Crescent Brewing Company v. Gotteried/Opinion of the Court

There has been, as appears by the reports, a good deal of litigation as to this patent. In June, 1878, in Gottfried v. Bartholomae, 3 Ban. & A. 308, in the circuit court of the United States for the Northern district of Illinois, Judge BLODGETT held the patent to be valid. The only anticipating devices which appear to have been considered by him were the Davison and Symington patent of November, 1843, and the Neilson and various other hot-air blasts in smelting furnaces. The patent was sustained by the decision of the circuit court of the United States for the Eastern district of Wisconsin, held by Judge DYER, December 1, 1879, in Gottfried v. Brewing Co., 5 Ban. & A. 4. The anticipations considered in the opinion of Judge DYER were the device of one Pierce; the Beck machine; the Davison and Symington patent; the Devaux patent; the Neilson hotblast patent, granted in England, in 1828; a patent granted in England to one Boville, in 1846; and a patent granted in England to Cochrane and Galloway, in 1818. The Cochrane and Slate patent, the 'Pewterer's Blast,' the two German publications, and the Seibel apparatus do not appear to have been considered in that case. The next decision was in June, 1881, by Judge BLODGETT in the circuit court of the United States for the Northern district of Illinois, in Gottfried v. Brewing Co., 10 Biss. 368, 8 Fed. Rep. 322. The question of novelty was not considered, and the bill was dismissed on the ground of noninfringement. Then came the decisions in the present case. In Gottfried v. Stahlmann, 13 Fed. Rep. 673, in the circuit court of the United States for the district of Minnesota, in October, 1882, Judges MCCRARY and NELSON concurred in the second decision of Judge GRESHAM in the present case, sustaining the validity of the patent. It is also stated that Judge BAXTER, of the Sixth circuit, held the patent to be valid.

It is quite apparent from the face of the specification, as it is clear upon the evidence, that the process of flowing melted pitch on the inside, into the pores and joints of casks which were to be filled with spirituous or volatile liquids, such flowing taking place while the casks were in a heated state, was not new. The specification states that a difficulty attended such process, because there was no economical means of heating the casks without burning or seriously charring their inside surfaces. It also states that in this view the invention has for its object the preparation of casks for receiving the pitch, by subjecting them to blasts of highly-heated air, by means of the apparatus described; that is, the invention is of the apparatus. The specification then describes it. The substance of it is an apparatus consisting of a fan-case arranged outside of a furnace, and furnished with a series of rotary wings or fans, which create a blast of air, and force such blast into a chamber, and through a fire built upon a grate in the chamber, and thence through such chamber, and out of it, and, by means of a pipe, into the cask which it is desired to heat, the heated products of combustion being thus forced into the cask, and then allowed to escape therefrom, so that the cask will be properly heated to admit of the ready flow of the melted pitch into the pores and cracks or joints in the wood in the interior of the cask when the cask is rolled about. The first claim of the patent, namely, 'the application of heated air under blast to the interior of casks by means substantially as described, and for the purposes set forth,' is a claim to the means or apparatus described for applying the heated air under blast to the interior of the casks, and is a claim for mechanism, and not for a process. The evidence further shows that the process was old, and was fully developed in the Seibel apparatus. The only process that is embodied in the plaintiff's apparatus is the process of bringing the heated products of combustion, impelled by a blast of heated air rushing through the fire built upon the grate, into direct contact with the interior of the cask, and with the pitch which may cover the interior. A Seibel apparatus, as used in St. Louis continuously from 1857, was put in evidence, and has been produced before this court. It is used by inserting it within the cask to be heated. It consists of an elongated furnace, having a straight perforated cylindrical pipe extending horizontally the entire length along its bottom, one end of the pipe connecting by a conduit, with a blower on the outside, which drives a blast of air through the pipe; the blast passing out through the perforations in the pipe, and into and through the fire in the furnace on the top of the pipe, whence the products of combustion pass into the cask, into contact with its interior surface, and then out of the cask. The process of the Seibel apparatus is the same as that of the plaintiff's apparatus. The furnace and its fuel are between the blower and the interior of the cask. The heated products of combustion, being the blast of air either wholly or partially deoxygenated, pass from the fire directly into contact with the interior of the cask. So far as any process is concerned, the processes embodied in the two apparatuses are identical. The fact that in the plaintiff's apparatus the furnace is not thrust into the cask, and that the products of combustion are conducted into the cask through a pipe, does not affect the question of the process.

It is contended by the plaintiff that the first claim of the patent is for the process when applied or operated by an apparatus like that of the plaintiff, situated outside of the cask, and not within it; and reference is made to the case of Lawther v. Hamilton, 124 U.S. 1, 8 Sup. Ct. Rep. 342, as sustaining the view, that the mechanical means by which a process is applied may be an essential part of the process, and that the process is not anticipated unless the mechanical means of applying it, shown by the plaintiff, existed before, and were applied before to carry on the same process. But the true view of the case of Lawther v. Hamilton is this: Lawther's patent was for a process of working oil-seeds to obtain oil, by dispensing with the muller-stones before used to complete the grinding. The omission of the muller-stones produced more oil and better oil-cake. The seed, first crushed by heavy rollers, was passed directly from them into a mixing machine, without being operated upon by muller-stones, which had before been used for grinding and mixing. The crushing of the seed between powerful revolving rollers was retained in Lawther's process, and the seed was transferred immediately from them to a steam mixing-machine. This court said that, while the invention was that of a process, it was limited, at least so far as the crushing of the seed was concerned, to the use of powerful revolving rollers to do such crushing. The crushing being stated in the specification to be of such character that each seed was individually acted upon, and the oil cells were fully crushed and disintegrated, the claim was for 'the process of crushing oleaginous seeds, and extracting the oil therefrom, consisting of the following successive steps, viz., the crushing of the seeds under pressure, the moistening of the seeds by direct subjection to steam, and, finally, the expression of the oil from the seed by suitable pressure, as and for the purpose set forth.' The crushing of the seed in the manner stated was a part of the process. Of course, it had to be done by some kind of instrumentality, and it was held to be a part of the process that the kind of instrumentality should be powerful revolving rollers, whose effect would be to act upon each seed individually, and fully crush and disintegrate the oil cells; but the instrumentality or apparatus was not a part of the process, while the operation upon each seed by the kind of instrumentality described was a part of the process. So far, therefore, as the first claim of the patent is a claim to a process, it is fully anticipated in the process carried on by means of the Seibel apparatus.

Considering the first claim of the patent as a claim to the apparatus used for applying the heated blast to the interior of the cask, the apparatus existed before. It is found in the Cochrane and Slate patent of 1850, which shows a blast passing through the fuel in a furnace, and a pipe extending from the furnace into the interior of a flask or mould intended to be heated, through which pipe the blast, consisting of the heated products of combustion, was conveyed into such interior. The deoxygenated blast was applied to the heating and drying of the inner walls of the receptacle into which it was carried. There was no invention in applying the apparatus to a cask instead of a flask. It would require only ordinary mechanical aptitude, and not invention, to make the mouth of the exitpipe, carrying the heated products of combustion, of a proper size to enter the bung-hole or other orifice of a keg or a cask, instead of entering a flask or mould. So, too, the description of the 'Pewterer's Blast,' in Tomlinson's Cyclopedia of 1854, shows the plaintiff's apparatus. It is there stated that the pewterers have a kind of blow-pipe or hot-air blast, consisting of a common cast-iron pot, with a close cover, containing ignited charcoal, and termed a hod. This pot has a nozzle leading into it, which supplies air from bellows worked by the foot, and another nozzle leading out of it, which directs the current of hot air upon the article to be soldered. The drawing of this apparatus is as follows:

In this apparatus there is a blast driven through a fire in a closed receptacle, in such manner that the heated products of combustion are carried out of a nozzle, and directed where needed. Whether the nozzle terminates in the air or in the interior of a cask or keg, or whether the deoxygenated blast which leaves the nozzle is partially reoxygenated or not before reaching its objective point, does not affect the identity of the apparatus. In reference to both the Cochrane and Slate patent and the 'Pewterer's Blast' apparatus, the patentees have, at most, merely applied an old apparatus to a new use, without any change of its constituent elements or of its mode of operation. In fact, the defendant's apparatus is, to all intents and purposes, a faithful copy of the 'Pewterer's Blast' apparatus. Under these views, it must be held that the first claim of the patent is invalid.

As to the second claim, there is no infringement, the defendant's apparatus having no removable conductor corresponding to the removable conductor, E, of the second claim. The defendant's pipe is screwed fast to the furnace, and cannot be removed while the machine is in use. It is cast separate from the furnace, for convenience of renewal in case of the breakage of either it or the furnace. The movable conductor, E, is described in the specification of the patent as a pipe provided with a bow handle, by means of which it can be removed or adjusted in place, without liability of burning the hands. The defendant's pipe which enters the keg or cask is not removable or detachable in this sense.

For these reasons, the decree of the circuit court is reversed, and the case is remanded to that court, with a direction to dismiss the bill of complaint, with costs.