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: 28
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256 FEDERAL REPORTER
dence, but upon what principle the remarks of one who is neither a
party nor a witness can be regarded as competent we do not perceive.
Yet in this testimony, there is nothing inconsistent with the course
of events as plainly proven. When Kayzer began to produce by his
processes a hard fat, it occurred certainly to Mr. Procter (the plaintiff's
president), and not improbably to Kayzer himself, that since substan-
tially saturated cotton seed oil was a fair commercial equivalent for
'animal stearin, that since frying and shortening compounds were
largely manufactured by combining animal stearin with cotton seed
oil, so they might be made by mechanically mixing liquid oil and hard-
ened oil. Such experiment was tried, not at the factory of plaintiff,
which had no machinery for the purpose, but at the establishment of
one McCaw, who was already a manufacturer of lardlike compounds
employing animal fat.
We are satisfied of the truth (entirely apart from all presumptions)
of plaintiff's testimony that it was not until Kayzer had returned
to England, or was on the point of goihg, that it occurred to any one
that is was not necessary to first harden by hydrogenic saturation the
cotton seed oil, and then mix it with the fluid article, in order to make
4 lardlike compound, but that the hardening process might be arrest-
ed in the manner and for the purposes disclosed by Burchenal's ap-
Assuming, now, that this mental operation or discovery in the sense
of the patent law (Walker on Patents [5th Ed'.] 2) amounted to in-
vention, we not only find no evidence that Burchenal was not the -in-
ventor, but it is a strain upon credulity to believe that, when this
plaintiff corporation might just as well have advanced an application
'in Kayzer's name, it deliberately preferred the fraud of. prosecuting
it in that of Burchenal.
It may be, and we think is, quite true that the evidence reveals
Burchenal as not primarily a chemist, but a man of business, deeply
interested in the advancement of his corporation's prosperity. We
recognize the fact that there is a fundamental difference between
"new articlesmof manufacture" and "new articles of commerce" (Cere-
aline, etc., Co. v. Bates, 101 Fed. 272, 41 C. C. A. 341); and it may
also be quite true that Burchenal's contribution to the sum of human
knowledge grew out- of the trained business man's observation of the
possibilities of a chemist's process, which he was himself quite in-
capable of devising.
But, just as it is immaterial whether 'a patentee, "understands or
correctly states the theory or philosophy of the mechanism which pro-
duces" his new result (Van Epps v. United; etc., Co., 143 Fed. 869,
75 C. C. A. 77), so it is immaterial whether, when Burchenal observ-
ed and seized upon as a new and useful thing a half hydrogenically
saturated oil he was actuated rather by commercialinstinct than acquir-
ed chemical knowledge. It is enough that he had both a mental con-
ception and a tangible reduction to practice (Corrington v. Westing-
house, etc., Co., 178 Fed. at page 715, 103 C. C. A. 479), and that
is all that the patent law requires. Quite possibly this patentee would
never have conceived the thought, had he 'not watched Kayzer; but
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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/m1/42/: accessed December 13, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.