Kwik Set v. Welch Grape Juice Co.

• Decision Date: 07 December 1936
• Docket Number: No. 118.,118.
• Citation: 86 F.2d 945
• Parties: KWIK SET, Inc., v. WELCH GRAPE JUICE CO.
• Court: U.S. Court of Appeals — Second Circuit

86 F.2d 945 (1936)

KWIK SET, Inc., v. WELCH GRAPE JUICE CO.

No. 118.

Circuit Court of Appeals, Second Circuit.

December 7, 1936.

Leonard S. Lyon, of Los Angeles, Cal., Richard W. Treverton, of Buffalo, N. Y., and Bean, Brooks, Buckley & Bean, of Buffalo, N. Y., for appellant.

George Mankle and Wallace R. Lane, both of Chicago, Ill., and John S. Powers, of Buffalo, N. Y., for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

This patent is for a "Dry Powdered Jelly Base Containing Pectin and Sugar and Process of Making Same," granted October 18, 1927. Claims 1 and 2 were held valid and infringed; they will be found in the margin.¹ Kwik-Set, Inc., v. Welch Grape Juice Co. (D.C.) 14 F.Supp. 137.

Claim 1 describes a jelly base composed of powdered pectin and sugar, the sugar being finely divided and varying in proportion to the pectin in the ratio of from 1 to 1, 1 to 50. Claim 2 describes a jelly base composed of acid powdered pectin and finely divided sugar in a ratio of pectin varying from 1 to 1, 1 to 50, ratio of acid to pectin, of from 1 to 1, to 1 to 4. The only difference in the claims is the inclusion of acid in claim 2. The addition of acid is dependent on the absence of sufficient acid in the fruit juices which is utilized in jelly making. The claims are directed to a mixture such as will render the pectin readily soluble when used in the preparation of jelly.

The patent teaches nothing new about jellifying powder of pectin or the manufacture of jellies and jams. It depends for validity entirely on the alleged novelty of mixing sugar with pectin as a jelly base. The patent states that the sale of powdered pectin as a jelly was old, but it asserts:

"The powdered preparation offered generally contained pectin or pectinous substances and acid alone. Pectin is by nature a gum, and when wetted on the outer surface it requires much agitation to get it into solution. However, when powdered or granular, and added to water, or when water is added to it, it immediately forms into hard difficultly soluble lumps which take much unnecessary agitation to get into solution."

And, in order to avoid this difficulty, the patentee states he found that the disbursing substance or medium which would give the proper ratio of entering the solution to the pectinous substance was a finely granulated or powdered sugar. Thus the invention is for mixing pectin and sugar ground fine within specified ranges. The combination of pectin or pectose and sugar ground fine was old. Indeed, the court below said that:

"Camus and Jux & Ferrand, both teach the mixture of pectin with sugar to obtain solubility to form a jelly base. Both are within the ratio stated in claims 1 and 2."

The French patent No. 167,436 to Camus was granted July 15, 1885, and was entitled "Procedure for the extraction and concentration of the juices of fruits and vegetables." It describes the production of pectin from fruits and vegetables by the local precipitation process. The pectin is then dried and mixed with sugar in the proportions of 30 grams per kilogram corresponding to 33 1/3 parts of sugar to one of pectin. This is within the limits of the ratios 1 to 1, 1 to 50, as defined in the claims in suit, and its product was used for the making of jellies and creams.

The French patent to Jux & Ferrand, No. 244,755, granted January 30, 1895, entitled "An Improved Process for the Manufacturing of a Concentrated Extract of the Juice of Fruits, Legumes and in General all Succulent Plants, for use in Making Jellies, Creams, etc," describes a dry mixture of pectin and sugar much like the earlier Camus patent. The inventors direct that the sugar be added to a precipitated pectin prior to drying the pectin and that the mixture of sugar and pectin be then dried. The amount of sugar added by Jux & Ferrand is to be 50 grams of pectin per kilogram of sugar corresponding to 20 parts of sugar to one of pectin. This falls within the ratio of 1 to 1, 1 to 50, as specified in the claims here in suit.

But the argument is that the patent in suit is an invention combining "pectin, known to be pectin," with sugar, an improvement over combining a "supposed pectin" with sugar. This claim is of little force and surely does not rise to the dignity of...