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: 27
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PROCTER & GAMBLE CO. V. BERLIN MILLS CO.
tiny, but the,e claims are far within the border line adverted to in
Fonseca v. Suarez, 232 Fed. 155, 146 C. C. A. 347; and just as the
conversion of an abandoned machine into an operative and success-
ful one by the introduction of new, but simple, features constitutes
invention (United. Shirt Co. v. Beattie, 149 Fed. 736, 79 C. C.. A.
442), so we think that seizing upon thing A, which had been thing
B, and was to become thing C, and utilizing the half-made, but dif-
ferent, product, amounted to an invention which is duly set forth in
[2-5] 2. The finding below, that Burchenal" was not the inventor
of whatever invention is, revealed, is really a declaration that one
Kayzer did the inveIting, and Burchenal for some inexplicable rea-
son appropriated it. This is an affirmative defense, and must be
sustained by a fair preponderance of credible evidence. Burchenal
swore to invention in the statutory form, and the presumption of va-
lidity extends to the igentitt of the inventor, for certainly nothing
could be more completely invalid than a patent for invention to one
who invented nothing.
The train of evidence resulting in the finding of noninvention in
Burchenal is this: The plaintiff corporation is, and long before 1907
was, a large manufacturer of soap. Down to that time it neither made
nor dealt in food products, fatty or otherwise. In that year it receiv-
ed from England a letter from one Kayzer, saying that he intended
coming to the United States to introduce "a new process of the
greatest possible importance to soap manufacturers," and asking sub-
stantially for employment or remuneration if he was to communicate
his valuable knowledge. He was employed; he divulged his process.
It is a process for the hydrogenation of vegetable oils, and is one
of the processes which, when arrested (say) halfway, produces Bur-
chenal's "homogeneous lardlike product."
By the time this action was begun Kayzer had returned to England
(in 1910), and on or shortly after the outbreak of the present war
was interned as an enemy alien. While in this country he had as-
signed to the plaintiff herein his applications for patents on processes of
hydrogenation, had been paid for them, and become a stockholder
in the plaintiff corporation. The defendants sent an agent to Eng-
land, who interviewed Kayzer and sought to extract from him evidence
that he, and not Burchenal, either discovered or invented the food
product before this court. Kayzer refused all evidence, and in effect
declined to either assert or assent to the proposition that he was the de-
viser or inventor of what Burchenal got a patent for.
There is no evidence that, during the whole period of Kayzer's em-
ployment by the plaintiff and his experimentation upon fats he either
attempted to produce a "lardlike compound" or observed that such
compound was obtainable by his process. There is some evidence
(if it can be called by that name) that after Kayzer had carried on
experiments at plaintiff's factory for some time he showed to the
deposing witness a fat "like tallow," looking as if it had been "molded
in,a jelly glass," and that Kayzer said in substance that "it was, for
,cooking purposes." ,What Kayzer showed rnay be regarded as evi-
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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/m1/41/: accessed October 17, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.