Rumford Chemical Works v. New York Baking Powder Co.

• Decision Date: 07 July 1904
• Docket Number: 172.
• Citation: 134 F. 385
• Parties: RUMFORD CHEMICAL WORKS v. NEW YORK BAKING POWDER CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

134 F. 385

RUMFORD CHEMICAL WORKS v. NEW YORK BAKING POWDER CO. et al.

No. 172.

United States Court of Appeals, Second Circuit.

July 7, 1904

Appeal from the Circuit Court of the United States for the Southern District of New York.

Philip Mauro, for appellant.

Arthur von Briesen and Paul Bakewell, for appellees.

This action was commenced in the Southern District of New York for the infringement of letters patent No. 474,811, granted to Charles A. Catlin, assignor to the Rumford Chemical Works, of Providence, R.I., May 17, 1892, for improvements in baking preparations. The Circuit Court (125 F. 231) dismissed the bill upon the authority of Glue Co. v. Upton, 97 U.S. 3, 24 L.Ed. 985.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

COXE Circuit Judge.

The patent in suit relates to that class of baking preparations in which the active acid agent is, in whole or in part, some form of phosphoric acid or acid phosphate. Broadly stated the invention consists of a baking preparation in which the phosphoric acid element is, practically, in a granular condition free from pulverulent phosphatic material. The patentee asserts that this granular material possesses peculiar and distinctive properties and characteristics of great value and is a new product or article of manufacture.

The specification states that baking preparations prior to Catlin's discovery, though in other respects satisfactory, were liable to deteriorate when exposed to the atmosphere, compelling the employment of expensive means in packing to protect them. The aim of the manufacturer had theretofore been to produce the phosphatic element in the finest pulverulent condition possible. Catlin discovered that this condition was not only unnecessary but detrimental to the highest efficiency and that a baking power having the phosphatic element in a granular condition augments leavening efficiency, prevents deterioration of the preparation and increases the slow evolution of the gas, with a consequent increase in baking efficiency. Acid phosphates, particularly when reduced to a fine powder, possess a highly deliquescent property, greedily absorb moisture and produce in any mixture, of which they form a considerable part, a sticky clammy condition. When the acid element is packed separately in the powdered condition, this absorption causes it to harden into a useless crystalline mass. All of these difficulties, the specification asserts, are remedied by using the acid phosphate in a uniformly granular condition namely, a condition where the granules are approximately of such a size that they will pass through a No. 9 silk bolt, but not through a No. 16 silk bolt. The patentee does not, however restrict himself to the method of sifting described or to the particular size of the granules. The claims are as follows:

'(1) A baking preparation containing phosphoric acid or its compounds in granular condition essentially free from pulverulent phosphatic material, substantially as described.

'(2) A baking preparation composed of a phosphoric-acid element in granular form essentially free from pulverulent phosphatic material, in admixture with a carbonate or bicarbonate, as set forth.'

The invention, then, briefly stated consists in substituting granular for pulverulent phosphatic material in baking preparations. The defenses are lack of novelty and invention, abandonment, insufficient description, public use for more than two years and noninfringement. Of these the most important is the question of invention. The court below found this issue in favor of the defendants upon the authority of Glue Co. v. Upton, 97 U.S. 6, 24 L.Ed. 985, confining the discussion principally to the question whether or not the proof sustained the assertion of the specification that the patented preparation produces 'a marked increase in baking efficiency. ' We are not disposed to disagree with the finding of the court below that this assertion has not been established by the proof. We are, however, of the opinion that there is another ground upon which patentability can be sustained, namely, the alteration and improvement in the properties of the material, incident to the change from fine powder to the granulated condition, by which its keeping qualities are enhanced. If this change prevents the preparation from deteriorating and keeps in a condition of high efficiency and continued usefulness that which would otherwise spoil and become a useless mass, it would seem that enough has been shown to support the patent. A baking powder which, on being exposed to the atmosphere, acquires a sticky, clammy condition, certainly loses its baking efficiency. If it will not keep, it will not bake. If, then, the patentee has produced a preparation that will retain all its useful properties to the end without resort to expensive and inconvenient means of preservation, he has certainly made a discovery which entitles him to consideration.

There can be no doubt that one of the principal difficulties which the complainant encountered in its long experience in phosphatic baking powders was the liability of the preparation to deteriorate upon exposure to the atmosphere-- it would not keep. Was Catlin the first to remedy this difficulty and did it require an exercise of the inventive faculty to accomplish it? It seems that he was the first to conceive the idea which culminated in success. The word 'granular' appears over and over again in the prior art, but never in the sense in which Catlin employs it. There is no indication to the chemist that the granular, coarse or brittle powder mentioned in the prior patents, in combination with the other ingredients necessary in a baking powder would produce the phenomena referred to. The effort of the prior art was to avoid coarse, gritty particles in...