UNION CARBIDE CO. v. AMERICAN CARBIDE CO.

UNION CARBIDE CO. v. AMERICAN CARBIDE CO. (Circuit Court of Appeals, Second Circuit. June 29, 1910.) No. 225. Patents (§ 328)—Infringement—Process of Producing Calcium Carbide. The Willson patent, No. 563,527, for a process of producing calcium carbide by subjecting lime and a carbonaceous deoxidizing agent to the heat of an electric arc in an electric furnace, held not infringed. Appeal from the Circuit Court of the United States for the Northern District of New York. Suit in equity by the Union Carbide Company against the American Carbide Company. Decree for defendant (172 Fed. 136), and complainant appeals. Affirmed. Appeal from a decree dismissing the bill in a suit to restrain the alleged infringement of claim 1 of patent No. 563,527, granted July 7, 1896, to Thomas L. Willson, for improvements in the production of calcium carbide. This suit may properly be designated the “process suit” to distinguish it from another suit pending between the same parties called the “product suit.” E. N. Dickerson, Louis C. Raegener, and S. L. Moody, for appellant. Charles Neave and Willis Fowler, for appellee. William Houston Kenyon and Alan D. Kenyon, amicus curiæ. Before LACOMBE, COXE, and NOYES, Circuit Judges. fFor other cases sec same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — PER CURIAM.] PER CURIAM. The question of infringement in this case depends upon the result of the inquiry whether the defendant employs the arc, as distinguished from the incandescent, principle in its electric furnace in the manufacture of calcium carbide. The burden is upon the complainant to establish by .a fair preponderance of testimony—and not by mere scientific speculation—that the defendant does use the arc. We are, however, not entirely satisfied that the complainant has sustained this burden, and accordingly feel constrained to affirm with costs the decree of the Circuit Court upon the opinion of the judge holding it; and it is so ordered.