acquiesced in by the plaintiff, and that, on behalf of the plaintiff, Mr. Rix denies the allegations of Dittmar as to his making such powders without objection from the plaintiff, and as to there being an understanding or agreement between Rix and Dittmar that Dittmar was the real inventor of what is covered by Reissue No. 5,799, or that powders such as those involved in this motion did not infringe said reissue, or that Dittmar should withhold the testimony which he now brings forward. There must be a preliminary injunction against Dittmar and the Dittmar Powder Manufacturing Company as to powders like the sam. ples No. 1 and No. 2. The plaintiff does not make out a case for an injunction against any of the other defendants. It does not offer any proof as to any articles made according to the Dittmar patent, and therefore it is unnecessary to refer to that patent, and none of the defendants but Dittmar and the company are shown to have been connected with the said samples. [United States Circuit Court-Southern District of New York.] DITTMAR v. RIX ET AL. Decided March 13, 1880. 17 O. G., 973. The use of a process which omits one of the essential parts of that patented, and does not employ a chemical equivalent in its place, is not an infringement. Mr. Everett P. Wheeler and Mr. Clarence Lexow for the plaintiff. BLATCHFORD, J.: This is a motion for a preliminary injunction to restrain the infringement of letters patent granted to the plaintiff January 18, 1870, for an "improvement in explosive compounds." The specification states that the patentee has invented an explosive agent which he calls "dualin, and which is to be used instead of other explosive agents, such as powder, gun;cotton, nitro-glycerine, dynamite, &c." It proceeds: Dualin is a yellowish-brown powder, resembling in appearance Virginia smoking-tobacco. It will, if lighted in the open air, burn without exploding; but if confined it may be made to explode in the same manner as common powder. It is not sensitive to concussion, will not decompose by itself, nor cake or pack together, may be readily filled into cartridges, and it matters not whether the place where it is stored be warm or cold, dry or damp. Dualin has from four to ten times the strength of common powder, and is stronger than dynamite, an improvement on nitro-glycerine. Some of the advantages claimed for dualin over other explosive agents are, first, it may be stored, transported, manipulated, and applied with less risk than common powder; second, it may be used in cold weather without first requiring the warming process which nitro-glycerine and dynamite require, and which frequently become inexplosive at a low temperature; third, its explosion does not develop any noxious gases; fourth, absolutely cheaper than either nitro-glycerine or dynamite, dualin is also relatively cheaper than common powder, for, possessing four to ten times the strength of the latter, its use will proportionately reduce the labor and cost of mining and blasting operations; fifth, the effect of a dualin explosion is to tear and rend the material exposed to its action, less than to pulverize it, as is the case with nitro-glycerine and dynamite when applied to mining and blasting operations in coal and rock; sixth, dualin does not necessitate the application of a cap containing fulminate, but may be exploded by a fuse, like common powder; seventh, its entire want of sensitiveness to concussion renders dualin a suitable material for the blasting-charge of shells. Description of the process.-Dualin consists of cellulose, nitro-cellulose, nitro-starch, nitro-mannite, and nitro glycerine, mixed in different combinations, depending on the degree of strength which it is desired the powder should possess in adapting its use to various purposes. Cellulose is prepared by reducing wood of a soft texture-for instance, pine or poplar-to small grains, resembling sawdust, and treating them with diluted acids, and then boiling them in a solution of soda. After having been thoroughly dried by a quick-drying process the cellulose is mixed with (No. 1) niter and nitroglycerine; or (No. 2), being first changed into nitro-cellulose, by being treated with nitric acid (48° B.) and sulphuric acid (66° B.), it is then mixed with nitro-glycerine. No. 3. The dried cellulose is mixed with anhydrous glycerine until the mass becomes of the consistency of thick broth. This is gradually treated to a bath composed of a mixture of sulphuric acid (66° B.) and nitric acid (48° B.) of eight to ten times its quantity, during which process the greatest care must be taken to stir the heated mixture and cool it. The stirring is continued for at least half an hour, after which th mixture is placed in a water-bath of ten times its quantity. The acid water being repeatedly drawn off and replaced by pure water, the mixture is now płaced in a bath of diluted soda-lye. In this it is stirred from one to two hours, again washed in pure water, and then rendered anhydrous by means of hot-water heating and treating it with concentrated sulphuric acid and chloride of calcium. After having been rendered anhydrous it is mixed with cellulose prepared by process described under No. 1, 2, or 4 until a dry and not very greasy powder is obtained. The dust is sifted out, and this, if packed into cartridges, is serviceable. The powder remaining possesses the advantages above enumerated. No. 4. The cellulose is charred, finally pulverized, boiled in concentrated niter-lye, and, after soda has been added, is rapidly dried and mixed with nitro-glycerine or dualin prepared by process No. 1, 2, or 3. No. 5. The process of preparing nitro-starch, another ingredient of dualin, is also new. It will prevent the formation of lumps after the starch has been subjected to the acidsand also render the dried preparation less sensitive to dampness. a. Starch is thoroughly dried until it assumes a yellowish-brown color. It is then finely pulverized and mixed with anhydrous glycerine. The mass is slowly placed in a mixture of nitric acid (48 B.) and sulphuric acid (66° B.) of ten times its quantity, during which process the greatest care must again be taken to stir the mixture and cool it. The stirring is continued for half an hour, when the mixture is placed in a water-bath. The acid water being repeatedly drawn off and replaced by pure water, the mixture is now placed in a bath of soda-lye, then placed in another water-bath, and finally rendered anhydrous by means of hot-water heating and treating it with concentrated sulphuric acid and chloride of calcium. It is now pressed through a fine sieve, and mixed with either dried pulverized starch that has been treated with niterye or is mixed with cellulose prepared as above described until a dry and not very greasy powder is obtained. b. After the starch has been dried it is mixed with pulverized cellulose or with the dualin-dust prepared by process No. 3. This mass is then placed in a mixture of nitric acid (48° B.) and sulphuric acid (66° B.), and for the rest treated as described by process No. 5. No. 6. In an entirely analogous manner mannite is mixed with anhydrous glycerine and compounded with the other ingredients of dualin. I do not claim nitro-glycerine nor mixtures of nitro-glycerine with other explosive or non-explosive materials, as such have been made; but they do not possess the properties of my compound. There are two claims, as follows: The process of manufacture or preparation of a compound which I denominate "dualin," of the ingredients, in the proportions, and for the purposes set forth. Also, the new compound herein described, called "dualin," made by the process herein set forth, or its chemical equivalent. The powder alleged to infringe the patent is one which, by an analy sis shown by the plaintiff, contains, in 100 parts, by weight, the following substances, in the following proportions: nitro-glycerine, 36.78 per cent.; niter, 47.45 per cent.; cellulose, 13.50 per cent.; volatile matter, moisture 212° Fahrenheit, 2.27 per cent. It is claimed by the plaintiff that the niter and the cellulose in such powder are the ingredients specifically mentioned in the plaintiff's patent, under process No. 1 therein, as to be mixed with nitro-glycerine, and that the resulting powder is a powder answering the description of said patent. The powder is one made and sold by the defendants as "Giant Powder No. 2." The defendants admit that they use in making it nitro-glycerine and niter, the latter in the form of nitrate of potash or nitrate of soda, and a carbon or hydrocarbon, such as soft or hard coal, resin, or wood-fiber. They allege that the wood-fiber is mostly common sawdust, produced by saw. ing and dried; that they have never treated it with any acid or liquid, and have never boiled it in a solution of soda or any other solution; that when dried it is mixed with dry and pulverized niter, and that that mixture is mixed with nitro-glycerine. It is contended for the plaintiff that the defendants' powder infringes his patent because it is made according to process No. 1 therein. The first claim of the patent is for the process set forth. The second claim is for the compound made by the process set forth. The process is made essential in each claim. The process for preparing the cellulose is to treat the grains of wood or sawdust with diluted acids, and then boil them in a solution of soda. They are then dried and mixed with niter and nitro-glycerine. The defendants do not treat the sawdust with any acid or boil it in any solution. The plaintiff contends that the treatment of the sawdust or wood-fiber with the acids and the alkali is designed to rid it of impurities and leave the carbon, as the explosive force of the mixture deperds on the purity of the carbon; and that the advantages of the compound are attained by the defendants, though in an inferior degree. But the difficulty is that the defendants use nothing in the place of the treatment by acids and an alkali, and the plaintiff has made such treatment essential, and does not say that it may be dispensed with. It is an essential part of the process, and is not used, nor is any chemical equivalent for it used. The compound is claimed only when made by the process set forth, and the process is claimed only as set forth. It is unnecessary to pass on any of the other numerous questions discussed on the motion. The motion is denied, because of non-infringe ment. [United States Circuit Court-Eastern District of Missouri.] KIRBY BUNG MANUFACTURING COMPANY v. WHITE ET AL. Decided March Term, A. D. 1880. 17 O. G., 974. 1. An injuuction should never be allowed to operate oppressively upon any one, but be used for the purpose of securing the rights of the complainant in the case pending the litigation without unnecessarily injuring the other party. 2. Under the State laws of Missouri there is but one form of a restraining order. If an injunction is asked for provisionally, it must issue as an injunction simpliciter. 3. In the United States circuit courts restraining orders vary according to the circumstances of the case. Thus in some cases, patent as well as others, there may be such circumstances as require an injunction simpliciter; but ordinarily a bond and order for accounting suffices, and sometimes simply an order for an accounting. 4. For the purposes of a provisional injunction under the patent law, infringement having been proved, two things, or either of two things, may exist-to wit, a final decree sustaining and upholding the validity of the patent after full consideration of the matter or proof that the patent went into use undisputed for a suffi. cient time to raise a prima facie case in the complainant's favor. 5. A mere decree entered pro forma on the merits is not sufficient of itself to require other United States circuit courts to grant a provisional injunction. 6. On motion for a preliminary injunction the complainant should set out and describe what the defendant is doing or using that constitutes the infringement charged, in order that the court may determine whether there is such infringement as to warrant the granting of the motion. A general affidavit amounting to more than a verification of the original bill will not serve this purpose, being but the opinion of the complainant that the defendant infringes, a fact of which the court should be the judge. Mr. Henry H. Denison for complainant. Mr. S. S. Boyd for respondents. ORAL REMARKS ON MOTION FOR A PROVISIONAL INJUNCTION. TREAT, J.-MCCRARY, C. J., sitting: The case of Kirby against several defendants is before the court on a motion for a provisional injunction. It is a patent case. It may not be known to counsel who appear here from another circuit what the uniform rule is in this circuit as to applications for provisional injunctions. An injunction is the strong arm of équity. It should never be allowed to operate oppressively upon any one, but be used for the purpose of securing the rights of the complainant in the case pending the litigation without unnecessarily injuring the other party. Were it otherwise the injury resulting might be very serious. For instance, in the milling cases before us Mr. Justice Miller allowed the defendants' mills to continue in operation on giving bonds of one hundred and twenty-five or fifty thousand dollars, instead of granting an injunction in the first instance, which might have closed all the mills in the northwest. If he had stopped all of the mills by the issuance of an injunction simpliciter-it having been finally determined that the complainant's patent was in valid there would have been a great wrong perpetrated upon the parties defendant. Hence the rule is this-and is the true rule in equity, as settled in this court by Justice Catron and existing up to the present hour, and I am authorized by Judge McCrary to say that he fully concurs that the function of a restraining order is to protect the plaintiff without unnecessarily oppressing or annoying the defendant. Whether restraining orders go out in patent cases or in any other cases they are framed according to the circumstances of each case—to wit, in one case there may be such circumstances as require an injunction simpliciter, but ordinarily a bond and order for accounting suffices, and sometimes simply an order for an accounting. Hence the form of the order varies with the circumstances. I make these preliminary remarks so that parties may understand that an injunction simpliciter is not to be had for the asking. I am very well aware that the practice under the State laws is different if it now is the same as years ago. Under the State practice there is but one form of a restraining order to wit, if an injunction is asked for provisionally, it must issue as an injunction simpliciter. This is not the rule in equity, and has never been the rule in the courts of this circuit. The course in these preliminary matters is to protect the complainant without unnecessarily injuring the defendant. Here is a patent presented to the court for a bung-cutting machine. It is a combination patent, and a very commendable patent in itself. The various devices work automatically to effect the desired end. This patent has been before the Circuit Court of the United States for the District of Indiana, and a decree was ordered by Judge Drummond in favor of the complainant; and, not being familiar with the facts of that case, we take it for granted, as the law requires, that it was a correct decree, upholding the validity of the patent. By a reference to the proofs I see that the matter was very fully considered, and the "claims" involved in this suit are said to be valid and subsisting "claims." For the purposes of a provisional injunction under the patent law two things, or either of two things, may exist-to wit, as in this case, a court, after full consideration of the matter, has rendered a final decree, upholding the validity of the patent. That is sufficient basis in itself for an injunction or some form of a restraining or accounting order, provided the party defendant in the particular case has infringed the patent. In other words, the court, on a motion for a rrovisional injunction, does not go into the merits to ascertain the validity of the patent. Prima facie the patent is valid. But under the uniform rulings of the courts of the United States for more than half a century, if there has been no decision as to the patent by a United States court on the merits, the party is driven to show that his patent went into use undisputed for a suflicient time to raise a prima facie case in his favor. But if the court, after a due consideration of the matter, has reached the conclusion that the patent is valid, on this provisional matter the inquiry is not open. The United States circuit court sitting in Indiana, Judge Drummond |