(89 Sup.Ct.) petition for rehearing herein within 30 days, on | Fed. 242, 259 Fed. 152. Motion for leave to motion of Mr. Leo L. Donahoe for the plaintiff proceed in forma pauperis denied. in error. No. 365. The AMERICAN MANUFACTURING COMPANY, plaintiff in error, V. The CITY OF ST. LOUIS. June 9, 1919. See, also, 250 U. S. 459, 39 Sup. Ct. 522, 63 L. Ed. Mr. Shepard Barclay, of St. Louis, Mo., for plaintiff in error. Leave granted to present a petition for rehearing herein within 30 days, on motion of Mr. John C. Brooke in behalf of counsel for the plaintiff in error. -. No. 368. CAPITAL TRUST COMPANY, administrator, etc., plaintiff in error, v. C. C. CALHOUN. June 9, 1919. See, also, 250 U. S. 208, 39 Sup. Ct. 486, 63 L. Ed. Leave granted to present a petition for rehearing herein within 30 days, on motion of Mr. Charles F. Consaul for the defendant in error. No. 697. Daniel O'CONNELL et al., plaintiffs in error, v. The UNITED STATES of America. June 9, 1919. Motion for a writ of certiorari on suggestion of diminution of the record herein granted, without prejudice, and motion for leave to amend the assignment of errors postponed to the hearing on the merits. (250 U. S. 635) No. 732. Charles Edwin LAYTON, alias Francis Edwin Leighton, etc., plaintiff in error, v. The UNITED STATES of America. June 9, 1919. In error to the District Court of the United States for the Southern District of Iowa. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Pickett v. Legerwood, 7 Pet. 144, 148, 8 L. Ed. 638; United States v. Abatoir Place, 106 U. S., 160, 162, 1 Sup. Ct. 169, 27 L. Ed. 128. No. 797. Mary WILLEM, a creditor of Mrs. Kate King, a bankrupt, appellant, v. Dawson E. BRADLEY, Trustee in Bankruptcy of the Estate of Mrs. Kate King, a Bankrupt. June 9, 1919. Motion for leave to proceed in forma pauperis denied. (250 U. S. 635) No. 894. Earl DEAR, plaintiff in error, v. The PEOPLE OF THE STATE OF ILLINOIS. June 9, 1919. In error to the Supreme Court of the State of Illinois. For opinion below, see 286 Ill. 142, 121 N. E. 615. PER CURIAM. Dismissed for the want of jurisdiction upon the authority of Spencer v. Duplan Silk Co., 191 U. S. 526, 530, 24 Sup. Ct. 174, 48 L. Ed. 287; Shulthis v. McDougal, 225 U. S. 561, 569, 32 Sup. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 Sup. Ct. 892, 58 L. Ed. 1557; Norton v. Whiteside, 239 U. S. 144, 147, 36 Sup. Ct. 97, 60 L. Ed. 186. No. 950. Joseph H. SAMPLINER, plaintiff in error, v. MOTION PICTURE PATENTS COMPANY et al. June 9, 1919. See, also, 255 No. 951. L. R. GARRETT, plaintiff in error, v. The UNITED STATES of America; No. 952. L. R. GARRETT, appellant, v. The UNITED STATES of America; and No. 953. L. R. GARRETT, appellant, v. The UNITED STATES of America. June 9, 1919. See, also, 249 U. S. 620, 39 Sup. Ct. 291, 63 L. Ed. Motion to vacate and set aside the orders docketing and dismissing these cases and for leave to file the records and docket the cases denied. No. 996. SILVERTHORNE LUMBER COMPANY (Inc.), et al., plaintiffs in error, v. The UNITED STATES of America. June 9, 1919. See, also, 250 U. S. ——, 39 Sup. Ct. 491, 63 L. Ed. Former order denying motion to admit Frederick W. Silverthorne to bail vacated, and ordered that he be enlarged on bail pending the hearing, and the amount of the bond fixed at $5,000, to be approved by the judge of the District Court of the United States for the Western District of New York. (250 U. S. 642) No. 1002. The SOUTH DAKOTA CENTRAL RAILWAY COMPANY, petitioner, v. CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK and Frank H. Jones, as Trustee, etc. June 9, 1919. For opinion below, see 255 Fed. 941. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. (250 U. S. 637) No. 1003. GALVESTON, HARRISBURG & SAN ANTONIO RAILWAY COMPANY, petitioner, v. L. H. WOODBURY and Vincent Woodbury. June 9, 1919. For opinion below, see 209 S. W. 432. Petition for a writ of certiorari to the Court of Civil Appeals for the Eighth Supreme, Judicial District of the State of Texas granted. (250 U. S. 637) No. 1007. The COCA-COLA COMPANY, petitioner, v. KOKE COMPANY OF AMERICA et al. June 9, 1919. For opinion below, see 255 Fed. 894. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit granted. (250 U. S. 643) No. 1008. SANTA MARINA COMPANY, petitioner, v. The CANADIAN BANK OF COMMERCE. June 9, 1919. For opinion below, see 254 Fed. 391. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. (250 U. S. 643) No. 1010. GULF, COLORADO & SANTA FÉ RAILWAY COMPANY, petitioner, v. The UNITED STATES of America. June 9, 1919. For opinion below, see 255 Fed. 753. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. (250 U. S. 643) the United States Circuit Court of Appeals for No. 1011. J. W. PRALL, Administrator, the Fifth Circuit denied. etc., petitioner, v. GREAT NORTHERN RAILWAY COMPANY. June 9, 1919. For opinion below, see 177 Pac. 637. Petition for a writ of certiorari to the Supreme Court of the State of Washington denied. (250 U. S. 645) No. 1027. William E. MIKELL petitioner, v. F. H. HINES, Major, Field Artillery, U. S. Army. June 9, 1919. For opinion below, see Hines v. Mikell, 259 Fed. 28. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. (250 U. S. 645) No. 1028. Fred BROWNE, petitioner, v. Charles B. THORN et al., partners doing business as Thorn & Maginnis. June 9, 1919. For opinion below, see Browne v. Thorn, 257 Fed. 519. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. (250 U. S. 637) No. 1029. PERE MARQUETTE RAILWAY COMPANY, petitioner, v. J. F. FRENCH & COMPANY. June 9, 1919. For opinion below, see 204 Mich. 578, 171 N. W. 491. Petition for a writ of certiorari to the Supreme Court of the State of Michigan granted. (250 U. S. 645) No. 1030. Carlos GSELL, petitioner, v. The INSULAR COLLECTOR OF CUSTOMS. June 9, 1919. Petition for a writ of certiorari to the Supreme Court of the Philippine Islands denied. (250 U. S. 638) No. 1031. J. Hartley MANNERS, petitioner, Oliver MOROSCO. June 9, 1919. For opinion below, see 258 Fed. 557. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. (250 U. S. 646) No. 1033. LOUISIANA AGRICULTURAL CORPORATION, petitioner, v. PELICAN OIL REFINING COMPANY (Inc.). June 9, 1919. For opinion below, see 256 Fcd. 822. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. (250 U. S. 638) No. 1034. SOUTHERN PACIFIC COMPANY, petitioner, v. W. S. BERKSHIRE, June 9, 1919. Temporary Administrator, etc. For opinion below, see 207 S. W. 323. Petition for a writ of certiorari to the Court of Civil Appeals for the Eighth Supreme Judicial District of the State of Texas granted. (250 U. S. 646) (250 U. S. 638) No. 1036. STRATHEARN STEAMSHIP COMPANY, Limited, petitioner, v. John DILLON. June 9, 1919. For opinion below, see (39 Sup.Ct.) 256 Fed. 631. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit granted. —. No. 1036. STRATHEARN STEAMSHIP COMPANY, Limited, petitioner, v. John DILLON. June 9, 1919. See, also, 256 Fed. 631; 250 U. S. 39 Sup. Ct. 494, 63 L. Ed. Motion of counsel for the British Embassy for leave to intervene herein as amicus curiæ, and for leave to file brief and take part in the oral argument granted. (250 U. S. 646) No. 1038. T. W. M. BOONE, petitioner, v. The UNITED STATES of America. June 9, 1919. For opinion below, see 257 Fed. 963. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. (250 U. S. 647) No. 1050. The DEER ISLAND LUMBER COMPANY and Van Dorn S. Wilkins, petitioners, v. The SAVANNAH TIMBER COMPANY. June 9, 1919. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. For opinion below, see 258 Fed. 785. (250 U. S. 646) No. 1037. John H. MUDD and Elizabeth G. Mudd, petitioners, v. ALABAMA MINERAL (250 U. S. 647) LAND COMPANY. June 9, 1919. For opin- No. 1053. Charles C. FOSTER, acting suion below, see 255 Fed. 991. Petition for a perintendent, etc., petitioner, v. Frank Joseph writ of certiorari to the United States Circuit GOLDSOLL. June 9, 1919. Petition for a Court of Appeals for the Fifth Circuit denied. writ of certiorari to the Court of Appeals of the District of Columbia denied. (250 U. S. 638) No. 1047. NATIONAL BRAKE & ELFCTRIC COMPANY, petitioner, v. Neils A. CHRISTENSEN et al. June 9, 1919. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit granted. For opinion below, see 258 Fed. 880. (250 U. S. 639) No. 1052. BROOKS-SCANLON COMSION OF LOUISIANA. June 9, 1919. For PANY, petitioner, v. RAILROAD COMMISopinion below, see 81 South. 727. Petition for a writ of certiorari to the Supreme Court of the State of Louisiana granted. (250 U. S. 647) No. 1054. MECCANO, Limited, petitioner, v. JOHN WANAMAKER, NEW YORK. June 9, 1919. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. For opinion below, see 250 Fed. 450, 162 C. C. A. 520. (250 U. S. 639) No. 1059. J. M. THOMPSON, Master and Claimant, etc., petitioner, v. Peter LUCAS and Gustav Blixt. June 9, 1919. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. For opinion below, see The Westmeath, 258 Fed. 446. *338 (250 U. S. 336) MINERALS SEPARATION, Limited, et al. v. Butte, Mont., for respondent. BUTTE & SUPERIOR MINING CO. (Argued March 19, 1919. Decided June 2, 1919.) Mr. Justice CLARKE, delivered the opinion of the Court. This is a suit by the Minerals Separation, Limited, et al., plaintiffs below and petitioners in this court, against the Butte & Supe No. 599. 1. PATENTS 328-SCOPE OF CLAIMS-ORE rior Mining Company, defendant below and CONCENTRATION. respondent here, to recover for infringement of United States patent No. 835,120, applied for May 29, 1905, and issued November 6, 1906, the validity of which was sustained by this court in Minerals Separation, Limited, et al. v. Hyde, 242 U. S. 261, 37 Sup. Ct. 82, 61 L. Ed. 286. Sulman, Picard & Ballot patent. No. 835,120, for process of ore concentration, as to "fraction of one per cent." claims 1, 2, 3, 4, and 12, extends to and covers the use in the process of oils of the patent, in amounts equal to any fraction of one per cent. on the ore. 2. PATENTS 312(3)—ORE CONCENTRATION— NATURE OF OILS. Under evidence in infringement case held petroleum and petroleum products are oils within Sulman, Picard & Ballot patent, No. 835,120, for process of ore concentration by use of oils having a preferential affinity for met alliferous matter over gangue. The patent has been so frequently described in court proceedings,1 that it will suffice to say of it here, in the terms of the specification, that it "relates to improvements in the concentration of ores, the object being to separate metalliferous material, graphite and the like, from gangue, by means of oils, fatty acids or other substances which have a pref3. PATENTS 328-INFRINGEMENT-ORE CON- erential affinity for metalliferous matter over gangue." CENTRATION. Sulman, Picard & Ballot patent, No. 835,120, claims 1, 2, 3, 4, and 12, for improvement on process of ore concentration by use of a fraction of 1 per cent. on the ore of oils having a preferential affinity for metalliferous matter over gangue, held, in view of state of prior art, not infringed by use of a more efficient, in combination with a less efficient, oil of the patent, where the former is used in an amount within the limits of the claims, but the combined amount is in excess of such limit, though the amount of the more efficient oil would probably produce better results from the process than are produced with the combination of oils. of New York City, and J. Bruce Kremer, of DISCLAIMERS-TIME OF ed in this case. Suit by the Minerals Separation, Limited, and others against the Butte & Superior Mining Company. Decree for plaintiffs (245 Fed. 577) was reversed by the Circuit Court of Appeals (250 Fed. 241, 162 C. C. A. 377), and plaintiffs bring certiorari. Reversed in part and remanded. The patent contains thirteen claims, which, for the purposes of this opinion, may be conveniently grouped, as follows: (1) Numbers 1, 2, 3, 4, and 12, as “fraction of one per cent. claims," because they call for the use of that amount of oil on the ore; (2) numbers 5, 6, 7, 8 and 13, as "oleic acid claims," because they are limited to the use of oleic acid in a small fraction of 1 per cent. on the ore, 0.02-0.5 per cent.; (3) numbers 9, 10 and 11, as "small quantity of oil claims" all three of which were held invalid by the former decision of this court. Only the five "fraction of one per cent. claims," are involv Ore Concentration Company, Ltd., v. Sulphide *Messrs. Henry D. Williams, William Hous- Corporation, 31 R. P. C. 206 (Privy Council British ton Kenyon, and Lindley M. Garrison, all of New York City, Frederic D. McKenney, of Washington, D. C., Garret W. McEnerney, of San Francisco, Cal., and Odell W. McConnell, of Helena, Mont., for petitioners. Empire). Minerals Separation, Ltd., v. Hyde, 207 Fed. 956 (D. C. Montana). Hyde v. Minerals Separation, Ltd., 214 Fed. 100, 130 C. C. A. 576 (C. C. A. 9th Circuit). Minerals Separation, Ltd., v. Miami Copper Co., 237 Fed. 609 (D. C. Delaware). Messrs. J. Edgar Bull, of New York City, Thomas F. Sheridan, of Chicago, Ill., Frederick P. Fish, of Boston, Mass., Thomas L. Chadbourne, Jr., and Kurnal R. Babbitt, both Minerals Separation, Ltd., v. Miami Copper Co., 244 Fed. 752, 775, 157 C. C. A. 200 (C. C. A. 3d Circuit, including dissenting opinion of Judge Buffington). For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) upon the use of oil by the respondent in ex-¡ matter. The process is one for dealing with a large class of substances and the range of treatment within the terms of the claims, while leaving something to the skill of persons applying the invention, is clearly sufficiently definite to guide those skilled in the art to its sucshows. This satisfies the law." cessful application, as the evidence abundantly The evidence shows, and counsel now admit, that prior to the decision by this court in December, 1916, the respondent used, in its ore concentration operations, various oils in quantities less than one-half of 1 per cent. on Thus was it plainly held proper for the the ore, but that from January 9, 1917, to the patentees to claim a reasonable degree of time of trial, with the exception of two or variation-"within the terms of the claims" three weeks, it used oils of a composition in the amount of oil to be used in the appliwhich we shall discuss later on, in quantities cation of their discovery in practice, and that in excess of 1 per cent. on the ore. In other the restricting of the amount to a fraction of respects its methods were substantially those 1 per cent. on the ore was reasonable and of the patent in suit. On this showing, the District Court found the patent infringed by the respondent, when it used oil in quantities greater than, as well as when it used it in quantities less than, 1 per cent. on the ore. The Circuit Court of Appeals held the patent infringed only when the respondent used oil in quantities equal to, or less than, one-half of 1 per cent. on the ore, and it therefore reversed both of the holdings of the District Court, but allowed recovery for the period when less than one-half of 1 per cent. of oil on the ore was used. The Circuit Court of Appeals derived its authority to limit the claims to one-half of 1 per cent. on the ore from the construction which it placed upon the following clause of the opinion of this court in the former case, viz.: "The patent must be confined to the results obtained by the use of oil within the proportions often described in the testimony and in the claims of the patent as 'critical proportions' 'amounting to a fraction of 1 per cent. on the ore.'" The reasoning which carried two members of the court to their conclusion was that, as shown by the evidence of the patentees and the argument of their counsel, the amount of oil which is "critical," in the sense of marking the point of transition from the processes of the prior art to the process and discovery of the patent, is one-half of 1 per cent. of oil on the ore, and that therefore this court, by using the expression quoted, intended to limit the claims, not to a "fraction of one per cent.," but to a "fraction of one-half of one per cent. on the ore." The specification of the patent points out that the proportion of mineral which floats in the form of froth varies with different ores and with different oily substances *used and that simple preliminary tests are necessary to determine which oily substance will yield the best results with each ore. Of this feature of the patent this court said: "Such variation of treatment must be within the scope of the claims, and the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject39 SUP.CT.-32 lawful. The two expressions "critical proportions" and "amounting to a fraction of one per cent. from the evidence and the latter from the on the ore" being used, the former derived claims of the patent, obviously, to the extent that they differ-if they differ at all-the language of the claims must rule in determining the rights of the patentees. not called upon, and in its opinion did not [1] While in the former case this court was attempt, to define the scope of the claims, but was considering the patent only from the of the claimed discovery, nevertheless, the point of view of the invention and usefulness enough that the opinion of the court then language quoted seems to indicate clearly was, as it is declared now to be, that as to the claims here involved the patent extends to and covers the use in the process of oils of) the patent, in amounts *equal to any fraction? of 1 per cent. on the ore. The oleic acid claims are in terms limited to 0.02-0.5 per cent. on the ore. The Circuit Court of Appeals fell into error in the interpretation which it placed upon our opinion, and its judgment in this respect is reversed. Since the case must be retried, there remains to be considered the reversal by the Circuit Court of Appeals of the holding by the District Court that the use of oil by the respondent in excess of 1 per cent. on the ore constituted an infringement of the patent. As we have said, prior to the former decision by this court, the respondent used in its ore concentration process less than one-half of 1 per cent. of oil on the ore, and as to such practice infringement is clear, but from January 9, 1917, to the time of trial, with slight exceptions, it used in excess of 1 per cent, on the ore, and it is necessary to consider only the operations during this latter period. The oil used during this period was a compound, varying in composition from time to time, but we agree with the District Court in selecting as typical a mixture made up of 18 per cent. of pine oil, and the remainder of petroleum products or derivatives-12 per cent. of kerosene oil, and 70 per cent. of fuel oil. Of this compound there was used 30 pounds to the ton of ore, which would be 1.5 per cent. on the ore. As thus stated, without more, it |