WESTRUMITE CO. OF AMERICA v. COMMISSIONERS OF LINCOLN PARK, 174 F. 144

BAKER, Circuit Judge ("after stating the facts as above). It is argued that the specification is fatally misleading', because it speaks of a soluble sprinkling liquid,” made up of water and “petroleum, petroleum residue, or other suitable mineral or tar oils rendered soluble in water by any known process.” Though “emulsion,” and not “solution,” be the correct word within the terminology of chemistry, that does not prove that persons skilled in the construction and care of roads would fail to understand that a possible, rather than an impossible, mixture was intended.

Prior to the alleged invention in suit, so the bill avers, there was a known mixture of oil and water which "was to all intents and purposes a solution.” Until evidence to the contrary is adduced, the presumption should be indulged, in support of the patent, that persons skilled in the art would understand that Van Westrum was referring to such a “solution” as that set forth in the bill, rather than that he was perpetrating a chemical hoax. Another objection is that the specification is so vague and indefinite that no one could learn from it how to practice the alleged invention.

The preferred proportions are stated, and if that is not a sufficient direction to those “skilled in the art or science to which the invention appertains, or with which it is most nearly connected,” the deficiency will have to be established by evidence. Want of invention is predicated oil the state of the art, first, within common knowledge, and, second, as-admitted by the bill and patent. ITi the briefs and arguments the two grounds become one. It was admittedly old to sprinkle roads with water; likewise, with oil.

Therefore, so the contention runs, no invention was required to sprinkle roads with a mixture of oil and water. Possibly not — especially if each element accomplished only what it had before.

But if water alone had no permanent effect in roadmaking, if oil alone did not permeate the body of the dust and form a homogeneous mass, and if, in the mixture of the patent, the water carries minute particles of oil down into the body of the dust, thereby binding the dust particles into a top dressing mat adheres to the roadbed, a new result may have been obtained, of such high utility, and so long and diligently sought, that no doubt could be entertained of the quality of the productive act. In brief, if the patent in suit is to he overthrown, it is on facts not ascertainable on demurrer to the. bill.

The decree is reversed, with the direction to overrule the demurrer.