Ward Baking Co. v. Hazleton Baking Co.

• Decision Date: 24 August 1923
• Docket Number: 316.
• Citation: 292 F. 202
• Parties: WARD BAKING CO. v. HAZLETON BAKING CO.
• Court: U.S. District Court — Middle District of Pennsylvania

292 F. 202

WARD BAKING CO. v. HAZLETON BAKING CO.

No. 316.

United States District Court, M.D. Pennsylvania.

August 24, 1923

Knapp O'Malley, Hill & Harris, of Scranton, Pa., and W. B Morton, and R. McD. Allen, both of New York City, for plaintiff.

John H Bigelow, of Hazleton, Pa., and Reed, Meals, Orgill & Maschke of Cleveland, Ohio, for defendant.

WITMER District Judge.

This is the ordinary bill in equity for infringement of two patents of which the plaintiff is the owner by assignment. One of the patents, No. 1,148,328, was granted July 27, 1915, on the application of Henry A. Kohman, Charles Hoffman, and Truman M. Godfrey, as joint inventors, upon an improved process in the manufacture of bread; the other patent, No. 1,151,526, was likewise granted August 24, 1915, to the same inventors for an improvement in yeast-saving composition for use in bread making.

It is charged that the defendant company at its Hazleton plant used in bread making a composition put upon the market and sold to the trade by the Beyers Company of Cleveland, Ohio, known as 'Beyer's Yeast Food,' and that this yeast food embodied the formula set forth, in plaintiff's composition patent, and in the manner infringed both of the plaintiff's patents.

That defendant has been using in bread making at its plant the yeast food, as charged, is admitted. In fact, the Beyers Company has been present at the trial and assisted in the defense against the charge of infringement; hence the essential question remaining is whether the use of the Beyer's yeast food makes defendant liable to plaintiff's charge.

Upon analysis the Beyer's product was found to contain ammonium chloride, calcium sulphate, and potassium bromate, together with a filler, which it will be noted contains the very ingredients claimed to be used in the composition patent, viz.:

(1) 'A new composition of matter for use, associated with yeast, in the making of leavened bread, flour containing in admixture therewith ammonium chloride, calcium sulphate and potassium bromate, substantially as described.'

And in using this composition in bread making embodying potassium bromate, said to be an innocuous oxidizing bromin compound, plaintiff's process patent is said to be also violated in its privileges claimed under its five claims, of which the following has the greatest breadth:

(1) 'The process of making leavened bread, which comprises incorporating an appropriate and innocuous oxidizing bromin compound with the yeast, flour and other ingredients of the dough batch, and fermenting the batch, substantially as described.'

The controversy hinges around the right to use potassium bromate and its equivalent, if any, in yeast fermentation and bread making.

Claim 2 of the patent defines the material used as an innocuous alkali metal salt, etc., and claim 4 specifically specifies potassium bromate as the salt used, and claim 5 defines the proportion of the salt and the flour which has been found by the inventors to be the quantity which gives the maximum result.

Disclaimer is entered in the composition patent to the employment of ammonium chlorid and calcium sulphate, either alone or together, in the manufacture of leavened bread, inasmuch as the use of these materials is not recognized as the result of the joint efforts of the inventors. It is to the use of potassium bromate, either alone or in conjunction with the salts named, that the patentees claim exclusive privileges in yeast composition and bread making for discoveries made in the use thereof.

That useful results are actually obtained in the use of these chemicals, as indicated in the specifications of the patents, is not questioned by the defendant. Indeed, defendant, being a user of them and striving to continue in the use thereof, is not in a position to dispute the utility thereof. Nor has the statement of plaintiff's bread-making expert, Dr. Bacon, been denied where he, in his testimony, speaking of the uses of the chemicals, said:

'The composition is used in the manner described in the patent; that is, it is added usually to the other ingredients of the dough batch right at the start of the bread-making process and it is used either to do one of two things [292 F. 204] -- either to save yeast and obtain a certain conservation of food material, such as flour, sugar, etc., or it may be used to shorten the time of fermentation with a quantity of yeast, and at the same time to effect certain savings in flour, sugar and other material. It is found also that by the use of the material of this kind the whole process of fermentation of the dough is more easily controlled, put in better condition, and the general result is easy control of the bakeshop and a better loaf of bread-- better in color, flavor, bloom, texture, etc.'

The defendant attacks the validity of both patents on the grounds that they are lacking invention and novelty. The burden of disproving validity rests with those preferring the charge. The grant of the patents carries with them the presumption of their validity. The prima facie of validity is so strong that the burden of proof upon a defendant to establish defenses that attack the validity of a patent is the same as that upon the prosecution in a criminal case. Courts are not permitted therefore, to constitute themselves into a board of reviewing examiners and on nicely balanced considerations find that the patent office examiners were in error. The grant of the patent carriers with it the respect due a contract made on behalf of the government by those expert and authorized to act for it in honesty and good faith, and unless proof is forthcoming carrying conviction beyond reasonable doubt to the contrary, its validity will not be impeached. In the light of these observations, the charge of invalidity must be met. As to the defense of anticipation, the defendant shows no prior use of...