189

FEDERAL REPORTER,

vol. 41.

ceived this intent, and took them off, I do not think that this was stealIf he tore the packages open, aJ;ld ing them, in the sense of the appropriated the contents to his own use, he is guilty on the .third aIul, fourth counts. ' You must come to yourconciusions beyond a reasonable doubt.

UHLMANN

et 01.

t:I. BARTHOLOMlE

& LEICHT

BREWING CO.

et ale

(OWcwtt ObWrt, N. D.nnnO'l& December 16,1889.)
1. PAT1!lN'1:!l

8, SAME.

.

Ubi.man n, as'asslgneesof Heinrich Stookhelm, of (term.any, for a filtering process . .· for beer, was not anticipated by the devices known as the "Johnson Filter," the

Pat,ent No. 878,879, granteq FebrUllry21, 1888, to .simon Uhlmann and Frederick .

PROCESS·.

":Meller,Filter," and "Enzinger's1878 Patent."

is not

A rudepenoil' sketch of an apparatus, never made and 08l'ried into practical use, to defeat a patent on the grollnd of anticipation.

In Equity.. On bill for injunction. .'. William A. Jenne:r and Bond, for complainants. Dyrenforth for defendants. . GRESHAM,J. This suit is brought fOf ofletters patent No. 378,379, granted February 21, 1888, to complainants, as assignees of Heinrich 8tockheim, of Germany, for. a beer filtering process. The bill prays for au injun<;tion and accounting. It is averred in theanswer that . was the original and first inventor, and that he soldan whicll "fas used in carrying it out, to the Il,nts.Zwietusch. guarantied the defendants against damages resulting from the use of the appawtus and process, and has thus far defended the limit at his own expense, . It is not denied that the defendants have . ;. infringed, if 8tockheim first invented Lager-beer, owing to fermentation, contains yeast germs, albuminoids 01' gluten, and othc:Jriqlpurities,. which ,need to be removed without priving the beerof its carbonic acid ,gas,also the product of fermentation,. ... Prior to the use of the StockheihJ. before the beer cess). the subject of this when beer had. reached its proper age, it was conveyed from a storage caskto a cask, at the bottom, of which chips anp shavings had been placed, for the purpose of attrac.tillg iqg,the yeast particles and, ,other extraneous substances,.: ; finer implil'ities were npt, llowever, th.us arid in t() Jorce them to the .bottqm Qf the cask, isinglai'ls, made fish i'lounds) 8tglutilwus substance, wAA dissolvedaIld injectedll.t the top of the cask, wllich,spreading over the.. surfacfl.of the beer, to' the bottom, carrying with, not already there. by the, chips and .

or

UHLMANN t1. BARTHOLOMlE & LEICHT BREWING

co.

183

The state of the art, the invention, and its advantages are thus described in the specifications:
.. The object of this invention is the filtration of beer which contains mechanical impurities. and also carbonic acid gas under PI'aSsure, In the filtration of sueh liquids it is important that the liquid-beer, for example-should be filLered continuously in its passage from the sLore-cask to the keg into which it is drawn for sale, without material loss of the gas contained in the beer, and without material foaming in the keg into which the filtered beer is delivered, The methods in use prior to my invention for clearing beer of the yeast which is produced in it as a product of fermentation have generally involved the use of isinglass, by which the yeasty particles are collected and precipitated to the bottom of the turi or cask containing the beer. Isinglass is, however. costly, and involves a very large annual expenditure, where any considerableamount of beer is brewed, and much trouble in preparing it for use as a,' fining,' and it is slow in its operation ;l1or are the results entirely satisfactory, as all of the yeasty not thereby removed, but some remains, and, yeast being a fungous growth, that wldch remains propagates more yeast, fermentation continues; and in consequence the beer is apt to become clolldy and spoiled. 'rhis rf'sult is especially noticeable in beer which, is'bottled,and intended to be kept for some time, either for export 01' domestic use. In mechanical filtration. variations in the supply of beer to the filter, and in the speed with which the filtered beer is diseharged into the keg, mit the carbonic add gas generated in the beer to escape in considerable quan. titieswhile the beer is passing through the filter, and the beer. haVing lost its carbonic acid gas,or a considerable quantity .of it, comes out flat and insipid, oris dL'Icharged into the keg in a foamy condition, and soon becomes worthless, besides which the escape of the gas in the filter causes foaming tberein, the foameollects upon and clogs the pores of the filtering substance, or the gas permeates the filtering substance, thereby affecting its efficiency as a,separator of mechanical impurities,or both results ensue, and thus the operation of the filter is materially retarded, the variations of supply and discharge are increased, and in consequence the filterii1g substance fails to collect much C!f the YE.1ast, To modify these results would require the frequent changing of the filtering substance, and this would involve, not only expense for filtering material, bllt considerable loss and delays iIi the filtering operation. Continuous filtration, without material variatjon in the speed with which the beer is discharged from the cask, is also important; because, if the speed of the discharge is materially diminished, the aceumulated air pressure will burst the cask, unless it is watched, and, the cask being usually in a cellar, where neither continuous sunlight nor gaslight is, permitted, becallse would elevate the temperature of the cellar, such watching is inconvenient. For these reasons, among others, mechanical filtration has not, I believe, been By generally or successfully practiced by beer brewers before my my improved methOd of filtering 1 dispense entirely with the use of isinglass, or other finings, and thtlS very great econom)' is secured; the beer is oughly all, or substantially all, of the yeasty particles being rerrov ed; the operation of filtering is rapid ahd continuous, without material variation in speed, and without the necessity of changing or clearising the filtering,substances; the carbonic acid ,gas is substantially preserved in the beer, and the beer comes out of the filter retaining all its brilliancy and liveliness, ready to be discharged into the keg at the racking-off bench without any danger of subsequent cloudihess or other deterioration due to the filtration, and without. haVing had imparted to it any undesirable taste. " ' . "The drawings illustrate the of mechanism in and by ,,:hioh l11y improved filtering Illethod is' carried out.:Figure 1 shows the situatiqn

1.%4

.0', : ,',

'FEDERAihiEPOR'.i!:t£ii,' vol. 41:

the

. :, :;,

Fig. 2 shows the tilteringappatilttm lin: sect'i'ollld beer be shHw,nfn the drawings, veryrnuch smaller tha,li the el'aHytn use, whichcont;.iirffroni fifty to two hundredbari:els .of', beet·. '(: is of constructidn, illtoWe cask,M the beer is l1nd so, a pressure of po,\I,ildS;'orothet :maintained in tllecasl{:.' ,The air hI the, cask :not ,Wlly t!l; 'keep the carbonic aeid, 'gas hi the beer is in Pthe cask, 'I'M to prevent ,foaming thereip.. but also to force the SUme}ent maintain a and full head bencb.; k is the or hQse the beedromthe'cask totlw filter, I, and prefemblyenters the filter at Qr near the Ilottapl,. ,'M' Is the hose ,,'hicn conducts th" beer fromtbe filter to the'racklhg J,whe,l'e, undE'r the control of the' faucets, j; it is let in,to In the filter;'!', Fig. 2; the eTltrati"ce (Jhamber, A,. for the beer, is $'epaWitedfrom the discharge cha.mber; E, by the filtering material, B, which pet;rorated plates, (t. f, " At the h:ighest point of the en, trance 'arid and pl'E!ferably, above the are ventl2, fo,f'. mar se,r>a.rate from the beer1n Us'passage fMtl't,he cask t0i:\nd through the filtermg apparatus. is directly the chamber oi" pipe, to whic!t It appert1l1rll\.,the vent-cock must be operatf'dfrequently to the pOSSI, ble aCllluriull\tion or pipe to which it appertains. lnorder operatio ll of the V'ent-c(jckmay be dispensed with, the vent"cockiscombined With thechambE'r or pipe to which it appertains through the intervention of a vessenn Which the gas may be caught, and permitted to accumitlate;WItbout affeqting the operatIon of the filter, as Lt, L,I and L,2 thereby any ditllcultythat might accrue frornthe accumulation of gas in the filter itself. In order that such gas as may separate from the beer in its from the store-caSk to the filtering apparatus may escape without entering thefilterillg apparatns, the snpply pipe, k, has a vent-cock, l, combined With it, either directly or through the intervention of the gas-trap, L. In order that the ;Iccl\mulation of gas in the ga's-trap may be detected, each !las either its body made of glass, or has glass panels inserted in its side, 'or the gas-trap, if matll1 of metal, has 1\ glass water-gauge of the usual construction connected with .it. .A gas-tmp of either of these constructions I denolniillite a · lantern 'gas-trap. Through the coils, S, a cooling liquid maybe circulated for the purpose of keE'ping the beer cool, or the same thing may be ac('omplished by an exterior jac'k:et containing ice or a cooling liqUid. The discharge pipe, G, passes, preferably, from the lower part o.f the dis<:harge-chamber, E, up and out of the filtering apparatus; and at or near, e, or at any other convenient point, by a coupling of anyconstflJCtipn which will make, as nearly an air and Iiqpid,',tight joint. is attached the hose, M, having a valve, e1 ; or, if desired, the M, provided with the valve, til, may be connected witbail orilice in the bottom of .tbe dischargepassing through the chamber, and the"beel' be ternal pipe, G. When the bose, ¥, is SO connected,tl,le discharge opening of the pipe, 9, shOll/dbe closed by a cap. . .., ' ," The filteringmedta w\lich 1 p,referto use Sllveral layers, as fol. wood pulp, of from,ope to two inches thick· lows.: Fit'st, il1ayerof ness; 'seCond, a laYElr of paper long-fibered wood pulp, also fl'Om one to two inches in'thick'ness; thi1'd, a'sheet or cloth or tlapnel, preferably a cloth whIch has a web ofeotton and of WOol. The wood pulp and paper pulps should bedeprived of their:.rrsiuoIlS or,otber properties, which would hnpart a disagreeable taste to the' beer passing through them, by being treate;!

lSfJt!re:tunor relatively to each other. ' 9, F,ig.l, is

of

UHLMANN v. BARTHOLOMlE &

CO.

135

intbe·ma,nner described in my applicationfor'l;l about to pe filed ·.' These different filtering substances shouillbe 110' arranged in the.til· teras thllt .the unfiltered beer plt(jses first through the wood pulp, whicb ra. strains, the coarser impurities, Dext through the mixEl4paper and wood which restrains finer impurities, and lastly through theeloth. which acts not (july to restrain the finer impurities that may have passed the other layers, but also to catch and hold any.shreds of the latter that may have been dislodged by the beer passi ng through them, and these different su.bstances should preferably be separated from each other by perforated tinned metal plates; but my filtering p,rocess may be employed when only even one. of the abqveor paper, or any other substance suitable for beer filtration are used.. I also prefer that the filtering apparatus shall be circular or pyramidal in form. and that the filtering media shaH be in a vertical plane, or nearly so, because the greatest amount of surface is thus presented by the filtering: lIubstance to the incoming beer, and the least of air space or room for .the gatbering oUoam and escape of carbonic acid gas is afforded. . "In starting the operation, the air-pump is connected with the store-cask, and is s'o 1'i>gulated as to maiiltidn the desired pressure in the. cask as the beer. is discharged. The hose, k, is connected witb the cask and filteron the en';' t.J;ance and the hose., M, .with the filter and faucets at the rackiqg b!"nch on the discharge side. by couplings made air and liquid tight, as nearly as possible, and one of the faucets,j. is then opened. Everything being in readiness.the tap-cock, b, is oppned, the ah'-pump is started, and the cock. a, being open, the beer the hose. k, into the entrance chamber of the filtering apparatus, forcing the air which was in the entry-chamber, the gas which has separated from the beer, and the foam thereby formed into" the gas-traps, L and V, none of it passing through the filtering media. . The vent-cocks, l. and lI, are now opened, and the air, gas, and foam in the gas. traps, L· and LI, respectively, or in the entrance chambers, and collected in the are drawn off. The beer, meanwhile haVing passed through the filtering media, forces the air which was in the discharge chamber, and the gas escaping from the beer. and the foam forming therein, into the top of the gas-trap, L2. The vent-cock,l2, is now opened, and the air and gas in the gas-trap, V, and the foam formed therein, or in the discharge chamber, and collected in said gas-trap. L2, are drawn oft'. The vent-cocks, 1I and zt,are kept open llntiJaIl the air, gas. and foam in the gas-traps to which they respectively appertain are drawn off. and the gas-traps, V. are seen to be filled with unfiltered beer, and the vent-cock, l2, is· kept open until the gas.;. trap, V, is seen to be filled with beer. They are then closed. and the filter is now, ftlledwith beer,-the entrance chambers with unfiltered beer. and the discharge Chamber with filtered beer. The cock. e, is now opened, and the air pressure at the cask continues to force the beer into the entrance chambers, through the filtering media, into the discharge chamber, and outthi'ough the pipe, G,and its extension, M, to the raeking bench, where it is drawn into the kegs in the usual manner. In case any air enters the filter, eitberthrougb the corinecting pipes or otherwise, or if any gas escRpes from the beer from of presstlreeither on the entrance or discharf;wside. or by reason of partial clogging of the filterinig media or.. from other C3iuse, the air .01' ,gas,as the case may be. atpnce ascends to the top of of the where, being easily obserVed', it is, together with the foam therebycl\used, allowed to escape through the vent·coek, the filtration mean· .while proceeding without any interruption or disturbance. In thedraWings o Fig. I, the racking bench is Ilhown 8.<;l situated on, the floor, or on ale"ell\bove 1;hatoftlle store"cask, and this ii;lthe arnmgement,I believe, in; most breweries.'.(he result is that. the. colllmn of beer in the pipe. G. and !Jose, M:. CoDBtituteS a baclt pressure, ".by which the filter and the gas-traps at the top "J. . . '
. j. · :, .' . . , " ,

I

136

")

".\;,",:

.','

bDERAL

REPORTER,

vol.

41.

tbereofrnlli"bethiptcornpietelyftfteli' \yitb beer; but in some breweries the is situate4 on thElsametloor level as tbecask. 'In such case a sufficient to keep the gas-traps filled with beer should be fOJ:m'ed!uy elevating the hose, M;at a.point between the filter and the racklittle above the top .of. the lantern, or by narrowing the capacity of tile hose, M, relatively to the capacity of the and the airpressure at the cask. As there is always more or less circulation of beer in the lanterA',lJL:nd the lantern of glass, the beer therein may be conand the quality of the beer passing through the filterveniently that is, its freedom from impurities-may be known. Of course, if the gastrap is. not bf1antern construction, a sample of the filtered beer may be from time to off for Obsel:vation, by means of the and the vent-cock JD,ayfrom time to time opened to allow thllescape of any air, gas, orf0s,t,'P wh,ich may have aCflumulated, in the gas-trap; bUt this is less convenient ,to make the trap of, lantern construction·. The interior of the chambers df thetllter may also be 80 formed as to constitute traps for air, gas, or foam, the vent-cocks being at theIr highest points; but such arill Iess desirable." ' The fottr'Cltjims, all of which it is alleged are infringed, read as follows: ',; "(I) ',rhe of filtering beer, consisting in drawing the beer to be filtered from th!! under a pressure exceeding atmospheric pressure,conpucting ,thc;l! saIne ,to and through'a fjltel'ing apparatus in which that pressure is the filteripg,9perl\tion, keeping the filtering apparatus filII of and carryin;g off any air entering the filter along with thCil bee,r awl glJltlleparating from lIeer during the filtering operation, and beer froJD, tbefilter under pressure, (2) process of filtermg and keeping b.eer. which'co'nsi.sts in forcing .the beer under a pressure exceeding atruosPPWic tll,rough a, filtering apparatus, and thence thepperation, and collectto the keg, illgand, from therl;>eeJ,'l'lllJ,'ing its passage from the store-cask to the maybe mingled w,itll thCil.beer, and gas that may separate from as hereinbefore,ll.et forth. (3) The of tiUlld\lg beer, the, beElrfromthe cask under a pressure ordinary atmo!,phericpressure, forcing the beer, under Said pressure thnJUgh n filter, maintaining that presl3ura in. the filter during the filtering operation, and creating anlll maintaining a back pressure in the filter, so a.s tp,keep the filter fu.ll ()f,beer, sUbstantially'as4escribed. (4) The process oLfilteripgbeer, consisting in dr!lW:ing the beer from the cask under a,pressureex.ceed,ing ordinary atmospheric pressure., forcing the beer under /!laid pressure through a filter,maintaining that in the filter during ,l;he Ii1tering oprl:ation, creating and. maintaining a back pressure in tbe filter, 119 as to keep, tb,a filter full of beer, and collecting and caiTying off from the beer any gas' flElparating from the beer, on its way from the store-cask, to or ,through apparatu,8, substantially as described." , Prior to· the 'introduction. OR the 'Stockheim filter into the United States, no methQQ had been <ievised for the filtration of beer which did not allow it to foam, and thus permit the escape of carbonic acid gas, which it is essential should be retained. The German Enzinger and "MellerpateI\tshad.been tried without success. Zwietusch and his partner,Dr, Era beer some time i rl 1882j and 'early 10 AprIl, 1883, ZWletusch ordered a Johnson filter press

UHLMANN ,. BARTHOLOMlE & LEICHT BREWING CO.

137

from New York for the use of the firm, in Wisconsin. In the order he said: "1 have concluded to give the experimental press a trial, and, if it proves satisfactory for the purpose desired, we shaH have opportunity to sell and use numerous of them." Zwietusch testified that when the firm received one of the Johnson filters, which need not be here particularly described, he altered or modified it, by adding to it lantern gastraps and vent-cocks, and that, thus altered, he used it twice, filtering 80 gallons of lager-beer each time, and demonstrated its complete sucin carrying out the patented process. This, it is claimed, was done in the first half of April, 1883. The testimony of Zwietusch, and the witnesses who were introduced to support him on this point, is unsatisfactory. Zwietusch was nn inventor of considerable experience. Prior to this time he hnd obtained a number of patents for inventions. He understood the art of beer, and preparing it for the market, and he ,must have realized the great value of the new process, as comparE;ld with old, slow, and expensive process; and yet, instead of promptly .applying fora patent for. his invention,. he abandoned ,the altered Johl1son filter, and forgot it. In connection with the claim now urged .Qf priorinV'ention. on the part of Zwietusch, it is a significant fact that he delayed filing an application for a patent for his alleged useful and valuahle process, perfected in April, 1883, until after a Stockheim filter had been introduced into this country, and successfully operated. One of the unsatisfactory reasons given by Zwietusch for, setting asidei .the modified Johnson press was ,that the iron of the filter affected the taste, color, and brightness of the bEler, and that this effect was not until a week or more' after filtration. But Prof. Chandler and others testified that the slight contact of the beer with the iron in passing the;filter would not have such an effect, and, if it did, it would be manifest at once. Moreover, the complainants produc.ed two specimens of beer, one of which was unfiltered, and the other had been. pasaed the· identical Johnson filtel,', which showed no trace of contact with iron. A month or more after the alleged successful demonstration .in the use of the modified Johnson filter, Zwietusch?s partner went to New fork to sell rights under his patent Jor New Era beer, and for that purpose took with him alleged samples of beer filtered by the new process, and yet he mentioned to no one in New York what he and his partner had succeeded in doing in Milwaukee. A nephew of Zwietusch w\:lnt to Jacksonville, Fla., in December, 1883, to start a brewery for the manufacture QfNew Era beer, and to sell patent rights under the Fringspatent, and, later, he went to Philadelphia for the same purpose, but at neither place did he mElntion what had been accomplished at Milwauk\:lej and, although he started a brewery at Jacksonville, he made noeffort there to filter beer. ;Early in 1886 the Milwaukee Extract Oompany commenced brewing New Era beer at Kenosha, Wis., under the supervision of Zwietusch. He directed what machinery should be used, and, instead of introducing the modified Johlli!on filttlf, he clarified the .beer by the old isinglass prbcess. Zwietusch .a]so testifilld that aboqt November 1, 1886, while on a train from New York to Milwaukee, be

llEDERAL REPORTER,

vol. 41.

pencil skewhof"a'devioeshowing the essentlal'features of the Stockheim filter. Hedidnotsay"hQwever, that inml1kingthis sketch behad'in'm.ind the modified Johnson filter. A rude pencil sketch of an apparatu8", never made and 'carried into practical use, is not sufficient to ,defeat the complainants': patent, ·and, if the' sketCh was made as claimEld, it not clear from the evidence that a mechanic skilled in the art could construct a filter adapted to' carry out the patented process. " Neither 'the 1Bnzingel." 'pamphlets of 1881 and 1885,n'()rEnzinger's Stockhehn invention." It does" not appear that thepa:mphlets wo'Uld 'enable 8. skilled workman to oonstruct a filter which: would carry out the Stockheirn process. 'I'heEnzinger patent prol-ed. unsatisfactory, and 00 Novemhel!' 28, 1888, Enzinger obtained another patent bywlHc}i,he>hoped 'to remedy the defects in the first. Brewing of Milwaukee bought a 'filter in 1886, iwhich'W'as"coverp,d;by,thtl Enzingerplttent of 'Afterbeing tested, and' 'fO'll'lidi worthleSs I thiefilter was set -8side'; and ahontAprill, 1887, toship"it to rbis brewery at !Kenosha, where :he put i&!gllWls' receiver, on ia'flQating'valve arrangement atltached torthe 'supply-pipe land a cook" oh theouilet-pipe, and, 'with:rthe filter thus changed;Zwilltusch ,testified' be waa. able to carrtyout:the process in 811ft.' :Bnt"hare,agaili" his 'cond oot. waS' With his claim of inventionlfol'; after using ,& fawHmes, it wall ishippedback.to Milwaukee in N"o.vember, 18S'7,':where,' in itsalterad:conClition, it·was .again 'urlder tbe personal management of ZWietuseh,wilhout sue:cesS;'llt1dab80ndoned.' Bartho1olhle &iL\:iicht bought 'a Meller filter in Septembel', '1886, which'does not appear 'to have. been of any practical 'use; :Ids:ndt claimed ,that itsoriginalcohdition,:was Cltpable 01 carrytiing out·the,patentedprocess. Zwietlischtestifiedthat.lie bonghtthiidUtar'from Bart&olornre & Leicht in' June, 1887, a:greeing to pa.y (or: iHd advantage, and "tbaf,'afterreceiving'and ·puttifig: it, he used itdurihg the"same summer. During,thatisummer, }'>erbaps in AUgust; an unsuccessful effort 'was made .to "{jJ>erate a' Mellerfiiter 'on: island, N; Y. ;,and shtlrtly afterwards, 'perhaps 'early in Septemoer,:the first, Stdckheim filter was "placed in a brewery otl'tb:e sl1ffiEdslllnd:, wbereitcarried out the' process, insnitFin ·the: presencecof "Meller"arid;oihers.,iiWithknowledge thus QbtaJined' of !themeritsofthe Stookheim went'wast in the latter' part "()f Sepbimbet\ xHe met Zwietusch: at Chicago, IUHl RCcompaniedibim t,o . Milwaukee; :filter, and lllcCepled foritl!l sale.: <>DeM the 'he received OctolJ6r 6th"be plaea(HbeStockheihl' le:nteril'gas-traps",and on the: 15th -0{' the" sameinorith delivered it defendants.. '. ZwietusoB., testified ·...b'at' hoe" neve.r or, mmM of' theS'tookheiIll ,filter until, two after " "this:.,,! ni,". / : '<Ii' "! f 'Tbaf' Zwietusch neeessary:additions to the MelleI' 'filter: to patenteil is not deYllfed, but lMrooit)le' that thosecbtmges!'beforeheariilg. N ",the ;StOckbijUn fi1ter. i What IllOre natural; Mellei should' have

On

;FOI,DING BOX:

roo :11.: (NUGENT.

.!39

told Zwietusch in September, when the latter agreed to improve the and agE1nc1 for ,itssale.whatcMeller hadpreviQusly w,itnessed on Staten island? ,Stockhei'm's a.pplication for the patent for the machine carrying out the pracessin suit was filed March 2, 1887 ,and 'one of his filters was introduced, into the United States, and actualJyused in carrying ,out the patented process, late in August or early in September of that year. This was prior to the improvements madeintheMeller filtetby Zwi,etusch, which improvements were added, no doubt, with .knowledge obtained from Meller or others of the Stock:' hehn fiI1e.r. It is not necessary to carryStockheim's invention back of the filing,afhis application for a pa,tentfQr the apparatus, for he was not aIiticipated by the alleged modified .Johnson filter, the pencil sketch, aUegedEnzinger filter:, or the Enzin,gerpamphlets. From April, 1883l whenZwietusch now ,claims heill\'ented the patented process, un;' til the J;>ringing of this suit, bis conduct, and the conduct-of his nephew and his partner, was inconsistent with the theory of the defense. None of them ,used the modified Johnson filter, or the process, at Wisconsin or elsewhere, in the man.lJfa,cture of New Era beer, and there. was nothing in the, pencil sketch to indicate that, when it was made, Zwietusch had in mind the Johnson filter. If he had discovered the patented process in April, 1883, why did he in April, 1887, to experim,entwith an Enzh;lger filter in the hope ofadapting it to"carry out the patented process? And When he failed in that experiment why, in June,' 1887, did he experiment with the Meller filter? And if, in September, 1887, he had in mind the modified Johnson press as an ap. paratus caPable of filtering beer l and making it ,fit for the market, why did he then accept the agency for the Meller filter? He cannot expect the court to accept, as true; 8tatementsso inconsistent with his conduct, and socoIJsistent with the theory that, after being informed of. the nature and :QpeI:ation 'of the Stockhllim filter,he endeavored to imitate it, and what helonged to another. The defendants infringe aU the claimsot' the, patent, and a decree will be entered as prayed i£OI' i;n the bill. '
,

CHICOPE;E FOl.DING

Box Co.

t7. NUGENT.1

,(OirCUit ,Oot% E. D. New L

PATRNTS roR INVENTIONS-PATENTABILITY.

December 81, 1889.

thl3 plMe by.complainant hascon,mem'led itself to the trade, and is bemgaccepted by the publlc as more desirable,tnan lij."e otber know.n e,ties, suc.b public accc.ptance \Va.rrants tb,e CO.'un in sustainirigthe" isshQWilhthough the existenCll of pateiltable inpatent, if nO o,n¥cipating .' , 'genuity in the inventiim is not aPllarent to t e ordinary mind. APER BOXEs. .. , On the eVidence. 'held. that tl1e paper boxes made 'by defel1dantare an infringe. mentQf le,tters patent. NQ. 4, to l'Wuben Ritt.er., and, anlnjuttcti'Ol1 shduld be granted. . ,'. '."
v i' n '.i .

J.

,r,·

!

'

Benedict, Esq., of tha'New "f'ork bar,

140

J'EDERAL REPORTER,

vol. 41.

·:In,Equity. ."Finalhearing in a suit to restrli.in infringement of. the second olaim of letters patent 171,866, for improvement in paper boxes, granted January 4, 1876, to Reuben Ritter. The claims reads as follows; "(2) A box: top consisting of the parts:f. fl. p, /3. connected together by notched· exterisions, passed through slots· .f5. in the manner and for the purpose desoribed." Walter D. Edmonds, for complainant, cited: (1) As io invention: Palmer v. Johnston, 34 Fed. Rep. 337; Stegner v. Blake, 36 Fed. Rep. 183i Baldwin v. T. G. Conway Co., 35 Fed. Rep. 519; Process Co. v. Distilling Co., 37 Fed. Rep. 534; Marvin v.GdtshaU, 36 Fed. Rep; 908; Safe-Deposit Co. v. Gt;J,s-Light Co., 39 Fed. Rep. 273; Engine Co. v. 44 O. G. 1067, 34 Fed; Rep. 747; Reiter v. Jones; 35 Fed. Rep. 421; Bogart v. Hinds, 26 Fed. Rep. 149; Parks v. Booth, 102 U. S. 96; Haile8 v.Van Wormer, 20 WalL 353; Railroad C.o. v. Truck Co., 110 U. S. 4 Ct. Rep. 220. (2)· As to infringement: . Adams v. Manufacturing Co.,S ."Bah. & A. 1; Schlicht & Field Cb.:v. Sewing-Machine Co., 36 Fed. Rep. 585,; Root, v. RailrOad Co. ,·39· Fed.: Rep. 0'Reilly v· Morse, 15 How. 63; Regulator Co. v. Electric Co., 36 Fed. Rep. 196; Machine Co. v. Murphy, 97 U. S. 125. ' ,'William A., Redding,' for defendant, thed: (1) As to invention: Aron v; Raii'fJJay 00.,26 Fed. Rep. 314; Jones v. Claw, 39 Fed. Rep. 785. (2)' As to infringement: Box (Jo.v.,Stcipler, 5 Fed. Rep. 919; Munson Hall, 19 Fed.' Rep. 3:40., . .

r.

,LACOMBE,J. cases where, taking into tion the prior state of the art,the existence of patent-ableingenuity in the alleged ihvention is not appare1'lt to the ordinary mind. although the inventor, the complainant, its expert, nnd Its counsel seem to have no difficulty in detecting it. In this case, however, ns in those of the ponippers,(Baldwinv. T. G. Conway Co., 35 Fed. Rep. 519,) of the sash,; v.1ohn8ton, 34 .Fed. Rep. 387,)' of the internally heated fixing chamber, (Safe-Deposit Co. v. Gas-Light Co., 39 Fed. Rep. 273,) and of the other patents referrecl to in argument, the evidence shows that complainant's style of box has commended itself to the trade, and is being accepted by the public as more desirable, at least for certain purposes. than are the ;6ther known' varieties. This ·public acceptance is persuasive, .and may be c<?nsidered as sl,lfliciently fortifying complainant's testimony to warrant the court in stistaining the patent, if no anticipating structure is shown. : .... . ... ' ,,'The'patent: in suit relates .to papel"bI'>xesand box covers cutout,,9f a. and. ,kll0Wtl ,as II knock-down " boxes. They, are sold{shippedjand stored:l;1at·. Whenput in use, their sides and ends are bent upwards, and fili.ps, pro5ecting fr.0m the sides, are passed arouI,lcl the,corners, and inserted into in the ends. There. is thus formed It shallow rectangular bOi, with rectanguhl.'r,sides, which.is held iIi without the use of rivets, mucilage, or any foreign substance. "Paperboxes formed out of a single. sheet of paper, and'retaining their shape by

CHICOPEE FOLDING BOX CO. tl. NUGENT.

141

an interlocking, into slots of projection of their own material, were old. Plaintiff claims the application to such boxes, in combination with their Bhape, of the peculiar locking device described in his patent. The flap projection from the side strip is shaped thus, (the dotted line representing the corner around which it is bent:)

" The slot into which it is inserted .is located in the end strip, perpendicular- to the bottom of the box, and therefore parallel with the inner edge of the projection at the end of the flap. The slot is longer than the width of the flap which is to be thrust into it, and is located at such a distance from the corner that, when" the box is set up and the flap thruat in, the projection of the latter will just pass within the box. The peculiar feature of this method of locking which complainant relies upon is the circumstance that the projection engages the straightedge of the projection with the straight edge of the'slot; such engagement taking place sometimes at one point, sometimes at another, and sometimes, again, thl'oughOut the entire length of the projection. One impposedbenefit deri ved frtl:iil this peculia.r mode of engagement is the securing of a greater degree of automatic adjustibility, the box more readily accommodating itself to ,slight variations in the position of the parts relatively to each other, whether caused by imperfect cutting out oftheblank, or by carelessness in setting it up. This is said to be an important feature, in view of the fact that in such setting up the customer generally uses unskilled labor. Another supposed benefit is that, by making the slot parallel with the vertical edge forming the corner, and longer than the width of the flap, the entire locking end may be introduced into the slot easily, without twisting, bending, or doubling over, and thus a more brittle, poorer, anel cheaper quality of paper may be used, and the,cost of the article reduced. The defendant insists that the device does not act as plaintiff claims, but that the projection. hooks into the upper corner of the slot,-a pirwhich, in view of the prior atate of the art, would" no, doubt, be fafu:ltothe patent:' 'upon this the expert witnesses are not inacGord, and to facilitate its determination defendant's counsel. introduced upon many illustrative models.'. Though not strictly not having been put in proof as exhibits. they have been carefully consid. ered, tl,ndwere of much assistance in studying the practical operationof t1:levarious;}ocking devices described ,in the Sllver.aJ patents·.. ap exit appears that, when the complainant's .box amination of these is of smooth thin paper, its locking device does notal.ways engage straight edge to straight edge, but either pulls out,. orretllins its hold solely by hooking in to the upper corner of the slot; and the same happens when use has widened the slot, eithl'lr by wearing off some of material 01' by springing it open.. The exhibits in the ease, however, are of a different grade of,pl!,per,-gqarser,Rnd thicker than' is that of which the illustrative models were made. The slot is a ,the

...::

REPORTER,

vol. 41.

being removed, the; slit. ,gllin.' When a flapwHh:a,prfljection; Bu'chMis shown in,the cut above, the outside, this tendency opefil.tes to bend the flap inwards, and the coarselithe Illllteril\1 the marked does sucn, tendency becorpe1 Thus, when, a pulL comes, the straight edge of the the thick card.;boardcomposing;the projection of the flap is brought up against the straightedge of the:slit through which it was thrust. The exhibits seem to 8upport(jQlllplninant's contention as to the way in which its locking device, works. . . In the various pll>tents Pl,lt in evidepce ;there is no anticip,ationof this :mode of engagement. The locking devices in them .hook into f)ne or other endi)f the slot; ,They do not engage to straight edge;: and the second clairnof the patentl restricted to a locking deviGe as aboye set forth. must :tperefore be sustained. The: only between thia,device and the projecting flap.,ofdefendant's box is form.· The llotchin the lat,tel' projects, ll()t ,upward, but inward;, being produced by;d,oubling the end of the flap ov.er upon itselfl and riveting it. down·. It is, however; located· pa1Jlllel to the vertical corner I slips in without :ben.ding, is brought ,jnto activity by>'he pressure oOhe ,m!l.tedal thl'oughwbicb the slot is Cij,t, and engages with such material, strAight edge tostraigM edge. The structures oOmplainedof, thetefore; infringe the ,second, claim of the patent, and there ,must be a decree for ,the complainant.

-e'noy

,paper';

;J.'

TATUM

et at ,t'. GREGORY

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et at

CCircU'lt Court, N; D. '('JdU/ofnw.. January 20,1800.) ';.,

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HeW oJ) tlleljlvidence that.clalXQ.>1 of;paliel:lt: NQ.2'l7.ln8
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, .... infringed. " .

.' . 1 ot,patel:lt NQ. "J;ld tb,at claim 8 of N9. is ",; , . . " , ". ,

.'$.l'M......8TA'l'BOP, TBBART-'-EvtDBNCB;:);' : " . ,: . .Evidence of, tlle llxl,atenee of a singll' i,plated machine many years prior totl;1e ',.date which is not, sh'c)Wp to bave gone intO use, is not oompetent bk'

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tOahow the state of the art<· ,: i : . . . .

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of, the

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must be clear and s!'tisfactory and it'relates' to a . time many years ansolely ol:ll;Lj,J lpemory.
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'Iii cOllstrultlg'patents the dCJ6trltteofIilechlmlcal equtvlllents is appllcableto land' improvementeon primary inventioDs, '.: l, .', ',' .; " '. '. .. ,'f.', , ',,' · " I , !A:'clalm for lI,'eomblnation of eleIllentlt istinfringed only by 'use of-lill , :',iaJIdwheJ!e is: claar qnl;y:as, 01tll.e ·,e1eJ,l1ents otthe combi)l,Btion by IS not clear or satisfactory 88 to the . .UI8' of tbeotherelements. iliwlllbe 1WiZd TiDat :il1fringement:is :not proven.': i the Court.) , ·.'L, i :1,., ,'!
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