
    BITUMINOUS PRODUCTS CO. et al. v. HEADLEY GOOD ROADS CO.
    (Circuit Court of Appeals, Third Circuit.
    September 7, 1926.)
    No. 3350.
    Patents ©=>328 — Van Westrum reissue, 15,401, for improved method of surfacing roads, heid invalid for want of patentable novelty.
    The Van Westrum reissue, No. 15,401 (original No. 956,009), for improved method of surfacing roads by mixing a described asphaltic cement, cold, with the mineral aggregate forming the road Surface, claims 1, 2, and 3, helé invalid for want of novelty; the composition described differing from those in the prior art only in the relative proportions of its elements and effecting a change only of degree.
    Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.
    Suit in equity by the Bituminous Products Company and the Barber Asphalt Company against the Headley Good Roads Company. Decree for defendant, and complainants appeal.
    Affirmed.
    For opinion below, see 2 F.(2d) 83.
    Fraley & Paul, of Philadelphia, Pa. (Henry N. Paul, of Philadelphia, Pa., of counsel), for appellants.
    Augustus B. Stoughton, of Philadelphia, Pa., and Charles F. Curley, of Wilmington, Del., for appellee.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   DAVIS, Circuit Judge.

The appellants, Bituminous Produets Company, owner, and the Barber Asphalt Company, exclusive licensee, of the reissued letters patent No. 15,-401, granted to Leonard Schade Van Westrum on July 4,1922, filed a bill of complaint against the Headley Good Roads Company, charging it with infringement of the first three claims.

Claim 1 is the broadest, and claim 2 is substantially like it. These relate to the method of building roads which consists (1) in mixing with the materials, constituting the mineral aggregate in their natural condition, an asphaltic cement whose base is hard bitumen in excess over fluxes and chemicals, (2) and emulsified with an agent whose base is water, and (3) in spreading and compacting the mixture on a suitable foundation.

The method in claim 3 consists in (1) using an oxidizable bituminous emulsion, comprising a bituminous cement emulsified with an agent having a water base, (2) mixing this emulsion with a cold mineral aggregate, and (3) spreading and compacting this mixture on a suitable foundation, whereby the emulsion through action of the air is soon oxidized and becomes insoluble in water and produces a waterproof surface. In other words, Van Westrum claims to have discovered that he could emulsify a hard bitumen with water, and in this condition mix it while cold with a mineral aggregate, such as stone, sand, or gravel, so that, after evaporation of the water, a hard bitumen remained to bind together the mineral aggregate. He' contends that it was necessary before his invention to heat the bitumen and the mineral aggregate in order to emulsify, spread, and compact them on a road. This was slow and expensive work, because the heating required time.

The learned trial judge held that similar emulsions and compositions had been used before from time to time, that the only difference between the compositions of the patent and those known in the prior art was one of degree, that the variations in proportions of fluxes and chemicals do not show a difference in quality, except that of consistency, and 1 ‘ that variations in the relative proportions of the hard asphalt and flux do not change the character of the bituminous base, except so far as consistency is concerned. Therefore, in that respect, the difference so far as the bituminous base is concerned is one of degree only, and not of kind, there being no sharp distinction of any kind whatever expressed in this range.” He therefore held the claims in issue to be invalid for want of patentable novelty and dismissed the bill.

We think his conclusion is right, and the decree is affirmed on his opinion.  