104 F. 87 | 7th Cir. | 1900
after making the foregoing statement, delivered the opinion of the court.
The appellant’s patent, issued on the application of Joseph Van Ruymbeke, is for a product stated in the single claim of the patent as a ‘‘nitrogenous fertilizing material consisting of the undecomposed coagulated albuminoids of concentrated tank-waters freed from undue deliquescence and viscidity.” The validity of the patent rests primarily on the assumption that Van Ruymbeke made the discovery of a new composition of matter; that, utilizing the waste tank-waiter which came from the rendering operations of slaughter houses, he produced a valuable fertilizer, through chemical action theretofore unknown. The process employed is not protected by patent, as the application for that object was rejected by the patent office; but the patentee is, nevertheless, entitled to the broader protection of his product for which the patent was finally allowed, if it be true that it is his discovery in the sense of the patent law, provided the means and method of production are clearly set forth. When a new article, a new property in the composition of matter, is thus brought to light for the enrichment of the world’s knowledge and uses, the statute intends that the discoverer may be rewarded with exclusive rights to make and sell the article during the moderate term for which the patent is granted; and, as remarked in Merrill v. Yeomans, 94 U. S. 568, 571, 24 L. Ed. 236, this right prevails over an infringing article, “however produced.” This broad monopoly can be granted for a true discovery only, and not for the mere improvement of a known composition. The “mere carrying forward, or new or more extended application of the original thought; a change only in form, proportions, or degrees; the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means, with better results, — is not such invention as will sustain a' patent.” Smith v. Nichols, 21 Wall. 112, 119, 22 L. Ed. 567; Grant v. Walter, 148 U. S. 547, 553, 13 Sup. Ct. 701, 37 L. Ed. 557. And this rule is strictly applicable where the claim of the patent is for a new substance or composition of matter. .
The contention on behalf of the appellant is thus stated in the brief of its counsel:
“Dr. Van Ruymbeke, the patentee, made a discovery in chemistry, to wit, that the application of sulphate of iron or green copperas would coagulate the gelatinous substances or albuminoids of the solids held in solution in ‘tank-water,’ which enabled him to utilize all of the solids in tank-water by evaporation, and render them non-viscid and non-deliquescent, without applying a high degree of heat. By this process he made a waste product valuable, and corrected the sanitary conditions surrounding all the packing houses.”
If the testimony sustains this contention within the rules above indicated, the patent is sustainable, unless the description of the process is fatally defective; and in that view it would be questionable, to say the least, whether substantial difference in the appellee’s process would save its product from infringement. The nature of the discovery must, therefore, be ascertained in the light of the prior state of the art. As usual in the expert testimony furnished in patent causes, the opinions of the chemists called on one side and the
The application for the process of the patent in suit was filed July 27, 1885. (1) In 1863 letters patent No. 38,040 were issued to Gale for a process of making a fertilizer by combining phosphatie guano “with animal matter previously converted into ammoniacal products”; and for the treatment of the latter distinctly specifies the use of cop-peras (sulphate of iron), with a small proportion of sulphuric acid, and then boiling down the mixture “until the animal matter shall be broken down, and reduced to a gelatinous mass.” These ingredients and the method set forth are quite identical with those employed by the appellee in the treatment of tank-water. (2) In 1869 letters patent No. 90,328 were issued to Wilson “for a process of treating offal gelatine and scrap for the manufacture of fertilizers,” and the specifications show that the treatment is applied to the same material which is. here called tank-water, together with such solids as
Of the other prior patents in evidence it is sufficient to remark that cognate use of sulphate of iron, or its well-known equivalents, for like purpose, appeal’s in Shaw’s No. 146,285, Terne’s No. 228,935, and Huet’s No. 242,777; that in Myerson’s No. 163,099, and Strype’s No. 318,826, salts of aluminum are alike employed to coagulate blood; and that North, in No. 165,172, treats tank-water by a high degree of heat, and descubes the fertilizer thus produced as “not at all viscid, but brittle, and only slightly deliquescent.” The contention that these prior patents must be treated as failures — as mere paper patents of no practical value — is untenable. “The very fact” of the grant of a patont for the process described “is some evidence of its operativeness, as well as of its utility,” when introduced by way of anticipation