Model Bottling Machinery Co. v. Anheuser-Busch Brewing Ass'n

• Decision Date: 18 September 1911
• Docket Number: 2,831.
• Parties: MODEL BOTTLING MACHINERY CO. v. ANHEUSER-BUSCH BREWING ASS'N. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

190 F. 573

MODEL BOTTLING MACHINERY CO. v. ANHEUSER-BUSCH BREWING ASS'N. ^[1]

No. 2,831.

United States Court of Appeals, Eighth Circuit.

September 18, 1911

Hugh K Wagner, for appellant.

George H. Knight and C. C. Linthicum (Howard G. Cook and Nagel &amp Kirby, on the brief), for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WM. H. MUNGER District Judge.

WM. H MUNGER, District Judge.

This action is based upon an alleged infringement by defendant of letters patent No. 607,304, pertaining to a mechanical apparatus for pasteurizing beer, and for the infringement of a process for pasteurizing beer covered by letters patent No. 768,550; said patents issued to E. Wagner, and complainant being assignee of the patents. Patent No. 607,304 was issued July 12, 1898. The claims in this patent are as follows:

'1. In an apparatus of the character described, the combination of a tank, a pair of endless chains, sprocket-wheels in engagement with which said chains are adapted to travel, bottle-receiving receptacles pivoted to said chains, and means for driving said chains, substantially as described.

'2. In an apparatus of the character described, the combination of a tank, a pair of endless chains, sprocket-wheels in engagement with which said chains are adapted to travel, bottle-receiving receptacles pivoted to said chains, said receptacles comprising U-shaped bars and cross-bars arranged on corresponding sides of said U-shaped bars, and means for driving said chains, substantially as described.

'3. In an apparatus of the character described, the combination of a tank, divided into three compartments for warm, hot, and cold water, a conveyer arranged to travel through said compartments, said conveyer comprising a pair of endless chains, and bottle-receiving receptacles pivoted to said chains, sprocket-wheels in engagement with which said chains are adapted to travel, means for driving said chains, and a spray-pipe arranged to direct a spray of water onto the bottles in the conveyer after they leave the hot-water compartment of said tank, substantially as described.'

In the specifications it is stated that the apparatus is designed to pasteurize beer, by placing the bottles containing the beer into the bottle-receiving receptacles, thence carried continuously through the tank containing three compartments, the first of which contains warm water, the second compartment water of sufficient temperature to pasteurize the beer, the third containing cold water for the purpose of cooling the bottles. The patent is for an apparatus or machine to effectuate the pasteurizing process, and nothing more.

The first specification, the only one claimed to be infringed, is a combination of old and well-known devices, consisting of a tank, a pair of endless chains used in connection with sprocket-wheels, adapting said chains to travel, bottle-receiving receptacles pivoted to said chains, and means for driving said chains.

One of the defenses interposed is that this patent is void because of prior anticipation. Numerous patents are cited and have been introduced in evidence to support such defense. We regard it, however, as unnecessary to review but one-- British patent No. 5065, issued to one George Leach, under date of November 19, 1881.

The Leach apparatus, designed for the curing of fish, was a combination of the same mechanical elements as complainant's, namely, a tank divided into three compartments, a pair of endless chains in connection with sprocket-wheels by which said chains were moved, carrying receptacles attached to the chains, and means for driving the chains. The operation of Leach's apparatus was by placing the fish to be cured in the receiving receptacle attached to the chains, and by the movement of the chains they were first immersed and cleansed in the first compartment in the tank, which contained water, then transferred to the second compartment, containing hot water, and from thence into the third compartment, containing oil.

We can perceive of no difference in the machine or apparatus of complainant and that of Leach, or in their operation, excepting that the receiving receptacle in Leach's is in form tubular, in which bottles would have to be placed horizontally, while in the complainant's apparatus the bottles can be placed perpendicularly. But such a change in form of the receptacle in these respects is one which would readily suggest itself to a person of ordinary mechanical skill.

The art of curing fish and pasteurizing beer to preserve it are analogous. Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Roberts v. Ryer, 91 U.S. 150, 23 L.Ed. 267. Hence complainant's apparatus for pasteurizing beer is but a double use of Leach's apparatus for curing fish. For such reason, the first claim of complainant's patent No. 607,304, alleged to be infringed, is void. Crescent Brewing Co. v. Gottfried, 128 U.S. 158, 9 Sup.Ct. 83, 32 L.Ed. 390; Aron v. Manhattan Ry. Co. 132 U.S. 84, 10 Sup.Ct. 24, 33 L.Ed. 272; Thomson-Houston Electric Co. v. Rahway Electric L. & P. Co. (C.C.) 95 F. 660; W.F. Burns Co. v. Mills, 143 F. 325, 74 C.C.A. 525; American Brake Shoe & Foundry Co. v. Railway Materials Co. (C.C.) 143 F. 540.

The process patent is also alleged to be void because of prior anticipation. In determining this defense it becomes important to ascertain the date from which complainant is entitled to have the application for such patent considered as having been first made, as the state of the prior art is to be considered from the date of the application. The chronological order in which applications were made for the several patents of complainant, and the proceedings connected therewith, in the Patent Office, appear to be as follows:

Application for patent No. 607,304 was filed January 3, 1898, and patent issued July 12, 1898. The application was entitled 'For the Improvement in Beer Pasteurizing Apparatuses,' and was for the machine or apparatus before considered. June 30, 1899, an application was filed in the Patent Office for an improvement to said machine and for the process of pasteurizing beer. This application was ordered divided by the Patent Office, and the application proceeded as one for an improvement in the machine mentioned, which resulted in a patent for such improvement being granted of date July 24, 1900. The date when the order of division was made does not appear, but on June 2, 1900, an application for the process patent was filed. After rejection was made by the examiner on the ground of anticipation, an appeal was taken from the examiner to the board of examiners, and from that board to the commissioner; each sustaining the decision of the examiner. An appeal was then taken to the Court of Appeals for the District of Columbia, which reversed the decision of the Commissioner and sustained the application; the process patent being thereafter issued under date of August 24, 1904.

Complainant contends that it is entitled to have the application for the process patent treated and held as a continuation of the application for the machine patent filed January 3, 1898, and its validity determined from the state of the art at that date. That one application for a patent may be a continuation of a prior application for the same thing under certain circumstances is unquestioned.

In Hayes-Young Tie Plate Co. v. St. Louis Transit Co. 137 F. 80, 70 C.C.A. 1, this court had for consideration the question as to when one application for a patent might be considered a continuation of a former application for the same thing. It was said:

'There is a wide difference between the abandonment of an invention and the abandonment of an application for it. An abandonment of an application is not necessarily an abandonment of the invention, and after the application has been abandoned a valid patent for the invention may nevertheless be secured upon a new application, provided the invention has not gone into public use or been upon sale for more than two years prior to the filing of the latter. In cases in which the first application has not been abandoned, subsequent applications and amendments constitute a continuance of the original proceeding, and the two years' public use or sale which may avoid the patent must be reckoned from the presentation of the first application, and not from the filing of subsequent applications or amendments (citing cases). But the abandonment of an application destroys the continuity of the solicitation of the patent. After abandonment, a subsequent application institutes a new and independent proceeding, and the two years' public use or sale which may invalidate the patent issued upon it must be counted from the filing of the latter application (citing cases).'

The case before us does not involve the question of abandonment...