December, 1928
INDUSTRIAL AND ENGINEERING CHEMISTRY Table V-Summary
of Results.
Flow of Air and Gases and Leakages
LEAKAGE
GASFLOW-LBS. PER MIN.
TOTAL
FLOW
STATION
LBS.PER COa
Ns
01
HnO SO1
Entering regenerator during heating of air
MIN.
Air
338
Direction
Secondary air
Outwardly from regenerators
79.0G 33.
23.4
322
Same as entering
Outwardly from hearth
42,
13.2
Air
Inwardly to regenerators
61.3
25.7 21.9
Air
Inwardly through flue and reversing valves, dampers, etc.
127
52.5 26.9
338
--
63.1 12.15 224 63.1 184
Entering regenerator when heating brick
54.8 10.15 194.5 19.7 0.18
280
Leaving regenerator when heating brick
54.8 24.8
242
20.1 0.18
342
Passing up stack a t Pitot tube station
54.8 54.1
339
21.4 0.18
22.7 0.21 22.7 0.21 52.4
I
% of Lbs. theoreti- %of per cal air total min. for com- flow bustion
Kind of gas
Entering furnace hearth a t combustion ports including Cot and Hz0 from charge
a
1361
472
This figure includes some leakage of unknown amount through the reversing dampers and is therefore too high.
Leakage - of Air Out of Regenerators during- Period of HeatiGg Air
Secondary air received from regenerator on heating air Secondary dry air to regenerators on heating air as measured by Pitot tube in secondary air blast pipe Air lost out of regenerators during period of heating air =
The total air accounted for passing Out Of the furnace . . as measured a t the top of the regenerators on heating :::;::E: hearth air is: 17.43 X 13.7
Lbs. per min. 291.4
+ 52.4 =
Primary dry air used for atomization as measured D r y air used t o cool the tips of the off-burners Total
20.51 12.10 32.61
as Der cent of total air reauired for combustion
Lbs. per min. 258.8
338 79 33.1Der cent
The results of the calculations of flow of gas and air and leakages are summarized in Table V. These figures show that &e walls of the furnace are not gas-tight but tlhat leakage is a considerable factor in fuel consumption.
Principles of Patent Law Involved in the Weiss Patent Litigation' Anthony William DellerZ 50 CHURCH ST., NBWYORK, N. Y.
WIYG to the widespread interest in the chemical industry generally, and especially in the rubber industry, in diphenylguanidine as an accelerator in the vulcanization of rubber, it is believed that a discussion of the recent decision of the Supreme Court of the United States in the matter of the Weiss diphenylguanidine patent will serve a dual function of informing chemists about the status and the history of the Weiss patent and, a t the same time, of expounding some of the principles of patent law involved in the case. The Weiss patent No. 1,411,231was litigated in the Federal Courts of the Second and Third Circuits of the United States before the Supreme Court took jurisdiction of the case. The Circuit Court of Appeals for the Second Circuit decided that the patent was invalid, in the case of Dovan Chemical Corporation us. National Aniline and Chemical Company (292 Federal Reporter 555), whereas the Circuit Court of Appeals for the Third Circuit held that the patent was valid, in the case of Dovan Chemical Corporation 01s. Corona Cord Tire Company (16 Federal Reporter, 2nd Series, 419). Whenever there is a diversity of holdings between different Circuit Courts of Appeals the Supreme Court will grant a Writ of Certiorari and take the case for final adjudication. As everyone probably knows, a decision of the Supreme Court of the United States is the supreme law of the land and is the final word on the matter in controversy throughout the jurisdiction of the United States.
0
1 4
Received June 21, 1928. Counsellor a t Law and Patent Attorney.
Letters Patent, being a creature of the law and being d e pendent on the Patent Statutes and on a provision of the Constitution, must comply and conform with the various parts of the law in order to be valid. As the Patent Laws state, an inventor may, upon due proceedings had and upon payment of fees as required by law, obtain a patent. When the prerequisites of the statutes have not been satisfied, then the Letters Patent, although granted by the Patent Office, are not valid and are open to attack. I n the present case the Weiss patent was issued, but it was vulnerable when subjected to the defenses available to an infringer. Nature of Weiss Patent The Weiss patent relates broadly to the vulcanization of rubber and more particularly to a vulcaniaation accelerator known as diphenylguanidine. The object of the invention was to improve the quality of vulcanized rubber goods and to reduce the time required for vulcanization. Weiss admitted in his patent that it was known that the addition of certain organic substances, such as triphenylguanidine, to a rubber mix caused the rubber to react more rapidly and thoroughly with sulfur due to a catalytic or similar action. The patentee stated, however, that he had discovered that B disubstituted guanidine, particularly diphenylguanidine, was especially useful as an accelerator of vulcanization and gave improved results. A specific example relative to the steps to be followed and the proportions of the various ingredients to be used was given. I n the patent two types of
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INDUSTRIAL AND ENGINEERING CHEMISTRY
claims were incorporated-one relating to a process of vulcanizing in the presence of a disubstituted guanidine or in the presence of diphenylguanidine, and the other relating to a product of rubber containing a disubstituted guanidine or diphenylguanidine. The claims which were in controversy were claims 4,8, and 12 relating to the product and claims 1, 5, and 9 relating to the process. Affidavit of Completion of Invention
Vol. 20, No. 12
is so important that the very language of the Supreme Court is quoted, to wit: A process is reduced t o practice when it is successfully performed. A machine is reduced t o practice when it is assembled, adjusted, and used. A manufacture is reduced to practice when i t is completely manufactured. A composition of matter is reduced to practice when it is completely composed.
A chemist who is concerned with patent law will have no trouble in deciding when an invention has been completed or reduced to practice if he will use the tests given by the Supreme Court.
While the Weiss patent application was pending in the Patent Office, i t was rejected on an article entitled “The Action of Certain Organic Accelerators in the Vulcanization Discovery of Catalysts Decreed P a t e n t a b l e of Rubber,” written by George Kratz and published in April, OF INDUSTRIAL AXD ENGINEERING A further contention of the petitioner was that the claims 1920, in the JOURNAL CHEMISTRY. The filing date of the Weiss application was of the Weiss patent, covering D.P.G. as a vulcanization November 12, 1921, which was about one year and seven accelerator, were invalid because the utility of D.P.G. as months after the publication of the Kratz article. Since the an accelerator was plainly indicated by general chemical publication was not more than two years prior to the filing knowledge and did not involve patentable discovery after date, an inventor can make an affidavit under Rule 75 of the triphenylguanidine had proved to be a good one for the Rules of Practice of the Patent Office, setting forth facts vulcanization of rubber. I n other words, one skilled in the which show a completion of the invention in this country art could have done what Weiss did by merely using knowlbefore the date of the printed publication, and also stating edge which was fully and readily available to everybody in that the inventor does not know and does not believe that the the art and without exercising any inventive faculty whatinvention has been in public use or on sale in this country, or ever. The Supreme Court disagreed with this contention patented, or described in a printed publication in this or any by saying that “the catalytic action of an accelerator cannot foreign country for more than two years prior to his appli- be forecast by its chemical composition, for such action is cation, and that he has never abandoned the invention, so not understood and is not, known except by actual tests.” that the publication shall not constitute a bar to the grant Since the doctrine enunciated with respect to vulcanization of a patent. Weiss made an affidavit that D.P.G. (diphenyl- accelerators is clearly applicable to every catalyst. a discovery guanidine) was produced and actually used “in the vulcani- that a material is useful as a catalyst should be patentable zation of rubber goods, such as hose, tires, valves, and other under the Supreme Court’s holding. This should be very mechanical goods” during the early part of the year 1919. encouraging and very useful to chemists who are engaged in Daniels, a fellow chemist, who claimed to have been with discovering new catalysts for various industrial processes Weiss at the time of the discovery in the laboratory of the throughout the chemical industry. Republic Rubber Company a t Youngstown, made an affiContention of Prior Publication Untenable davit of similar import. After these affidavits were filed, the Patent Office examiner allowed the Weiss application Although the original Kratz paper as read before September The evidence brought out during the litigation showed, with6, 1919, was set up as a defense against the Weiss patent, out contradiction, that the only rubber goods Weiss made the Supreme Court held that, since it was not published until during the early part of the year 1919 with D.P.G. were April, 1920, which was subsequent to WeissJs discovery and experimental test slabs of rubber in which D.P.G. was the which was less than two years prior to the Weiss application, accelerator, and that in fact neither Weiss nor anybody in the original paper could not be used as a basis for a defense the Republic Rubber Company had vulcanized commercial against the patent under Section 4886 of the Revised Statutes. rubber goods such as hoses, tires, belts, valves, and other It is only printed publications which have been published mechanical goods, before the Kratz publication. The petimore than two years before the filing date of a patent that can tioner, the Corona Cord Tire Company, contended that the be used as absolute defenses against a patent. Kratz read Weiss patent was secured by false evidence and, therefore, was not entitled to the presumption of validity which ordi- his original paper a t the Philadelphia meeting of the AMERISOCIETYprior to September 6, 1919, which narily accompanies the grant of a patent. This contention CAN CHEMICAL was more than two years before the filing of the Weiss appliwas not sustained by the Supreme Court, which held, in cation on November 12, 1921. The reading of a paper before effect, that since the test slabs were vulcanized with D.P.G. there was a completed and demonstrated discovery con- a scientific or technical society or the like, therefore, is not stituting a reduction to practice, and that the production of a publication within the purview of Section 4886, and is not commercial rubber goods for use or for sale was not indispen- equivalent to publishing the paper as a printed publication. sable to the granting of a patent. The presumption of validP o i n t s u p o n W h i c h Claims Were Invalidated ity of the Weiss patent was consequentslynot destroyed. We now come to a consideration of the defense which wa5 This incident in the case shows how important it is for those who are doing research and experimental work to keep accu- effective in causing the claims covering diphenylguanidine rate, full, and complete records, which are properly dated as an accelerator for rubber vulcanization to be invalidated. and witnessed, so that no embarrassment need be experienced The defense is that the invention had been in public use or whenever it becomes necessary to prove the completion of on sale in this country more than two years prior to the a n invention. It might be noted in passing, that it is well to filing of the patent application. It was proved that one have the witness affix the date in his own handwriting next George Kratz had used D.P.G. as an accelerator in the manuto his signature in order to avoid any dispute regarding the facture of three hundred ;ubes for automobile tires in August, 1917, a t the Falls Rubber Company of Cuyahoga Falls, date. With respect to the question of the completion of invention, Ohio. These tubes were part of 9 special order of one the Supreme Court laid down a complete and helpful ruling thousand tubes which were sold to a purchaser, who gave his as to when an invention is reduced to practice. The doctrine approval to the whole lot of tubes. Since this use and sale of
December, 1928
INDUSTRIAL AND ENGINEERING CHEMISTRY
D.P.G. as an accelerator was more than two years before the filing date of the Weiss patent, the Supreme Court held the defense to be good and the claims in suit, directed to D.P.G. as an accelerator for vulcanization of rubber, to be invalid. Anybody is now free to utilize the subject matter of the invalidated claims. It is to be observed in passing that if one public use of the invention or one sale of an embodiment of the invention can be proved to have occurred more than two years before the filing date of the patent, claims in the patent covering the invention in question will be declared to be invalid. Weiss, in addition to claiming D.P.G. as a vulcanization accelerator, claimed a process of treating rubber by combining with the rubber compound “a disubstituted guanidine.” It was shown that the class of disubstituted guanidines contains between fifty and one hundred substances in addition to D.P.G. The experts testified that many of these substances are not accelerators a t all. Weiss made no disclosure in his patent that there is a general quality common to disubstituted guanidines which made them all effective as accelerators, and, therefore, could not make claims covering a broad class of substances many of which are not effective or useful as vulcanization accelerators. A patentee can only make claims which are directed to his invention and which include things that are effective for carrying the invention into practice. The doctrine enunciated by the Supreme Court in the Incandescent Lamp Patent Case (159 U. S. 465) prohibits the sustaining of claims which are not supported by a description in the specification shorn-ing that there is some quality running through the members of the family or class of substances which the patentee seeks to monopolize. I n view of the Supreme Court’s holding, the public is free to utilize the subject matter of the invalidated process claims. The Weiss process claims in suit were also invalid because they were anticipated by an article published by one DuBosc on July 15,1919. This publication constituted a valid
1363
anticipation because it was printed more than two years before the filing date of the Weiss patent, which was November 12, 1921. For a full appreciation of the defense of prior publication as well as other defenses, reference should be had to Section 4920 of the Revised Statutes, which enumerates the defenses available to an infringer in actions for infringement. This section states, in essence, that when a person is charged with infringing a patent he may plead as a defense that: 1-The description and specification filed by the patentee was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect. 2-The patentee had surreptitiously and unjustly obtained the patent for that which was in fact invented by another who was using diligence in adapting and perfecting the same. 3-The invention was patented or described in some printed publication prior to the patentee’s supposed invention or discovery thereof, or more than two years prior to the application for a patent therefor. 4-The patentee was not the original and first inventor or discoverer of any material and substantial part of the thing patented. 5-The invention had been in public use or on sale in this country for more than two years before the application for a patent, or had been abandoned to the public.
From a perusal of the foregoing, it will be observed that, in view of the evidence, the Supreme Court was correct in its decision because (I) Kratz and not Weiss was proved to be the original and first inventor or discoverer of D.P.G. as a vulcanization accelerator; ( 2 ) D.P.G. was used as an accelerator and was sold in inner tubes for automobile tires more than two years before the filing of the Weiss patent application; and (3) Du Bosc described in a printed publication more than two years prior to the supposed Weiss invention or discovery that disubstituted guanidines had been used as accelerators.
Vapor-Pressure Chart for Paraffin Hydrocarbons’ 0. G . Wilson, Jr. GULF REFININGCOMPANY,PORTARTHUR, TEXAS
c
OX2 gave an empirical method for plotting vapor-
pressure data so that the resulting curve became essentially a straight line over a limited range of temperature. Calingaert and Davis3 improved this method by showing that it was applicable to very large ranges; that the straight-line curves of a homologous series intersect a t a common point; that, with the point of intersection of the series known, a complete vapor-pressure curve for any member of the series could be drawn with the experimental determination of a single vapor pressure a t any one convenient temperature. Such a series of curves for normal paraffin hydrocarbons has been drawn on a large scale, similar to the one shown by them, using various data in the literature, particularly those of Francis and Wood,* with the intention of using it in the preparation of engineering estimates. However, it was found that the chart has several limitations as regards its direct application to petroleum engineering. For example, petroleum products rarely have average boiling points which place them directly on one of the lines so that interpolation 1 Received January 20, 1928. I N D E N O . CHEM, 15, 592 (1923). I b i d , 17, 1287 (1925). 1 J . Chem. Soc , 1936, 1120. J
has to be made between lines, a procedure particularly inaccurate when dealing with logarithmic and reciprocal scales; the number of lines close together is large enough to be bewildering when reading in the necessary three directions. Therefore, an empirical equation has been developed which gives the vapor pressures of normal paraffin hydrocarbons in terms of the temperature and of the boiling points under atmospheric pressure (assuming no decomposition). Also, a nomographic chart has been prepared which affords quick and easy solutions of the unwieldy equation. As shown by Calingaert and Davis, the temperature (ordinate) scale of their chart is in reality the function, 1/(T 230), where T is the temperature in degrees Centigrade and the vapor pressure (abscissa) scale is the function, log p , where p is the absolute vapor pressure in millimeters of mercury. A straight line can be represented by the equation
+
which becomes
x = A-by
(1)
when the functions of the scales of this chart are substituted for z and y in the general equation. Therefore ( 2 ) is the form of the equation of all the straight lines on the chart.
