtained them to make some tests as to their |

. lybricating value, 2 oe se ee eee

- - It is algo true that shale: il lubricants certainly: contain

little if. any of the peculiar saturated “heavy gravity ma-

_ terials characteristic of Burton’s pressure tar, and/I should.

expect them to fall among the other prior art oils, as these :

-particular.ones do... Ab sie

Q. Plaintiff's expert, in the course of his testimony, also

said that the process of the twine oil patent, No. 1,167,884, .

was identical with the provess of the Burton re-running

patent, No. 1105951—what have you to say on this‘point? . #

/~ A.’ The two processes are not identical, and both of them.

make perfectly clear exactly what they Go, :

. The process of making the twine oil product, consists .in

_ eracking under ‘pressure, 4 stock similar-to gas oil, until

4 somethink like 50 per cent. of distillate has been takén off,

withdrawing the tar, distilling off 4t atmaspheric pressure”

the lighter constituents.of this tar, and thus maklagthe -

twine oil distillate ©. . Pa A ae a

_ The re-run. patent is a proces patent, which involves the

steps of separating this twine oil product, and then of re-

cracking this material, which Burton found was a suitably

clean stock, which could be further crackdd at temperatures

-and pressures prevailing in his process. /\ | A ps

3319

- A. Yes, it.is certainly entirely possible that. the basic

contributions involved in these. two patents could have been.

arrived at by. two, different men—that is, one man might

have taken the pressure tar and examined it, and distilled

. . it, and found that. he obtained a product which was unique

+ Tol. 1000] in its contertt of hydrocarbon, and in its gravity-

viscosity relationships. — Se Tue ieee Kes

_ Adifferent man might’ have taken.this product and found, »

“ by experiment—because it certainly could not be predicted

-/_"that this oil was a clean cracking stock, which could be _

eracked under Burton’s temperatures and pressures to get

-a good yield of gasoline without developing hot bottoms. *

Mr. Wiles: Now, your Honor, this chart from which the

witness has been testifying, is offered as defendants’ “Ex...

hibit No. 417,”’ and’ we have small photostatic copies of it

that w&can stipply to counsel: = ° . | vans

The said chart, so offered, wag admitted in evidence, was -

'. marked ‘‘Exhibit No. 417,’’ and the same is herewith re-

turned. ;

_.Q. Now, what: did Ellis contribute to the art of making

motor fuel, in his treating patent No. 1318061? seein

A. So far as I can find Ellis was the first man to show

that ordinary cracked. gasoline could. be successfully re-

fined witha relatively small amount of dilute acid, in con-

trast to the strong acid which was ordinarily used’in the

petroleum industry. ED NYS HES “i

_. In fact, Ellis’ treat- for the cracked gasoline was dis- -

- tinetly loss severe than that ordinarily used for refining”

straight run gasoline, in spite, of. the fact that .any person —

looking at the product, with its poor color, undesirable odor, |

and high content of unsaturated compounds, would natur- —

ally jump to the conclusion, as many in the prior art did,

that a large amount of stronger acid would, if we .

_. be required to/make this into a satisfactory: marketable —

' product. / pik ulananlinnwiredn nine \uncueien Latah e nigra oe ost! ae

Ellis, however, recommended the use of relatively small —

quantities of 40 to 60 per cent. acid, followed, if necessary

_by a-small amount of slightly stronger acid. By-this means

he found it possible to make a fairly heavy gravity and

relatively high end. point gasoline, which normally carries a

- good bit of gum forming constituents and a bad color, into

» - a satisfactory gasoline with a loss of only one or two per

.

a.

oi 3320 7

cent., and leave in it most of the olefins, which it was pre-

_ viously considered had to be removed in order to make a

. satisfactory gasoline. : Opies oP af

- I don’t mean to indicate that Ellis was the first one who

‘made a gum free gasoline from a cracked distillate, because .

- he was not. They had previously*done that by either one

of two methods. It was done, in the first place, by taking’

. @ very low'end point product, just skimming.the cream, — .

_ 80 to speak, from the gasoline, which, since the gum form-

ing constituents, as plaintiff's expert has stated, itend to;

concentrate in the heavy end of the gasoline, can be largely:

eliminated by the simple expedient of making a very light

' naphtha, rather than an ordinary motor gasoline, with a

fairly high end point, and fairly heavy. gravity.

The other scheme which has also been used, is to trea

these gasolines so severely, with so much strong acid as to. ~

remove all the olefins and-give a substantially saturated

gasoline, like ordinary ‘straight run gasoline in most re-

‘aspects. Both of these methods, however, involve the loss t

of from twenty to forty per cent., as a rule, of the original

cracked gasoline, and Ellis’ big contribution. was in’ show-.

ing that it was possible to get a gasoline which’ was low .

- in gravity and relatively high in end point, and yet free

from gum forming constituents, without having to -treat

-80 heavily as to remove the. olefins.” In other words, he

only got a loss of 1 or 2 per cent. by his process. {hr

_. [fol. 1001] Q. Now, the Master asked plaintiff's expert, on

page 970 of, the Record, what an experienced refinery —

chemist would do if he had been asked, in 1913, to prepare

a substantially gum free gasoline from unrefined cracked

_ As a matter of fact, was the knowledge-of the industry

_ sufficiently advanced, at.that time, to make such a question

as that atall probable? == OS aoe en Mee

_ _A. No, it was not. “Ellis was really almost ten years

ahead of his time, in calling specific attention to these gums’

Prgzaad constituents, which he’ refers w as resinifying ole- -

j . The common objections, in that day, to cracked gasoline, |

were to its odor, its bad color, and, specifically,-to its high Vane

content. of unsaturateds, w th was blamed for its lack of Ans

stability and its general difference from ordinary saturated — “Si

7

’

i

line and straight run gas

sat

“Before Ellis no one ever realized that most of the olefin ie,

were really quite desirable constituents of gasoline. They

considered that all of. sini between cracked ' gaso-

to make was to distinguish be- .

tween the two—in other words, to ask himself the question

’ \ whether he could remove the gum: forming ‘constituents

_ from cracked gasoline, and still leave in the olefins, it be-.

ing so universally believed that the two were.cause and — ,

effect, together with the bad odor and the bad color,

Q. Now, I believe you have already shown, have you not,

_the importance of the presence of gum? —

A/ Yes, I have already pointed out that the ‘absence of

eum forming, constituents fro gasoline is ‘not an abso--

- Tut ly vital requirement, although it is one upon which,

within the last few years, we have begun to lay more stress,

As I have already said, the Government has, even today, no

specifications for motor gasoline, to cover this point, be- —

cause by and large, a reasonable amount of gum forming

‘material doesn’t do much harm, unless the gasoline is stored

for a considerable time, or for a shorter time at elevated

‘ ‘temperatures, in’ which Case, it may form gum and may

cause trouble in time’ - -

. Q. So that a man can run along quite a while, as the in-'~

‘4 dustry did, and not pay much attention to this pace ques

- tion? | |

‘A. Yes. 3 c .

_Q. And Ellis was. the first man who concentrated his °

Be mind on gum, at all, as fat as you know?.

A, Yes.. |

Q. Now, apart trom the tact that mabey wonld | in 1913,

ask the question that the Master asked, @t all, suppose that

someone’ had put such 4 question, what would the experi-_

enced refinery chemist naturally do? . .

A. He would naturally: follow the common practice of the

industry, which was to use strong acid—that is, generally 66

_ degree Baume, or 93 per cent sulphuric’acid,

As Ellis points out in the beginning of this. very paisa,

it was even the custom to first give the oil a light treat with: °

this strong acid, to remove the water, so as not to interfere

ig 4 «with the of the treatment by diluting the acid later

oe ante denaaersee ad it almost use lees to treat,

line, were due to 20 per cént. (or

_ ‘more, in some cases), pra constituents, and the big-

» gest step . which Ellis

3322

wilt. acid, which was foneh more dilute than: the 66° acid

9 tho used in the. petroleum industry: ey ies

Q.. Those practices wére common, were they?

1 A. Yes, they were, and are yet, to. some extent. Ms a

= matter of. fact, not only was the prior art very firm in its

conviction that dilute acid was substantially ineffective as

- [fol, 1002].:a refining agent for petroleum. products, but it

_ Was Many years after Ellis ‘before even the larger. com-.

_ panies realized the advantages of his method of treatment...

Even sincé I have been with our Company, we have been -

- tending more in the direction of Ellis. A few years ago,

~ itis my understanding, that very few of the refiners were

using Ellis’ scheme, although ighaey Hl better than the

-_ use of the strong acid: so firmly was it d in their-minds

that-the strong acid was the material to use in treating, and ©

- «that this cracked gasoline, being a harder material to re-

_ fine, would require larger-amounts, and, if possible, stronger

acid than that used on the ordinary straight run products.

‘ Of course, if someone had told a chemist that there was a

distinction between gum forming constituents and olefins,

then he might have been led to try weak acid, which. would

‘not attack the olefins. But he was filled up with this<idea.

that the olefins were responsible for the trouble, and. that

ae you must remove the olefins, and he naturally, therefore, ,

went to strong acids,’ which were the recognized method for

removing olefins. :

~ The Mester: To swhink extent is ‘the Elis 1 process being 3

used?” ee

. Phe Witness: To the best of my anion it is now used =

- by practically all of the primary defendants—and I pre- -

sumé very: largely: by the secondary defendants—that is,

the. method of treating by means of a reeerey small ~

- amount of dilute acid.

ey Master: Is that method of tréating belie strong acids,

Biss to your knowledge, used anywhere?. |

- The Witness: .Yes, it is still used- by some of the ceaaligs

refiners. I have. heard; within two years, of some of the_

small refiners doing their treating with strong acids. Even

a today the advantages are not fully appreéiated. It seems .

~ to the refiner as being an illogical, rane than a eee

“shane from ordinary aa,

-'Q, Well, there is a nuisance about; it in the kindof pipes.

and tanks you ‘have to use, isn’t there? ‘Secor eae a8

. ‘A, Yes, that is true.” The dilute acid is more corrosive -

than the strong acid, contrary to what might be supposed.

_. You have to take. particular care in the design of. your

.. «plant, when using the more dilute acid. Bet fat :

¢ | -Q. In ordinary straight run gasoline what was there that

_. was removed by the treating? = °° Ce

. .° A. In ordinary straight run gasoline the main materials *

-“~—- [fol. 1003] removed by the treating were the olefins, with a.

trace of asphaltic contamination ‘which might have. gotten.

in, through dirty lines or contamination with a little crude.

» Q When cracked gasoline came in what was thé assump- ~

tion as to the acid that had to be used on it based on crude ~

practice? . ee es 2

A. The natural:assumption was that the acid-would have

-to be increased from an amount sufficient to care for one or

two per cent. of olefins as in straight run gasoline, to fifteen

-- . or twenty per cent which represents the olefine content of

' the cracked gasoline, if you were to obtain an equally satis--

factory product. ; a sas Aa

_ Of course, some have tried to market it with practically

no refining, thinking ‘thgy could not afford the large losses -

; é 3

_ involved in such refining. Tog Cae

_. «The Master: What was the difference in the losses by the .

_Ellis process and the strong acid process Ps -

The Witness: Of course that depends on the amount of

optiseri If you used amounts such as: were fairly typical |

: -in the prior art, or if you started out on the basis of treating

+ to. remove the olefins, which was the natural assumption,

you would lose fifteen toztwenty per cent instead of one or —

two per cent. Les eee “

_ The Master: That worked into dollars and cents in what.

~ degree? ae PT 8 oe .. ;

- . * She Witness: Well, that would of course enormously add

to the refining cost, both on account of the greater tonsump- —

EG Bel of acid and the fact that these light products which we

_» had produced at considerable expense by cracking we would |

_.* lose, and throw away into fuel oil or asphalt practically fif-

-__tee'a or twenty per cent of our product, which would be a

vary serious, and undesirable loss... | ae ae ie

Q. Plaintiff’s expert talk

v

eae of the olefins.as being re-

. sponsible for gum formation; is this correct? =e.

.

4

A. T do not think that we are entirely certain of that. It

may or it may not be correct. That theory that the gum ”

_ forming constituents were diolefins, rather than olefins, is

a theory which has been developed by work done during the .

last ten or eleven years, partly to account for this very fact

that we have now found, and first: shown by. Ellis, that you . -

can remove the gum-forming constituents and leave in the

olefins. That shows that the gum-forming constituents are

not the ordinary, simple. type of olefins; and it has been °

postulated, with some supporting evidence, that they are

really diolefins, that is, chain compounds with two double -

bonds in the chain at some point. Bog a) paiee

_ This, as I say, is quite possibly true and is the general

8 theory today, but our theories have had to change as time -

‘went on an- even that may not be considered true a few.

years from now. 2 Sy es :

However, as plaintiff’s expert, when asked on pages 933

ae to 943 to cite any such distinction prior to /1913 between

olefins on. the:one hand and gum-forming constituents or . :

olefins,-on the other. > ue

‘

es [fol. 1004] “The chemistry of 1912 and 1913 divided all :

_* petroleum hydrocarbons into paraffins atid olefins; that is

_ the saturated and ynsaturated with respect to sulphuric .

x

~~ acid. Since then’ we have split up the saturated into two

. different types of compounds, paraffins and naphthenes, and

we have also split up the unsaturateds into two types of

| - compounds, olefins and diolefins, ten or fifteen years from

:, ° Now. we will undoubtedly have split: them further down and

be able to explain a little more definitely, what some of the

exact compounds are.in our oils. : ee Ae

_. Q. Can you cite any referetices tending to show the gen-

_ eral belief of the industry with regard to the undesirability

‘of the olefins and the. amount and strength of sulphuric acid.

_ Fequiredtoremoveathem?. 8 sss :

. A, Yes, it is not necessary to go out of the list of exhibits ©

> cited by plaintiff’s expert mainly cited-against this very.

_ patent, to bring ott the-common belief of which f have ~ . -

_ ‘Thus, I read from page 1700. of the book of exhibits, from

_ Barbet who states in two lines near the middle of the page,,.

_.Teferring to his eracked products: a ee

ean be treated with: sulphuric acid for &

th, Bee

~ action on the fatty hydrides proper (that is Mills’ te

\ ’

Xs 3 ° Oe

FY ‘ * , > 8,

» Mi ‘ ° ce 5 ey ey

> 2 . % ,

‘ } . J ‘ . : ;

t 5 ad

‘ Ye Z a *s Py An

You notice the use of the sulphuric acid was for the pur/ .

. pose of destroying thé olefins, not of bongeasis something 3

and leaving in the olefins.

Q. He mentions thiofenes. To avoid any tack of under- 7

standing for any of us, those are eulphar compounds, are

they? .. a

A. Those are a certain class of sulphur compcands, yes.

Also, on page 4199 of the book of exhibits, Mills in Exhibit,

245, ‘which is a book on destructive distillation, says with

aie reference to the use of sulphuric acid, in this case on shale

oil, not on petroleum :*

“This latter liquid (that i is pulplnurie acid) has but little

for

paraffin hydrocarbons or. saturated - hydrocarbons) but on

'. tydrides containing: less hydrogen (namely the: olefins) it

acted powerfully, resinifying and polymerizing them ‘as it’

comparatively inefficient for the purpose.”’ ee

_.does turpentine. Weak acid sometimes used at this Bi is

It will ba nated that this reference to ‘hs use. of: weak acid :

is not on refining petroleum but on shale oil, and the state- _ |

-ment in regard to it is that it is comparatively inefficient for

tHe purpose of the olefins. rie

In the last paragraph of page 1508 of the ‘book of ex- |

hibits, Armstrong and Miller, state with regard to use’ ‘of ;

acid of about. 76 per cent strength: ig pL yi

“By its action the unsaturated hyarosarhons are, for the ;

most part, converted into compounds which are not-distill-_

able in steam. . In order to effect as complete a conversion |

as possible, it is desirable when the action appears ‘to be

-at an énd, to separate the acid. woe the oil and treat the

jatter with stronger acid. ane

qe «8 te other. words; in ae reference. bie finish | up with :

‘strong acid to complete the conversion of the olefins? . _~

A. Yes, and they say definitely even the 76. per cent acid

_ . which, of course, is stronger than Ellis’ preferred acid, is _

_ sufficient for the most part to convert the unsaturated —

hydrocarbons into materials. which can be removed. The —

8 mater ials which they are oo are the — from is

, 3

. % +

o-¢ y 9"

3326

These same nalhain say on page 1519 that the olefins ure .

free from benzene are entirely: converted into polymerides -

and-soluble bodies on treatment with sulphuric acid—’’.

Q.. When they say they are entirely converted into poly- - _

merides, does that mean the same thing that you spoke of

as polymerize or polymerization the othr day?

A. Yes. That is one of the actions of sulphuric acid. %

‘{fol, 1005] @Q. In other words, you are calling attention bo

particularly to the statement that they are entirely con-

verted? | |

Ay Yea.’

* Dewar & adwond say on page 1385, with regard to kero- :

- sene made by cracking: |

“Tt is: asserted that. such -oil is inferior in light -givitig

power. and more readily acquires a dark color on keeping.

~ It is certain that the smell-of the crae is stronger and

that Th the chemical treatment ‘a much larger — of |

anlparie acid i is required, gs

That is ‘eeaety the ‘ead that I have bia siakiia of,

’ that the natural thing: to'do is to treat these inferior prod-

-uets more heavily. rather than less heavily.

On page 1489 of the Book of Exhibits Aisinman discusses

_ precisely the same question of cracked kerosene and says: . -

“The illuminating oils obtained by decomposition distin- .

guish themselves by ready oxidizability, and for their chem-

tical purification, and: refining they. require a higher per-

centage of high grade sulphuric ‘acid. The refining losses

are rather high since the hydrocarbons react intensively

_with the sulphuric acid. By means of pure 66-degreée sul-

phuric acid alone it-is not possible to produce water-light

or. slightly “yellowish | petroleum, but more success is”

: achieved by the use of oleum’ of about ten per cent.??

Qa. What. does oleum of about ten per cent mean?

A. Oleum of about ten per cent means that about ten per.

- eent of sulphuric acid anhydride has been dissolved in sul-

' _ phuric acid making it stilt stronger, in the neighborhood of a

"one hundred per cent sulphuric acid. ie

_ In other words, what Aisinman states ‘daaity, (and Aisin- aes

man is talking about refining kerosene in-the ordinary ptac-

tical petroleum industry )—is th! these illuminating oils = =

aac by — are rey — and —— a

pau f

‘ .

* amounts of ‘stronger acid in refini

“larger scadisaln sstuleiiatlay of. stronger acid i in adie to treat .°

> them and make a satisfactory product. In fact, he says you

cannot make a satisfactory product even with ordinary 93

per cent acid. - :

Dr. Krey, who did a good deal of work in this field and:

developed the Riebeck ‘process, apparently considered it’ |

‘was necessary to remove all of these olefins in order to —

make a marketable kerosene, because he states, on page,

4229, that his total loss is about forty per cent of the gas

: oil used i in his cracking process, and that of this loss, ten. _

_ [fol. 1006] per cent is shown by a reference on the prévious |

' page, to coilsist, of gas, water and coke, which is ost in.

, ~ the cracking process.

‘That gives him ninety per cont of liquid-produets, and a

since | loss is forty per cent, that leaves him sixty |

per cent out of this ninety as finished, refined products;

meaning a loss in refining of about one-third of the — ee

products gotten from the cracking operation.

- This checks with his statement on the next page that of.

_ the distillate ‘produced about one-third consists, of unsatu- Ane

a hydrocarbons.

This general attitude of the prior art ‘toward ordinary

_ eracked products might be expanded quite a bit by a refer- -

ence to other ‘exhibits which do not happén to be cited in the

ae ease, but this seems to.me to be quite adequate to show that

instead of Ellis’ expedient being obvious, it meant go s ;

_ exactly in the opposite direction from that. in which the _

_ prior ‘art clearly pointed; namely, t rd the use of. loses ae

ie t6 to. ‘make marketable.

‘products out of cracked products. ..

Q. Now, do any of the scientific papers of the plaintiff's gk

expert indicate when he himself first considered it obvious

to treat cracked products very ‘lightly so.as to remove the

.', gum-forming constituents and leave in most of the olefins? _

. A. It was. evidently not until recently. that plaintiff’s

_ expert considered this quite obvious, because in his paper

‘in Chemical Age for January, 1922, near the. ea of spd

first page, the statement is made: :

. « * Jo New: York it is not uncommon to have nee in one’s _

car-a gasoline carrying 20 per cent of unsaturated. constitu. ,

_ tents, which means that such gasoline on standing and in

- contact with air discolors and separates — a time a small

_ Mount of brown ‘tories “deposit.”

37

’ , ,

; ¢ ‘ ry \. : ;

8328 hoe : f

‘ .

| * “ i?

In other erent although by this :time practically all of

the refiners realised the advantage of the Ellis process and

that it was possible.to remove the gum-forming constituents

and leave in the olefins, plaintiff’s expert still believed that

' the fact that olefins were present necessarily meant that the

/ gum on standing. :

so, in the early part of his: mcg page 536, plain-

' tiff’s expert makes. the statement:

‘“‘Our ordinary method of purifying a mixture ‘Midiainins

paraffin and other hydrocarbons -is to change the other.

-hydrocarbons by severe chemical treatment, which chemical. .-_

[fol. 1007] ‘treatment, even though severe, is essentially

; without effect upon’ the parafiin’ hydrocarbons. che

Q. And that was true. of-the general ordinary: method of

purifying such a mixture some years ago, was it not? - :

. A, Certainly before the time of Ellis. - :

Q. The master also asked in a question on aes 970 if the

réfinery chemist would naturally have turned to the Arm- ~

strong treating method for the removal of the gum-forming ©

.. constituents, and plaintiff’s expert said that he would.

| Please state your opinion on this point. °° ses

* A. Ido not see.any ‘reason why he-should, bécansé” Arm. ae

strong and Miller were not in any sense a part of the petro-

leum refining art. Armstrong and Miller describe a labora-

tory method. of purifying the aromatic hydrocarbons i in oil —

_gas tar. There are practically no- ‘paraffins present,. and

they were interested in getting’ the impurities, particularly

‘the olefins, away from the aromatic hydrocarbons. B,

For that purpose it was an obvious expedient -to usé com- _

"paratively dilute acid, because it was known that ‘strong -

acid reacted with the aromatic hydrocarbons. which. they.

were trying to purify, but that vas a special expedient -to

méet a special situation in a diffeernt industry. It seem- to

. be nothing that a petroleum refiner would have obviously —

used from the fact that dilute sulphuric acid. might have

_. been used for some other quite different purpose, in some : "see

aa “other quite different industry. BBS

“Q You stated that the strong sulphuric ‘acid was kaown weet

.f “to react. Would that have destroyed the aromatics, such = =

is ss eee which were what they really wanted? See

: tay it would have leamtets: with them to a very con ee

ite 5 ae

Santi ogg a

“s

“ : ‘ “of.

My 4 ¢ ‘ nf hd “ P|

Pe’. , * 3399 —

y : . “ : .

; * ‘ 3 ’ i

. ® "

Q. Arid the reaction would have spoiled them?

A. The reaction would have spoiled them for the desired

purpose. That was a cleancut problem of getting some- .

thing that would remove olefins and other impurities from

aromatic hydrocarbons, which forbade theif using as strong

- acids as were commonly and ‘customarily used in the,petro-

- Jeum industry for quite different purposes, and bore no _

. relation to Ellis’ problem. — Lie

If this proc had been.put up to a refinery chemist, as

-. [have-alrea& stated, he would naturally use the expédi-

"fol. 1008], ents which were.eommon in the petroleum re-

: fining industry, namely, the use of relatively strong acid,

‘and: the natural.step to take would be to use more and —

stronger acid because of the less saturated character of

his product. PUMA SL Geert ce oe Sey

“ Q, Suppose, however,.for some-reason a refinery chemist .

_. did try out the Armstrong process on Ellis’ cracked métor ©

spirit, would he accomplish the disclosed result of the Ellis —

process? . — oe See tga Aaae 3 Dada |

A. No, he would not, because Armstrong and Miller spe-

- cifically say that, by their first treatment, as I pointed out,

they largely polymerize the olefins, and by their second .

‘treatment with a stronger acid, about 85 per cent, they state —

, ’, that it is to effect as complete a polymerization as possible; .

and I also. pointed out that they stated on page 1519, that »

the olefins, ‘‘if free from benzene;-are entirely converted

‘into polymerides and soluble bodies on treatment with sul-

phuric acid.’’ In other words, if you did use Armstrong and

‘Miller’s,process and followed their directions you would

treat with so-much of this acid as-to remove substantially

i: MOY te OMIA. ee ze wes

_ °Q.:And that would give you about twenty per cent re-

fining loss, or' something like that? : deena

A. Something of that sort, yes.»

. i .

- Q. Plaintiff’s expert stated on cross-examination at page .

967 that the unpleasant odor which Armstrong and Miller

‘aseribed to their product was evidence that they did not

_ yemove substantially all of the olefins. Is that a correct

: interpretation of their statement?’ === ©

A. No, it is not. In the first place, the quotation is not |

~_: -aeeurate. ‘The statement which Armstrong and Miller make —

on page 1509 ef the Book of Exhibits, refers to volatile

209-378

t

products of the actjon of the acid, not volatile products and

the action of the a¢id.. These volatile products of the'action

- of the acid are Anquestionably sulphur dioxide and other

ve

sulphur compounds made sid reaction between the acid and. -

e acid is to destroy the olefins, not to form the

urthermore, these olefins do not have bad odors,

intiff ’s expert implies. For example, the refined

gasoline, which I showed a. short time ago -has around -

ty per cent of olefins, and yet a very satisfactory odor

nothing like what Armstrong and Miller were-referring ~

40, the unpleasant strong odors which are bot crmmaue by acid-

/ treating oils; ee

= 1009]. Q. What ratiroone ‘did plaintiff” 7 expert. cite :

t the Ellis treating patent? , -

0 He cited Aisinman, Exhibit No.. 118: Redwood, Ex-

hibit No. 116; Mills, Exhibit No. 245; Vittenet, Exhibit No.

117; Armstrong and Miller, Exhibit No. 119; Letny, Gx

hibit No. 158, and Allen, ‘‘Exhibit No. 113.”

Of these, Allen merely describes certain of the products, .

and does not discuss, so far as I have been able to find, any

“methods of treatment. ‘So that it is really a reference to

the product patent which we will consider later; rather...

than to the treating patent.

'Q. Do any of these references show: the drontmnanit of a0:

pristots motor fuel at all similar to that of Ellis? :

A. No, none of them do. Py

--Q. Which of the. six references which describe treating

processes .can. properly be considered. as referring to the ©

‘petroleum industry? \ 3

A. Aisinman is the or

petroleum industry, and he refers to the refining of cracked

y one whieh dies refers to the

kerosene, which involves. ‘problems somewhat similar, al- . =.

though by no means identical, with those-in refining cracked —.

a As I have pointed out, Aisinman specifies the use

- of large amounts of 93 per. cent acid, or preferably. of .

, oleum. So it is just the opposite of. being a reference for .

~ Ellis: It is a clear showing of how far Ellis — from ps -

_ the peor art his nw treating proc : cas

© What do the other references relate tot i

yo

We

-*

A. Only one of them clearly ‘eeliee to abil in . the

petroleum industry, ‘and that is Aisinman. Vittinet prob-

ably referred to shale oil, but it, is probably shale, in any.

ease, but if it was petroleum, .it was not a cracked product —

‘ guch as’ was. the case with Aisinman. Redwood and Mills -

., discuss the refining of shaleoil, while Armstrong and Miller

“and Letny discuss the aromatic distillates from oil gas

>. tar which are entirely different from cracked peccenm

- distillates, suchas Ellis’ was dealing with. 7

Q. And how heavy is Vittenet’s treat?.. See

A. Vittinet uses 48 pounds:per barrel of 78 per cent ce

plus 48 pounds per barrel of sodium bisulphate, to be fol-

lowed if desired by a second treatment of similar kind. I oe

do not know just how effective the sodium bisulphate would .

be, but he says that in place of this treatment, as an ap- —

- parent equivalent thereto, you may use 48. pounds of 93 per -

_[fol: 1010] cent acid plus a little potassium dichromate. —

Hither of these treats is, of course, véry large in amount, .

+ much larger than are ever considered for use on light pe-

troleum distillates, and the last. one is an extremely severe,_;

treat with 48 pounds of-93 per cent acid. Even the first —

with 48 pounds’ per barrel of 78 per cent sulphuric acid

would remove a very large proportion of the olefins from |

_ any cracked product on which it was used. - Of course, Vit-—

- tenet is not. talking about a cracked product but ‘about -

purifying crude ‘petroleum, improving its. odor, and also :

j 8 method of treatment.for other products. st

ae Q. Do any of the references cited disclose treating with —

forty to sixty per cent: acid as. specifically: recommended

-. by Ellis? . .

-. <A. No, none of mk disclose anything in that range.

In fact, the only. one that shows less than 75 per cent is —

Letny, ‘who uses 64 per cent acid, and he also, like Arm-

-_ strong ‘and ‘Miller, is treating a highly aromatic distillate

- from oil gas tar, and uses weak acid for the particular .

ss purpose of avoiding action on the aromatic hydrocarbons

a _which he wants to separate, eae

Q. Which one of these six veferenses bio’ you think comes

; the closest to treating the ‘Ellis produet, and what treat-

- ment does that.reference disclose?.

A. -I have already said: the one which comes nearest is

sg of — ‘who siees a cracked a —

wr,

rons }

troleum, and recommends large amounts of 93 per cent

acid, or preferably still stronger acid.

Q..What products of those cited as being acid treated

would. you say approached most closely to Ellis.cracked

- motor fuel, after this Aisiniaan cracked petroleum?

.A. There, is really nothing elsé. which at all closely re-

sembles the product that Ellis is having to treat. Pos- .

sibly the nearest of any of the other ones ig the shale ~~

naphtha, which is cited in Redwood’s book, Exhibit No. 116, -~ -

. Where he describes treating. with acid of unspecified

strength, presumably 93 per cent, because that is ordinarily

what is assumed when nothing else is specified.” But this, it

will be noted, is treating a naphtha made from a shale oil, .

which has previously been treated, with a large aniount of

. sulphurie acid, in which process’26 to 30.per cent, Dewar &

‘Redwood say, has been treated out. In other words, the

loss on treating the once run shale oil amounts to 26 to 30

_ per cent in the process of acid and alkali treatment, (mosily

[fol. 101044] in the acid treatment) and even after taking

out this large proportion, whicli is to a considerable extent

‘olefins, the shale’ naphtha is apparently still treated with — | .

_ Strong acid, although only a small amount. =~

In this shale art they take the crude shale oil, put that :

‘in the still and re-run it to coke, taking the distillate over-

. lead, tnaking a ‘‘once run’ shale oil’’ which is more satu-

oil, as I have already pointed out.. :

In this Redwood process they treat. it with acid and then

rated and 4 more desirable product than the original shale . -

with alkali, using either about 79 pér cent acid or acid tar . :

left’ from a strong acid treatment of some other: products:

_ By those treatments they remove from 26 to 30 per: cent,

as Dewar-and Redwood state on Page 1430.’ Having

. treated, the once run qil in this process and-taken out 26 __-

3333

} >

the olefins; and Redwood, as I have already pointed out,

states a loss in this and the alkali treatment of 26 to 30

per cent, which shows how greatly different their process

| tb from that of Ellis, even if they were in the same mips

ra which they are not.: +

“: Vittinet, as I have already stated, uses 48 pounds. of 78

_. ‘ pér cent acid, followed by°48 pounds per barrel of sodivm

+ bisulphate,. followed by a second treatment if desired, or -

= alternatively using 48 pounds of 93 per cent: acid together

“with a’ small amount of postassium dichromate. These are -

entirely different types of treats from what Ellis is doing, |

‘.and would not accomplish: Ellis’ purpose—namely, remov- -

_ ing. the gum-forming | constituents and lonving: in: “most of :

- the olefins.

Armstrong and Miller and Lietny, as. I have aid, ‘de use

somewhat dilute acid:in quite a different industry, namely, |

in the laboratory refining and mination of the distillates.

- from oil gas tar, which contain large proportions of aro-/.

_/ matic hydrocarbons and very little paraffin, hydrocarbons. -:

_._- Even they speak of their. refi ing as being to effect as com->

plete a polymerization as possible, or. to complete the con- .

_- version and polymerization of unsaturated compounds.

-. ' They want to separate out pure benzo, and that is the‘rea- _

son why they go to dilute acid, which does not attack

~ henzol; but of course tequires larger amounts in. order to.

ei, get rid of the olefins which they wish to destroy. | :

'Q. Do any of these have any indication of either the

possibility or the desirability of removin gum-forming :

| =: .constituents by a lighter treat of dilute id and of seat: i

/ ing in the-major part of the olefins? = / - ,

‘A, No, none of them even hint ai the- possibility or the

~~ desirability of such an operation. 53

_.. Q. Ellis, however,’ discovered Apparently escent des -:

7. Wilty-and poesibility! 0 7

ets. Mr. Whee It is a Vittlé- after four, if ‘the: Court wie: |

- and-I would like ee ens before - taking: up the: . He

a peedee patents. es

SS =. Aemeirong and Miller and Shai by the tute of shade

ae acid in thie nee of — were — to:

o yémove the olefins and ‘other unsaturated compounds from

behzene or benzol, as I have generally called it in this case.

That was the reason they employed the acid which was more.

dilute than that ordinarily used by the petroleum industry, 3

_. but it-is very apparent particularly from Armstrong and.

‘Miller’s citation that they desired to remove every trace. ey

of the olefins even with this more dilute acid by ‘using a

. sufficient quantity. BL Gl eR ae: Ss |

_ Armstrong and Mill@r state very clearly that they did

‘remove all of the olefins and this is indivated also by. the ss

. description of the product which Letney got after treating

“With Bis acid, 2. 0/) ses), eae

2

[fol.1012] In other words, they were doing again just

what Ellis wanted to avoid, that is; removing all of the ole-

fins from the product in addition to the faet that they were.

not treating a petroleum product but were treating a highly —

- aromatic distillate from oil gas tar, which involves quite

_ different problems. ; % i

Q. Now, I believe you said yesterday also that the oleum re

= recommended. by Aisinman for treating cracked kerosene

was about one hundred per cent sulphuric ‘acid. ‘Please |

state in a little more detail just what oleum is.

A. Oleum as-a class represents sulphuric . acid which

contains some free sulphuric anhydride or ‘$0;. The

methods of expressing concentration of sulphuric acid are _

a little peculiar because of the fact that the acid itself con-

tains a certain amount of combined water and you can put

it the anhydride of that acid without! the corresponding .

_ water and get an ‘acid which is really'stronger than ‘one -

per cent acid, because it contains free SO, to which

” you can add more water, and after the addition of water

have acid that is one-hundred per cent strong. So, from

that standpoint, it is eally stronger than one hundred per

’~ The term ‘‘oleum’’ is used to refer to these’ acids which =

_ contain more SO, than. corresponds to one hundred er

OWN 5 ee :

, + Aisinman speaks in one place of ten pér cent oleum and ©

at another.place of ten degree oleum. Tam not certain ex-

3

actly what ten degree oleam means, and even the term ten.

per cent oleum is not a’term-which is very generally used in. >

this country, and T cannot be sure exactly what it meant

cre: gt 3

. ¢ *. $

Paar ¥

8865.

ere

oe in 1900 when he was 1s writing; put epbalamehiy ‘it stesien to

an acid containing ten per cent of free 80, or sulphuric

es anhydride. oe

Ten per cent SO, would. require a little over. two per. cent

water to make sulphuric acid from it, and it might, there-

- fore be referred to as a little stronger one hundred’ and ;

two per cent sulphuric acid;

-Q. Now, I wish you would state the nature of the prod- 2

ucts described and. claimed i in the Ellis. product patent No, S

1;318,060. oy

A. Ellis dosctiben in’ this patent’ a proditet made by —

- eracking oil to get a heavy gravity, relatively high end —

point gasoline, which has been refined to remove the gum-.

forming constituents and to give it a ‘good color and odor

without losing the olefins. 2

_. ..- In other words, it is a product which still éonbaliid a eies es

[fol. 1013] percentage of olefins and yet has been so treated

as to remove-the gum-forming constituents. — . 2

-In order to indicate the presence of thaes olefins ‘and. :

-, show that his product was not merely a product which had.

_ been refined by treating out all of the olefins he specifies the

iodine number of his product as being ordinarily around 75 —

and always higher than 30. ‘This, of course, compares with

iodine numbers characteristically around five for a straight, |

run gasoline, er for a cracked: gasoline which has been

heavily treated for the removal of the unsaturated com- -

- . pounds. Ellis. unfortunately does not say exactly what

‘test he used in determining his iodine numbers, but it is’

_, presumably the Hubl test, because this is-the only strict

7 iodine number and it is the old sts pds test. s

- . The more recently developed H and Wijs tests em- |

| ploy mixtures of bromink and i im chlorine and iodine, .

and while the résults. salir calculated in terms of —

: iodine, actually: the material which adds to the double bonds»

is probably very largely the more active materials, chlorine

“and bromine; ; so that in a strict sense, I should. say the Hubl .

., test was the only one that could properly be called an iodine —

- number and is probably the one that Ellis was using. =>

I want to make cléar that Ellis did not indicate for a mo- ;

es ‘ment that his unrefined product was new; that is, his prod-

- wet of eracking, but rather that it contained the gum-form-

: ing werninens and had the sharacteristic bad ne It

ys

.

. - ’ e . * .

“ Fa) { ‘ . ¥ \ B ‘ : —

2 . . Wee? i 4 7 x f : ° bit

sa ee - - ————~-~ “ ~ --\ = —,. — ——_—_—-— =A

3336 “ 2 ; : 2 5 ” ; F ss

: x Py . z »

° + ~ A ° ,

;

;

- swas only-after it refined in a particular inanner that he se

‘got his new product. ©

Furthermore, I’ also want to make clear that itis not

_ merely a gum free cracked gasoline that Ellis is. deserib-

ing, because as I ‘pointed out yesterday, other’ methods

_. Were known for making gum free gasoline from ‘cracked

|: . products or from highly unsaturated ‘products, one being

*

ends of the gasoli

nents, : | 3

to, treat so heavily as to remove ail of the olefin, which | °

gave a big loss..- Another method was to use only the light

uatvia boiling ur to 250 or 300,

er free from gum-forming constit-

f=

which is ordinaril ra

The problem does not begin until we have a considerable

"amount of the heavier end of gasoline, boiling between 300 -

and 437 or even higher. Those are the constituents which ©

make the trouble: |

"| A. To-be really the eqaivalent of that of Ellis the prod-

uct must not only be a suitable motor fuel made by crack-

inig petroleum, but it must have a good color, a good odor.

- of olefins as indicated by its iodine number, and it. must be é

. & relatively heavy gravity type of gasoline. . |

: merely arbitrary limitations to make the problem hard, but.

_ they are the intrinsic guarantee that Ellis’ freedom from

of the olefins by the use.of strong acid.

(fol. 1014] _ No such ‘product was deseribed in any ofthe.

_ Teferences. Most of the products had not the slightest indi-

und or product of that |

ined. ‘That i, it ean be obtained by pacting the

cracked vapors through a bed of Fuller’s earth in accord-_

" ance with a patent that issued a few years ago, which does —

eliminate these gum-forming constituents and leave the

_ other materials. That was-subsequent to Ellis, of course. o

. .Q. The essence of the thing is that it shall bea heavy —

gasoline, that is, a gasoline like modern motor fuel, such as __

is described in the specifications; high in olefins and still ~

- free from gum? Se eee oe

A. That was.not found in the prior art. AsIsaid,mostof _

the matérial described almost certainly contained large

_ quantities of gum forming constituents. In the few cases -

where it does appear that they were probably gum free, this:

* ° freedom from -gum was accomplished either by one or the -

_/ other of the two expedients which I mentioned; that is, by

simply taking a low boiling cut in the one case, or by treat-

- ing out all the olefins. | ee aioe a ya

I will discuss them individually as we come to them, —

Plaintiff's expert cited twelve references as follows: -

\: . 1, Biebeck, Exhibit97, . . .

2: Engler and Schneider,. Exhibit 98, AGS hws .

-8. Walker, Exhibit 111. aes ae dn

4. Thorpe and Young in their articles Exhibits.94, 95 and

>: 5. Williams, Exhibit 114.

me x GC Opbok Bie 278 ee es

+. 7, Armstrong and Miller, Exhibit 119. an

| 8. Boynton, Exhibit 109. | ee

oe bag sats aoe : fbersigat are

~~ 10. Spears, bit 108,

U1. Allen, Exhibit.113.

12, Allen, Exhibit 115.

-_ eracked product which contain’ olefins and gum-forming

constituents, and therefore, in a general way would be sim-

"In a very general way the first four references give’a.

only one started with petroledm; that is Walker; Riebeck .

__. Starting mainly with oil gas tars or brown coal tar oils;-

Engler and Schneider using heavy lignite oils, and Thorpe —

and Young cracking mainly paraffin wax; but, in a general _

way, the distillates which they secured presented similar _

Pe

de __ilar to Ellis’ starting material, although of these first four _ |

4 ie listing those you followed the same seetiin that b. S

~ you followed in your testimony, of. listing as one ¥ e, *

a8 single process, even though it

articles? © ee ae

A. I think the only | place where there is any samidaation :

' js in the case of Thorpe & Young’s disclosure, which ig

be :

-- spread through three articles.

__Q. You have treated them as a single reference? -

A. Yes, sir.

. Q. Now, do any of these four rebietences: that is, IRiobeck, a j f

- sidering these four individually, neither the Riebeck nor.

__ Engler, nor Schneider, describe any treatment for their -

"gasoline, or benzine portion, though Riebeck does refer to

osene.

[fol. 1015] Walker, the third of these referencess treats.

_-with hypochlorous acid, which, as he clearly indicates, re-

acts with substantially ‘all ‘the: ‘olefins, and leaves behind a

substantially saturated ‘product. |

’ In the Thorpe & Toure. articles there are two ehamital ee

~ treatments described, one of which is distilling from sod- Bee,

- jum, and the other is: treating with - The bromine =~

-, treatment destrovs the olefines adding t

‘in the manner that T described some

_ment.. Nee

‘Plaintinff’s expert ‘said that it would

some entirely undisclosed kind of treatment for his ker- 7

“Thorpe & & Youre do not state the purpose of that treo’ -

Engler: and Schneider, Walker, and Thorpe & Young, de- . ~

scribe a method of treating this cracked product to get an_,

unsaturated gum free product, similar to that which Eilis |

- obtains by his dilute acid, and claims as new? os

. A, No, none of them.disclosed any such treatment. Con-

4

‘Th ide to see ig what distilling trot: ictal ube or . 4

ae «would not have the action of polymerizing the gum forming A

constituents in gasoline, I took a sample of pressure distil-

° late made ‘by. one of defendaht’s cracking yrocesses, and

distilled it to-recaver the.gasoline fraction. This ‘gasoline |

as fraction had a gum test of 33.8 milligrams. ae

There, really, is no point in giving the teriths: of anil.

"grams, so I prefer to call that 34 milligrams, in around fig-

oo. ures. Tf you. ran another: test that might easily come out a

88 or 28, because the test is hard to make rst ts repro-

ducible. ins

I then took the same pressure distillate and distilled it to ;

make: gasoline, but I had sodium in the ‘flask during the —

distillation, and carried out. the distillation very slowly, so

-- gs to give the sodium.a chance to have the polymerizing ‘ |

attion which plaintiff’s expert claimed for it. = =

‘Phe product I got from that had. 28 milligrams of zum

That was, as you see, a ed ee ee .

_, but really within the limit of error: of the, oe we

- would have to repeat it a good many times to determine -

‘whether there was any improvement, at all. But this would |

3 ~ not be a satisfactory gasoline, since it would not meet.-our

~~ Own specifications, = _— Suet ar

"To. get a oummparison of thin t Gok: Eide semen 8

distillate and gave it alight treat with a small amount of

. olise ey tnt fn Guat tke fone soe Sa e gas-

_,Oline cut, ‘and. in that I-got four anda half milligrams- _.

maprossies at hoe ee oe Og

meaty that these rage ili Van

a "in ond to ee out apa rose I took a cracked’

oe , Hatin, hh original hak milligrams of gum.: In-.

ee stead of ! om sodium, this tin

os 4 edhe nee to get contact.

_ [fel. 1016] tion, vat the filtrate tested, in that case, 165 —

milligrams of ,yum, showing an apparent increase-in the’

_ amount of gum forming constituents. “That, also, as com-—

_ pared with 149 milligrams before treatment, may be within

_ the limits of error of the method._ - bane ori ay cy: |

_ This material was then re-distilled from sodium, leaving

a small residue in the flask, and the distillate showed 133

‘ milligrams of gum, but part of that reduction was due to

the fact that five per cent: of the heavy ends remained in

the flask. a hes cartes | ,

_ Then I repeated this distillation without sodium; and got

ae material with a slightly lower gum test than that, showing

that in those cases, the sodium had no beneficial action, in

that it seemed to have slightly intreased’the ‘proportion of — - :

yum forming conatiteents, ;

It is just another example of the uncertainty of theoret-

ical reasoning as to.what ought to happen in this art, where

we don’t know our fundamental chemistry well enough to .

predict what ought to happen. But it certainly does appear .

that the sodium treatments of Thorpe & Young do not have

any appreciable beneficial effect on gum, and do-not accom.

plish anything like the same beneficial result that the treat-

‘ment of Ellis did. — Set | Aes oe a

. I may say, in this respect, that’ I was rather surprised .

_. that there was not more action in that direction. Reason- '

ing from pure theory, one would expect.a somewhat greater

Q. And ‘the action that. plaintiff's expert predicted,

simply wasn’t there, at all? ee

istillate, when

The time is very aithoult. to sentra and that makes it pos.

sible to get considerable: variation. :

‘ Q: How: about the lower. fractions that Thorpe: and

- - Young made? | %

A, The lower fractions of Thorpe & Young may. ve

been gum free as they came off. That is quite possible,

though they probably had small amounts of They *

would probably be suitable for motor fuel, but, of course

: that simply dodged the prohjen of Ellis, instead of eet :

it. y . %

The Master: When you say lower fractions, you ‘mean :

fractions below a eertain figure? |

The Witness: 76, boiling” below om, or something of

: that kind. -

Q. Now, did Plaintiff's: expert, in is sagt igateaie : |

that the gum containing cracked products, made by. the first

four references: ‘which he cited, might be made into. a is

ut similar to'that claimed by Ellis?

A. Yes, he indicated that by applying a treatment like.

~ Ellis did, to those products, you could get a: similar yrod- .

uct, and, of course, there*is no.question but that, if you

e started with the same materials an applied the same treat-

- ment, you would get'a similar product.

‘But, as I have already pointed out, this. was not an

obvious expediént, at all, in this art—that i is, treating with ~

dilute acid to remove the gum forming constituents, and

‘sleave the olefins, because the art thought that: the two —

things were one and the same, and that the only thing to -

do, if you wanted to get. a really stable and satisfactory —

product, was to give a heavy treatment of acid, which :

would not give Ellis’ type of product. —

_ [fol. 1017] The next: three references, namely, Williams, 3

Cabot and A’ ong & Miller, all describé liquid by-

products of t gas making industry, that is, produets

which were cracked at a very high teniperature. ares

All these products are similar, in‘cont a large rge per-

_ centage of aromatic hydrocarbons, and therefore, they are _

~yadically different from those of Ellis, which peeing, only

. the ordinary petroleum Rydroceriamh, even though. ‘they

-- ‘were gum free.

However, if those products were made under conditions

, : ‘which, ee cial any en — of beige to:

*

‘ yesemble ‘Ellis products, they, unquestionably,.were far —

Q. Now,’ assuming that all these products were made — _

under such conditions that they did contain olefins, andalso

- gum forming constituents, ‘as well as aromatic hydrocar- -

‘ons, were any treating methods described which would re- |

, move the gum: forming constituents, and still leave the —

olefins? 2c eN . Oa a

Ak aN 0, Neither Williams nor Cabot describe any method —

* - of treatment, or purification, whatever, while Armstrong

- and Miller, as I have previously pointed out, specifically

_ disclose the removal of all the olefins, = 8

- Q. And that is just what Ellis was trying to avoid, was

it not? — 2 Oe as

Ma RR se NS ae ye

“Q. So that these three references not only do:not have ~

_ Ellis’ starting material, but they either did not treat at all, |

or they treated just the way he didn’t.want to treat?

ES A MM EOS UL SG RO AE EN SE Oy Cee

_. The next two citations are quite peculiar. They both

_ merely describe the mixtures of ordinary ‘petroleum ‘naph-

tha and of benzol. The only ground for possibly consider-

ing them as references was. because plaintiff’s expert in

‘the earlier part of his testimony apparently thought that —

benzol had an iodine number.- He later was asked to per-

form experiments, and admitted that it did not\have an

- appreciable iodiné$number. :Therefore these references

_ have not the remotest resemblance to Ellis’ product, heing

- merely mixtures of: benzol and. straight run naphthas,

_ neither of which has an appreciable idone number. No

_ _ Q. And this question of the iodine number of benzol you. De

se occasion to go over later in your testimony, have you \

A. Yes, in another connection.» — oe ee

___ It is very difficult to see the basis of the citation of the —

Spears patent, is, As 4

: \ . $ a ,

; \

|

ies

7 46

o ns

- ‘ i ‘

334 lh:

merely distills off bie before you lt toa cracking temper-

— gture or bring about any change. Then when you get. the.

~~ tar hot enough maybe some of its light ends will distil off, -

and if you keep on heating the tar will crack and eventually

eoke.: ;

Bint sot suppose the vilteenan might be nouubaieed as ‘diadog

jing anyone of three things—either the illuminating: oil

which he’ claims to make, ‘but cannot make, which is cer- —

tainly nowhere near the same as/Ellis; or the benzine which —

__ distills off at the start and does not have- any appreciable x;

. iodine number, and is simply ax ordinary: stra Tun

‘penzine; or the mixture of the benzine. and the /heavy

cracked distillate that goes off from the tar near the end,

which would contain the normal amount of gum-forming .

; constituents. and for which no refining procedure is SO

es So none of the three possible interpretations the ret- :

- erence give a product which is at all like Ellis’,/. -

| _.. Allen in page 1405 of Exhibit 113 and page 1424 of. Bs ;

_ * hibit No. 115 tabulates some gravities and analytical data

- for two commercial gasolines, as he calls them, one being

made:-from shale and one from petroleum, and two naph- ©

thas, also, one made from shale and one made from petro-—

leum. Apparently, the ‘products cited in the two tables dif- .

fer very slightly, |but inspection of their gravities in par-

. ticular shows. that they must be the same materiale re- |

ferred to'in the two references. °

. With regard: to the commercial pobpetionni: producte— |

that is, the: gasoline from petroleum and the petroleum’ -

-. naphtha—it is highly improbable that either of them con-—

Be | tained any appreciable amount of olefins, ce) not

-.» enough, to, come close to what Ellis is describing: #s 3 es-

. |» sential cracked products. See

_. In other words, thése are not destribed as ersicked prod- .

ucts in any sense, but simply commercial gasoline which —

_ Allen picked up and analyzed. Unfortunately, they do not”

.. give any iodine number, but they dé give bromine numbers,

‘ The bromine numbers. given on page 1405 are different —

«fev those given on page 1094 probably dns to the fant tha

he used a different method in the latter analysis. If we

\ehould take these latter numbers’ by the latter method for

Ne esate brominé and — by 1.6, the ratio which .

| : Fae

‘]

_ 3844

Dr. McKee said would convert bromine nambérs® into

iodine numbers, we would get one value as: high as 29.3,

_ which is almost up to the lower limit of Ellis’ produét, but

no-where near his actual preferred product or ordinary

product which had ‘an iodine number around 75.: However,

as I shall show, the use of any such conversion figure as 1.6

is highly. unreliable for getting iodine numbers from bro- ‘

mine numbers. i: Bie Tamed

ie Furthermpre, these points are not particularly essential,

_ because these references very clearly fail on the question

of the gravity of the product; that is, in being ‘a heavy

gravity gasoline which has this difficult problem of remov-

ing the gum from the heavy ends: Instead of being heavy

gravity gasolines, they are very light, the heaviest one‘ |

from petroleum being 69 Baume. His shale naphthas do,

of course, have iodine numbers in the general range speci- ©

fied by Ellis, because of their high content of olefinic hy- ~ |

drocarbons, but. the two gasolines given have gravities in

*.. the 80’s, and the two naphthas given have gravities of 65 °

. and 69, respectively, on page 1424... ~ Remsen

_-As I say, these are very clearly not the heavy gravity

products. I do not know whether the shale naphthas were «

_ free from’ gum or not. Plaintiff’s. expert contended the

fact that they were commercial products indicated that

they were free from gum. .I have seen many commercial

‘products, particularly commercial shale gasoline, which

was far from being free from gum-forming constituents. ©

On the other hand, when we refer to the description of

the boiling points,-of these products, on page 1426, we find.

, that even the naphthas, which had the heaviest gravities— ~~

that is 65 and 69 gravity, respectively, which would be high ©

test products judging gravity alone—he says that these

_ products, petroleum spirit and shale naphtha of approxi- -

mately the same gravities, distill mostly between 65 and - S

100 degrees centigrade, or between 149 and 212 degrees ~

ing above about 300 degrees, because, as I say, the main

portion of these boil from 149 to 212. While they arecalled =

Patil

ya 3345. ;

is sinciith: in Sidliiiis sear vsti isnt And\the

other two products which are called gasoline are still -

lighter, having gravities, as I say, in the 80’s. ° > tn

e .. [fol. 1020] So that none of these four’ products have the

heavy gravity or the relatively high boiling portiogs

characterize the Ellis product, and which really °

tuted Ellis’ problem, which he overcame, Thane prods ph

merely dodge this serious problem. fh we |

Q. And the suitability of such products for feral iio-

tor use you discussed thoroughly 1 the early part of your 3

- testimony, where you were considering jhe requirements.

' for gasoline, did you not?

‘A. Yes. - The term.‘ gasoline’? was very frequently ‘wea

in the early days to describe a product : used for making

‘gas in household machines.~That is, they used products

which were so volatile that in certain types of machines —

they- would make a combustible gas whee put into the oe

making machines.

_ Q. By evaporation? !

A. By evaporation. These products: are dedi referred.

to as gas-machine gasoline. =

Q. They do not meet the definition of the -aahet So-

2 ciety for testing materials or that given by the Supreme

Court in the case you referred to as to what gasoline is?

A. No, and théy are not satisfactory materials at all for

_, Tunning a ear.

Q: Now, Mr. Wilson, there are in- this siiles a éonaddl:

erable number of statements by plaintiff’s expert which I —

believe are untrue in point of fact, and while I do not see

their particular importance individually and cannot see

"just what use,may be made of them, I want you to go over

the actual facts on each.of these separate points, I will

_ call them to your attention one by one. © ~

In attacking this same Ellis product patent that yon -

have just been’ talking about, plaintiff’s expert said on

page 355 of the printed record that Riebeck in his patent

| 4 oe 87,728, produced by his cracking’ process an easily

mobile fluid of about .800 specific gravity. ‘Just where and

_ how is this product described? .

A. This product is described- rom page 1290 of the book

___-of exhibits in Exhibit No. 97, the fifth line from the bottom

x 210—378 :

Pier

of the page, as ‘a brown, very mobile fluid of .820 specific

gravity at 1744 degrees centigrade.” © i se

_ [fol. 1021] The translation, however, contains an error

_ in ‘hat the specific gravity should be .200 to 820 as refer- * :

ence to the original article shows. == Peeps. a

_ The description goes on to say, ‘This decomposition

- product is aluclutely equivalent © the crude illuminating

_ oil of brown.coal tar, and after it is treated (in some un-.

_ specified manner) jit yields a water white illuminating oil .

of 815 to .820 specific gravity.”” * * * in other words,

a rather heavy illuminating ail of about 40 degrees Baume. sé

~ Q. In the next line, on page 355>the plaintiff’s. expert ~

_ Baid that-Riebeck’s starting material was the same as that

of Ellis;isthattrune? 65 | 20 ioee .

_ °_ A.-No, that is not true. Riebeck’s starting material is a

dark, heavy paraffin oil of 23.6 Baume, whereas Ellis starts

‘with a kerosene of 42 Baume. -Riebeck’s material, as I.

have shown before, isa brown coaltar oil, whereas Ellis’

is a relatively light petroleum product. That is the start- ;

-. ing material for the cracking process. . oe

_ Q. In the ‘next line plaintiff’s expert says that the proc-

‘esses of Ellis and Riebeck are the same; is that true? .

AL No, it is not. Ellis discloses in this patent a tube

_ eracking process at: atmospheric pressure and probably

quite .a little higher temperature than Riebeck’s. Where-

_as, Riebeck has.a bulk pressure distillation process, involv. —s_—.

ing a long time and the moderate temperatures character- ~~’ -

istic of that type of process with the production of main

. . The two processes are almost as different

_ ing processes could be. : peek GI eas

~ -Q. Now, plaintiff’s expert further says: ‘Accordingly, Tis

_we would expect the same character of the products”. Is

A. In view of the fact that. they are starting with such ...

' radically different materials, (it would bé hard to find two ae

_ materials containing largely hydrocarbons which are much - _

more different than their two starting materials) and are.

two crack-

‘Such radically different processes, we certainly would. _

expect the resultant products to be anything alike or ©

ee

‘no

oi yk

.

>. ‘a “ta —?) . »*

the Fhe OTB ne Le

Asa matter of fact, we: do not need to speculate on this :

point because Ellis clearly describes his product asarather

heavy gravity motor fuel; whereas, Riebeck’s product is.

: _ clearly described as being a heavy kerosene about 40 de-

s Baume in this particular reference.:

- Ellis starting material than it is to his product.

- the Master: Riebeck ends where Ellis begins?

[fol. 1022] In other words, Riebeck’s product is closer “

| ee Witness: Yes. Even then they ‘are not the oe |

-” kind of kerosene by any means, but rather similar. ‘The -'

only similarity I can see between the two is that Riebeck’s

"product resembles ‘the material with which the Ellis starts

his process. =. ... eae Bie geline beet

-Q, I-call- your attention to the following statements of _

_ plaintiff’s expert regarding the iodine numbers and un- h

-gaturation of benzol and similar aromatic hydrocarbons...

“He stated on pages 348 and 349, near the beginning of

‘his testimony, that benzol and toluol were unsaturated hy- .

“drocarbons, and that three tests were commonly used td

distinguish. between satur-ed and unsaturated hydrocar-

bons, namely the sulphuric acid absorption, iodine number

* and bgomine number; unsaturated hydrocarbons. respond-

ing to-all three tests and saturated hydrocarbons not re-

sponding to any of them.——— (tee He | as

In discussing the Bassett and Boynton references on

page 355 he apparently clearly implies that benzol and sim-

ilar coal tar distillates are unsaturated and have high

iodine numbers, so that they come within the claims of

‘. the Ellis patent. ita uaman geass |

7 Further, on page 356 he says that Williams’ distillate

x was highly unsaturated because it contained large percent-

--* ages of unsaturated hydrocarbons, sach as benzol and tol-

nol, but he states that he cannot calculate the exact iodine |

numbers because he does not know what other unsaturated

compounds were present. : easy ae

Later, on cross-examination, on page. 656, he again states

that benzol and similar aromatic ring hydrocarbons are :

unsaturated and that they respond to both the bromine and

-. jodine tests..

: . : < as ; aus Dee Serre

. ~ He then proceeded to calculate the iodine number dug to

: the presence of benzol in a saturated naphtha. Again, on

he said that the broskine number of pure Sensi :

was about 36, but when asked to calculate the iodine num-

ber he, for the first time, expressed some doubt. as to the.

readiness with which iodine reached with benzol.

Again, on page 665 lie calculated that the bromine num-

- ber of benzol would be 165. He was then asked to deter-

ian increased the

- [fol. 1023] Eh and iodine numbers of the naphtha,

directly contrary to-his calculations on page 657. ‘

_ Finally, in his re-direct, page 1135, he says that benzol

is ‘*well known to react with bromine and iodine with con-. -

; siderable difficulty, and indeed scarcely at all.’’ |

Now, having put all those statements together. I want

you to state which of them are true with reference to the

_ todine and bromine numbers of benzol?

A. The last statement that it is well known that iodine

and brothine react hardly at all with benzol is the correct :

‘Statement, and I believe the actual determinations which he

gave near the end of ‘his cross-examination are also sub-

stantially ¢orrect, I having made somewhat similar deter-

-minations, though of course not with exact chceks. |

- .. The earlier statements as to the possession of a high |

bromine and iodine number by benzol are all incorrect. -

Q. I also want to call your attention to some similar

statements with regard to the sulphuric acid absorption

_ test on benzol and similar compounds. I have already di-

rected your attention to the fact that this is one of the .

three tests which plaintiff’s expert ‘stated might be used to. . :

distinguish between saturated and unsaturated compounds,

and the statements ‘in his direct testimony that benzol is

- an unsaturated hydrocarbon, thus implying that it re-—

_ sponds to the absorption test; on cross-examination, page ~

656; he qualified this by saying that the aromatic hydro- :

_ carbons do not absorb in sulphuric acid as readily as do -

Then, on page 657, he seid. that benzol, was not sdinaitiell” ise

ri . ic cent sulphuric acid. | Sear DS eg

cee Ls 4

—

vat ety pie) 5

rE . iss cas

“onthe ollne banc; when asked te sabe uals a :

_ reported, on page 791, that by'a specified absorption test

'. with 93 per cent acid he ‘absorbed 51 per cent of pure ben- —

-gol, and in a mixture containing 16-2/3 per cent of benzol .

jn 70-degree naphtha, the increase in absorption as com- |

spared. with that for the straight naphtha, .indicated that

about 90 per cent. of the benzol was taken up by the acid.

On page 1052 he said that the test was kept cold by shak-.

ing the bottle in a suspension of ice and water. - |

Please state which of the statements regarding: the ab-

‘sorption of benzol in- -93 per cent acid is correct?

. A. None of these statements as to the absorption of bei

sol are precisely correct in my: experience.

If you follow carefully and accurately the directions for

[fol. 1024] determining the sulphuric acid absorption of

benzol in accordance with Technical Paper 181 of the Bu-

‘reau of Mines, to which plaintiff’s expert referred, and as-

suming that’ the several minutes ‘shaking is actually five:

minutes shaking, (as it.was later specified i in the’standard-

_. ‘test when this.was revised slightly in Technical Papers 298

‘and 323,) the absorption is about five per cent. 4

-- Tf you extend the time of shaking to fifteen minutes, as

_ I believe plaintiff’s expert did, the amount of absorption |

‘ will be somewhat higher- depending; to a considerable ex-

| tent, on how much you allow it.to heat up. . However, plain-

tiff’s expert, as I pointed out, said that he kept this.in a

7 ~~ mixture of ice and water, in- other words, presumably:

around 32 degrees Fahrenheit. There is something very

peculiar about this situation because plaintiff *s expert ap- —

parently overlooks the fact that pure benzol freezes at.

42° F., and so at 32 is a solid, and you do not get any kind ©

nes of good contact if you try to carry out the absorption with

‘a solid, which mainly vg arcned on. the bottom and sides, of

the glass. =

'. Trying to. carry ‘out the on wader. thoae conditions I

found that no matter how long you shook it you could not 2

ee get-even five per <ent. absorption. So there seems to be-

something’ wrong with the detegminations, either in. the

. strength of the acid used or something of that kind. I have

: - . tried to find out what could explain it bat J I ‘have not suc-

_ deeded. Cea ae oe fo Penk naa S

An of the acid annie: revdite which plaintiff's ‘a ex.

"pert reported were ‘high, including those on the straight -

run naphthas, although as I say I checked the bromine and. —

iodine numbers fairly well:' Therefore it rather seems to

me that he must have been using a somewhat stronger acid, .

. and if you go to somewhat stronger acid than that specified

you will get considerably higher absorption figures.

‘Q. This absorption test in sulphuric acid is a standard

~_test-commonly made in oil refineries, i is it not?

vi ae Yea, used every. day in the large refineries.

iat:

A. On many types of products.

- Q. And: it is completely standardized oe test enethands

' preseribed by the technical departments of the Govern-

“ment, is it nott

. A. Yes, it is a well standardized test which gives cepre- a

‘duceable results. .

I might say that I have checked this steorntien of pure

[fol. 1025] | ol in two ‘Jaboratories with. two entirely

different sets\of reagents, both having samples‘of presum-._

ably pure beiizol, and. 93 per cent sulphuric. acid ¢ as | clone

- @8 we could tell by testing. —

- Q. You get about five per cent absorption?

Q. It is a matter of your sist routine inspections, i is 2s

‘A: You get about five per cent if you carry out the test ae

. according to Technical Paper 181; but you really cannot —

carry out a significant absorption test on pure benzol aomeee

. with ice and water, use the benzol freezes. ;

Q. In other words, this is a test for things that: are s

. - liquid at usual temperatures?

A. No, the test itself does not. specify that you: carry it | |

out by. shaking it in ice and water. That was done to fol-

' low—I gave first the results of tests by the ordinary method

_ and then thé results obtained when. Shaking it in ice and

‘water, as plaintiff’s expert said he carried out his tests.

“at all?

A. You ie. a little absorption but it is not: comparable i.

with a standard absorption test because you are not-mix-

- ing anything particularly; you are just ome the acid

hoes over. the oo of the —— curate

Q. And if you do it his way you won't get any absorptio. - ia a

<

Q. In view of ‘heat ne sien sae me the ve ac -

: agree with plaintiff ’s expert that benzol is 'p iy cont -

_"~ gidered to be an unsaturated hydrocarbon, anda your

reasons?. — state

A. I do not consider it to be an rel ass" hydrocarbon, as

and it a certainly not so considered-commonly in the pe- at

industry. It would be indeed a peculiar thing if ~

_ trol

it were considered unsaturated, because plaintiff’s expert

has correctly described the threé tests. which are used.to —

‘distinguish between unsaturated and saturated-compounds;

and if we call benzol unsatyrated, it would. mean we call

something unsaturated which did not. respond to any of —

the three tests, saad for a slight. absorption in a “

acid. :

In other words, by ibe hun teats that are ‘used j in the

petroleum industry, benzo] would appear as a substantially —

saturated hydrocarbon. On the other hand, we do not:call

it saturated, either, if it does come into our ken in some

-’ particular special, product. We refer to them as a dis-

tinetly different class of hydrocarbons, namely, the aro-

: matic hydrocarbons... ~

A-clear statement of the attitude of the petroleum in-

dustry in this matter is given on page 4 of this same Teéch- - -

{fol: 1026] nical Paper 181, which describes the determi-

nation of unsaturated hydrocarbons in gasoline. =

Q. That is the Government publigation? ©

A. That is a Cover sree by the Bureau of :

| Mines.

Mr. . Royce: What datet es

The Witness : The date is 1917.

‘The Master: Do you know who eran: ‘the data for

" he Mester: ‘Do you know them? :

The Witness: I know Mr, Dean, and I think I have init ;

Mr. Hill. Mr. Dean’s office at the present time happens -

i to be ‘across. the hall. He is now with the Standard Oil

Company of New Jersey. He is 4 man who has been work-

_-ing in petroleum teghnology for a great many years—I :

? : . goons he was with the Bureau of Mines. ioe on or six years.

ay,

Aas ets he pai A é assed

>

_ The Master: Both have a reputation for being careful \ --

Birsgne gags 0 siege Oe eg Oe ee

The Witness: Decidedly so. I think Dean’s reputation

_is one of the highest of any man in the industry, for care-

. ful investigations. What I am interested in reporting here,

_Q. I want to put just one other question about this pub-

lication. ‘That is the publication, is it not, which describes -

and standardizes the routine tests normally used in the in-

|. dustry? pill sealed ey es Ce ee eg

\ A. For unsaturated hydrocarbons.

| The Master: The paper is accepted by chemists?

The Witness: The paper is accepted.

The Master:.As sound practice? Be

_ The. Witness: This was the paper which put the sul-

phuric -acid: absorption test on a well standardized basis,

- although it has-been slightly modified since that time in

a few details. ies ae ahr (es ;

Q. Do you know who Hill is, Mr. Wilson? ag

A. I think that I have met Mr. Hill. I.think he was Mr.

- Dean’s assistant at the Bureau of Mines. I do not know

‘where-heistoday. ue ane i oe

Tam quoting from a paragraph near the bottom of page -

pictured as having double bonds. That is, I do not think

the picture which shows them as having double bonds is

TT

Dd

a ae ne

- yeally an accurate picture. That is , the Ke Kule seiniadns oH

_ + which is I believe the oldest suggested for benzene, but it

fails. so completely to describe its behavior as compared

: _ with other compounds having double bonds, that most of

us prefer some other sii of formula which does not have

double bonds. 3 ae

' ~ §o that I should not say that benzol waa unsaturated as

regards molecular structure, although it is sometimes ane aan

tured in that way.

Q. So that the. industry i in point of fact follows the fer-

minology set: forth in this publication of the Bureau of

' Mines and divides its products into saturated, unsaturated *

and aromatic?

“A. Yes,

The Master: And puts hinacl | in. the arproalicn’t S

The Witness: Yes: In other words, when a man writing

in this art speaks of unsaturated hydrocarbons, he never

~ means to include benzol, so far as I know. Eiven in one of

these exhibits which plaintiff ’s expert cited, page 1508 of ©

the book of exhibits, Armstrong and Miller describe treat- _

ing with acid- of yarious strengths in order to complete -

the conversion of Ane unsaturated hydrocarbons, and after

that they get out the pure benzol, which has not been con-

verted, showing that they are not considering. benzol to be’

‘an unsaturated hydrocarbons, . nae

Also on page 1510 they say, “Much of the benzene may, ae

however, be obtained without destroying the unsaturated ?

‘hydrocarbons. ie 2

Again clearly dintinguisking between benzene or. benzol —

_ and nnsaturated hydrocarbons. co

_ Mr. Wiles: The technical paper No. 181 of the Bureau

: of Mines i is offered as Defendants’ Exhibit No. 418.

(The said paper 89 offered, -was admitted. and: ‘read: in

"evidence, was maiked oe Exhibit No. 418," “ —— ~

. the ‘same is herewith returned.) a

{fol 1028] -Q. Plaintiff's. expert sins. inked, cae e oer :

page 655 and elsewhere, that one can readily onlanlete the

: iodine number g e108 trom, its bromine number, by mule

ba

3354. ey |

and elsewhere, that it is possible to calculate bromine and -

-jodine numbers of compounds if you know the number of .

double bonds present; the number of carbon atoms per mole-

g. cule, and certain physical properties such as: specific grav- .

‘ity. Is that true?

- A, No. That is just anotifer. example of the difference o

between theory and practice in this industry. Our ch

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