Mead Johnson & Co. v. Hillman's, Inc.
| Decision Date | 06 July 1943 |
| Docket Number | No. 8192.,8192. |
| Citation | 135 F.2d 955 |
| Parties | MEAD JOHNSON & CO. v. HILLMAN'S, Inc. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bertha L. MacGregor, of Denver, Colo., Chritton, Wiles, Davies, Hirschl, Schroeder & Merriam, Russell Wiles, Geo. A. Chritton, and Jules L. Brady, all of Chicago, Ill., for plaintiff-appellant.
Wm. McSwain, of Chicago, Ill., S. Warwick Keegin and Semmes, Keegin, Beale & Semmes, all of Washington, D. C., and West & Eckhart, of Chicago, Ill. (Lee M. Robinson, of Washington, D. C., of counsel), for defendant-appellee.
Before SPARKS, and KERNER, Circuit Judges, and LINDLEY, District Judge.
Plaintiff charged defendant with infringement of Patent No. 1,990,329, now owned by the plaintiff, issued on February 5, 1935, to Lambert D. Johnson and others. Infringement of Claims 5 and 61 of the patent was charged by reason of defendant's sale of Gerber's Cereal Food and Gerber's Strained Oatmeal, manufactured by Gerber Products Company of Fremont, Michigan.
The principal defense was invalidity and non-infringement. The District Court found infringement, but concluded that the claims were invalid because of Braunbeck United States Patent No. 1,011,730, related Braunbeck British Patent No. 9528, and in view of the general knowledge in the cereal art. Accordingly the complaint was dismissed for want of equity. To reverse the decree, plaintiff appeals.
The product of the patent is a dry, pre-cooked cereal in the form of small fragile flakes, suitable for infant feeding, which the plaintiff manufactures in accordance with the preferred procedure set out in the patent and which since 1933 it has been selling to the public under the name of "Pablum." It is manufactured by mixing several ground raw cereals and certain additive ingredients with a predetermined quantity of water and then thoroughly cooking it in a closed steam jacketed pressure cooker, after which it is dried by means of drum driers or drying rolls.
In 1939 Gerber Products also began selling its ready-to-eat infant's cereals. These cereals are thin fragile flakes of the same general type as those of Pablum. They differ, however, from plaintiff's product in that the Cereal Food is composed principally of wheat and the Strained Oatmeal, of oatmeal.
From the record we learn that ease and rapidity in the digestion of a cereal food and the ability of the food to hold a large ratio of water in suspension are important factors where the food does not stay in the digestive tract as long as normally because of some upset condition; that a cereal product suitable for infant feeding should provide the proper calories, have the right distribution of food elements, and be easily digestible, because an infant's first few months of life present a heavy load on a weak and undeveloped digestive system.
Notwithstanding the art of cereal foods is old and that the patent in this case falls within the art, a cereal product can yet be patented and will be sustained where there has been a real contribution to the art. To this art, the plaintiff claims that its patent contributed something different from anything previously known in the art. The thing achieved, says the plaintiff, consisted in producing a mush which is lump-free, holds a very high ratio of liquid in suspension, is readily digestible, and can be instantly prepared for the baby by merely taking a tablespoon or two of the product and adding hot or cold milk.
The record discloses that in 1933 when Johnson et al. filed their application for a patent and in 1935 when the patent was issued, there were already in existence patent grants to Braunbeck covering a process for opening or disintegrating grains, the grains being subjected to a steaming and cooking process of such intensity that the form of the cells was entirely destroyed. Those patents, British Patent No. 9528 issued October 11, 1906 and United States Patent No. 1,011,730 issued December 12, 1911, disclose and describe a thoroughly cooked and dried flour (cereal product) produced by crushing the grain, the product leaving the rollers in the form of disintegrated flakes which are then reduced by a milling process to flour which swells and immediately absorbs a great quantity of water when brought into contact therewith. As observed by the District Court, the principal distinction between the two Braunbeck patents is that in the United States Patent the material scraped off the rolls is "in the form of extremely fine flakes," while in the British Patent the material is scraped off the roll "in the form of an extremely fine skin of even thickness throughout."
The District Court found, and there is evidence supporting the finding, that the process described in the Braunbeck patents and the process in the Johnson patent were substantially alike (in each the grain being subjected to a thorough cooking, the pulp formed by the cooking being fed between the rolls of a double drum drier) and that the products from the rolls of the Braunbeck patents are identical in all patentably significant respects to plaintiff's products, thus anticipating Johnson.
The plaintiff, however, argues that while it is true that the Braunbeck drum product is the same as the Johnson product, the drum product is made by Braunbeck only to get the cooked mush rapidly dried to a state where it can be ground into a flour, and that the Braunbeck patents do not teach its unobvious advantages as an infant's food and the very great convenience of instantly reconstituting it into a true mush when mixed with liquid. In other words, that Braunbeck's product is an intermediate product, unappreciated and not the kind of a disclosure which anticipates a subsequent patent, which specifically teaches the world to make dry pre-cooked cereal flakes with certain definite characteristics and which recognizes and teaches the advantages of such a product as an infant's food.
To be sure, the Braunbeck patents must stand on their own published disclosures and can be considered as teaching the art only those things that...
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