CONSOLIDATED BUNGING APP. CO. V. H. CLAUSEN & SON BREWING CO.
ment. These are varied in each by the dimensions and form of the ring, and in the banjo of the second patent the combination of wood and metal in the rim ,is a factor. The banjo of the defendant does not infringe either of these patents, because it has no ring. In this banjo the parchment rests directly on the rim. The rim consists of a metal shell, made by turning over the edges of a piece of sheet metal. If a piece of sheet metal were turned over the old round-edged wooden rim, so as to completely inclose it, the rim of the defendant's banjo would be produced. As respects form. it is the old round-edged wooden rim. As, however, it is made of metal, and is hollow, it differs from any rim which had been devised previously. It cannot be doubted that these differences impart distinctive musical properties to the instrument. Of necessity, such an instrument differs as essentially in the character and quality of its musi· cal tones from either of the Dobson banjos as the Dobson banjos differ from one another. There is no identity of parts or of result in the several instruments. The invention of Cubley has as much originality as either one of Dobson. The hollow rim of his banjo is not an equivalent for the solid rim and the ring of Dobson, because it was not a known mechanical substitute for them, and does not effect the same result. The bill is dismissed, with costs.
CONSOLIDATED BUNGING ApPARATUS CO. et BREWING Co.
al. v. H.
(C,rcuit Court, S.
PATENTS FOR INVENTIONS-PROCESSES FOR MAKING BEER-NOVELTY.
The first and second claims of letters patent No. 215,679, granted to George Bartholomae, May 20. 1879. are. as follows: "(1) The process of preparing beer for the market, which consists in holding it under controllable pressure of carbonic aeid gas when in the' kraeusen' stage, substantially." etc. "(2) The process of treating beer when inthe kraeusen stage, which consists in holding it in a vessel under automatically controllable pressure of carbonic acid gas, substantially," etc. Held, that these processes are invalid for lack of novelty. The vent-bungs known as the "Shaefer Buug," the "Guth Bung," the "Bach· man Bung," and others are the vent-bung of this patent, in the sense that they have same functions, and are automatic valves designed to control tbe pressure of the gas, and were used commercially in many breweries between 1861 and 1876; 'being applied to shavings casks after the beer had reached the kraeu8en stage, and, before the end of that stage,for controlling the pressure of the gas. The tbird claim of the patent, viz., "the process of preparing and preserving beer for the market, which consists in holding it under controllable pressure of carbonic acid gas from the beginning of the stage until such time as it is transferred to kegs and bunged," etc., must be limited to the application of the apparatus at the beginning of the kraeusen stage, is not infringed by defendant's apparatus, which, though the same vent-bung as that of the patent, is not applied until several days after the kraeusen has been introduced; the beer in the interval being allowed to work out of the bung-hole of the shavings cask.
. FEDERAL REPORTER,
In Equity. Bill for infringement '9fletterspatent No. 215,679. On final hearing. For a full description of this patent, see the opinion of the supreme court in Fermentation Co. v. Maus, 7 Sup. Ot.Rep. 1304. 'See, also, same case in 20 Fed. Rep., 725. Banning &: Banning &: Payson, for complainants. Josiah Sullivan, C. P. Jacobs, and B. F. ThuTswn, for defendant.
WALLACE, J. This suit is founded upon letters patent granted May 20, 1879, to George Bartholomae, as assignee of Leonard Meller and Edmund Hofman, inventors, for an iniprovement in processes for making beer. The application for the patent was filed Febl'uary 12,1879. The patent has eight claims, four of which are in controversy in this suit. These claims are as follo\'18:
"(1 ) The process Of preparing beer for the market, which consists in holding it under controllable pressure of carbonic acid gas when in the' kraeusen' stage, substantially as set forth. (2) The process of treating beer when in the kraeusen stage, which consists in holding it in a vessel, under automatically controllable pressure of carbonic acid gas, substal).tially as described. (3) The proc'ess of preparing and preserving beer for the milrket, which consists in holding it under controllable pressureof carbonic 'acid gas from the beginning of the kraeusen stage until such time as it is transferred to kegs and bunged, substantially as described. (4) The method herein described of preserving beer in a marketable condition after it has passed the kraeusen stage, which consists in holding it under pressure of carbonic acid gas; said pressure being automatically regulated by a counteracting hydrostatic pressure, substantially as described."
These claims relate to the treatment of the beer in the shavings cask after it has been drawn from the ruh casks, and after the kraeusen in the beer has been ll.dded to produce the secondary fermentation during which the beer is to be ripened and clarified and prepared for market use. The term" krcietwen stage," as that term is used in the claims, is the period of active fermenhltion in the shavings cask induced by the introduction of the kraeusen in'to the old beer,' and this period ends when the beer becomes clarified and brilliant. It begins as soon as the active secondary holding" the beer" under controllable fermentationeom,rnences. pressure," the claims,q,escribes thell1eans by which the pressure is controlled, consisting of a applied to the shavings cask, WhiPl1 is of the ki.nd particularlydescriqed in the specification, or any other self-acting valveadapted to control. the gas and permit or prevent,its-escape at llnypredetermined degree of pressure. Aside from the language of some of the claims themselves, the general statement ofthe nature of the invention, and the description of the bunging apparatus, the patentdoas not point out specifically how the processes of the claims in controversy are to be The sped.ficaassume that iUs' only necessary to describe the apparatus tioI).seems used- in order to enable any pers0.n skilled in the art of beer-making to Use it sb as to carry out the processesdaimed. Inferentially, the specification suggests that the processes claimed involve holding the beer Ull-
CONSOLIDATED BUNGING APP. CO. tI. H. CLAUSEN &: SON BREWING CO.
,d.er.the.:gaspressure duri l1,9, the whole period of}he shavings cask begmmng as soon as the fermentatlOn becomes suffiCIently active to. cause the beer to flow through the bung-hole of the cask and the gas to escape,aI)d enqing when the beer IS rell,q.y to be drawn off for market. This is to be implied because the specification states that, the "cask beillg closed, none of the beer wastes by running over, and the foul smell and washing of the casks a l1 q: cellars areavoided," and "the escaping carbonic acid does not settle in the cellars to endanger life." Referring to this part of the !3pecification when the patent was considered by the supreme court in Fermentation Co. v. JI.1aw;, 122 U. S. 413, 7 Sup. Ct. Rep. 1304, the court said: "This. is fairly to be read as a statement that the beer is to he thus treated during the whole orits subjection to the cask stilge of the process, whether in one closed cask or in two or more closed casks connected. together. The statement is that the cask or casks are to be closed; that is, closed throughout the shavings cask stage of the process, and kept during that process under automatically controllable carbonic acid gas pressure, generated either by the mild fermehtation of the beer, or artificially. It is also stated that none ofihe beer wastes by running over, and that the foul smells and washing of the casks and cellars are avoided, and that the escaping carbonic acid gas is conducted to the open air. These consequences cannot follow, nor can the advantages of the invention set forth be fully availed of, unless the casks are closed from the beginning of the shavings cask kraet!scn stage." There is nothing in the specification to restrict the scope of the first or second claims to a process for holding the beer under pressure at any particular period of the kraeusen stage, or for any length of time during that stage, or for treating the beer according to any special conditions. They are broad claims for processes, respectively, in which the controllable pressure is applied at any time during the kraeu8en stage; the only difference between them being that the first includes pressure, whether applied automatically or not, while the second is restricted to automatic pressure. The limitations expressed in the third and fourth claims emphasize the interpretation of the first and second as claims for processes without any limitation or condition in respect to the pressure period. These claims must therefore be deemed as claims for the process of treating the beer whenever it is in the kraeu.sen stage, by holding it under the pressure of carbonic acid gas, by means of the vent-bung applied to the shavings cask. The third claim is for a process of like treatment, in which the pressure is applied at the beginning of the kraeusen stage,-that is, as soon as the fermentation is active,-and is maintained tIntil the beer is ready to be drawll; off for market. The fourth ,claim is capable of two interpretations. It may be construed as one for the proge&s of the third claim continued after the beer has become ready for market, to' preserve it in good condition, or as a claim not begin )lUti1 the end of the for a process of treatment which kraewsen stage. . The latter seems the 1;ietter construGtion. It is. doubtful whether the first twoclaifns are not invalid upon the
faGe of the patel}t, as being merely for the of the bunging apparatus. Unless the lnethod of using such apparatus was so well known as not to require to be pointed out to those skilled in the art, the specification is insufficient; and, if it was so well known that description was not necessary, there is no novelty in the claims. However this may be, these claims are invalid upon other grounds. Their novelty is negatiwd by evidence which establishes beyond any reasonable doubt the prior public use in this country of the' respective processes claimed more than two years before the application for the patent was filed. The evidence is overwheln1ing that thevent-btings known in the record as the" Shaefer Bung," the "Guth Bung," the "Bachman Bung," and others, which are the vent-bung of the patent in the sense that they have the same functions, and are automatic valves designed to control the pressure of the gas, were used in many breweries during the period between the years of 1869 and 1876. Some of them were used in large numbers, and they were applied to shavings casks after the beer had reached the kraeusen stage, for controlling the pressure of the gas. The proofs establish ttat in some instances these vent-bungs were used before the end of the kraeusen stage, but generally they were used after the active fermentation had subsided, when it was desired to hold the beer in the shavings cask for some period of time before drawing it off for market. The testimony of Mr. Sturm, a highly intelligent witness, shows the use of an equivalent vent-bung as early as 1861 in two breweries in Indianapolis. The bungs were designed and made by him at the request of the brewers by whom they were used; they were used, not experimentally, but commercially; were applied to the shavings casks before the active fermentation had subsided in the beer: and were intended and used to prevent the gas from escaping into cellar, and the foam and yeast particles from running over the cask. This evidence not only defeats the novelty of the first and second unless that claim is claims, but also the novelty of the fourth merely a restatement of the third claim in different phraseology. The complainants have failed to establish infringement by the defendallt of the third claim of the patent. The Eureka vent-bung which the defendant employs differs in details of construction from the vent-bung partictllarly described in the patent, but is the vent-bung of the claim, becau'se it performs the function of holding the beer under automatic gas pressure. But the testimony for the complainants does not show that the defendant has applied this apparatus in its brewery at the beginning beer, and the testimony for the of the kraeusen stage inthe treatment of defendant is explicit that the apparatus as it has always been used there is not applied uhtil several days after t,he kraeusen luis been introduced, .is allowed to work out of the bung-hole. during which time the The direct testimony for thedefel1uant is consistent with probability, because it appears tha:t,.as commonly used by brewers, the bunging apparatus particularly' described in the patent) and equivalent apparatus, is not applied until the beer has been allowed to clean itself for a few days of the kraeusen stage. Mr. Schwartz, one of the expert witnesses
ROOT V. THIRD AVE. R.CO.
for the complainants, states that,as a practical brewer, he would not use the apparatus of the patent until the kraeusen stage is somewhat advanced; and that it is desirable to allow the beer to work out of the cask for a few days, and thereby eliminate the bulk of the impuri"ties, before applying the apparatus. He states that,although some brewers apply it at the beginning of the kraeusen stage, brewers generally do not, but find the best results are obtained by allowing the active fermentation to proceed a few days before doing so. There is considerable other testimony in the record to the same effect as respects the use of this apparatus and of the several other equivalent devices. The proof seems clear that the defendant has used the Eureka device in just the same way in which the Guth vent-bung was used in its brewery in 1875, and just as the Meller and Hofman vent-bung was used in its brewery during the time it was authorized to use that device. The bill is dismissed, with costs.
(Oircuit Oourt, B. D. New York.
July 8, 1889.)
PATENTS FOR INVENTIONS-CABLE-GRIP-INFRINGEMENT.
etc., with endless traveling devices." (cable-car grip.) Claim 2 is as follows: "In combination with the lower jaw, I, the transverse bar, 0, with its vertical rope supporting pulleys, P, substantially as described, "-the transverse bar being simply a pulley carrier. Held infringed by defendant's device, which is the same combination except that there is no transverse bar, the lower jaw taking its place as a pulley carrier, the pulleys being connected with the lower jaw instead of the upper, as in the patent, and except a merely formal difference in the movement of the lower jaw.
Letters patent No. 160.757, granted to William Eppelsheimer, March 16. 1875, are for "an improvement in clamp apparatus for connecting street-cars,
Complainant's patent, construed as a combination in which the jaw and transverse bar are substantially such as are described, and in which the pulleys and jaw co-act by the same mode of operation to perform theirfunction, is not anticipated by the Hallidie patent No. 129,130, granted July 16. 1872, which embraces the jaws and transverse bar. and in which the jaws are moved towards each other by means of a wedge and hand-wheel.
In Equity. Bill for infringement of patent. George Harding and George J. Harding, for complainant. Frost &; Coe and Harry E. Knight, for defendant.
\VALLACE, J. The patent in controversy in this suit is No. 160,757, granted to William Eppelsheimer, March 16, 1875, for "improvement in clamp apparatus for connecting i"treet-cars, etc., with endless traveling devices." The complainant aileges that the defendant has infringed the second claim of this patent. The claim is as follows:
"(2) In combination with the lower jaw, I. the transverse bar, 0, with its vertical rope-suPlJorting pulleys, P, SUbstantially as descrilJed."