BARRETT CO. v. SELDEN CO.

BARRETT CO. v. SELDEN CO. No. 1781. District Court, W. D. Pennsylvania. Aug. 17, 1929. For former opinion, see 32 F.(2d) 360. See, also, 48 F.(2d) 620. R. T. M. McCready of Pittsburgh, Pa., and Pennie, Davis, Marvin & Edmonds, W. B. Morton, and R. B. Canfield, all of New York City, for plaintiff, Alter, Wright & Barron, George E. Alter and R. A. Norton, all of Pittsburgh, Pa., and Newell & Spencer, of New York City, for defendant. [MAJORITY — GIBS0N District Judge.] GIBS0N District Judge. On February 27, 1929, this court fi ed an opmion, 32 F.(2d) 360, wherein Downs patent, No. 1,604,739', for an improvement ^ apparatus for promoting catalytic reaetions, was held to be valid and infringed by the defendant company. Subsequent to the filing of said opinion, counsel for the. defendant filed a petition for a rehearing. After notice to the plaintiff’s counsel, argumeat was had upon this petition wherein the matters set forth therein, as well as the issues of the ease, were discussed at eonsiderable length. Briefs were furnished by counsel for both parties, The petition contains some eight assign-men£s of reasons for the rehearing sought, Thé ^ reagon aggi d in substanee aR j t]lat tbe eollrt in its ini discloses & misllnderstanding of the construction and mode of operatioil of a Volhard petroleum £urnaee m operated by Henle, one of the antieipations of piaintiff>s patent claimed in defendant>s answer. Re-examination of the matter bas not satisñed the court that it fail-¿d to und6rstand the action of the Henle apparatus. The court, in describing the Vol-bard oven as used by Henle, mentioned an. iron tube surrounding the glass tube wherejn £be catalyst is contained. The defendant asserts that this iron tube was not an essential part of Henle’s operation of the Vol-bard oven. In the Henle publication refergnee was made to an Annalen article describing the Volhard apparatus. . This article, offered in connection with the Henle publieation, incorporates an iron tube in the Volhard apparatus. But whether the iron tube be included or not was immaterial in so far as concerned the point which the court was attemPting to make in respect to the Henle apparatus; that is, that no means were disclosed for the rapid transmission of heat from the catalyst to the kerosene bath. The second reason assigned for a rehearing asserts that the conclusions reached in the opinion are based upon the state of the /TÍ9°\°f % ^ on the state of the art in the year 1919, when tbe sieged invention of the patent in suit was made. The allegation in respeet to the basis of the conclusions in the opinion is quite without foundation in fact, and it would seem, might easily have been discemed by an examination of the whole opinion instead of picking out a single sentence and disassociating it from the rest of the opinion. This sentence was as follows: “Not to continue the enumeration of points of difference, in our judgment no chemical engineer in 1909 (the approximate date of the Henle article), without the exercise of invention, would have been able to construct any commercial apparatus for highly exothermic catalytic reactions which was based upon the principles of the Downs converter.” In this language we possibly did not clearly set forth our idea. What we were endeavoring to assert was that no chemical engineer possessed of a knowledge of the state of the art prior to 1909 would have been able, by means of the information fur- • -l i i. j.i tt i , . , ni-snea by the Jdenie article, to have conJ ^ ai«<vc> wu. structed a converter based upon the principies of the Downs patent. If this language was unfortunate, it should have been clanfied, it seems to us, by the fact that the opinion discussed all other anticipations offered in evidence either as anticipations pleaded in the answer or as showing the state of the art at the time of the date of the alleged invention. It is unnecessary to diseuss the remaining reasons set forth in the petition for a rehearing. They bring up nothing which was not fully argued and considered at the time the original opinion was filed. A reeonsideration of them — and we have endeavored to give them a careful reconsideration — has not brought any change in the conclusions first set forth. The motion for a rehearing will be denied.