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: 30
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38 . , , 250,1EiDERALRQTER 4,
costs both here aMd below, and the cause remanded, with directions
to enter a decree adjudging claims 1 and.2 valid,pan infringed.
WARD, Circuit Judge (dissenting). ., think the ,Dijtrict Judggwas
right in holding the patent void for, lack of invention. 1,t was well
known that a vegetable oil could be clgpged ciemirally ,into a hard
fat by hydrogenation, and of course tlat;at some stage of,the,process,
before complete hydrogenation, it would be a horpoggeeous semi-
solid. It was also known that the process would nt affect the edibil-
ity of the product. The product at: all stages of ,the process was, there-
fore old, and open to the public for .any use, of,.which it w,4s cable.
To apply it when senmi-solid as a substitute for animal larq, in coQoQg
was no doubt novel and useful, but was not in my opimin,ja,yentipn.
To one skilled in the chemical art, such a use was, aq qkjqus, if h.e
thought about it at all, as, wert,the many mechanical ,improvermpts
which, though new and useful, have been,held not tq be, ipyentions, be-
cause within the capacity of those skilled in thq particular, art. Thorm
was nothing revolutionary about this new use. There, wa 5p, crying
need, nor any problem to be met. The market was and still.,is abun-
dantly supplied with mixtures of vegetable oils and animal fats which
satisfactorily meet culinary needs. Yet the complainant is gtvep a nq-
nopoly of all semi-solid homogeneous hydrogenized .yegetable oils,
however produced, when applied to culinary purposes.
On Petitions for Rehearing.
Kerr, Page, Cooper & Hayward, of NewYork ,City (Livingston Gf-
ford, of New York' City, Alfred M. Allen, of.'Cicinnati, Qhiq, and
Thomas B. Kerr, of New York City, ,of counsel), for appellait.
John C. Pennie, of' New York City (Marcus 81, May, of Boston,
Mass., of counsel), for appellee..
Sullivan & Cromwell, of New York City (Charles E. Hughes and
Royall Victor, both of New York City, of, counsel), for American
H-UGH, Circuit Judge. . The principal producer of cotton
seed oil has joined in this application as amicus curie, and by figures
of,oil production, as well as of food.products .derived therefrom, has
greatly magnified the importance of Burchenal's patent. ,
It seems to be now assumed that hydrogenized Qil, as a substitute
for lard, is so superior to an amalgam, combination or mixture, of oil
and animal fat, or oil and stearin artificially' produced, -that the. patent
in suit is almost basic, instead of- disclosing, a more,rcariant among
products of equal utility. ..
If this importance in result be real, it is .; reason for giving, to, the
aims in suit a broad range of equivalents, and suggesteireflections' not
containedinour former opinion, butleading -to an-ideowal result.
Defendants .petition restates' with' painstaking ability an, argument
perfectly good; if the premise be admitted. That.,premise, is that
Buirchenal invented nothing but an,artificial lard, aor lard substittite,
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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/m1/44/: accessed September 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.