Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847 (Ill. 1950).

Suit was brought in the superior court of Cook County in behalf of Bruce Lindroth, a minor, against Knapp-Monarch Company, manufacturer, and Walgreen Company, seller of an electric vaporizer, for personal injuries to said minor as a result of burns received in a fire which appellee claims was caused by such vaporizer. The cause was tried by a jury and a verdict was returned against both defendants for $65,000. Motions for a new trial, in arrest of judgment and for judgment notwithstanding the verdict were overruled, after which judgment was entered on the verdict. Leave to appeal being granted, appellants, Knapp-Monarch Company and Walgreen Company are here seeking to reverse this judgment which was affirmed by the Appellate Court.

The complaint alleged that Knapp-Monarch Company carelessly and negligently manufactured and sold, with knowledge that it would ultimately be offered for sale to the general public, a vaporizer that was defective and dangerous, in that when used in accordance with the printed directions accompanying it and in the manner and for the purpose intended, it was likely to melt and set fire to nearby objects and cause persons using it to be severely burned, and was therefore an inherently dangerous instrument; that it negligently failed to provide a cutout device which would automatically cur off the current before the vaporizer reached the temperature at which it was likely to set fire to surrounding objects and cause persons using it to be burned; that it failed to properly inspect and test said vaporizer and negligently represented to the public generally that said vaporizer was safe for the use for which it was intended, and that no danger from flame or fire could be incurred in so using it.

The complaint further alleged that the Walgreen Company acquired said vaporizer and offered it to the public for sale; that the mother of plaintiff purchased the vaporizer from Walgreen Company and made known to it the particular purpose for which it was required, and relied upon the seller’s judgment and upon the representations of both appellants that the vaporizer was reasonably fit for the purpose intended and that no danger from flame or fire would be incurred in using it; that Walgreen Company negligently sold the plaintiff’s mother a vaporizer that was dangerous and defective in that when used in the manner and for the purpose for which it was intended the metal thereof was likely to melt and set fire to the surrounding objects and cause persons using it to be severely burned; that it negligently sold plaintiff’s mother a vaporizer which was not reasonably fit for the purpose for which it was intended to be used, because when used in the manner and for the purpose intended it was likely to set fire to surrounding objects and cause persons using to be severely burned, and thereby negligently breached its warranty given by virtue of the provisions of section 15 of the Uniform Sales Act, (Ill.Rev.Stat.1939, chap. 121 1/2, par. 15,) that the said vaporizer was reasonably fit for such purpose; that it expressly warranted the said vaporizer to be safe for use without attention for at least two hours; that such warranties were believed and relied upon.

The answer of Knapp-Monarch Company admitted it manufactured a device known as a Kwikway Electric Vaporizer, but denied all other allegations.

The answer of Walgreen Company admitted it sold to the public at retail vaporizers manufactured by Knapp-Monarch Company and denied all other allegations.

The record discloses that on May 8, 1940, appellee, fourteen months of age, was seriously burned while lying in a crib in an upstairs room of his home as a result of fire reaching his crib and igniting that part of his snuggle-bunny (a loose sack-like blanket) adjacent to the left side of his head and face. The crib in which he was resting was about four and one-half feet long and two and one-half feet wide, and stood with head to the north in the northeast corner of a room about eleven by twelve feet with a ceiling height of eight feet. The room faced the west, having two windows to the front and one window on the north side. A double-deck bunk with head to the west stood along the north wall just west of the window. Lace curtains at the north window hung down to a point just below the sill or just to the top of the baseboard. There was an electric outlet or wall socket below and to the west of the north window for the connection of electrical appliances.

Appellee’s mother had used a vaporizer in his room prior to the date in question but it was broken and she purchased a new one from the Walgreen Company, manufactured by the Knapp-Monarch Company. The old vaporizer had an automatic cutout which stopped the flow of electricity into the heating element after a certain temperature had been reached, usually after the water had all evaporated. The mother inquired of the saleslady at Walgreen’s if the Qwikway vaporizer she was considering had an automatic cutout and was advised that it did not have such device. The patent application provided for an automatic cutout which was found by the manufacturer, working with the inventor, to be not dependable and was not used in the manufacture of the article.

Some makes of vaporizers had cutouts which operated successfully, while other makes did not have such devices. The saleslady stated in substance that the vaporizer would not boil dry for about two hours if filled with water according to the directions. The mother testified that by ‘about two hours’ she had in mind that it would run at least for an hour or from one hour to an hour and a half anyway without being watched and without boiling dry. The saleslady told her that a doctor in the neighborhood was using one of these vaporizers for his patients and that he recommended it. It was explained to the motion that there were directions in the container which she should follow and, which, according to the mother’s testimony, she did follow. She purchased the vaporizer and took it home. She did not purchase a new electric cord with which to attach it to the wall outlet but used an old one that had been in use for about a year.

The directions with the vaporizer read to fill the container about three quarters full of water which brought the water to within an inch or an inch and a half of the top. Above the container was a place for medicated cotton through which the vapor would pass. Below the container was the heating element, and immediately below that was an asbestos disk about one-eighth inch thick and four inches in diameter held in position by a spring in the bottom plate.

Soon after returning home, the mother went into the kitchen and filled the container with tap water to within about an inch and a half from the top and found no leak. She then took it up to the bathroom and plugged it into an electric outlet, and in about four minutes the water began to vaporize. She testified: ‘There were no leaks in this container that I could observe.’ She then disconnected it, sponged off appellee, rubbed medicine on his chest, placed a snuggle-bunny around him, zipped it up under his chin and placed him in the crib for a nap. The maid had just brought up a nursing bottle containing orange juice which was given to him. The mother then placed a doll’s high chair about one foot west of the baby’s crib and near the middle of it or about two and one-fourth feet from the north window. She then set the vaporizer on the chair and plugged it into the wall socket near the north window.

The doll’s chair was wooden, had four posts or legs, a seat about five inches square and a small foot rest in front. The back was not solid but consisted of a cross-piece supported by three little rungs. There was an arm rest on each side, also supported by a rung in each corner. It resembled very much a baby’s high chair cut down to doll’s size. The seat was about even in height to that part of the crib upon which the baby lay. The spout of the vaporizer was placed so that the vapors would go up over the baby’s nose. Vapor was soon noticed coming from the spout, whereupon the mother left the room. In a few minutes she returned, peeped into the room and saw that the orange juice had been consumed and that the baby was just turning onto his stomach. At that time the vaporizer was operating properly and emitting vapor more satisfactorily than did the old one. At no time did the mother notice anything wrong with the vaporizer. She noticed no leakage of water and according to her testimony it was operating properly when she last saw it before the fire.

After peeping into the room, the mother went down stairs and within a period of between thirty and forty-five minutes a neighbor lady rushed over and excitedly announced that smoke was coming from an upstairs window. The mother rushed to the child lifted him from the crib and carried him from the smoke filled room. The snuggle-bunny was burning near the left side of his head and face. She tore it from him, rushed him downstairs and to the hospital. He was found to be suffering from third degree burns and was severely and permanently injured.

A lady who had been visiting with the mother just prior to the alarm immediately thereafter called the fire department. The fire occurred about 5 o’clock in the afternoon. After the baby had been removed, two volunteer firemen were the first to enter the room and they found it full of smoke. They opened the windows and extinguished the fire. One of the firemen testified that the electric cord was already detached from the vaporizer at that end but was still in the wall socket. An examination of the cord showed the insulation worn and frayed and some wire exposed at the vaporizer end but it was not burned away at that end. Where it was connected with the wall socket the insulation had burned off for a distance of four or five inches leaving the wires exposed. The hard rubber knob or plug at this end of the cord was burned and had melted out of shape. The wallpaper around the socket at the north wall was burned. The fireman saw the vaporizer on the doll chair but did not remove it. He tried to get the stuff that was burning out of the room, bed-clothing, a mattress and part of the double-deck bed. The curtains had been burned off.

The wooden double-deck bed, particularly the upper portion of it at the foot end was burning. The fireman did not touch the electric cord for fear it would be too hot. He did not know whether there was any water in the vaporizer but said that it was not red or glowing that he noticed. He testified that the vaporizer was midway between the head and foot of the crib right along side of the bed, maybe not up against the bed but a couple of inches away. He did not pay any particular attention to the stand that the vaporizer was on but noticed that it was burning around the top. He noticed something else burning at that place, the stuff that was around the outer edges of the vaporizer. it was a black substance and appeared to be like burned cloth. The evidence shows the vaporizer was set on top of a pot holder, the texture of which is not clearly shown but the mother thought the outer covering was cloth with some sort of stuffing inside.

The distance between the crib and the double-deck bed was about two and one-half feet and the stand upon which the vaporizer stood was placed approximately half way between them. After the fire was extinguished the vaporizer was found to be blackened by smoke and soot. Part of the container had melted and a portion of the molten aluminum had dropped down to the seat of the chair. The heating element was found to be working properly when tested after the fire. The back and arms of the chair with their supporting rungs were practically all consumed by the fire and the surface of the seat was charred but had not disintegrated. The mother testified that she did not connect any sort of cloth, sheet, towel or pillow slip to the vaporizer nor did she place any such material against it or any part of it and that there was no cloth or any material extending from the crib, nor did she place any drape or blanket or cloth or anything like that around the bottom of the vaporizer.

The evidence shows that through literature the manufacturer represented that the vaporizer was safe and that there was no danger from flame occurring as a result of its use.

There was a great deal of expert testimony concerning the construction of the vaporizer, explaining its component parts, showing how it operated and indicating the various tests to which it and like instruments had been subjected and the result of those tests. This testimony would serve a purpose if we were considering the weight of the evidence, but inasmuch as we are not, that phase of the case will not be discussed.

In response to special interrogatories the jury answered that the vaporizer was an inherently dangerous instrument and that the mother was not guilty of negligence which contributed to cause the accident and injury complained of. The mere fact that the fire occurred, resulting in an injury to appellee, does not authorize the presumption or inference that the appellants or either of them were responsible therefor. The burden was on the appellee to prove that the vaporizer caused the fire. Huff v. Illinois Central Railroad Co., 362 Ill. 95, 199 N.E. 116; Rotche v. Buick Motor Co., 358 Ill. 507, 193 N.E. 529; Bowman v. Woodway Stores, Inc., 345 Ill. 110, 177 N.E. 727.

The errors assigned are as follows: (1) That defendants’ motions for directed verdict and for judgment notwithstanding the verdict should have been sustained by the trial court; (2) that it was error to submit interrogatory No. 1 to the jury; (3) that plaintiff’s attorney made improper and prejudicial argument to the jury, constituting reversible error.

The crucial question presented is whether it was error for the trial court to overrule defendants’ motions for a directed verdict and for judgment notwithstanding the verdict.

A motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Gorczynski v. Nugent, 402 Ill. 147, 83 N.E.2d 495; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, 60 N.E.2d 207.

There is considerable argument over evidence in the record tending to show that the fire might have been caused by other agencies than the vaporizer. This court, of course, on the contention here in issue, is not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury.

The following salient facts appear: The vaporizer was purchased under the express warranty that it was safe for its intended use. It was placed in operation in accordance with directions prepared by the manufacturer and delivered by the seller. The plaintiff’s evidence is that forty-five minutes later the vaporizer was dry and melted and the room in which it was placed was in flames. There is no question but that the heat of the molten metal was sufficient to ignite the doll chair on which the vaporizer was sitting and which was burning under and around the vaporizer when the fire was discovered. No one saw the vaporizer melt or the fire start and the ultimate question is whether the fire was caused by a defect in the vaporizer. If, from the circumstances revealed by the evidence, it is reasonable to infer that the fire was caused by a defect in the vaporizer the case was properly submitted to the jury, otherwise not.

The key point of the controversy is appellants’ contention that the fact of defect must be proved before it may be inferred that such defect caused the fire and the injury complained of. There being no eyewitnesses, the determination of this contention must be found in the circumstances revealed by the evidence, if at all. The metal of the container was melted. The vaporizer contained within it a source of intense heat. It is clear from the evidence that a properly constructed vaporizer could not melt itself down and it would seem inescapable that if the vaporizer did in fact melt by the application of its own heat, it was defective. It is apparently the appellants’ contention that before that conclusion may be reached it must appear that some physical evidence of improper construction of the vaporizer must be found. The only physical fact proved from which any inference of defect could be based is that the container was melted. Is that such a circumstance as to be a basis for a reasonable inference of defect?

Colbert v. Holland Furnace Co., 333 Ill. 78, 164 N.E. 162, 60 A.L.R. 353, a cold-air grating was installed by the defendant and a year later it gave way under the plaintiff’s weight causing the injury complained of. The cleat which held the grating was in evidence and appeared to be cross-grained and a break in it appeared which followed the cross-graining. Because of the circumstances of the broken cleat this court held that the jury could reasonably infer that it was defective and that its defect caused the injury.

In Showalter v. Western Pacific Railroad Co., 16 Cal.2d 460, 106 P.2d 895, deceased was found fatally injured during the switching of certain cars in a railroad yard. The question was whether the injury was caused by the negligence of defendant’s employees in moving the cars. There was no eyewitness but there was evidence that the defendant’s employees jostled the cars at about the time and at the place when the injury occurred without first ascertaining the whereabouts of deceased. The California court held that the jury could reasonably infer that such jostling of the cars knocked the deceased off the car on which he was riding and caused the injury. The presence, in the circumstances of that case, of all the necessary facts from which the injury could have resulted was the basis of that decision. Here, the vaporizer contained all the requirements for its own destruction if it was defective, and it was in fact destroyed.

In E. K. Wood Lumber Co. v. Anderson, 9 Cir., 81 F.2d 161, the deceased, a fisherman, was found drowned, his boat destroyed, and on a piece of it was a smear of red paint. It appeared that defendant’s steamer was plying the waters in which deceased was drowned at the time and place in question and that it was the only such vessel in the vicinity. Its hull was painted red. There was no eyewitness but the court held a reasonable inference could be drawn that defendant’s steamer collided with and destroyed the deceased’s boat and caused his death. The basis of decision was that, all circumstances being present necessary to cause the result, the causative fact could be reasonably inferred. Here, the vaporizer contained all the elements necessary to cause the fire, if it was defective. The circumstances show that it was in fact melted and that a fire existed. It would seem that the existence of a defect could reasonably be inferred. In the cited case the deceased was dead and his boat destroyed and it was held reasonable to infer that defendant’s steamer destroyed the boat and caused the drowning. Here, the container was melted and the room was ablaze in forty-five minutes.

In Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916, the deceased, a switch tender, was found dead alongside defendant’s railroad tracks. The evidence showed he had been struck in the head by some object which fractured his skull and caused his death. There was no eyewitness. It was shown that during the time that deceased was at the place of his injury a train passed which was equipped with a mail hook which, if it was extended, could have struck the deceased and inflicted the injury. The question was raised as to whether the jury could reasonably infer from these facts that the hook struck and killed deceased. It was not shown that the hook was in fact extended at the time and place of deceased’s injury, and it did appear that, except for an elevation in one place in the ground along the track, the hook, even if extended, was too high to have struck the deceased standing on the ground. The court held the case, on this evidence, was properly submitted to the jury, and that it could reasonably be inferred that the death was caused by the extended hook. It was there said, ‘Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.’

In the case of Tennant v. Peoria, & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 412, 88 L.Ed. 520, the court, in holding the evidence was sufficient to submit the case to the jury, said, ‘The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury.’ In the instant case the evidence shows without dispute that the vaporizer was placed in operation according to directions and that forty-five minutes later it was melted and the room was afire. It is also undisputed that a properly constructed vaporizer could not have melted under those conditions. It seems that the jury could reasonably draw the conclusion that the vaporizer involved here was defective.

Devine v. Delano, 272 Ill. 166, 111 N.E. 742, Ann.Cas.1918A, 689, and Town of Cicero v. Industrial Comm., 404 Ill. 487, 89 N.E.2d 354, this court held the rule to be that reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.

In the instant case appellants’ position seems to be that the melted condition of the container is not any evidence of defect and that when the evidence favorable to plaintiff is considered, it must be considered as if the vaporizer had not melted and was in good condition after the fire. Obviously, if the vaporizer had been in the same condition after the fire as it was in before, then an inference of defect would be pure conjecture and the jury could not have reached such a conclusion. The record discloses, however, that the vaporizer was melted, a fact which appellants argue could not have been caused by the vaporizer itself. It is that fact which gives rise to the inference drawn below that the vaporizer, being defective, destroyed itself and caused the fire. The fact the melt occurred in a small area of the container’s surface and its degeneration was not general, points to a reasonable inference that the defect was localized in that small area. The fact that there is evidence that might have been a reasonable basis for inference that the fire was caused by a defective cord, and that the melting was a result of the fire and not its cause, is all beside the point. The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached.

Carter v. Yardley Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, the plaintiff suffered burns after the use of perfume manufactured by the defendant. The particular ingredient in the perfume which caused the burns was not established. The plaintiff there introduced several witnesses who had suffered similar burns from the perfume and the court held that such evidence was properly submitted to the jury to show the probability that the burns were caused by some harmful ingredient in the perfume. In that case, as in this, the precise nature of the defect in the perfume was not shown, but the fact that the plaintiff was burned was held sufficient to raise a probability that a defect existed. In the instant case it could as well be said that the fact the vaporizer was melted and the room was ablaze was sufficient to raise the probability that the melting and fire was the result of some defect in the vaporizer.

While it is the rule that where circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not themselves presumed, Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96, 115 N.E. 149, that rule is not offended by the result reached below in the instant case. The circumstances of the melting of the container in one small area of its surface is a circumstance from which a reasonable inference may be drawn that a defect was present at that point. The fact that the evidence shows that a sound vaporizer could not and would not have melted as this one did proves nothing with regard to the vaporizer involved here but is additional support for an inference that, since this on did melt, it must have been defective.

The argument of appellants that the melting was due to the heat of the fire and not that of the heating element in the vaporizer is likewise based on an inference, for there is no direct evidence to support it. A verdict may not be set aside merely because the jury could vave drawn different inferences or because judges feel that other conclusions than the one drawn would be more reasonable. Jefferson Ice Co. v. Industrial Comm., 404 Ill. 290, 88 N.E.2d 837; Heiting v. Chicago, Rock Island & Pacific Railway Co., 252 Ill. 466, 96 N.E. 842, Ann.Cas.1912D, 451; Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. There is no complete absence of probative facts to support the inference drawn here and therefore the trial court properly overruled appellants’ motions for directed verdict and for judgment notwithstanding the verdict.

Appellants also urge error in the submission to the jury of the special interrogatory which reads, ‘Was the vaporizer in question when used in accordance with the printed directions accompanying it in the manner and for the purpose intended, an inherently dangerous instrument?’ The complaint in this case alleges that the vaporizer was inherently dangerous and defendants denied it. It was one of the issues in the case and defendant Knapp-Monarch Company caused the jury to be instructed that before plaintiff could recover it must have been proved that the defendant knew or by reasonable care should have known the vaporizer here was a potentially dangerous instrumentality and if there were any defect in it, ‘it was reasonably certain to endanger the life or limb of other persons than the purchaser when used in the manner and for the use intended.’

In view of the defendant’s position in that instruction, it is hard to see how the interrogatory was so prejudicial as to require reversal. A judgment will not be reversed for error unless it appears such error affected the outcome below. Pease v. Kendall, 391 Ill. 193, 63 N.E.2d 2; Devine v. Delano, 272 Ill. 166, 111 N.E. 742, Ann.Cas.1918A, 689.

Defendants also contend that plaintiff’s attorney made improper argument to the jury by referring to judgments obtained in other actions and by referring to defendants as ‘large corporations.’ No objection was made at the time the argument was made, nor was the court requested to take any action regarding the remarks until after the verdict. This question is not open for consideration in this court in such case. People v. Switalski, 394 Ill. 530, 69 N.E.2d 315; Forest Preserve Dist. v. Chicago Title & Trust Co., 351 Ill. 48, 183 N.E. 819; Chicago City Railway Co. v. Gemmill, 209 Ill. 638, 71 N.E. 43.

Only when there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict. We are of the opinion that here there is an evidentiary basis for the jury’s verdict and that the jury is free to disregard or disbelieve whatever facts are inconsistent with its conclusion. The Appellate Court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. We are of the opinion the court properly overruled defendants’ motions for directed verdict and for judgment notwithstanding the verdict, and therefore the judgment is affirmed.

Judgment affirmed.

CRAMPTON, J., dissenting.

UNITED STATES PATENT OFFICE

ABRAHAM RANDEL, OF VERONA, NEW YORK

MODE OF CONSTRUCTING CARRIAGE AND WAGON WHEEL HUBS FOR CONTAINING
OIL, &c.

Specification of Letters Patent No. 374, dated September 8, 1837.

To all whom it may concern:

Be it known that I, ABRAHAM RANDEL, of the town of Verona, in the county of Oneida and State of New York, have invented a new and useful Improvement in Hubs for Wagons and other Carriages; and I do hereby declare that the following is a full and exact description.

The nature of my invention consists in constructing a wagon or other carriage hub of cast iron or other metal hollow, usually in three parts (so as to have the shape and size of those made of wood and metal combined) and thus providing a large cavity for oil, and by means of ribs or partitions in the hub to supply the axle more efficiently than by any other means known to me.

To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation. 1st. I make a cylindrical tube or pipe, as A, A, A, Fig. 1, seven or eight inches long about three eighths of an inch thick, the internal diameter to correspond with the size desired for the axle (say 1 1/2 in the larger end, and 1 1/4 in the smaller end) on or around this pipe I have four circular plates or rims, as B, B, that at the larger end to be 4 1/2 inches in diameter, and that at the smaller end 3 ½ inches, about 1/8 of an inch thick; the two middle rims which are intended to receive the spokes are to be 5 1/2 inches in diameter 3/8 of an inch thick, and 1 ¾ inches apart; these are to have a screw thread, or other fixture cast on their outer edge to receive and hold the caps hereafter described. There are to be four, (more or less) partitions or ribs as C, running the length of the pipe and connecting the rims or plates. The ribs connecting the two middle rims in which the spokes are to be inserted must rise above the rims so as to be even or level with the caps above mentioned, there may be any desired number of ribs in this part, or it may be so made as to receive the spokes in the usual manner. The ribs which extend from the middle part to each end, are to be of such height, that when the caps are screwed on, two of them, (one at each end, will fit closely to the caps, under these there is a funnel shaped hole, D, through the pipe to let the oil pass-freely to the axle. The other ribs are to be of such height as to leave sufficient space for the oil to pass freely between them, and the caps. 2d. The caps are to be of sufficient size as to fit on the middle rims B, and fit closely on the end rims and extend beyond them from ½ an inch to one inch so as to give them the appearance of a band extending over the end of the hubs. These may be as thin as is consistent with a due regard to strength, they may be of cast or wrought metal, and to have such molding or ornament on them as may be desired. 3d. When the caps are secured on the body of the hubs the space (if any there be) between the rims and caps may be closed with a mixture of glue and Spanish white, or any other substance that will retain oil. A small screw may pass through each cap into or against one of the rims or ribs to prevent the caps from ever jarring loose. There may also be a screw through each cap which when taken out leaves a place to supply the hubs with oil. When the hub is sufficiently supplied with oil or other lubricating substance, and as the wheel revolves, the oil is washed, up by the rib or partition, and thrown on, or in the hole D, in the pipe, a small portion of it passes through to the axle, and thus keeps it continually supplied with oil.

I do not intend to confine myself to any particular form or size. These must be varied to suit the different carriages they are intended for, and to suit the fancy of different persons.

I do not claim the casting of’ wagon or carriage hubs of metal merely; but

What I claim as my invention or improvement, and not heretofore known to the best of my knowledge, is-

The casting of hubs with hollow compartments for containing the oil, or other lubricating matter, having holes communicating with the axle, the compartments covered by screw boxes substantially as above described.

ABRAHAM RANDEL

Witnesses:
S. S. BREESE
JOHN LEE

Ecolochem, Inc. v. Southern California Edison Co., 227 F.3d 1361 (Fed. Cir. 2000).

Facts:

Ecolochem owned two patents directed to methods of demineralization and deoxygenation of water. Ecolochem developed the underlying technology while contracting its water purification and supply services to Southern California Edison Company. Edison at the time was constructing its own water purification facility. Ecolochem filed suit against Edison upon completion of the project, alleging that Edison’s facility infringed Ecolochem’s patents. The district court granted partial summary judgment in favor of Edison and held that the claims of the two patents were invalid as either anticipated or obvious.

On appeal, the Court of Appeals for the Federal Circuit reversed and remanded for retrial, holding that disputed issues of material fact remained pertaining to evidence of secondary indicia of nonobviousness presented by Ecolochem.

Following a bench trial on remand, the district court found that Edison had willfully infringed Ecolochem’s patents. The court also found, however, that the infringed claims were invalid as obvious in light of a combination of prior art including references that taught the use of mixed-bed ion exchange resins. Ecolochem appealed the finding of invalidity regarding the claims of the ‘411 patent but did not assert the other patent on appeal.

Issues:

1. Whether process patent claims are anticipated by prior art articles or by a scientist’s public presentation if the entire process is not fully described in any one reference.

2. Whether an invention that combines two known elements is obvious when nothing in the prior art as a whole suggests, teaches, or motivates one of ordinary skill in the art to make the combination.

3. Whether evidence of secondary considerations can rebut a prima facie case of obviousness and raise a genuine issue of fact that requires a remand for trial of the issue.

Holding:

1. No. Prior art references that do not expressly teach each and every element of the process described in a patent do not anticipate the patent.

2. No. Obviousness cannot be established by combining the teachings of the prior art unless the prior art contains a teaching, suggestion or motivation to combine.

3. Yes. Evidence of secondary indicia of nonobviousness may raise a material issue of fact necessitating a remand for trial on the issue.

Discussion:

The Court of Appeals for the Federal Circuit reviewed de novo the district court’s finding that the claims were obvious and invalid. The court noted that the prior art taught the use of hydrogen to deoxygenate water but did not teach the deoxygenation of water using hydrazine with mixed-bed ion exchange resins. With the exception of claim 20, the court reversed the district court’s finding that Ecolochem’s claims were anticipated by a scientist’s public presentation because a key part of the claimed process had been omitted from the presentation. The court found that the presentation included every limitation of claim 20 and affirmed the district court’s finding of invalidity regarding that claim.

The court held that the combination of two prior art references does not render patent claims obvious absent a teaching, suggestion, or motivation to combine the information and where there was evidence of teaching away in the prior art. Here, the court held that the prior art taught away from the mixed-bed ion exchange process and that the claims were therefore not obvious in light of secondary indicia of nonobviousness.

The Federal Circuit considered evidence of secondary indicia of nonobviousness offered by Ecolochem to overcome a prima facie showing of obviousness for claim 20 and affirmed the district court’s determination that the claim was obvious. The court reasoned that the lack of evidence of copying by others in addition to evidence that showed that Ecolochem’s process was not developed in response to a “long felt need” pointed more strongly toward a finding of obviousness than commercial success and teaching away supported the opposite conclusion.

Disposition:

Affirmed with regard to the district court’s finding that claim 20 was invalid, reversed with respect to all of the other claims, and remanded for a determination of damages to Ecolochem for infringement of the remaining valid claims.

3D Systems, Inc. v. Aarotech Labs., Inc., No. 97-1514, 1998 U.S. App. Lexis 28583, 160 F.3d 1373, 48 U.S.P.Q.2d (BNA) 1773 (Fed. Cir. Nov. 12, 1998).

Facts:

3D Systems filed a patent infringement suit against Aarotech, Aaroflex, and Young in the Central District of California. The defendants moved to dismiss for lack of personal jurisdiction. The district court granted the motion and dismissed the claims against all of the defendants, finding that the plaintiff had not established the elements for personal jurisdiction under the Ninth Circuit’s due process test.

Aarotech, the parent corporation of Aaroflex, was incorporated in Oklahoma and had its principle place of business in Virginia but had taken no actions in the state of California.

Aaroflex, a subsidiary of Aarotech, was incorporated in West Virginia and had its principle place of business in Virginia. As of the date of the district court’s decision, Aaroflex had sold a total of five machines, none of which had been shipped, and none of which had been sold in California. Promotional materials had been distributed in California, however.

Young was the President and Chairman of the Board of Aaroflex and the CEO of both Aaarotech and Aaaroflex and resided in Washington, DC.

Issue:

1) What personal jurisdiction law does the Federal Circuit apply – its own or that of the lower court?
2) Were Aaroflex’s promotional materials and price quotations offers for sale under 35 U.S.C. § 271(a), despite stating that they were not an offer for sale until executed by recipient?

Holding:

1) The Federal Circuit applies its own personal jurisdiction law, deferring to the state’s highest court’s interpretation of the state’s long arm statute.
2) Yes. Using the conceptualization of “offer to sell” under federal law and not the law of the state, the promotional materials were an offer for sale.

Discussion:

The Federal Circuit applied the Akro test for minimum contacts (see Akro Corp. v. Luker, 45 F.3d 1541, 1545-46, 33 U.S.P.Q.2d 1505, 1508-09 (Fed. Cir. 1995)). The three prongs of the Akro test are:

1) whether the defendant purposefully directed its activities at the forum,
2) whether the claim arises out of or relates to those activities, and
3) whether an assertion of personal jurisdiction is reasonable and fair.

Whether the second prong had been satisfied depended on whether the promotional materials constituted an offer for sale. The Federal Circuit held that “offer to sell” under 35 USC § 271 was intended to prevent potential infringers from generating interest in an infringing product to the detriment of the patentee. The Federal Circuit held that the promotional materials constituted offers for sale and that minimum contacts had been established, and that therefore the district court had had personal jurisdiction over Aaroflex. See International Shoe Co. v. Washington.

Disposition:

Affirmed-in-part as to the district court’s finding that it lacked personal jurisdiction over Aarotech and Young, reversed-in-part as to the district court’s finding that it lacked personal jurisdiction over Aaroflex, and remanded.

Facts:

Gould and Schawlow filed patent applications directed to lasers. The parties became involved in an interference. Gould was the junior party and sought to establish earlier conception and reasonable diligence through reduction to practice. Gould produced evidence including a notebook, notarized papers, and his wife’s testimony. The Board of Patent Appeals and Interferences awarded priority of the invention to Schawlow, finding that Gould had established neither earlier conception nor diligence through reduction to practice.

Issue:

What must the applicant prove to establish earlier conception and reasonable diligence through reduction to practice?

Holding:

1) Rule for Interference

In order for the junior party to prevail in an interference, the party must prove by a preponderance of the evidence (1) conception of the invention and (2) reasonable diligence in reducing it to practice through reduction to practice (usually a constructive reduction to practice established by filing the patent application).

2) Conception:

The court held that Gould had not established an earlier reduction to practice. Gould relied on pages in a notebook that he had had notarized. The court found that the notebook pages were insufficient to establish Gould’s earlier conception.

Rule for Conception: The court held that the evidence must show “a complete conception, free from ambiguity” or doubt sufficient to enable the inventor or a person having skill in the art to reduce the invention to practice without “further exercise of inventive skill”. See Mergenthaler v. Scudder, 11 App.D.C. 264 (D.C. Cir. 1897).

3) Diligence through Reduction to Practice:

The court held that Gould had not established diligence through reduction to practice because he did not produce specific evidence of what he had done and when he had done it. Stating that he took off a certain number of days from his regular employment to work on the laser over a three month period was not enough.

Rule for Diligence through Reduction to Practice: “The party chargeable with diligence must account for the entire period during which diligence is required.” The party must prove what was done and when it was done.

4) Attorney’s diligence:

The court found that the diligence requirement was met where Gould’s attorney took four months during which he was involved in a forty day trial to prepare the application.

5) Corroboration:

His wife’s testimony was insufficient to corroborate Gould’s evidence of his diligence because it was not specific regarding dates and facts. Gould’s notebook was insufficient to corroborate his testimony because it is not enough to show what was done if there is no indication of when it was done.

Disposition:

Affirmed.

Gould v. Schawlow, 363 F.2d 908 (C.C.P.A. 1966).

Facts: The inventors filed a patent application directed to DNA and cDNA molecules that encoded heparin binding growth factor (HBGF). The examiner rejected the claims as obvious and the Board of Patent Appeals and Interferences affirmed. The examiner cited two prior art references. The Bohlen references provided a partial amino acid sequence of HBGF and did not address the DNA coding of the enzyme. The Maniatis reference disclosed the method of gene cloning that the applicants had used.

Issue: Whether the combination of a prior art reference teaching a method of gene cloning, together with a reference disclosing a partial amino acid sequence of a protein, may render DNA and cDNA molecules encoding the protein prima facie obvious under 35 USC § 103.

Holding: No. In order to establish that a structurally novel chemical compound is prima facie obvious, the teachings of the prior art must suggest the claimed compounds to a PHOSITA (person having ordinary skill in the art).

Reasoning: Obviousness is normally based on structural similarity between the claimed and prior art compounds. Structural similarities may provide a motivation or suggestion to prepare new analogs of known compounds. Such similarities can include geometric or positional isomers or homologs.

In such cases, “the question becomes whether the prior art would have suggested making the specific molecular modifications necessary to achieve the claimed invention.” See In re Dillon. Only then does the burden shift to the inventor to rebut the prima facie case of obviousness.

The court held that the prior art did not disclose any relevant DNA molecules or close relatives of the claimed compounds. While the protein sequence was known, the redundancy of the genetic code provided too many alternatives for one to have contemplated or focus on the claimed compounds. One could not have conceived of the sequence until it was isolated and purified and what cannot be contemplated or conceived cannot be obvious. A motivation to search for a gene with a known property does not make the specific gene that is found obvious.

Brief Summary of Holding:

(1) Combination of prior art reference teaching method of gene cloning, together with reference disclosing partial amino acid sequence for a protein that stimulated cell division did not render claims prima facie obvious;

(2) Conceived method of preparing some unidentified DNA does not define it with precision necessary to render it obvious over protein it encodes; and

(3) Patent claims generically encompassing all DNA sequences encoding human and bovine proteins to stimulate cell division were not invalid as obvious.

Disposition: Reversed.

In re Thomas F. DEUEL, Yue-Sheng Li, Ned R. Siegel and Peter G. Milner.

In re Deuel, 51 F.3d 1552, 1558-59, 34 USPQ2d 1210, 1215 (Fed. Cir. 1995).

2,794,028 Patented May 28, 1957
EPOXY DERIVATIVES

Benjamin Phillips and Paul S. Starcher, Charleston, W. Va., assignors to Union Carbide and Carbon Corporation, a corporation of New York

No Drawing. Application August 13, 1953, Serial No. 374,141

3 Claims. (Cl. 260— 348)

This invention relates to new organic compounds and has for an object the provision of new types of organic compounds suitable for use in the plastics and resins industry, as well as other important industrial uses. More particularly, this invention relates to epoxy compounds prepared from tetrahydrophthalic anhydride and tetrahydrophthalic acid.

The new compounds of this invention are useful as modifiers for various condensation resins and as plasticizers and stabilizers for various synthetic resins.

The epoxides obtained by the epoxidation of the tetrahydrophthalic acid and its derivatives are particularly attractive, in view of the fact that they are potentially low cost chemicals since the tetrahydrophthalic anhydride is readily obtained by the reaction of butadiene and maleic anhydride, both of which are commercially available in large quantities.

More specifically, the compounds which comprise this invention are useful as chemical intermediates in preparing a large number of chemical compounds by virtue of their reactive epoxide group which can be reacted with a large number of compounds having a labile hydrogen atom.

The compounds of this invention may be conveniently illustrated by the following structural formula:

[see figure]

The compounds of this invention are produced by the oxidation of the olefinic linkage contained in the starting material, as in the oxidation of the tetrahydrophthalic anhydride to yield the 4,5-epoxycyclohexane-l,2-dicarboxylic anhydride otherwise known as 7-oxabicyclo-[4.1.0]heptane-3,4-dicarboxylic anhydride.

The oxidizing agents employed in the production of these new compounds are the peracids, such as, for example, peracetic acid, perpropionic acid, perbenzoic acid and the like. More particularly, peracetic acid is employed as the oxidizing agent to produce these epoxy compounds.

The use of the peracids to obtain certain beneficial oxidation results is not new in the art of oxidizing organic compounds. In fact, the history of the peracids dates back to the work of Baeyer and Villiger, who, in 1900, were able to prepare perbenzoic acid by the saponification of dibenzoyl peroxide. The tremendous interest displayed over the peracids is due to the fact that the peracids occupy somewhat a unique position as oxidizing agents. The peracids have the ability to effect several specific chemical transformations with very high efficiencies, whereas, other well known oxidizing agents, such as, for example potassium permanganate, have no such ability.

Among the most interesting types of chemical transformations peculiar to the peracids is that type of reaction which makes available the compounds of this invention, that is, the oxidation of unsaturated organic compounds to yield the corresponding epoxides. It is this particular oxidation ability of the peracids that makes available a host of chemical compounds that may have previously been produced only through laborious and tedious means and in minute quantities or were never heretofore obtainable. For purposes of illustration, the reaction whereby the epoxide derivative of tetrahydrophthalic anhydride is produced in accordance with our invention, may be written as follows:

[see figure]

The following examples will serve to illustrate the practice of the invention:

EXAMPLE I

Preparation of 7-oxabicyclo[4.1.0]heptane-3,4-dicarboxylic acid

Fifty grams of tetrahydrophthalic acid was dissolved in 150 grams of acetone and the mixture was heated to 40° C. To this mixture was added 132 grams of a 25.4% solution of peracetic acid in acetone over a period of 40 minutes. The reaction mixture was heated at 40° C. for an additional six hours. To 100 grams of this reaction mixture was added enough petroleum ether to cause layer separation. The lower layer was recovered and titrated with petroleum ether until crystallization occurred. The crystals, after being washed with petroleum ether and dried weighed 11.1 grams. An analysis for epoxide content by the hydrogen bromide method indicated a purity of 64.2% calculated as 7-oxabicyclo-[4.1.0]heptane-3,4-dicarboxylic acid. The rest of the original reaction mixture was placed in a brine bath at —50° C. for eight days. The crystalline phase which separated, was filtered off, washed several times with petroleum ether, and dried. It weighed 7 grams. An analysis for epoxide groups by the hydrogen bromide method indicated a purity of 75.5% calculated as the epoxy acid. Titration of the acid groups followed by saponification, indicated that 82% of the theoretical carboxyl groups were still available. The product melted with foaming at 145°-150° C.

EXAMPLE II

Preparation of 7-oxabicyclo[4.1.0]heptane-3,4-dicarboxylic anhydride

One mol of tetrahydrophthalic anhydride was dissolved in 900 grams of ethylbenzene. One and one-half mols of a 23.4% peracetic acid solution in ethyl acetate was added to the anhydride solution over a period of two hours at a temperature of approximately 30° C. The reaction mixture was allowed to stand over night. White crystals of the reaction product was separated from the solution. This crude product had a melting point in the range 141°-143° C. and upon further purification, by two recrystallizations from dioxane, gave 7-oxabicyclo[4.1.0]heptane-3,4-dicarboxylic anhydride having the following properties:

[see figure]

What is claimed is:

1. An epoxide selected from the group consisting of 4,5-epoxycyc1ohexane-1,2-dicarboxylic acid and 4,5-epoxycyc1ohexane-l,2-dicarboxylic anhydride.

2. As a new epoxide, 4,5-epoxycyc1ohexane-l,2-dicarboxylic acid.

3. As a new epoxide, 4,5-epoxycyc1ohexane-l,2-dicarboxylic anhydride.

References Cited in the file of this patent

UNITED STATES PATENTS
2,550,494 Olin Apr. 24, 1951
2,570,029 Fluchaire Oct. 2, 1951

OTHER REFERENCES

Ziegler et al.: Annalen, vol. 551, pp. 17-18 (1942).
Gill: J. Chem. Soc., 1952: 4630-4632.

US patent 2794028 full text in PDF format

United States Patent Office.

3,120,529

Patented Feb. 4, 1964

10-ACYL DERIVATIVES OF APOYOHIMBINE AND PROCESS THEREFOR

John Shavel, Jr., Mendham, N.J., assignor to Warner-Lambert Pharmaceutical Company, Morris Plains, N.J., a corporation of Delaware

No Drawing. Filed Feb. 10, 1961, Ser. No. 88,307
4 Claims. (Cl. 260—287)

The present invention relates to new and novel 10-acyl derivatives of apoyohimbine of the formula:

[see figure]

wherein R is the acyl radical of an aliphatic carboxylic acid containing 1 to 6 carbon atoms and to the non-toxic acid addition and quaternary ammonium salts thereof. This invention also relates to a method of producing these compounds.

The compounds of this invention are derivatives of the alkaloid apoyohimbine of the yohimbane series. They have interesting pharmacological activity and are useful as analgesics, tranquilizers and hypotensive agents. In addition, they are valuable intermediates in the production of other compounds of the yohimbane series. Included within the scope of this invention are such 10-acyl derivatives of apoyohimbine as 10-acetylapoyohmibine, 10-propionylapoyobimbine, 10-butyrylapoyohimbine, 10-valerylapoyohimbine and the like.

It has now been found that the compounds of my invention of the above formula may be prepared by treating the known apoyohimbine at between +25° C. and — 40° C. with an acid anhydride or acyl halide having R acyl groups in the presence of a Friedel-Crafts catalyst. The reaction is one of acylation with an R acyl group being substituted at the 10-position of the apoyohimbine starting material. The reaction is carried out in the liquid phase under anhydrous conditions in the presence of a Friedel-Crafts catalyst such as boron trifluoride, aluminum chloride, aluminum bromide, stannic chloride, ferric chloride, ferric bromide, hydrofluoric acid, polyphosphoric acid, titanium tetrachloride, sulfuric acid and the like, with boron trifluoride being particularly effective. The reaction mixture may also contain a carboxylic acid or a carboxylic acid ester corresponding to the acid halide or acid anhydride, that is, a carboxylic acid of the formula ROH, or an ester of the formula ROR₁, wherein R₁ is a lower alkyl group.

In carrying out the reaction the acylating agent (acid anhydride or acyl halide), either with, or without the corresponding acid or ester, is initially saturated with catalyst at a temperature between about —20° C. and + 10° C. The temperature of the mixture is then adjusted to the desired reaction temperature and the apoyohimbine starting material is added, either as a solid or as a solution in the acylating agent or in an inert organic solvent, such as rnethylene chloride, dioxan, tetrahydrofuran and the like. The reaction mixture is then stirred at the reaction temperature to completion and the product is recovered therefrom by conventional techniques of extraction, crystallization and chromatography.

It is to be understood that the new and novel compounds of this invention may be used as the free base or may be converted into the corresponding pharmaceutically acceptable non-toxic acid addition and quaternary ammonium salts. Exemplary of non-toxic acid addition salts are those formed with maleic, fumaric, benzoic, ascorbic, succinic, bismethylensalicylic, methylsulfonic, ethanedisulfonic, acetic, propionic, tartaric, salicyclic, citric, gluconic, lactic, malic, mandelic, cinnamic, citraconic, stearic, palmitic, itaconic, glyolic, benzenesulfonic, hydrochloric, hydrobromic, sulfuric, sulfamic, phosphoric and nitric acids. The acid addition salts may be prepared in the conventional manner, for example, by treating a solution or suspension of the free base in an organic solvent with the desired acid, and then recovering the salt which forms by crystallization techniques. The quaternary salts are prepared by heating a suspension of the base in a suitable solvent with a reactive alkyl halide such as methyl iodide, ethyl bromide, n-hexyl bromide, benzyl chloride or a reactive ester such as methyl sulfate, ethyl sulfate or methyl p-toluene sulfonate.

For therapeutic use, the new and novel compounds of this invention, as the free base, or as their acid addition or quaternary ammonium salts, may be formulated with conventional pharmaceutical carriers into dosage unit forms, such as tablets, capsules, elixirs, suppositories, solution, suspensions and the like. The following example is included in order further to illustrate the present invention:

Example

45 A mixture of 25 ml. glacial acetic acid and 150 ml. acetic anhydride is saturated with boron trifluoride at —10° C. by passing boron trifluoride into the solution for 15 minutes. The resulting mixture is cooled to —20° C. and 25 g. apoyohimbine are added. The reaction mixture is agitated for two hours and then is poured onto crushed ice. The suspension formed is made basic with ammonium hydroxide and extracted with chloroform. The extract is dried over sodium sulfate, filtered and evaporated to dryness. The residue, an oil, is crystallized from methanol to yield 19.9 g. of crystals, which on two further recrystallizations from methanol yield pure 10-acetylapoyohimbine (as the hydrate), M.P. 204-206° C. (dec.), [α]_D²⁵ +38° (pyridine, c.= l.l).

Analysis.—Calc.: C, 69.67; H, 7.12; N, 7.07. Found: 60 C, 69.73; H, 7.43; N, 7.35. It is understood that the foregoing detailed description is given merely by way of illustration and that many variations may be made therein without departing from the spirit of my invention.

Having described my invention, what I desire to secure by Letters Patent is:

1. A member selected from the group consisting of compounds of the formula:

[see figure]

wherein R is the acyl radical of an unsubstituted saturated aliphatic carboxylic acid of 1 to 6 carbon atoms and the pharmaceutically acceptable non-toxic acid addition and quaternary ammonium salts thereof with a compound selected from the group consisting of methyl iodide, ethyl bromide, n-hexyl bromide, benzyl chloride, methyl sulfate, ethyl sulfate and methyl p-toluene sulfonate.

2. 10-acetylapoyohimbine.

3. A method of preparing a compound of the formula:

[see figure]

wherein R is the acyl radical of an unsubstituted saturated aliphatic carboxylic acid of 1 to 6 carbon atoms which comprises treating apoyohimbine with a member selected from the group consisting of a carboxylic acid anhydride (R)2O and a carboxylic acid halide R—X wherein X is halogen and R has the meaning above at a temperature between +25° C. and —40° C. in the presence of a Friedel-Crafts catalyst.

4. A method according to claim 3 wherein said Friedel- Crafts catalyst is boron trifluoride.

No references cited.

PDF of United States Patent Number 3120529

UNITED STATES PATENT OFFICE.

CHRISTIAN RUDOLPH, OF HOCHST-ON-THE-MAIN, GERMANY, ASSIGNOR TO FARBWERKE, VORMALS MEISTER, LUCIUS & BRUNING, OF SAME PLACE.

MANUFACTURE OF ARTIFICIAL INDIGO.

SPECIFICATION forming part of Letters Patent No. 262,695, dated August 15, 1882.
Application filed April 18, 1882. (Specimens.)

To all whom it may concern:

Be it known that I, CHRISTIAN RUDOLPH, a citizen of Germany, residing at Hochst-on-the-Main, Germany, have invented certain new and useful Improvements in the Production of Artificial Indigo; and I do hereby declare that the following is a full, clear, and exact description of the invention, which will enable others skilled in the art to which it appertains to make and use the same.

My invention relates to an improvement in the production of artificial indigo. It consists in producing artificial indigo from benzaldehyde in the manner hereinafter to be described.

In producing monobenzylidenacetone I use the simplest known method, which is that described by Schmidt Claisen in “Berichte der Deutschen Chemischen Gesellschaft,”(1881, pp. 2,472,) — viz., from benzaldehyde and acetone in a weak solution of caustic soda. The next step is the conversion of the monobenzylidenacetone into its orthonitromono substitution product, which is done as follows: one part monobenzylidenacetone is mixed with the quintuple quantity of sulphuric acid. Into this mixture I pour slowly the calculated quantity of nitric acid at a temperature of 32.59° Fahrenheit, (0.15° centigrade,) and having a specific gravity of 1.46, dissolved in the double quantity of sulphuric acid. After this operation is completed the nitro compounds which remain in solution in the sulphuric acid are separated by pouring this solution into a large quantity of water. Said nitro compounds are afterward collected on a filter, and after being carefully washed in water they are dissolved in one and a half time the quantity of alcohol. After this solution has been standing for several hours the paranitromonobenzylidenacetone will have separated almost completely. The residual liquor or nitrate contains the orthonitrobenzylidenacetone, which can be obtained by distilling off the alcohol or by adding to the residual liquor the triple to quadruple quantity of water. If, now, the orthonitrobenzylidenacetone be digested for some time in an alcoholic soda-lye, (one part of the nitrate, five parts alcohol, and three parts of soda-lye of ten per cent.,) it becomes converted into a new substance, which, after the acidulation of the solution, can be separated by washing it out with ether.

From this substance I obtain, by heating its aqueous solution, or, better still, by adding alkalies — such as soda or caustic soda — to the solution, a considerable quantity of artificial indigo, which may be obtained in a pure state by further washing the same with water and alcohol.

Having thus described my invention, what I claim as new, and desire to secure by Letters Patent, is—

1. The process of manufacturing an artificial indigo from benzaldehyde, which consists in first converting the same into monobenzylidenacetone by the ordinary well-known method, then converting said monobenzylidenacetone into its orthonitro substitution derivative, separating this orthonitro product from isomers by crystallization, filtration, and distillation, and finally converting it into the indigo-blue coloring- matter by digestion in a weak alkaline lye.

2. A blue coloring-matter or dye-stuff (an artificial indigo) prepared by the process herein set forth. In testimony that I claim the foregoing as my own I affix my signature in presence of two witnesses.

CHRISTIAN RUDOLPH.

Witnesses:
JOSEPH EUGEN REVERDY,
ALBERT FROSCHMANN.

UNITED STATES PATENT OFFICE.

WILLIAM H. SPOONER, OF BRISTOL, RHODE ISLAND.

COMPOSITION OIL FOR LUBRICATING, PAINT, &c.

Specification forming part of Letters Patent No. 45,090, dated November 15, 1864.

To all whom it may concern:

Be it known that I, WILLIAM H, SPOONER, of Bristol, in the county of Bristol and State of Rhode Island, have Invented certain new and useful Improvements in Composition Oils for Lubricating, Paint, and other Purposes; and I hereby declare that the following is a full, clear, and exact description of the same.

The object of this my invention is to produce a cheap substitute for the different oils or compositions of oils used in the arts for the purposes of lubricating, painting, softening wool, leather, &c. The large amount of mineral oil manufactured from coals, peat, tar, &c., or drawn from the oil-wells, and which can be afforded at comparatively small cost, suggested the employment of this substance as a substitute for animal or vegetable oil for the uses before mentioned, but it was found that it did not possess the requisite qualities.

Attempts were heretofore made to produce from coal-oil or paraffine lubricating or other dense oils used for various purposes in the arts. For this purpose caoutchouc or other gummy and resinous substances were combined with by dissolving them in coal-oil or paraffine; but the results do not appear to have given satisfaction, and no good lubricating, paint, or other like oil made from mineral oil or its distillates has, to my knowledge, been successfully introduced.

The experiments instituted by me have resulted in the production from mineral oils of an oil admirably adapted for lubricating machinery, oiling of wool, preparing paints, softening leather, and for many other purposes, and I have accomplished this by proceeding in the manner as follows: I first take caoutchouc or pure india-rubber, such as purchasable in the market, and dissolve it in paraffine-oil, benzine, or naphtha in the proportions of one pound of the former to four gallons of the latter. If paraffine-oil be used as the dissolving agent of caoutchouc, I would recommend that it should be warmed to about 100° Fahrenheit. The mixture of one pound of caoutchouc with four gallons of either of the above-named substances should be exposed to frequent agitation for about ten days, when the mixture will be complete and intimate. I then take paraffine-oil, such as derived from the distillation of coals, peat, tar, or petroleum, and add it to the mixture or solution before described in the proportions of forty gallons of the former to three of the latter, heating the mixture to a temperature of from 100° to 200° Fahrenheit, agitating the mass for five hours, more or less. The mixture is then allowed to rest, and a separation of impure and foreign matters and of undissolved caoutchouc will take place, when the clear oil, ready for use, may be drawn off.

Having thus fully described my invention and the manner in which the same is or may be carried into effect, I claim—

1. The method herein described of preparing oil adapted for use as a lubricating, paint, wool, currier’s, or other like oil by combining with dissolved caoutchouc paraffine-oil, when said combination is effected in the proportions and in the manner herein set forth.

2. As a new article of manufacture, a composition oil, the same consisting of caoutchouc dissolved in hydrocarbon mixed with the oily distillates of coal, peat, tar, or petroleum in the manner and the proportions set forth. In testimony whereof I have signed my name to this specification before two subscribing witnesses.

WILLIAM H. SPOONER.

Witnesses:
M. BENNETT,
JAS. E. FRENCH.