Rickard v. Du Bon
| Decision Date | 25 July 1900 |
| Docket Number | 165. |
| Parties | RICKARD et al. v. DU BON. |
| Court | U.S. Court of Appeals — Second Circuit |
F. T Chambers, for appellants.
W. E Simonds, for appellee.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
This is an action for the infringement of letters patent No. 604,338 granted May 17, 1898, to the complainants, for 'improvement in the art of treating tobacco leaves. ' The invention 'relates to the art of treating tobacco leaves which are employed as wrappers for cigar,' and purports to have for its object 'a process for treating the leaves of a growing plant in such a manner and by such means as to provide for producing a wrapper of superior quality. ' The treatment described in the specification consists in applying to the leaf, while the plant is still growing, preferably by means of atomizers, about the time the leaves have reached their maturity, 'chemicals belonging to the alkaline group, such as potash, and at the same time such chemicals as have a considerable affinity of application, whereby sufficient vitality will be left in such spots to allow for absorption and assimilation of the chemical throughout the leaf, and to prevent the spots from becoming brittle. ' The specification states that 'the best mixture found available for the purpose is a combination of potash and glycerin,-- the potash having the important property of promoting or increasing the burning quality of the leaf, while the glycerin maintains the spot soft and pliable, so as to maintain the usefulness of the leaf as a wrapper,'-- and recommends solutions of caustic potash, known commercially as 'Babbitt's Caustic Lye,' varying from 16 ounces to 32 ounces per gallon of water with or without the addition of glycerin in the proportion of about 1 pint of glycerin to 10 gallons of the solution. It also contains this statement:
'Other agents may be such chemicals as absolute alcohol, with or without glycerin, lime, or the like; but it will, of course, be understood that any means may be employed for securing the two results emphasized, namely, the increasing of the burning quality of the leaf, and causing the spots to remain soft and pliable.'
The claims are:
The defendant treated a crop of tobacco by spraying the leaves, when they were about ripe and ready for cutting, with a solution of about one pound of caustic soda (commercially known as 'Banner Lye') to a gallon of water, with a small admixture of molasses, sugar, and glycerin.
The court below was of the opinion that the patent was void for want of utility, 'except to deceive,' unless it could be sustained as one for a process of treatment by ingredients which would promote the burning quality of the leaf; and, without deciding that it was not void for want of utility, held that the treatment by the defendant was not an infringement of the claims, as neither caustic soda, nor any other ingredient of the mixture, was a combustion promoting agent. The court accordingly dismissed the bill. 97 F. 96.
We are of the opinion that neither the treatment applied by the defendant, nor that described or advised in the patent, has any tendency to promote the burning quality of the leaf, or to improve its quality in any respect, and that the only effect, if not the only object, of such treatment, is to spot the tobacco, and counterfeit the leaf spotted by natural causes.
The notion has long prevailed with a numerous class of smokers that cigars having spotted wrappers are superior to those without them. This notion is a pure delusion. It originated and has been propagated by the coincidence that much choice tobacco is spotted, being raised in localities where this characteristic is imparted by natural causes, although without improving or impairing the quality of the leaf. The origin of the spots has been referred to various causes by different authorities; the most rational explanation being that in some localities they are produced by the stings of insects, and in others by the action of the dew. So extensively has this erroneous notion obtained in this country and in Europe among consumers, that for many years spotted wrappers have commanded a considerably higher market price than unspotted; and dealers in tobacco, to meet the demand and obtain the higher price, have been accustomed to spot their leaves artificially, by spraying them with acids or chemical mordants.
As is stated in Tobacco Trade Review, in an article published in 1885:
'Of course, it was impossible to supply the demand for cigars having this natural characteristic; but, fortunately for manufacturers, science stepped in, and a common vinegar cruet, filled with muriatic acid, secured the desired result.'
Until shortly before the patent in suit was applied for, cigar manufacturers and dealers in tobacco seem to have monopolized the counterfeiting of spotted tobacco; but in course of time the tobacco growers, seeking to share the illicit profit began to spot their crops. So far as appears, they had not done so extensively before the date of the application for the patent in suit; but prior to that date Connecticut growers were sprinkling their crops, before the tobacco was cured, with solutions of acids. The patentees began their experiments in Ohio in 1893. They commenced by spotting leaves that had...
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