
    SAFETY FUMIGANT COMPANY v. THE UNITED STATES
    [No. 46364
    Decided June 5, 1950]
    
      
      Mr. Prentice E. Edrington for tbe plaintiff. Messrs. Emery, Holcombe & Blair were on tbe brief.
    
      Mr. T. Hayward Brown, witb whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. Mr. E. R. Weisbender was on tbe brief.
   LxttletoN, Judge,

delivered the opinion of the court:

The plaintiff sues to recover reasonable and entire compensation for the unauthorized use by the defendant of a fumigant package which it is alleged infringed claim 4 of the patent in suit, on the ground that the device covered by the patent and the alleged infringing device used by defendant function and operate in substantially the same manner and both produce substantially the same results. Claim 4 of the patent reads as follows:

4. A fumigant gas liberating device consisting of a container having a breakable portion, a body of liquid of a character to give off fumigant gas within said container, and a covering surrounding said container comprising a diffusing medium permeable to gas and arranged to receive said liquid when said breakable portion is broken, said covering interposing a substantial resistance to the free flowing away of said liquid when said breakable portion is broken and providing a path for restricted flow of the fumigant gas to the outer air so that after breaking of said breakable portion a substantial length of time intervenes before the escape of the fumigant gas from the device.

A preferred embodiment (Fig. 1, Finding 7) selected by the patentee for illustration comprises a sealed glass tube containing a volatile fumigant in liquid form; the glass tube being provided with a breakable portion of reduced cross-section that may be readily fractured at the middle of the tube to permit the escape of the fluid contents. The specification describes the fumigant contained in the glass tube or receptacle as preferably a gaseous combine containing hydrocy-anic acid and cyanogen chloride, or the like, absorbed in a liquid or mixture of liquids. The patent contemplates that the fumigant receptacle may be made of any suitable material other than glass, such as metal. The specification of the patent states that “the invention is not restricted to these particular gases and materials, as it is evident that the principle applies to packaging any gas emitting substances or gas that can be handled only with difficulty or danger.” The glass ampule shown in Fig. 1 of the patent is surrounded with a diffusing and vaporizing medium stated in the specification to be of absorbent cotton or other material permeable to gas and interposing a substantial resistance to the free flowing away of the liquid contents when the container is broken. The patentee defines the term “diffusing element,” as follows:

The term “diffusing element” as herein employed is intended to embrace any medium that is adapted and arranged to receive and act upon the contents as it issues from the container and prepare it for liberation of the gas gradually or assist in the gradual liberation of the gas.

The specification of the patent suggests that this diffusing material may be wrapped with a few layers of gauze bandage or other suitable material for holding it in close contact with the tube containing the fumigant, and this, in turn, is shown to be covered with a varnished or treated fabric or glazed paper or moistureproof material “tightly wrapped around the outside.” The ends of this wrapper or covering are held by eyelets having perforated centers which permit the gas to escape from within the package when the glass container is broken. The specification describes the invention as follows:

This invention relates to means for distributing gaseous or volatile substances, particularly such as are of a poisonous nature, intended for use as fumigants, insecticides, germicides, etc., commonly containing hydro-cyanic acid gas or other cyanogen compounds in gaseous or liquid form. The invention aims to provide a safe and inexpensive package of convenient size for ordinary domestic use, and which may be transported and sold without special precautions against accident.

The manner of use and the purpose and intent of the invention are described as follows:

Assuming the tube to be filled with a suitable fumigant in solution, the neck 12 of the tube is fractured by a smart blow, and the liquid seeps out into the diffusing absorbent material, where it volatilizes in due course, the gas or vapor finding its way out through the ends of the package or wherever the perforated eyelets 17 or equivalent means are located. The length of time required for the gas to find its way out is sufficient to permit the user to leave the vicinity in advance of the escape of the fumes.

During the six-year period prior to March 15, 1945, the date of filing of 'the petition in the present suit, the Government, without the license or consent of the plaintiff, had manufactured for it and used within the United States fumigant gas-liberating devices for the fumigation of the clothing of military and other personnel. Such fumigation was to exterminate body lice or “cooties” and their unhatched eggs, and such other vermin as might be present.

The method employed was, in brief, to have the individual remove all clothing, which was then enclosed in a fumigation bag into which an ampule containing a fumigant material was placed; The ampule was then broken, releasing the fumigant gas. After a 45-minute exposure at ordinary temperatures the clothing was removed from the bag, shaken out, and donned by the individual. The bag was then immediately reused by another infected person. Time was of the essence in this operation as a relatively large number of individuals were usually involved in this process.

The delousing bag used by defendant was made of synthetic rubber and was approximately 2 feet wide by 5 feet long. After the clothing had been placed in this bag, the top was folded over three times to make a reasonably gas-tight closure and tied by means of tapes attached to the bag.

A pocket, both ends of which were open, was located inside the bag and on one side thereof. The fumigant cartridge or ampule was placed within this pocket and the bag then closed and tied. The ampule was then broken either by means of a stick or by stepping on it as the bag lay on its side.

The fumigant used by the defendant was methyl bromide. Although fifteen cubic centimeters of this were sufficient to produce an effective kill with the bag used, twenty cubic centimeters were enclosed in a small pyrex glass ampule. This ampule was of uniform diameter with the exception of the ends, one of which was rounded, and the other tapered to a point where it had been sealed during manufacture. The ampules had no restricted or breakable portion as such.

The ampule was enclosed in a bag made of a single thickness of Canton flannel of sufficient size to loosely fit the ampule, the primary purpose of this bag being to retain the glass fragments when the ampule was broken and to prevent them from becoming mixed with the clothing in the fumigation bag. In addition, the Canton flannel bag served as a protective covering for the ampule for preventing accidental breakage, and also as an absorbent to prevent immediate spilling of the liquid contents of the ampule when it was broken.

The ampule and its Canton flannel bag were enclosed in a rectangular, thin, unglazed cardboard carton similar to those normally used for the packaging of tubes of toothpaste, shaving material and the like.

The ends of the carton were closed in the customary manner by the folding over of three tabs at each end thereof. Two opposite tabs were folded down across the end of the carton and the third, or mid tab, being folded over the two shorter tabs had its longer end folded and tucked into the end of the carton between the carton proper and the other two folded tabs. Both ends of the carton were closed in the same manner and no glue or adhesive was applied to the tabs to provide a sealed carton.

The purpose of this carton was to provide additional protection against accidental breakage of the ampule, convenience for group-packing a number of the ampules, and for providing a surface upon which instructions for use were printed, as well as additional protection from such fragments of glass as might possibly penetrate the flannel bag.

When the ampule is broken, a flash volatilization first takes place because of the relatively low boiling point of the methyl bromide (40° F.) as compared to ordinary atmospheric temperatures. This causes an explosive effect which blows open both the folded ends of the carton, permitting the gas evolved from the ampule to freely pass out of the carton and out of the two open ends of the retaining pocket in the bag.

The methyl bromide first volatilized exerts a cooling effect upon the remainder, thus preventing complete flash volatili-zation. The cloth bag surrounding the ampule, the side walls of the cardboard carton around the cloth bag, and the walls of the pocket in the fumigation bag all have some effect on the rate at which external heat is supplied to the methyl bromide to effect complete volatilization.

Plaintiff contends that the apparatus manufactured and used by defendant infringes its patent in that such apparatus is made up of a combination of elements which are substantially the same or equivalents of the combination of elements claimed in claim 4 of the patent; that both the patent device and the alleged infringing device function and operate in substantially the same manner, and that both produce substantially the same beneficial results.

In view of what has been said above with reference to the structure, teaching, and result, intended to be accomplished by the patent in suit, and the structure and the result intended and produced by the device used by the defendant, we are of the opinion that the terminology of claim 4 of the patent in suit, when, interpreted in the light of the disclosures contained in the specification of the patent, is not applicable to the structure used by the defendant, and that this claim has not, therefore, been infringed.

What plaintiff’s assignor Houghton endeavored to patent was a container for a fumigant which was limited by the specification to a fumigant difficult and dangerous to handle, and the teaching of the patent is to have a container which will so restrict the escape of gas, after the ampule is broken, as to allow a sufficient length of time for the operator or user of the device to get away from the dangerous fumes. In this connection, among other things, the claim calls for a covering surrounding said container comprising a diffusing medium permeable to gas, and arranged to receive said liquid when said breakable portion is broken; said covering interposing a substantial resistance to the free flowing away of said liquid when said breakable portion is broken, and providing a path for restricted flow of the fumiga/nt gas to the outer air so that after breaking said breakable portion a substantial length of time intervenes before the esca,pe of the fumigant gas from the device. This is directly contrary to what the Government wanted. It is also contrary to the result produced by the Government’s fumigant package. The intent of the Government’s device was to get all gas out of the container as quickly as possible, and, as hereinbefore described, this alleged infringing device was so constructed as to accomplish this result and purpose.

In using a thin Canton flannel bag to retain the broken glass and a thin cardboard carton to provide protection against accidental breakage and for the other purposes here-inbefore mentioned, the Government was not following the teaching of the patent in suit, and the provision and use of these elements as parts of the defendant’s fumigant package did not have the effect of producing the result called for by claim 4 of the plaintiff’s patent.

In view of the facts established by the record and set forth in the findings it cannot be said that the alleged infringing device was substantially identical in structure, teaching, result, and purpose, with the device covered by claim 4 of the patent. We are of the opinion that everything the Government used in its fumigant package was disclosed in the British patent to O’Donnell, referred to in finding 23, and other patents described in findings 19 to 22, inclusive.

Plaintiff is not entitled to recover and its petition is dismissed. It is so ordered.

Howell, Judge; Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur.  