Brief for the Respondent — Universal Oil Products Co. v. Globe Oil & Refining Co

Supreme Court brief1944

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NY

IN THE

‘Supreme. Court of the United States

_ OcToBER sha 1943.

No. 392

UNIVERSAL. OIL PRODUCTS COMPANY,

A CORPORATION, -

Petitioner,

vs.

GLOBE OIL & REFINING COMPANY, a conPoRATIOR,

—

2

BRIEF FOR RESPONDENT.

J. BERNHARD Tues, ,

* THoRLEY von Ho st,

- Smipney NEUMAN;

Rosert W. Poorg, °

Attorneys for Respondent. .

yee nT =

~~

THE CUNTHORS. WARNER PRINT MO COMPANY, 810 WEST seGusen, CHIGAee |

cy

The meaning of the word “vaporization”

Petitioner has not shown any use in the art or otherwise of

’ its alleged special meaning for “vaporization”

Dubbs's specification gives no special definition for * vaporiza

: tion”: it does not use “vaporization” and “liberation” . as

synonyms eae One” AEE RR ee ee I

The Tnibbs patent teaches means for pretenting substantial

i vaporization in the B tubes: it teaches no means for pre-

venting “liberation” of vapor from liquid in these tubes

The word “substantial” in Dubbs’s claims denotes the. Mean-

ing of “vaporization” as formation, and not seperation, of

‘vapors from liquid retanbet :

«

INDEX

¢

~ 3 ss Page

NY WINN cicitsnnssatnnesatesaiinnsinsenshipsihnsninhniahonnnananyasisiatinnsinttaninintueatisentadgienn ~

EE LEE LILES CA OO

The questions presented... cece cceceeeeeeee pee Ms nets etna ences 3

I Ne ID UII ints sas sntsincqnerhisannipnsnnnadarereseespiaenkecoee 6

x The parties... ESS Ee Ey ee I RR A TE DLE ATS 6

v, Petitioner's nae Ce ee ae Re 9

The Dubbs-Wannack-Olsen-Kaufman Episodes... eteaasiotria” | ae

Universal's conduct in hiring Behimer away from the Texas -

Company ‘for $225,000.00... iad atieinabicast bic ineukenSicasoes RBS Ree ae

The nature of the cracking process and the state of the commer; _.

88 BD ES

‘* Temperature and time produce cracking. 0002000000. 18

° The carbon problem in cracking... pepretesinediigietidaiiagh balioncinie)~ a

Commercial processes prior to Dubbs: drum cracking, and coil ‘-

cracking, processes, and hdw they met the carbon problem: 20

Residue agra and ‘its non-return to the systenr was old

rm ene - GON MN a ee 21

Fractionation and refluxing were practiced in commercial

cetuvumed cea L = ee

The two schools of cracking: liquid ‘phase, and vapor and

liquid-vapor phase... 2 ET OE POA EE TS. 5 eaiaitiaecohadacc: aa

The early preference for gasoline produced by liquid -phase

cracking and the prejudice against vapor, phase cravking 2%

The function and use of superatmospherie pressure in crack-

ing processes wis also well understood and practiced long

before Dubbs’s entry ‘into the field. 26

The Dubbs patent: its objects and the nature of its process Zz .

The objects of the Dubbs patent as siated in the specification 27

The Dubbs patent teaches and claims a liquid phase two-step

so - cngy mo ip page ET Sel LE A 28

‘ In the Dubbs patent “clean circniation” is nei the solution of

the carbon problem, but ix a miner step in furtherance of

‘ wo-step cracking process which did solve that problem 35

This record shows conclusively that commercial cracking stills

functioned practically as well without. ax with “clean cir-

Sh RSSEETRERES =< - ~ ZT Pull R EIR, Riemann ey act ae 37

? The claim limitation ‘requifing thet the heating -t@p Te ae-

complished “without substantial vaporization” of the oil in

the coil i leistavecalnabieiiass 3S

a CITATIONS

Cases: ;

Advance Ramley’ Co. c. John Lauson Mfg. Co., 275 Fed. 249. -

Alexander Milburn Co. r. Davis- Bonrnonville Co., 270 'U. 8. 290 age 123, 134

Atlantic Works r-. elie Be Os Be aieicbiitinotion a PO FEE LEA 1

Bracewell r. Passaic Print Works. 107 Fed. 467. coef neon oSaeinenensandeoonecaten

“4 Sr ‘Steel Co. r. Canibria Lron Co. 185 U. 8. 408.0000. nlite

“*hicago Steel Foundry Co. r. Burnside Steel reandry Co., 132 F. (24) “a

S12 tarps ‘ ae

Chicago Wooden 4 Wa are Co. et al. t. “Miller Ladder ¢ Co. 133 Fed. 41. 107

Cimiotti Unhairing Co. ¢. American Fur Refining Co,, 198 U. 8. 390 121

The Cuno Engineering Corporation r. The Automatic Devices Cor-

poration, 314 U. S. 84... i a s sitenicainseniiase ae

Daniels r. Permutit Co. 44 F.Supp. 74.0 chee oeaii “108

Dennis ¢f ale. Pitner ef al, 106 F. (2d) 142 SE SE Ea tes SRS

Detrola Corp. v. Hazeltine Corp. 313 v. 6. ae... i. oe tinicapuce ae

Doble Engineering Co! r. Leeds & Northrupp Co. 134 F. (2d) 78 are m% °

Dorsey r, Pilot Eletttic Co. 32 F. (2d) 211 BSE i sala .... 190

Electro-Dynamie € ov. United States eS & Heat t Corporatio 278

UE, ON ceemridiantocetingencitl AGE

‘Ewans ef wl, r. Hall Frinting ¢ Co, von Fed, bs

Exhibit Supply Co. r. Ace Patents Corp.. nthe “3 ‘8. 126

pig Metal Co. r. Bradford, 214 U. S. 266

_ HL. Freeman Electric Co. r. Weber Electric Co:, $2 Fed. 749 108

Renittie Products - Race oad r. Champlin Refining rated 86 OF.

S50 Ge conn. St Lathe RE nee le Ue 9

General Electrie Co. r. Wahash Appliance Corp. so" v. “wi a 101

Godfrey L, Cabot Inc.’r. J. M. Hnber Corporation, 127 = (24d 805... 108

Hookless Fastener Co. r. G. E. PrenticesMfg. Co. 68.F. (2d) S48 0 107”

“ry Machine Company’ r. National Needle Company, 134 U.S. S88. 8

AT. 8. Rubber © ompany ¢. Essex Rubber Company, 272 U. 8. 420. 95.98

0.1. ‘an Filter Co. r. Jackson, 140 Fed: 340.00... anaes

Keystone Driller Co. r. General Excavator Co, 200 U. 8, 240... 4.83.91

_ Kintner et al.-r. Atlantié Comniunication Co. ef al.. 240 Fed. 716 108

Kokom Fence Machine Co. r. Kitselman, 189 U.S. 800. 2D

Lakewood Engineering Co. r. Stein, 8 F. (24) 713°. 108

Libbey Glass Mfg. Co. r. Albert ge Co. Inc., 68 F. (20) 46900. 105

Toom Company rv. Higgins, 108 U. S: 580 ; ae waa Lbs

Mall Tool Co. r. Quaker pater nem et al. 30 F. Supp, sa vn on

Marconi Wireless Co. r U.S. 320. 8.1 ‘ : Was de a. 123

Mast, Foos & Co. r. Stover pat Co.. 177 U. 8. 485. / nh

McClain ¢. Ortmayer. 141 UL 8.419 i

Merrill r. Yeomans, 94. 8. 568. | ; an

Minerals Separation,. Limited ef al. v. “Butte & ¢ Superior Mining ee |

230 U. &..336...: Soares cee - 93, 1014.

,

| ARAN,

¢ %

. 5 Q2

Vv * *. . F

Minerals Separation, v. Magma Co., 280 80 1. &. 0: age ae

“Morton Salt Co. r. G. &-Snppiger Co., 314 U. ae Se 83, 01

Pendleton v. Gondolf, 96 Ath, 47... epee eeet eects lecseecrn cence OR"

Pickering r. McCullough, 104 U. 8.°310............... Lomcencnencennrereypane EM nce, BOE

Matirend Co. o. Mellon, 106 UB. 10D nn apaaecnnnceeensssssocsssnsesonsenee «+ $B, 104

- Schriber-Schroth Co. rv. Cleveland, Trust, 304.00. 8. 47.0020... 115, 123, 158

- Schriber-Schroth Co. r. Cleveland Trust Co., 311. U. 8. 211200... 84, 96

Skeliy Of Company r. Universal Oil Products soars 31 F. (2d)

ekg Fe eR AREE Rs EP OE RNB oe ti ET a

|. Sillea Products Co. r. Haydite Co. et al. 42 F. (24) 6; SO ECL “146

Sky Writing Corporation of America’ r. Phillips Petreleum Co., 97 F. \

LAAT sR ERICA RS PE SNL NY a 105.

ae ae, Tiere TE Biss citroen! etl Bae PAR ID . 122 ~~

Standard Brands, Ine. r. wadoe Grain Yeast Corp., 308°U. 8. 34.. 101

Standard Oil Company or. Globe Oil & Refining Company, 82 . Poa

NE gpcinnas Mssealnscilerslcaaa netinnomeae hee area Rektidetiinenthide 5

* Standard Oil Company v. United States, ; | e 2 Sean 7, 26 )

The’ ‘Stevens-Davis Co. vr. Mather & Co., 230 Tl. App.’ 46....:.............0:... 92

The Texas Company vr. _ Anderson- Pritchard Refining Corp., 122 F.

EER. cae a el 7, 9, 25, 60. 87, 107, 127, 134. ie 143, 156

32 F. Supp. 347 .. awe ss aes .4147 ° «.

John E. Thropp's Sons Compans r. _ Setberltig, “204 v $! 320... sealaiedas 12T

A a i ee tc grccvcerttline cnmennadiimineseiinae henaini 101

United Carbon Co. r. Binney & Bmith Co., $17 Uv. 8. aE 102

Weber Electric Co. vr. EL u. Freeman Electric Co., 256 0, 8... 84, 98

Western Flectric Co. ¢. Ansonia Co., 114 U. 8, 447. ee ee i .

Westinghouse r. Boyden Power ‘Brake Co.. 170 U! 8: 537 es 123, 155

* White r. Dunbar, RN NR I cee a ocak i og a re iF + 93, 108,

3 . Z i : 1 on

Statutes: cit: Pat . at

‘Revised Statutes, $4888, 35 U. 8. C. A. 883.0000. 110

% “ . > . : : é ;

| Miscellaneous: . — Ly ait 4 .

m Restatement of the Law of Contracts $2272.00... Eee oo sete 108

| Wigmore on Evidence, 34 -Ed., Vol. IX, Sec. 2466, sien . 108

12 ‘Habra: Law Rey. 417, Holmes, *Theory of Lind Interpretation. . 108

* ;

, ; é

| x ‘

| ° ’

*

w

IN THE

Supreme Court of the United States

Ocrosse same, 1943.

No. 392

UNIVERSAL OIL ‘PRODUCTS COMPAN Y,

A CORPORATION,

Petiticuer,

vs.

GLOBE OIL & REFINING COMPANY, a CORPORATION,

Bex . , Respondent.

‘/_. BRIEF FOR RESPONDENT.

“The opinion of the Circuit Court of Appeals for the

Seventh Circuit (Judges Evans, Major and Lindley) in

the instant case is reported: in 137 F. (2d) 3, and is also

found at page 3575, Volume VII of the record herein.

The majority of the Seventh Circuit Court of Appeals did

not pass on the validity of either the Dubbs or E

patents but held that their claims were not infringed. ~The :

Court reached this conclusion as to the Dubbs patent by

. tefusing to adopt petitioner's theory of a special meaning

‘

a

ae

for the word ‘‘vaporization,”’ ariel as to the Ke lof aie nt

by a consideration of the antithetical nature of its dis-

closure when compared with the respondent's process.

Judge Lindley cone urred in the result on the ground that.

both the Dubbs and Ligloif patents were invalid.

The opinion of the District Court for the Northern Dis-

trict of Hlinois, -Kastern Division, is. reported in 40° F.

Supp. 575, and is also found: in Volume V1 of the record

herein at page 3035, District Judge Holly held the Dubbs

patent valid but not infringed, and the Egloff: patent in-

valid.

= <

The Jurisdictional Question.

The jurisdiction of this Court was invoked becatise of an |

apparent conflict between the Third and Seventh Circuits.

If, however, the Third € ireuit Court of Appeals, in-procee “l-

ings now pending’ before it, should affirm. the report ofa

~ ial Master finding that -its deci ‘ision in Root Refining

Company v. Universal Oil Products Company, 78 F. (2d)

991. (hereinafter ealled:the ‘‘Reot”’ case), was obtained. by

bribery of a membey of the court which rendered, the

decision, then, first, the writ of certiorari will appear to

have been improvidently- granted, for there would never

have been in existence a valid conflicting decision; ani,

second, Universal Oil Products Company’s right to invoke

_ equitable relief. with respect to ‘these patents in this, er in

any other court, would be forever forfeited. The question is -

so unprecedented and so serious that we respectfully sub-,

mit that this Court should take no action in this case on

the merits unléss and until the Third Cireuit’ Court of,

Appeals shall clear Universal of the imputation of éorrup-

‘tion and mnelean hands under which it now stands. The

Master’s Report, comprising 95 printed pages, was filed on

‘October 19, 1943. It finds that there was ‘‘such fraud as

tainted and invalidated the judgments?’

rendered on ap-

. 2 ) ;

; : “tie Be ; '

_peal in the Root case, and thatthe fraud consisted in the

fact that Universal Oil Products Company through its -

attorney, one Morgan S. Kaufman, extended monetary

favors to J. Warren Davis, a former judge of the Third

Crreuit Court of Appeals, in return for a favorablg decision

‘jx that case. The Court of Appeals. for the Third: Circuit

‘will hear arguments on the Master’s Report during March, -

1944. Should the Report be affirmed and adopted, Univer:

sal will stand convicted ‘of the most heinous offense of

which a litigant can well.be guilty. The history of this

corruption is net contained in the record now before this

Court. Nevertheless,.it would be a most notorious abuse ;

of the process of the courts if, on any present assumption

of Universal’s innocence, its rights should be passed on,

only to have it appear subsequently, on the record now

before the Third Circuit Court of Appeals in the Root case,

that Universal had long ago forfeited\its standing in. any

court of eqnity with respect to the patents here in sult,

. The Questions Presented.

The record hérein shows that long prior to the Root

decision in the Third Cireuit Court of Appeals and to

Universal’s unclean hands. in connection therewith, and -

while the Dubbs patent was in interference with an appli-

cation (owned by The Texas Company) of one Otto

Behimer, Universal proereded, in callous and eynical dis

regard of law and ethics, to.attempt to piifer its opponent's’

‘private doc minents, and to bribe ‘its employees, and that

finally, when these efforts filed, and while the interference

was still pending, Universal clandestinely hired away the

‘rival inventor, Otte Behimer, hy. contracting to pay him

the sum of $225, 000.00, and that, when once Universal had

Behimer in its. employ, under a_long- term ‘contract, it

vaused him to disparage and repudiate his early work, The

ee

4

District Court held that these admitted facts* did not consti-

tute ‘unclean hands.’*. The Court of Appeals did not pass

on the question. The views of this Court in Keystone

Driller €0. v. General Excavator Co., 290 U.S. 240, indicate

that such conduct is, in itse]f, sufficient to bar a ‘plaintiff -

_from any\gtanding in a court of equity. .

On the merits, the questions presented are ‘the eugteienry

“ones of validity and infringement of both patents.

As to the Dubbs patent the decisions below in favor of

respondent turned on the effect to be given to a limita-

tion in each claim requiritig that the oil ima first step

should be brought to the cracking temperature in a heat- ~

ing coil; ‘‘but without substantial vaporization”? of the

oil therein. ‘In the respondent’s process the oil in the cor- .

responding first step is vaporized to the extent of 85% by

weight and 95% by volume. . The District and Circuit

Courts held that this, obviously, constituted the ‘*substan-

tial vaporization”’ forbidden by the claim limitation. Both

courts also emphasized other vital differences between the

accused process and that of the Dubbs patent. * |

Anticipation of the Dubbs patent is shown by the prior

. disclosure of Otto: Behimer, who, on November 21, 1918.

(three-months before. Dubbs filed on March 19, 1919), filed ©

an application for patent containing every step and feature _

of the Dubbs disclosure. The District Court held that

Behimer did not anticipate because of the supposed in-

operativeness of his means for yeturning the reflux ¢on-

densate from the fractionator to the coil inlet. Other prior |

er ne — — — -

° These events occurred over the period from 1925 to 1927. prior.

_ to the filing of the bill of complaint herein on July 22. 1931 (1,

15). Respondent was. first put on notice of petitioner’s unclean

hands on December 17, 1937 (1; 58-62). and the proofs relating

thereto were adduced in separate hearings before the District

- Court beginning in April, 1938.

5

art patents also fully disclose the so-called ‘‘clean circula-

tion’’ steps which petitioner asserts as the novelty in.

Dubbs. The District Court held adversely to respondent .

on this issue, but in the higher court Judge Lindley, who —

was the only judge passing on the questién,- found Dubbs

to be anticipated. ¥ i

As to the EKgloff patent, the lower court found invalidity

’ because of lack of ‘utility and invention, and the higher

court rested its decision .on noninfringement, although

Judge Lindley agreed with Judge Holly that the patent is

“invalid. Our discussion of this patent will be confined to

_ the Argument (post, pp. 143-159).

ee Smee as ae

STATEMENT OF THE CASE.

THE PARTIES. —

Petitioner is, and always has been, a patent:holding and

licensing company, dealing with patents in the petroleum

and refining industry. Its-interest lies, therefore, in domi-

nating the art by patent licensing arrangements so as to’

insure to itself the largest possible tribute by way of roy-

alties.

Substantially all of petitioner’s capital stock is held or

gontrélled. by Standard Oil of California, the Royal Dutch

Shell group and the Gulf Refining Co. (II,* 560). This steck

purchase was aided and financed, in part, by The Texas

Company, Standard Oil of Indiana, and Standard Oil of

New Jersey (1, 524). ec:

Texas and Standard of Indiana each owns patents relat-

‘ing to the refining industry and each issues licenses under

its respective patents (I, 227;'I1, 560-1).

‘ At the time of the trial,’ petitioner had licensing 1 ‘ightts

under all of the patents owned by these companies (includ-

ing the Behimer patent No. 1,883,850, owned by. The Texas

Company, -and which petitioner now says is invalid), anil

had granted immunity under its patents to each of them and °

to their licensees, receiving in return immunity for itself.

and its licensees under patents held by these other cont-

panies (I, 226- 7, 22 29)...

© Throughout this Brief, Roman‘ nuniovals refer to the volume,

and Arabic numerals to the page, ofthe Record on Appeal, and

. emphasis is ours unless dtherwise noted.-- Plaintiff’s and ‘Defend-

‘ant’s Exhibits are designated respectively “Te.. soa“ Dx.”

Universal oil Products Company is sometimes referred to as

“Universal.” ;

”

«

7

-As,part of a’ general settlement agreement entered into

with-The Texas Company in 1931, two interferences, No.

49,355 involving, so it was claimed, ‘‘clean circulation”’

broadly, and No. 55,610, involving ‘‘clean circulation” with

a hot oil pump, were terminated in such manner that, by

agreement (1, 227-0), Universal got the counts in No. 49,359

(corresponding to the claims of the Dubbs patent in suit)

and The Texas Company got the counts in No. 55,610 (which

became certain of the claims of Behimer patent 1,883,850).

By that time the whole industry had adopted‘the hot oil

puup, so that the prictical result of the settlement was the

division of the‘asserted monopoly of clean: circulation’’

between the two’parties, with the apparent right to ex-

clude the publie therefrom for the period from 1921, when

the Dubbs patent issued, to.1949, when the Behimer patent

' will expire. In consequence, those who have refused to

take licenses have had to defend against twe patents, Dubbs:

1,392,629, owned by Universal, and. Behimer 1,883,850,

owned by The Texas Cémpany, each asserted to cover the

same invention.* These facts do not support petitioner’s -

” self- righteous pose (Br. pp. 29:30) as the champion of the

independent refiner’ against the giants of the industry.

This 1931 settlement, adnritted Univ ersal to the patent pool

_ (comprising among others, The Texas-Company, Standard ,

of Indiana, and Gasoline Préducts Compaty) which had

been under investigation’ in Standard Ow Company v.

United States, 283 U. S. 163. | |

_ Respondent, an Tllinois corporation, is not a patent li-

censing company, but operates an oil refinery at Lemont,

ey te ec ee

' * This is apparent from the’ decision. in The Teras Company v.

Anderson-Prichard Refining Corporation, 32 F. Supp. 347,-affirmed,

122 F. (2d) 829. The Texas Company made the same claims

.of commercial success, widespread acceptance in .the art and pay-

“ment of millions of dollars in royalties..for the Behimer ‘‘clean

eireulation’’ patent that" petitioner makes for the Dubbs senes in

the case at bar.

Pe

rd

8

in the Chicago area. Its capital stock is owned us ‘private

individuals. Respondent is in direct competition with the

major refining companies which own Universal’s capital

stock. Respondent was one of a number of independent

‘refiners, all of whom, soon after each had purchased and

was using a coil cracking unit known as the Winkler-Koeh .

cracking still,” were charged with infringement of numer-

-ous patents held, not only by petitioner, but by The Texas

-. Company, Standard of Indiana, and Gasoline Products

Company. The independent refiners arranged to give finan-

-cial, aid to such of, their number who might have a suit, or

suits, instituted against them. For this purpose, a defense

fund wa formed, to which each of the users of Winkler:

Koch cracking stills contributed, for the purpose of defend.

ing infringement suits and vindicating the ‘cracking stills

used by them from unwarranted claims of patent infringe-

ment. These independents realized full well that their

individual financial resources were not adequate to meet

the overwhelming attack brought against each of them by

‘*the major refiners and patent- -holding companies in this

industry (I, 41, 43, 54 34).

Not less than thirty patent infringement suits, each de-

claring on not less than two patents, and some on as many

as ten patents, were brought against individual users of

~ Winkler-Koch cracking "Stills (1, 44-51; V, 1995-7) in an.

effort by the majox.conipanies to compel them to pay —

_ tribute to these patents, or to cease operating.

The. case at bar is. the second patent infriagment suit ~

* Respondent’s still was designed and built by the Winkler-Koch

Engineering Company of Wichita, Kansas, and was. purchased

from that c mpany by the respondent. Petitioner insinuates (Br.

pp. 40-1) that because Winkler was once a Universal etiployee, he

copied the ‘‘ Dubbs Process’’ in the Winkler-Koch still. However,

this still is so diametrically opposed to the Duhbs plants that it

would be fairer to say that Winkler learned how not to conduct a

eracking process when he was with Universal. . Neither Koch nor

_ Perdew. was ever employed by Universal.

9

tried against the respondent, —the first being Standard

Ou Company v. Globe Ol & Refining Company, 82 F. (2d) -

488. Other suits. which have been tried against independ-

ent refiners because of their use of-Winkler-Koch stills, are

Universal Dil Products Company v. Root Refikng Com-

pany, 78 F. (2d) 991, Gasoline Products Company, Inc. v,

Champlin Refining Company, 86 F. (2d) 552, and The

Texas Company v. Anderson-Prichard Refining Corpora-

tion, 122 F: (2d) 829. In all of these cases, save the now

~ suspect Root case, the decisions of the. Courts, beth below -

and above, held the patents in suit either invalid or "Not.

infringed.

Petitioner formerly contended that the decree on appeal

in the Root. case was res adjudicata against all those who

had contributed money to the defense. of that case. It

dropped the contention when the Third—Cirevit Court of

_ ‘Appeals was asked to order an invesHgation ‘into the ques-

tion of fraud inthe Root case, even going so far as to ask

-, the District Court, in the case at-bar, to give the decision

on appeal in the Root-case no.éffect-‘‘as a precedent or

as ‘having any other effect in the Globe case. favor-

- able fo Universal’? until the frand investigation : should

-be settled. Notwithstanding this fact~and the further

_ fact that the Master’s Report has soe Beane Mebrotaa .

guilty of bribing a judge of the Court of Appeals in the

Root case, Universal has the temerity to rely on that deci-

sion as a precedent in its favor in its Brief before this

Court. - - ; 5 WA .

PETITIONER'S UNCLEAN HANDS WITH RESPECT TO PRIOR |

, INVENTION BY OTTO BEHIMER. © * |

The testimony relating to this issue is found in Volume I

of the record from pages 85 to 460. -Many witnesses were

called and ten. days were consumed in hearing their testi-

. mony. ‘Without exceeding a reesonable limit te the Jength

of this Brief, it is. impossible to set forth this evidence in

was detail.

i #

‘10

_ The Dubbs-Wannack-Olsen-Kaufman Episodes. — On

April 18, 1923, Interference No. 49,355 (V, 2052) was de.

clared by the Patent Office to determine priority ¥ i inven-

tion of all claims of the-Dubbs patent except the very narrow

claim 6. . After filing a preliminary statement of the dates —

’ of the Dubbs invention, Universal obtained acéess to its

opponent’s application file. Here, Universal and Dubbs

Jearned that the application of Holmes, Manley, and Be- .

himer (owned by The Texas Company, and amended later °

_ to be‘the sole application of Behimer) discJosed the same

‘invention .as that of the Dubbs pafent, and that Be-"

himer had an earlier filing date than Dubbs, in conse-.

“quence of which Dubbs was the junior party carrying

" the burden of proof... ;

_, Faced with this situation, Univereal first unsuccessfully

‘moved to amend Dubbs’s preliminary statement to allege

earlier dates, and to shift the burden, of proof (V,. 2066 to _

*- 2084). Failing in this, Universal departed from the usual

course of interference litigation. It did not proceed with

the taking of testimony to carry Dubbs’s date back of Be-

himer’s filing date,* which, ordinarily, would have required

‘The Texas Company to reveal the true facts as-to Be-

himer’s early work. Instead, it put Dubbs in charge of

what it calls an ‘‘ investigation’’ to determine the strength —

- or weakness of the proofs of The Texas Company (I, 395).

Concerning this “investigation,” the évidence shows

th for a period of over two years, Universal's

agents, Howard, Olsen, Wannack and Kaufman,

— ooo —eor ee

* Universal, to the present day, has never adduced testimony

showing any ae{ual work by Dubbs prior to his filing date ef

Mareh 19, 1919.

11

endeavored to obtain access to the orivate files of

The Téxas~ Conipany by 4 bribing, and offering . to

bribe, its employees. The plan (1, 138) which in

two instances was successfully ‘carried out (1, 112,

146-7) was to secretly abstract drawings and. correspond-

ence from the files, photograph them, and return the’

-- originals so as to avoid detection of the theft. During

the course,gf the ‘‘invgstigation,”* attempts were’ made to

get affidavits from The Texas Company’s employees show-

ing that Behimer’s early experiments, on which his-appli-

cations for patent were based, were failures. One such

. affidavit, ‘drawn for the signature of Maurice~Beyt, Be-

himer’s confidential clerk, was, in the words of Beyt .(DX.

202, I, 218) false ‘‘in a gveat many substantial and material

particulars.’”’ The climax of the activities of Universal’s |

‘‘investigators’’ was reached when Otto W annack caused a

“duplicate set.of keys to be made to Behimer’s private filing’

cabinet, and delivered them to one George W hite, a Texas

Company employee, with instructions to ‘‘ ransack the files’’,

(1, 145-6). W hite, howeve er, was honest, and the plot was -

foiled. Universal’s full knowledge of, and. responsibility —

_ for, the acts of its ‘‘investigators’’ is shown by the follow- -

ing facts: It received and did not return photographs of

drawings which had been abstracted from The Texas Com-

pany's files: (I, 112, 424) ; its responsible officer, Carbon P.

‘Dubbs, went to Beaumont, Texas to interview Fexas Com-

pany employees who had been lined up by Wannack (1, 350,

397) and thereafter kept’in close touch w ith the ‘‘investi-

- gators’; Dubbs corresponded with Wannack under 7

the .csumed—names—,-250) of ‘*Egeler’’ (Dubbs) and

“Cal Smith’? (Wannack); Dubbs sent Wannack over

$13,000.C0' (DX. 234, 235, V2261 -2337) in eash (I, 250-7)

through the mails (never by check or ‘money order); and

*Dubbe kept Wahnack at work on the Dhara ace even

&. 12°

after he, Dubbs, had learned of Wannack’s having caused ©

the manufacture of the duplicate set of keys (V, 2359).

Although Dubbs professed to have been shocked when be |

~ learned of this incident (I, 401), he thereafter executed an |

affidavit (DX: 248, I, 435-6) extolling Wannack as ‘*temper-~

ate, reliable, and worthy of confidence’’ and -as having

‘ “always respected the laws and customs of the People of

‘the Pnited Staies * * *,"’ -

Universal's Conduct in Hiring Behimer Away From the

" Texas Company for $225,000.00.—Having failed in its efforts

through ‘‘investigations’’ to get proof of the supposed

failure of Behimer’s early work, Universal determined

upon an éven bolder course. It decided to cripple its ad-

versary by getting the rival inventor, Otto Behimer, into

its own camp. Its decision must have been crystallized by

the following facts: On February 9, 1927, Universal's Mo-

tion to Dissolve, based on the alleged inoperability of

Behimer’s jet pump was denied in Interference 49,355 (V,

2104-2108) ; on May 16, 1927, Standard Oil of Indiana filed

: its answer in an inf ringement suit brought by Universal on

the Dubbs patent here in suit atid ‘alleged Behimer to be

the prior inventor: (DX. 245a, V, 2355); on June. 10th,

the application of Holmes, Manley, and Behimer involved

> in.the interference was changed to the sole application of

Behimer,—Holmes and Maniey filing affidavits to the effect

7 that ‘Behiiner was the sole inventor (V, (2047); on June

30th, The Texas Company filed its anowbe (DX. 243, V,

2355) in an infringement suit on the Dubbs. patent and

pleaded prior invention by Behimer, and on July 12th,

_ Standard Oil of Thidiana counterelaimed (DX. 245b, V,

2355) for an ‘adjudication that Behimer was the: prior

inventor and that the Dubbs patent was void. Moreover,

on July 15th, another interference, No. 55,610 (DX. 179,

P 13 :

V, 2118) was declared by the Patent Office between the

same application by Beliimer and another application

by vy Dette. The issue of this interference “as similar to

‘that in. Interference No. 49,355, but included the requite- -

‘ ment that the reflux be returned to the inlet of the coil

~ under ‘‘forced mechanical pressure” (a pump). !

Universal had learned that Behimer’s father lived at

Harlingen, Texas, and maintained a close relationship

with his son. On July 17, 1927, Murray, Dubbs and Kerr,

agents of Universal, met in Brownsville, Texas, -tg dis-

euss means of contacting Behimer (I, 179- 180). At

that date, Dubbs wired Universal’ s Vice Pi ident, _Dun-

ham, from Brownsville, saying (DX. 225, I, 27

** Atto {Murray} was unsw ul with Texas

party hence have taken matters in nds and hav-

ing them help.’

Through the president of the Harlingen bank (a man

named Thompson) Dubbs and Kerr secured an introduc-

_ tion to Behimer's father and discussed with him the terms

upon which Behimer might be employed by Universal (I, a.

171). As a result of these negotiatiogs, Dubbs, on July

20th, wired Dunham, stating (DX. 2: 271):

ioe § 2 very necessary to pay the twenty-

five. thousand bonus in spot cash. * * * I do not want *

my name to appear * * *’’

The mention in this telegram of the $25,060 bonus is sig-

nificant in that it shows Universal’s readiness to pay a

large sum of money to get Behimer, although Behimer had

not, prior to this time, engaged in any discussion as to

terms of employment. The reply that this telegram evoked |

from Universal's lawyer in Chicago, Mr. Alexander F.

Reichmann, is most significant. Mr. Reichmann wired

Dubbs o' July 22, 1927 (DX. 230, I, 272): |

‘Suggestions outlined your telegrams wholly un-

oe ee

Neat

acceptable and cannot be considered Stop Understand-

ing was that intended negotiations were based on in-

formation. that party desired to make change in his

employment stop. On that basis company’s understand-

“Ing was negotiations: ‘with him would be conductéd

openly and in regular manner Stop Combined judg- '

ment and desire is you drop matter and return at

— earliest. conv enience for confer ence.’

In explaining the reason fgr M r, Reichmann’s telegram

of protest, Mr. penne, then Vice- President of iar ita

testified (1, 447):

“lt was the question of paying a bonus i in advance.

A bonus is not paid in advance.’

Mr. Reichmann’s protest was unavailing, however, for

** after a conference of Universal’s officials in Chicago, Dubbs

returned to Harlingen with authority to proceed. |

Karly in August, The Texas Company obtained Be-

himer’s signature to his preliminary statement in Interfer-

ence No. 55,610 (V, 2126). The very next day, August 13th,

Behimer was called to Harlingen by a telephone call:

froma friend, one McClosky (now dead). Thompson, the

bank president stated positively (I, 172-3) that MecClosky

was approached to ‘aid i in the plan of getting ‘Behimer to

Harlingen and that McClosky ‘based his summons solely

upon the ground of Behimer’s father’s illness. When once

; in Harlingen, Behimer, of course, met botli Kerr and |

. Dubbs, and after a week's discussion executed an employ-

~ ment contract with Universal. This contract (DX. 531, I,

972-4) was for a period of ten years and prov ided for a

-basie salary -of $15,000.60 a year to Behimer, plus ‘a guar-

_ anteed minimum bonus of $5,000.00 a year for the first five

years, and $10,000.00 a year for the next five years, or a

‘ total of $225,000.00. The contract also provided for an

° Behimer’ s then salary from The Texas Company’ was s $10, 000. 00

a year (¥, 1997). °

15

- advance to Behimer of $25,000.00 as.a loan against his first

five years’ bonus (1, 274). Thus, although Mr. reeoenea

had protested against*a bonus of $25,000.00 in ‘‘spot cash,’

Universal paid the bonus cloaked as o/ loan repayable over

a period. of five years. Of course, the latter arrangement

_ Wad the advantage of helping. to insure Behimer *s alle- —

‘giance for at least that period of time.

Behimer did not return to Port Arthur, but, at Dubbs’ $

| suggestion, ‘notified The Texas Company by mail that hie

was resigning, - cand left for Ca lifornia, instructing his

parents to tell no one where. he Was (I, 296-7). In Los

‘Angeles, Behimer stayed for approximately three weeks

with Dubbs, Olsen, Kerr, Hall, and Murray (1, 298) ,—all

‘agents’ or attorneys of Universal. Kerr registered’ for the

~ entire group -under an assumed name as ‘‘MeWade and

. party’’ (I, -181). , Murray téstified that on the train to

California, Dubbs told: him that ‘now certainly they could

get at the facts’’ (1,180). Murray. also’ testifie d that while

in California he- looked at various -records with Behimer

and. Dubbs (1, 181)... yen

* During ‘this period The Texas. Conpany. was searching .

in vain for Behimer (L, 208-9).

- In the middle_ofSeptember, Behimer a ube re-

Ra turned to Chicago and set-up quarters in Dubbs’s home

in Wilmette, Here for three weeks: they collaborated (1,

314, 406) in preparing a 95-page affidavit regarding

ce Behimer’ s. early work, together with numerous drawings

of the apparatus dev eloped by him. On September 28th,

“ they were joined by Bevt, Behimer’ s confidential assistant

at The Texas Company, who, at that date, executed a ten- -

year employment contract with Universal (DX. 237, V,

| 9341), Beyt testified that he bronght with-him a batch of

16

°

papers,* including copies, which he. had made, of the.

Behimer reecrds (1, 357-8). ° ,

- Behimer’ s affidavit for Univ reveal was signed on October

5, 1927 (1, 335).. Behimer testified (1, 318) that. this affi-

davit ‘‘only recites the more adverse side of. it, [his early —

work], and the favorable part is just not stressed. in Nae

That this affidavit is inconsistent with the actual facts and

with the facts that Behimer,.would have testified to had he

remained in The Texas Company’s employ, appears from -

a comparison of the Univorsal affidavit (I, 315-7, 319,

321-2, 341-3, 344-5, 346-7) and the statement which Behimer

had dictated for The Texas Company wars same summer

(I, 312-4, 320, 345-6). 5 :

The pernicious effect of Behimer’s change of. allegiance

and of the affidavit which he signed for his new employer,

is illustrated by events that followed. The Texas Com-

pany had found it necessary to file an amended preliminery

statement in Interference No. 55,610, between Dubbs and _

Behimer, and, accordingly; on October 6, 1927, presented

such an amended statement (DX. 197, ‘I, 206) te Behimer |

and requested his signature. Be shimer testified (I, 300) that

he. Submitted this document to Universal's attorneys for’

their approval. He did not sign it, and after holding it until .

- March 27, 1928, Behimer definitely declined to sign, stating

in a letter to The Texas Company (DX. 196, I, 203):

co * -° T would not now execute a preliminary state-

ment alleging the date of reduction of the invention to

practice as it appears in both the original and amended

‘statements, since’I am now of the opinion that the

operation on which this date was based did riot consti-

tute a legal reduction of the int ‘ention to practice. val

_* The lower court declined to require the production of there

papers. on the ground that they were immaterial (1, 259 to. 26°.

367 to 375).

17 }

Behimer. testified that this letter was composed by Uni-

_ versal’s counsel after he had been told by them that his

early work was not a reduction to practice (If 301, 304).

He admitted that he signed the letter, although he had per-

-sonully ‘‘always been convinced’’ that the jet putnp worked

in his original experiment (1, 306).

In the meantime, on November 16, 1927, Behimer had

received his advance of $25,000.00 from Universal and had

signed notes for its repayment. The substance of the docu-

ments then executed (DXs. 232, 233, I, 274-280) was that —

if Behimer should remain in Universal’s employ for the

next five vears, or die, or become incapacitated, the notes

would be cancelled, but if he severed his connection with

the company, his right to future bonuses ended, and he be-

came personally-liable for the unpaid notes. By such un-

scrupulous means Universal insured ee allegiance.

; In 1936, Hiram J. Halle, Universal’s- president, in"

_advertently disclosed’ his real motive in hiring Behimer.

He volunteered the remark, while in conference with one

Ringolsky, a Kansas City attorney, and his. client, one

‘Danciger, that he, Halie, ‘‘stote ‘Behimer > from. Dear-

born (patent counsel for Texas) and: that ‘if Dearborn

thinks that he will ever take his deposition or cross-exam- ‘

- ine him, he is mistaken”’ (1, 87, 101)... When Ringolsky’ s

testimony as to stealing Behimer was read to Halle, -the

latter stated that with certain inimaterial exceptions,

Ringolsky ‘s testimony was ‘‘coriect’’ (1, 382).

The accuracy of Halle’s characterization of the hiring of

_ Behimer is reflected by an occurrence in Mareh, 1937. “At

~ this time, Dearborn approached Behimer for the purpose

of eliciting his cooperation in pending litigation involving

the Behimer patent in the Tenth Circuit. Behimer told®,

Dearborn that his, Behimer’ s, retainer to Universal would

.. ima court of equity.

18

‘not expire until January, 1938, and: that in the ‘meantitne

Behimer would prefer not to discuss his early work: with

The Texas Company, because, as he said,“‘I would prefer

not to be on both sides of the case’’ (1, 308).

From August™3, 1927, until December, 1937, The Texas

Company, the assignee of the entire right, title, and inter-

~~est to the Behimer inventions, _held no conference with

the inventor (I, 308) and by the time that Behimer again

became available, when: he felt that ‘on the expiration of

his Universal contract he would no longer be on both sides —

of the fence, the Dubbs patent had less than one year to run.

Petitioner’s unclean hands with respect to the equity here

asserted has been such that iti is not entitled to any relief

\

\

THE NATURE OF THE CRACKING PROCESS AND THE STATE OF. THE

' COMMERCIAL ART PRIOR TO DUBBS. |

‘Temperature and Time Produce Cracking.—Cracking

‘is a chemical reaction wherein heavier hydrocarbons are

decomposed or'.cracked inte lighter material upon. being

subjected to a sufficient temperature for a sufficient period

of time. Both factors are equally necessary.’ Of the rela-

tion of temperature to time, H. V. Smith,* called as a wit-

ness hy respondent; testified as.follows (III, 1060-1061) :

“*A. Cracking being a chemiga! reaction itis not

-brought about by the application of temperature alone.

Temperature nest be applied for a period of time

in order. to bring’ about substantial cracking. We

might make an analogy to this in the operation of

_ baking a loaf of bread. -We do ‘not create a loaf of

* At the time he testified. Mr. Sniith was Chief henbaal ary

neer for the Barber Asphalt Corporation. He had been actively

engaged in the buisiness of refining oil sinée -1924, both as a prac:

tical worker and as a designer and superintendent of cracking’

equipment (IIT, 1056-7).

z

bread out of raised dough simply by heating the. dough —

to a baking temperature, we have to put the dough -

in the oven and heat it up and then keep it there for

a period of“time in order to make a finished loaf of

bread. * * * In the same way, crackitig is aecom-

plished \ applying a cracking temperature to tie oil

for a period of time and, of course, the longer we:

apply any particular cracking temperature to a par-

ticular oil the more cracking we get. * * * The

higher or greater the temperature used the faster the

rate at which cracking progresses. * * * These facts

have led to what has become known as the doubling

rule whiclr states that the rate of cracking doubles for

_ an increase in “eset of ‘sSpproximately 20° de-

grees Fahrenheit.’’

The cracking aaa as well known .long prior to.

Dubbs’s entry into the field. In thee earliest” cracking.

processes, kerosene was the desired product because of its

_ extensive ‘commercial use before the advent of electric

_dighting. Neither patent in suit is limited to cracking for .

gasoline. Neither even mentions the word ‘‘gasoline’’.

The claims of both read equally on a process for cracking |.

to make kerosene or gasoline. _Hence, prior art directed to

~-eracking to make kerosene is just. as pertinent as pr ior art

directed to cracking for gasoline.

The Carbon Problem in Cracking.—The principal prob-

lem in commercial oil cracking results from the for mation

of carbon or coke. - Carbon forms when the heavy carbon.

aceous constituents of -the. oil are broken down by eracking

and are no longer soluble in the main “ody of oil. In this

condition they stick to whatever surface Phey contact, and

on heated surfaces they build up a solid lay er which acts

as an insulator against passage of heat into. the oil. with

consequent overheating of the metal. Many disastrous ex-

’ plosions and fires have resulted from coke deposition on

heated shells and tubes.

a ee ae

These heavy carbonaceous constituents are - black in

color and nonvolatile. Hence, their presence in an oil may *

-be recognized by the dark or black color, as inmost crude

oils and all cracked residues. “They may be removed from

an oil most: readily -by distillation, whereby the distillate,

as gas oil‘or kerosene, is reeovered.as an overhead product,

free fram_these. -pernicions- materials” -which remain as

residue. Oils which contain these heavy constituents are

classed broadly as dirty stocks, and those from which they -

Mav e been. remov ed as clean stocks. * ,

Very little cracking of a dirty stock may take place he.

‘ fore carbon begins to form and deposit (Smith, ITI, 1064).

W hen a clean stock is cracked, lighter produets predomi-

nate, but heavier products also are formed. These heavier

products “in turn erack and form both lighter and heavier

. products, and. this, continued long enough, will eventually.

produce’ heavy carbonaceous constituents whose further

cracking forms éarbon. Thus a clean stock may be ‘cracked

_ so as to-produce a substantial vield’ of gasoline without

producing any, appreciable. amount. of ‘carbon, by stopping

the cracking at the. proper stage of degradation’ of the

he ‘avier products’ (Smith, ITT, 1064). Respondent? & process

‘avoids carbon formation in this way. : \ ;

/ The Dubbs patent is directed to a different solution ‘of

the carbon problem. Almost all cracking processes, both

prior and subsequent, to Dubbs, dealt, and deal, in some

way or another, with this problem.

. Commercial Processes Prior to Dubbs: — distin

and Coil Cracking, Processes, and How They Met the Carbon .

Problem.—In the once widely-used Burton gasoline making

process of the, Standard of Indiana, ‘a clean gas.oil charge.

was heated and ¢racked in a large drum set directly over a

furnace and the eyele was limited to forty-eight hours, half

of which was productive. ‘Each run was terminated when

approximately. 50% of the charge had been converted into

pressure distillate. Experience showed that if a higher

~ yield was attempted, the oil under treatment began to de-

. posit carbon in such quantities as to make the ‘operation

highly dangerous _ (I, ee process was a:

~ batch: operation. :

— Coil cracking processes were likewi ise limited mn the use

of a clean stock and a restricted amount of cracking, but

weré continuous rather than batch: operations. In The ~

——Texas Company’s gasoline making process, carried on at

. Bayonne, New Jersey, in 1916-17, the clean kerosene stock

was continuously pumped through the coil, wherein it was

heated ‘and cracked and largely vaporized, and was then

passed to a vapor separator from the bottom of which the

residue was withdrawn and not returned to the system,

and from the ‘top of which vapors were taken to.a frac-

tional condenser -arid thence to.a final condenser. The

operation was of the ‘‘once- through”? type; reflux con-

-densate was not recycled to the coil inlet during the run

(II, 846-56). This process was Successful and the result-

ing product was sold commercially. The too high cost. of

operation did not make the process inoperable.

These. prior art commercial cracking, processes had

this in common,—they cracked. the oil in the same part of

‘the apparatus in-which all the cracking: heat. was. imparted;

and, therefore, they were restricted to the use of a clean

charging stock, and the cracking operation had to be

stopped short of the point of dangerous carbon formation.

Residue Withdrawal and Its Non-Return to the System

_. Was Old Long Prior to Dubbs.—In both batch drum erack-

ing and continuous coil cracking operations to make gaso-

line, it was well-understood in the art, long prior to Dubbs,

that the dirty residue formed in the “cracking operation

could not be used as a charging stock:* “Tn the Burton .

process, the residue remaining in the drum after the still

was shut down was removed and distilled, ‘and only the

-clean distillate stock was used as a chargé to subsequent ”

operations (I, 494-5). : ‘

»- In the coil cracking processes, as at Bay onne, New Jer-

sey, the residue was withdrawn and not returned to the- coil

inlet, either duriyg the run or in subsequent runs (II, 849).

The residue was distilled and onty the clean distillate was

. used in subsequent operations as a charging stock (Ii,

849-50);

Residue withdrawal and its non-return to the system

', Was not new when Dubbs entered the field. Dubbs could

not, and did net, ebtain a patent on the step of not re:

* eycling the. residue as the ‘‘vitalizing feature’? (Um. Br.

~ pp. 19-22) of its claims. - This step was fully taught to the

grt at least as early as the British Benton patent No.

‘1922 of 1887 (VII, 3527). It is also disclosed in prior art

patents te) Pielsticker, Hall, Ellis, Alexander and Green-

street, hereinafter discussed (post, pp. 61- 75), and in Man-

ley No. 1,428,338 VIL, 3382, pat. p. 1, lines 40-1) the applica-

tion for whick was filed on October. 10, 1917.

In* disregard’ of this prior art, the Royal Duteh Shell

and ‘the Standard Oil'C ompany of California reeycled resi-

_ due in their operations. This fact i is, undoubtedly, accounted

- ©The Trumble process recirculated part of the residue, but it was

ot used commercially as a gasoline making process. It was used

‘as a viscosity breaker, i. ¢.,'a process whereby a light crack is

given the heavy crude oil so as to thin it out and. make it available

as fuel oil (J, 532-4). Notwithstanding. this now admitted. fact, -

Universal persuaded the Third Cireuit ‘Court of Appeals in Skelly '

Ou Company v. Universal Qi Products Company (31 F. (2d) 427),

that Trumble was a epee: making process with seventeen day

runs on stream. ; ; 7)

_ 4o% by, the fact. that none of ‘the big oll yefining companies:

paid any attention to what went on.in the Patent Office. The ~~

Texas Company searched three years for ‘a hot oil pump

when the very one which it finally adopted i in 1921 had been -

disclosed in the Thompson patent which issued in 1917. The

Standard Oil Company of California did not know of the

- Dubbs patent in suit until 1924—three years after it had

issued—and even then the discovery was accidental.

Hanna, Vice President of that company, discovered the

existence of the Dubbs patent in suit only when making a

validity search of the prior art as to another later issued,

Dubbs patent in which he was interested (see Universal’s

Brief, pp. 34-6). While ‘‘cleanliness is next to godliness’?

may have been a personal revelation to Hanna in 1924, it

was an old story in both the paterit and commercial -

long prior to 1919, and by 1924 ‘‘clean cireulatien’® com- |

_ mercial operations had been extensively, practiced by The

‘Texas Company. at. Port Arthur during the three eas

years.

Daniel Pyzel, in charge of iS of cracking proc-

esses for thé Royal Dutch Shell, professed (I, 510) to have

been greatly astonished and impressed with the residue

withdrawal and non- return feature of the Dubbs operation.

at Independence. If genuine, this surprise was due to the

fact that he had not investigated the patent. art and knew °

nothing of The Texas Company’ s commercial operations at

Bayonne. °

Fractionation and Refuxing Were Practiced in “Commer-

cial Processes Prior to Dubbs.—Fractionation, or dephleg-

mation, of the vapors - resulting from the cracking

reaction, and: refluxing the insufficiently cracked por-

tion of the vapors, were commonly practiced in

< 5 e* : i

% ’ °

the commercial field, and were fully disclosed in the

- patent cracking art lomg before Dubbs filed his application.

Fractionation is a necessary part of any cracking operation

because, due to Dalton’s law of ‘‘partial pressure’? (Cady,

Il, 797-804, Smith, II], 1114), ‘the. vapors of the desired

product (kerosene or gasoline, as the casé may be) always

leave the still mixed with vapors of heavier material which

“Inust be separated out by. cooling and, condensing ‘them

(Smith, HI, 1114). This insufficiently treated condensate

__‘is referred-to as +* reflux, ’* **backtrap,’’ or ‘‘runback.’’

. In-drum cracking operations such as Burton’s, the re-

thax, ‘was continuously condensed in an overhead aerial

system, and returned by. gravity, and while still hot, to

the crac king drum (I, 487); in the commercial continuous

coil ‘cracking processes, such as The. Texas Company’s -

operation at Bayonne, it was separated out in a dephleg-

mator and distilled, and the distillate was returned as a

charge to the still in a later ieee (deFlorez, II, 849-

“S50.

and Liquid-Vapor.Phase.—Before Dubbs entered the field

- there were two schools of eracking (LI, 856), namely, (1).

. the liquid phase, where, as in the Burton process, a body of

liquid oil was cracked and distilled, generally, in a tank or

The Two Schools of Cracking’ Liquid Phase} and Vapor

drum where it was maintained for a substantial time, and |

at vrelativ ely low temperatures, and under superatmos-

pherie pressure, and (2) the vapor phase, and liquid-vapor

phase, where the oil was’ heated to a high temperature,

vaporized—either completely or to a substantial extent—

and craéked in a tube or coil with a relatively short time

factor.

-OiT will erack if subjected, to the required temperature

. und time whether it be in vapor or liquid form, or mixed -

pti,

eS

vapor cane liquid, but there were important r reasons in the.

early days why liquid phase cracking was preferred.

The Early Preference for Gasoline Produced by Liquid

Phase Cracking and the Prejudice Against Vapor Phase

Cracking.—The first gasoline commercially used was the

natural gasoline obtained from crude pe- ‘roleum by simple

change. This natural gasoline was water-white, in color,

~ easy to treat, and low in ‘‘unsaturates”’ and was then the

. premium product. When increased ‘demand for gasoline

brought cracking ‘processes into commercial use, the. at- ;

tempt was to make a product: which most closely re--

sembled this ‘‘sweet’’ natural gasoline., Cracking in the |

a long time factor, made such a product,* whereas the high

temperature, short time factor, vapor phase coil cracking

processes made a product which was off color (strew col-

ored), foul —_— and difficult to treat (i, 856 ; TH,

* 1229).

The preference of the art in the early days for liquid

phase processes, and the prejudice against vapor pliase

processes, is clearly reflected in the contemporary litera-

ture as shown ‘by ‘two artieles by Luis de ‘Florez, in Re-

finer and Natural Gasoline Manufacturer; 1923 (DX. 750,

I], 857-9), and National Petroleum News,’ 1927 (DX.-751,

II, 859-864). This preférence is. commented on by the

Tenth Circuit Court of Appeals in Tig Texas Company v. -

- Anderson- Prichard Refining Corporat Py 122 F. (2d) 829.

tat p. 834). ane :

* The specification of Burton’s patent No. 1,049, 667 reflects his -

desire to produce a product Ofsthe paraffin and not of. the ethylene

_Series, thus to avoid the ‘‘ offensive odor” of the latter. (See

Rejnan, I], 1191.)- ° ote ;

distillation, i. ¢., boiling, without any substartie! molecular -

‘liquid phase, at comparatiyv ely low temperatures and with -

liquid at a cracking temperature for a sufficient time for

ecient period of time to be cracked, and vaporization of the

— 26

_ The Function and Use of Superatmospheric Pressure in

, Cracking Processes Was Also Well Understood and Prac-

‘tied Long Before Dubbs's Entry Into the Field—In liquid

phase drum cracking processes, suchi as Burton's, pressure*

was used to raise the boiling point of the oil and to keep it

‘the molecilar decomposition, or cracking, of the liquid -

body of oil-to take place (ILI, 1061). When cracking oil

“in a drum or tank, provided (as it must be) with a vapor

outlet at the top, unless the boiling point of the oil is raised.

by maintaining-superatmospheric pressure on the oil in

the drum, too much of the oil would vaporize and leave

through the outlet as vapor before it would reach a crack-

ing temperature. By maintaining pressure in the drum,

the boiling point of the oil is raised above the cracking -

' temperature, the oil ix kept in the liquid state for a suffi-

oil will not’ oceur until the chemical decomposition, or

cracking, has ‘resulted in the formation of lighter products,

such as gasoline or kerosene, which will vaporize at the

drum temperature in spite of the drum pressure.

This is well expressed in a Bulletin put out by petitionet

in 1936 (DX. 819, VI, 2993), wherein petitioner stated that.

cracking (obviously meaning in its own process)

.- “© © © is distillation under. high pressure. In the

cracking. process the oil which has been stripped of

all its gasoline is heated above its boiling point, but

—_*

a

* The function. of pressure in cracking processes is nowhere ex.

plained i in petitioner's Brief. The statement in this Court's opinion

in Standard Ow Co. v. United Statés, 283 U. 8. 163, quoted on

page 9 of petit ioner's Brief, to the effect that “heat and pressure.

produce cracking, was true of the pressure distillation systems then

under consideration by this Court; it is not true of a coil “eracking

operation such as respondent’ ®.

ie nes 27

:

the pressure chokes back boiling or vaporization until

a chemical riot completely changes its nature. The big

molecules which make up the oil are. shattered— _

‘eracked’ into small ones which make up anti-knock *

‘* gasoline.’’

In coil cracking vapor phase and liquid-vapor phase op-

erations, the cracking operation itself is in no way depend-

ent upon pressure, because the vapors cannot escape from

a coil but must travel throughout its length, and being

_ thus subjected to the same high temperature for the short

time necessary to. pass through the coil, will be cracked

together with the liquid. In such prévesses, pressure is

used merely to economize on, the length of coil by com-

- pressing the vapors into a smaller space (Smith, III,

The Third Cireuit District Court + said, in the Reot case

(6 F. Supp. 763, at p. 764) that cracking ix the decomposi-

tion of petroleum “by heat and pressure."’ This is ad-

mittedly wrong, for oil will crack regardless of pressure.

The essential Sectors are heat and time. ,

Tuk DUBDS PATEXT; ITs OBJECTS AkD THE NATURE OF ITs

. ~ PROCESS.

‘The Objects of the Dubbs Patent as Stated in the Speci-

_ fication —Dubbs summarizes the mature of bis process by

stating the ‘‘salient objects’ of his invention. Among

these he enumerates (pat. p. 1, lines 13-42, VII, 3089) feed-

ing the oil continuously through the ‘‘cracking zone’’ and

continneusly removing ‘‘carbon containing residue’’ from

‘“*the cracking zone.’’ These objects-define Dubbs's *‘crack-

ing zone”’ as the B tubes together with the C tubes.. An-

other object is to provide a process where the reflux con-

densate is returned to the cracking zone ‘‘for farther treat-

|

| ;

a > : .

s*

28

ment substantially free from carbon,”’ this being what peti-

tioner calls the ‘‘clean circulation”’ step.

- The object which specifies Dubbs's solution of the carbon

problem is as follows; ; ;

- «fe © © to provide a procéss which permits of the

apparatus being operated for an extended period with-

out the necessity of cleaning and in which that part

of the system. containing the precipitated carbon, is

free from subjection to any excessive heat; * * °”’

The part of the system which is ‘‘free from subjection

to any. excessive heat’’ is, of course, the insulated or. lightly,

fired C tubes i in which carbon, formed as the result of crack- ©

ing therein is ‘* precipitated,’ ’* without-harm or danger.

The Dubbs Patent Teaches and Claims a Liquid Phase

Two- Step Cracking Process.—Opposite this page we repro-

duce Defendant’s Exhibit 773 (VI, 2805), which is a sim-

»plified isometric drawing of the: Dubbs patent.* The, Dubbs

patent, in common. with many other patents dealing with.

the processes of cracking petroleum, is directed to a so-

lution of the carbon problem. ‘The specification teaches °

an operation where’ the oil is raised to a cracking tem-

perature in the B tubes, where cracking is initiated,

and is then transferred to the larger C tubes, which are

either insulated or lightly fired for the purpose of main-

taining the temperature of the oil and allowing it sufficient

time in which to crack (Smith, III, 1073-5).

* Petitioner's drawing (Plate III, Supplement) omits the supply ;

tank I described, in Dubbs’s specification and disclosed in his draw-

“ing. This supply tank. is provided -as an alternate. method for

aa! returning, reflux to the B-tubes. ‘In this tank, the reflux’ is mixed

with the fresh charge and the mixture is pumped to the inlet of

- these tubes. Petitioner’s drawing also omits: the furnace whict:

- Dubbs shows under the C tubes, whereby, in, accordance witii

Dubbs’s specification (pat. p.-1, line 99, VIT,- 3089), these tubes

may be mildiy heated.

BS PATENT NO. 1,392,629 - SERIAL NO. 283,675

led MARCH 19, 1919 - Issued OCTOBER 4, 1921

_ The fact that the cracking operation is substantially con-

fined to the insulated or lightly fired C tubes, through which

the cracking heat is not imparted to the oil, makes it pos-

sible in the process to deposit carbon in these tubes without — |

danger. This was Dubbs’s departure from the prior-art -

practice of heating and crackitig in the same part of. the—

apparatus. In commercial operations of ‘‘The Dubbs

Process,’’ a large, unheated reaction chamber (40 feet high ©

_ and 10 feet in diameter), or a plurality of such chambers,

‘ was substituted for the C: tubes, and the end of the run was

reached when these” chambers became filled with coke or

carbon (1I, 609- 10).

"Reapondent? s witness, Howard V. Smith, aptly com-

pared this method of imparting: cracking ‘heat in one

step‘and maintaining it to cause eracking i in a second: step,

to the ‘‘fireless cooker’’ principle (III, 1074). The mild

~ heat supplied to Dubbs’s C tubes is the equivaleitt of the hot

plates used to maintain the temperature in a ‘‘fireless

_ cooker.’’ rive

While ‘the specification of the Dubbs patent does not

State in so many words where cracking ‘occurs in his sys-

tem, nevertheless to. a man skilled in the art as of the

time that Dubbs entered the field, who was fully familiar,

as we have. shown, with the effect of temperature and time

in cracking, with the use and effect, of superafmospheric

* pressure in oil cracking processes, and with the causes of

vaporization therein, the teaching is explicit enough -

(Smith, ITT, 1080-4).

‘The B and (tubes are in open communication, and are,

therefore, maintained under the same pressure which is

stated to be (pat. p. 2, lines 55-6, VII, 30) ‘‘approximately

100 Ibs. to the square inch.’’ ‘In the B tubes, the cracking ..

| ee a 30

heat is imparted: The patent says ( p. i, line 8, Vil, _

that

“5. a paEre the time they [the piscine

are passing through-said tubes {B tubes], they are

subjected to sufficient heat to cause the desired amount

of cracking ”° °”

and that (p. 1,/ine 108) :

“oe a The per cent. of vapors ‘generated from —

the oil asit passes through the tubes C will depend on

‘ the amount of heat acquired by said oil while passing

_ through the 4” coils.’’. |

The District Court carefully pointed out (VI, 3048) that

the first- quoted passage ‘‘does not say the desired amount

-of cracking. occurs in the B: tubes’ and concluded that

‘from the whole patent it is clear that what he [Dubbs] is

attempting is to impart to the oil in the B tubes the heat

-. that will cause it to crack in the-C tubes.”’

In the second passage above quoted, ‘‘vapors gener-

ated from the oil’’ in the large, ten-inch C tubes result

entirély from the cracking operation carried on therein

(Smith, ITl, 1080), The ‘per , cent”’ referred to in the

clause ‘*The per cent. of vapors generated from the oil as it :

passes through the tubes C’” ete., is plainly the ratio of the-

vapors generated in the C tubes to the unv aporized oil in

those tubes. . :

The reason thal vepedinniion in the C tubes noni wholly

from cracking is as follows: Vaporization of a liquid’ ©

results Zrom (1) an increase in temperature, (2) a decrease

in pressure, or (3 ya change i in the molecular composition

of the liquid whereby lighter materials are formed or

added,—and, of -course, ‘from a combination of any, or all,

of these three factors (IIT, 1681). In the Dubbs patent (1)

* Solids also vaporize (¢. g., camphor), but with this phenome-

non, called ‘‘sublimation,”’ the-oil cracking at? is ‘not concerned. ~

31

the oil is at ‘ts highest temperature. at the exit from the B

- tubes and upon its entrance into the C tubes; (2) there. is no

_reduction of pressure in the C tubes over that which obtains

- in.the B tubes; (3) no heat for the purpose of raising

the témperature of the oi! in the C tubes is imparted

to these tubes. Therefore, eliminating decrease in pres-

sure or increase in temperature as thie cause of. the

| _“vaporization’’ or ‘‘vapors generated”’ in the C tubes, it

necessarily follows that this vaporization must be due en-

tirely to the only remaining possible cause, viz., the forma-

_ tion, as the result of cracking, of lower boiling materials,

which, at. the temperature maintained in thé C tubes, will

vaporize in spite of the pressure obtaining therein (III,

1081), To the man skilled in the arf, this is a clear teach-_

ing of cracking in the C tubes (Smith IIT, 1083-4).

All conditions necessary to cracking are maintained in

_ the C tubes. They are larger in diameter than the B tubes

and, therefore, although only half fall, hold more oil. -

' Dubbs’s patent drawing indicates that the.C tubes have six. -

times the volumetric capacity of the B tubes which in itself

teaches that the oil is to remain in the C tubes ‘a -much_

longer time than in the B tubes. If the C tubes were in-

iended, as.petitioner suggests (Br. pp. 79-80), merely to

effect *‘separation”’ of liquid from vapor, one tube only,

. instead of the. four shown. in the patent, would, on peti-

tioner’ s expert’s a adpiissicn (II, 750-1), be sufficient for this

purpose. In the latger ( tubes the velocity of the stream

is necessarily slower than in the smaller B tubes, thereby .

permitting the oil to remain in the C tubes for a sufficient

time to be cracked (ITT, 1092). As the oil, is at a. cracking

temperature from the time it enters the C tubes until the

time it leaves, cracking occurs throughout their length

1 ¢Sinith; THE, 1092-3: Brewn,-II,.750- 4)... On the other hand,

ie ee

Yen,

~

in the B tubes the oil reaches its highest temperature oniy

at their outlet.

. The patent specification i is wholly silent as to the physical

state of the oil in the B tnbes. Whether or not vapors are

present as “foam” or.in any other form is not stated, but

‘the contrary is implied, for‘the stream in those ‘tubes

is referred to as oil, and oil is normally a liquid. Uni-

versal’s description (Br. p. 18 and elsewhere) of ‘vapors

generated but not separated in the B' tubes is not taken

from the patent.

The patent does not montion what per cent of the erack-

ing may occur in the B tubes, but the limitation in the

claims, requiring that the oil in these tubes be raised to a

cracking femperature but without ‘‘substantial vaporiza-

tion,’? puts a limit upon the cracking which may occur

therein, even though ‘the pressure should be considerably .

increased above the ‘‘approximately 100 Ibs. to the square

— inch”’ given jn the specification. Of the relative proportion

' 6f cracking in the B and C tubes, and of the necessity for

cracking in the ( tubes to cause vaporization, H. V. Smith

testified as follows (III, 1091-2) :

‘‘A. Taking the pressure given in the illustrative

run of approximately 100 pounds, very little of the

__ eracking could take place in the B tubes without bring-

ing about substantial vaporization, so that under those —

conditions substantially all of the cracking would have

to take place in the C tubes.

‘*By the use of higher pressure, however, one could

increase the proportion of cracking which would take |

- place in the B tubes. - But in any event a very sub- -

stantial proportion of the cracking must take place i in

the C tubes because this cycle of vaporization; reflux —

condensation, and reflux return, which is an important

part of this patent, requires that vapors be formed,

that is that we must have vaporization in order to

ey .

33

make the vapors for. completing the cycle, and since

that vaporization is reserved to the C:tubes we must

have enough cracking in the C tubes to accomplish -the

‘vaporization for carrying on the process. Therefore,

in any event we must bave a large part of the cracking

taking place in the C tubes.

- “You could not within the Dubbs patent specifica-

tion, as I have interpreted it, do substantially all the

‘cracking in the B tubes and substantially none in the

_ © tubes, without. departing from the principles of the —

Dubbs invention for the reason that I just stated.*’

Whatever cracking occurs in the B tubes i is substantialiy

in the liquid phase (Smith, ITT, 1091), and the cracking

which occurs in the C tubes is likewise inthe liquid -phase

because the vapors resulting from cracking leave these

tubes through the vapor pipes D substantially as soon as

_ they are formed and are not subjected to the cracking

temperature for a sufficient time tv be cracked _— Ill,

1091). | e

Petitioner has always contended, and the Third Cireuit

courts held, that the words “B are the cracking -tubes’’

occurring in the Dubbs patent (jp. 1, line 52) indicate that

the major part of the cracking occurs in these tubes, and

hence that‘ substantial ‘‘ gengration ‘of vapors’” occurs

therein. The Seventh Circuit \¢ourts were not misled by*

petitioner’s construction of this\nomciuelature. ,

Respondent’s expert witness, H. V. Smith, pointed out,

on direct examination, that (III, 1099):

. “* © © Bare the cracking tubes because in B the

cracking heat is. imparted to the oil and the cracking

is initiated. That is what he ee means by ‘B are

the cracking tubes.’ ’’

And on salinities he said ( ITI, 1163):

‘*A. T think a wian skilled in.the art, reading fhis

_ patent, would understand that use of the name ‘crack-

34.0 a

ing tubes’ to mean just what I have explained it to

mean, namely, the tubes in which the cracking heat

is applied tg the oil and the cracking is initiated, be-.

_ cause he would read the patent asa whole.”” ~ ,,

From this testimony it is clear that petitioner is in error -

in stating (footnote Br., p. 74) that respondent argues that .

the designation of . the B tubes as ‘cracking tubes’’ isa

‘‘misnomer.’? However, that Dubbs intended no. expecial .

significance by. this dekxignation is apparent from the fact

that his specification alXo twice refers to the B tubes as_

“<‘heating tabes”’ (pat. p. 1, line 93; p. 2, line 7, VII, 3089-

90). In Dubbs’s other numerous referetices to these tubes,

he merely calls them ‘‘tubes’’ or ‘‘coils.’’

The Dubbs principle of two-step, or “‘fireless cooker’,

cracking made it possible, in commercial operations, to ;

charge to the system even the dirtiest. stocks, such as)”

erude petroleum or residuum from a prior cracking op-

eration; and to continue to run until the reaction chamber,

or chambers, became filled with carbon. This ability to

handle any kind of stock, and the solution of the carbon |

problem by causing the carbon ‘to be deposited in an un-

heated or lightly fired part of the sysfem, caused the |

* **Dubbs Process’’ to go into extensive commercial use. For

. this eontribution, Dubbs and Universal have been amply

a rewarded. — , ;

é Universal’s advertising (DXs. 590-2, Ve 9593-6; 2401-3)

shows that it was the ability. of tf® ‘‘Dubbs Process” to .

_,handle any stock that was regarded as the one thing worth

"stressing as its advantage over all others. Petitioner’s wit-

ness Huff testified (IT, 623) that Universal considered this

s ‘*a real advantage, and we so told the licensees.’’ Pyzel, |

iv the Royal Dutch Shell, a Dubbs licensee, testified (I, 544-

5) that _—, he took his license he did. not know of. any

~

35 © ;

other process **in which fuel oil could be fed directly to the

heating tubes and make commercial yields of gasoline,’’ and

that this feature ‘‘was an important consideration in the’

-negotiations which led to our taking of a Dubbs license.’’

~ In the Dubbs: Patent ‘‘Clean Circulation’ Is Not the

Solution of the Carbon Probleri, But Is a Minor Step in-:

- Furtherance of the Two-Step Cracking Process Which Did

Solve That Problem.—Pctitioner erroneotisly attributes the .

solution of the carbon problem in the pro¢ess. of the Dubbs.

patent to what it calls ‘‘clean cireulation,’”? which it de-

fines as (a) the withdrawal and non-return of cracked ©

residue, and (b) the return of the’ réflux from the aerial

~ condenser G’ either to the supply tank L or to the inlet

of the B tubes. This definition is not sound. Petitioner’s

expert admitted (I, 708-9) that ‘‘clean cirealation’’ is

’ merely the return ‘of reflux to a coil inlet (B tubes), instead

of directly to the cracking’ vessel (C tubes).

* (a) The residue withdrawal step ina coptinaous process

_Was unquestionably not new with Dubbs, but was prac-

-ticed-and taught in-all prior art continuous coil cracking

operations.(deFlorez operations of The Texas Company at

Bayonne, IT, 846-56) and prior art patents (post, pp. 61-77)\

and in continuous drum cracking processes (Manley pat- -

} ent 1,428,338, VII, 3382, applicatior filed October 10, 1917).

This step of withdrawing and not returning residue formed.

in the cracking operation functions no differently regard-

less. of whether reflux be returned to the cracking yessel,

as in Manley 1,428;338 (VIT, 3382). to the coil inlet, as in. .

Dubbs, Behimer, Pielsticker, and others (post, -pp. 61- 77),

or not returned at all during the run, as at Bayonne, New

Jersey. In the prosecution of Dubbs’s applic ation, he re-

- peatediy tried to ain with residue withdrawal and its

non-return as: their \ istinguishing feature, and the Patent.

36 Cw

Office consistently refesea him a patent on this concept

(IV, 1 1526-7, 1535).

(b) Whether reflux be returned directly to ‘the supply

tank, or to the inlet of the B tubes (‘‘clean circulation’’),*

_ rather than directly to the € tubes or cracking vessel (as

in the pi‘or commercial art—not “clean circulation’’), has

practically no effect on the carbon problem. In either case,

. the reflux eventually enters the C tubes, or their equivalent,

find: is: commingled with the carbon-laden ‘residual oil

7 therein. alien *

With respect to the feature of reflux return to the coil

inlet, or to the supply tank L, Dubbs’s specification says

(pat. p. 2, line 28):

\

«6@ © © the reflux condensate in all cases is trapped

off from the vapor lines in such manner as ‘to pre-

vent ‘their [sie] returning direct to the vaporizing

tubes C,’’ ay

No reason is given in the patent for this explicit in-

‘struttion, but-it is obvious that, because the reflux is cooled

when condensed in the dephlegmator, were it returngd di- -

rectly to the C tnbes, it would lower the temperature of the

oil therein, and would thus tend to de*e&t Dubbs’s teaching

that cracking conditions must be maintgined in the C tubes

(Smith, IIT, 1090). Dubbs teaches that the reflux, like

the charging stock, is to be raised to a cracking tempera-

_ ture before entering the C tubes, and this can only be

_accomplished by passing it through the B tubes. There- |

fore, the step of refinx return to the inlet of the B tubés,

or. to the supply tank, is-in furtherance of Dabbs x hasic

© This, step, in combination - with the residue withdrawal step.+

was‘ also old in the patent art hereinafter discussed (post, pp

“ - 61-77). It was not practiced commercially prior to Dubb«'s Aline.

date.

ai a

teaching of heating all the. charge material—both fresh

charge and reflux—to a cracking temperature in. the B

' tubes, where cracking is-initiated, and causing this tem-

perature to act for a period of time to crack the liquid

body of oil in-the C tubes thereby solving the carbon prob-

_ lem by causing the carbon to be deposited ina safe place.

‘This Record Shows Conclusively That Commercial

Oratking Stills Functioned Practically as Well Without, as

With ‘‘Clean Circulation’. —In 1920, The Texas Company

installed and operated twenty-four batteries of commercial

' Holmes-Manley stills at Port Arthur, Texas. In these con-

‘tinuous operations (II, 929-930; see also DX. 729, VI, 2721),

the fresh charging stock was heated to a cracking temper-

ature in coils, and was thence conducted to lighthy fired

drums where the temperature was maintained and sufficient

time was allowed for the oil to be‘cracked and for the carbon

to be deposited. Fresh feed was contin pupiped to the

cgils, and residue was continuously withdrawn from the

cracking drums during the run and was not returned to.

tlhe system. - In these respects, the process was similar *

to the-B-tube-heating and C-tube-cracking with conginu-

ous residue withdrawal of the Dubus patent.

, However, in these Texas operations, the rlux was re-

turned from the dephlegmators directly to the cracking

stills and not to the coil inlet, as in Dubbs. Hence, they did

not embody the principle of ‘clean cireulation.’’ Neverthe-

less, these operations were very successful and the stills

were profitable and paid out rapidly (Holmes, Il, 968-9):

- Due to the cooling effect of the reflux; the drums would, of

" course,dhve to'be fired a little harder (IIT, 1090) phan when,

as in subsequent operations, beginnir.z in 1921 (II, 930), the

reflux was returned to the coil inlet (‘‘clean circulation’’).

’

Otherwise, there was no difference (II, 931). The carbon

problem was solved im the same way in both operations,

namely, by imparting the cracking heat to the oil in the coil,

and conducting the cracking operation itself, with. the re-

. sultant deposit of carbon, in the lightly fired drums or

stills: This, and not reflux return to the coil inlet, or to”

a supply tank (‘‘clean circulation’’), is likewise the solu-

tion of the carbon problem in Dubbs. It is a soijution |

which the respondent does not use. |

The Claim Limitation Requiring: That the Heating Step

Be Accomplished ‘‘Without Substantial Vaporization’’ of

the Oil in the Coil—The District Court and the Court of

Appeals held (VI, 3051, V ‘I, 3581) that the claims in snit

of the Dubbs patent, being limited by the requirement that ©

_the preliminary step of heating the oil in the coil or B

tubes, be carried out ‘‘without ‘substantial vaporization,”

are not infringed by the respondent’ s process, in which the

~ heating and cracking step-in the coil, ‘is accomparied by -

‘substantial vaporization.’'/ It is stipulated between the 5

parties (I, 475) that 85% by’ weight, and 99% by volume;

of the oil in respondent's coil is therein converted into -

— The District Court*and the Court of Appeals held

that * ‘vaporization’ in the limiting clause of the claims ‘of

* the Dubbs patent means, as it has always meant, the eénver-

sit of liquid into vapor, 7. ¢., ‘the generation of vapor

from liquid. If this he so, it is conned that respondent

does not infringe the claims of the Dubbs patent.

| Petitioner's expert contended that ‘‘vaporization’? i in the

Dubbs patent means the ‘liberation or freeing of bubbles

of vapor entrained in a liquid phase, so that these bubbles

“omar coalesce to form a_ continuous vapor phase”? (IIT,

“TT

1888-4). i

39

The Meaning of the Word “‘Vaporization’’.—‘‘Vaporiza-

tion’’ is a word of common use in physics and chemistry,

and in the oil cracking art. It means the change of state

from liquid to yapor; that i is, the generation or. formation

of vapors from liquid. It has no other meaning.

For the convenience of the Court, we set forth in an

Appeedix the definition of ‘‘vaporization’’ as contained i in -

‘dictionaries and textbooks.

ad

‘The heat consumed in the change of state from iquid to

“vapor is called the ‘‘heat of vaporization”? or the ‘‘latent

heat of vaporization’ (III, 1065). Implicit in this well-

known physical. principle is the definition of. ‘‘vaporiza-

tion,’’ for heat ts consamed only in vapor ‘‘generation,”’

and not in vapor ‘‘liberation,’’ | a

| Where vaporization is caused by reduction in pressure,

without imparting heat, the heat for vaporization: is sup-

plied by a-reductiof in temperature of the liquid under-

going vaporization.

Dr. Hamilton P. Cady,* Professor of Chemistry, arid

Chairman of the Department of Chemistry at Kansas Uni-:

versity (II, 791), Howard V. Smith, Chief Chemical Engi+ _

neer for the Barber Asphalt Corporation (IIT, 1063), Dr.

C.K. Reiman, consulting eneneer (Se. B. Mass. Institute

‘of Technology, D. Se. Univesity of Geneva),. with wide

experience in petroleum research and refinery practice -

(III, 1288-9), Luis deFlorez an outstanding. inventor,

who was for many years consulting engineer in the

- oil refining industry (II, 854),—all testified that “‘vaporiza- |

tion” means the change of state from liquid to vapor, i. e.,

the generation of vapor.

* Dr. Cady fully explained the physical laws of vaporization

(II, 788-809). ;

40

_. Richard J. Dearborn, patent counsel for The Texas Com-

pany, who is representative of the profession especially

trained in the reading and interpretation of patents, and

who was also thoroughly familiar with the oil cracking art,

understood the word ‘‘vaporization,’’ occurring in the lim-

iting clanse of Dubbs’s claims, in its true sense of denoting

the formation of vapors (1,°229). He testified (J, 229)

that in entering a disclaimer of the counts of the Interfer-

eneé No. 49,355 (which were the claims, save claim 6, of the —

Dubbs patent in surt) he understood the phrase ‘without

“substantial vaporization’’ to limit the Dubbs claims to 2 ‘

liquid phase process in which The Texas C ompany was not.

interested because in its Behimer commercial process, there

was vaporization ‘‘in the ordinary sense of the production

of vapors” in the coil, | iat

Of the many witnesses who were called at the trial, the

_ only one who claimed that ‘*vaporizaition’’ had other mean-

ings than its accepted-one was- petitioner’ s expert, Dr.

. George Granger Brown, who said that the word could also

mean ‘‘generation’’ of vapors when accompanied by ‘‘liber-

ation,’’ or ‘‘liberation’” alone. Brown was unabie to show

that anyone else ever gave his special meanings to ‘‘vapor-

ization,’’ andhe admitted that the word was ordinarily used

to denote the change of state from liquid to vapor (II, 702).

Nevertheless, he asserted that in the. Dubbs patent the

accepted meaning of ‘‘vaporization’’ was ‘specifically ex-

‘cluded’’ (II, 708). ca CA

The prior patent art, in the case at bar definitely shows

that ‘‘vaporization’? was always used in oil cracking or

- treating patents in its accepted meaning to denote the for-

mation of vapors. Dubbs, himself, in another patent, No.

1,686, 654, as well as in the patent in suit, thus used the’

-

41

word, as shown by the fact that claim 4 of this other patent |

calls for heating the oil in the coil ‘‘under sufficient pres-

sure to prevent the vaporization of any substantial por- <

tion’’ thereof (claim 4, VII, 3474).

The Egloff patent in suit, whose application was pros- coed

ecuted by the same solicitor who ptosecuted the Dubbs ap-

plication, uses *‘vaporization”’ in its accepted sense, for

claims 3, 4, and 5 call for delivering the oil to an ‘‘en-

larged’’ zone at a ‘sufficiently high?’ temperature to cause

‘ta substantial amma: the oil *‘in said zone’

(VII, 3096).

In the quoted passages from -these patents, petitioner’ 8

alleged special meaning for ‘‘vaporization’’ is excluded be-

cause heat and pressure have effect only on the generation

of vapors. They have no effect whatsoever on their ‘‘sep-

aration’’ or “‘liberation”’ from a liquid surface (Sinith,

III, 1065, 1097).

Petitioner Has Not. a ing Use in the Art. or Other-

wise of Its Alleged Special Meaning for ‘‘Vaporization.’’

—The record does not show a single instance of any use

of ‘‘vaporization’” in petitioner's special sense either in its

own patents, or in any other patent, or in any scientific

or technical book or magazine, or in any other writing what-

soever. Petitioner attempts to assert (Br. ‘‘ Appendix’’)

that definitions: of ‘‘vaporization’’ which describe ‘it as the

“passing off”’ of vapor support a different concept. _Obvi- .

ously in petitioner's definitions the ‘*‘passing off’ is the

chenge of state itself. Vapor molecules as they form and.

assume their distinet physical characteristics as ‘vapor

inevitably ‘‘pass off’? or become liberated or separated -

from the mether liquid and this is so whether they ‘pass

off’? into bubbles in the body of the liquid, or “pass off’’

at its surface.. ied

: =

42

‘Daniel Pyzel, in charge of. the- refinery operations for

the Royal Dutch Shell, a principal shareholder and licensee

of Universal, took out many. patents, four of which are

in evidence:* In each of thesé, as he himself admitted

(Pyzel, I, 547-550), he used ‘‘vaporization”’ in its accepted

- sense to denote vapor formation or generation, 1.'e., the

change of state from liquid to ia (see, also, Reiman, Il,

1289-1291).

‘Richard W. Hanna, Vice- Presbtenk’ of the Haat Oil

Company of California, the other principal shareholder

and licensee of Universal, also task out . patents,

three of which are in evidence.t In each of these

"he used ‘‘vaporization’” in its. true sense — III,

1292-3).

The trial court excluded, erroneously, we submit, (a)

Pyzel’s admissions that in the patents referred to he used -

‘‘vaporization”’ to denote ‘‘generation of vapors,’’ and (b) ”

Dr. Reiman’s testimony regarding the use of the word in

both the Pyzel and Hanna patents. Accordingly, this testi-

mony is in the record under Rule 43 (c) of the Rules of.

Civil Procedure.

~-

. * Pyzel patents in evidence are 1,506,444 (VII; 3425), 1,597,821

(VII,, 3436), 1,622,787 (VII, 3444), and 1,891,218 (VI, 3506).

t Hanna patents in evidence are 1,449,226 (VII, 3394), 1 449,227

(VII, 3402), and 1,655,603 (VII, 3462). When, on the taking of

- Hanna’s . depesition, he was asked on, cross-examination to state’

the sense in which he ,used “vaporization” in his patents, peti-

tioner’s counsel, William ,F. Hali, instructed the witness not to

answer; and he did not answer (II, 583-91). Universal’s counsel

evidently feared‘what his answer would be, Although Universal

succeeded in getting its objection sustained to respondent’s offer

of the meaning of ‘‘vaporization’’ in the patent art (III, 1289,

it now relies (mistakenly) on a passage in the Behimer patent

(Br.,-p. 101) to sustain its meaning for the word. Hence, it has

plainly waived its prior objection:

43 : Ta -

Petitioner asserts: (Br. pp. 100-1) that claim 30 of Be-

himer patent 1,883,850 (VII, 3494-5) uses ‘‘vaporization,”’

* to denote ‘‘liberation’’ of vapors in the phrase ‘ ‘separating

the lighter constituents by vaporization from the residual

oil * * *.’’° Obviously ‘‘vaporization’’ here has its only

and natural meaning. Separating by vaporization means

to separate by conv érting liquid-into vapor. a

Dr., Brown’s testimony on the alleged use of “vapor iza-

tion’’ to denote ‘‘ passing off’’ of vapors in the Gyro proc-

ess, on which petitioner relies, is entitled to no weight, for

~. upon being asked (II, 757) to produce any. published. de-

scripti 19n- of this ‘process where the word was so used, he

was unable to do so, althougu he admitted that the process

‘had been described quite frequently. Furthermore, the

~ very passage of Brown’s testiriony which’ petitioner ie

(Appendix, p. ii) shows that in the *‘vaporizing-tubes”’

the Gyro process liquid was cony erted into vapor.

Dubbs's Specification Gives No Special Definition for

‘‘Vaporization’’; It Does Not Use ‘‘Vaporization’’ and

‘‘Liberation’’ as Synonyms.—-The. word ‘‘vaporization”’ is-

not defined at all in the Dubbs patent. in suit (PX. 502,

_ Vil, 3086) any, moré than are cther terms commonly used

in the ari, such as **eracking,’’ ‘‘carbon,’’ ‘reflux con-

densate,”’ ete. The Dubbs patent contains no definitions of |

” words. or phrases. It uses words in their accepted sense.

* The word ‘‘vaporization’’ occurs only once in Dubbs’s

specification, in a. sentence which: describes what occurs

in the 10-inch ( tubes (pat. p. 2, line 40):

«e.* * The heated oil then passes to the 10 inch

coils C which are maintained about half ful. of seca and

wherein vaporization takes place.”’

This ‘‘vaporization”’ in the tubes is also déseribed in

44

the patent as the generation of-vapors.. Thus, the specifi-

cation says (pat. p. 1, lines 108-112):

wee? The per et. of vapors generated from

the oil as it passes through the tubes C will depend on

’the amount of heat acquired by said oil while passing

through the 4” coils’’ {B tubes].

‘‘Separation”’ or “‘liberation’’ of vapors from the liquid

body of oil is also described as occurring in the C tubes,

but Dubbs does not describe this action as ‘‘vaporization’*;

he calls it ‘‘liberation.’’ The patent says (p. 1, lines 78-82): :

‘** * © Said of] is then passed into the tubes (

which are only partially filled with the oil and as the

oii passes through these tubes, there is a liberation -

of vapors from same ° *. *.’’

Dubbs’ s specification does not mention the presence or

absence of vapors in the 4-inch B tubes. . The contents of

these tubes are described as ‘‘oil”’ (pat. p. 1, lines 78 and

111; p. 2, line 41). The claims state that there shall be no

‘‘substantial vaporization’ of this “oil” in the B tubes.

Both the claims and the specification state that there is

‘‘vaporization’* of the oil in the © tubes. As Dubbs’s spec-

ification expressly describes the *‘generation’’ of vapors

in the C tubes, the word ‘‘vaporization”’ in the claims and '

- in the specification denotes ‘‘generation”’ which is the ac-

cepted meaning of the word. Thus, petitioner’s contention |

that, in the patent, ‘‘vaporization”’ is a sy nonym for ‘‘va-

por liberation,’’ is refuted by the document itself.

The Dubbs Patent Teaches ‘Meahs for Preventing Sub.

stantial Vaporization in the B Tubes; It Teaches No Means -

for Préventing ‘‘Liberation’’ of Vapor from Liquid in

These Tubes.—The means for preventing substantial vapor:

ization, in the accepted sense of preventing substantial

‘vapor formation in the B tubes, is clearly taught in the

0 a7 45

Dubbs patent. This means is the use of superatmospheric |

pressure. (Smith, III, 1086) which the patent gives in the

_ example as ‘approximately 100 lbs. to the square inch’’

(pat. p. 2, line 56)..

At the time the application was filed, the art well under-

stood the use of superatmospheric pressure to prevent or

retard vaporization.

If, however, the words ‘‘ without sibstantialyvaporiza- |

tion’’ in the limiting clause of the claims be given peti-

tioner’s meaning to indicate ‘‘without permitting a con- .

_ dition of substantiai separation of liquid from vapor;”’

there is then no teaching whatsvever in the patent of means

to achieve this result. The only way to prevent the ‘“sepa- .

ration’’ of liquid from vapors in a 4-inch coil would be to |

“use a sufficient velocity to maintain the stream of oil and

vapors intimately mixed together in a turbulent flow (Smith,

III, 1097-8), but. there is ngt a word in the Dubbs patent,

from beginning to end, concerning velocity. The word

‘“‘velocity’’ is not mentioned, nor. is there any. passage .

from which any teaching of. velocity or turbulent flow can’

be inferred. ‘Petitioner’s expert also assented (II, 721)

that the limiting clause permits: a ‘‘foam’’ but. prohibits

** The Dubbs patent does not even mention a

“foam”? or ‘‘spray,’’ and so, of course, does not instruct -

a Prana

how to avai the transition from ‘foam?’ to ““spray.”’

The Word ‘‘Substantial’’ in Dubbs’s Claims Denotes the

Meaning of ‘‘Vaporization”’ as Formation, and Not Sepa-

ration, of Vapors From Liquid. —Dubbs’s claims do not pro-

hibit all vaporization in the heating step. They contera-

plate that in raising the oil to a cracking temperature. in ..

the B tubes, there may be some insubstantial vaporization.

46

If, however, ‘‘vaporization’’ means separation of liquid —

~ from vapors, the qualifying adjective ‘‘substantial’’ is

meaningless. Vapors “ separate’’.from liquid because they

are lighter than the liquid (III, 1097).. There can be no

~ such thing as a ‘‘substantial’? number of bubbles remain-

ing unliberated while an ‘‘insubstantial’’ number obey

gravity and pass on up and out of the liquid (III, 1095-6).

~The quaiifyiag adjective ‘‘substaiitial;’’ occurring in the

limiting clause of all Dubbs’s claims in suit, is a

ignored in petitioner's Brief.

Dubbs’s ‘Specification Discloses a Range of eoceidial

_ Conditions Within Which the Process of the Claims May

. Be Practiced.— What petitioner calls Dubbs’s**‘ illustrative

- run’? was added in September, 1919, in the first amend-

t (IV, 1520-1), at a time considerably before the claims

ere limited (Paper No. 8, April 13, 1921, IV, 1536-40) to ~

a process where the oil is heated to a cracking temperature

but ‘‘without substantial vaporization,”

This ‘illustrative run’’ gives a temperature range of

750° to 860° and a pressure maintained throughout the B ~

and ( tubes of ‘‘approzximately 100 Ibs.”’

By staying within the Idwer part of this range, é. ¢., about

750° F., and even without exceeding the approximate 100

Ya. pressure, there would be no substantial vaporization of

the oil in ‘the B tubes, but im this case it would be neces-

sary to supply mild heat to the C tubes in order to main-

tain the oil therein at a cracking temperature: (Smith, IIT, |

1088). This is because heat is lost in the C tubes due to

cracking. vaporization, and radiation. -Therefore, when .

the oil leaves the B tubes at 750°, which is a low cracking

temperature, it must be maintained at this temperature in

~ the C tnbes, by mildly heating them “(as the patent ex-

47

pressly permits, p. 1, tee 99, VII, 3089), or the oil would be

insufficiently cracked therein.

Petitioner asserts (Br. p. 75) that the mild” billie of

the C tubes must be so’regulated as to supply heat lést from —

ear vie only, carefully avoiding the supplying of heat lost,

by vaporization and cracking. The patent says nothing

head such absurd distinctions. Daniel Pyzel of the Royal

Dutch Shell, a Universal licensee, said (1, 518) that the

purpose of heating the C tubes in the Dubbs operation

which he witnessed in-1919 was to keep the temperature

of the oil in the C tubes the same as it was'at the outlet of

the B- tubes, and to supply to the oil.in th. © tubes, heat

/ lost from vaporization and cracking, as well as from radia-.

Even at the top-temperature of Dubbs’s ‘‘example”’

’ namely 860°, in the B tubes, substantial vaporization of the

-oil ‘therein could be prevented Were the pressure corre- |

. -spondingly increased, especially if a higher pressure were

_maintained in the B, than in the C, tubes (Smith, III,

1133). That this pressure aiiferential is, in. petitioner’s

_ View, within the scope of the Dubbs a is shown by the

fact that in respoiident’ 8 process, said to. infringe that pat-

ent, pressure is reduced from 500 Ibs. in the coil ‘to 26 Ibs. -

_in the vapor separator. Petitioner contends that the vapor

separator is the equivalent of. Dubbs’s C tubes.

The Dubbs patent gives 100 Ibs. to the square “inch as

“approximately ’? the pressure to be naintained.. Increas-

ing this pressure sufficiently to prevent ‘‘substantial va-

‘porization’’ of the oil in the tubes at the higher tempera-

tures given in, Dubbs’s patent was well within the skill of

the art wken Dubbs filed his application ( Ii, 1090-1). Pe-

titioner does not deny this.

-48

Dubbs huabel His Claims by the. Limitation to ‘With.

out Substantial Vaporization’’ in Order to Distinguish Hin

Process From the Prior Art on Which His Prior Claims

Had Been Rejected.—Dubbs filed his application.on March

' 19, 1919, with three original claims. The third claim was

incomplete and may be disregarded. | Claims 1 and 2 (PX. |

501, LV, 1515-16) called for first and second steps in identi-

cal language as follows:

‘‘A process of cofiv erting heavy into lighter hydro

carbons, consisting in passing the oil through a heat-

ing coil in a cracking zone, passing the oil and gen-

erated vapors into a vapor chamber, ° ° °’’ ete.

This language indicates the presence of ‘*generated va-

pors’’ in the B tubes but‘does not say whether the amount _

of generation is large or sniall, These original claims were

rejected and cancelled (IV, 1519, 1521) and no one of the -

claims thereafter asserted during the prosecution of the: -

- application made any mention of the presence or absence

of vaporization (‘‘generated vapors’’) in the B tubes, until.

the claims submitted jn the final amendment, wherein, for

_ the first time, appeared the limitation against ‘‘substantial

vaporization’’ Hence, the ‘*vaporization”’ of the allowed.

claims is the same as the **generated’’ vapors of the orig:

_inal claims, but in the allowed claims the permitted genera--

tion of vapors i is limited to an/insubstantial ‘amount.

Up to the final relestion, Dubbs was insisting that his

process distinguished from the prior art cited against him,

on the ground that in his process all the residue was with-

drawn and not returned to the systentiihereas in the prior

‘art references all or part of the residue was recirculated

(IV, 1533y. “The Patent Office refused to recognize the

asserted distinction and repeatedly rejected thé claims (IV,

» 1535). Dubbs never got a patent with residue withdrawal

as the carrying élement of the. claims.

49

Just prior to the final amendment, -wherein the claims

were limited to ‘‘without substantial vaporization” in ‘the

heating step, Dubbs stood rejected, iter alia, on the prior

art patents to Edwards, No. 1,170,884, Smith, 1,239,423,

-- and Trumble (British) No. 15,084 of 1915 (PX. 501, Paper

. No. 4 and Paper No. 6, IV, 1526, 1535).

The British Trumble patent discloses a vyclic process

where the oil is heated in a coii so that vaporization occurs

therein, resulting in a ‘‘foamy mixture’’ of mixed oil

and vapors. Trumble’s specification describes (DX. 813,

.P. 2, lines. 16- 17, Vl, 3558) the Sontents of fhecoil as

\“forming a hie ”° This stream of foam, comprising

nixed liquid and vapors,-then passes to a vapor releaser, °

from, the top of which vapors pass to a dephlegmator, and

from the bottom of which residual oil is drawn off to a

settling tank. The vapors from the top of the dephigg-

‘mator are taken off and condensed as ‘the final predtict.”

‘Vapors are also condensed in the dephlegmator, and this.

condensate is drawn off from the bottom thereof: and con-

veyed to-the séttling tank where it mixes with the residue

‘from the bottom of the vapor releaser. From’ the bottom

of the settling tank, a portion of the carbon-confainirig

residue is drawn-off to storage. The balance of the residue,

mixed: with the clean ey from the dephlegmator

and additional fresh stock} is returned to the coil. ©

The Edwards patent’ ( px. 785, VII, 3182). discloses a

. drum set above sloping tubes located in a furnace. Vapors

~~

are taken off from the drum t6\ partial condensers from |

* Other instances of the présence of. mii xed oil and ‘vapors in the

coil of the Trumble British patent (VIB, 3557). are as. follows:

p. 2, line 23, ‘‘foamy mixture’’; p. 5, line 42, ‘moving mass of oil

which assumes a foamy nature. This foam’’ ete. ; p. 6, lines 47-50..

‘oil ean be changed into a foam on? foam . produced.”’

| Poe

ae.

™ . 6

2 .

which the desired product is led off to a final condenser.

The refiux is conducted back to a drum located below the

_« tubes. From the fat end of the upper drum, the residue

is withdrawn. The oil in the tubes and drum circulates

by thermosyphon action. Vapors are formed in the coils

as appears from the followfig meee te the patent speci-

fication (p. 2, line 56):

* © © The still is thus divided into a auiien of

small circulating units, bringing the oil into rapid and

repeated contaet with the heating surface of the tubes,

and. allowing the vapor formed in each circulating unit

- to become disengaged froni the liquid in ‘the upper

_drum.’}

The Sanit patent (VII, 3294) shows the withdrawal of

residue and the filtering of it through fuller’searth to

rid it of carbon and carbon-contuining: material rey re-

turning it to the system, but says nothing nom

ence: ‘of vapors in the coil.

Both Trumble and Edwards had vaporization in their

coils in the accept ‘sense of the word **vaporization.”

Neither had vaporization in the oil in petitioner's asserted _

Special sense’ of ‘‘vapor separation’’ or ‘‘liberetion.”’

_ Neither withdrew all the residue from the system.

pres-

v pon suffering a third rejection of his claims on these

references (PX. 501, FV, 1535), Dubbs amended some, and

rewrote others, including in all, for the first time, the limi-

tation to. heatingthe oil in the first step but ‘‘without

—snbstantiat vaporization.” ~The claims thus limited were

allowed. Apparently the final amendment was filed pur-

suant to an oral intervieyzbetween Dubbs*s attorney and

the Exaniiner, for it will he noted that, in making the

- amendment, the attorney stated (TV, 1540) *‘It is under-

stood that subject to tlic discovery of additional prior art,

= 51

this omendment places this case in condition for ~_—

ance i ° °°

- Two of Dubbs’s rewritten and allowed claims, namely,

claims 4 and 5, when thus limited to ‘‘without substantial :

vaporization,’’ were, at the same time, broadened so as not

to call for the total withdrawal of residue and its non-

return to the system. In this réspect, Dubbs gave up the

ground which he had previously relied upon. to distinguish

from Trumble and Edwards, i. ., total residue withdrawal

and non-return. Thus, claim 4 of the Dubbs patent calls for

partial residue withdrawal, (and says notlfhg about. re-

. turning the reflux ‘‘uncontaminated”’ with résidue, The

claim says: =

- «© © * - discharging frém the chamber substan-

tially continuously a quantity of the residue propor-

tional to the amount of oil supplied * * *."’

. Rewritten and allowed claim 5 says nothing xt all about

iiidiies withdrawal and its non-return, or about the reflux

being *‘uncontaminated”’, and claims 1, 2, and 9 were made

to call merely. for the non-return of any substantial por-

tion of the residue to the heating coil. Accordingly, none

of these claims ix directed to the suppoced invention

of “clean circulation’’ as defined by petitioner. They are

“dirty cireulation’’ claims, and they do not distinguish ~

from Trumble and other prior art, unless by the limitation

to ‘without substantial vaporization’’ in the heating coil.

From this it follows that in, for instance, claim 4 of Dubbs,

the phrase “‘substantial vaporization prevented’’ in the. .

first step, or B tuhes, means withont that sante substantial .

, vaporization which Trumble has in his coil, namely, vapors

am! liquid in the condition of a foamy mixture. Other-

wise, and specifically with respect to residue withdrawal,

claim od does not aims from Trumble.

52

The substantial " vaporization, or “foamy -mass,’’ in

"'Trumble’s coil is coneededly indistinguishable from ‘the

substantial vaporization or ‘‘foamy mass”’ in respondent’s

coil. In neither process is there a condition in the coil

where oil is ‘‘separated”’ or ‘‘liberated”’ from liquid in the

setise contended for by petitioner.

| As ‘¢vaporization,’’ in Dubbs’s claitn-4, riecessarily. means.

the generation of vapors, it follows that the word has the

same meaning: in fhe limiting clause of all the other claims

in suit.

The. price.of allowance of Dubbs’s claims nen the limita-

tion against that vaporization which is present in Trumble’s

and Edwards’s coils, this being the same-vaporization that

occurs in the respondent's coil. ©. --—

_ In His Later-Issued Patent~No. 1,686,654, Dubbs Also

_ Imposed a Similar Claim~Limitation Which Prohibited

“Substantial Vaporization,’’ and Also Used the Word in.

Its Accepted Sense to Denote the Change of State From

Liquid to Vapor. —In confirmation of the fact that; in the

patent in suit, Dubbs used ‘vaporization’? in its accepted

- sense, there was received in evidence another Dubbs patent,

No. 1,686,654 (VIT, 3468), directed to a process of oil crack.

ing, issued on October 9, 1928, on an application which was

# division of another application which, in,turn, WAS acon |

tinuation of Dubbs’s application, Serial No. 208,206, filed .

December 21,1917. This patent, No. 1,686,654, lias,‘ there-

fore, the same specification as application No. 208,206, filed -

over a year before the application for the patent in suit. -

Dubbs patent No. 1,686,654 discloses a bank of coils B,

set in a furnace and discharging into a tank K’.. Among

the objects of. the specification is (VIJ, 3471, lines 50-57) : :

: «coe §* §6to provide a + prdcess whereby the forced

53

circulation in a continuous coil creates.a pressure on

the oil in excess of that maintained on the rest of the-

apparatus whereby the oil in said coil can be subjected

toa higher heat without being converted, to any great

amount, into vapors, and said oil is passdd into a cham-

ber of lower pressure * * °”’ ete. | ;

Claim 4 of the patent says: Sena a

‘*4. A process for the conversion of hydrocarbon

oils which consists in heating a mass of relatively ~

heavy hydrocarbon oil to a cracking temperature

above the boiling points of the complex chemical con-

stituents of said heavy oil under sufficient pressure

to prevent the vaporization of any substantial portion

of said aan constituents, ’” ete.

Relating the Manguage of the claim to the language in

the quoted .passage from the specification, it is apparent

that the prevention of ‘‘vaporization of any. substantial

79°

portion’’ of the oil in the heating coil (required in: the

claim), is the same . thing as heating the oil without its

“being converted, to any great amount, into vapors’’

as taught in the specific ation. :

In this same application, No. 208,206,° Dubbs gave his

reason for avoiding. vaporization in the heating ae He

said (DX. 816, p. 52, VI, 2976a):

ae % ? Ae the Examiner will appreciate, trouble

will occur if substantial vaporization takes place in

the coils. To prevent the precipitation of carbon due

to vaporization, the a maintains a high ‘pres-

sure on the oil in the coil.’

The same. association between vaporization and carbon |

formation is show n in U niversal’ s instructions to its field

or te a ee ——— eee er ee = —

* While receiving in . evidence the Dubbs patent No. 1,686.654,

the District Court nevertheless excluded this Dubbs application.

and it is before this Court under Rule 43 (c) of the Rules of Civil

Procedure. ° + ir = : ;

net ee ~ en ne ae en

' 54

operators. In Bulletin B-536, dated January 15, 1996

(V1, 2997), Universal instrycted its operators as follows,

with respect to starting up the Dubbs commercial units :

“Never: permit the transfer temperature [coil a

let} to exceed 700° F. before 75 Ibs, pressure has been

reached. If the temperature is permitted to exceed

that amount, vaporization will take piace m the tubes,

causing overheating and cracking of the oil vapors

‘ with the consequent deposition of carbon on the tube —

surfaces.’

It should also-be soled that in this Bulletin petitioner’

used ‘‘vaporization’’ in its accepted sense; vaporization is

to be prevented. by adjustment of ‘temperature to pregsure,

_ which shows that — or generation is meant

“

by ‘‘v aporization.”’

Petitioner Has Misrepresented and Misquoted the Testi-

mony of Respondent's Expert Howard V. Smith.—(n page

74 of its Brief, by iicomplete quotation, petitioner seeks

to convey {he impression to this Court that Smith admitted

that Dubbs’s claims ‘‘don’t fit’’ his’ specification illustra-

tion. In the Passage immediately following that quoted hy

petitioner, Smith’ said (IIT, 1150) ;

**T won't agree té the dabidions that taking my

interpretation of,‘vaporization’, the claim is not only

unsupported by this illustrative run but -it-is entirely

‘contrary. io the conditions whieh would obtain in that

‘yun because ‘you pic ‘ked out in that just part of the

conditions given in the illustrative run. You have

nicked 36 gravity gas oil. “You have picked the bigi-

est temperature given. And.I say taking those par-

ticular conditions your claims don’t fit with them, but

those’ aren't the only conditions given in the illustra- °

tive run.”’ -

On page 76 of its Brief, petitioner says that ‘‘Smith

‘hegan by assuming a meaning of the claims favorable to

+

-_—

55

his cause and thén réwrote the specifieations to fit that

- meaning.’ This extravagant assertion is supposed to be

supported by the first quoted’ testimony on page 77 where-

in Smith pointed out that the prohibition against vapor

generation is found in the claims. As Dubbs’s specifica-

tion is wholly silent on the presence or absence of -vapors

in the B tubes or heating step, Smith was naturally forced

to go to the claims to find the teaching against “*sub-

stantial vapor ization”

The second passage - rr on page 77 ot petitioner’ 8

Brief is another instance of petitioner’s practice of “dis- .

torting testimony by incomplete quotation. The complete

quotation is as follows (III, 1147):

_**] didn’t mean to give the’ impression that a pri-

“mary contention that I made is that due to the term

‘without substantial vaporization’ as I found .it in the .

patent, that the Dubbs process is confined to one where

there is no substantial vaporization in the B tubes,

and practically all of the cracking is done -in the C

tubes; and that that is a very good and useful process.

I did mean to say this, that at the low pressure taught

in the illustrative run of the patent the amount of

cracking which could be accomplished without substan-

tial vaporization or vapor generation, if you prefer

to use that, would be quite small. Now, if you go to

higher pressurés you can increase the amaunt of crack-

ing there without getting into substantial vaporiza- ‘

tion.’ =

. In the. third passage’ quoted: on page 77 of petitioner's

Brief, vn attempt is made to gaifi advantage from an in-

stance of poor abstracting of the testimony. In t _drig- ;

inal transcript (p. 3296) which has been certified to this.

Court by stipulation, the witness’s meaning ?s quite clear:

‘*‘Q. Is it your view, considering the Dubbs patent

as a whole, that you don’t get vapor gefftration in sub-

56

stantial amount in 7 B tole and you don’t get crack- |

ing in substantial amount in the B tubes?

‘‘A. The patent is very—

“Q. Just tell me whether it is or is not, if you

please.

““A. No, that isn’t my view.

“Q. Is it your view that the Dubbs patent calls

for liquid phase cracking practically exclusively in the

B tubes, if any cracking oceurs there?

‘A. Correct.

_ *Q. Is that correct? -

“* “A. ‘Correct.

““Q. Is it your view that that sort of a process is

a useful-one?

“A. It is my view that that could be very useful.’”

Obviously, Smith denied the first question because it

coupled together the two elements, cracking and vapor

generation. Smith always contended that eracking of the

‘oil in the liquid state, that is, ‘‘ without substantial vapori-

~ zation,” may occur in the B tubes (111, 1074, 1078, 1084-6,

1091, 10699, 1136-7, 1163), and that only substantial gen-

eration of vapors is excluded therein. Petitioner has

always sought to misrepresent respondent's position. on

the Dubbs patent. Respondent does not contend that. no

cracking occurs in the B tubes. As much cracking is per-

mitted therein as is consistent (a) with Dubbs’s funda-

mental two-step ‘‘fireless cooker’’ cracking system which

requires that the major cracking with consequent carbon

deposition oecur in an unheated vessel, and (b)- with the

claim requirement that the first step of the process .in the’ B

tubes be not accompanied by any substantial formation

of: vapors, in those tubes.:

On page i00 of its Brief petitioner asserts that Smith

‘tadmitted that the word ‘vaporization’ is often applied

~ to the phenomenon characterized by the interdependent

.

Low Pressure 7 . : / " *— @Lobe O41 and Refir | line’ Co. 7a: . , . |

Furnace | Se ; | . ot : os . : —_ ' = ee

162 Tubes” . e ae | fe Lemont, Illinoi Se ; 8 : i die lias: — Pex \\

ye A ID by ei ge : ; ‘ ar “9

" OD by , . ; ,

21'-0" long . aie , | : ' | Volume } _—

. : Tee ea cae B/D Per Cent; I

375° F.

Charge to Furnace ea 6940 3 ory 7 : : . oreae nee oe

~ |istey"tapnene srarees | 8 rove

: . Total Charged . 106.5 : : ek ; . Hr? .

S | 59'-7" high. — |----~~-~-.-.-

Condenser

RSS SSS” : Pressure Distillate Produced | 2224. — t . eee

“ee t~“‘<i‘iSSC! Posi Gai Pretuned : 160 is | ; : A

'> ‘ —— Ming = SS : - : SG uel uc s | : . 4 . —— -

| SSS ee a : : Total Liquid Producte ea | 95.5 ; ; . | =F | ake teres

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, A . ' ; = : =

| "ay °F = Degrees Fahrenheit ---+------.. P 2

- ; Yi = Pounds per Square Inch Gauge gor >

yf #/D = Pounds per . eit tn tide elimina Ripts

YY |B/D = Barrels at 60° F per ~» F 7

Mee z Y) *aAPI = Degrees API Gravity at 60° F

? { = Uj, siesiee ee aM ge =” I »

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Reduced Crude Charged

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5.8° aPl 3 | 890° F.

yah

105 B/D Gasoline

20 B/D P.D; Bot tome ot ia

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6000 #/D Gas Produéed in : 25a

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ve POTN IO Ip He EN am, —

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: 37

steps of vapor generation and vapor liberation.’’ Smith

testified without any qualification whatever (III, 1065)

that ‘‘ vaporization?’ denotes the change of state from

_ liquid to yapor.: He admitted the obvious fact that in

some instances where vaporization’ occurs there is also —

of separation of vapors from the body of liquid, but he

made it clear that in such cases the word applied only to

— the change of state (III, 1071). et 4 .

RESP« INDENT’ 8 OPERATION.

Ciibeitie this page, we reproduce Defendant's Exhibit

774A showing the respondent's operation-in isometric sim-

plified form.

_ Starting with pump 4 chown at the bottom of the draw-

ing, a clean gas oil charging stock is fed to thé cracking

coils set in the furnace shown at the lower left-hand corner |

of the drawing and marked off with e red line. The furnace

is carefully designed to provide even heating (Smith; Li,

1121-2) and in the furnace coils the oil is raised to high.

cracking temperatures and is cracked and very substan-

tially vaporized to the extent-of 85% by weight aud 95%

_ by volume (III, 1420). The oil enters the furnace at a tem-

perature of about 590° and leaves at a temperature of 940°.

All of the gasoline produced from the material charged

to the cracking coil is made in that coil (Smith, IIT, 1126).

_ On leaving the furnace, the oil passes through the valve

B-where pressure is reduced from 500 pounds in the coil

to 26° pounds ih the vapor separator. This. is an inten- |

tionally abrupt drop, obtained by the. use of thepressure

reduction valve marked B; itis not a gradual reduction due

te irictional resistance. — i ms

Just ‘prior to entering’ the separator, the highly

58

heated stream f rom the high pressure furnace is cooled so

as ‘to stop the cracking (a) by the reduction in pressure,

and (b) by the introduction of a cooler. stream of topped

erudé from the low pressure furnace (ITI, 1127).

From the bottom of the separator, residue is continu

) ously withdrawn and not returned to the system. From the.

top of the separator, the vapors af the cracked stream.

from the high temperature furnace and those formed by

+ distillation-of the toppéd crude from the low pressure fur-

nace, pass off into the bubble tower. There, a further

_ separation is made between the vapors of the desired prod-

uct, which pass off from the top of the bubble tower and

into a condenser, and the vapors of the fresh gas oil and

. the insufficiently cracked- materjal, which are condensed

and returned to the pump A, thus completing the cycle.

The red line shown on the drawing indicates the division

of the operation into the heating,. cracking, and vaporiz-

ing step, which occurs in the high pressure furnace, and thé

> distillation and fractionating steps, which occur in the re:

-mainder of the apparatus. In the high pressure furnace,

the oil is heated to a high te mpe rature, cracked. with a

short time factor, and substantially vaporized; beyond the

pressure regulating valve B, the cracking operation is

stopped by cooling, and the only cracking which occurs in

the separator (amounting merely to 24% of the topped

crude charged) is that slight cracking of the topped crude

which is incidental to its distillation (Smith, ITI, 1128-9).

Only enough liquid is kept in the separator to effect a

liquid seal. At the end of a long run only a few wheelbar-

rowfuls of-carbon are found in the separator (Smith, Ill,

.1130).

Like the prior coil cracking. art, and unlike ‘Dubbs’s _

« 59 pes

process, the respondent applies botli the cracking heat and

the cracking timé to the oil in the same part of the appa-

ratus (the coil), and reduces pressure and checks the crack-

ing operation beyond the pressure reduction valve, so that

practically no cracking ocenrs in the vapor separator.

‘Also, like all the continuous prior art cracking processes,

respondent withdraws residue continuously during the run.

_ Like all cracking processes of the prior art, (except

Behimer’s),,and unlike the process of the Dubbs: patent,

respondent's process is limited to the use of a clean stock .

‘as charge material to the coil, and to the necessity of limit-

ing the cracking operation in the directly- fired coil to that

point short of which carbon would begin to deposit on the

highly lieated metal (Smith, IT, 1126).

Unlike the process de fined in the claims in sutt of the

Dubbs patent, there is very snbstantial vaporization of the

ou in respondent's cracking coil. | .

_ Like the process of the Dubbs patent, respondent: returns -

reflux to the-coil inlet, a step, however, which is-disclosed in

the prior patent art (post, pp. 61-77), and which-in re spond.

ent’s process, has solely the functions and benefits which it:

had in that prior art, namely, conservation of the contained

heat of the reflux. In respondent's operation this step does .

not have the distinctive function that it has in the Dubbs

patent, for respondent deliberately cools the stream enter-

ing the vapor separator to stop the crackin: reac tion.

The product made in respondent’ s process is the typieal

unsaturated, off-color, strong-smelling, hard-to-treat gas- .

oline characteristic of high temperature vapor phase pro-

cesses. This product is no longer objectionable, but is to-

day at a premium becatise it contains the valuable anti-—

knock qualities requisite for use in modetn high compres-

sion engives (Reiman, III, 1230; Smith, III, 1135).

60

a"

THE PRIOR. PATENT ART DISCLOSES “CLEAN CIRCULATION”.

The District Court held against the respondent, and in

favor of pétitioner, on the question of whether ‘clean cir-

cuiation’’ was disclosed in the prior patent art, and the

majority of the Court of Appeals did not pass on the ques-*

‘tion. Judge Lindley, however, concurred in the affirmance

of the judgment on the ground that the Dubbs patent.‘‘ was -

invalid because the prior art patents showed anticipation”

(VII, 3584): Moreover, in the recent Tenth Circuit case of

The T exas Company v. Anderson-Prichard Refining Cor. .

poration, 122 F. (2d) 829, the Circuit Court of Appeals”

held that certain of the same prior art paténts relied on in.

the case at/bar disclose the so-called ‘clean ‘circulation”’ |

steps in a cracking process. The patent there in suit was -

Behimer 1,883,850 (post, p. 77) which, like Dubbs, solved

the carbori problem by a two-step cracking process. The

Texas Company, like petitioner here, sought to ignore the

basic cracking process of the Behimer- patent, and.to secure.

; for its claims an interpretation covering ‘‘clean circulation” .

broadly in any type of cracking process. The decision of

the Court was that this construction was inadmissiblé , and,

- that the claims, if so construed, were invalid in view of the

prior patent art. :

*.The prior art wilinnin which the Tenth Cireuit Court

held were disclosures ‘of “clean circulation” are Piel-.

sticker, British" No. 1308 of 1891 (DX. 790, VII, 3531) and —-

United States No. 477,153 (DX. 792, VII, 3126), Ellis No.

1,396,999 (DX. 804, VII, 3352) and Halk No. 1,175,910 (DX.

793, VII, 3200). Not-one of these patents was cited against

the Dubbs appiic ation during the Patent Office prosecution. °

a oh A

- Affirming District Judge Kennedy's decision reported in 32 F

Supp. 347. The decision on appeal was handed down after District

Judge Holly rendered his Opittion in the, case at bar.

2 2

“

“

ae Se al

ee

————

.

-

i

|

(1892) -

BRITISH PAT. NO. 1308 (4

891)

.

Fic..

oy

)R, REIMAN

INTLRPRETED —

R US. PAT NO. 477153

61

_ These patents do not teach. Dubbs’s two-step ‘‘fireless

cooker” cracking system. and, therefore, only anticipate

Dubbs’s claims ‘if, as petitioner contends, they depend -for

novelty entirely upon the ‘‘clean cireulation’’ idea.

Pielsticker British Patent No. 1308,. and Pielsticker

. United States Patent No. 477,153.—These two patenfs may

be considered together because their disclosures are sub-

stantially the same. The figures shown in the drawings of

these patents are not assembled to show a complete ap- -

paratus. Accordingly, respondent’s witness, Dr. C. K: —

Reiman, prepared an assembled drawing (VI, 2819) which

is reproduced opposite this page. Dr. Reiman’s testimony

us to these Pielsticker patentx appeats in Volume III, at

pages 1207-18 of the Record. _

_ Referring to the drawing, the supply of oil tobe charged

to the system is contained in the tank A. From this supply —

tank, the charge is introduced by the pump C into the crack-

ing tubes D, from whence it is passed ta the retort I. Both.

cracking tubes and retort are fired and cracking takes’

place in both.’ From the retort, vapors pass to the de-

phlegmator or condensing dome P, from the top of which

the ¥apors of the desired product are led off to a final con-

denser, and from the bottom of which the condensed vapors

of the insufficiently cracked products (réeflux) are’ returned,

according to the specifications of both the United States

_ and British. patents, either to:the retort I or ta_the oil

supply tank A. The return to the tank A is shown by the

line carrying the reference letter P’. . wt

In both the United States and British patents, residue

from the cracking operation is withdrawn through a draw-

off line marked N on the drawing and is not returned to

the evstem. F

MIS PURPOSE SELF EVIDENT

Ol, PUMP IS AVAILABLE

REFLUX CONDENSING Dome

USE OF PUMP FOR THs

SATISFACTORY HC

ve

atisse

* ** .

.

wre cagee

' HEATING AND

CRACKING. TUBES

] SEE-CLAm © BRITISH Par.

POR REFLUX RETURN.

STEAM

4 cCoIL

;- @&

_ In the supply tank A, the reflux from the condensing

| dome’ P mixes with the fresh charge, the mixture then pass-

ing to the cracking tubes D via the pump C. Fhe return of

reflux to an oil supply tank is one of the “clean circulation’’

_ alternatives disclosed in the Dubbs patent in suit wherein

_the supply tank is designated by the letter L. Petitioner.

has omitted from its Plate TIT this alternative teaching of .

clean circulation.

It should be noted that this method, disclosed in both

‘Pielsticker and Dubbi, of returning reflux to a supply ta

presents no mechanical] difficulties whatsoever. No hot Bil

pump is. needed, nor is it necessary to elevate the

dephlegyator to‘any subalantial height. The reflux simply

flows back to the supply tank where it mixes with the fresh

‘charge. From this tank the mixture is pumped into the coil.

The British PielSticker patent No. 1308 teaches, in claim:

-6, another alternative—that of. returning the. reflux: from

the ¢ ondensing dome directly into the heating coil (the

other ‘‘clean circulation”’ alternative of the Dubbs patent).

This reflux return line is shown on the drawing as a branch

of ‘the line P’- leading to and. through the pump. marked

‘*Reflux Pump" on the drawing, and from there to the coil,

where thie reflux mingles with the fresh charge. Pielsticker,

_ does not disclose this reflux pump, but ‘it is an obvious ex-

pedient once a pump capable of handling bet gil became -

available (Brown, IT, 718: Reiman, IIT, 1211).

‘Claim 6 of the British. Pielsticker patent is as : follows:

(WH, 8534) :

Tn. apparatus for the evistinuces distillation. of

_ hydrocarbon and other oils and liquids, a dote, con-

“necting a retort with the goose neck and condenser,

provided inside at its base with an annular cup, in

which |the heavier portions | of the oil vapours con-

63

. densed in the dome collect, and from where they can

’ be returned inio the supply tank, or into the heating

coil, or into the retort, substantially as described.’’

The Pielsticker patents describe cracking of the hydro:

earbon oils in the following terms feel No. 1308, p. 2,.

lines 45-49, VII, 3532) :

ue This dome may be hint with a number

of baffle plates S, which force the vapours to come in

contact with the inner surface of the dome P, where the

heavier portion of them are caused to condénse and

~~ returning to the more heated surface of the retort, are

reduced in gravity and finally distil] over and condense

in the condenser. Fe, =%

To reduce i in gravity is to dgnck the oil (IIE, 1204). The

further statement that when reduced in gravity the oil

“‘finally’’ distills over also shows that cracking precedes,

and is distinct from, distillation. If mere distillation were

intended, as found, by the District Court, the word ‘*fi-

nally’’ would be entirely superfluous.

The patent also states (p. 3, lines 7-13, VII, 3533):

“When it is intended to produce still lighter gravity

oils, a valve-K may be placed between thie outlet of the:

retort I and the condenser U”’ ete.

The production of ‘‘still lighter gravity oils’” likewise

teaches cracking (ITT, 1208-9).

‘The corresponding passages in the United States 'Piel-

sticker patent No, 477,153 are found on page 2, lines 76-83,

and lines 106-117 (VII, 3136). .

The function of the dome P is expressly deséribed i in the

Pielstic ‘ker patents Qs a condenser. Thus, the British pat-

ent says in the frst passage quoted above that the “heavier

portion’’ of’ the vapors ‘‘are caused to condense’” by

‘contact with the inner surfaee of the dome P’’ which is,

of course, air-cooled (Reiman, ITT, 1209-10).

Ue 2

_ Claim 6 of the same patent also describes the function

‘of this dome as a condenser. The claim says that the dome

is ‘‘provided inside at. its -base with an annular cup, in

which the heavier portions of the oil vapours condensed -in

. the dome collect, and from where they can be returned into

the supply tank, or into the heating 7 or into the retort,

substantially as described.”’

Petitioner conu sided in the lower courts that the crack-

' ing process disclosed in the above quoted passages from

' the Pielsticker patents, “is not a cracking process, but is

mere simple distillation. But in a former case* petitioner

construed the United States Fielsticker patent as teaching

&-cracking process with condensation of the reflux and its

returh ‘to the system for further c.acking (DX. 827A, VI,

3013)—a construction which is in agreement with the plain —

disclosure of the patent. ; .

Opposite this page is reproduced a drawing showing in }-

. Figure 1,+ the drawing of Pielsticker’s British and United

". States patents as interpreted by respondent's expert in the -

case at bar (DX. 791, VI, 2819), in Figure 2, Wniversal’s in-

_terpretation of the. United States: Pielsticker patent in the

Warner-Quintan case (DX. 827B, VI, 3015), and in Figure

‘ 2, petitioner's present interpretation of the patent (PX.

837, 1V, 1875). From this drawing, it is apparent that in

the Warner-Quinlan case, when Universal was defendant,

its construction of Pielsticker agreed ‘with respondent's

eee ee 1 —_—_— ——

* The Teras Co. ¥. Warrer-Quinlan, Inc. (U.S D.C. for Dis.

_ trict of New Jersey, 1927). Warner-Qiinlan, Inc, was a Uni-

versal licensee, and Universal, by counsel who also appear for it

in the case at bar, successfully defended that case and wrote the

“Brief, excerpts from ‘which are here iv evidence (VI, 2997.3015)

- t This ‘Figure uses the reference characters of the Pritish patent,

and where these are not the same as the U.S. patent, the corre-

‘sponding referencé characters of the U. &: patent are also shown

in red. 7

ve

%

+.

AS INTERPRETED. Fic... | (Seren END tom é

SLren Np sea . sine

DR. “REIMAN | Le Ee olay ee

PIELSTICKER U.S. PAT. NO. 477153 (1892)

ne es BRITISH PAT. NO.1308 (1891) © oe

Olu a

“TANK: - STEAM ae rae | re | | | | <—

: , COIL . HEATING AND — ‘ . | ; ee. oi .

+ CRACKING TUBES .., = . Oe

—— Pee thee :

Gq mii Bae.

- ’ ‘ f a ‘ dl

wean ae Y

MP_C FIRE Co) FIRE . ; on :

N REFLUX PUMP : RE SIDUUM DRAW OFF

| E CLAIM 6 BRITISH PAT. =

» , RETURN. — Seems 5 ne

an or ee ail USE OF PUMP FOR THIS PURPOSE SELF EVIDENT PROVIDED

SATISFACTORY HOT OIL PUMP tS AVAILABLE | | vias

: ; peas Fic. ZL. : , P ;

| DX=827B U.S. Pat. 477153.(Ex. 181, as Interpreted by

Defendant in Warner-Quinlan Gage, Plaintiff in Instant Case)

_- Pleusticker -Der't Exe. 184: Bri, Comment

. Pressure Vat = &

“74

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4

EN RQ Surrr Armospneric Pressure

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a ‘ . & BS ASA SS Sw ' '

s oe ASAAN SAN QAY NN wN*A Ce VS e ' ‘ '

he Br ADs Awa h SS NOSAY SN AY

Qn tt = = FAR HANEY YS 8 ~\ \) SANSNAA ES Qt 8 Sige 3 ene = on = eek ‘

RS Mecca nae ae SX AAARAAAY SYA RN AAAY SAA Tena end comes . 'y

NN) WAS DVO AN S\N aN WWWX ~n“e ces a "

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_ DX-827B U. 8S. Pat. 477153 (Ex. 181; as Interpreted by :-

Defendant in Warner~Quinlan Caeé, Plaintiff in: Instant Case)

| | Paria, Comocnsce

PrecsticKeRr -Der’t Exe. 181. | ee

, ws SY kro ;

wt Ny ATMOSPHERIC ae

a SS — |

Heating Con S Ay | ~. La

CATING N | S a Emcanceo Varun CHameer : a. | varons

4 \ .Y song ‘ RECO ART AR CHATS TATA AT TATE SH

SSSIOSESSS, ASSESS ASSIS SE. 7]

—_—— € ‘ Conoenser

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5 N's ' <¥ 4° : :

ws N ott N ts ‘N a? ,

bs eeAQyZ SS “"

' a o#SAN ‘ ty =

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bed BSSSSSSES SS vg ds -- ee ad ft

OS Bec cc coc ce y Ss \ RAANNS WY \ . 7 BN AANS See Ss ae SG---7-- ~=--aNY ei

WYP WME PMHYNLEN RY SSS LMAO s0gQ vey \y '

Ry MAAN WQS LY RS DYAn~e goer Y. . RS J ]

~ S&S) BISOOAO SOS Ni bess SY a: = a

Mine oR Os oe Pn < - A ig ee a : is

| ares a Continuous Tar Discnanse

, f 1G. © | - .

; As interpreted . PX~-837 (As Interpreted by Plaintiff in Instant Case.) . a

+ by Or..Brown . aes : : ~

— y _ , ; Vaper phase cracked very hight axl or permanent gas,

: .~s “ . -— + Saagnlie aisiilathan epapment - — oe ie z

~ - ; fe veapeir phase cracking eguipment ll o

as 2 a 2 5 : * pe

a £ - as . ; ,

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construction iri the case at bar; and differs widely from its te

present inter pretation of the same patent.

Petitioner’s present drawing (Fig. 3) disregards Piel-

sticker ’s coil and drum cracking process, and portrays only —

a further cracking disclosure in Pielsticker where he wants

to praduce * very Tight vit or permanent gas“*—a disclosure

of no concern whatever to the issues. in the -present case.

In the W arner-Quinlan. Brief, Universal stated, with re- —

- spect to the United States Pielaticker patent that (DX.

827A, VI, 3013) :

c# © * Vapors are described as condensing theréin

[dome R], the. condensate returned and reduced in

gravity or otherwise stated, reeracked (p. 2, lines 76.

to 83).”’ ae el eatin

Univ ae also contended that references to carbon

in the Pielsticker patent likewise lagitented cracking (DX.

827A, VI, 3013, 3014) :

"The excessive quantity of carbon formed in the coil

D is the result of cracking of the oil snanees. Carbon

only forms when cracking occurs. :

7” : ie = = ‘4: *

‘Plaintiff may suggest that the carbon repeatedly

referred to in the patents is in fact a deposit of some

other material. This view would contradict the plain

statements of the patent ‘that carbon is formed in the

9 heating tubes and make unnecessary the use, of the

highly developed Pielsticker apparatus intended to

overcome the carbon. menace. The patent reférs to

carbon formed in the coil and it must be assumed that

the skilled patentee had in mind carbon and not sdéme -

other material that plaintiff may suggest. Such a view,

if entertained, would permit the disclosure of any prior

art item’ to be completely nullified hy speculative sug-

gestions.’’

Universal’s same Brief recognized that in the Pielaticker

patent ‘residuum | is q@ontinuously removed from the

>

, 6

re tort L, and isolated from the sy whan? and that “charging

oil and reflux’’” are returned -“‘for recracking’? from ‘the

_ supply tank A (VI, 3013).° Thus Universal has previously

admitted that Pielsticker discloses the two ‘“elean cireula- ;

tion’’ 1”? steps w which it now asserts

—— the Dubbs patent.

Ellis Patent No. 1,396,999 (DX. 804, VO, jn —Oppo-

site this page, we reproduce Figure 3 of the Ellis: pat-

ent. "The process of this patent is fully described by Dr..

Reiman’ (ITT, 1243- ea — ;

The feed for the .process, which is a distillate stock, is

foreed inta the cracking coils 4, 4a, 4b, and te at the point

~ marked 5. Mt this point also, steam may be introduced ats

into the charge. The oil is vaporized and cracked in the

~ cracking coils and the effluent from the four cracking coils’

combines i in the pipe 7 and enters the large digester 8, in

which : further cracking : ‘is carried ‘on.’.From the digester

8, the hy drocarbons, in vapor form, enter the fractionating

device 10 through the dine 9. This fractionating device - -

is described i in the patent-as (p. 1, line 104, p. 2, line 2):

ei: ier dephlegmator or fractionating column

which preferably is of a ty pe used in the rectification -

of aleohol and the like in place of the ordinary coarse

dephlegmator used in the present day rectification of

oil s * ail ge

“This shows that the pe ee used is a bubble

tower—the most effic ‘ient of all fractionators. All the va-

pors entering the bottom of the bubble. tower are cooled.

and condensed therein except the gasoline vapors which .

are taken off ov erhead. ‘

The ‘bubble tower is ae three petcocks 11, 11a, and

‘11h, from Which three sidestreams of ‘condensate - of dif-

fering gray ities are to he withdrawn TI, 1245- 6).

*

eT oy” 6. ELUIS.

| MAKING GASOLENE SUBSTITUTE. ©

APPLICATION FILED OCT. 4, 1913, ©

Patented Nov.-15, 1921.

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The material ‘‘withdrawn"’ (pat: p. 3, line 38, VIE, 3359)

1 the pet k 11,. the lowest one in the tewer, is, of

course, the residutim produced in the tracking operation,

which is not recycled» The material from the peteock Na

is the gas oil which is likewise not recycled. The. third

‘sidestream from the highest petcock 11) is a hydrocarbon .

fraction described in the:patent as a kerosene and. this

kerosene is recy cled to the cracking coils (III,- 1246). “Thus, -

the patent states (p. 2) lines 5-14): .

“#* © a ‘dephlegmator may be arranged to yield —

: as fractions a gas oil and unconverted kerosene espe- ~

cially if the latter [kerosene] is employed as the raw.

‘material. Preferably, however, the kerosene is sepa-_

rated from the heavier oils and the former | kerosene]

returned to the decomposing tubes while the latter

fheavier oils] which is preferably separated as a frac-

_ tion similar to gas oil, is collected and suitable dispo-

sition made thereof.’’.

Thus, the. kerosene withdrew n at Wb i is not only “sepa-

rated’? from the residuum withdrawn at-11, but also. from

the gas oil withdrawn at 11a. ee

Accordingly, Ellis returns the clean kerosene-reflux to

the cracking tubes and collects the » heavicr fractions—gas

oil and the residaum,—which ave not reiurned. This is

“clean circulation” as petitioner defines it. The patentee’

clearly distinguishes. between the kerosctie fraction, naar

he teaches is.to he ‘‘retunned to the decomposing tubes,’

and the. heavier fraction (gas oil), Which he teaches tig’

collected” fobviously, ° in a tank] and suitable disposition

made thereof.’’ vickes ie)

Petitioner contended i in the courts below that Ellis ia 'S

not disclose any particular means for returning reflux

admixed with the fresh feed to the.cracking coil.

Ellis. stiys, however, to “‘return’’ the kerosene reflux to

hy

68

the decomposing tubes, and the man skilled. in the art

' could readily avail himself for this purpose of Plelsticker’s -

- supply tank: as Ye

Furthermore, hydrostatic return of . reflux was well

"known in Eilis’s time, and Ellis’s dyawing shows‘an ele.

- vated dephlegmator which would f urnish hydrostatic pres-.

sure (1II, 1247). Ellix’s efacking coil is designed to permit

the oil to flow therethrough with fairly low frictional re- -

sistance. Thus, Ellis shows four parallel coils: such as

were used by the petitioner iy one of ita early installations

at Wood River, Illinois, known as the’ Roxana Unit No.. 1,

* for the purpose of reducing the hydrostatic head required.

feet (If, 602). . \

As of Dubbs’s filing date the man skilled in the art could

have carried out Ellis’s instruction to “return” the reflux

by using the Thompson hot oil pump ( post, p. 81).

Hall Patent No. 1,175,910 (DX. 793, VII, 3200).—Oppo- ©

site this page, we reproduce the drawing of Hall patent No.

1,175,910. Dr. Reiman’s testimony regarding the tech-

nology of this patent is found in Volume III, pages 1218-30

of the Record. + a 7

Referring to the drawing, the oil is passed through 4

pump into the preheating coils 2 and ther into the cracking

tubes 4, where all the cracking \of the process is conducted

in substantially vapor phase (HII, 1219). The material in

these tubes is maintained under pressure by the valye 8, .

“ beyond which pressure-is released. This releasé of -pres-

sure produces, by expansion, a réduction in the tempera-

_ture of the cracked stream of ‘hydrocarbons which then’

passes to the first'dephlegmator_9. In this dephlegmator,

the material is further cooled, and a separation is effected

The dephlegmator in Roxana No. 1 gave a head of only 12

ONT a ara OW. AL HALL. :

PROCESS OF MAKING MOTOR FUEL.

APPLICATION FRED JAM. 23, 1915.

Patented Mar. 14, {916.

1,175,910.

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69

of vapors from the liquid ‘‘beavy residuc”’ (pat.

line 122; III, 1218-19). This heav\, residue is iiaen,

from the system through the line 12 and the vapors are

transferred by line 13 to the second dephlegmator 14. In_

this second dephlegmator, there is further cooling and con-

densing of the vapors and separation’ of this condensate.

from the vapors of the desired product, which latter passes

out of the top of the dephlegmator 14 as vapor which is

eényerted into liquid in a final condenser. Both dephleg-

mators aré subjected to air cooling to reduee the tempera-

ture and this, with the further cooling resulting from

pressure reduction, stops cracking in these dephlegmators.

The condensate withdrawn from the second dephlegma-

\ tor 14 is referred to by Hall as a “‘light residue’’ (pat. -—p. 2,

line 1). Concerning the disposition of this material,-the

patent says (p. 3, lines 2-4) :

“* * * This pesidue is usually of a gravity of about

0.880 and is a0 tow ciaterial tr © cocend ren

through the cracking coil 4.’’

Respondent contends that thix teaching of yaing ‘the hight

residue ‘as raw material for a second ran through the .

cracking coil 4"* is a teaching of what petitioner calls ‘‘clean

‘cireulation:"’ Petitioner contended that the indication is

insufficient because the passage might be construed to mean

the collection of the light residue oy reflux and its use on

a subsequent occasion: Further light is thrown upon how —

~ this language would be construed by the man skilled i in the

* art by reference to Hall's other patents, which are referred, |

» to by application number in the Hall ‘910 patent (p. i

column 2, lines 3-5, VII, 3203). Thus, in Hall patent No

1,242,796 (VII, 3230), i in referring to the advantages aceruy

‘ing’ from pressure reduction at the coil outlet and before ;

discharge into the first dephlegmator—a feature. commop

j

| ae 70 os

both to the 910 and °796 ‘patents—it is stated in the latter

Patent (VII, 3232, p. 2, lines 40-51) ;

‘By thus lowering the pressure and cooling to the

desired temperature, substantially “all of the free car-

bon and very, difficultly yolatile material separates in

“the first trap 10,* and the material Which separates in

the second cooler and trapt is free from solid carbon and *

. free trom coke-like material, and this second condensate

(termed ‘light residue’) can be directly employed for

making a second ‘run’ through the apparatus, without

filtration or other preliminary treatment.’’ -

~~ Thus,. Hall teaches that Where pressure is reduced and

Where there.is sufficient cooling, the condensate in the see-

ond dephlegmator is clean enough to. be ‘directly’? em-

ploved for making a second run without filtration or other

preliminary treatment, This, combined with the with.

drawal and non-return of “heavy residue’, taught in the

Hall patents, is what petitioner calls **clean cireulation.’’

Vapor Phase Processes Operated Successfully Regardless’

of Petitioner's Theories.--P+titioner asserts (Br. p. 13)

that vapor phase processes were failures because coke or.

carbon was deposited in thes heated tubes, thus foreing shut

‘downs, as the. result of separation of vapors from the

liquid oif e¢eurring in said heated tubes. This assertion is

based on its expert's theory that t Yaper phase cracking

you must have *tcompletely dry" vapors. In order to get

“such Vapors, Dr. Brown testified that the charging stock

must be ‘of such a low boiling range’? é. ¢., low end point,

so “that it ix converted to dry vapor by the time it begins

to erack actively in the tubes" er **that the material ‘he

“passed through a vapor liquid separating step prior ‘to

| * Corresponding to the first dephleginator 9 of Hall's 10

patent.

* Corresponding to, the second dephlegmator, If of Hall's '910

patent. : J .

71

‘entering the cracking tubes and only the vapor freed from

“entrained . liquid be introduced into the cracking tubes"

(III, 1364). | | |

‘However, as Dr. Brown conceded that a gas oil, stock

having an end point of 750° or possibly 800° (III, 1443),

was “low-boiling’’ within the requirements of his theory,

“and that it could be charged to the coil in vapor phase

operations without a ‘‘vapor liquid separating step, he

‘in effect eqneeded that his theory requires nierely that, a

‘clean distillate stock must be used—a fact which the art

well knew (III) 1461-2). aM Lo

As ‘the basis®for his “vapor liquid separating step’

theory, Dr. Brown relied on his experience with a small

pilot plant operated at Chattanooga, Tennessee, in 1920 or

1921 and upon ‘calculations which he had made (III, 1462).

‘He did not submit any tangible evidence as to charging

stocks used or other ‘operating data regarding the opera-

tion of this pilot plant, and did ‘not staté what the caleula-.

tions were. = ; (Tae

‘Against these theories, the Revord shows as fact that :

(a) At The Texas Company ‘s plant .at Bayonne, N. J...

a, commercial vapor phase operation was carried on for

about two vears, using. for a charging stock kerosene (II,

852), redistilled paraffin gas ot (LIT, 1943), and paraftin

‘gas oil (DX. 635, V,. 2445-6). During this period, in Janu-

ary and February, 1917, a continuous run of fifteen days

was made on kerosene charging stock (DX. 850, V1, 3033).

3 (b) At the-plant’-of the Skeily Oil Company, Mr, How-

“ard V., Smith successfully condueted, from 1927 to 1938,

commercial vapor phase processes designed by the Skelly

Company dul, 1172) that used a gas oil charging stock.

These operations were conducted -without Dr. Brown's

\

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magic **vapor liquid separating step** and the vapors were

cracked when ‘“ wet" as well as after they, became dry 11,

ae, 1171. 3). : |

“(e) Dr. Reiman testified (ILI, 1229, 1249, 1297) to sev-

eral years’ experience. in vapor’ phase. cracking operations,

using an ordinary gas oil (32-35 Bé.

‘as his charging stock

without encountering any difficulty. \\. ~

‘

AL L THE STEPS GF KESPONDEN’ NTS PROC ESS ARE DISC LOBED IN

“THE PRIOR PATENT ART, AND. ALL FUNCTION IN RESPOND.

ENTS OPERATION PREC ISELY AS IN THIS oo.

Before correlating (post, pp. 75-6) the steps of respond.

ent‘s operation with the similar steps in the prior patent

art, we must first describe the Benton, Alexander and

Greenstreet patents.

Benton. British, No. 1922 (VII, 3527) .—This patent,

which issued in 1887, discloses a.coil cracking operation

with continuous charge te the coil, and continuous residue

withdrawal. It does not show the return of reflux to the

coil inlet. | |

Alexander Patent No. 1,407,619 (VII, 3364) .——Alexander’

teaches eight different variations of craéking processes,

but the only one in which we are interested is that illus-

ws Petitioner contends (Br. p. Eh) that the Alexander ‘patent is

‘inoperative: because a so-called ‘Alexander process at the Gulf °

Refining Company. in 1917 was a failure. A sufficient answer is

that this operation did not embody the process taught in the Alex-

ander patent with reference to Fig. 8 which is the disclosure that -

I

respondent relies upoh. Taber, who was in ‘complete charge of

this operation, admiftgd that he did not know (IIL, 1348) what

particular process of the eight figures of the Alexander patent was

operated.’’. Mechliag testified (IIL, 1355) tpt at the Gulf Refin-

ing Company “there were 40 parallel passes to one vaporizing

furnace’’ and that he had ‘‘ never tried” tly single tube vaporizer

dise losed in the Alexander patent. ; we

f

73

trated in Fig. 8 of th: patent and described in the : specifi-

cation in the passage on page 6, ~_— at line 42 (VII,

3378).

Dr. ‘Reiman prepared a . simplified drawing of this opera-

tion. Referring to this drawing (DX. 808, VI, 2897), the

process described ’ by Dr. Reiman (III, 1256- 64), is the

same with the flap up and the flap down, except that with

the flap up a shell-still is shown for-vaporizing the oil to

be cracked, and the reflux is fed to the shell still by gravity,

_ whereas, with the flap down, the vaporizer comprises a.

' tubular vaporizer 75, to. which the reflux is fed by a reflux

pump shown in Alexander’ s drawing (III, 1258). Both

alternatives, 1. e., shell .still, or coil, are disclosed in the: -

patent. . Alexander fully discloses the ‘‘clean circulation”

_ steps of continuously withdrawing residue, and continu-

ously returning clean reflux to the cracking coils. |

Alexander teaches (pat.-p. 6, lines 44-53, VII, 3378) the’

production in situ of a clean charging stock for the erack-

ing coil, as practiced by respondent. He utilizes’ the heat

contained in the highly héated, .cracked effluent vapors

from the cracking tube to distill crude oil in the vapor —

separator or exchange tqwer 110. The condensed vapors

. resulting from this distillation are returned with the reflux

to the cracking coi! as charging stock for the process. The -

dirty residue is withdrawn from the vapor separator.

a:

Alexander adds to the prior coil exac king art the so

' ealled ‘‘quenching’’ step whieh serves a dual parpose. It

stops the cracking in the vapor separator and produces ..

‘elean charging stock for: the: cracking eoil,

The description of the Alexander : process (VII, 3378,

_pat. p. 6, lines 42-100), incorporating the steps of returning

clean reflux to the coil inlet and of cooling and distilling

74

out a clean stock in situ can be directly applied to re-

spondent’s operation. With respect to this description in

the patent, petitioner’s expert, Dr. Brown, admitted that

(III, 1405) : eS . ; .

“We have then 4 vapor phase operation supplying

vapors to the cracking tubes 113 which could be oper-

ated in a reasonably. satisfactory-manner insofar as

~ the Keeping of the plant on’stream is concerned, pro-

vided the cracking tubes and the other parts are prop-

erly designed.”” sme Sar oat

_ Greenstreet Patént No. 1,740,691 (VII, 3476) .—

The drawings and specification of: this patent are com-.

' plicated ‘and difficult to follow only. because the patentee

chose to describe six topping* and six eracking units, all in

one engineering drawing. Respondent's simplified drawing ©

(VI, 2459) shows only one-topping and one cracking unit

taken directly from the patent drawings. It iHustrates all

the steps of the Greenstreet patent, and was used by Dr.

Reiman in his discussion of this patent (III, 1264-86). Dr.

Brown made use of a like drawing (PX. 838, [Vy 1879) in .

order to make his presentation. The following general .

description of Greenstreet’s process steps is not in ‘dispute:

- Greenstreet preheats crude oil, drawn from a tank 1la,

_ in the topping coils 15, and mixes this partially vaporized.

crude with the high temperature cracked vapors from the

vapor phase eracking coils 2 inthe digester tank 22, where

a further quantity of the crudeis vaporized, and -the heavier

parts of the cracked vapors are condensed: Residue from’

both the cracked vapors-and from the heaviest part of the

crude is withdrawn from the bottom of tank 22 through line |

41 and is discarded. The vapors from digester 22.(contain-

ea

1

ing ‘‘gas oil’’ froma the c.ude, and’ unconverted heavier

fractions from the cracked vapors, together with crag ed

gasoline and the gasoline naturally occurring in the crude,

pias permanent gas ‘and sore steam) are led through eight ;

other digester tanks in ‘series, and from the » top-of. the last———

_ of these;-only thie vapors of the desired produet, gasoline

. (and the permanent gas and steam), pass on to the. final

- condenser. All of tlie fraction$ heavier than gasoline, that

are ‘‘condensed"’ in these eight. digesters, are collected

and fed through the line 43 to the ‘‘distillate storage tank —

11’’ (pat. p. 2, line 90). This is the only material which is

fed to the vapor phase. cracking coil. ... ae

Thus, Greenstreet shows respondent's ‘sen of preheat-

ing a crude charging stock and distilling it by heat exchange

with the hot effluent from the cracking coil in order to

3 prepare in situ a combined gas oil and reflux charge for the

. cracking coil. ah eee

Summary.—Op}

art antecedents of respondent's coil cracking process. In

this diagram. the figures are arranged sv that the several

steps of each process appear beneath eath other. The

coloring indicates dike material in each figure, i. ¢.. fresh

charge—blue, combined feed —green, reflux—yellow, and -

residue—brown. | Peo.

pa the next page we show the prior

Respondent’ s is a continuous coil cracking process like

that disclosed in the Hall patents hereinbefore dese ribed. ioe. ,

In respondent’ s process, as in Hall’s, (1) substan- .

tially all the cracking is carried on in the cracking coil

‘wherein the oil is brought to the cracking temperature,

‘substantially vaporized, and cracked; {2) pressure is re-

dueed beyond the pressure ‘regulating valve ‘and before

the effluent from the coil enters the vapor separator; and

76

(3) the effluent from the cracking coil is cooled by expan-

sion due to reduction in pressure. _ Tay,

_. Respondent further cools or quenches this effluent by

+” the introduction of a cooler stream of topped crude from

the low pressure furnace as in Alexander and Greenstreet.

Alexander's quench is a stream of cool crude oil used to.

reduce the temperature of the hot stream from the -crack-

ing cotl (III, 1259). The heat of the cracked stream’ is

used to distill the crude oil to produce a clean- charging

stock: for the cracking ‘coit. Greenstreet and respondent

* preheat this stream of quench oil, so that the ‘heat con-

tained in the cracked oil stream will distill an even greater

Pg of clean charging stock for the cracking coil (III,

y 78; Re

a

III, 1127). ae

/--The so-called *‘élean circulation’’ -stéps are disclosed in _

the prior art patents to Pielsticker, Hall, Ellis, and Alex.

ander ( ante, pp. 61-70; 73), Like theni respondent continu-

ously withdraws residue and returns reflux to the coil inlet.

This, the steps of respondent's process, viz., (1) heating

‘and cracking the. oil in a coil, (2) reducing the pressure -

at. the coil outlet and cooling the hot stream ‘to stop the

cracking thereof and to effect a separation of vapors from

the heavy residue, (3) continuously withdrawing | this

residue and not returning it to the system, (4) distilling

preheated topped crude in the separator to make in situ a

clean charging stock for the cracking goil, (5) the further

dephlegmation of the. vapors ‘in the bubble tower, and (6) —

the return of the insufficiently cracked condensate, together ©

with the clean charging stock, to the coil inlet,—all are

taught in the prior art, and all function in the respondent’s —

operation precisely as in this art. |

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77

THE. APPLICATION dr ‘OTTO BEHIMER. ‘FILED NOVEMBER 21,

1918, WHICH ISSCED INTO PATENT NO, 1,888,850, DISCLOSES

ALL THE PROCESS STEPS.OF THE DUBBS PATENT...

Thi¢ application (DX. 696, VI, 2653 to 2669) was filed. °

four months earlier than Dubbs’s. filing date of March 19,

1919, which is the earliest date of invention claimed for

Dubbs. Behimer’s application clearly stands as prior art

to the subject matter of the Dubbs patent. In 1937 Uni-

‘versal acquired full licensing rights under Behimer patent

No. 1, 883,850 which issued on the application in question.

Opposite this. page, we reproduce the. drawing of the

Behimer: application as filed. A coil 1 is located in a fur-

nace. In this coil, the oil is raised to a cracking tempera- _

ture, but without permitting any substantial decomposition

or cracking of the oil while in the coil. From. the coil, the

oil is discharged into the chamber 11 wherein cracking con-

ditions of temperature and time are maintained, and

wherein the oil is cracked’ and the: carbon is deposited.

The coil and drwin are in open communication, and main-

tained under the same pressure (as in Dubbs’s B and € -

tubes). From the bottom of the chamber 11, residue is

continuously withdrawn through: the iine 12, and is not re-

turned to the system.®From the top of the chamber, vapors

pass off through the line 13 to the dephlegmator 15. In

this dephlegmator, separation’ is - effected between the

vapors of the desired product, which pass off through the _

line 16 to the final condenser 18,:and the insufficiently

cracked materig] which is condensed as reflux and collected

in the bettom of the dephlegmator, from whence jit passes

down the pipe 17\ through the jet 7a, and thence tothe inlet

of the coil 1. “All-these steps, save the use of the jet 7a, are _

the same in Behimer and in Dubbs.

.

78

The Ristrict _— held that the jet pump 7a was inopera-

ai tive, beeduse Behimer had been unable. to make it work in

commercial operations, and, _hence, that the application

failed as an anticipation of Dubbs, who, according to the

District Court, taught as an inventive concept (Conclusion

No. 11, VI, 3061), the hydrostatic return of reflux from

the dephlegmator to the coil inlet. Respondent contends

that this method of return is. also taught in Behimer, and

, Was anyway oid in the art. But for this one feature it is

conceded that Behimer anticipates Dubbs. .

The Court of Appeals did not pass on the sufficiency of

Behimer as an anticipation of Dubbs. This issue was not ©

before the Third Circuit courts.

Behimer’s Disclosure of Rydrostatic B Return of Reflux

s Better Than Dubbo’s Similar Disclosure.—As to the

- means for returning reflux from the separator, or dephleg-

mator, to the coil inlet, the Bebimer application as filed says

that (DN. 696, VI, 2659): ‘*The’ separator is preferably

somewhat elev ated so as to give a considerable head of

liquid i in the pipe 17’’ which, together with the high pressure

at which the oil in-the charging line 7 passes the jet 7a, ‘‘in-.

sures that the condensate [reflux] shall be constantly drawn

into the charging line and forced into the coil 1°’ where it

mixes with the fresh charge, thus continuing the. cycle.

Thus, the Behimer application teaches the return of reflux

to the coil inlet by hydrostatic head plus the action of the’

The comparable, a

return in the Dubbs

-ing quotation from t

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