Standard Brands v. Federal Yeast Corporation

• Decision Date: 10 February 1930
• Docket Number: No. 1421.,1421.
• Citation: 38 F.2d 329
• Parties: STANDARD BRANDS, Inc., v. FEDERAL YEAST CORPORATION.
• Court: U.S. District Court — District of Maryland

38 F.2d 329 (1930)

STANDARD BRANDS, Inc., v. FEDERAL YEAST CORPORATION.

No. 1421.

District Court, D. Maryland.

February 10, 1930.

Warfield & Watson, of New York City, and Marbury, Gosnell & Williams, of Baltimore, Md., for plaintiff.

Howson & Howson and Charles H. Howson, all of Philadelphia, Pa., Fish, Richardson & Neave, of Boston, Mass., and Wyman & New, of Baltimore, Md., for defendant.

SOPER, District Judge.

The bill of complaint in this case was filed on August 31, 1928, by the Fleischmann Yeast Company, for which Standard Brands, Incorporated, was subsequently susbtituted as complainant. The bill charged the Federal Yeast Corporation, the defendant, with infringement of United States letters patent Nos. 1,449,102, 1,449,105, and 1,449,106, and prayed for an injunction against continuance of the infringement and for an accounting for damages and profits. For convenience, these patents will be hereinafter referred to as patents 102, 105, and 106, respectively. The defendant's answer sets up the defense of invalidity of each of the patents, and also denies infringement thereof. The trial and oral argument of the case was had during the period from October 1 to October 14, 1929.

The patents relate to processes for the manufacture of bakers' yeast and the product of such processes. A prior suit between the Fleischmann Yeast Company and the same defendant, involving United States letters patent No. 1,449,103, also relating to the manufacture of yeast, resulted in a decree in which the validity of the patent and infringement by the defendant were established. In the same litigation United States patent No. 1,449,127 was declared invalid. Both parties appealed. The decision of the District Court is reported in 8 F.(2d) 186, and the affirmance thereof on appeal in 13 F.(2d) 570. Patent 103, as well as the three other patents involved in the pending suit, was based on applications filed by Friedrich Hayduck, of Wilmersdorf, Germany, assignor to the Fleischmann Company, and were granted under the provisions of the Nolan Act of March 3, 1921, 41 Stat. 1313, USCA tit. 35, § 80. The four patents were issued on the same date, March 20, 1923. The effective priority dates, however, corresponding to the respective applications in Germany, are as follows: For patent 102, February 24, 1915; 103, March 15, 1915; 105, March 16, 1915; 106, March 19, 1915.

Patent 103 covered the process of manufacturing bakers' yeast, which comprised the preparation of a yeast nutrient solution containing sugar material with inorganic ammonium salts as an additive source of nitrogen, and, during the period of propagation, neutralizing, by an antacid substance, the deleterious acidity created by the use of the salts. Some description of the nature of yeast and of the art of yeast manufacture may be found in the prior opinion of this court. The discussion therein, infringement being admitted, was confined chiefly to the validity of the patent in relation to the prior art. The gist of the patent was the discovery that inorganic ammonium salts may be used to great advantage in the yeast industry, and that the harmful acidity which attends their use may be overcome by the process of neutralization. The trial of this case was held during the week of October 7, 1924, and the decree of the court was entered on May 9, 1925. After it had been affirmed on appeal, an order was passed on July 24, 1926, at the request of the parties, referring the case to a special master to state an account of the profits and damages to which the plaintiff was entitled. The report of the special master was filed on November 16, 1929, and exceptions thereto were filed in the following month. Before the hearing on these exceptions took place, the second case involving the three remaining patents was heard. Subsequently, on December 27, 1929, the exceptions to the master's report in the first case were argued before the court, and it was then stipulated that the evidence taken before the master in the accounting proceedings and that before the court in the second case might be used by the court interchangeably in either case.

It will be necessary to discuss each of the three patents at length in view of the character of the defenses raised. For convenience, however, it is well now to state generally the character of each patent:

Patent 102 resembles the process of patent 103, in that it involves the use of a nutrient solution, consisting of essentially sugar material and inorganic ammonium salts, but differs from patent 103 in that it seeks to overcome the harmful effect of mineral acidity by the high dilution of the nutrient solution instead of by neutralization.

Patent 105 has reference to the method in which the nutrient material is handled during the period of propagation, and is applicable generally to worts suitable for the growth of yeast. In the method usually employed in yeast factories prior to the adoption of the invention, all of the nutrient material was placed in the propagating vat at the beginning of the operation, and such a mash is described in this case as a straight set mash. By the method disclosed in patent 105, this process is abandoned and propagation of the yeast is initiated in a dilute portion of the wort, and thereafter the remainder of the wort of higher concentration is added substantially continuously during the period of propagation.

Patent 106 combines the disclosures of patent 103 and patent 105. There is employed the manipulative feature or patent 105 in the propagation of yeast in a nutrient solution consisting of sugar material and inorganic ammonium salts, together with the neutralization feature of patent 103.

The detailed description of the patents in suit and a discussion of the defenses of invalidity and infringement may be considered most conveniently in the following order: Patent 105, patent 106, and patent 102.

Patent 105.

The important feature of the process disclosed by this patent relates to the method in which the mash or wort is introduced into the propagating vat. A feeding process, referred to in the testimony as the Zulauf feed, is prescribed, whereby a comparatively small part of the nutrient solution is diluted, placed in the vat and seeded with yeast, and, after it has begun to grow and propagate, the remainder of the wort is fed in gradually to supply its increasing needs. As we shall see, this change has been accompanied by a great increase in the yield of yeast from raw material in the modern yeast factory.

The experts now agree that, in the growth of yeast, it is desirable to have neither too much nor too little of the necessary foods. During the propagating period, the microscopic organism of yeast grows to a certain maturity, and then divides or splits to form additional cells, so that under ideal conditions there is a progressive geometric increase in the number of cells until all the nutritive material has been consumed. It is obvious that, unless sufficient food is produced for the growing organisms, they cannot thrive to the best advantage. On the other hand, it is equally important that not too great an amount of food be introduced. There must be sufficient space in the propagating vat to enable the respective cells to reach maturity without undue interference with each other; for it is known that, in the course of growth, the cells excrete alcohol and carbonic acid gas, which have a poisonous effect when present in too great quantities upon other cells in the neighborhood. Furthermore, it is equally well settled that too great a supply of sugar material will bring about the production of more alcohol than the yeast can assimilate and thereby retard the growth of the yeast. It has been picturesquely said that the Hayduck procedure avoids the extremes of feast and famine, and that it aims to maintain throughout the period of propagation an optimum concentration of materials.

The specification expressly declares that the patent relates to a low alcohol yeast process. Prior workers in the field, it is admitted, had already pointed out that, to accomplish this purpose, the wort should be diluted to such an extent that the alcohol produced from the sugar could be assimilated by the yeast as nourishment. It had also been disclosed by the Rainer patent, hereinafter discussed at length, that one method of achieving the desired result was to add the peptone (nitrogenous material) continuously, and the sugar at intervals as required. The particular method disclosed by the Hayduck specification is substantially as follows: A wort having, for example, a gravity of 12° Balling is prepared according to the procedure commonly followed in the industry. A part of the wort is placed in the vat and highly diluted, for example, to about 1° Balling. Seed yeast is added and aeration follows. Thereupon the remainder of the concentrated wort is added slowly and substantially continuously at such a rate that the alcohol formed in both portions of the wort is immediately assimilated by the yeast. The quantity of the diluted wort originally placed in the vat is so chosen that the mean content of the entire wort would be from 3° to 5° Balling.

The patentee states that by this method the yeast is constantly given new supplies of all nutriment necessary for its propagation, and there is always a wort concentration by means of which the nutriment is absorbed most efficaciously and quickly by the yeast. In other words, there is offered the advantage of great dilution, while the concentration of the wort calculated for the entire quantity remains the same. The advantage of this procedure is contrasted with that customarily used in the manufacture of yeast, for therein propagation begins in a relatively concentrated solution and the concentration is decreased gradually during propagation.

The plaintiff relies on all the claims of the patent, of which claims 4, 6, and 10 are considered typical. They are as follows:

"4...