GREEN
J.
This
suit is brought to restrain an alleged infringement of
reissued letters patent No. 9,129, granted to Frederick C
Mussgiller and
Robert W. Schedler, on March 23, 1880, for a 'new and
useful improvement in treating beer and other liquids. '
The claim is stated thus:
'The
process of charging beer and other liquids of a similar
nature with carbonic acid, by dropping into and through the
liquid, lumps of bicarbonate of soda, or of other alkali,
thereby causing the acid discharged from the lumps to pass
through the entire column of liquid, substantially as
specified.'
The
specification is as follows:
'This
invention consists in treating beer and other liquids of a
similar nature with lumps of bicarbonate of soda, or of
other alkali, said lumps being compacted by means of a
suitable cement, so that they are heavy enough to at once
drop through the liquid to be treated, upon the bottom of
the vessel containing the liquid. The carbonic acid evolved
from said lumps is thus compelled to permeate the entire
column of liquid above it, and at the same time to give up
the requisite quantity of alkali matter. Together with the
lumps of bicarbonate of alkali may be used lumps of
tartaric or other suitable acid, compacted in the same
manner as the lumps of bicarbonate of alkali, so that
the.amount of carbonic acid evolved from the latter can be
easily controlled. It is a common practice with brewers and
others to use bicarbonate of soda, either alone or together
with tartaric acid, in the manufacture of beer, sparkling
wines, and other effervescent liquids, for the purpose of
increasing the life of such liquids. The mode of applying
such article or articles-- by brewers, for instance-- is to
apply about one ounce of the bicarbonate of soda to each
quarter barrel with a table spoon, the bicarbonate being in
the form of a powder. The powder, on being thrown into a
barrel of beer, will at first float on the surface of the
liquid, and immediately evolve carbonic acid, a large
portion of which is lost, together with the beer which is
thrown out by the action of the acid before the barrel can
be closed by a bung. Besides this, the operation of filling
barrels is carried on in a great hurry, and a large
quantity of the bicarbonate of soda handled with a spoon is
spilled over the barrel and wasted. Like defects occur in
the use of tartaric acid in crystals when applied together
with powdered bicarbonate of soda. These disadvantages we
have obviated by preparing the bicarbonate of soda or of
other alkali and the acid in solid lumps of such weight
that the lumps at once drop through the liquid upon the
bottom of the vessel, and give off the carbonic acid to the
entire column of liquid, and no only, as heretofore, to the
upper stratum. These lumps we produce by mixing powdered
bicarbonate of alkali with a suitable cement, such as a
solution of dextrine, and them compressing the same in
moulds of suitable size and shape. Lumps of acid are made
in like manner. The advantage of using the bicarbonate of
alkali, either alone or in connection with acid, in this
shape, is perceptible at once. The lumps, being in compact
form, when dropped into a barrel filled with beer, ale, or
other liquid, will at once sink to the bottom, and the
carbonic acid evolved from them is forced to stay in the
liquid. The barrel can be easily closed by the bung without
losing a particle of carbonic acid or of beer, and the said
lumps can be introduced into the barrel without any waste.
Besides this, the weight or size of our lumps so so gauged
that each barrel will receive the exact quantity of
bicarbonate of alkali and of acid required, and that the
liquid in a number of barrels, after having been treated
with the bicarbonate of alkali, with or without acid, will
be of uniform quality.'
The
validity of this patent was established by this court in the
case of Zinsser v. Kremer, 39 F. 111. In that case
the patent was attached upon the grounds of want of inventive
novelty, and of prior use. In rendering the opinion of the
court upon the first of these issues, Judge BUTLER, then
holding the circuit court for the district of New Jersey,
uses this language:
'The inventive novelty claimed consists in passing
compacted lumps of bicarbonate of soda or other alkali
through beer and similar liquids, in casks, and depositing
the same at the bottom, where it will slowly dissolve, and
the carbonic acid evolved be distributed equally throughout
the liquid. The treatment of beer and other liquids with
bicarbonate of soda was not new. It was in common use, and
had been for a long time. The method employed, however, was
that of dropping powdered bicarbonate on top. This was
attended with serious disadvantages. The liquid was not
thoroughly permeated, and the powder floated on top instantly
evolved acid in quantities so large as to cause overflow
before the cask could be closed. The patentee sought for
means to obviate these disadvantages. He saw that if the
bicarbonate could be deposited at the bottom of the liquid,
and its dissolution retarded, the entire contents of the cask
would be equally treated, and the loss from overflow be
avoided. He further saw that, if the bicarbonate could be
compressed into solid lumps, it would pass to the bottom when
dropped, and the dissolution also be retarded. Experimenting
with this method, he found the result beneficial and
satisfactory. Thereupon he applied for and obtained the
patent. The novelty thus exhibited seems quite sufficient to
sustain his claim. It is true that nothing more is done than
charging the liquid with carbonic acid gas, and this had been
done before; but he does it in a different way, and with
different results, producing a better article more
economically, avoiding all waste.'
On the
second issue he also found in favor of the complainant
holding that while there was some evidence of such 'prior
use,' yet the evidence clearly showed that such use was
strictly secret, and, as such, availed not as against the
rights of the patentee. The result was a decree in favor of
the complainant. In this case, the complainant, invoking the
doctrine of stare decisis, contends that such decree is
binding, and cannot be disregarded; that all discussion as to
the validity of the patent in controversy is finally closed;
that the only open issue is that of infringement, and, so far
as this defendant is concerned, even that issue must be found
against him, as the proofs show a...
