Leonard v. Corn Products Refining Co. ( 1916 )

EVANS, Circuit Judge

(after stating the facts as above). It is conceded that the manufacture of substitute rubber from vegetable oil and sulphur, subjected in combination to high temperature, was old in the art. Einseed oil, rape 'seed oil, mustard seed oil, peanut oil, castor oil, cocoanut oil, cotton seed oil, olive oil, and many other vegetable oils had been successfully employed as an ingredient in making a substitute for true rubber, long prior to the date of appellant’s discovery of the availability of corn oil for that purpose. The latter has no distinctive properties over other vegetable oils as an element of the combination with sulphur for the manufacture of rubber substitute. It is, however, readily obtainable and well adapted to such manufacture.

An examination of the files in the Patent Office, as set forth in the statement of facts, forces us to the conclusion that the patent to appellant was allowed only as a very limited one. It covered a process wherein three ingredients were used in certain fixed proportions. McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 76, 35 L. Ed. 800; Vance v. Campbell, 1 Black. 427, 17 L. Ed. 168.

Appellant insists that the paraffine plays no part in the manufacture of the rubber substitute, and should be ignored in construing his patent in this suit. We think otherwise. Without it no patent would have been issued.

Appellant having claimed corn oil, sulphur, and paraffine specifically, and appellee not having used the three elements in combination, there was no infringement.

We deem it unnecessary to consider the other questions raised in the record.

The decree of the District Court is affirmed.

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