296

FEDERAL REPORTER,

vol. 48.

this state. To hold that Germain became an inhabitant of tliis state, becau!\e he has a regular agent here for the sale of his goods, would be an extension of the meaning of the act of 1888 far beyond any reported case that I can find, and I think contrary to the spirit dfthe act. As to the defendant Monroe, my judgment is that, upon all the affidavits and facts at the hearing,a preliminary injunction ought not now t'o . The only clear evidence of infringement is contained in Mr. MOllToelsa.ffidavit, in which he admits the salaof 35 mantels of the variolis designs covered by complainant's patents. These were sold in 1890, very shortly after the patents were granted, and before tlleir'yaUdity had 1;>een established.. He swearS that at that time he had of the existence of the patents, and it was shown that sales for several months, by both complainantaJ;ld the defendants, before the granting of the patents, so that it is reasonable to believe that he did not know of the patents. He denies that he has taken any orders for or sold any mantels of these designs' -since he received notice frOm the complainants of his ownership ·of the patents.' No evidence has, been furnished by the complainant'to disprove these statements, and the'pase, rests upon the sale of tile 35 mantels, which, under all the cirwould not warrant the granting of the preliminary injunctiQn. ,The complainant lilay at any time hereafter, however, renew his motion, if he should discover evidence of further infringement. The moti9Jl must be,for the present. refused j and it is so ordered.

no

al.

v. KRUEGER.

(C'i1-CJ'lHt Oourt of Appeals.. Third Oircuit. November 18,, 1891.) .1
1.' ;L"ATBli1'TII, ,.OR· INVEN'l'IONS-AN'l'ICIt'A'l'ION-A'BRA'l'ING BEER.

letters patent No. 9,129, issu.ed March 23,1880, to William Zinsserand August Zinsser, lis assignees of F. C. Musgiller and Robert W. Schedler, for an improve\! of charging beer and other liquids with bicarbonate of soda or other alkali, by mixing the. same.witha proper .cement and compressing it into lumps which will at once sink to the bottom of the vessel, and thus give off the acid grad. ually to the whole body of liquid above them, are void because of anticipation by various English and French patents for aerating different liqUids with gas producing salts compressed into lumps.

2.

SUJE-ApPLICATION OF OLD PROCESS TO NEW PURPOSE.

Tlle fact that the anticipating processes were used in treating water or neutral liquids. while the patent was for treating beer and similar liquids, is immaterial, as this Wlis merely applying an old process to a new, but analogous. subject. 45 Fed. Rep. 572. affirmed.

In Equity. . . Suit by William Zinsser and August Zinsser against Gottfried Krueger for infringement of patent. Decree declaring the patent void because of anticipation and dismissing the bill. 45 Fed. Rep. 572. Plaintiffs appeal. A. '1); BrCisen, for appellants.
i ·

ZINSSER V. KRUEGER.

297

Joseph Jf. Deuel, for appellee. Before ACHESON and WALES, JJ.
WALES, J. This is a suit in eqUlty, brought in the ciI'cuit court of the United States for the district of New Jersey, by William Zinsser and August Zinsser against Gottfried Krueger, for the infringement of reis" sued letters patent No. 9,129, dated March 23, 1880, and granted to complainants, as assignees of F. C. Musgiller and Robert W. Schedler; "for a new and useful improvement in treating beer and other, liquids." The spedfication and claims are as follows: . "Till} invention consists in treating beer and other liquids of a similar ure with lumps of bicarbonate of soda or of other alkali, said lumps bein'g compacted by means of a suitable cement,so that they are heavy enough to at oncetlropthrough the liquid to be treatl!d upon the bottom· of the vessel containing the liquid. The carbonic acid evolved from sail! lumps is thllS compelled to permeate theen;tire column. of liquid above it, and at the slime time to give up the rE.'quisitequantitYOf alkaline matter·. Together withthil lumps of of alkali may bensed lumps of tartaric or other suitable acid, cOI.Dpacted in the same manner as the lumps of bicarbonate of ·alkali, so that the amoll nt 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 manufact. ure ofbe·er, sparkling wines, ,aud other effervescent Jiquid8' for the purp!llle of increasing the life of such liquids. The mode of applying sucbarticle or articles by brewers, for instance, is to apply about one ou.nce of the bicarbonate of soda to each quarter barrel with a table-spoon, the bicarbonate heing in the form of. a powder. The powder, on being thrown irif:o a :barrel of will at first float on the surface of the liquid. and immediately evolve cal''' benica:cid, a large portion of which is lost, together with the beer which,1s thrown out by the action of the acid before the barrel can be closed with ;a bung. Besides this, the operation of filling barrels is carried on in a great hurry, and a large quantity of the bicarbonate 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 powdered bicarbonate of soda. These disadvantages we have obviated by preparing the bicarbonate of soda or of other alkali and the acid in solid lumps, of such weight that the lumps at once drop through the liqUid upon the bottom of the vessel, and give off the carbonic acid to the entire column of liqUid, and not only, as heretofore, to the upper stratum. These lumps we produce by mixing puwdered bicar" bonate of alkali with a suitable cement, such as a solution of dextrine, and then compressing the same in molds of suitable size and shape. .Lumps ,of acid are triadein like manner. The advantages of using the bicarbonate of alkali. either alone or in connection with acid in this shape, is perceptible at once. The lumps. being in a compact furm. when dropped into a barrel filled with beer, all', or other liquid. will at oijce sink to the· bottom. and the carbonic acid evolveq from them is forced to stay in the liqUid. The barrel can be easily closed with a bung, without losing a particle of carbonic acid or of beer, and the said lumps can be introduced into the barrel without any waste. Besides this, the Weight or size of our lumps is so gauged that each barrel wiII receive the exact quantity of bicarbonate of alkali and of acid reqUired, and that the liqUid in a number of barrels. after having been treated with the bicarbonate of alkali. with or without acid, will be of IJniform, quality. "What we claim liS new,and desire to secure by letters prQcess of charging beer and other liqUids of a simillir nature with carbonic acid.

29tl

FEDERAL REPORTER,

vol. 48.

by dropping into and through the liquid lumps of soda or other alkali. thereby causing the-acid discharged from the lumps to pass through the entire column of liquid, substantially as specified."

The bill alleges infringement, and states that the validity of the patent hf\s been already sustained by a decree of the circuit court for the district of New Jersey in' a forwersuit by these eomplainants against Alois, Kremer, (39 Fed. Rep. 111.) The answer denies novelty of invention, and claims. that, since the former suit and decree against Kremer, new evidence has been discovered which proves that the invention described'in the foregoing specification had been anticipated by English l\nd French inventors. After hearing the. proofs and arguments of counsel,the bill was dismissed, on the gtoupd of priority of invention, (45 Fed. Rep. 572,) and the have appealed to this court. The use of bicarbonate of soda in the ;treatment of beer was not new at the date of the application for the original patent, on October 20, 1875. Before that time, the bicarbonate had· by brewers in the form of a powder, and the only novel featur,e't>f its use, described in the speci6catjon, is the conversion of the into lumps, Which are introduced the barrel through the bung-hole. The effect produced in the beer is the same whether the alkali is used ina powdered or in a compressed form, nor will the taste ,of the beer indicate which form has been adopted in treating Iloy particullU' barrel; As explained by Mr. Griffin, 'a chemical expert and a witness for the defendant, the patented process begins with the dropping of lumps into,' the liquid. When the lump isdJ,'oppedand. the vessel closed the process is ended. The result is the evolution of gas, which is dissolved by the liquid. So, also, powder is dropped from a spoon, and the result is identical, The only difference: is that the solution ofthe powder and the consequent evolution of gas intbe latter case are more rapid, so tHat it is desirabletoclose the vessel at once, if all the gas is to be conflned. ""Solidsdissolve more slowly than powders. That all there is to it." .The object of the patentees was to retard the solution of the alkali; thereby preventing a ,too sudden effervescence, and 80 retain the gas and the beer in the barrel without any loss of either.. The defendant has used lhebicarbonate of soda in lumps, or in a: compact fOrIll, in the treatment of beer; and the only question now to be considered is whether this mode of using the alkali was original with the complainants) or their assignots, in vie", of the state of the art at aJ;ld before the date of their patent. ,f\nd on this point the evidence appears to be conclusive. English patent No. 568, dated March 1,1860, granted to William Bush, describes a method of granulating the components Seidlitz mixtures, by which bicarbonate of soda and tartaric acid were formed into artificial granules or lumps, for the purpose or solutiop: in water, evolving carbonic acid gas. The advantltge of such granulAtion in retardingtllesolutioD of the salts, and the consequent slow eVolution of gas, is mentioned and:descrihed, in Dingler Polytechnic Journal, (volume 170,p. 314,) published in 1863,in which the writer says tbat the objection of a tool'apid of the salts may be overcome by converting the powder into lumps, taking the form of coarse-grained
,

.,',(

" . ,

zmSSER t7. KRUEG:£R.

299

powder. English letters patent No; 910, dated November 29, 1852, were granted Barse & Gage for "improvements in apparatus for manufacturing soda-water and other aerated liquids, and likewise in the preparation of substances employed therein." Barse & Gage converted the acid and bicarbonate powders into "a paste by a mucilage of gum," which is then compressed into cylinders of different shapes, so as to distinguish the acid from the alkali. The cylinders were graduated by weight, "in proportion to the quantity of gas to be produced." and in size depending upon the diameter of the holes through which they were to be dropped. The advantages are specified by "the solid appearance in the shape of a pencil given to the salts which are to produce the gas, and which in other apparatus are used in a powder." The complainants' specification shows their mode of preparing the lumps, as follows: "These IUinps we produce by mixing powdered bicarbonate of alkali with a suitllble cement, such as a solution of dextrine. and then compressing the same in moulds of suitable size and shape. 'rhe lumps of acidure made 10 like manner." English letters No. 1,609, dated June 26. 1863, issued to William Clark for "improvements in apparatus for aerating liquids," under the head of "gaseous lemonades," describe a process of charging lemonade with carbonic acid gas by the use of pastilles, lozenges, or drops, composed of bicarbonate of soda, citric or tartaric acids, and sugar, in various proportions. French letters No. 595,527, dated July 23, 1863, issued to Le Pedriel, describe the patentee's mode of the salts employed for gaseous .waters. English Jetters patent No·. 3,1130, dated October 24, 1872, were granted to William Cooper for "improvements in preparing and maki.,g up medicated and other effervescing mixtures,"and show a method of making an effervescent mixture from a carbonate of a suitable alkali with an acid salt, and adding sugar, the whole being then compressed suitable dies to form solid lozenges. French lelters No. 58,807, dated May 28, 1863, were granted to Defommenteland Pore for making gaseous waters. The invention in that patent consists in the creation of a solid body composed of bicarbonate of soda and melted sulphate of alumina, the .latter being an economical substitute for tartaric acid. This solid body, placed in one of the gasogenous apparatus, then in general use, evolves, under the action of water,the carbonic acid necessary for producing gaseous water. This solid body is made in the form of a cartridge, and a single cartridge is sufficient .for charging the apparatus de.scribed. One or two other patents are. exhibited in the defendant's evidence to prove the state of the art prior to the d:Lte of the patent now in suit, but those referred to above win suffice for the purpose; and· tp.ese show that the complainants' assignprs. although they may have bl:len ignorant of the prior patents, were in fact not the first, and original inventors of a mode of converting the bicarbonate of soda, either with.m: without an acid, into a solid lump ol',cl!ortridge, for convenient handling in dropping the same into barrels or vessels. It may be true that they were the first to successfully apply the mode of

J'EDEl\AL

vol. 48.

using, thecaUqHi by introducing it into a barrel of beer in ·the manner de-. scribed in their specification, but it is ,quite certain that the !lame form of use was previously known and had ,been adopted in charging neutral liquids. , It must be observed that none of the exhibits above referred to were before the court in the Krffmf:r Chse. To avoid the effect of this proof, the complainants' counsel insisted that" the defendant seeks to invalidate a process which serves to neutralan acidulated liquid, such as beer, by showing it to be old to acidulate and medicate neutral liquids, such as water." This distinction does n9,t affect the question of priority of invention in the present case. The of beer by bicarbonate of soda, used in the form oia powder, was well known; and the i!lsue here ill whether the conversion of the compression, into lumps, granules, or cartridges of suitable SIze and weIght, was new. The proof is clear that it was not. The comp)/l:iP8:ntEl do nothing more than apply the lumps or cartridges to beer of to Wl,lter, and thus adopt an 9)<1 form or method of applying the novelty in the mode"o{ its application; andtbis, ithus, been frequently decided, will not sustain a patent, even if the new form of been before contemplated.. rPcnns'ljlvania 1l. (ro. y. Locomot;,W,etc" :rruckOo.,110 V. S. 490, 4 Sup. Ct. Rep.,220. There1,s no error of th", circuit court, an4 it is therefore ' ,
, ;

t,l

,

"

P

,; .

l'

:CbNTRAcTtNG

CO.

fl. SOUTHERN CALIFORNIA BITUMINOUS PAV.

Co. stal.

(Cwcuit Court" N. D. California. November 16, 1891.) L PATENTs FOB INVENTIONB-PATEN,:\,ABILITY-INVENTION-AsPRALT PAVING. , "Lettera patent No. 819,125, issued June 2,1835, to Judson Rice, Andrew Steiger, :anp. ,Isaac L. co",erS8 "process of working llosphaltum, n, by tllokin,g it in its native stllote, and softening it by the aid of hot Wlloter, steam, or superheated steam, , audapplying it to the use intended while in a plastio state, and then .pressing it , , ",ith a ll.,eaV'y Il.eated iroJ!, Ol'toHer,until the Ilurface is smooth and compact. , that this 'was a patentable invention, consisting in the application of ali old process to Ii nllw and useful purpose. ' Ii ROOFJNGCOJilPOUND. IJett,ersJ;latent No. issued June 1886, to Austin Walrath, covers 8 "paving,'roofing, and building"compound" made by heating bituminous sand-rock (found neat' Santa Crnz, Cat) by meaDS of steam until it is in a sen:Ji-liquid state, IIpread-, " oveI; the l!\ll'face to be paved or roofed, and then rolling it or it with heated ii'olill until it becomes firIll and bard. Held a patentable Invention, as ,it applies known processes to new and useful purposes.

ern. California Bituminous Paving Company and others, for infringement
of'paten,tS.

: !: .... I

:, InEquity. , Bill by the Pacific Contracting Company against the SouthDecree for' an acpounting. . " ,

,Garber, 'Boalt <to BiShop and M. A. Wheaton, for complainant. : Lariiihorn6 <to Miller,for respondents. ,
.:, :