The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 24
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256 FEDERAL REPORTER
5. PATENTS 4 312(3)-VALIDITY-INVENTOR.
In a suit for infringement of Burchenal patent, No. 1,135,851, evidence
held to establish that the patentee was the inventor, and to overthrow the
defense that another was the real inventor.
6. PATENTS 4=226-INFRINGEMENT--VAnIATION.
A variation, to negative infringement, must be at least a variation ex-
tending beyond the limits of a valid claim of the patent, read in the
light of the disclosure.
T. PATENTS =259-PRODUCT ' ATENTS-INFRINGEMENT.
A product patent is infringed, if the product complained of is the
patented article substantially as described; it making no difference by
what path or process, new or old, inferior or improved, the infringing
product is manufactured.
& PATENTS 4328--CONSTRUCTION-INFRINGEMENT.
Burchenal patent, No. 1,135,351, for a homogeneous lardlike food prod-
uct, consisting of an incompletely hydrogenized vegetable oil, etc., held
Ward, Circuit Judge, dissenting.
On Petitions for Rehearing.
9. PATENTs 4328--NOVELTY-HYDROGENIZED VEGETABLE OIL LARD.
What is practically lard, consisting solely of one vegetable- oil in a
state of arrested hydrogenation, the product covered by the Burchenal
patent, No. 1,135,351, is a new thing in the sense of the patent law, and
not a lard substitute, so near to existing articles of commerce that the
only field open to patentee was limited to a particular mode of making,
or by specifically stated chemical tests.
Appeal from the District Court of the United States for the South-
ern District of New York.
Suit by the Procter & Gamble Company against the Berlin Mills
Company. From a decree for defendant, complainant appeals. Re-
versed and remanded, with directions.
The action is upon claims 1 and 2 of patent No. 1,135,351, issued
April 13, 1915, to the plaintiff herein, as assignee of John J. Burche-
nal, who is and long has been an officer of the corporate plaintiff.
The claims are as follows:
"1. A homogeneous lardlike food product, consisting of an incompletely hy-
drogenized vegetable oil.
"2. A homogeneous lardlike food product, consisting of incompletely hydro-
genized cotton seed oil."
The court below held in substance:
(1) The disclosure did not amount to invention;
(2) If there was invention, Burchenal was not the inventor; and
(3) Upon a proper construction of the claims in suit there was no infringe-
The bill was accordingly dismissed, and the plaintiff took this ap-
Livingston Gifford, of New York City, Alfred M. Allen, of Cin-
cinnati, Ohio, and Thomas B. Kerr, of New York City, for appel-
John C. Pennie, of New York City, and Marcus B. May, of Boston,
Mass., for appellee.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
4For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/38/: accessed February 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.