
    RAY et al. v. BUHOT et al.
    District Court, D. New Jersey.
    Jan. 1930.
    John Q. Frey, of Newark, N. J. (E. Hayward Fairbanks, of Philadelphia, Pa., and Duckworth & Eaton, of Charlotte, N. C., of counsel), for complainants.
    Walter H. Bacon, of Bridgeton, N. J. (Paul H. Wendei, of Trenton, N. J., of counsel), for defendants.
   CLARK, District Judge.

The court is somewhat embarrassed in the preparation of any opinion in this case. In 1927 a suit was brought before it upon a patent for a process of stopping leaks in the radiators of internal combustion engines by means of a preparation compounded of gambier and alcohol. 22 F.(2d) 214. After) the most thoughtful consideration of which he was capable, the writer of these presents held the patent invalid. Perhaps because it was his first, the subsequent opinion was also the result of long and careful study. In the course thereof, certain criticisms of the Patent Office and the patent system as at present constituted were included. The author of this maiden effort was pleased by numerous written expressions of commendation received from members of the patent bar in various parts of the country who" had read it when reported. His human vanity was further fed by a laudatory note printed in the American Law Notes for the month of May, 1928, page one (1), and reprinted in the New Jersey Law Journal for the month of June, 1928, page 164.

This pleasure was short-lived and this pride went indeed very shortly before a fall. Two months after the argument of the case in the Circuit Court of Appeals, a reversal was filed (one judge dissenting) and is to be found reported in Tolfree v. Wetzler, 25 F. (2d) 553. This court is, then, placed upon the horns of thjs dilemma. The writing of no opinion might be interpreted by the learned judges of the Circuit Court of Appeals, to whom we owe both personal and official allegiance, as Achilles sulking in his tent. On the other hand, any expression of our thoughts might be understood as an unregenerate adherence to our own views, rather than a properly humble acceptance of theirs. It is with some hesitation, therefore, that we have decided to state briefly our reasons for believing that the patent in suit is invalid, even under the opinion of the Circuit Court of Appeals above cited.

The Ray patent (1,613,055) was secured on January 4,1927, and is for a composition (not a process) for stopping leaks in hot water circulating systems. Its ingredients, as set forth in, the specifications of the patent, are as follows: Powdered aluminum, 15 per cent.; flaxseed meal, 60 per cent.; sulphur, 5 per cent.; soap, 20 per cent. The court had occasion, in the opinion for which it has apologized, to comment on the ineffective filing and indexing system in the Patent Office. That comment receives support in the fact that in the eight prior art patents offered in the principal ease are included six patents not discovered either by counsel or the court in the previous ease. We are repeating the table of patents offered in the case of Tolfree v. Wetzler, they being of course part of the common knowledge, if not direct anticipations. The additional patents offered in this case are appended thereafter in the same tabular method of arrangement.

It would appear, therefore, that the ingredient powdered aluminum is found in two, the Kath&r and the Ray (M. G.), patents; flaxseed meal in four, the La Vallee, the Crum, the Ray (M. G.), and the Parkins, patents; soap in one, the Hill, patent; and sulphur, including bisulphid carbon and soda bisulphate, in four, the Kay, .the Gabe, the Crum, and the Ray (M. G.), patents.

On this showing, it is difficult to understand on what theory the patentee claims for his patent even novelty, to say nothing of invention. The inclusion of sulphur in the composition appears to be the “touch of genius entitled to a monopoly,” according to the claim made both in the Patent Offiee (after one of the curious oral interviews indulged by their practice) and in this court, according to the chemist from the Essex county prosecutor’s office called by the complainant.

As we have seen, sulphur, both pure and in combination, is contained in three prior art patents. Two of these appear to he fob use in other arts (Gabe, pneumatic tires, and Key, sealing paste). They therefore raise the same issue of analogous, etc., use discussed beginning on page 227 of 22 F. (2d) in the case of Tolfree v. Wetzler, above cited. Since one of them, to Crum, is also for automobile radiators, it is unnecessary to consider here whether we have been overruled by the Circuit Court of Appeals on this point. A standard treatise on chemistry published in 1923 by Sir H. E. Roscoe makes quite clear the nature of carbon bisulphide and its relation to sulphur, at pages 825 and 828: “This compound was accidentally discovered by Lanpadius in 1796 by heating pyrites with charcoal. In their investigation of carbon oxide in the year 1802, Clement and Desomes wished to ascertain whether charcoal invariably contained combined hydrogen. They examined the action of sulphur on red hot charcoal, and obtained the same liquid which had been previously discovered by Lanpadius. This liquid they first believed to be a compound of hydrogen and sulphur. But they soon convinced themselves that it only contained carbon and sulphur; notwithstanding these experiments, the nature of the compound remained doubtful until Vauquelin ascertained that its vapour passed over red hot metallic copper, is converted into carbon and copper sulphide. * * * Carbon bisulphide is prepared on the large seale by passing the vapour of sulphur over red hot charcoal. * * * Carbon bisulphide is very inflammable and bums in the air forming carbon dioxide and sulphur dioxide. The combination with oxygen takes place slowly below the temperature of ignition, a slight phosphorescence being observed, and as usual in such eases the exact temperature of ignition varies, but it occurs immediately at temperatures above 260°.”

Furthermore, we cannot agree to the chemical and pharmaceutical theory propounded by the learned doetor who took the stand on behalf of the complainant. We concede that flaxseed, being vegetable matter, by very definition is favorable to the growth of bacteria or schizomyeetes. We further concede that sulphur may have some therapeutic value in the treatment of some parasites, such as scabies. It is not admittedly, however, an antiseptic (Greek, anti — against; septikos— putrefaction), even in the sense of prohibiting the growth of bacteria rather than destroying them, the function of a true germicide. Ency. Brit. (11th Ed.) vol. 2, p. 146. The learned expert for the complainant, in answer largely to questions by the court, finally abandoned.sulphur itself and fell back upon sulphur dioxide as the baeteria-destroying agency. That this gas, which possesses a characteristio suffocating odor, is fatal to those forms of life depending on oxygen is obvious. That it is formed, however, by the combination of sulphur, flaxseed, and water is anything but obvious and, in our opinion, quite contrary to fact. In Roscoe (above cited) and the other chemical works consulted by the court, we find the methods for preparing sulphur dioxide depend either on the combustion of sulphur, the reaction of certain metals on concentrated sulphuric acid, the heating of sulphur and sulphuric acid, or the decomposition of sulphite. Roscoe, vol. 1, p. 399. A careful re-reading of the testimony of the learned chemist for the complainant does not reveal any of these methods in the combination aforesaid.

We might also add, in conclusion, that Homer mentions that the fumes of burning sulphur were employed as a means of suffocating in the storming of Troy, and Pliny states they there were used; as a means'for purifying cloth. Even its effective use in disinfecting leak-stoppers would lack therefore a certain freshness of thought.

The bill is dismissed.  