# Transcript of Record — United Carbon Co. v. Binney & Smith Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0078%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1942 - **Citation:** 317 U.S. 228 ## Text | ‘Supreme Court of the United States , OCTOBER TERM, 1942. - : No. 71 UNITED CARBON COMPANY. AND UNITED CAR- BON COMPANY, INC., PETITIONERS, - vs. - BINNEY & SMITH COMPANY ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT ~ OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR CERTIORARI FILED APRIL 9, 1942. _ CERTIORARI GRANTED MAY 11, 1942. <> » | SUPREME. COURT OF THE UNITED STATES | _. OCTOBER TERM, 1942 No. 71. \ \ “UNITED CARBON COMPANY AND UNITED CAR-. © BON COMPANY, INC,, PETITIONERS, vs. _ BINNEY.& — COMPANY =N ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT . -OF APPEALS FOR THE yOuUnrE _ INDEX. Original _ Print Record from D8. U. 8, Southern District of West Virginia .. 1 1 Findings of Fact and Conclusicns of ES ey 1 1 Order Dismissing Action.”...............- SianuGn (ac een 7s 4 Statement of evidence. .... Gs ana GASSAEARRERERRER AOS ao a — Testimony: 5 Plaintiff's Witnesses Kitchel, Allan F . err Scan ole 4 CHOI... see ce sere cece cecuneneecnseewecete 48 42 Pee re ere re rere ett 69 61 Jones, Webster bath ii. oi xc ocackcduessedeatasaaesneakanes 69 61 a: SE rrr Ss Sorer rr ys it 76 67 Wiegand, Wm. B Direct... 2.02... cece eee cece eee e eee tee eeees 80 72 Cas ciikccanascseckniN cGeesus teow enescas 82 73 Defendant’s Witnesses Hanson, Hilding: NE Ae hn vy kcon Coneek iv edi kinaneninees 105 95 NE ic cc cecevcisccenccveddosssnectaqgehuas 123 112 Drogin, Isaac be. ccc nccbatechacsescostacuredoveces 126 115 Direct (cont'd) cob suckvaehegabbatnceaveunes 167 153 "oc cecthpavennutuassendecvegeogesees 180 165 eo. sciences cnnecoessesbseseceveseus 199 183 — reverie stir vii iy scaee’ -e 184 Jupp & Derwemer (INc.), PRINTERS, Wasuineton, D. C:, Jury 16, 1942. —1267 . ; ‘2 \ nl dane . INDEX © \ ; Record from D. C. U. S., Southern District of West Vir- | ginia——Continued : ‘ ‘Statement of evidence—Continued Testimony—Continued Plaintiff's Witnesses—Continued Original Print Billings, Edmund Diost. 0.0... e ee. eRe cqncenessaqasdsaens 162. 148 rs ieee wh ve asaciecns govsaste Gianna 163 149 SEE peg tseaseteeseeeseeneaes 165 152 sc cehicaaweacsubesas PRT HR: 152 * Rebuttal Witnesses = Parsekian, H. M Lg che deabsnecsbarsemetedcraneessaces 202 185 eae cain Chantgngs 00b cndhesyeen 204 =: 188 I ca ck nkndpattnsss 446 425 - Metcalf Patent No. PRBS, 2 cccrpcceses Te fae fs Trent (British) Patent No. 151,236..........- ‘, 451 430 -* Se Record from BD. C. U. 8. Southern District of West Vir- Rea =” ginia——Continued : Statement of evidence—Continued - ee Exhibits—Continued |. Original’ "Print Portions of defendant’s exhibit No. 23: J .. Rodman Patent No. 1,076,235.............++: 457 436 Rodman Patent No. 1,239,221... ...........+5° 459 438 du Pont Patent No. 1,239,368................ 468 442 Thorssell et al. Patent No. 1,466,571. ...... san 446 Plaintiff's exhibit No. 8—Minerals Year Book 1940.. 471 451 Amended complaint. . obec @acss6 enone pancein benebece 434 413 Answer to amended complaint... .........-..++s+e+ss+0+5 435 414 Ot No ai wp ANTES Sug denhacnwincasnes enwes 440. 419 Notice of patents tobe reed upon as showing state ofthe art 443 422 Proceedings in U. 8. C. C. A., Fourth Circuit. Ledveedsebeuasas - 481 461 PR SIR. oo a wing vce cectccccccccscsmeccsescccesecctss 481 461 Opinion, Parker, J... ... 2.2... cc ce ccc cece weccccesecdonces 482 462 eee Cenk c dca cdcaccecavscsans tcakathecnecvdesds 491 471 Orders extending time to present petition for rehearing =a staying mandate. ......... 2.21. eee eee eee eee eee eee eees " 492 472 Petition for rehearing. ..... 2.2.2... c cece ce ccccccccees dxaxke 493 473 Opinion, per curiam, on petition for rehearing. ..........----- 494 474 Order denying rehearing. .........-... 6... + essen eee eeeeees 495 475 Order staying mandate pending application for writ of certiorari. . 495 475 Canis Gartete. o.oo. cece ence ccc cccccccccccceccceceses 496 476 Stipulation as to printing record: Pateecsnaen on cckcakeaeecals - 4% 476 Order allowing certiorari... ......... 2. . fs. s eee eee ee eee neee 499 479 Stipulation as to printed record. ........ 1.6.6.6. s esse ee eee 500 479 »- . 3 a e rs : . ° . . ,. ~ ; . . ’ + . bs . " . . ° . . ° . . . . . ss . ° . « . , ‘ . : ° : . . ° r . ° . -. . . : . ‘ ~ * - . ° . . . “ , . . . : ‘ : e ° . Ifol. 1] IN THE DISTRICT couRT oF THE UNITED STATES _ “FOR THE SOUTHERN DISTRICT OF WEST VIR. ' GINIA, AT CHARLESTON, ON — 11TH Day OF FEBRUARY, 1941 No. 58 Binney & Sura, Plaintiff, ~ VY. . — yy -Unrrep Carson CoMPANY and Unrrep Cakson ComPany, Inc. ”. ‘ Defendants. Findings of Fast and,Conclusions of Law This action having been tried upon. the facts by the Court without a jury, the Court doth hereby find the facts specially and state separately its conclusions of law * thefffbn, and directs the entry of the appropriate judg- ment, as follows, in conformity with Rule 52(a) of the Federal Rules of Civil Procedure: is aes Fixpixes OF Fact | SS (1) | = : Plaintiff is the lawful owner of the patent in suit, to- wit, Wiegand and Venuto, No. 1,889,429, filed December 2, 1927, and patented November 29, 1932. This patent will hereinafter be referred to as (7) . Plaintiff iis not established that it achieved commercial success with its product described in claims (1) and (2) | and manufactured by the process ’of plaintiff’s patent. Plaintiff does not now use, and has not used since 1932, the process of the patent in suit.. Plaintiff now uses, and has since 1932 used, the single liquid. process described in the Glaxner Patent, No. 2,065,371 (reissue No. 21,579), for the manufacture of the pellets or beads which it manu- factures and sells under the number of the patent in suit. O°. (8) The product described in claims (1) and a) of the pate nt, in suit, did not require the exercise of the inventive Es ulty, and was lacking in novelty, in view of the prior a and particularly in view of the following patents: Lewis—1,263,082, Feb. A 1922; _ Randall—1,405,439, Apr. 16, 1918; _ Acheson—1,431,079, Oct. 3, 1922;. Knowlton and. Hoffman—1,286,024, Nov. 26, 1918; Coffin and Keen—1,561,971, Nov. 17, 1925; Geer—1,245,700, Nov, 6, 1917; and. Trent (British)—188430, Mar. 22, 1923. _ [fai. 4] <> +, Comctumoms or Law (1) The patentees of the patent in suit, having origi hally sought broader claims than claims (1) and Pye of the patents, which broader claims were rejected, and pat- a entees having acquiesced in such rejection, and having | cancelled such claims and. allowed their patent to issue with narrower claims, as disclosed by the file wrapper and contents, plaintiff is not now entitled to such a broad con- struction of-claims (1) and (2) of its patent as to embrace the same, or substantially the same, subject matter as Was | -contained in the rejected and cancelled'claims. . ; “- (2) Claims’ (1) and (2) of the patent in -_,' must re strictly construed. (3) Applying a strict conttrastion’ to the language of claims (1) and (2) of the patent jn: suit, plaintiff has not borne its burden of proving infringement, and no — ment on the part of-defendants is found... ~ (4) Claims (1) and (2) of the patent in ‘suit, are invalid ‘as lacking novelty and 90 mee, .(5) “Claims (1). and’ (2) of the patent in suit are invalid, on they fail to define the produc Paaimed to have been inventéd, in such clear, definite and exact terms as required by patent law. . ' An order will therefore be entered, dismissing plaintiff’s action, at its costs. . A. W. Barksdale, Judge Designate. A True Copy. Attest: . Tra H. Motteshéard, Clerk. (Seal.) 0 Fal 4 eee | ~~ e. eee 2 * *.* A..I was employed by teeny & Smith Cisdnieny in 1909 as aclerk. In 1910 I was assigned to their general laboratory in charge-of testing and control work on. carbon black and in handling of general customer complaints. Dur- ing 1911 and 1912 I spent considerable time in some-of the carbon plants, becoming familiar with the product and the methods used to produce.the various grades which my com- a pany sold. In 1913 I was put in the sales department in. connection with the sales and introduction of carbon black ~ ° . into rubber compounds, and later on, some seven years later, I was put in charge of that’sales work, and I have maintained - that general sale*supervision since that time. I became president of the company in 1935. ~ Q. In your capacity, in charge of sales, and as president " . of the Binney & Smith Company, have you had occasion to keep in rather close touch with the rubber manufacturing industry? _ A. It.was quite necessary that I do that, not only in rub- ber work, but in the other industries that consumed carbon .[fol. 7] black. I had to visit customers throughout the country and have regularly, since that time, visited their plants so that, through the years, I became familiar with their use of our material, the purposes for which they re- _quired it, the specifications and in general the changes that tok place, due to the trends that occurred in the different industries, due to their own changes and ‘also to the new grades of material we were offering. Q. And the men who have been prominent i in rubber manu- ' facture, particularly that part which concerns the use of. - ’. earbon.black, are men you have known rather intimately “° through the years?.- , \ A. That is right. ne \ Norte: ‘Numerals in brackets indicate typewritten tran- a ~ a 3 J ! Q. Now, Mr. Kitchel, I wish you would tell the’ Court generally about carbon black, what it is, what its uses are and the extent of its use, etc., omitting for the present its _ use in rubber and only covering such general statement as - will serve as a background for the further consideration of it in connection with rubber. . : A. Black: carbon, as distinguished — carbon black, is" a pigment and goes back thousands of years, it being men- . tioned in Chinese history. They very largely valued it. - because of its use in the old Chinese inks, and the use of those inks with carbon as a base has preserved their letters ‘to the present time. It was also responsible for the beautiful . black lacquers on those ‘pieces of furniture that came down to us from that time. However, that black carbon was. essentially lamp black because it was made by the incom- plete combustion of various oils. They gathered the soot from those oils and used it and lamp black made from those oils uas been, the principal ‘black pigment: down through the ages to the ’70’s when, after the discovery of natural gas in Pennsylvania, the gas was used to make.a_new type, gas black carbon, but being what we term carbon black. Because of its superior quality for most work the new carbon | . black displated lamp black for the general arts. Since thai time lamp black has dwindled to a very great degree, whereas carbon black has grown immensely through the years. [fol.8] That, in general, was : the beginning of carbon black, and up until the era of rubber which you mentioned, - the carbon black was used principally in trades, largely paints, inks, etc., paper, stove and shoe polish and things of . that nature. They valued it because it had a very good olor, intensely black, to‘a degree unknown until that-time. By the. Court: Q. What are the Siibaiiilien: of carbon black which make it superior for those purposes to lamp black? A. As we know it now. carbon black goes a great deal farther and, if you put lamp black and carbon black in a pile before your eyes and take lamp black and i impose carbon black against it it would immediateiy look gray. Q. By reason of other constituents contained i in the lamp ‘black other than carbon? A. Possibly.so. I would not know the answer to that. 7 By Mr. Edmonds:. | Q. I think you might tell a little more about the general ‘procedure incident to making earbon black, just enough to: indicate what that procedure is. . A. Carbon black or, as we term it in the trade today, channel black, is made by impinging a flame of natural gas in an old fashioned lava tip, against a steel channel. That _ flame hits the channel and deposits soot on the channel, and that, by mechanical means, is scraped off and taken ‘on into - our plant. Just picture, if you will, what that means today. In the State of Texas there are millions of those gas flames: - burning in the burner houses impinged against those chan- - nels, making what we require in this country and abroad in . the arts. The film which is scraped off the channe] comes.in : ; rolls. You will notice the lightness of it. Q. The receptacle which you just presented illustrates the black when it is scraped off the channel! ey ie ee . sf - Mr. Edmonds: ‘We offer this in yer aoe as Plaintiff 1 Ex- hibit No. 2. {Plaintiff ’s Exhibit No. 2, filed.) [fol.9] . The Witness: In order to be able to handle that — further we have to take certain steps. As‘it is light.and — - fluffy it simply floats in the air and occupies so much space ‘it would be bothersome to handle it in the plant and for the customer to use it; on account of the space required it would not be practical in a commercial sense to handle it in that way. So we take a step after that is scraped off the chan- nel to remove part ofthe air that is entrained in it by subjecting it to agitation. After churning that mass for a white it gradually settles down. I have a specimen here of material after it has been so treated in the first ‘step—you will notice it is much more compact. ° _. Mr. Edmonds: I offer in evidence the receptacle just pro- duced by thé witness bearing the inscription, ‘‘carbon black as it. comes out of the air separator.?’ j ( Plaintiff ’s Exhibit No. 3, filed.) The Witness: From that on, the black is taken from the | agitator. In the first practice of the industry, it was put - into a barrel, a regular sugar barrel, which in those’ days ~~ 8 would hold 50 pounds; later it was stepped up to 75 pounds, — and in the same barrel as before; and later on it became the custom to pack it into paper bags, and in.those bags you could get 121% pounds. We changed the consistency or the bulking of the black from the point where it came off the channels from two pounds per cubic foot to about twelve - pounds per cubic foot. That is the state in which it was - put in.the bags and shipped to the customer. Mr. Edmonds:-We offer in evidence the specimen just produced by the witness as Plaintiff’s Exhibit No. 4. - (Plaintiff’s Exhibit No. 4, filed.) . x Q. These three samples or specimens, Exhibits 2, 3 -and 4; then represent the successive steps in making the carbon black products? ake A. In three successive stages in the operation of the manufacture of carbon black, yes, sir. ba? [fol.10] Q.. Now will you proceed with the discussion of this channel black in rubber, about when it was discovered | that the black is a re-enforcing agent, its use in rubber,.. - and what the history of the development has been? _A. I would like to';comment * * *. [32-39]. * * * _ that in this form in what we now call ‘‘uncompressed black’’ that black was largely used in paint, etc., and still goes to those industries in that form. They want it in that form because in general in all of the trades it is used in bulk in ‘liquid vehicles, either water or oil. It is uncompressed but it is ideal because it is easily wetted and they disperse it according to their own processes. At that particular time, just prior to the introduction - of carbon black in rubber, when I first joined our company, the total carbon black produced in the whole industry was - somewhat less than 25,000,000 pounds per year, and it was practically all made in this State of West Virginia. It was - valued because of those properties as callgd for by the trades. : You ask about rubber. It was in 1912 that my firm re- ceived its first inquiry from’ one of the country’s leading tire manufacturers for a sample of carbon black. That led to forwarding it to them and was followed by a request for other lots during the next year.. It was in 1913, as I stated before, that I was assigned to the sales work to follow up , this apparent interest of the rubber manufacturer in our o- eal - , carbon black. We-had-had-no business_of such nature be- fore. It was not until somewhere late in 1913 that I was able to get a line on what was going on, because on my _ initial visits I found them very secretive and absolutely un- willing to divulge what was going on. Late in 1913 it was disclosed to me that this company had in mind a new step in rubber compounding which, if successful, would. revoluv- . tionize the whole art of tire making ds it was knowa at that time. Up until that time automobile tires—you probably remember them—had white treads. They were made with. a canvass carcass for the structure of the tire, and that white tread was niade from rubber with a zinc oxide as a reinforcing agent * * °*- (39-40). [fol.11] * * *. The Witness: I would like tosee samples ~ . of some raw rubber and also some zine tread stock. That, ‘sir, is known to the trade as smoked sheet. This is com- pounded with the zinc oxide. The others are simply differ- ent types of rubber used by the rubber industry. - Mr. Edmonds: We offer in evidence as Plaintiff ’s Ex- hibit No. 5 the sample smoked sheet, and as Plaintiff’s Ex- hibit No. 6, the sample of rubber ‘shown by the witness. (Plaintiff ’s Exhibits Nos. 5 and 6, filed.) The Witness: Those tires made with the canvass carcass - and that zing oxide white tread gave fairly balanced per-. ' formance in that they were getting on the road from 3000 up to, at the highest, 5000 miles. At the-end of such time ~ the white tread would have been entirely worn off and the canvass would have been so weakened that it was not good _ for further use. _- : ' Thena new idea was explained to me in 1913 of improv- _ ing the tire life and performance.of the automobile tire being then made. The idea was to improve the carcass so it would last longer, and at the same time it would be neces- sary to improve the tread. They were getting at-the im- | provement of the inner carcass: by the use of what -was known as cord ‘construction. They had heavy cord which would be much stronger than the canvass. To obtain addi- _ tional mileage and wearing qualities. of the tread, they were embarking upon the use of carbon black as a reinforcing agent for that rubber instead of zinc oxide. They made a — black tread tire instead of the white one you are looking at. - - | Tl 10 May I see-a sample of. the black tread stock? You j cansee ‘ the difference. The carbon black i is in that same rubber instead of the zine oxide. o Mr. Edmonds: I will introduce this sample of veinforé- ing stock with that carbon black.as Plaintiff’s Exhibit No. 7. (Plaintiff’s Exhibit No. 7, filed.) -{[fol. 12] © “The Witness: As results vowed later, that de- velopment. of the new tire was a very sound one because we have found that, instead of the old.three or four thousand mile use, it is not at all-uncommon to have 15,000 or 20,000 miles’ use for the black as against the white tire. .Is it ad- . - visable at all to state anything sateen the function the black plays in that rubber? Q.- I think you might to the seen that it is known. A. There are many theories advanced, but the one’ that has come to be most popular with us is the one that the carbon ‘black serves the function of gluing together the rubber particles i in that mass. ‘A.parallel case would be, it is known. you can take two blocks of wood and glue them together in such a way that when force is applied the wood will fracture, not the joint where it is glued. When rubber | is bonded together with carbon black in vulcanization, the bond is stronger than the rubber unit itself “* * * [40-42]. * * * A. This led eventually, after trying out several . different grades of black in larger and larger quantities at this tire factory, to the first contract which We made for the supply of ‘carbon black. That was to us quite amazing be- cause it involved in the first vear a delivery of 1,000,000 pounds of black, whereas the biggest previous customer only took 500, 000 pounds. It opened up to us an amazing vista in the tonnage of our product. I have mentioned the ~ _ fact that in. that year 1912 the general production of all carbon black was about 25,000,000 pounds. Look. at what has been done in the last: few years. It has got up to almost — 500,000,000 pounds,—twenty times as great as before. The _-eontract of 1,000,000 pounds: has grown until the carbon black industry as a whole is shipping and delivering to rubber consumers throughout the world 400,000,000 pounds . in one year. That gives you some idea ‘of the general ~ growth. = ie : 2 Mr. Edmonds: I would like to introduce in evidence at ‘this point a copy of the bulletin to Which Mr. Dike referred, . e: . || calling attention waithiaaiaty: to a part o on the fifst’ page [fol. 13] which gives the production of carbon black in this country-for_a series of _years from 1919 to 1929. There is a separate curve that gives the consumption and use and a third that gives the stock on hand and really all the data . _ that one wants about the industry. I will offer in evidence a copy of the Bulletin as Plaintiff ’s Exhibit No. A. oo ere ree ‘(Plaintiff's ’s Exhibit No. 8, filed.) Q. I wish you. would proceed with the presentation ‘of . this matter of the use of carbon black in rubber manufac- turing, pointing out what particular problem confronted the rubber manufacturer directly connected with the use of _ carbon black, what the magnitnde of the problem was, what efforts were ‘made towards solving that problem, and what success attended those efforts. A: I might say, sir, that our success in intvodecing the black to other rubber customers was not quite.so easy as these figures on consumption may indicate. We found that _ the rubber people in the use of carbon blacks brought up a problems of a different nature than we had ever met before. _ Their specifications, for instance, for black in rubber were totally different from the ink and the paint man. He wanted color in his paint. The rubber man wanted it in a dry state. He was thinking only of ‘reinforcing and not of color. I€ just happened to be black, and he did not want it black. We ran.up against the situation where we knew absolutely noth- ing about the customers specification or how they wanted various grades. Also the fact._came up. after the introduc- “tion of those black tires that the users or automobile owners: were very suspicious of those tires and saw a change from the clean looking white tire to a black one and the suspicion arose that that black was to. mask something spurious. But by far‘our. greatest difficulty was that the black as we had _ .to produce it for our various customers: at that time, when the rubber man took it into his plant and milled it dry and used it with this heavy resistant smoked sheet rubber, there . _ was: just chaos in the user’s room.- When it is incorporated [fol. 14] on the mill it rolls and boils and is sheared. When the compressed black moved along in the travel to-the mills - it got into the air, and at every pop there was, some of this loose black went up into the air.and in the room where the . ‘work was being done and there was a cloud of this fine particle stuff sifting everywhere. The men were covered ” Pe. ene Wm _ seconds or a minute? . 12 . with it, their machinery and equipment were covered with it and it got out of the windows and other parts of the fac- - . . tories and even into the general offices and it raised a mess . that had us in hot water all the time. I would like very much to illustrate just how black in this loose uncompressed form that we had to work with at that time looks when anybody attempts to handle it. We will safeguard it in such a way that it will not cause the trouble which it did in early use. May I have the uncompressed bag in the cage? This cover is put there only to protect us. . If we did not do that it would do as it did in the factory — ‘and would fill this whole room and settle gently on every- thing. What I propose to do is to have Mr. Parsekian take a container of the uncompressed carbon and show what it | does in the course of a very short travel between that con- tainer and the glass in the bottom of the case. What I ex- pect to see is, if that drops out of the container we will see if any dust arises or not. 7 fates ) (A demonstration was then given.) See those clouds of . black within that container. If that cover was not on that cage it would be all over us. We will see what happens in a very few minutes from the:atmosphere of that cage. * Q. Will there be a collection of dust on the inserted sheet? A. That will soon be evident. : | Q. It is quite-evident, is“ft not? epiiais A. Is there anything showing on the paper? 4 Q. Yes, like the first layer of snow, only it is black. . A. Let us-look at it, pleas¢. Will you rub your fingers — around it? (A demonstration was then given.) That illus- - [fol. 15] trates it. I have another piece of paper inserted there but we will look at that later. Q. This particular sheet was probably in there thirty A. Certainly not more than thirty seconds. Besides that - physical ‘inconvenience there were other points as bother- some to us and to the consumer. Working for eight, or as long as ten, hours at a stretch'in an atmosphere of that kind, the manufacturer was véry suspicious and very fear- ful that might create -a health hazard to his employees. - Besides that the matter of dust is a very common occurrence . and it was feared that the dust floating through the air might cause an explosion. ‘ Another important fact was that in the same plant where they attempted to make rubber for the tires they also manufactured other rubber goods.. Some "Phe Witness: Because of the. fact that the new binders -actéd as I stated, because we knew that our own type of * compression was only an approach and not au answer, and ~because we knew that further pressure went too far, we _.® realized we would have to really get down to work and that . [£6122] resulted in setting up a research department where = meee , | ee | _ specialized attention could be given to just that problem and nothing else, * * * [54-57]. * * * so an answer. could be derived by us. That was our next step, sir. By Mr. iiiiaie: : ' Q. Did you do that and with what result? ay A. We did. Along in the ’20’s that work in a ‘specialized 7 group was successful and resulted i in the Wiegand-Venuto patent. . Q. I wish you would shade just what. that new product of Wiegand-Venuto was physically and what its essential char- acteristics were and point out why it was that that product. possessing those essential characferistics did supply the . needed thing, that is, the solution of this dust problem. | A. The minute we ‘had this’ product available we saw with * our own testing work it would apparently hit the dust prob- lem correctly, as we wanted to, and that it could then be put down rather concisely as to what it had done. It _.. Seemed to bear four points ‘which were cardinal points ‘in _ this whole thing. It. -was easy to look back and see how each of those ideas bore on the, problem, and they established _ themselves in about this order. No. 1, the product had to be pure carbon black. We could not have binders, we could . ~ ‘not have wetting agents that would cause trouble. No. 2 was that it had to be hard enough to withstand handling, transportation and use by the consumer, so there would be no trouble from that standpoint. No. 3, it had to be soft enough. If it was too hard it would not serve its purpose, so it had to be soft enough to get the results. No.4 was this new point that we had not seen before, this spherical. - shape. Because of its spherical shape it had what we call : “‘flow-ability”’. In other words, because of the-rounded particles, in handling or transporting or using them they turned and rolled over and had no and did not create dust. Those four¢ardinal things i in this * new product seemed to bring: out such new’ and novel thoughts that we were naturally very enthusiastic about the results of our attack on this problem.': . ‘om [fol. 23] I would like very much, if there is time, to © illustrate all the points that I have mentioned by making some exhibits here. I would like first for you to look at some beads in the specimen jar. - We call these ‘‘beads’? - as a matter of ne I think you can see the dif." ? » ners to break off = a 20 ference between the new. product made by,the processes - that have been used and others, by an exhibit of the two-liquid process beads. Q. This receptacle contains the product which is ‘illus- © trative of the invention of the abril cmt patent? - A. Yes, sir. Mr. Edmonds: I will offer in. evidence this ‘receptacle of carbon black beads which is ‘produced by the witness as Plaintiff’s Exhibit No. 11: (Plaintiff’ s Exhibit No. 11, filed.) | lar receptacle full of beads,—how were Q. Th -those beads se a A. They were produced by the eit’ outlined in the patent, what we have now come to.know as the ‘‘two-liquid process. ca 7 Now I would like to show silat of a bag of beads treated in the same way as the other photographs. Q. Is this the photographt : e- _ A. Yes, sir. Mr. Edmonds: I will offer the photograph identified by the witness ‘in evidence as “‘Phaintiff ’s Exhibit No. 12°” e ©. * [57-68]. | | ; (Plaintiff's Exhibit No. 12, filed.) .* * *: A. Here ‘are the beads. Mr. Dike: I will ask to have it appear in. the record | what those beads were. The Witness: I i imagine those are our current products. Q. By what process are those made? . A. What we call the ‘‘single liquid”’ aithell. May I see ; the hourglass? We have a rather neat way of showing that: [fol. 24] “yy. Would thine — been any visible difference if the beads we have demonstrated: here on a sheet of paper had been made by the two-liquid: process? A. No, sir, they behave in exactly the same way. ' This simply brings out that flow.through the spherical eee. We do not want to offer that, do we? Q. No, that need not bé offered.’ »’ _ o1 A? might mention if that were uncompressed black in - ‘the top of that hourglass nothing would go through at all. May I see the two cylinders to illustrate some of. this? Mr. Edmonds: I will ask that this Jhourglass be marked ‘‘Plaintiff’s Exhibit No. 13”’. (Plaintiff’s Exhibit No. 13, filed.) - ' The Witness: I have here two cylinders of the same sise; one has a charge of heavy compressed and one a charge of beads. This is the old compressed black: You can see what happens inside. ‘Q. Just for the record, you inverted this tube very rap- idly so the carbon black fell from one end to the other. Is it correct to say that when that was done the tube was filled with dust? Sane . - A. Yes: . Q. Will yuu do the same with the other tube containing the beads? A. (A demonstration was then made. ) Perfectly clean, lar. Edmonds: I will offer in evidence these two tubular standards that the witness has just produced and referred _ to, one containing the compressed black to be marked . “*Plaintiff’s Exhibit No.'14’’, and the one containing the beads as ‘‘Plaintiff’s Exhibit No. °18”’. (Plaintiff’s Exhibits Nos. 14 and. 15, filed.) Q. Would there have been any appreciable difference _ if they had been made =? the two liquid precess or the dry process? . A. I believe not: I think our-most interesting or, rather, elegant way to show the ease in -handling this product _ is to do exactly what we did with the uncompressed and © [fol.25] the compressed black except that one is not pro- tected by surrounding it in this cage. We will ‘be very glad to do it openly without any protection whatever. (A demonstration was then made.) By Mr. Smith: | Q. So that the record is clear, will you please state what: beads those were? | 22 A. Regular standard. Q. Single liquid beads? 4, te. .) ‘By Mr. Edmonds : a | ‘Q. Would there be any visible difference in the product or in the action when you poured them if these had been made by the so-called two-liquid process? . : A. We have done it time and time-again. I have never been able to notice any difference. Here we thought we had the solution of the troubles and the product with which ‘we could go out and do a grand job from the standpoint aa of supplying tthe customers’ needs and make some nice sales ourselves. It was the only thing we had seen during this period that approached. or_solved the problem and the only thing during “all that period that was any different from the other attempts I have mentioned. Q. By analysis of the achievement after it was. inde, -was it by that procedure that you came to, these four essen- tials which you thought of as being the key to the success - _ .of the achievement? — . . A te? * (69-63). eri! ragoae at By Mr. Edmonds: Q. I believe you had not quite hitebed your last answer — before the recess, had you, Mr. Kitchel? : A. Just one“or two points in connection with the pat- ented product. I mentioned the bulk or density of the blacks as made and treated, showing the steps from the very bulky dusty black, when it came off the channel of about three jounds per cubic foot; then the initial stages of compression that brought it up te about twelve pounds per foot;:then the heavy compression bringing it some- where between twenty and. twenty-five pounds per cubic foot, and in this pelleted product you got up to density there [fol. 26] of approximately’ twenty-seven to twenty-eight pounds per cubic foot, which reflects on the density of the material.. Would it be proper to call attention to some of the points in the patent itself alt Bh ' [64]? : Pe ee The Court: I am not just sure that I caught the weights which you gave in your last answer. By Mr. Edmonds: Q. Well, let us take it in a series of steps. We have the weight per cubic foot of the material scraped from the channel, three puands per cubic foot, is it not? -— ° Approximately. . - Q. Next comes the material in the) agitator bm, after being. agitated to drive off some vi the air. , ’ _ A. That is practically as dense as the material in the uncompressed form; I° think very little difference. Q. What is that? _.. A. Approximately twelve pounds per cubic foot. Q. What is the weight per cubic foot for - single compressed ? A. That.is twelve pounds. Q. ‘And the double compressed? . A. Pardon me; I made a mistake. The. uncompressed i is about twelve pounds per cubic foot, coming out of the .. bins; the single compression: is approximately seventeen pounds per cubic foot, and then the double compression is - somewhere between twenty and twenty-five pounds, de- pending upon the amount of pressure used, and then the beads or pelleted product is twenty-seven to twenty-eight. Q. Is that matter, that higher weight per cubic foot, an item of importance commercially in connection with ship- ment? A. Yes, it is. Besides the freedom from dust, for which | we had originally striven, another.problem is added. and. of very great assistance in the matter of shipping material, particularly in the foreign field. In our cort of getting. ‘this black ‘abroad to foreign countries, where no black is made and where they depend on this country for their. supply, our costs are based, upon the space required on | [fol. 27] the ships, ocean space, which is a cubic foot — measure, -and- therefore these pellets, requiring so much ~ less space, enabled us to reduce the cost of transporting from this stde of the ocean to the other side, and was therefore extremely helpful. ’ Q. When you first started shipping abroad, the charge "was on the weight, was it not? - A.’I don’t know about that. -Q. Until the shipping companies got on to the fact that. they were not getting — revenue? e All shoul say that is aii but I.am not sure sa that. -Q. Then the change occurred? A. I think probably that is right * * * [65-67 | ae * * * Q. Now, you | had occasion to refer, in the course | of your testimony this morning, to patents that were granted to various people along prior to the patent in © suit for expedients which they proposed for meeting this ° . dust problem, and I would like to ask you if the patents granted in those years of the era of dustiness, 1915 to 1930, contained explanations of the dust problem and what. 2 involved, which confirm what you have — here today. A. Yes, sir. Q. I am going to ask you now to refer oe some of theix, and read from them typical extracts of what you have just. referred to, and I will say that if the Court cares to follow this reading, your Honor. will find the —— in the book heretofore offered, I would like to ask you first if you find i in those patents _general statements about this dust problem, and how mucli “of a burden it was;-and if so, give us a. typical instance. You might refer first to a British patent which is at the end of the first section, 127,770, and read from that page 2, lines 3 to 6, that being the Witten H. Taylor patent of 1919. A. ‘‘Prior to the date of my invention, it has been gen- erally recognized that lamp black is invaluable for many purposes, but owing to its extremely dusty character, its ‘ use. has been very much restricted since even the slightest [fol. 28] movement of the air distributes the substance in all parts of a room in which it is located.’’ : Mr. Dike: Your Honor, we admit that black i is ‘ding and it is very objectionable, and I think it is entirely unneces- .Sary to go into any jong discussion of that — or that question at all. . ‘. The Court: I understand - -you. not only admit it, but you :- assert it; but I don’t think it is ‘objectionable for him to’ make up a record within a reasonable limitation, to show the history of and the characteristics of this product. . _— ‘ you finished your answer? . ‘The Witness: Yes. By Mr. Edmonds: Q. Will you turn now to the Randall Ber No. 1,384,089, the sa relating to compression, but the portion of the 25 iii I wish you to refer to is page 1, jines 10 to 21. A. (Reading:) ‘‘In the packing, shipment and use of carbon black and similar materials, considerable annoyance _. and trouble has been experienced by the flying particles . of the carbon which, as is well known, do not remain in compact form after.manufacture, but are easily disposed to fly about in the air. Particu’ ~ly iu the manufacture | and compounding of rubber, the carbon particles disperse and fly about in the workroom to the arinoyance of the workmen, and detriment of any white goods that may be present.’’ Q. Will you turn over to the other Randall patent, 1,405,439, and read from that, page 1, lines 19 to 34? A. (Reading :) ‘*A pigment is usually mixed with rubber being worked by the rolls of a mill, and is usually. added to the rubber. in the form of a powder. In this form it exhibits particles isolated from each other by air which tends to permit particles to easily. be dispersed into the atmosphere and discolor different rubber stock which may be undergoing treatment nearby. - Further, the quantity - of pigment required to impart desired characteristics _of color, quality, etc., to the rubber, is of so great mass or bulk in powder form as to cause it to mix very slowly [fol. 29) with the rubber. Thus an abnormally long milling period is required to produce a homogeneous product.’’ Q. By the way, did you know this Mr. Chester J. Randall, - who he was or what he was? -A. I know who he was, but T was as not acquainted with him personally. Q.. Was he ciiiictyii with one of the big rubber com- — panies? . - A. Yes, sir; the Naugatuck Company. Q. And what i is that company part of? A. It is part of the—— Q. Part.of the United States Rubber Company, was: it not, at, that time? A. Not to my knowledge. I think it was a Separate cor- ~ poration at that time. . Q. Will you turn now to the Geer patent, No. 1, 245, 700, and read from that, page 1, lines 9 to 17? A. (Reading) ‘‘This invention relates to the compound- ing of rubber in a mixing mill with ingredients such as gas- ~ black which occurs in the form of a powder so finely divided a) See 3 i) 26 or isubiiiis that if used in a dry conditicn they. tend to spread through the atmosphere of the mill room, causing the loss of a portion of the powder and discomfort to = operatives, ”’ Q. Is this patentee, William C. Geer, the Mr. Geer you ' spoke of? _A. Yes, sir. .. Q. He was head of the euiaeaiediuicinns and development end of the.Goodrich organization, I believe?. A. Not the manufacturing end. He was head of their technical division. . Q. And was widely known i in the rubber industry? A. Widely known and recognized. Q. A master of the mney, you might say? A. Undoubtedly. Q. Now, will you turn to the Knowlton patent, No. 1,286,024, and read from page 1, lines 10 to 20% : A. (Reading) ‘‘This invention relates to thé art of com- pounding a plastic gum, such as rubber, requiring consider- - [fol. 30] able mastication for its incorporation with filling _ materials, with substances such as gas-black (a species of lamp-black produced from natural gas) normally existing as an impalpable powder, our object being to keep the atmos- phere in the vicinity of the mixing mill substantially free from the dust or powder, thus’ preventing waste and en- hancing the comfort of the operatives.’’ Q. Did you know these men, Knowlton me Hoffinan, the patentees of this patent? . : ; A. Only by reputation at that time. . Q. Mr. Hoffman has been well-known. in the rubber in- dustry for the past twenty years, has he not? - : A. Yes, sir. -Q. And he has been connected with the Goodrich Com: pany through that time, has he pet A. Through most of it. Q. Will you turn now to the isis patent, No. 1,651,733, and read from that lines 12 to 26? A.. (Reading) ‘Carbon pigments, such as lamp-black, — gas-black and other forms of carbon black, ivory black, etc., - are desirable ingredients in many compositions, because of the fact that-they are fine grained, permanent and of. great covering power. But in certain industries-their use has led to considerable difficutties. If dust from these Pig- » . 27 ments mixes with the air in proper proportion, an explosive - mixture is obtained, which is highly dangerous. Moreover, this dust is liable to contaminate mixtures into which it is undesirable to have it enter. - Furthermore, it has been difficult*to incorporate such pigments into certain kinds of - compositions.”’ Q. What about this man Sheppard; did you know him? A. No, sir. . Q. Did you know who he was connected witht | ee Q. Another patent, McMahan, No. 1,541,233, which I © might say is a patent dealing further with compression, is - the next one I desire to call your attention to.- Will you please read from that, page 1, lines 10 to19?. {fol 31] A. (Reading) “This invention relates to the preparation of lamp black for use in compounding rubber, and has for an object to prevent dispersion of the lamp black into the atmosphere‘during the milling operation. ‘‘Lamp black, while being compounded with rubber on mill rolls, permeates the atmosphere and smudges the white - and: ether colored rubber stocks which are Ss milled i in the same room.’”’ Q. With whom was McMahan connected ? A. Originally with Morgan and Wright, and later with the Ajax Company in Trenton. Q. Morgan and Wright were the Vaid States Rubber Company? A. Not then; but now. they are. Q..And this compression scheme was well known, was it not, and associated with his riame? A. Yes. Q. It was known as the McMahan ceamsnnened? A. Yes, sir. Q. One other patent I wish you to refer -to, the Lewis patent, No. 1,263,082, page 2, lines. 57 to 67, beginning in the middle of a sentence where he is talking of a binder, of .a.material held together by a binder. A. (Reading) ‘‘And such material will aid in reducing, if not.entirely destroying the dusty character of the pow- der and much reduce, if not eliminate, the losses incurred by powder carried away by air currents during manufac- turing processes. This effects not only a saving in the material but renders the air more healthful and gives the Sheppard patent. 28 ‘ . a _ greater ease of manipulation of the product « as well as ' the lessened bu : a Speaking of the various aunenie involved in this’ general nuisance of dustiness, you said one item was the | loss of the product that the rubber manufacturer pays for. Which. ones of these patents comment upon that loss of . - product? | ' A. Geer, Tacetion and Lewis all comment on ~— Q. Another item you spoke of was the discoloration of rubber stocks from which they wanted to make things in [fol. 32] colors other than black. Which ones of the patents comment on that portion of the dust nuisance? A. Both the Randall patents, 1,384,089 and 1,405,439, and Q. Which ones of them speak of that dust in the init phere with reference to its effect on workers? A. Geer speaks of it, Knowlton, Lewis and Randall in the first patent. Bote - * Q. Which ones commented on the possibility of danger cae : through fire or explosion?- ~—_—- Se A. Only Sheppard. : 4 - Q. Some of these patents disclose -thé expedient or pro- : posal of reducing or eliminating dust’ by putting a binder into the carbon black, and you said that was distinctly bad and gave your veasons for it, and that it was unacceptable - to the rubber industry. Do any of these patents comment | ’ on that fact; that is, that binders, no matter what their kind or nature,. are bad? 4. - A. Both the Randall patents comment on that. ———— Q. Read the particular portions of those two patents you "refer to, first Randall patent No. 1,384,089, and what I would like to haye you read is on page 1, lines 21 to 33. A. (Reading) ‘‘Various processes have: been devised for - compacting the carbon by the use of various binders and . liquids, but these have the objection that foreign materials are ‘introduced into the carbon and into the articles into | _- whose composition the carbon enters. This invention has as an object to compact the carbon and thereby put it into. such shape that it will not disperse and fly about when © handled, and it has also as-an-object the eompaction of carbon without the aid of binders or liqui Q. And the other Randall-patent, No. 1,405,439, and I refer to page 1, lines 34 to 47. ~ \. Ne . \ 29 A. (Reading) “The addition of an iiiiinies sidiaiaa to . the pigment during the mixing operation has’ been tried, for the purpose of binding together the particles of the also to reduce the bulk of the pigment and thereby shorten {fol, 33] the mixing period. . But this expedient, while pa . pigment so that they cannot fly from the mill’s sere accomplishing the purpose in view, cannot always be re- sorted to with impunity, for the quantity of binder usually. -Tequired is so great as to materially impair the quality of » _ and-in some instances even fo spoil-the rubber product.’’ Q. I neglected to ask you about Mr. Lewis of the Lewis patent. Did you know him? A. Yes, sir. ; --Q. He was, in fact, identified with your organization, ’ was he not? A. With an associated company, yes, sir. Q. Did his proposal ever get anywhere commercially? a A, No, sir Q: The sass thing I wish you would speak of, just by way of explaining it, js the process whereby beads are made in accordance with the description contained in the ——— tion of the Wiegand patent in this suit. A. Although these pellets may be produced in various ways, the method mentioned in this patent is what we now have come to call the two-liquid process. In sirhple words, it means mixing the dry carbon black with a certain quan- tity of water, making a slurry, then putting into that slurry some gasoline or other organic liquid, then agitating for a period of time, which brings about the formation of beads which are then taken out and dried into the product ‘as shown in the specimen jar there. We have an. apparatus here to make a practical demonstration of that, on a small scale, if you wish. Q. It is rather remarkable, is it not, how those particles _ aggregate into these small beads, almost.as if by magic? A. We think it is extremely interesting, yes. . Q. I would be glad to have that demonstration made here. - A. It can be easily made here i in the court room * * * [67-78]. a oe an Witness: I might say, in that comnection, that this two-liquid process as originally used was an expensive one, and is not now used, due to the fact that developments _ in’ the early thirties resulted in what we now call the single- . a ’ [fol. 34] liquid process, in which the expense is much less, as patented by Glaxner in 1932. - Q. The reduction in expense is due largely to eliminating - the need for the use of gasoline; is that right? .. A. It requires no gasoline whatever; water only. _ Q. And the gasoline that you had to use for the two-liquid process had to be very special gasoline, did it not? - A. Very high quality material; yes, sir. Q. And expensive? A. Yes, sir. Q. Would it be \ppropriate now to take out from this cage the second sheet that was put in after the first one was taken out? . A. That was the heavy. compressed black which ought not to fly quite so badly, hut the paper has been in there since that was run,.and may\ show something. Q. Mr. Kitchel, I wish you would tell us something about the commercialization of this invention, for which a patent was applied for at the end of 1927. What was done by vm. organization with it from then on? A. We found that there were elaborate. prepasntions, - rather elaborate preparations, which were necessary to be done in the attempt to commercialize this product. For the first year or two, that is, during 1928 and 1929, the material was made in a sort of semi-commercial. way and—— The Court:-You are referring now to the process ‘under the Wiegand and Venuto patent? The Witness: Yes, sir. We made in that plant sufficient quantities in order to distribute it to rubber manufacturers, . not only in this country, but abroad, to.distribute small. ‘samples to illustrate the points we were endeavoring to bring out in our claim, that here was the answer. to the _ problems which they had been urging us to.get after. Those first two years proved that, even though we thought wehad _ ...the answer, it was not quite so easy as we.iMagined it would be? There appeared to be a tremendous lot of inertia by the consumers. When we look at some of the business [fol. 35] conditions which existed at that time, I think that can’be commented on later, but there was rcsistance for several reasons, among them the following. - Most of the sizable.manufacturers had, by that time, either gotten black milling concentrated into a single . . room, which could be protected te a great i or even ~m tn 31 a single. building in which nothing was done. but. black : That concentrated the trouble. By that time also what is known as a Banbury mixer had come into | _. use in the rubber industry. The Banbury mixer, instead of being open rolls where this rubber was milled with the black and so forth, was an entlosed or internal mixer, so that the rubber and other ingredients were put in there and the thing churned up some way or other, and it was not exposed to the air, but it could then be taken as a sort of a master mix and then put on the rolls when -the black was all it it. For that reason we found that our going was slower at that time than might be expected, and in. fact it was considerably easier among our foreign trade because there not only did they value the less dust in the pellet product, but they also wanted to take advan- tage of the saving in cost, due to the space requirements for ocean transportation. ‘Now, our first work, the first year or two, or two or three years, was largely taken up with getting consumers ‘to take a small lot and run their own experiment, so as to confirm the claims which we made to them, but he had several suspicions in his mind. In the first place— - . -Q. (By the Court) Whom do you mean by “‘he”’?: The Witness: The consumer, the rubber mgnufacturer. In the first place, he had learned that if any harsh black _ or over-burned black—what we term in the industry grit— got into his product, that in the working of.a tire tread, if there was a particle of: this harsh material in there, it caused a weakening, and gradual opening up, which led- to- spoilage or déstruction of the thing, ‘so that by that [fol. 36] time he had been very insistent upon his specifi- ‘ cations regarding the absence of grit. _. é; _And*so, as to these pellets, he said,-‘-How do I know _ there, is not. some particles of grit in it?’? He would reason, ‘*I cannot test it by my ordinary: methods; I cannot run it over a sjeve or fine bolting opefation and ¢ . find: out whether.or not the grit is there.’’ Of course, we could give him our word as.to that, that the only thing . that went into the pellet was pure amorphous carbon, and that there should not be any more finé grit in that pellet than in the black compressed or uncompressed ; but that was one stumbling block. The second was the fact that he had got to the point where he had come to find out—as I said before—that if a ) amyphing | had SIEM: Saale. to too wrest a iia it ee would cause him.trouble because he either kad to mill it « _ Now, in, 1932 we got to the single: liquid process, the ‘less * too long’ to get. it finely, dispersed, or if if he followed the 2 regular. milling procedure, he might run the risk of hav- _ ing some of that black not dispersed, and that would cause +. ° - trouble as bad as grit. .. ° The third point was that he was: still very suspicious a these ‘binders that-had been used in. attempts to meet. ' this: dust- problem. / He did’ not want the binders. He .’ . said, ‘‘How do I know you don’t have a binder ‘in there that, I cannot find?’’? - He had to -take our word for it that there. was no foreign material of any kind, that’ it yg “was just pure -carbon; but: ana accumulated into quite a ‘long ‘time to convince him, and to get him to run tests to confirm our arguments that that was trive. - .Q. Did you vet's sontewhere with that effort i in the course of time? _.. x. We. dia eventually, ‘yes, although I cae to osaciin So upon one more point there, and that is in: this two-liquid - process which was more expensive, plus the fact-that we © thought we had a perfectly logical right to, over-some fair « “period of years, amortize the heavy cost | at. we had been _ _ under in making this development,. we imagined, we could ' charge a price that was commensurate with what we thought [fol. 37] was a fair basis to meet-those two points, and we © _asked a premium for the pelleted product. That also added to the difficulties because during the years when that was so- offered we were in the depression- and—haying troubles. The rubber men were too;. competition ‘was keen and /, - ~ they did not want té listen to a proposition of paying some-/— -. thing more for any of their important products such as” , . that was, but © we began to get somewhere in the early 7 "thirties. — During 1928, for: instance, only sample lots wére e being shipped. In-1929 we had what we call factory-size orders, . test orders, and we shipped i in that year some 20,000 pounds. In 1930.it grew to 164,600; in 1931, 194,000; in 1932, 281,000. eas rye one, as developed by Glaxner, and there our : rd’ begins to show something different. . Qi State whether or not neo cacsuspas aie with that premium ee you ‘spoke of. Ne ; ' A... That was ewe We brought i it down to the regular | _priee. In 1933 we sold 800, 000 servi in- 1934, we sold Se" ‘ . 7% . ° r - . . . . ated. 3,300,000; in 1935, 15,000,000; in 1936, .30,000,000; in 1937 we sold 44,000,000; in 1938, 53,000,000 and in 1939 it was 97,000;000. It happens that for the year 1940 over 93 per cent. of our total deliveries of carbon black to rubber mann- . facturers was in thé pellet form. Now, in this sales work, although | some of the black in the pellet form is still taken in bags, a method has come about which we t Think 3 is a direct result of this Wiegand and. Venuto patent, and that i is what : is known as bulk handling. I mentioned one’of the four cardinal points that we: ‘come to look upon, this matter of thé flowability. That. is the basic reason for makikg bulk handling possible. It ‘was soon apparent that if we in our manufacturing plants could transport and move about and store these pellets in bulk, there ‘was no reason. why the-consumer could not do exactly the same thing. The final result was that many — plants today among the rubber. manufacturers are equipped [fol. 38]. for this bulk handling, and instead. of packing these beads in paper bags, we dropped them directly into a tank or hopper car built especially for that purpose. Those cars are moved on the -railroad to the plant,of the consumer. .He puts them on his siding, opens up the car, - the beads flow out by gravity, are conveyed to the storage tank overhead above the rooms or places in which he uses it, and then it is conveyed from there to the point where it is used and nobody touches it. There is no handling of bags from the time it gets to the plant until it arrives at the point where it is used. . Q. Was anything approximating that possible with the prior forms.of carbon black?’ | A. No, sir. It is only.a product that would have what we | term this: flowability: that could possibly meet the require-. _ments of such handling; and I would like to say there that a visit to a modern rubber plant presents a most striking comparison over these conditions I have described in. the — early days.’ Go into. one of these modern plants and some of them are painted up and are as clean as any operation | - not. requiring black of any nature whatever. All/you can see are conveyors going up to-a tank and conveyors coming down-from a tank It is even weighed automatically. ‘You _ don’t have to weigh it by hand. It is weighed i in transit froin the tank to the place — it is going to be eat cra. Soe 34 - Now, some plants, either because they have: not been modernized or because they are small, still take this pelleted black in the paper bags, but instead of 12% pounds : they get 25 pounds per bag. Those bags are loaded in the car and sent forward. The consumer takes them out and when — he comes to use them, however, he simply unties the bags ° ‘and it flows out, no dust, and so he does not have to use . the old precautions for he can use them any place he wants. I would like right there, if possible, to show this booklet which we published some time ago, entitled ‘‘Flow Carbon,”’’ which has some diagrams of installations, both small and [fol. 39] large, in connection with where this bulk handling» is carried cut arid .exactly how the black is used. Q. Could we take those two pages out of the book you refer to and put them in evidence? Would it be all right to remove them from the booklet? A. Yes. , Q. (After removing two pages from the booklet.) Mr. Kitchel, you might explain what is shown on those pages and-then we will offer them in evidence. _ Mr. Dike: I think you might as“well put the whole book in. We are going to ask him about it. Mr. Edmonds: Well, I wish you had.told me that before . I removed them from the book. Q. As I understand, this is typical of a manetty rubber plant installation? A. In genera), yes. Of course, each plant has its own: local conditions and way of —— it, but in general it is all the same. (Plaintiff’s Exhibit No. 16, filed.) | The Witness: I might also say, besides our own publice- tion, theré.are some very interesting comments from the Government bulletins for certain years which I would alee like‘'to read * * * [78-88]. ; _ * * * Mr. Edmonds: * *°* [89]. * * © 7 will now site in evidence a copy of the year ‘book for the year 1934, one of the series that includes the one Mr. Dike presented, and ask,,the witness to read a single paragraph on page . 750. Q. Yes, that is right. : “A. That is the bulletin of 1934 but reviews the j year 19337 | 35 A. (Reading) “‘ Although manufacturing - technique showed little change in terms of yields there was one de- _velopment which may revolutionize transportation methods. Increasing quantities of black were produced in the form . | of small, round pellets which can be transported in bulk instead of by more costly method of compressing in bags.”’ _[fol. 40] Mr. Edmonds: We offer in evidence a copy of the | '” year book for 1934, as Plaintiff’s Exhibit No. av. (Plaintiff ’s Exhibit Ne. 17, filed. ) Q The next one in the series is the year book for 1935, reviewing the year 1934, and I will’ask you to read from _ that a short paragraph‘on page 836 * * * [89-90]. * * © © -A. (Reading) ‘‘In the carbon black chapter of . : minerals year book, 1934, mention was made of the develop- P ment of dustless carbon black in the shape of small pellets ' ° for transportation in-bulk. Information from the trade indicates that production of this type of carbon black in- creased materially in 1934.’’ ‘Mr. Edmonds: We offer i in evidence this ‘year book for 1935, as Plaintiff’s Exhibit No.18 * * * [90]. ** © (Plaintiff’s Exhibit No. 18, ‘filed.) Q. Mr. Kitchel, here is the year book for 1939, reviewin the year 1938. I will ask you to read a short ‘paragraph on pane 4. A. (Reading) ‘Research on carbon black by producers and consumers was perhaps intensified in 1938. Much of the research resulted in narrowing the specifications for uses of carbon black in rubber. The relative proportion of . dustless production continued to increase rapidly and a col- lateral development, shipments. in bulk, grew as fast as finances would permit.’’ : Rrra fms Mr. Edmonds: We offer in evidence the. year r book for Sa hes Se -(Plaintift’s Exhibit No. 19, filed.) | Q. Plaintiff’s Exhibit No. 8 heretofore offered in evidence contains a paragraph on page 41 which I wish: you: would > read into the record, Mr. Kitchel. A. Which one is that? 3 36 — Q. That is the -year book for 1940, Teviewing the year 1939. - - A. (Reading): “Despite the low price level reséareh in . the fundamentals of carbon black’ production and consump- [fol. 41] tion continued,-as-it is quite-gerierally recognized - that the behavior of different blacks-under varying condi- tions is a fertile field for experiment. One of the products: '_of this research (dustless carbon black) increased steadily in popularity in 1939. It is doubtful if more than 10 per cent of the present output is of the old non-granular type.”’ Q: In connection with the statement about ‘the commer-° — cialization of the Wiegand and Venuto invention, I meant to ask you to refer to three of the items in this exhibit book, the first three in the last section of publications. will you - state briefly what. they are? ‘A. They show our announcements in the recognized trade journal of that time in regard to rubber. . Q. What is the date of the first one of those several an- nouncements?. A. November 1, 1930, in The India Rubber World. Q. And that is in this article headed, — Micro- nex’’? ee : A. Yes, that is ‘right. Q. And what is the second and its date? A. From the same publication, under date of May . SS 1933, is the second. . Q. And under that same head of “‘Dustless Micronex,” _I believe? ~° , , ‘A. Yes. Q. Micronex is the trade name under which your com- pany sells its carbon black, is it not? A. Yes. Q. And the third? . A. From the same publication, under date of August ‘1, : 1934. o . ; ann And under the same title? : ' A. No, this is under a different title. Here we have ‘‘Micrénex, Beads”’ instead of ‘‘Dustless Micronex’’. . Q. Mr. Kitchel, I.would now like to ask you if it is a fact -that this Wiegand and Venuto invention provided anything in the nature of a new starting point for inventive activi- ) ties and, if so, how that disclosed itself. = 42) A. Due to the fact that new methods for making a ¢ ; 37 . this pelleted product. were brought forward. We have seen new pellet structures. mentioned and new machines. out- | lined which did in effect bring, about the same general pel- leted product. . . Q. All of these new proposals flowing directly from enna contribution of Wiegand and Venuto? A. The products certainly appeared to be the: same. It was only a different way of getting at that product. The fact that stuck out in our minds was the fact that certainly up until the time of the introduction of this product by our- selves we had seen nothing offered to, or used by, consumers of this nature. Q. And were patents. applied for and obtained for these’ further proposals emanating from the Wiegand and Ven- uto? A. I believe there i is quite a list of patents of that time - on these various methods. Q. I am now going to ask you to read front the specifica- tions of some of those patents, and: copies of thé ones to which I will call your attention are in the book that is before ‘the Court, the first one being” Re-issue Patent No. 21,390, which was granted to this defendant, United Carbon Com- pany, some tine along in the thirties, long after the Wie- os ‘gand and Venuto patent was issued. Turn to that patent _and-read the portion that you find on page 1, column 1, lines 1 to 16, and you can make any comment on- that which seems : appropriate, Mr. Kitchel. A. (Reading) ‘‘The present invention aut to the pro- - duction of agglomerates or shaped masses of carbon black, for the purpose of overcoming some of the objectionable ' properties of raw carbon black,such as the formation of - dust, during the handling of the satne, during the mixing of . the same with yu bber or other materials, and for producing a product which is éasier to handle. As is well-known, pe black in its original form is a powdery or more or less lumpy material-constituted of extremely small par- ticles, 8b that during the handling of the same, air currents [fol. 43] may hlow the same about to some extent, and the object’ of the present invention. is to produce agglomerates which will be free from the said objection.’’ Q. That is an object that had fis co ‘been attained, had it net? - , ° A. Yes,’ sir. 38 Q. Now will you look at the Price patent, No. 2,127,137, and read the portion on page 1, column 1, lines 14 to 24, please, Mr. Kitchel? . A. (Reading) ‘‘A well recognized difficulty in “handling all of these fine powders is that they sift through the con- tainers used to confine them. Moreover, when packed in barrels or paper sacks, an excessive dusting occurs when. - the products are being used or mixed with other ingredi- ents, and as a-result the area surrounding the point or . points of- handling is filled with dust: which settles on sur- rounding objects, contaminates other products, and pollutes the air which those working with the — have to breathe.’ please. A. (Reading). ‘‘Often the black is , compressed | in bags : or ‘other containers which become wrinkled and crimped . during the pressure treatment, thus trapping a considerable quantity of carbon black in the wrinkles, and this entrapped black can only be removed by violent. shaking and then - “only at the expense of a cloud of dust. It is obvious that the application of heavy pressures involves heavy and ex- pensive machinery, a large amount of power, increased ex- pense, and delay in preparing the product for shipment, while the product is very likely to be-caked so hard that it _is difficult to disperse or to mix it with other’ material.’’ | Q. Still harping on the same old things that the prior | art patents harped on, is it not? ae ° 4 A. Yes, sir. — cn Q. But meanwhile a - eomplete remedy had book pro- vided, had it not?. A. Yes, sir; the Wiegand and Cunt certainly met that. Q. Now, you might continue with more from that patent, page 2, column 2, lines 3 to 15. [fol. 44] A. (Reading): ‘‘A further object is. to provide an improved apparatus for making a product which is chemically the same as the original finely divided material, | but ‘which has .an increased density, and is in the form of » granules or pellets which are soft, substantially dustless, ‘easy to handle and capable of being readily «dispersed. in or intermixed with the material with which it is customarily used, yet which has bulk characteristics which enable it to flow, as through” chutes om conveyors, and to be trans- a SS Q.. Continue on page 2, column L “ited 11 ‘ 24, if you . 39 7 kali in ili cars or tank: trucks without material disin- tegration.’’- ' Q. Strikingly similar to the description of the Wiegand | and Venuto product in the patent, is it not? A. It strikes us as exattly similar. Q. Will you please turn to Patent No. 2,120, 540 and read | page 1, column 2, lines 13.to 31. . A. (Reading): ‘‘The novel product thus produced, which may. préferably. be of substantially spherical granular shape, possesses striking commercial advantages. In the first place, it is substantially dustless in that most of its particles are agglomerated into granules of appreciable size and substantial density. In the second place, the non- adherent character of the surfaces of the granules reduces the apparent viscosity of the mass, which viscosity may be further reduced b the preferred spherical form of the granules, permitt the carbon black to be conveyed through pipes by gravity or by streams of air, to be trans- ported in tank cars and tc be stored in bulk. Beside being—~- much more cleanly for the consumer to handle, the novel product when mixed with other ingredients disperses and diffuses more completely and. perfectly in various com- pounded materials than commercial carbon black of forms heretofore known.’’ - Q. I will ask vou to refer now to page 2, column 2, lines 49 and 51, which is in the middle of a sentence on that page. a * (Reading) “¢ © |* present the striking charac- _ teristics of dustlessness, high density‘ and non-adherent, free .flowirig contact with each other.’’ [fol. 45] Q. Does all that description, you have read apply . to the Wiegand and Venuto product? A. It certain-y does. _ Q. And do you agree with what he states rae that that product has striking commercial advantages! A. Undoubtedly, sir. Q. Now, in his description, coming alang in 1932, he re- . fers to it as novel. Was that proper? . A. ‘Ht did not, strike us as anything new or novel there; just exactly the same as the patented product. Q. Will you look at the next patent, No. 2,120, 541, and read from page 4, column 1, lites 15 to 25? a~ Bb, ( ing) Tt j is believed, however, that never here- tofore ha ulent carbon black been progressively built a . y ‘o-——_. 40 “up ina sary ‘State, without assistance of binders, salad liquids, tars or other additions, either temporarily or perma- nently present in such a manner as to transform flocculent carbon black inté substantially dustless tenacious granules, the particles of which are united only: by their own cohesive force with sufficient tenacity of structure to resist disinte- gration when transported in bulk.’’ Q. All that description applies to the Wiegand and Ve- __puto product, does it not?- A. The product itself’ yes. Q. He says it is the first time it has been sade in a dry state, so his noveity. lay solely in the procedure of making the Wiegand and Venuto product? "A. It would be only a method of making it. ; ~ Q: Will -you please look at Reissue Patent No.. 19, 750, and read from page 1, column 2, lines 10 to 22? A. (Reading) ‘‘Thus the carbon black may be converted mto small spherical granules of: apparent density in bulk higher than before_gych treatment, of relatively tenacious structure, with each of such_granules preseriting a more or less polished, nonaaberoatwarface Carbon black in this spherical grain form possesses all of the advantages of con- -[fol. 46] venience in handling and distribution above dis- cussed and, in addition, if disperses perfectly in rubber * mixtures, and is otherwise as useful or more useful in rub- ’ ber making and other industries than the compressed car- bon black of commerce formerly employ : _ Q. Does all that apply to the Wiegand and Venuto prod- + uct which had preceded it by some years? : ] A. Yes, sir. > Q. Go further with that patent and read the portion of page 1, column 1, lines 22 to 37, please. A. (Reading) “The agglomerates formed by our pro- cess are of greater apparent density i in bulk than the | powders from which they are formed and consist cf more or less spherical masses having such a high ratio of weight to surface that they are not dusty. Also, they have Smooth, polished, non-adherent surfaces and compact, adhesive in- ternal structures. These characteristics give the resulting agglomerates a free-flowing nature which materially sim- plifies handling in bulk, homogeneous mixing with other. _ material, delivery by gravity through chutes and pipe lines, ' packaging in any desired weight, and all of the other con- 4 41 veniences imparted to the ureinat by ite extremes fluidity and dustlessness.”’ Q. Are those the same advantages that are described in the Wiegand and Venuto patent as being advantages of the Wiegand and Venuto product? A. Aside from the difference in words, it is.‘ Q. One more is. Patent No. 2,080,706, page 1, ‘column 1, lines 6 to 16. A. (Reading) ‘This extreme degree of. incinas carries the inevitable and generally undesirable concomitant of dustiness, and this dustiness, arising from the minute weight of the individual particle, may lead to serious unde- sirable commercial consequences; for example, contamina-_ tion of other nearby products and processes, excessive de- terioration of fixtures, machinery and furnishings and res- piratory and other occupational disorders in the workmen exposed to the dust.’’. [fol. 47] Q. Was there anything new about that in 1933? - A. It was one of the dangers we had recognized and were trying to overcome in the original work. t Q. And did overcome? A. Yes. : : Q. The dangers are the dangers mentioned in the a ? ents of the prior art where the people tried to overcome them and failed, ate they not? ' A. I do not run the process and I do not know thé pn of the process. The idea and my understanding i is that the . Size ofthe pellets may be varied in either precess,by vary: ~ ing the amount of the liquid used and the amount of agita- . e tion, etc. * - [fol. 49] Q. How would you say that the two products compare? By. the two products I mean the micronex or—---— the single process, and the other, as to their internal strue- - ture. . - A. I_know very little about internal structure. The only description I can. give is that they are both porous. | Q. How do the two products compare as to purity of the carbon black as to the single liquid or the two-liquid? \ A. I know of no difference in purity. ote -. Q. During your direct examination you discussed the Ste 6 @ question of the problem of dust around the rubber mills, © and I believe your direct examination penreces. that . problem began about 1913, is that correct? : A.:1913 was the very beginning of the use by one firm only. It took about two years for that use to become spread .through other consumers, so I would say that our problem of dust became accentuated about 1915. a ~~ Q. What type of mill was used at that time? es ‘A. In milling rubber? af ‘Q. Yes. A. Open roll mills. Q. Similar to the open roll mill that was -used in the . moving picture a short time ago? | A. I did not see that movie. Q. At the present time I believe you stated | that there had beenisome change made by the rubber company in | the milling of their black into the rubber? ber aa A. Yes. ’ -Q. Will you please describe briefly what that change ¥ consisted in? — . A. This isa layman’s description entirely. : Q. That is what we want. A. The change was primarily, instead of using ary rub- ber and dry materials‘on the open roll mills, they went té the use of the. Banbury mixers and the ee of rubber | 44 is put in there and the door closed and it grinds out the mix _- and most of the effect is confined in that mixer. . ' Q. Do I understand you that the Banbury mixer is a closed mixer as compared to the open mill or -* der used [fol.50] previously? —~ - A. That would be a common method of diniihine at. : Q. Going back again to this matter of the Banbury mixer, do you know approximately when the rubber com-. panies began the use of the Banbury mixers? _ A. I am not certain. I remember seeing them in use somewhere along in the sige 30's, according to my best recollection. Q. From the patents that you have read in your direct — examination there is a considerable discussion of the dif- ferent so-called problems in connection with the dusty character of the carbon black; one was its explosive prop- _ erties in_a mill —_ I believe that is referred to in.the Sheppard Do you have any personal knowledge of there being tny-explosion 1 in a mill from the-use of dusty carbon black? ~~ i A. I never knéw Of such an occurrence, no, sir. Q. In connection with the &tatement~in several .of the . patents: that the dusty character of the carbon black af- » fected the health the workmen, do you know of any instance where the adversely affected the health of the workmen? A. I would: say that was largely a matter of fear upon _ the part of the users and: that we never found asa 3 = . that sort from a health standpoint. Q. In connection with this ‘‘problem,’’ as you have ternied it, of the dispersion of the carbon black in the rubber, do you know whether that difficulty ae the use of the Banbury mixer -in connection with carbon _ black that is wetted by a single — such as is described in this patent? =. A. I did not get the question. , Q. I will. rephrase the question. In your direct examina- tion one point which you mentioned was that. there -was a problem of dispersing the hard particles of. carbon black into rubber stock. I believe you discussed that in con- nection with the heavy compressed’ blacks. I believe you read a portion of the Wiegand-Ven patent specification which discussed this eis of d rsion of hard particles: / a sty character of the carbon black — - 45 in 5 vabbee stock. ‘The question I, am saking you is this: [fol.51] Whether those problems of securing dispersion ; related to the old method of milling on the open mill, or did it relate to’ the method of milling in the Banbury mill? A. The Banbury was not in use when -those previous forms of black had been tried. There was the heavy com- pressed and hydraulic plan,—the Lewis plan which dried _ inte cake form. I would not know how to answer the ques- — tion because there were rio Banbury’s available to try it on. . Q. Since the introduction of the Banbury mill in .the ‘ rubber'trade have you heard of any difficulty in securing the dispersion of carbon: black which has been rendered dustless by wetting with water? -A. I-have every, on to believe at the same diffi- culties would exi getting proper rsion by the use ’ .of a Banbury and a mill or a mill eae as the carbon black in any form would have to be of such type and grade as would disperse properly through a Banbury and a mill or ’ a mill alone. _Q. In your last answer you refer to the type and grade of blaék as having effect on its dispersion. Would you care to elaboratefon that? ; A. That is a ghly technical —. There are men here who can d@that. Q. What do you mean? A. Certain blacks -under certain specifications have to _be furnished for different uses. Q. You do not refer ‘to the question of whether it is in _a dustless form or in tlie old-fashioned dusty or com- pressed form? . ' A. Unless proper dispersion is obtained in any form used, there is trouble in the finished product. What I want to bring out right along is that any method in an attempt to solve this dust problem that carried it so far as to make it difficult renders it dangerous. Q. Is not the way-you had of keepitig away _ it this two-liq rocess of Wiegand-Venuto? aor cuter pence te been. Q. What other way do you = treating this prob- lem of forming too h -A..I was not directly cen with that work 80 I . would not know how to answer that. te [fol. 52] Q.- Do you know of any other method oe ’ by your company to. get away from: it? ~ A. ‘Undoubtedly there is a very fine balance between the ” materials used and the time: element ‘involved and the handling of same. It must be a very fine limit -to. secure those necessary elements. a gathered from your direct testimony, Mr. Kitchel, that there is some relation between the density of the carbon black and its dusting properties; am'I correct. in that? - black and compressed black? O Yea A. Undoubtedly. Q. What about what we would call the light compressed as compared to the heavy compressed black; was the heavy. mote or less dusty than the-other? A. The heavy was somewhat less dusty but only a very: ' minor difference. - -Q. In your direct examination, Mr. Kitchel, in connec- tion ’with your testimony and what you termed. the essen- tial characteristics of the product of the Wiegand-Venuto . ‘patent, *you discussed the importance of the pellet being a pure carbon black. Do you have a copy of the patent? Will you please refer to page 2, column 2, line 100 through . 105, and state whether or not this statement of the patent is what you had in mind. when yow specified that one of -the characteristics. of the Wiegand-Veu..uto pellet’ was the ‘purity of the «.rbon black? ‘A. The reference in those lines is not to impurities that I desired to make mention of. The impurities of which I _ was speaking were the binders and the additional things added:.in some of the prior work. . This reference is to some small particles of grit. .‘'The matter of purification which you have vefeteil : to is something different to that contained in the patent, is that right? §° _A. The point I wanted to bring oie was that, realizing - it was necessary to offer to the consumer. pure carbon black, this product of the patent enabled us to do that without the addition of anything not wanted. [fol. 53] .Q. In connection with. the next characteristic, . which I believe you named in this order, was that it was hard enough to ship, as being one of the characteristics of this Wiegand-Venuto pellet. Did you have in mind that ¥ v A. Referring to the difference between ‘uncompressed +] 47 there was some relationship of hardness of the pellets ‘to the shipping and handling of the pellets when you used that statement? A. Certainly if the pellets were not hard enough to shined . the handling it was necessary to give them at the carbon black plant to put them up for shipment or to stand the . transportation after shipment. . ‘ Q. Did you have any yardstick or similar measurement by which you could measure the hardness of the pellet to determine when they were hard enough to stand shipment? A. I was not connected with the work so I would not - know. Q. .You do not know of your own: knowledge and cannot determine that from any facts you have given us? A. I would say practical experience: would be a very geod test. Q. Can you give that from practical experience? x A. I cannot, having nothing to do with that. Q. The next characteristic you mentioned as one of the characteristics of the Wiegand-Venuto product was that it was soft enough to disperse readily. Is there any test of. ‘that softness that you can give us to help us understand -™~ a little more what you had in mind? A. I think again the gauge would be the point beyond which the rubber manufacturer could not secure proper dis- persion. I know of no yardstick in that connection, no. Q. If you will refer to the Wiegand-Venuto patent again, please, -I should like for you to refer to. page 1, column 2, | beginning about line 85, to the statement which reads, ‘‘and which at the same time was easily crushed by moderate pressure, as between the fingers, or by the pressures com- ‘monly’ employed in the rolls of rubber compounding ma- _ ehinery, printers’ ink mixérs ‘and the like.’? Would you [fol. 54] say that was or was not ‘an. avcurate kind of test to determine: whether or not a pellet possessed this char- acteristic of being soft enough? A. I have personally felt that the finger test is a very - good kind. If our pellets are sufficiently soft so they can be smoothed. out ‘on- paper by just the pressure of the finger - ahd showing no harshness, I feel that would be capable of satisfactory dispersion provided such a pellet would be hard enough to ship and handle readily. Q. One characteristic of the’ Wiegand-Venuto, product which you described in your direct examination was its ~ ~~ 48 ‘ . novel .spherical shape,—I believe you termed it.. .Do you know of any instance where the process of the Wiegand- Venuto patent was employed to produce other than spherical shapes of the agglomerate carbon black? A. If that proeess was used to-produce, agglomerates of ~ other types? 3 See e a rs Q. Yes. - ga wee’ ae fet ; A. My answer would only be by hearsay, that is, from reports in connection with work going on at the time.’ Any number of things -have been tried with any number of “results. As to shapes coming out of there, I would not know . as to that possibility. ; ohae . Q If you will refer to the Wiegand-Venuto’patent again, ° please, on page 1, column 2, beginning at line’95, I am read- ing from the patent: ‘‘While the pellet form is a very con-. - venient form of the carbon black, the shape of the particles is not the most important characteristic of this novel carbon black.’ As I understand from your direct testimony, you disagree somewhat with that statement in the patent, in view of your statement.of the fourth characteristic of the - purpose of these pellets? : - A. I was commenting entirely upon the pellet form of the product. I am.so badly versed in matters of patent wording that I confess I am totally atalossonthat. — “ Q. There is not much question, is there, Mr. Kitchel, but. ~ what that portion of the patent I have just read to you is rather clear, that at least the patentee did not consider the [fol. 55] pellet form was the most important factor of their | novel product; would‘you say that? ©. A, I have no way of knowing what was in their minds atal. =. : ; Q. Judging from the language of the patent yourself what would you say about it as.an ordinary business man? ' A. It says, ‘‘the shape of the particle is not the most important characteristic of this novel carbon black.’”” _ Q. You have in your direct testimony given four char- . acteristics which you stated as being important character- istics of this Wiegand-Venuto pellet. Would -you say which of those characteristics you consider, as a business man, the most important characteristic of that product? ae A. I would-say that either one alone would have been of eta very little use. It was the proper combination of those - things that seemed'to make it of such great value to us. 2 Q. Then you would say, would you, that the thing that solved this problem of dustiness in the rubber companies . that you have referred to was, first of all, a pellet of pure . . ¢arbon black which was sufficiently hard to be handled and which was sufficiently hard so that it could be shipped with- out disintegration and yet so it would be soft enough or break down under slight pressure? Is that in effect a de- -- scription of the product to which you have referred in your direct testimony? A. That combination plus the spherical form. 49 . Q. In connection with the flowing of the carbon black — . - , pellets, which is one of the matters you have mentioned and concerning which: you testified on direct examination, I understand that it is the shape of the dustless carbon black which gives you the flowable characteristic of the black, is that correct? , A. I understand the shape of the spherical pellet that rolls upon itself makes. that flowability. Q. If we had a grain similar to a grain of sand in the hourglass instead of this spherical pellet, would you say (fol. 56] that, material also possessed this characteristic of flowability ? eK A. Sand is certainly flowable. --Q. What about granulated sugar? A. To a degree. Any of those things which have ‘suffi- cient roundness would provide a degree of flowiriess. Q. So if carbon black were in the same granulated form we would expect it would flow? Bre fk Pac A. But it- would not remain dustless because if it had any roughness in shape, in handling those corners would i be knocked off and handling would create dust by so doing. . - + .Q. In your direct examination you have stated orrseveral ~~ ~ocoasions that the beads made by. the single liquid process - - and the beads made by the two-liquid process possessed no visible differences, is that correct? A. Yes. Bes By the Court: Q. Did not you go further than that and say that as far — as you knew there’was no actual difference between them? A. That is the question, - 771 eugene 50 ~ By Mr. Smith: Q. Upon what did you base that sliceeeanbei Mr. Kitchel? A. Just visualization. . oh ae Q. Just as we might look at that here? | : ee PS ee A. Yes. Q. That is not based on any niin or microscopic test with which you are familiar? _. A. Not that I have done myself ; that’ information is. available, Q. In connection with your direct enenebiitton: you re- ferred to the Godfrey L. Cabot patents. Are you familiar with any product which is on the market which is similar to. the product mentioned in those patents! oe ee 6). =. .: * * © A Tam , familias with ‘the product offered by the - Cabot Company i in the form of a-pelleted black. Q. What is the trade name of it? A. Spheron. Q. When did you first ee of that product? WO ees [117]. : [fol.57] * * * A. To the best of my recollection, whether it may have been designated as ‘‘Spheron,’’ we met ‘a pelleted black from that source some. time around 1933. Q. Prior to 1933, as I understood your direct testimony, ( any had introduced to* the trade pellets which Q. I believe you stated tha veiaa the production ier _the years 1930, 1931-and 1932, am ee A. 1929, 1930 and 1931. © ; ~ ‘How much of the product was put 1928? ; A. Only very small sample lots. Q. Would you give them again? The Court: They are in the direct testimony. A. Ihave them here. In 1928 it was a very small amo probably less than 5,000 pot ds. - Q. And in 1929? A. About 20,000 pounds. Q. Do you have the figures for the other years? The Court: Give me the figures for the other years. ~~ - | A. 164,000 pounds in 1930 and 194,000 pounds in 1931. A the market in Pts 51 By Mr. ‘Smith: Q. During those years trem 1928 to 1932, of your own _ product which you made according to the two-liquid process, — ‘can you state how much of that was actually sold and how much of it was distributed in the form of samples? - A. I should say that during the first year, 1928, undoubt- edly by far the greater part of the material we turned out was submitted in the form of samples. But when it came to 1929 and the 20,000 pounds, that was delivered in much larger lots and was done on a billing basis, as I recollect it. Q. What about the other years when you used the two- liquid process? Was that sent out on a billed basis? A. 1930 and 19311 Q. Yes... | ae A. It was certainly sold in a. direct way. (fol. 58] Q. You have mentioned that a premium was charged for this product: do you recollect what that pre- mium was? - A. It was in the neighborhood of three-quarters of acent. - to one cent a pound, I think it carried. .. Q. Approximately what was the capacity of the. semi- pilot-plant that was used for making these pellets under — | the two-liquid process, do you know? “A. I do not know. (Q. Do you know where that plant was located? A. Yes, sir. Q. : Will you please state where it was? A. At Easton, Pa. = Q. As a result of your sales of the pellet. ‘made by. the two-liquid process did you find the public would not pay. this substantial amount of increase in price for the black? ‘A. We certainly found a very great resistance to the idea of paying it, yes, sir. Q. Do you have any record, Mr- Kitchel, where those - pellets were bold? A. I am sure there are records available but: I do not | have them with me. Q. Do you know in a general way ohiitibe ‘it was to the rubber companies or to the ink makers or just where they went? A. I am sure it was moat largely the rubber companies - although I know some samples were submitted to manu- -. - facturers in other lines of work besides rubber. 52 Q. At the present time, Mr, Kitchel, is your company making or using ach micronex beads sold for use in hess al _or inks? A. They are iéot: | Q. Do you know of any reason why: they. are not sold i in - those fields? . A. We:sell bead form of other. grades to those manufac- . turers, : >. Without designating the micronex beads as a trade designation or a particular type of black as well as the form? « A. It.is any form, compressed, uncompressed or beaded. [fol. 59] Q. I have ‘gained the impression that micronex * beads referred to that in the pellet form. You have other products sold in the: pellet form, is that correct? A. That is correct. Q. Would yon be able to designate those by their trade names? — . A There is a 5 caste. There are. Excelsior beads which ~* “are sold to the paint trade. There is another form of very . high quality that goes into the lacquer and protective coat- ing trade. . . Q. So far as you know, -did you ever know of the bead ‘product which is sold to the ink trade? A. I believe we have furnished bead black to ink manv- facturers for their use but that requires a certain specific ’ manner of handling and formulating both. it cannot be done in the regular way. Q. Does your company employ different processes for the use of these beads? . A. My company does not produce the beads. .Q. The company that produces the beads is ‘what com- y? A. The Columbian’ Carbon Company. Q. In connection with the activities of the Columbian Carbon Company, do you know of any process other than this single liquid: process which you have previously de- scribed as being used by that company in the production ‘ of this bead form of carbon black? * [117.121. * © © A. I understand that they are caaaien constantly with all kinds of different processes, methods and pro- . cedures: I would not know to what extent they may have | applied those things.. Q. To your knowledge are any processes other than the. single — process. used in ‘other. products? rw _ 58 A. I should eutunihi 80 tacdede any aaa of micro- _ nex beads for rubber work. The greatest part i is by the . single liquid. Q. Is there any use of the two-liquid process of - Wie- : gand-Venuto in connection with the production be those . beads? — ‘ A. I would have no way of knowing that. [fol. 60] Q. I assume that your company and. the abies: bian Carbon Company, in company with most other busi-. nesses these days, has some competition in the dustless ’ form of carbon black, is that correct? A. It is a sad truth, sir. Q.. In order that the record may be complete, I wender if you would give us the names of other companies selling in competition with your company the dustless form of carbon black? — A. The United Carbon Conipany, the Huber paicein. and I believe the Continental Company also. — it. Q. Do you think of any other? . A. I do not recollect any right now. Q. Have yeu had occasion to examine the products of - these competitive companies visually in the way in. which you would examirie the beads made by the single liquid and the two-liquid process? | A. I have. Q. How do these prodpete compare with ‘the ‘products of the Wiegand-Venuto two-liquid process, that is, the first of your pellets?. Would you say they are obviously. similar or obviously different? A. They are very similar except possibly as to the matter _ ‘of the size of the pellets. As I recollect, the first two- liquid pellets we turned out were made out’ according to a certain general size. Later it proved that somewhat smaller ones weuld be more useable. It would be only a matter of difference i in size. Q. In connection’ with those four characteristica of the Wiegand-Venuto two-liquid pellet which you described, would you say that all these competitive products were or were not this pure carbon black that you mentioned ? A. As far as I know they:were all pure... Q. What about this proposition of being hard enough to stand shipping and handling? . _ A. Some of them appear to be hard énongh and others do not appear to be hard enough. 54 = cannot handle rubber in chtnks éo it is sheeted out-on 84 inch mills. In connection with the Banbury mixer for the mixing of stocks, it doés not eliminate the black nuisance. Q. When. you wefe at Goodrich you fixed the time for the first: work with. the Banbury at around. 1925 to 1927? °° ' A: Yes. : Q. When was it you put up this new mill? .A. In 1928. ide ’ Q. I asked you a question previously as to whether you used a Banbury mill or an old type open roller mill? ~ . A. We used the Banbury in connection with 84 inch mills. Q. ‘That is the roller mill for sheeting out the rubber? A. Yes. It was cut afterwards, and the cut is very essen- tial in the mixing of stocks. In all pigments added to rubber a you must have complete dispersion. Q. So far as those 84 inch mills bo tis Air toll roam axe concerned, were they ever used for compounding carbon -[fol. 78] black with rubber? A. Were they ever used? We sind the Banbury mixer in conjunction with 84 inch mills. Q. My question is directed to this one point, as to: whether -or not carbon black was compounded with rubber on wiat you term an 84 inch mill? A. It sould have been done. | Q. Was it done? A. We would not léave the Banbury stand idle. The - 84 inch mills—on that it was the same as in other parts of the ry The rubber en is a too-compeditive. @e 2 70 aay industry and you cannot let machinery lie idle. These Banbury mixers cost $60,000,—figure it out... Q, How many Banbury mixers did you have in yours new - mill; Doctor? A. Two. a ‘How many of these 84: inch roller_miills would you ’ have in that mill room? © A: The better the mixing the fewer complaints the proe- * essing division wilt have. The ratio is one Banbury to three 84 inch mills. This is the mixing end of it. The more you mix the more it costs: you. If you mill a little you get . - in trouble with the product. If you lose a customer’s ac- x ceptance you do not sell him. . Q. At the time you put in the mill room, ‘what was the _ type of carbon black you were = in the mill room? A. Compressed black. . ’-Q. Is that what-is referred to-as the heavy sisieaiiol blaek. You can tell this from the sample, Plaintiff’s Exhibit : No, 9. A. You are acquainted with the different kinds of black? . Q. Yes. A. There is a black called ensemmgrensed black that weighs - 13 pounds to the cubic foot.. The compressed black I am talking about weighs in the neighborhood of 25 pounds to the cubic foot, supplied by anyone of the suppliers of ‘car- bon black to the rubbeer industry. | Q. When you go in the mill room was there any. change made in the type of compressed black that you’used in the {fol. 79] mill room over what had been. previously used? A. In the open mills. — | Q. Referring to this diagram‘on page. 10 of the Banbury ‘bulletin, Defendant’s Exhibit No. 1, I note reference to what is termed an air-operated ram. I did not get very clearly the operation of that ram. I woneer, if you would please describe it to us. A. All right. First the rubber i is added i the Banbury ~ mixer. Q. Is that added to what is ‘ternied: the hopper? ; A. Yes, the rubber must be masticated before you add pigments. That ram serves a double function. That is, it puts pressure on the stock at the proper time. That is one. It closes the mixer and it goes down on there. When it goes © down, ‘*Whew,”’ a cloud of dust. I spent $30,000 to put in the Pangborn duet collector. oo Q. Would the dust collector have a connection with the ‘ Banbury mill similar to that. which is on this diagram with the fan to reduce dust? A. Yes. The ot erator works the ram: ‘There are specific directions on the mill, the rubber on the 84 inch mill. That ‘isa matter of testing. is followed by the technical men throughout the whole rubber industry. Q. When the carbon black is added to the rubber i in. nthe ‘Banbury mill is that also added to what i is termed the feed ‘hopper? - | : A. Yes, sir. Q. After it is added thoneh the feed hopper ond the ram is closed, is there any further difference that is noticeable? A. Not after it is mixed in. | Q. How long does that take aftér the ram is closéd and the mill is running? A. The cycle. is approximately 11 minutes. You could run it 15; you could run it as long as you wanted to. The longer you run this expensive mill operation the more. it — costs you, so you have technical men that decide when it is enough. | Q. So far as the Banbury mixer is concerned, was there any difficulty in breaking up chunks of carbon black that {fol. 80] may have been wetted with water « or that had a: _ high moisture content? _A. No compounder of my acquaintance would. add water to a black: ‘These. materials follow specifications. The raw material division buys black, if that is what you are - talking about, under specifications. : - The Court: Do you mean a black which hai been con- - stantly wet or has been wetted by some. process? , _. Mr. Smith: Either way. There were instances of rejec- tion of black because of accidental wetting and then there are also’ instances of intentional wetting. |» The Court: The question i is whether the Banbury ma- chines would crush. A. Judge, we would reject that and not u use it We would not get that far. I would not be that dumb. - Q. Is there any difficulty crushing these micronex beads of the plaintiff in the Banbury mills of the plaintiff, if you’ know? * °* ° [151- aerl, \Q 72 ‘The Court: * * * i. will ae the question, i is the Banbury an effective function i in preaking up the micronex _ beads ; AK. Yeas sir. _ By the Coatt: Q. Is. it-a fair r statement to say that in the use of what you might’ term “‘dusty black,’’ which includes the com- ~ pressed form which was used when you left, that the. Ban- bury machine ameliorated ‘the dust nuisance but did not cure it? A. a sr “ ~%, he Crsyr, * * © Mr, Edmonds: We have an-admission as the aia that this is a sample of the defendant’s product.. xill offer this in evidence as ‘Plaintiff "s Exhibit No. 20.”’ “(Pik tiff’s Exhibit No. 20, filed.) * © © [160). as, he 5 raat na = Sarg Ney * ©. * Testimoriy.of Wm. B. Wizcanp. ba Direct Examination Roe Peas? [160]. Q.: What is your name? ... A. William Bryant Wiegand. Q. And your residence? » A ae A. Old Greenwich, Conn. 2 Are you a technical graduate? A. Yes, sit, \University of Toronto, Canada. {fol. 81) Q. What year? A. 1912.. ‘o And your present official capacity? A. Director of Research; Columbian Carbon Company. Q. You are the ‘same. William B. Wiegand who! is one of the. patentees in the’ patent i in suit? A. Yes, sir. i he Q. I take it we may understand that you hats given -somne = of study to carbon hlack, years, more or less? Q. Will you look. at this container of pelleted carbon ~ re Jlack bearing the inscription ‘‘United-Carbon iocead Beads, Exhibit No. 20’’; have you Q. Will you examine that and see? A. I could not give you a final answer by examining that on the desk. . » Q. What would be necessary to know? A. I would have to know if they would stand transporta- - [fol. 84] tion and the handling which is customary with carbon black. I would have to know whether in a wide series of. rubber compounds, ranging from very hard ones to very soft — under those conditions they would dis- perse. Q. Roughly, can you determine that? A. We went through a great deal of that in that early stage of development. That was the greatest single re- maining problem we had. When we’ got these pellets, the - dust problem was solved, we felt. We took months and months to find out about softness; we sent bags to rubber companies on both sides of the Atlantic to see if they did have the softness.and reinforcing qualities. They put them through the tire treads, which was the hardest type of com- pound, and. in -the shoe industry, representing soft com- pounds. Some people took years before they were con- vinced these pellets would disperse in the type of rubber — they used. The softer the rubber the more difficult it is to take the pigment and get it distributed. The above tests are the tests which. anyone would have to go through to 2 | Se settle the question as to whether this product or any other - product is what you would call ‘‘soft enough’’ to disperse. - Q. The product made by you is a dispersable product, is it not? .. os A. Yes, sir. pees i Q. That is one‘of the essentials of it, of course? : A. Yes, sir, most assuredly a prime essential, I would say. : ee : Q. Can you tell by a microscopic examination-whether a_ particular thing is spongy and porous? A. I have never regarded a microscope as definitely a clue to that question. -You can look at a pellet, you can see what it looks like and itis somewhat spongy but I have never found it quantitative but have found it rather treacherous. I lean to more quantitative things than a microscopic exam- ination. ata has ae Q. How can you tell if a thing is spongy or porous? A. I did not write the claims but the words to me mean the same thing. ioe [fol. 85] Q. You swore to them did you not? A.: Yes, sir. Q. You understood what you swore to at that time? - A. I am telling you now what I understand. I take ‘‘snonginess’”’ and ‘‘porosity’’ as meaning somewhat the’ _ same thing,—capable of absorbing, lke a sponge. . Q. -You do not refer to it then as an open or honeycombed — structure or any thing of that kind? nyyene = A. No. ap - Q. You do not: think you can tell that by microscopic examination? : | ; | : A. Sometimes I think I can and sometimes not. It -de- . pends on how the sectioning is done. If you cut a pellet you get one thing, if you crush it you get somethnig else. If you put it into something that will open it out gradually like a mixture of turpentine and oil, or water, you get an- other condition. : pele is Q.. Tell us what those conditions are. dee! ee A. You ean get the pellet to open up by degtees, whereas if you cut it it will fall apart. thes 3 7 Q. You do not think you can tell by breaking them up - whether they are spongy or porous? _* &. I would be afraid to say I relied on that method. — It is a quick method. I prefer.the more direct quantitative _ 7 ways by imbibition, by means of Wetting it or. something a of that kind. Q. Then you cannot tell whether a bead is spongy or — definitely without some imbibition, —is that the right word? A. Yes. I am‘afraid I will have to confess I am not able ' to make a complete diagnosis of a pellet by means of a microscope. ' Q. You think that if you look at these beads under a microscope _ could not tell if — were spongy or porous? A. You mean as to wane they are more spongy or porous? Q. No, whether they were spongy- or porous within the meaning of your patent. A. I prefer not to. Iam not good enough. with the micro- scope to commit myself on the basis of a microscopic anal- ysis. I have not been able in twenty years to get from the microscope in the study of carbon black the help that other [fel-86] people get in their subjects. The particles ate beyond the range of a microscope. They are ten times — smaller than a wave of light. If you relied too much upon a microscopic examination of a pigment you might be fooled. | - Q.. AslI cndlseninal your direct testimony, you stated that. Plaintiff’s Exhibit 20 was spongy or porous: — did you determine that? A. By these three nitiiads which I have ary Know- ing the density I may make a calculation of the atnount of . carbon that must be there and the amount of non-carbon spaces. Second, by means of sucking up to show that they were spongy. Thirdly, by actually seeing air issue from ‘ the particles wlien they were wet. _ Q. When did you make those tests? “A. I made them on various occasions. - _ Q. And this sample here,—have you ever tested this par- ticular sample? * * * [165-170]. ; -- * * © (A, Yes, I examined the products which we are talking about, I believe. - ; Q. When did | you make those tests? A. I would:say in the past two weeks. Q. Will you produce the results of those tests, please? A. I do not have the tesults here except to tell you what ‘beppenes. 78 Q. Tell me sii what omer First, mre what you did and what happened. : ans ' Well,.we have a microscope ; ‘but we den *t have the . liquids, but we can get them easily. Now, what degree of sponginess and porosity do you think is necessary to em- body -your invention—is necessary for your invention, I will say? A. Enough to provide the first characteristic of a*suc- cessful carbon black. Now, when-you ask me to define the _ theoretical relationship, between porosity and that all-im- portant characteristic of disseminating through the rubber | in such way -that every particular individual particle of © carbon black is lodged in its place in the rubber, which . . \ +e ‘ \ . . . . \ 80 f : : ce Ss ‘ . . in my judgment is the prerequisite of this reinforcement, sir, that everybody wants—if you ask me to define the relationship between that dispersability in rubber and - porosity, I have got to admit my aapsonecal . Q. So you don’t know? A. I don’t know where the borderline is; no,-sir. All I know: is, if'you have got—if you are within the proper - range your pellet does a. proper job in the rubber factory. Q. Now, Mr. Wiegand, what about ‘black which has been made into a paste by water, and then formed into pellets [fol. 89] directly? » A. You mean by the so-called single-liquid process? Q. No, I am not referring to the single-liquid process. © I am suggesting that you make some paste of carbon black and water and then convert that into a pellet and dry it. Would you consider that that is spongy and porous?: ~ A..I would not know. Q. You don’t know? A. I wouldn’t know from the teondgilon you have given me aot you would get. Q. Do you mean to say in your study of carbon black | of all these years you have never. examined any pellets that were made from water and carbon black? A. Oh, yes... > Q. First making them into a paste and rounding them up into pellets, and drying them? — - A. I don’t.know exfctly what you mean, for this reason: _ I-don’t recall ever having made pellets from carbon black and water, because a paste—well, it is a wet plastic mass, is it not? Q. Yes.. - A. Shiny. It has got. uals water into it to. make a ‘ paste. I couldn’t answer ‘your question. : Q. Well, let us say it is a continuous mass. A. A continuous mass? Q. Yes, for the sake of definition. A. Yes. Now, if you ask me what the properties woulda : be. of any given paste. when. made into pellets, I would _ have to, in order to be accurate, to the best of my knowledge, say that I would have to see it, because it would depend on the type of process used, the type of agitation and apparatus used to convert it from the paste to the’ pellet. Q. It might or as ty not be spongy. and porous, you think? © 81 The Court: You just answered that question You said you didn’t know. A. Well, that is the point, your tke: I don’t. It might or might not; I suppose that is safe enough to say. | [fol. 90] By Mr. Dike: ‘Q. You measured the size of those pellets in Plaintiff’s Exhibit No. 20% © - A. No. .If you'mean by that, have I taken some of them and put them under a micrometer, to make a microscopic examination, I have not. - Q. To what extent have you measured them? A. We do, as a‘routine thing, screen tests on carbon black. ° We find out how much there is on twenty, how much on forty, how much on sixty, and how much goes through at eighty mesh. Q. Did you go through those tests on this: sieananatle ‘ Exhibit No. 20? A: I haven’t in mind any pactiondex screen test on this product, if that is what you are asking me. The question - you asked me was whether they were approximately one- _ sixteenth of an inch? Q. Yes. ; A. Well, I am not’ going to swear they are not one- eighteenth of an inch, or a, twentieth. > -.Q. Where do you think approximately one-sixteenth of ' ‘an inch begins and ends? ’ A. I would say it depends on what you are talking about, . Q. Well, we are talking about carbon black pellets, of course. A. We are talking about carbon black ‘in pellet form? Q. Yes. - - A. Well, if I ‘remember rightly, in our patent we ola ‘that we preferred them to be—I forget the exact figure— | was it one-sixteenth, or something like that? Q. Your claim states, ‘‘ An article of manufacture, a pellet ‘approximately one-sixteenth of an inch in diameter.’’ A. If I remember rightly, we said in our specification _ that we thought they should not be jJarger than a quarter — of an inch; and that is my impression, that a pellet that approaches a quarter of an inch in size is not satisfactory any longer. 11—71 setae Baek nih. ? ie 82 -Q. You ‘indi say that did not. conform within ‘ine term - one-sixteenth of an inch, then? A. That would: be definitely outside the scope. [fol. 91] Q. Definitely outside? A. On the high side. Q. Well, go to the low side. What is definitely out on the low side? — A. When you no longer have a condition of dustlessness. Q. In other words, you can go down to what, roughly. _ speaking, and give it to me in some mensureinesit, so that T can have some idea of it. -- A, As to what would fiy? bane Q. No, I want.to know what you say is not one-sixteenth of an inch so far as this claim is concerned. A. Well, as I said, I think if they get so small that they fly and they are no longer dust-free, then they are obviously: ' not within the general idea of dustless carbon. I~don’t - know where that borderline is, to tell you frankly. . ' Q. But roughly; you ought to know. A. Oh, well, I would say—— - Q. Would you say three hundred mesh? A. Oh, no, I don’t think you could get by with stuff that passed two hundred mesh even. Q. You think it would begin to fly at two hundred mesh? A. I think it would begin to fly at some point in between what these are and.two hundred mesh; I don’t know where tent is exactly. ‘It has not been one of our problems. - Q. In other words, you think the words one-sixteenth on - an inch, as applied to that Exhibit No: 20, covers every- thing, say, from wags hundred mesh up to a quarter of an inch? A. Tama cohen black man, and I am afraid that I am disposed to look at these things i in terms of — they work or not. . Q. That is what I want your idea on. ‘A. Well, what is a mathematical equivalent of one-six- teenth of an inch—I don’t know what to say. Q. I am asking you as far as ‘this carbon. black is con- cerned. | A. Is it fair for me to pipes The Court: You can answer a very simple question. You ; testified that those beads were approximately one-sixteenth | 88 > A. It is what is in my mind as describing adequately that : particular property of these beads; as to the claim wording, ¥ don’t profess to know. Q. You are one of the patentees and you swore to claim.. I am asking you what you meant by ase wort spongy or porous. Mr. McLean: Your Honor, the witness never swore to the claim. : ' Mr. Dike: All right ; then we are’ out of court. _ The Court: That may or may not be true; but he is re-\ sponsible for what is init. Answer the question. A. That is my understanding of those worms ° * * [190-191]. moe Q. That is rather ambiguous, oni I wanted to make clear whether you meant the first half or the second ' half of that long answer you previously made; and, from , hearing it read, I understand it to be the second half, but I wanted to be absolutely certain. Am I — Mr. Wie- gand? . , Sa ® A. Yes * *—* ie. , nf Q. Were you a Mr. Veanto the first persons who conceived the idea of making a carbon black in pellet form, or were you the first to make pellets of a particular {fol. 98] character? I just want to get.clear what’ you think . you and Mr. Vénuto were the first to do: A. We knew of no pellets prior to those which we de- veloped ‘which had eoeae. that we have been — ~ about. Q. In other words, your answer is that you were the i first to make pellets of the particular character of those claimed in your patent? a Br ee ee . Q. Did you know of nee of carbou black, not of | the character covered by your invention, previously? In other words, you did not know of any — of carbon. black at the time? A. No. Pardon me; what is a a pellet? You have got to . have that in mind a little bit in making an answer to that question. If you ask me under oath whether I have ever seen any carbon black i in bane ea before, I have got ‘to say yes. cis é : Q. Yes? : A. I would not call them pellets, however. sa ang a eS fe {oemnmnmemnronee ; 89 Q. Well, what do you mean ‘i a pellet? , . A. Well,'a pellet i is the kind of thing that we make. -Q. But that i is going around i in a circle. I want to know what a pellet i is, | A. What is the question? | ee Q. What is a pellet; what do you mean by a pellet? A. I. would call a pellet of carbon black a spheroidal shaped aggregate that had substance and strength to it. . Q. That is the way you. used the word i in your patent? - i A. Yes, : : Q. Now, how much'strength? How mx you test strength? _ A. Well, we have this riugh and ready test: does it survive under gentle rubbing of the fingers. .I would not say.that is an adequate test to predicate rubber behavior on, but it is a rough and ready test. Q. And if it responds to that test, it is a pellet within the meaning of your patent? A. I would be disposed to give it the name of a pellet if it did that, yes.. Q. If it goes to pleces—— A. If it goes to pieces, I don’t think it deserves being | called a pellet, just sort of a shapeless, : structureless globule,. [fol. 99]-or mass * * * [192-194]. * *.* Q How do you think spongy and porous differ from each other, or what do you consider as to that ?° Do you consider them synonyms? ‘ A. I consider that those words spongy or porous—well ‘ spongy is porous, and a porous material is spongy in the —- senge that it is capable of soaking up. things. Q. Then the words are synonymous so far as you used them, to all intents and purposes? _ A. Broadly speaking, I would think, so. ; Q. You don’t make any fine distin ion between the two? A. No. Q. Now, are the pellets ‘made in sesetligni with your patent of uniform structure throughout, or is there a shell? You have studied them, and know? A. Yes, we have done a good deal of poking around inside of our pellets and other pellets, and we find a lot of things in there if we are careful about it, in the way of opening © them up by what we call exfoliation, where the pellet is put into a liquid and gradually allowed to unfold» we 12—71 a is ey ro * know. 90 es see residual traces of a core and shell structure in nearly all of these commercial carbon black beads or pellets. Q. I think you have said that Plaintiff’s Exhibit No. - 20 was of co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0078%3A01. Public record. Not legal advice.