Karesh v. Shell-On Sol-Ted Peanut Co.

• Decision Date: 18 February 1927
• Citation: 17 F.2d 496
• Parties: KARESH et al. v. SHELL-ON SOL-TED PEANUT CO. et al.
• Court: U.S. District Court — District of Maryland

17 F.2d 496 (1927)

KARESH et al. v. SHELL-ON SOL-TED PEANUT CO. et al.

District Court, D. Maryland.

February 18, 1927.

Matthew Gault, Richard F. Cleveland, and Harry H. Semmes (of Semmes, Bowen & Semmes), all of Baltimore, Md., for plaintiffs.

Edwin F. Samuels, of Baltimore, Md., for defendants.

SOPER, District Judge.

Hyman Baker, the patentee and original plaintiff herein, died pending the trial of the case. The present plaintiffs are the executors of his estate, and were substituted by appropriate proceedings. The patent in suit is the patent to Frank Baker and Hyman Baker, granted August 9, 1910, on an application filed September 25, 1909. By subsequent conveyances, the entire interest in the patent was vested in Hyman Baker. The patent relates to a process of salting peanuts in the shell, and is particularly directed to a method of producing salted peanuts without the removal of the nuts from the shells, thereby insuring absolute cleanliness and purity of the finished product. The specification states that in the usual method, the shells are first removed and the nuts boiled in a saline solution. This method is said to be objectionable, as it exposes the nut to any existing deleterious influences, and produces an indigestible product as a result of the boiling. The invention is designed to obviate these objections, and is furthermore a distinct advantage from a commercial standpoint, since it avoids the necessity of shelling the nuts or the use of a heated solution.

In carrying out the process, the nuts in their original green state are placed in a suitable container, to which the desired quantity of saline solution is added. Pressure is then applied which, in the green condition of the shells, readily forces open the pores of the shells and introduces the saline solution. Then the nuts, while still in the shells, are subjected to the action of heat to evaporate the liquid within the shells, and the nuts are then roasted in the usual manner.

The specification shows a simple illustrative type of apparatus for carrying out the improved method. It consists of a container or cylindrical vessel of appropriate size of a material to resist pressure, having preferably a lining of material such as brass, which is not affected by the solution. The cylinder is closed at the lower end and open at the upper end. A cylinder head or follower is arranged therein, having an airtight connection with the interior surface of the cylinder. The nuts and saline solution are introduced into the cylinder to induce that pressure on the solution which will compel the latter to enter the pores of the shells without breaking them.

There are eight claims in the patent, of which the following may be taken as illustrative:

"1. The herein described method of treating nuts while in the shell consisting in introducing the treating solution while cold through the pores of the shell by pressure.

"2. The herein described method of treating nuts while in the shell consisting in immersing the nuts with their shells unbroken in the treating solution, subjecting the nuts and solution to pressure to simultaneously force the air from the shells and introduce the solution therein, and evaporating the shell contained liquid."

"4. The herein described method of salting peanuts, consisting in immersing the nuts with their shells unbroken in a cold saline solution and subjecting the nuts and solution to pressure sufficient to force the solution into the nuts."

"7. The herein described method of salting nuts consisting in immersing the nuts with their shells unbroken in the treating solution, subjecting the nuts and solution to a pressure sufficient to force the solution into the nut through the shell without disrupting the shell."

The main contention of the defendants is that the patent is invalid for lack of invention, as shown by certain evidence of prior public use, and by certain patents in the prior art cited in anticipation. The evidence of prior use is entitled to but little consideration. It relates, in the first place, to a process described in the Potter patent, hereinafter discussed, of salting peanuts in the shell by boiling them in a saline solution. A second method was mentioned in certain hearsay testimony of the defendant Sawkins. It consisted of submerging nuts, such as pistachio nuts or chesnuts, in a covered vessel containing a cold or unheated solution. No pressure was added to that caused by the atmosphere and the solution by which the nuts were surrounded. It is sufficient to say that this evidence is too inconclusive to establish the facts described, even if they showed, as they do not, an anticipation of the Baker invention.

More emphasis may be put upon the disclosures of the art as shown by prior patents. The file wrapper of the patent in suit shows that the claims were first rejected on the patent to Potter and the patent to Moyer, each of the year 1902. The Potter patent covers a process for salting peanuts in the shell. The nuts are placed in raw condition in water, to which salt has been added, and then boiled so that the salt permeates the shells. After the boiling has been sufficiently done, the nuts are removed from the water and dried and roasted while still in the shell. The Moyer patent also relates to a process for salting peanuts in the shell. The primary and essential step is the injection of brine through a perforation in the shell of the nut made by the pointed nozzle of a plunger designed to effect the introduction of the solution. It is necessary to penetrate the shell of every nut. Afterwards the surplus fluid is evaporated by placing the nuts in a dryer, and finally the nuts are roasted.

The examiner cited these patents, and said in addition that the process of impregnating articles of food with a preservative, through the pores of the containing shell, is old in the patent to Green of 1903, which covers a process for preserving eggs. The air inside the shell is first exhausted; then an antiseptic, preferably sulphur fumes, is applied so as to enter the eggs through the pores of the shells. The fumes in turn are removed, and a liquid filler, such as soluble glass, is used to close the pores.

The examiner further said that the broad idea of impregnating organic matter with a salt solution under pressure is very old in the art of preserving, and it is also old to subsequently dry impregnating articles, as in wood saturation. He thought that, if there was an invention, it rested in the specific conditions under which, in the patent in suit, the whole process is carried out. He suggested that the pressure must be applied under conditions which would avoid breaking the shells and would replace the air within by a salt solution, continuing the pressure until the meat of the nuts is salted.

Certain amendments of the claims were then made, and the applicants pointed out the differences between the process of their invention and those involved in the prior art. It was shown that the preliminary step of boiling the peanuts in the Potter process is eliminated, and instead the impregnation of the nuts is accomplished by pressure. The separate perforation of the shell of each peanut, as in the Moyer process, is also avoided. The penetration of the shells of the peanuts is caused by pressure, and not by creating a vacuum as in the Green process. Furthermore the impregnating substance is not withdrawn, as in the latter process, but is introduced and remains on the inside of the shells while the air is simultaneously expelled. The shells are not coated to prevent the further entrance of air.

The applicants admitted that it was not new to impregnate a porous material with a liquid, but argued that it was new to use the particular liquid, to wit, a saline solution, to treat a particular product, to wit, nuts while in the shell, and to use pressure for the dual purpose of forcing air from the interior of the shells and at the same time forcing the liquid into the shells while preserving the shells unbroken. It is a fact that there is nothing in the record in the Patent Office or in the record in this court to show an anticipation of the impregnation of an article of food by pressure through the pores of an inclosing shell.

The defendants now contend that three of the steps of the process of the patent in suit are specifically anticipated in the Potter and Moyer patents, to wit: (1) the saturation or impregnation of the peanuts in brine; (2) the drying of the nuts so as to evaporate the surplus moisture; and (3) the roasting of the nuts. The only step which is contained in the Baker patent, and is not found in the Potter and Moyer patents is the application of pressure to the saline solution. This step, the defendants contend, is found in quite a number of prior patents introduced in evidence. Of these it is necessary to refer only to three, to wit, two patents to Wheat of 1878, and the patent to Payne of 1850. The Wheat patents relate to a process for salting and curing meats by means of cold solutions. The meat is placed in a receptacle filled with brine, and subjected by means of a pump to pressure within the receptacle in an amount preferably of 75 pounds to the square inch. The pressure is alternately increased and decreased during several periods, during which the meat is thoroughly impregnated. The Payne patent relates to a process for preserving wood or vegetable matter, which is placed in a strong vessel capable of bearing considerable pressure. As good a vacuum is obtained as possible so as to exhaust the air from the fibers. The vessel is then filled with a preserving solution and allowed to stand for a short time, and then, by the use of force pumps or by columnal pressure, the liquor in the vessel is...