685 Reporter's Statement of the Case then closed and tied. The ampule was then broken either by means of a stick or by stepping on it as the bag lay on its side. 14. The fumigant used by the defendant was methyl bromide. Although fifteen cubic centimeters of this were sufficient to produce an effective kill with the bag used, twenty cubic centimeters were enclosed in a pyrex glass ampule approximately 51⁄2" long and %" in diameter. This ampule was of uniform diameter with the exception of the ends, one of which was rounded, and the other tapered to a point where it had been sealed during manufacture. The ampules had no restricted or breakable portion as such and those that were demonstrated during the trial of this case broke into numerous fragments. The ampule was enclosed in a bag made of a single thickness of Canton flannel of sufficient size to loosely fit the ampule. The primary purpose of this bag was to retain the glass fragments when the ampule was broken and to prevent them from becoming mixed with the clothing in the fumigation bag. In addition, the Canton flannel bag served as a protective covering for the ampule for preventing accidental breakage, and also as an absorbent to prevent immediate spilling of the liquid contents of the ampule when it was broken. 15. The ampule and its Canton flannel bag were enclosed in a rectangular, thin, unglazed cardboard carton approximately 6" long and having a width and breadth of approximately 1%". This carton was similar to those normally used for the packaging of tubes of toothpaste, shaving material and the like. The ends of the carton were closed in the customary manner by the folding over of three tabs at each end thereof. Two opposite tabs were approximately 1" in length and were folded down across the end of the carton and the third, or mid tab, was approximately 2" in length and after being folded over the two shorter tabs had its longer end folded and tucked into the end of the carton between the carton proper and the other two folded tabs. Both ends of the carton were closed in the same manner and no glue or adhesive was applied to the tabs to provide a sealed carton. Reporter's Statement of the Case The purpose of the carton was to provide additional protection against accidental breakage of the ampule, convenience for group-packing a number of the ampules, anc for providing a surface upon which instructions for use were printed, as well as additional protection from such fragments of glass as might possibly penetrate the flannel bag. 16. When the ampule is broken, a flash volatilization first takes place because of the relatively low boiling point of the methyl bromide (40° F.) as compared to ordinary atmospheric temperatures. This causes an explosive effect which blows open both the folded ends of the carton, permitting the gas evolved from the ampule to freely pass out of the carton and out of the two open ends of the retaining pocket in the bag. 30 seconds.. 11⁄2 minutes. 31⁄2 minutes The methyl bromide first volatilized exerts a cooling effect upon the remainder, thus preventing complete flash volatilization. The cloth bag surrounding the ampule, the side walls of the cardboard carton around the cloth bag, and the walls of the pocket in the fumigation bag all have some effect on the rate at which external heat is supplied to the methyl bromide to effect complete volatilization. 17. An inter-parties' test was conducted by plaintiff's expert with the defendant's alleged infringing device. An ampule enclosed in a carton was placed on a chemical balance and broken at ordinary room temperature and the following data obtained by the loss-of-weight method: 5 minutes. 8 minutes. 12 minutes. 116 C. Cls. 43 50 68 76 90 100 Quantity volatilized Cc's. 8.53 10.13 13.6 15.2 18. 13 20 The alleged infringing structure used by the Government volatilized 43 percent of the methyl bromide in 30 seconds, and in 5 minutes volatilized a sufficient amount of fumigant for an effective kill. The entire contents of the ampule volatilized in 12 minutes. The defendant's structure is exemplified by plaintiff's physical exhibits 4 and 6. 685 Reporter's Statement of the Case PRIOR ART AND KNOWLEDGE 18. The following patents were available to those skilled in the art prior to April 5, 1926, the filing date of the patent application which matured into the patent in suit: British patent to Hartridge No. 28,302 of 1913 (defendant's exhibit 2) British patent to Newman No. 19,058 of 1913 (defendant's exhibit 3) British patent to Imray No. 119,126 accepted September 26, 1918 (defendant's exhibit 4) British patent to Thackray No. 124,290, accepted March 25, 1919 (defendant's exhibit 5) British patent to O'Donnell No. 210,017, accepted January 31, 1924 (defendant's exhibit 6) United States patent to Tuttle No. 1,131,575 granted March 9, 1915 (defendant's exhibit 7) In addition to the above there were available to those skilled in the art the patents and publications cited by the Examiner of the Patent Office during the course of the prosecution of the application which matured into the patent in suit, as follows: United States patent to Jarrett No. 1,332,985, granted March 9, 1920 (defendant's exhibit 9-A) United States patent to Norton No. 1,516,454, granted November 18, 1924 (defendant's exhibit 9-B) United States patent to Harry W. Houghton No. 1,521,537, granted December 30, 1924 (defendant's exhibit 9-C) United States patent to Christmann No. 1,620,074, application filed August 3, 1925, granted March 8, 1927 defendant's exhibit 9-D) British patent to Whatmough No. 1531, of 1915, accepted December 30, 1915 (defendant's exhibit 9-E) Publication entitled "Handbook of Pharmacy & Therapeutics" by Eli Lilly, published in the year 1919 (defendant's exhibit 9-F) Publication in the form of United States Department of Agriculture Bulletin No. 1313, published January 26, 1925 (defendant's exhibit 9-G) Prior knowledge is exemplified by United States patent to Mock No. 1,648,657 (defendant's exhibit 8) granted November 8, 1927 on an application filed July 26, 1924, prior Reporter's Statement of the Case 116 C. Cls. to April 5, 1926, the filing date of the patent application which matured into the patent in suit. The above-enumerated exhibits are made a part of this finding by reference. Figure 1 of the Mock patent 19. United States patent to Mock, Fig. 1 of which is reproduced herewith, discloses the same basic principles involved in the defendant's process of fumigation. This patent, which deals with moth fumigation, discloses a receptacle consisting of a bag in which clothing is placed. The bag is provided with a pocket near its opening into which is inserted 685 Reporter's Statement of the Case a sealed glass vial or ampule containing a gas or liquid whose vapor is fatal to moths. The bag is then closed by having its ends folded over and the ampule then crushed, allowing the fumigant to escape into the body of the bag and to fumigate the contents thereof. 20. United States patent to Norton (defendant's exhibit 9-B) relates to ampules of the ammonia inhalant type. As shown in Figs. 1 and 3 of this patent reproduced herewith, the liquid is held in a glass container or ampule confined in a protective cover. The patent states with respect to these covers that they "necessarily encase the containers com pletely so as to prevent scattering of the fragments and cutting of the fingers when the container is broken to release its contents." The ampule is stated to be made of glass tubing cut into proper lengths and sealed at both ends, and the covering is stated to consist of a soft resilient envelope of coiler cotton enclosed in silk mesh which is suitably tied over the ends of the tube. These items are referred to in the claims as "an absorbent protective cover." When the ampule is crushed, the liquid is absorbed by the covering and volatilizes therefrom. The absorbent covering acts as a diffusing medium and would obviously have the effect of controlling the rate of evaporation of the ammonia or any other volatile liquid that those skilled in the art might 891357-50 46 |