185 F2d 672 Phillips Petroleum Co v. Esso Standard Oil Co

185 F.2d 672


No. 6138.

United States Court of Appeals Fourth Circuit.

Argued November 13, 1950.

Decided December 7, 1950.

Thorley Von Holst, Chicago, Ill. (J. B. Thiess, Sidney Neuman, Robert W. Poore, all of Chicago, Ill., J. A. Young, New York City, Thomas W. Y. Clark, Baltimore, Md., and Thiess, Olsen & Mecklenburger, Chicago, Ill., on brief), for appellant and cross-appellee.

Theodore S. Kenyon, New York City, and William L. Marbury, Baltimore, Md. (Marbury, Miller & Evans, Baltimore, Md., Benjamin B. Schneider, Chicago, Ill., and Malvin R. Mandelbaum, New York City, on brief), for appellee and cross-appellant.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


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This is an appeal in a patent infringement suit involving Frey Patent No. 2,002,394, which relates to a process for converting gaseous into liquid hydrocarbons by using heat and pressure to cause a reaction in which paraffins combine with olefins. The defendant uses a process which brings about the paraffin-olefin juncture but accomplishes this result, not by the use of heat and pressure as called for by the process of the patent, but by the use of sulphuric acid as a catalyst. The plaintiff contends that this catalyst was a known equivalent for the use of heat and pressure in such a process; but the judge below found to the contrary on evidence which seems to us to be conclusive. He accordingly held that there was no infringement. Phillips Petroleum Co. v. Esso Standard Oil Co., 91 F.Supp. 218. In entering a decree for defendant, he refused to award attorneys' fees as permitted by 35 U.S. C.A. § 70. Phillips Petroleum Co. v. Esso Standard Oil Co., 91 F.Supp. 215. Both sides have appealed.


We think that on both appeals the decree appealed from should be affirmed and that nothing need be added to the able and comprehensive opinions of the learned District Judge finding non-infringement and denying an award of attorneys' fees in which we thoroughly concur and which we adopt as an expression of our views. See also the opinion of Judge Sibley, speaking for the Court of Appeals of the Fifth Circuit in Phillips Petroleum Co. v. Shell Oil Co., 5 Cir., 166 F.2d 384. Being of opinion that the patent sued on has not been infringed by the process of defendant, we deem it unnecessary to express an opinion as to its validity; but we do not understand that we are precluded from doing so by the finding of non-infringement. See Harries v. Air King Products Co., 2 Cir., 183 F.2d 158, 161-163, and cases there cited.