Powder Company v. Powder Works
98 U.S. 126 (1878)

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U.S. Supreme Court

Powder Company v. Powder Works, 98 U.S. 126 (1878)

Powder Company v. Powder Works

98 U.S. 126

Syllabus

1. Reissued letters patent must be for the same invention as that which formed the subject of the original letters, or for a part thereof when divisional reissues are granted. They must not contain any thing substantially new or different.

2. Original letters for a process will not support reissued letters for a composition unless it is the result of the process and the invention of the one involves the invention of the other.

3. Letters granted for certain processes of exploding nitroglycerine will not support reissued letters for a composition of nitroglycerine and gunpowder or other substances, even though the original application claimed the invention of the process and the compound. They are distinct inventions.

4. The last clause of sec. 53 of the Act of July 8, 1870, 16 Stat. 205; Rev.Stat., sec. 4916, relates merely to the evidence to which the Commissioner of Patents may resort, but does not increase his power as to the invention

for which a reissue may be granted. Whether said clause relates to any other than letters granted for machines is a question not considered in this case.

5. Reissued letters patent No. 4818, for a new and useful improvement in compounds containing nitroglycerine, and reissued letters patent No. 4819, for a new and useful improvement in nitroglycerine compounds, granted March 19, 1872, to the United States Blasting Oil Company, assignee of Alfred Nobel, are for a different invention from that described or suggested in original letters patent No. 50,617, granted to said Nobel Oct. 24, 1865, for a new and useful improved substitute for gunpowder, upon which they are founded, and which they are intended, in part, to supersede. They are therefore void.

6. When there is a demurrer to the whole bill, and also to part, and the latter only is sustained, the proper decree is to dismiss so much of the bill as seeks relief in reference to the matters adjudged to be bad, overrule the demurrer to the residue, and direct the defendant to answer thereto.

This is an appeal from a decree dismissing, upon demurrer, a bill filed by the Giant Powder Company against the California Powder Works and others, charging them with the infringement of three certain letters patent belonging to the complainant, and praying for an injunction and a decree for damages. These letters, for certain alleged inventions of one Alfred Nobel, of Hamburg, in Germany, relating to the use of nitroglycerine in the manufacture of dynamite and other explosive compounds, are all reissues; two of them bearing date the nineteenth day of March, 1872, and numbered respectively

Page 98 U. S. 127

4818 and 4819; and the third bearing date the seventeenth day of March, 1874, and numbered 5799. No. 4818 is for the mixture of gunpowder with nitroglycerine; No. 4819 is for the mixture of rocket powder with nitroglycerine; and No. 5799 is for a mixture of nitroglycerine with porous or absorbent substances, forming what is called dynamite, or giant powder. The bill sets out the substance of the original and intermediate letters as well as those sued on, and of some of them makes profert. A consent order was made in the cause, that the complainant should file, as parts of the bill, copies of the several letters mentioned and described therein, of which profert was so made. The bill also sets forth by way of schedule a copy of the original application of Nobel filed in the Patent Office on the sixteenth day of September, 1865.

From the statements of the bill and the documents thus annexed to and made part thereof, it appears that Alfred Nobel, on the day last aforesaid, by his attorney, filed in the Patent Office a paper describing certain alleged discoveries and inventions made by him in reference to the use of nitroglycerine as an explosive agent and as a component in explosive compounds. Having in this document referred to the well known property of nitroglycerine, and the nitrates of ethyl and methyl, nitromannite, &c., whereby they cannot be exploded in open space by the application of fire, he proceeds to point out how he succeeds in effecting their explosion. He says:

"A chief point of my invention consists in overcoming this difficulty. According as nitroglycerine is to be used for firearms or for blasting, I adopt two different methods for promoting its explosion, viz.:"

"1st Method. By mixing it with gunpowder, guncotton, or any other substance developing a rapid heat, nitroglycerine being an oil, fills the pores of gunpowder, and is heated by the latter to the degree of its explosion. Gunpowder treated in this way can take up from ten to fifty percent of nitroglycerine, and develops a greater power with a lesser quickness of explosion. Where the only object in view is to reduce the quickness of explosion of gunpowder, I mix it with or make it absorb common nonexplosive oil from one to ten percent of its weight. "

Page 98 U. S. 128

"2d Method. When nitroglycerine is to be used for blasting, where quickness of explosion is of great importance, I submit it to the most rapid source of heat known, viz., that developed by pressure. To effect this, I make use of the pressure developed by heating a minute portion of nitroglycerine, or by the detonation of any other violently exploding substance. Nitroglycerine being a liquid, if it cannot escape, as for instance in a bore, receives and propagates the initial pressure through its whole mass, and is by that pressure instantaneously heated; hence the first impulse of explosion decomposes the rest. There are many means of obtaining this impulse of explosion, such as:"

"1. When nitroglycerine in tubes is surrounded by gunpowder, or vice versa."

"2. By the spark or heat developed by a strong electric current when the nitroglycerine is enclosed on all sides, so as not to afford an escape to the gas developed."

"3. By a capsule,"

&c., six different methods of producing explosion of nitroglycerine being pointed out, accompanied by drawings for showing the manner in which they were employed.

He then claims as his invention:

1. The use of gunpowder or similar substances, when mixed with nitroglycerine or analogous substances.

2. The reduction of the quickness of explosion of gunpowder by mixing it with oily explosive, or nonexplosive substances.

3. The effecting the detonation of nitroglycerine or analogous substances (which can be ignited without exploding) by the heat developed by pressure, promoting an impulse of explosion which decomposes the rest.

4. The exclusive use of nitroglycerine and the class of substances described above, or mixtures of such as far as their application may be classed under any of the methods indicated in this memorandum.

He then describes a new method of preparing or manufacturing nitroglycerine, and claims to be the inventor of that.

The bill further states, that after filing the above application Nobel's agent (one Howson) filed certain amendments thereto, striking out a portion of the original, and on the twenty-fourth day of October, 1865, upon such amended application,

Page 98 U. S. 129

letters patent were granted to Nobel for the term of seventeen years, numbered 50,617; and profert is made of the same in the bill, and they are set out in the record.

By reference to the specification of these letters, which are accompanied with drawings, they appear to be for a process, to-wit, the process of using nitroglycerine, or its equivalent, as a substitute for gunpowder, by exploding it in the manner pointed out. Having explained the nature of nitroglycerine, nitrate of ethyl, methyl, and nitromannite, as in the original paper, the specification then points out how nitroglycerine may be exploded after being confined in a hole drilled in the rock when to be used for blasting, or in a case when to be used for other purposes. Four distinct modes of doing this are enumerated: first, by exploding gunpowder in contact with the liquid; secondly, by passing an electric spark through a fine wire immersed in it; thirdly, by inserting in it a thin case containing lime water; and, fourthly, by a fuse. The drawings show the manner in which the wire is arranged for passing an electric spark through the fluid.

The bill then states that on the 13th of April, 1869, the above patent was surrendered, and four new divisional patents were issued for the same inventions for which the original patent was granted, numbered respectively reissues 3377, 3378, 3379, 3380; the first, No. 3377, being for the method of exploding nitroglycerine by detonation; the second, No. 3378, being for the application and use of percussion caps and other exploders to create the detonation necessary to explode the nitroglycerine; the third, No. 3379, being for the improved mode of manufacturing nitroglycerine; and the fourth, No. 3380, being (as stated in the bill) for the new explosive compounds invented by Nobel, viz., the mixture of gunpowder and nitroglycerine, and the mixture of guncotton and nitroglycerine, and the mixture of rocket powder and nitroglycerine.

These four reissued patents are not referred to by way of profert in the bill, but the above description of their purport is sufficient for the purpose of understanding their character.

The bill then states that on the nineteenth day of March, 1872, the said reissue 3380 was surrendered, and two new divisional patents for the same inventions were issued in lieu

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thereof, numbered respectively reissues 4818 and 4819; the former being for the mixture of gunpowder with nitroglycerine, and the latter for the mixture of rocket powder with nitroglycerine; and each patent securing to the patentee the exclusive right of making, using, and vending the explosive compound therein described respectively. These are two of the patents on which the suit is brought, and profert is made of them in the bill, and they are set out in the record. By reference thereto, it appears that in reissue 4818 the patentee claims:

1. The utilization as explosives of nitroglycerine and the analogous liquid substances before mentioned (nitrate of ethyl, &c.), by combining therewith gunpowder, guncotton, or other similar substances developing a rapid heat or combustion, substantially as described.

2. The combination of gunpowder with nitroglycerine, substantially as and for the purposes described.

3. The combination of guncotton with nitroglycerine, substantially, &c.

In reissue 4819 the claim is for the mixture of nitroglycerine and rocket powder.

The remainder of the bill is taken up in setting forth the other patent sued on, and various assignments by which the complainant deduces its title to the patents, with the allegation of infringement and prayer for relief.

To this bill the defendant demurred, as well to the whole bill for want of equity as to the relief sought in respect of the different patents taken separately; also for multifariousness, misjoinder of defendants, &c.

The demurrer having been sustained and a final decree entered dismissing the bill, the Giant Powder Company brought the case here.

Page 98 U. S. 133

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