ZlNSBER V. KREMER.
"Circuit Court, D.:New Jersey.
Reissued letters patent No. 9,129, granted March 23,1880, the claim of which process of charging beer and other liquids of a similar nature with carbiJllic acid, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby causing the acid discharged from the lumps to pass through the entire column of liquid, "the process consisting of compressing lumps of bicarbonate of soda or other alkali so that they would drop to the bottom of the vessel containing the. liquid, instead of being thrown on top of the liquid in powdered form, as theretofore, thus causing waste, are not void for want of invention. In a suit for infringement, where defendant's evidence of "prior use" is met by as much evidence to the contrary, and defendant's evidence shows that the prior use was strictly secret, the defense of "prior use" is not sustained.
2. SAME-PRIOR USE.
The use of artificially compressel[ lumps of bicarbonate of soda for the purpose mentioned in complainant's claim is an infringement of their patent though the lumps are not compressed with the aid of cement which is reo ferred to in complainants' specifications as an available aid for that purpose, but which is not mentioned in the claim. On bill for infringement of patent.
Arthur v. Briesen, for complailiants. Joseph M. Deuel, for defendant.
BUTLER, J. This suit is for infringement of re-issued letters patent No. 9,129, granted to the plaintiffs March 23,1880, "for a new and useful improvement in treating beer and other liquids." The claim is stated as follows: "The process of charging beer and other liquids of a similar nature with carbonic aci<l, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby cauHing the acid discharged from the lumps to pass through the entire column of liqUid, substantially as specified." The specifications are as follows: "This invl'ntiol1consists in treating beer and other liquids of a similar nature with lumps of bicarbonate of soda 01' other alkali, said lumps being compacted by means of a suitable cement, so that they are heavy enot1gh to at once drop through the liquid to be treated, upon the bottom of the vessel containing the liqUid. The carbonic acid evolved from said lumps is thus compl-'IJed to permeate the entire column of liquid above it, and at the same time to gi ve up the requisite qnantity of alkaline matter. Together with the lumps of bicarbonates. of alkali may be used lumps of tartaric or other suitable acid, compacted in the same manner as the lumps of bicarbonate of alkali, as the amount of carbonic acid evolved from the latter can be easily controlled, It is a common practice with brewers and others to use bicarbonate of soda, either alone or together with tartaric acid, in the manufacture of beer, sparkling wines,atld other effervescent liquids, for the purpose of increasing the life of such liquid; The mode of applying such article or articles-by brewers, for instance-is to apply, about one ounce of the bicarbonate of soda to each quarter-barrel with a tablespoon, the bicarbonate being in the form of a
powder. The powders on being thrown into the barrel of beer. will at flrst float on the surface of the liquid, and immediately evolve carbonic acid. a large portion of which is lost, together with the beer which is thrown out by the action of the a('id hefore the barrel can be by a bung. Besides this, the 0pl'ration of filling barrels is carried on in a great hurry, and a large quantity of the hicarbonate of soda handled with a spoon is spilled over the barrel, and wasted. Like effects occur in the use of tartaric acid in crystals when applied together with powderpd bicarbonate of so(la. Thpse disadvan. tages we have obviated by preparing the bicarbonate of soda or of other alsuch weight that the lumps at once rtrop kali and the acid in solid through the liquid npon the bottom of the vessel, and give off the carbonic aCId to the entire column of liquid, and not only, as heretofore, to the Ilpper stratum. These lumps we produce by mixing powdered bicarbonate of alkali with a suitable cement, such as a solution ,)f dextrine, and then compressing the Bame in ulOlds of suitable size and shape. Lumps of acid are made mlike mannpr. Thp advantage of using the bicarbonate of alkali. either alone or in connection with aCid in this shape, i\'l perceptible at once. The lumps being in compact form, when dropppd into a balTel filled with beer, ale, 01' other liqUId, will at on('e sink to the bottom, and the ('arbonic acid evolved from them is forced to stay in the liqUid. The barrel can lJe easily closl'd by a bung without losing a particle of carbonic acid or of beer, and the said lumps can be introduced mto the barrel without any waste. Besides this, the weight or size of our lumps is so gauged that eaoh barrel will r,'Ceive the exad quantity of Licarbonate of alkali and of acid reqUired, and that the liquid in a number of barrels, after having been treated with the bicarlJonate of alkali, with or without aciJ, will be of uniform quality." The answer attacks the patent for want of inventive novelty, for defective specifications and claims, and because of prior use. It abo denies infringement. The inventive novelty claimed consists in passing compacted lumps of bicarbonate of soda or other alkali, through beer and similarliquids, in casks, and depositing the same at the bottom, where it will slowly diRsolve, and the carbonic acid evolved be distributed equally throughout the liquid. The treatment of beer and other liquids with bi(;arbonate of soda was not new. It was in common use, and had been for a long time. The method employed, however, was that of dropping powdered bicarbonate on top. This was attended with serious disadvantages. The liqui(l was not thoroughly permeated, and the powder, floating on top, instantly evolved acid in quantities so large as to cause overl1ow before the casks could be closed. The patentee sought lor means to obviate these disadvantages. He saw that if the bicarbonate could be deposited at thebottolD of the liquid, and its dissolution retarded, the entire contents of the cask would be equally treated, and the loss from overflow he avoided. He further saw that if the:bicarbonate could be compressed into solid lumps it would pass to the bottom when dropped, and the dissolution also be retarded. Experimenting with this method, he found the reslilt beneficial and satisfactory. Thereupon he applied for and obtained the patent. The novelty thus exhibited seems quite 'sufficient to sustain his claim. It is true that nothing more is clone than charging the liquid with carbonic acid gas, and this has been done before. But he does it in a different way, and with different results, producing a better articl more econom"
ZINSSER V. KREMER.
ically, avoiding all waste. The same objection was made to the Crane patent, for an improvement in the manufacture of iron. It covered a hot-blast with anthracite coal. A hot-blast with bituminous coal was old; and a cold-Glast with anthracite was old. The patentee simply introduced into the existing process a hot-blast with anthracite. The change was very slight, but the result was highly beneficial, and the patent, after a severe contest, was sustained, (Crane v. Price, 1 Webst. Pat. Cas. 375,) has withstood the test of criticism and time, and is as good authority to-da.l· as when first published. Hull's patent, for a new process of manufacturing lace, is similar in character. It covered the use of gas-flame for singeing off the superfluous fibers of thread. Flames of other substances had been employed a long time. By the use of gasflame, however, the tibers were more effectually removed, and the lace given a smoother and finer finish. This patent encountered the same objection,--want of novelty,-but was sustained in Hall v. Jarvis, Id. 100, which is still qnoted with approval. The reports show many similar cases. Probn bly no one hus considered this subject with greater care than J uclge Curtis, who says, (Curt. Pat. 7, 8:) "'VI' l,ave jllst Sf'pn that, in order to make a new pror-ess or method of working or producing an effect or result in matter the subject of a patent in England, a sOlllewhat liheral construction of the term' manufacture' becanle necessary, by which an improvement in the art, or process of 01' doing a thing. was made c"nstrudively to be repres('nle,.1 by the term which ordinarily would meall only the thing itself, when made or donf'. It was douhtless to avoid tile necessity for this kind of cOMtruction that tile framers of our legislation selected a term which, projJrio vigo1"e, would embrace those inveni ions, where the particular machinery or apparatus, or tIlt' particular suhstauce employf'd, wou;d not constitute the discovt:>ry so milch as a newlyillventt'u mode or proeess of applying them, in l't'spe<:t to the order, or position, or relations in which t1lf'yare used. * * '" This dilticulty is avoiut'd bv the usp of (,he term' art,' which was intenderl to embrace those illvelltions where the particular apparatus or materials employed may not be the essence of the discovpry, but where that PSsence consists in using apparatus or m'ltf'rials in new prof'esses, methods, or rpJations, so as to cOllstitute a new mode of outaining an old n·sult, or' a mode of attaining a new result." And again, at page 15, he sums up the cases as follows: win be seen that the comprf'hensive proposition laid down by the supn'me court '" '" '" emhraces the casf'S where the pro('ess itself presents the advantages of the change from the old to the new, or where the article manufactured presents such advantages, or where they appear both in the process itsPlf and thel'esult of using the process. Thus, if the article made be either new or better, having different or superior propertips, the advantages are prf'sented hy the thing itself. '" 'I< '" If the article, as made by the new process, is of as good or better quality, and cheaper, the advantage of cheapness is gained by a more ecolloruical process than the old one, and the improvement appears in the process, while the article made by it mayor may not he new; that is to say, mayor may not possess other new properties than cheapness. " The line dividing invention from non-invention is very dim, and cases'lsing near it often present great difficulty. In deciding them judges have occasionally used expressions which seem extravagant, and v.39F.no.2-8
calculated to mislealitSOnle of. them would almost justify.a doubt whether a majority o(patents issued are valid, and others whether any of them are invalid. The decisions, however, are generally hannonious. We think it nia'y safely be said that wherever a change in. the method of making an article of manufacture produces a differerit arid l)eneticial result, although the differE:)nce consists only in improving or cheapening the article, il.l1d the change and its advantages had not been seen or made by others (than the patentee) interested in seeing arid making it, there is sufficient evidence of invention to sustain a process patent. Here the effect of the change is to improve, and also to cheapen. The respondent admits the advantages by adopting the change. Much reliance is placed by him on Dreyju8 v. BeaTie, 124 U. S. 60, 8 Sup. Ct. Rep. 390. On first blush this reliance may seem justified. Closer examination, however, will show that it is not. The patent there was "for an improved process of imparting age to wine," by introducing heat directly to the wine by means of metallic pipes passing through the casks, instead of the former method of' applying heat to the cask simply, by placing them in ovens. While the specifications assert that this change saves time and fuel, and has other advantages, the case as reported, does not show this. It does show, however, that precisely the same method of heating water and high wines (to evolve alcoholic vapor in the latter) had been employed prior to the patent. The court finds these facts, and says: "There was no patentable invention in applying to the heating of wine or other liquid from the inside of the cask, the apparatus which had been previously used to heat another liquid in the same manner." With such finding of facts the case could not have been decided otherwise. It would be very unsafe to conclude from what is said respecting the process that the case would have been so decided without the facts referred to, and with proof of positive and material advantage from this method of applying heat. We do not find anything to support the allegation of "defective specification and claim." Nor is the all"gation of "prior use" sustained. There is some evidence that lumps of bicarbonate of soda were used at Brunjes & Linneworth's brewery before. the complainants' invention; but it is met by as much, if not more, evidence to the contrary. With the burden of proof on the respondent this would be fatal, if nothing else stood in his way, In addition, however, is the important fact (proved by his own ,.vitnesses) .that the use was .strictly secret. Such a use is not important. Gaylel' v. Wilder, 10 How. 477; Ada?7/,8 v. Edward-s, 1 FiBh. Pat. Cas. 1. Do the proofs show infringement? The respondent used lumps of bicarbonate of soda, as these complainants do, artificially compressed, soas to for,m a solid mass, employing cement. This we believe to pean infringement. The employment of cement in forming the corp. plainants' lumps is not a part of the patented process, and is not men., tioned in the claim. It is referred. to in the specification as an available aid in solidifying the bicarbonate; it has no other office. The ,lu.mps of bicarbonate alone are important in the process. It may be more con-
THE A. W. THOlllPSON.
venient, require less time and less pressure, to use cement in forming them. The powder itself, however, if slightly moistened, or sufficiently compressed, will fill the role of a cement, as Dr. Sloane states. What the complainants discovered and secured by their patent is the use of artificially compressed lumps of bicarbonate of soda or other alkali in themanner and for the purpose described in the claim. What the respondent has done is an infringement upon the right thus secured. A decree will therefore be entered sustaining the bill.
(District Court, S. D. New York.
COLI,TSTON-STEAM AND SATL-·TACKTNH.
June 5, 1889.)
Where a steamer has shaped her course to keep out of the way of a sailing' vessel on the wind, the latter is bound to beat out her tack.
The steamer I.. going west in Long Island sound, and rounding Throgg's point. saw the schooner A. ·W. T. beating west on her starboard tack towards the south-westward, and when within a half or three quarters of a mile of her shaped her course to pass astern of the schooner. The latter soon after tacked to the northward across the steamer's course, and .collision ensued. There was nothing to prevent the schooner's continuing her former course at least a quarter of a mile further to the southward. HeLd, that the schooner was in fault for not beating out her tack. as in effect required by rule 24. The steamer was also in fault for not observing her tacking, and not keeping out of the way, as she might !lave done, notwithstanding the schooner's fault.
BY WRONGFUL ACT-CONTRIBUTORY NEGLIGENCE.
The captain was personally in charge of the navigation of the schooner, and was killed by the collision, In an action brought by his administratrix for loss of life under the statute of the state of New York authorizing suit where the deceased might have maintained an action if living, lteld, that whether or not a maritime cause of action. cognizable in an admiralty court, could be created by state legislation, this action would not lie, except under the conditions imposed by the statnte; and inasmuch as by the state law con· tributory negligence would bar the action in the state courts, the libel for the captain's death could not be maintained in admiralty.
In Admiralty. Edwin G. Da1J'is, for libelant. Butler,Stillman & Hubbard, and Wm. Mynderse, for claimants.
BROWN, J. On the 19th of March, 1887, as the libelant's schoonerA. W. Thompson was beating to the westward in Long IBland sound, against the wind from W. N. W., she was run into by the steam-boat Idlewild, also going west, about a mile this side of Throgg's Neck, off Whitestone docks, and about a half a mile from shore. The vessels met nearly at right angles. The master, who was at the wheel, was killed by the faIling spars, and his body picked up from the water. The above