Motion Amicus Curiae Brief — American Fruit Growers, Inc. v. Brogdex Co.
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IN THE
Supreme Court of the Bnited States
‘Octosen: TERM sara
No. 48,
American’ Fruit Growers, Inc., Petitioners,
Vv. ?
Broopex Company, Respondent,
MOTION ON BEHALF OF THE STATES OF ALA-
BAMA, ARIZONA, CALIFORNIA, FLORIDA,
GEORGIA, LOUISIANA AND TEXAS FOR
LEAVE TO FILE BRIEF AND TO BE ORALLY
HEARD AS AMICI CURIAE AND BRIEF AS
AMICI CURIAE.
Cuaruie C. McCatt,
Attorney-General, State of Alabama.
__K. Berry PETERSON,
Attorney-General, State of Arizona.
| U.S. Wess,
Attorney-General, State of California.
Frep H. Dayis,
Attorney-General, State of Florida.
Grorce M. Narr, |
2 Attorney-General, State of Georgia.
; p Percy Saint,
Attorney-General, State of Louisiana.
_ Rosert Lee Bossirt,
Attorney-General, State of Texas.
November 25, 1930.
» Press oF Byron 8. Apams, WasHINGTON, D. CO.
‘ABLE OF CONTENTS,
MOTION. FOR LEAVE TO FILE BRIEF AND -
—<TO BE SRaaY HEARD AS AMICI.
| _CURIAE.. 7
..' BRIEF.AS AMICI CURIAE .......2..2.0. 0064. “3.
Introductory Statement cieahe ghSN REC AE RNA 3
Statement of Facts ....... ionsdinas seaekinee-
Outline of Argument : cehe¥l eel eeireb Fabaie ds ae ee
Argument . « Tee TT Eee Cet ee Ty oe . 6
Hy | oa as Defined in Claims 23 to
of the Brogden and Trowbiidge Pat-
ent are not an Article of Manufacture .
_ under the-Patent Statutes ..../........ i. §
Point II. The Process and the So-ealled Ar-\_
ticle of Manufacture Defined in the Claims —
’ of the Brogden and Trowbridge Patent do
not Involve Invention’ over the Disclosure
of. the Bishop Patent, No. 683 1899, issued
SSS FORE ROO bo vieh 455i vebebive eves _
‘ Point III.. If the Brogden and Trowbridge
| __—- Patent #s held valid, it will constitute a
' Serious Abridgment of the Rights of the
Fruit Growers of the United:States...... - per
Point IV. Adoption of a Process by an In- ..
dustry should be Evidence’ of Invention
only in a Doubtful Case
Point V. Conclusion aap eevndrataute va kee
ROUOREE «656 cco cdeunes peistouneiaaveereves ;
Page aa
en : : - .
Sa een tg ee ee . :
— Na eee . ETERS TRI Nef SRNR MAE iN I Se ame RE Mork eae ir
\\
CASES CITED.
S a oa Page
American .Banana Co. v. United Fruit Co., 160 —
Se, WN gos 5 oh ene sve A DIP Ee Ee 45
American Fruit Growers, Ine. v.. Brogdex Co.,
(Dist. Ct.), 21 Fed. (2d) 110 ..........6..%. ee
“American Fruit Growers, Inc. v. Brogdex Co.
(C. C. A.),. 35 .Fed. (2d) 106; (certiorari
eae a Os BE is ns esi b a ND 4
Anheuser-Busch Brewing Association v. United
a ee Cer er ee 9
Armstrong Seatag Corp. v. Smith’s Island Oys-
wee SE! Oe renee Gee |
Baker v. Duncombe Mfg. Co., 146 Fed. 744 .,. Ba 26
Berlin Mills Co. V. Procter & Gamble Co., 254.
Bee SRE a POR ETEA AS F006 VER COs ee
Brown v. Piper, 91 U. S; 37 ........ a ea ae 24, 25
Duer v. Corbin Cabinet*Lock Co., 149 U. S. 216 33
Electric Boot and Shoe Finishing Co. v. Little,
Se ea ce an ates Oy
Giles et al. v. Heysinger, 150 U.-S..627 ...+..... 13,
Hartranft v. bao ncomsee 121 U. S. 609 ....... ee
Hoskins Mfg. Co. . General Electric Co., “212 .
Wi aca wv Kd ba tek aves ORE oper ee a ae
Johnson v. Johnston, 60 Fed. 618°. ius uats RxeeES 7
Knight v. Reiger et al.; 203 Fed. 49; aff’d 212
OR. GES oko sevncinices 4 iveees a eenaa see els 8
Kreshower y: United States, 152 Fed. 8 ess. 8
Lord and Burnham Co. v. Payne, 190 Fed. 172 .. 33
McClain v. Ortmayer et al., 141 U. S. 419°
18, 26, 32, 35
Milligan & Higgins Glue Co. v.. Upton, 97 U. S. 3. 23
Minerals Separation’ North American Corp. v.
Magma Copper Co., 280 U..S. 400 ........ ' 28
Syors & Co. v. United States, 147. Fed. 204 .. eh
en Riter-Gonley Mfg. Co. v. ‘Aiken et al., 203 Fed.
eee Willite Co. v. Trinidad Asphalt Mfg.
Rev rsed Statutes, See. 4886 (Section 31, Ti
kets Cited — roel aes
| Page
National Knameling and Stamping’: Co. v. New
England Enameling Co., 153 Fed. 184 ......
ON ee OR hare oe ee a 6,7, 10
Richards v. Chase: Elevator Co., - 159 U. S. 47% 12
Slip Searf Co. v. Filene’s Sons Co., 289 Fed. 641 be
Mm, oe
United States Vv. eas Elliott Oil and Gas Co, ©.
249 Fed. 609, eis ’d 270. Fed. 100 _ 260 U.S.
| 5 Reel Ne ere Bean Wilt ae ces Wk eked Ko bis
Co., 16 Fed. (2d) | ETE CELT eee
STATUTES AND TEXTBOOKS ‘CI
UB CAL) Cow ca dicsenenceceeestorsngesse
Webster’s New Tasenpblonal Dictionary soeeees”
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RCH ASA SEAN N IN BY OP a eT bs Bo come mt
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IN \ Wk
: Supreme Court of the Anited States
Oc POBEN Toca \: 430,
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Ne. 48.5 \
Xaenicas -Pren Ginowkns, Ise. Qlehiuaoners,
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Broun x COMPANY, Be spond MX
“MOTION FOR LEAVE TO FILE: BRIEF. AND to.
BE ORALLY HEARD AS AMICI CURIAE.
May it Please the. Court: \
The undersigned, Attorney-Generals of thie Stytes
of Alabama, Arizona,: California, Florida, Georg it
*\ le Lotisiana and Texas respectfully move this Honor\
able Court for leave to file the aecompanying brief \
igs ‘ause as ANC curiae, »
If the Court yfants this motion, the seve ‘ral contisel
will agree amongst themselves in respect of which
one. of them wil] present’ or: al argument on behalf of
_them all. : :
CH ante (. acti,
Attorney Genera, State af Alabama
K. Berry Prrunaox,
Attorney- General, State of Arizona:
U. 8; ee
Attorney-General, | State of California.
Frev H. Davis, :
Attorney- General, State of Florida.
GroncE M. NAPEER, °
. Attorney- General, State- of Ge orgia.
Percy ‘Sat, ~
Attorney- General, State of Louisiane
eC - - Ropert Lee. Bossitt,
Attorney-General, State of- Texas...
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“The decision of the Cireuit Court of Appeals for.
the Third Cireuit im this case i to, ‘be found in 35 ae
Fed. (2) 106 (Transcript of Record, page 705) and
that-of the District Court in 21 Fed, (2) 110.
; | STATEMENT OF FACTS,
On the 15th day of April, 1926, respondent insti-
tuted suit in the United States District Court for
the district of Delaware for infringment ‘of, United '
States Letters Patent No. 1,529,461, issued March 10,
1925, to Ernest, M. Brogden. and Miles L, Trow bridge
on an application filed August 15, 1923. The bill
charged ‘the petitioner with infringement of certain
process claims and article claims. tery
The patent in suit is directed to a method of pre-.. _*
serving fruit, antl mote particularly relates to “the
prevention of decay of such. fruit* by’ retarding the»
development of blue mold: Claim 3, which reads as 6. *#
follows, may be considered as typical ‘of the. , prebete .
; claims: a yt
In the preparation of fresh fruit for- market,
the process which comprises’ subjecting fruit
to \te action of an’ aqueous solution of borax,
he\ fluidity, strength and. temperature of the —
treating solution, ‘and the duration of the treat=
ment, being such that exposed rind or skin tis-
sues of the fruit-are effectiv ely impregnated with
borax and rendered resistant to blue mold decay, |
while af the same fime the fruit is not scalded:
nor is its freshness or edibility otherwise sub-
stantially impaired, |
he
The following may be taken as typical of the ar-
ticle elaims : as (°
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56. Fresh citrus fraiit of which the rind or skin °
carries borax in amount that is very small but
sufficient to render the fruit resistant to’ blue
mold decay. .
The District Court rendered a decree holding the
claims of the patent valid and tHat petitioner in-
fringed claims 1 to 7, 9, 14 to 18, and 23 to 26 inelu-
‘sive. This, decision was affirmed on appeal by the
Cireuit’Court.of Appeals for the Third Circuit. Pe-
titioner souglit a rehearing, which was denied on—
November 15, 1929. A petition aN writ of cer-
fiorari was granted by this Honorable Court March
17, 1930. : ; ;
OUTLINE OF ARGUMENT.
“ J. Oranges as Defined in Claims 23 to 26 of the
Brogden and Trowbridge Patent are not an
Article of Manufacture under the Patent Stat-
ates. (p.6.) .° . / a
_ YI. The Process and the so-called Article‘of Manu-
> f _ facture Defined in the Claims of the Brogden
. and ‘Trowbridge Patentsdo not Involve Inven-
tion over the Disclosure of the Bishop Patent,
"No, 683,899, issued in the year 1901. (p. 11.) _
HI. If the Brogden and Trowbridge Patent is held
: Valid, It will “Constitute a Serious Abridg-
ment of the Rights of the Fruit Growers of
p the United States. (p. 27.) Cre
IV. Adoption .of a Process by an Industry Should
Evidence of Invention only in a Doubtful Case.
(p. 31.)
V. Conclusion. . (p. =)
—
.
Oranges as Defined in Claims 23 to 26 of the Brog-
. den and Trowbridge Patent are not an Article
of Manufacture under the Patent. Statutes.
‘The lower courts have held herein that claims 23
to 26 of the Brogden patent are valid and infringed |
by oranges sold by the petitioner. Such oranges are .
to all appearances the same as oranges -fresh from
the trees and differ therefrom only by having. a
* minute quantity of borax upon their rinds.. The ques-
tion presented for determination by this Honorable
. Court is whether such an orange is a,‘‘manufacture’’
within the meaning of that term as it is used in Sec-
tion 4886 of the Revised Statutes (Section 31, _Title-.
35 U. 8. C. A.).
Counsel have been unable: to find any case decided
by this court wherein the precise, meaning and limits
of the term ‘‘manufacture”’, in the patent sense, -is
-defined. The most nearly applicable decisions of this
court upon this question, however, , appear tobe in di-
rect conflict with the decisions’ herein by the District
Court and ‘the Circuit Court of Appeals, as will here-
inafter be pointed out.
The holding of the lower courts ‘to’the effect that -
an orange treated in accordancé with the process. set
forth in’ the patent is proper subject matter for -pat-
ent protection is evidently based upon the definition
of the term manufacture given in the case of Riter-
Conley Manufarturing Company v. Aiken et al., 203
Fed. 699. The Circuit Court of Appeals cited that
case in support of its holding that the article claims .
were directed to patentable subject-raatter. . Now the
-
oe ae oe ee, , 7 pepe tn amg! me rn? pte ot :
:
Bret...
‘ease, to the effect that a roof structure is a: janu-
inclusive.
: ( ‘ompany, 254 Fed. 821, a patent for an oyster having
‘man, and was obviously not a-machine, a composition
_ will not be questioned. A tagged oyster is still’ an
ve I a ;
Riter-Conley case in turn adopted the definition given
in Johnson v. Johnston, 60 Fed. 618, 620, to the effect
that ‘the term ‘manufacture’ as used in the patent
law, has a very comprehensive sense, embracing
whatever is made by the art or industry. of man, not |
being a machine, a composition of matter, or a de-
sign’’. While the actual holding of the Riter-Conley
facture, is believed sound, it is submitted that the
definition of ‘‘mamufacture’’ given: therein is far too
‘For instance, there was involved in the case of Arm-
strong. Seatag Corporation v. Smith’s Island Oyster- \; @.
affixed to it an identifying tag. Such a tagged oyster © 7
did not occur in nature, was made by the hand of.
of matter, nor a design. Yet the court had no diffi-
culty in holding that it was not a manufacture, in
the following language (See page 822): :
‘If the patent in suit be supposed to cover a
tagged oyster, the answer is that a tagged oyster
is not a machine or a composition of matter, and
it is not a manufacture. A spring chicken, with
an identifying tag fastened to its leg, is closely
’ analogous. If he so desired, any fisherman could
attach an identifying tag to his fish. But none
of these natural products could be classed as
* manufactured articles, simply because of being
tagged.’’
It is believed the soundness of the above decision
oyster and the intellect revolts at calling it an article ©
of manufacture. re 3 3
| 8
By the same: token, a tagged orange would, not be
an article of manufacture, ‘although it does not occur ©
in nature and fits into the definition given in the
Riter-Conley. case. And yet such an orange would
appear to approach an article of manufacture much
more than the oranges here under discussion’ which,
to all appearances,:are the same as they would be
in.their natural state.
Similarly, such an inelusive ‘definition of the term
‘‘manufacture’’ is criticized as being too broad in the _
ay of Knight v. Reiger et al., 203 Fed. 49, affirmed
he Circuit Court of Appeals for the Fourth Cir-
a a 21%Fed. 935.
_ The Riter-Conley: case rested its definition largely
upon similar definitions given in, cases dealing with
_ other branches of the law. <A review of the decisions
in these other fields, however, reveals that in the
eases which involved anything simila* to a ‘treated
_ orange or acoated orange, such articles are ‘held not.
to be manufactures. Thus, in the case of Myers &
‘Company v. The United States, 147 Fed. 204,:the Cir- -
' euit Court of Appeals’ for the Second Cireuit held -
that lumber.which had been processed ‘for fire-proof-
ing, and its value largely increased thereby, was not
dutiable as’ a manufacture from wood. Again in
Kreshower v. The United States, 152 Fed. 485, the
Circuit Court for the Southern District of New York
held that leaves which had been subjected to a proc-
ess including the application of glycerine and var-
nish to preserve them were not manufactures, stating
on page 486:
“The treatment did not result-in a shia of -
* the leaves from their former appearance. There
was no advance in maufacture in‘ the sense that.
mt
9
+e rT Ed ‘
the process of preservation destroyed the. orgi-
- nal articles or made them useful for other pur- -
poses or altered their trade designation. Har- —
tranft v. Wiegmann, 121 U. S. 609.”’
- Coming now to the pronouncements of this Hon- |»
‘orable Court, we invite attention to the case’ of An-
heuser-Busch Brewing Association &. The ‘United
States, 207 U. S. 556, where the question was whether
corks which had undergone a treatment requiring
’ several days were ‘‘manufactures’’ under the tariff —
Jaw. Answering a contention similar to that urged. -
by the respondent here, this Court on page 562
1S Seen a ae
_ «* * * Manufacture. implies a change, but
every change is not manufacture, and yet every
change in an article is the result of treatment,
-Jabor and manipulation. Brt something. more is
‘necessary, as set forth and illustrated in Har-
tranft v. Wiegmann, 121 U. S. 609. There must
be transformation;-a new and different article
must emerge, ‘having a distinctive name, ehar-
acter or:use’.. This cannot be said of. the corks
in quéstion. A cork put through the claimant’s
process is. still a cork.’’ Se hery ee
In the case of Hartranft v. Wiegmann, 121 U. S.
609, a similar question, invélving shells (of mollusks)’
submitted to treatment, was Before this court. It
was stated (page 615) ::
“They were still. shells.- They had not been —
manufactured into a new and different article,
having a distinctive name, character or use from
that: of a shell. The application of labor to an
article, either by hand or by mechanism, ‘does
not make the article necessarily a manufactured
.
‘
ek
article, within the meaning of that term as used
in the tariff laws. Washing. and scouring wool |
does-not make the resulting wool a manufacture
of wool. Cleaning and ginning cotton does not
* make the resulting cotton a manufacture of cot- *
~ ton’? ”
eo
~ Thus, lumber treated by a fire-proofing process is’
still, lumber and not-a manvufaeture; leaves treated
and coated with glycerine and varnish to preserve
them are still leaves and not a manufacture; corks —
which had been subjected to a process extending over
several days and involving treatment in .a. chemical
bath are. still corks and not manufactures; and mol-
lusk shells treated-with acid, polished, etc., were. still -
_ shells and not manufactures—how then can an orange
containing -a miscroscopic quantity of -borax on its
skin be considered a manufacture? While these de-
cisions do not involve patent law, it is submitted that. —
the above’ expfessions of this court relative to the
term ‘‘manufacture”’ are directly applicable in a pat-
ent case where that term is to be defined. And as
a matter of fact, such non- patent cases formed the
basis of the decision in the Rifer-Conley case. > The
-logie used in such cases is equally true when trans:
ferred to another branch of the law.
To hold contrary. to the doctrines of the above cases
would be to admit a host of new articles for patent
proteetion; other types of fruit treated with borax; °
citrus fruit treated with other reagents ; lumber
treated: for fire-proofing; leaves treated with. glycer-
ine or, varnish for preservation; corks submitted to-
’a_eertain chemical bath; in fact, any of the number- . -
less natural products treated by any pf innumerable .
a
similar processes. a ‘such a definition were
4 NT YORI IF tte me ’ I OPEN IGE OMIT Sus
11
adopted, could an orange: ‘coated with borax while
it is still on the tree be logically’ excluded? : Certainly
to include such treated natural products in the class
_ of patentable inventions seems to go far beyond the
intent of the statute. |
It is accordingly submitted that an ‘orange, coated
“with a minute quantity of borax, is,still a natural
product . and not a ‘‘maiufacture’’? as that term is
used in patent law, and that. the. ruling of the Court.
ae Appeals. to the effect that the complete article is
not found in nature, and is thus an article of | manu- ~
- facture is erroneous.’
; I.
‘The Process and the so-called Article of Manufac. /
- ture Defined in the Claims of the Brogden and ~
Trowbridge Patent do not Involve Invention over _
* the Disclosure of the Bishop Patent, No. 683, 899,
issued in the year 1901. . Sisk ety
It is appropriate to here inquire just what was the
knowledge of the public at the time of the alleged
invention by’ Brogden and Trowbridge. Or .more
specifically, with what knowledge was . the public
charged at that time? In view of that knowledge
‘was any inventive genius required to adopt the proc-
ess of the Brogden and Trowbridge patent?
The record is replete with evidence showing that
the public was thoroughly informed of the antiseptic
and disease-inhibitive ‘properties of borax,’ boracic
acid and in general compounds containing the boric
acid. radical. As a matter of fact, its.value as a
specifie for blue mold decay-was well recognized by .
the art. It is believed; however, that the time of this
12 -
- oe —
the prior art to a-single patent.- -
Years prior to the adopfion of the Brogden’ and-
Trow bridge process, a process substantially the same
had been developed and. patented by one Simeon
Bishop. _The Bishop patent, No. 683,899, which is-:
sued on October 8, 1901, will be found on péges.1473
and 4474 of the’ Transcript’ of Record, atid the‘ de-.
tailed comparison of it with the Brogden and Trow-
bridge patent hereinafter presented. shows how com- ~
pletely it discloses the substance of the later | so- ealled ae
invention.
At this point one phase of this matter oulie for-
‘passing reference. It will be pointed out hérein that
‘the processes of both.the Bishop and the Brogden’
and Trowbridge- patents consist in general .of -twe
identical steps; first, treatment of the oranges@in a
solution of a.boric a¢id radical compound, and s@ond,
the application to st orange so treated of a wax or
ee gelatin coating. Th¢ processes of these two steps are.
-identical in the two patents, and the final product nec- °
essarily is the same in each case. The. claims which
were held to be infringed. are directed merely to the
first step, namely, treatment of the orange in the
‘solution of horie acid or. borax. Omitting the second.
step of the Bishop process will give “éxactly the same
result as omitting the second step:of the Brogden
and Trowbridge process. In this connection the at-~
tention of the Court is directed to‘the well settled
doctrine that the omission of an. element: in a com-
bination with its corresponding function does not
ar render the elements retgined patentable. As was.
‘said in the case of Richards v. Chase Elevator Com-
pany, 159 U.S. 477, 486: aueie ’
ee ; ae
L ; Bhd a
u
: court may be sav ed by confining the consider ation of ~
13
“While the omission of an element in a com-
bination. may. constitute invention, if the result
.- yet if the omission of an element is attended
a corresponding omission of .the function pe
formed by that element, there is no inv,
the elements retained perform the’ sa
as before.’’ ees
- of the new combination be the same as ie
ontion, if
> function
See also Giles et al. v. Heysinger, 180 U. S. 627;
McClain v. Ortmayer, 141 V. S: 419.
Bishop states that _his_precess~ts tg be used on
‘‘fruit, veg¢tables, eggs , and the like
of Record, page 1473, line 3 from -)dttom). While
much has been said as to the specific use af their proc-
ess on oranges to control blue mold decay, Brogden
-and Trowbridge, ‘in their patent specification, state
‘that: this is merely the “vreatest present utility’’ Sain
the , process, and continue iret ds of “Record, }
page o86, bottom) :
The inv eiftion i is broad, how ev er, and
the term fruit as herein employed is. to be under-
stood as not necessarily restricted to fruit in the
fan 8 8
sense in which the word is usually employed, but”. “7
is to be understood broadly as including hot only
fruit proper but also vegetables, such as toma-
. toes or the like, that can be treated. to advan-
tage in accordance with the principles of ° the
inyention to be hereinafter _set forth.”’..
It is to be noted that bine mold decay is not. pecu-
liar to citrus fruits: Brogden and Trowbridge, by
their own admissions, concede its- attack -on other.
food products. Furthermore, it is to be remembered
‘that blue: mold is one of the most | common forms of .
Bibra decay.
’ (Transeript —
Md . a? :
é y
oA ™) ea ar
: LJ Res ~ _
\ : : 6
*% As : 4} acd >” be ne oe decreas. pvaed t soy be + dager Sep eens, SZ :
a eve, 7 i #, gre " 2 . ‘Thee Pye news. 4 ¢ 4 in ata t one 4 ¢ . J
ECS BPP? iy yer ‘i. ® Whee’ 5 othe Ub ag } seat all .
ptmitie: yf ' é
ceauger? Serse =X fie | :
: ai ue 5 |
a A. “inte ’ |
ks Sue Rader
vote? y LRT. : ,
: é a cae
pr een thee. Seite - gi reh. Pgaku * ba. Fact. ebeewic aw:
® apece Rew: ¥; ae ticomerd-ae £ peeneg hie. teagers . ew Bh
. Ree chi 4 - 7 ‘
Herwgelen ase! t tee hedge ¢ wide Q Trae an tiget.’
¢ id M ae » | ee, [ Ft: a +
. Page yao ood ha : FY ragt berets 2 - Trow se digs ‘ie
¢ ’ Ps & by . > .
: " n > s P - e oo : °
(heave Merely Sroanketes? the Sergi Ssetw sarod “3
4 ‘ ciao die : ‘ ; . fy “ne i : :
teaget ; SOP lery tie Feet ya a *% Savia! Miferw . N
‘ heneie acutiie a very weak a a. how ever, cf cee @grgear Beatie
wet "Bat Me tant: sl tal iv pt ope rt tide ate text daw ti the,
‘ 5 8 q ae . :
' PPERPsmpeyr - cote preeaets! . teat Soo the hevpir puree i 2
' : . ; g a ow ‘ ote ihe
tachew!l, anel auch brcadenine ia therefore. an eshys te F
: . . . : ; : .
wLes “atop Mor eens 7, the ofhea@.- ex agetN a car a: fi:he
thn rartieal, ¢t Giets! tw Jevrat be wil :
the caheal, particularly derag@@are well kn: pwriante °
‘ a . . IRE, a:
ra ty , i
aepties. Thie know beelgest, i tpebe hae. haw ‘ome ery, etal... C
ingirel in the Floglieh al staan
“has hong berer ra | uaesd * ea. Ms “ining er. ampregnatek
with horat or Konig ac ad OE ebater's View Interoé.,
i fieonal - phe homary. $909 929). Sue hye changes ; involve . or
- egy tnerely, the substitution of an ey alent’ for the boric. xe
| avid used hy Bishop. lag PERS, s |
It ia of. cours® well ree ognized ‘that the aabsatitution’:
8 a compound ‘of a> substance recognized as the
equivalent ‘of a substance formerly need in thre com. CORB Sa
- 2 pound, doea not ssid invention. i
In Hoskins Mig. Co. : oneret Electtie Co, 212 ooh
wis Fed. 422, it was. said re ‘page 423 7 meee
the term’ ‘horated Te ae: by
.
—
T inet ‘ OIE ba Sarin atiepr wi octane mana ‘ i ‘ memes
‘ a Oa " sf ere
a
>
»
é
ac
:
. 4
_A
TY "tak ‘tet. tw ‘Conn peoes bichtie af
tie itecy. ae iach idig = Shae cahetituent elements
“4 exch cates or wie Gg hte jeteia, whet the -f Bretion.
cheenlial fifopettio:n af each: entire COM pari
ae TL pyhetas fimiia the afte Kotinmoan an
fetes a Mie © 4, _M sikher on Patents path kad)
Brew MY ‘Taker 4) Beeston, 7 -Wall. 327, 19 LL. Kd
Re tree Ge poalene ey
” S ° 1’ ~ ?
Aga 8 Natvlom Pmameling and Stampmg Co. v-
New Pagidad Jb ma meine Ci, 1od Fed Is4, the ‘court
:-23 atent “ age My: :
"hl @o metalhe salt of any kind “Was previoushy
ced, “the euletitution of another metallic salt’
‘whack produced the. same reeait: woukd be ‘the
etplevment metely of an equivalent.('
‘ The “mee of ‘Western Willite Cu, "O Trinidad, As- v
phali Mig ©0 . 16-F. (2) 446 contajns the following
midar language (See page 450) ; ,
°
bad | trie, as. the trial judge recognized, that
ordinarily, ‘the. reactions and phenomena of
; chemistry may sometimes dictate a rule as ‘to.
" “eqnivalents, which. is at variance to that rule
as apphed to mere-physical or mechanical: equiv-
alents’ But, ae he ‘said, we are ‘unable to see
any reason for applying-a Be ae rule. in a case
wherein the ‘effect producec
erating in combination upon. substances posséss-
ing well-known characteristics. It is only. when.
the reactions and phenomena of chemistry. are
¢ latent and undeveloped. that ‘the rule invoked by
appellants has application”? 7 | ats
oes w hie by one metallic sul- .
~ / “yphate is in all respects similar to those produced.
“€ ‘by other metallic: sulphates,’ especially when op-,°
16
; , ae re My oe
Under the prineiple enunciated in the above fases,
it is submitted that reagents’ containing fhe boric
acid radical are equivalents of. the boric acid used
ini Bishop’sprocess. and that their use involves no
invention’ over such prior -process.. The equivalency —
of borie acid and borax was well recognized by the
art prior to.the Brogden and Trowbridge patent, as:
‘Is illustrated by. the patent to Storer (Transcript of ~ -
‘Record, page 1599, lines 23 to -26).—
Brogden and ‘Trowbridge state that the reagent is
applied as follows (Transcript of Record, page 589,
last five lines,’ page 590, first, twelve lines) :
\-
“The method of applying the treating solution
to the fruit may assume various specifically dif-
ferent forms, the precise - -details of . procedure
being uot essential to the invention in its broader
aspects. However, where it is desirable, as may.
often be the ‘ease, to carry out the process. with- -
out changing prior practice any more than is’
strictly: necessary, the application. of the mold- ~
retarding agent may be effected as a part of or
in conjunction ‘with the usual washing operation °
to which the fruit is initially subjected in its.
_ handling -according, to “modern packing house
‘methods, especially as most of the mold-retard-
ing agents herein contemplated also have excel-
lent ‘cleansing. or detergent properties. Accord-
‘ingly, in the practice of the invetition, the mold-
retarding agent, borax in a specific instance, may
_ be added in proper mold-inhibiting quantity di-
rectly to the, wash water in the usual soaking
tank into which the fruit is dumped from the
held boxes as it comes from saad grovés.’’
Bishop patent, the reagent is wien in ‘fan
antiseptic
‘‘washed or bathed’’ (Transcript of Record, page
- | d ;
. ° —_ 4 :
.
es s
‘
.
h’’, wherein the article of food is.
ft 2
1474, lines 2 and 6). Bishop. uses two ounces of
horacic acid to one gallon of water (Transcript of —
Record, page 1474, lines 21 to 23). Such proportions
will give a one anda half per cent solution. Brog-:
den and Trowbridge, after stating that ‘‘the strength
or concentration of the treating solution may be
varied considerably within reasonable limits’’, give
examples of solution ranging from two to twenty
per: cent, and state that ‘‘a solution containing two. ©
_ per cent ‘or-more ‘of borax may be characterized as
a strong solution’? (Transcript of Record, page 590,
bottom; .p»ge 591, top). ° Here again, if there be any
change, it ir merely an obvious carrying forward of
the principles of Bishop’s’ invention, pete
Bishop states that the application of bora¢ic acid
in his process ‘‘is advantageous in that it prevents —
decay’? (Transcript of Record, page 1474, lines 16
and 17). Brogden antl Trowbridge state (‘Transcript —
of Record,’ page 586, middle) :
‘‘This invention relates to art of preparing.
_. fresh fruit for market; and in particular it re-
lates to processes for the treatment of citrus and
_ other fruits in such manner’ that: the -develop-
ment of molds and the like upon the ftuit, and
especially the development of blue.mold and in- .
_ fection by blue mold. spores, is prevented or ar-
. rested either wholly or to such large extent as
greatly to prolong the marketable life of the
fruit, beyond what has been, possible heretofore
a ee
’ Thus, despite thé fact that_Bishop, writing some 7
. twenty-thrée years earlier, did nbt use such scientific
‘terms’ as the later patentees, the purpose and intent.
- of both is obviously the same—and the results identi-
eal.
=> ad >
ont
*
ah
o~
=
a
’
#
¢
=
4
se.
Br
, S “- -
Sf WEY OEE TS Oe te te betes . -
Pachan ®
a q a
4 : Ny
ogden and Trowbr idge continie as fellows (‘Tran-
script of Record, page 592, middle):
‘
See) ae, ee permissible within the scope.
of the invention, to rinse. the fruit with clean
water contiining no treating +1 ‘eagent after its
leaves the washing renee andl before ‘it enters ;
the drier .* -* . sr
* *- * * : * * ph we . *
«* %.* Phe fruit, after passing-through the
drier, carries a substantial deposit of the solid
tréating: reagent, borax in the specific, example
here in “question. The stronger the treating solu-
tion employed,. the ereater, is of course .the
amount of.this surface deposit of -white pulveru-
‘lent -material_on the fruit. “If this wereallowed
to remain on the fruit, the fruit might be unmar-
ketable because of its appearance, “and hence the
fruit may be next treated to remove this ‘super-
- ficial deposit: This can be accomplished most
effectively by a. dry brushing or rubbing: of the
fruit, most desirably hy means of rotary cylin-
- dricat brushes of horsehair or the like operatiny
at. relatively high speed.
tion
*: * * 99
a
—$uch_rinsing and brushing, te—be earried—out—when,
-a strong solution is- used, obviously reduces the
amount of reagent left on the fruit. Thus, though
. Brogden and Trowbridge may use a stronger solu- -
of reagent, the net amount of feagent left upon
the fruit as a protective film would be substantially ~
_ the same as that obtained by using Bishop’s process.
Finally, they: state (Transcript. of. Record, ‘page 593,
a
*
“From this eka on, the handling of the fruit
-in further preparation for boxing and shipment
may or may not involve additional papeervative
a | .
“trdatment in accordance with the principles of
the invention. This. depends: upon whether or
-not the fruit is to receive an = icone of pro-
tective coating material for the purpose of pre-
' venting or reducing shrinkage and withering and
of ensuring conservation of the original fresh-
ness and flavor of the fruit for prolonged So
of time. Generally this further treatment
highly desirable, and ‘if the benefits of ‘the ‘inv ty
tion. are to be realized to the fullest extent, this
- further treatment should be carried out. Tt con-
sistS in applying’ to the fruit a normally~ solid —
protective . material,. especially: paraffin ‘or: like
waxy material, jn such condition that it can be~
‘spread all over the surface of the fruit to pro--
3 ' duce an extremely = protective film which is
___——not noticeable ex @ expert eye and does
not interfere with the so-called breathing or
transpiration of the. fruit to, an undesirable ex- ~
tent, but which is effective to conserve the orig?- -
nal api br and freshness Sof the fruit as.
above stated.’’ |
Bishop similarly. states (Prahedtint . of Record,
-- page 1474, lines 2 to cia
ae
= a 79
. “The iinis is then. coated with”
- gelatin, which excludes the air and prevents the
«entrance of atmospheric germs, thereby pyevent-
- ing decay. <i 4
46* ar
The anticipatory character of the Bishop- patent"is is
perhaps moré clearly apparent from the following:
summiiry of the foregoing discussion. — - :
*.’
im ae pea ed :
~ * ad
1
Material
»)
(Rega, p44)
,
‘ treated
a First in-
Bs gredient’
:* uséd
F 2
“= Amount
% used -
=s a
3: Piesene
.
4 | "
2 Second >
: 4 ingredien
a used
“
a
a
‘|
K
ef -
i Results
BISHOP
Fruits, vegetables, -
rand the like (Ree.,
Briel \
Ror avic (Borie) acid |
(Ree., p. 1474) °
—* p. 589)
oz. to gallon—14%
-
To prevent dec ‘ay (Ree.,
D. 1474)
at
Gelatin (Rec., p. 1474).
To. exclude air, : prevent
entrance of germs, add
to appearance (Rec., p.
1474) :
An orange coated with
boracic acid. (a reagent
containing » the boric acid
radical) to prevent de-
_ cay; and with a protec-
tive coating of - gelatin
to ‘exclude germs and
add to appearance.”
e
~ Solution ’
~BROGDEN AND.
TROWBRIDGE
Fruits and Vegetables—
greatest utility citrus
fruits (Ree. p. 586) | °
’
e °
- Reagent comprising the
boric acid radical: (boric
acid or. borax) (Ree.,
2 to 20% her ‘strong
used oranges
may: be rinsed with
clean water,.or brushed
off- When dry (Ree., pp.
591, 592)
. To prevent blue mold
and all kindred rot and
decay organisms and
‘diseases to which fruit —
, is’ susceptible (Rec., Eee
597 )
Paraffin
material +(Rece.,
or like waxy
p. 093)
To form protective film
-and to prevent’ wither- —
ete. .
shrinkage,
‘p. 593).
ing,
(Ree.,,
An orange coated with
a reagent containing the .
borie acid radical fo
‘prevent decay, and | with
a protective coating of
or like waxy
to form protec-
_and conserve
\paraffin’
iaterial
tive fil
-the orange.
ht | ee if oe . 7) ; ox c GPR
° e >A | . ‘
Thus every essential step individually and in com-
bination, of the Brogden and Trowbridge process is
paralleled i in the process of Bishop, and if not in fact
anticipated, the changes made are at least well within
the knowledge of those skilled m the art and rendere
iy ote; invalid the: Brogden and Trowbridge proeess.” ~Bish-
op, speaking with the practical knowledge: of the art
as: of the-year 1900, and writing his specification with
“the conciseness typical of the applications for patent
of that time, nevertheless :has spy ete 3
in full, clear, concise: “and exact iorms. “Not only did\.5
Bishop‘ ‘clearly disclose the steps of his process and
the result achieved thereby, but. he informed ‘the pub-—
lic of the funetions of his. ingredients—funetions iden-
" tical with the functions subserved by Brogden’s ‘and _
Trowbridge’s similar, or rat least equiv alent, — a
ents. ,
_« -The Brogden and degvusade ‘applioaties was writ:
ten with the backgrgund of scientific knowledge as of
‘a date.some twenty- three years later, and under the.
present practice of giving a very full description’ in.
the specification; but ‘such verbosity .can not supply
an absence of invention where it is in reality lacking.
The later process, when reduced to its essentials, is
practically and substantially: that described by Bishop.
That both Bishop and Brogden ‘and Trowbridge
were seeking the same result by the same means is’
further evidenced by a comparison of certain claims
of the two patents. . Bishop’s first claim (Transcript
-of Record, page 1474, bottom). reads as fojlows:
_1. The method of. treating articles of food to
. preserve ‘and enhance their value, which consists: |
in Washing them with a solution’ of boracie acid’ -
- and then ‘applying a coating of gesient. substan-
Be wincied as Lactilacts te ;
. »
‘
’ y
iG é
‘
BA:
: ON
&
&y
\
Bt \.
= aN °
f XN
to.
LS)
. *
‘yg
“s “Now note the following claim ‘made - by Brogden
and Trowbridge ({Pranseript af Record, ee 601):
19. In the. stepasation of reat fruit for mar-
ket, the process which comprises contacting the
entire surface of fresh fruit with a solution con-
taining. borax in sufficient concentration to exert
pronounced mold-inhibiting action, and there-'
/.. after applying to the fruit so; reated a thin, film-
Be ee like protective coating comprising Waxy material.
2. *
a The following article claims” made: by the bata pat:
-—.. entees are also submitted for consideration (Tran-
; script, of Record, pages: 602, 603).: .
) | 25.. F resh eitrus fruit of which the- rind or skin/
1 carries a “non-poisonous _-mold-inhibiting— com.
. pound ‘comprising . the borie acid ical, the
amount of said eompound—present being very |
*. small but sufficient fo ‘render: the fruit: resistant
to blue. mald decay.
* eo *
27. Fresh citrus fruit as* defined in. claim 25,
further characterized by: ‘the fact that its surface
‘is provided with a thin film- like protective coat-
ing of waxy material. \
\
os | 7
The mere comparison of sue¢h: cisiine emphasizes |
the identity of the two processes. The fact that the
Bishop patent contained no article claims is immate-
rial, since the product claimed by Brogden and Trow-
. bridge in 1925 inevitably. resulted from the practice.
. disclosed’ -by Bishop in 1901. It is an élemeuntary .
| principle of patent law that an article patent cantiot .
be secured where such article necessarily resulted
from a process described in an earlier. patent.
= is not believed: “necessary to consider at length
—_ >
3
all of the remaining claims in suit: Practically “the
ae only difference’ specified’ therein which has not al- .-
> ready. been discussed is the mild heating to about
115° to 120° F. of, the treating solution. Such heat--
_ ing has merely the well-known. effects’ of - aiding the
' dissolution of the reagent and increasing. its ‘activity,
and ‘does not cause any critical or essential change
in the process. All of the vlaims, it is submitted, are
unpatentable over the disclosure of the: Bishop patent.
Much stress has been laid upon the utility of the .
- process when applied - to oranges. As_ has, been:
‘pointed out previously, however, Brogden and Trow-
| bridge state that that is merely the greatest present
utility, of the process, and that the process may be
- tised on vegetables. Moreover, the Bishop patent. __
_ contemplated its application, to oranges, and,‘as a
matter of fact, the process, was. actually -used on: -
oranges (Transcript of .Record,. pagés’ 177 to 183).
But even assuming. that. Bishop did not. practice ‘his
procéss on oranges, and the case against the Brog-
den and Trowbridge patent must rest on Bishop’s* ~
statement that: his process was to be’ used on. the
- broad class of ‘‘fruit’’, there would be no invention
b] . :
by Brogden kind Trowbridge in applying Bishop’s
process specifically to oranges to accomplish ‘the same. .
result. As was stated in. Milligan and, Higgins Glue .
Company v. Upton, 97 U. 8.3, 6: . :
‘Where certain properties . are ‘known to be-
long generally to classes of articles there ean: be
‘ no invention in putting a‘new species-of the class.
in a condition for the development of its prop- ;
erties similar to that in. which other species of
the same class have been placed for similar de-
velopment.”’ oa é :
09 QO eRe aaa rerio
SEBS LOA
PES OE OES O° Ph
_ Eso
RRL ae Ss 25" OR
ra
oe
2
ASME 205 SLID EP ORE ae .
sof
a nein Gielen PRA niieBe
a ead CORA REA Pie Sata Bucs Stic
«324 PA Spe Nah
The earliest authoritative case upon ,this subject,
however, is the famous case of Brown v...Piper, 91
' U.S. 37, in which this: Honorable Court held: that
> the’ process \ of preserving fish. by ae ee was
unpatentable in view of a. prior ‘similar process for
_ preserving | corpses. After’ .referring to the prior
\
: process this Court stated (page 41): Belin te
‘Here was’ the application of the eonuiel e de-
gree of cold, exactly in the manner called. for in.
the specification of the appellee, .
“This is hardly denied; but it- is insisted that
“the: process was never r_ applied by the withess. to ur
the preservation. of fish and meats.
—___‘*The answer is that this was simply the ‘appli-
- cation by the patentee of an old process to a new
subject, without any exercise’ of -the inventive
faculty and withgut the development, of any idea -
which can be’ detined new or. eriginal in the sense:
of, the patent Jaw. “The. thing was within. tlie |
: circle of what was well known ‘before; and -be:
longed to the pyblic.* No one could lawfully ap- |
é “propriate. it og himself and exclude others from
* using it, in any usual _way for any purpose to
_ which it*may be’ desired to apply it. eo
“This is fatal ‘ed the patent. “Ames v. Howard,
: Sumn. 487; Howe v.; Abbott, 2 Story, 194; Bean ;
; Smallwood, 2 2 Story, 411; Winans v. R: Co., 2.
‘Story 412 ; Hotchkiss v. Greenwood, il How..
In the above case, the holding. is ‘to the effect that
_ the: arts of preserving fish | and preserving corpses
“are analogous, and the carrying over of a. process
from one to the other does not involve invention. -In
the present ease, Brogden and. Trowbridge have done
little more ‘than. fo attempt to restrict. the. process,
-~ used before on: ‘fruit?’ .(including’ ‘‘oranges’’), to a
- specific kind of fruit, namely, citrus fruits of which
- hydrogenized, on th
20
oranges are one variety. \.
* The principles of Brown v. Piper, supra; still. rep-_ |
resent the, view. of this couft.. We here’ invite par-
ticulay attention to the. case of Berlin Mills Company |
v. Procter aé Gamble Company, 254 U. S. 156, where
-. this. court, after an examination of the prior. art, with
the kiowledge of which the patentee was conclusively
charged, held invalid ja patent relating fo, a lard-like |
food product consisting of a vegetable oil .partially
& ground that ‘the: process ‘in
“suit. merely broadened such prior art to a new class
bf products, and that this did nét constitute inver-
tion. : ‘On pages 165-6 the court say: is ee
|
' © ] Sd
-mogeneous, substance by a process of hydrogena-
*- tion arrested before completion and. that:it.might -
be edible, This much of the art was public prop-:.
erty. and, open to general use, ° The product of
this process, was known and open to public use.
To supply such: products ‘as the ‘patentee has.
described in'the broad claims in sait.may have.
‘heen new and useful, ‘but does not. in’ our opin-
ion arise to the dignity “of invention, and. is an
advance step which would occur to one ‘skilled in +
the. art when investigafing-and considering: the.
Subject. °- |. x
This language is directly applicable to the facts in
the instant case; for Brogden and Trowbridge. were
conclusively ‘presumed to have: known .of the | prior
art, including the Bishop patent, and their applica- :
tion of the: Bishop. process to citrus fruits would not
amount to invention over stich prior art. Further-
ae ot
This record estahlishes. that, it was known be- |
fore Burchenal took up the subject that a vege- ,
‘ table oil could be changed into. a’ Semi-solid,’ ho- -
mene:
"ov
\
e ‘ \ o , ; *.
Rota at \
BE 2 OIA MOSS EISELE RE ARR
- ~— Lee PE at as Ai ora “ 3 .
: ,
.*
.
SP Sihaithte barristers midis ae RON Bo 8.
. .
-“~
,
'«
! Baker rv. Duncombe Manuf! uring Company, 146
; ol : e .
more, by the time of the Brogden and Trowbridge
application, the Bishop process and the product there-
of were ‘‘publie property. and open to general use.’
_ That the Cireuit Court of Appeals in deciding the
instant case, departed from these well-known and
controlling principles, is disclosed Dy thé following.
from its opinion (Transcript of Record, p. 577).
se 0 © *© | We'have an old and well-known sub-
stance applied in a new and useful way, and this
constitutes invention.’’ .
Had the court below given sufficrent weight to the -
Bishop patent, counsel are convinced the edurt could’
not have concluded Brogden and Trowbridge had
developed ‘ta new and useful’’ appliention of borie
acid. However, even conceding, for the purpose of
argument, Niat ‘there was a ‘‘new and useful way’’:
‘of application, mere novelty and utility alone can not
constitute invention. The ‘new and useful way’
‘must have been unobvious. To repeat (italies ours) :
_*To supply such products. as the patentee has
deseribed in the broad claims in suit may have
been new and-useful, but does not in our opin-
ion arise to the dignity of invention, and is an
advance step which would oceur to one skilled
xv
in the art when investigating and considering’
the subject.” (Berlin Mills Co, vc. Procter &
Gamble-Co., supra, p. 166.) -ofee
To the same effect are Met ‘lain &.-Ortmayer et al.,
14]. U.S. 419 (See page 32 hereof) ; Electric Boot and
Shoe, Finishing Company v. Little, 138 Fed. 732, and
Fed. 744,
nanutigeess * e*
_ *Indeed, as shown by the matters contained in the Appenilix, p. 37,
-the experiments of Brogden and Trowbridge followed exactly ‘upon the
lines of others made in the Department of ‘Agriculture nearly twenty
years. before, and we contend the results obtained would have been
ee = ‘mbjeet’? pe 35, in the art when investigating and con-
e su ’*, p. 25. These experiments of the Department of
pee Be in 1905 and of Brogden and Trowbridge in 1083 were
both within the disclosures or obvious applications of the Bishop
patent of the year 1901.
Pe i "Fe ‘ e = ’ : <
27 . F ?
It is submitted that the holding of the Cirenit Court’
‘of Appeals is contrary to the law of the. other cir-
cuits and the law laid down by this Hongre ourt,
as evidenced by the cases cited, . ~
V a:
If-the Brogden and Trowbridge Patent is held Valid,
- It will Constitute a Serious Abridgment of the
Rights of the Fruit Growers of the United States.
It is a fundamental principle of patent law that,
in consideration of the seventeen year monopoly.
granted to the invertor, the public shall be free. to
enjoy the invention after the monopoly has expired.
Or, to state the matter more specifically, after Bishop
. ae . . . ® .
had enjoyed his sevetiteen year monopoly, the fruit
growers of the United States were free to use his
process.- In such use of the Bishop process, more-
over, the fruit — would not be confined to the
precise process
that process in the light, of the knowledge common to
those skilled in the arf as amply shown by-authori-
ties hereinafter cited under this point.
Previously in this brief, it has been pointed out
that the essential steps of the Brogden and Trow-
bridge process are anticipated by Bishop’s process,
and that ‘any changes made by the later patentees are
non-inventive variations and expansions of Bishop’s
invention.. To grant a second monopoly to Brogden
and Trowbridge would, therefore, bé'a serious abridg- °
ment of the rights-of the American public, and more
' specifically, the fruit. growers of ‘the United States,
who, under the fundamentals of patent law, should
-. be free to use the invention after the first. mondpoly
isclosed by Bishop, but‘could modify -
98
had expired. Validation of ‘the Brogden and Trow-
bridge patent would be to place in the hands of -these
later patentees the power fo exact an unjust tribute,
over an additional period of sev enteen years, from
an important and basic industry of this country; a
tribute that would be onerous alike to the extensive
citrus fruit industry and to. thé American public
which consumes the products of that industry in ever
increasing amounts..
The present situation is not unlike that in the case
of Minerals Separation North. American Corporation
/
v. Magma’Copper Co,, recently.decided by this court:
and reported at. 280 U. S. 400. In that case, the peti- *
tioners owned two patents concerning mineral separa-
tion, and the validity of the later patent over the
_former oneywas iv issue. “On page 402 this court
’ stated: | .
‘‘The petitioners, admitting that both patents
4 are for pr ocesses, ‘says that they are fundamen- -
' tally different in their respective principles of
action; that in the present patent, 962,678, the
mineral frothing agent is dissolved in the water
and produces the metal- bearing bubbles, no one
knows exactly how, by ‘modifying the water’;
‘ whereas-in the earlier, 835,120, oil is used which
does not dissolve in the water but coats the
particles “of metal with a ‘thin coating of oil,
which it could not do if it were soluble, and thus
shows its preferential affinity when shaken up
with the metal pulp.
‘*The question, is not whut is the precise scope
of. the claims in 835,120, but what is disclésed
in the-specification and made known to the world.
Alexander. Milburn Co, v. Davis- Bournonville
Co., 270 U. S. 390.”
* . *- e @ - js * * e
: as
Again, page 403:
‘‘But we agree with the defendant’s scamainbies
* that no one concerned. in this business would care
a straw as to the. intimate nature of the action
if it produced ‘the result, and that No. .835,120
was not describing the work of. insolubles alone,
It was not attempting to anticipate a ther ry of
- the invisible, but to tell how the rasta: end
could be achieved with any of the different) things
named.’’ . |
* S eee, ae _ ea tee . # *
. , |
Further, on page 404: - Cae:
‘*'The patent navinde been ‘held. pat as to the
oils, although experiment was necessary to find:
out what oil would’ work best witli a given ore,
the disclosure was an anticipation, although ex-
periment might «be - ‘necessary to choose among
the substances having the required affinity the
one that would produce the best result.’’
It is respectfully submitted. that the present case
is much clearer, for in it there is none-of the uncer- ©
tainty as to the substituted reagents producing simi-
lar results, and no requirement for further experi- —
mentation to determiné such a question. The’ efficacy
of borax and other borates has tong been well known
to have preserving qualities similar to that .of boric:
acid. (See, Ter instance, Storer British patent No. ._
214 of 1888; Transcript of Record, p. 1599, lines 23
to 26.) It $diows. a fortiori, that the second monop-
oly should he‘denied in the present instance. —
In the foregoing section, only the Bishop patent
has been considered as showing the. use of reagents
containing the boric. acid radical as_ preservatives,
-
*
caer
VT gees Lanner een err eRe em
: " - :
«
al a i al et
\ ° °
30.
As a matter of fact, the record abounds with other
patents and publications showing the use of such |
reagents. The United States Patent to Gahn, 161,944 .
(Transcript of Record, p. 1546) discloses the ‘use of
a powder compounded of boracie acid and other sub-
stances, which is to be applied to fruit and other
"Vegetable products by rubbing and: ‘sprinkling over
"such articles. Indeed, Gahn states that a a solution
may be made from the powder, using as much as the
“water will dissolve, and the articles to be dieanacbihin
.. dipped therein.
‘Again, in the British patent. to Storer-No—2I4 of
+888-( Tra nseript of Record, page 1598). theré is dis-
aan. ‘
closed a-method of shipping and storing fruit which
consists im packing *such fruit in. sawdust impreg-
nated «with % solution of boracie acid or borax.
Oranges, lemons, and limes are specifically mentioned
_ by Storer as subject to his treatment.
The Bitting article and the Boesekin and Water-
-man article (Transcript of Reeord, pp. 1507 to 1521)
deseribe the effect of reagents containing the boric
acid radical in more. scientific terms. Kor the sake:
of brevity,sthese. and other publications and patents
showing the use of such reagents have not been dealt
with specific ally, since it -is believed that the Bishop
patent in itself_is sufficient to, show that the Brogden
and Trowbridge process is unpatentable. If, for any
‘reason, it should be thought that a further showing .
is réquired, the supplemental art referred to above
is believed to be more than sufficient.
It may be added that it is not-desired to: insinuate —
‘that there was any ad faith on the part of Brogden
and Trowbridge. These later patentees followed
along the footsteps of Bishop, apparently unaware
“4
31°
trie
-. that he had preceded them. -As a matter of fact, the
Bishop patent also escaped the Patent Office :in the —
prosecution of. the Brogden and Tr owbridge applica-
tion. But. such ‘matters cannot affect the — result.
- Brogden and Trowbridge and the public,’of course,
are charged with knowledge of all prior patents and
publications. Long prior to the later patentees,
-Bishédp had discovered the invention and fully de-
scribed it in his patent. Qn the expiration of that———~ -
patent, the field of invention-eovered thereby became
A public | property. The second grant of. the
same subject matter is therefore void. Or, to. view.
the matte as a contractual- one rather than as a
_ question of property, the. Brogden and Trowbridge
patent.fails for a lack of consideration: They had-no
hew invention to offer in réturn for their grant, for.
their ‘‘invention’’ had long before been disclosed to .
The public by. Bishop. te
| IV: . - A 5;
Adoption of a Process -by a Industry Should be
Evidence of Invention o y ina Doubtful Case.
The Circuit Court: of ienak for the Third’ Cireuit ’
made the following holding in the pr esent ease (Tran-
script of. Record, P. a7 77):
te “This new. treatment of citrus fruit was
_ adopted by the industry after elaborate tests. by
experts and citrus fruit organizations, which ‘is:
strong evidence of invention. Westinghouse Air-
Brake Co. v. New, York Air-Brake Co., 59. Fed.
O81, 593.7”. Pip ie : ;
The decision. of the Circuit Court of Appeals was
apparently gr ounded to a substantial extent on this ©
.
. ,
statement, oy it is respectfully submitted that, under
the doctrine Tong recognized by this court and ‘the -
“courts of: the several cireuits, adoption of a process —
by the: industry has no, bearing upon_a case, such as
the mstant one, As amply shown urider the preced-
ing point,; ther ‘Bishop patent substantially and fully
anticipated . the’ Brogden and Trowbridge process.
Such modifications ‘or amplifications as Brogden and.
Trowbridge may have made to the Bishop process
were those which would suggest themselyes to any
‘person skilled in the-art. There. can be no doubt
that such modifieations required no inventive genius,
but merely mechanical skill. The possibility, or per-
haps even the desirability, of these changes would be
apparent to quyone aequainted with the industry and ©
prior art,
The courts have. repeatedly cdationiad sealant the
dangers of over-emphasizing commercial adgpption in
determining the validity of a patent. For jnstancee,
in the case of Me ‘lain v. Ortmayer et al., 141 U.S.
419, this Court stated (pages 427, 428):
‘Counsel for the plaintiff in the case‘under
consideration has argued most earnestly that the
only practical test of invention. is the effect of
the device upon the useful arts—in other .words,
that utility is the sole t test of invention, and, in-
ferentially at least, that the utility of a device
is cortelusively proven by the extent to which .it
has gone inte — use. .
ee . ~ * . . aoe ner ae hed 6
That tle extent to which .a patented , device
has,gone into use is an unsafe.criterion even of
its actual utility, is evident from the fact that
- the general introduction of ‘manufactured articles
is as often éffected by extensive and judicious -
rat EDM TP RRO pine fir
-
eee.
we wie
a
advertising, activity’ in putting the goods upon — .
the market, and large commissions to dealers, °-
as by the intrinsic merit of the articles.them- —
selves. The popularity of*a proprietary medi-. .
cine, for instance, would. be an unsafe criterion
of gs real Value? since it is a notorious fact that.
the extent to which such preparations are sold. |
Is very largely. dependent -upon. the liberality
with which they. are advertised, and the -attrac-
tive manner, in which they. are put. up and -ex-
posed to the eye of. the purchaser.” phiaee
“Commercial adoption can only bé considered where
there is doubt.. Where, as in the instant case, the
|
- patented process clearly did not involve the exercise
of inventive genius, no amount of commercial ex- .
ploitation can validate an otherwise invalid patent. -
Adoption by the trade can never be used to both
create a doubt and ‘resolve it.. See Lord and. Burn-
ham Company v. Payne, 190 Fed-1+72; in which it.
was said (p. 179): | a iets —
‘*This boundary, of course, is hard of deniar- _
‘ation, and,. because it is-so, novelty and utility . }
are influential factors in determining invention, |
‘wher the mind, seeking a pronouncement by
‘applying the ordinary tests, is in doubt. The
resort to novelty and utilify, however, is.not_ to .°)
he made to create a doubt. Such qualities can-
not serve as both creator and solver of doubt.
It is only when the mind is in doubt upon the
consideration of the evidence affecting ‘the ques, |
tion of invention as against mechanical sugges-
tion, without regard to the thing being new and
useful, that such latter qualities are’ available
fo throw the balance in favor of invention.’?
/
- To the same effect, Wuer. v. Corbin Cabinet Lock’
— Company, 149 U.S. 216; and Slip. Scarf Company v.
/,
i
s
2
* Pilene s Sons Co, 289 Fed. 64, and. cases. therein
is submitted that the. Circuit, Court of : kets
the Third Circuit in the instant case did not
“Apply the law as laid down in the above cases, since
it made its holding .quoted at the beginning of this
., point before considering | the anticipating - effect of the
Bishop patent, which was subsequently. brushed aside
with the other prior art with the comment ‘‘There
was doubtless prior use of borax as ‘a preservative’’
In other words, ‘the adoption by the industry was used
to create, as well as to resoly e, a doubt. |
As a matter of fact, ‘the delay in the adoptign’ of
3
“the process may. be explained by: many other factors.
The Department of Agriculture was loath to recom. |
‘mend chemical tr eatment in view of the. public opin-
ion of those days—fostered’ by: the pure food crusade
of the late Dr. Harvey W. -Wiley—upoir the matter
of chemical ° preservatives ‘of food. Moreover, the
Department. and citrus associations were committed ~
to the program, of ‘‘careful handling’’ of the fruit, -
and they refrained from advoc: iting the use of chemi-
cal’ preserv atives (boric. acid and borax particularly )
‘for fear that f the growers were advised: to employ
ve there would .be a corresponding |
sth preserva
decrease in thé care exercised in the handling of the
fruit. And again, itis to be. remembered that much —
of the present commercial success of the process. is’
a to the efforts of thevactive corporation exploiting
To use the wide adoption ofthe process, depen-
sas upon such ‘factors, to becloud the issue’ of
novelty and invention, is improper. Sueh- adoption’
by the industry. -should be considered only. to resolve,
ff
a doubt, and not to create it.
a a
Tt is further - submitted, as previously pointed out
in this brief, that the Brogden and Trowbridge proc-
ess ilivolves no invention over the Bishop. patent, and
that there is thus no doubt to— resolve. - Or, to view’
the matter from another angle, whatever evidence ‘of
inventive subject-matter may be gathered from the
adoption of the. process by. the trade, the invention is.
that of Bishop, and not of Brogden and- ‘Trowbridge,
through whose greater energy and financial resources
’ the process was ‘exploited. before’ the public: As
pointed out in McClain v. Ortthayer, swpra,. it is not.
invention : ‘to bring to light the invention of another.
v. |
Conclusion. . >
“Tt. is see that the holdings of -the Circuit
Court of Appeals for:the Third Circuit to the effect
that an orange coated with an invisible and minute — =
quantity of. preservative was an article of manufac-—
facture, within the meaning of the patent. statute;::
that the application of an old process of preserving |
fruits and articles of food to-a specific class of fruits
_ constituted ‘invention, and that adoption of a proc- —
éss by the industry is evidence of invention without -
considering whether or. not the question of invention
was doubtful, are contrary to the principles of law
as established i in other cireuits and by this Honorable
c ‘ourt. ) i ee
It is accordingly subinttted. that the’ judgment Wig
dered by the Cirenit Court of Appeals for the Third
‘ Cireuit in the present suit should be reversed and
\
that the claims of the Brogden and Trow bridge pats
ent in-suit sneuld: be held invalid. -
-
“ _ Respect ully’ submitted,
CHARLIE. He. McC ALL,,.. 3
“Attorney-General, State of Algbams.
5
Nepales ian Brit” Benaste,* oe
| ‘ Attorney-General, State of Arizona. °
aa Naor US. Wers, - Ama eS
x | Attorney-General, State of California '
‘ «* °
este els Frep H, Davis, i ait ~ ae ea
ee ““Attorney- General, State of Florida. ack
~Georce M. Napier, 0}
‘Attorney: Gene ral, State: of Geor gia. :
Sn ten Piais Bike
SUR ace Attorney-General, State of Louisiana. = a
Robent Lee Boosie tT,
Attorney-General, State of Te ras,
November 2 25, 1930. SC a Ice eae oe
, APPENDIX: | :
When this motion and brief were in pa @ proof
form there w as deliv ered to counsel copy of a letter
Birigie ‘Nov ember 6, 1930; from the Acting Secretary bene
Agriculture, Honorable-R. W. Dunlap, and. ad--
s pee to Honorable, Doyle K. Carlton, Governor Seeat
| thee State of “Florida. or aee 4 a
As shown by: this letter a copy of which is printed
a ‘belong, the certificate of “the Secretary. of Agricul-
ture “dated: January 18;° 1927, being Defendants Jéx-
to the petitioners for lise before ‘the District, Court,
These records:conelusively: show that the Department
of Agriculture, by a series of experiments conducted -_
in the year. 1905 established, as the Acting Secretary
states, that ‘‘the:development of blue’ mold on citrus .
fruits was inhibited by dippits such fruits for a, few.
minutes ima sufficient - ‘sOhition of boric acid sand
further that any sin'plus of id ag crystals could
be removed from the fruit by. rinsing -in ‘fresh water
These records fully: corroborate the statements. made
on page 34 hereof, to the effect that the failnie of
the Departmént tos make © these definitely, . favorable
results known. to the trade was die. (a) \ tothe belief
- that public fear of chemically treated friit might
_ result in the boycotting of American oranges, (Letter
ee ‘ebruary 6, 1905, pp.-39- 40, and Letter February 15,°’
~. 1905, p. 40), and (b) to the. assumption that the utili-
gation of this’ process .Wwould. lead’ tp less careful. —
: handling | of the fruit. {Letter siding 8,. 1909, pp.
48-44.) ue eae rare
hibit Noe9 (‘Transeript | lof Record, 1475-80), furnished |
failed to have ‘incorporated, thereiri certain highly :
Important, material official records, of. his: Department, :
. due to failure. to Jocdte these records in the files of |
the Department, at /the time. of such certification.
without impairing the efficacy’ ef the treatment.” ”
» . . 38 ‘
The text of the Ag¢ting Secretary's letter follows
(italies ours) :
57
I have the honor to refer further to your telegrams
of October 21 and 28, 1930, requesting certified copies
of ° Departmentalgrecoris dealing with experiments:
involving the application of boric acid to citrus fruits,
conducted by the Bureau of Plant hidustry, copies of
_ Which records were not*contained under ihe Depart-
“men’s previous certificate dated January 18, 1927,
_ obtained by the parties in interest for use in the case
of American Fruit Growers, Inc., v.. Brogdex Com- .
‘pany, now pending in the Supreme Court of the
United States.
~ Jn compliance with your request, | am enclosing the
following described copies of newly discovered reports
relating to the subject matter above described as fol-
lows:
Date Nature 0 f Record
1904 ;
Dee. 31 Letter from H. C. Gore to G, Harold Powell
endorsed ‘‘four engloésures’’ but here ac-
companied by only two pakes of notes now
available, being a payt of the notes shown
in said Defendant’s ‘‘ Exhibit No. 9°’.
Jan.5 Letter from H. C. Gore to G. Harold Powell
\ with five pages of notes and a sixth page
showing a photograph of oranges with no-
tations reporting on continued like boric
acid work and discussion of same between
Messrs. Taylor, Fulton, Scott and Gore. It
is to be considered that these notes which
are dated January 3, 1905 seem’‘to fill a gap
between: the first two pages and.the last
four pages of such certified record (Defen-
dant’s ‘‘Exhibit No. 9’’), and that there
/
Date
Jan. 0.
39 ©
was an indication of an-omission of said_
_ certified record from the fact that.the first
two pages are numbered 9 and 10 and the
remaining pages numbered 16, 17, 18, 19.
Nature of Record
Letter from William A. Taylor, Pomolo- ;
gist in-Charge of Field invéstigations, to G,
Harold Powell referring to the boric acid ¢
work, its “very striking results in the line ©
of preventing rot development”? and the
. conference thereon, as last above referred
J an. 10
- Jans 11
Date
Jan. 13.
to.
Letter from H. C. Gore to G. Harold Pow ell
reporting further on said borax treatment
and enclosing four pages of notes which-
form the conclusion of said certified record
_ (Defendant’s ‘‘ Exhibit No. 9’’/ pages 1477-
1480); also a fifth page showing’. ——
graph of oranges with notations.
Letter from G. Harold ‘Powell to W. A.
Taylor answering letter of January 5th,
discussing treatment and commenting
‘People shy at.the word borax now a days ©
and I have not thought of suggesting it
until the boys work a good deal more on it. |
Then we may try, it on Ge quiet on a com-
‘mercial scale.’’
Nature of Record ae
Letter from G. Harold Powell to H. C. Gore -
replying to. reports on boric acid treatment . .
referred to as ‘striking’, discussing same
and referring to danger of draw-baek from
a commer¢ial standpoint. “*The trade shies:
at its own shadow and a borax panic could, |
easily be worked up by the dealers in —
* erystal
Jan. 17 Ctaciating date .of report on work in con--
tinuation of that previously certified as |
~ Jan: 20
Jan. 20
Feb. 6
40°
s os
foreign lemons who are fierce competitors
with the Californians.’’ ‘Experiments sug- ,
gested to determine . minimum efficient
strength of acid and minimum duration of
. dip, with reference to possibility of redue- -
ing al strength to the point where no
lization on the fruit would be shown,
shown by Defendant’s ‘*Exhibit No. 9’’.
Particular attention is requested to the
conclusion made known and recorded in
connection. with Experiment 8, to wit,
“‘The experiment indicates that by the ten
minute dip in .saturated boric acid: solu-
tion, the abraded portion of the fruits will
be Protecte from decay caused by spores
falling. ist them after the boric acid
treatment.’’\ Further particular attention
is requested to the determination of. ef-
fective strengths as found by Experiments
11 to 16, inclusive.
Letter from H. C. Gore to G. Harold Powell
reporting further on the progress of said
work and enclosing a copy of the last men- _
tioned report, Schedule 8.
Letter from W.-A. Taylor to G. Harold
Powell. acknowledging letters of the 9th,
lith and 13th inst. and telegram of the
14th inst; particular reference made. to
‘work on ‘determining efficacy of various ;
strengths. of solution.
Letter. from W. M.: Scott to G. Harold
- Powell reporting that 3 per cent strength
of. boric acid used as a dip to prevent the.
development of the Penicilliwm rot in
*
- shipments.
=.
oranges and lemons acts almost perfectly;
refers to prospective cooperation of Mr.
Tenny in California and prospective test.
Nature of Record °
Reply. from @. Harold Powell to W. M.
Scott promising additional observation tests
in California and also commercial shipping
tests ‘‘in a ear going to Washington or to _
some near-by point’’. This letter expresses ©
much interest in the Gore-Scott. tests, as-
_ “suggestive of the value of the boric acid
treatment for the purpose designed,’” but
adds, ‘‘I am somewhat. skeptical, however,
in regard to the use of boric acid for ‘this
purpose, as I am afraid the trade would be
very scary if it should get hold of the fact |
that any California fruits were dipped in
this material. It would especially stir up
our German friends.’” - - ~~
> / ;
U. S. Department of Agriculture, Bureau
of Plant Industry, Cireular to the Citrus
Fruit Industry, signed G. Harold Powell,
Pomologist in Charge Fruit Storage In-
vestigations.
This Circular stresses with, much de-
.tailed discussion the prime importance
_of careful handling... For purpose of ref-
erence, there is attached to it here a
letter from G. Harold Powell to W. A.
Mar. 6.
Taylor, of January 13, 1905, setting out
the beginnings of the careful handling in-
vestigation and some of the difficulties met
with in practice. |
Report of field work of G. Harold Powell °
for week ending March 6, 1905. This re-
> °
Mar.8
Mar. 20
Date
Mar. 27
port shows results of boric acid tests with
lemons and oranges, apparently examined
at Prenda Packing House, Riverside, Cali-
‘fornia, March 6, 1905.
Letter from. G, Harold Powell to W, M:
Scott. Apparently this letfter-has not been
found.. Kis indicated by a reference con-
tained in, 'M. Scott’s reply, Schedule 16.
Letter from W: M. Scott to G, Harold
Powell acknow ledging receipt of G. Harold
Powell’s letter of March 8, giving figures
‘quite favorable — to the treatment’
(‘*Test with bori¢ acid on —_—— and
lemons.’’) ;
N ahur e of Record
Letter from. G. Harold’.Powell to W. M.
Scott advising that press of work connected |
with orange shipments has prevented any.
shipments ‘of lemons treated with -horie
acid, as anticipated in Scott’s letter of
"March 20. But Powell adds, ‘I hope that
Apr.12
we may be able-to get at this within the
next two or three weeks and make, several
shipments direct to Washington.’
Letter from H.C, Gore to W ‘liam A...
Taylor purporting to enclose tables of exr-
periments with bpric acid and lyemons, and
Apr: 20,
‘Taylor reporting on the points last men-.
discussing the results, in detail, as favor-
able; also suggesting ‘further experiments
to. test two points, gw previous soak--
ing or rinsing after ping hinders the
action of boric acid on iS fungus growths.
Letter trom 41. C, Gare to Wits A
tioned, to-wit, that previous: soaking in _
,
1909
. Oct. 26
water for ten minutes interfered with the
action of the borie acid extended dip, ‘‘ but
that rinsing has no such prejudicial effect:
upon the action of boric acid,’ under. x
preceding dipping in the borie acid solu-
tion. It is to be noted that the reports re-
ferred to as inclesed in -this letter and the
reports referred to as inclosed in the letter
of April 12, Schedule 18, have not been
found so far as we can learn!
‘Letter frém G. Harold. Powell to A. D.
. Shamel, Physiologist, Pasadena, California, *
_ referring to proposals concerning ‘‘the use
of bicarbonate of soda—for—bhig mould.’?
‘“T will try to look ap the’ notes and see
what ‘we did on this the first-year we went
to California.’ We did a good deal of work |
at Prenda-and found no difficulty in: killing
the blue mould with strengths that did*not-
injure the lemons. However, we did not
follow this further, as I did not think it
-~& good policy :to encourage any method. of
Nov. 8
retarding blue mould ‘other than’ sound
lemons. The work in California shows that ”
the lemon, properly handled, does not: de-
‘cay from blue mould. We have therefore-
not thought it wise to develop any short-
eut. methods of retarding the rot, as this
in. the careful handling -methods' * *
‘would shortly be. followed bya letting-up-
«ee
‘I wish you would think along this ‘line
somewhat from the standpoint of geneial
policy in connection with ‘the industry and
- see if you do not agree with me.”’
Letter from G. Harold Powell to A. D.
Shamél pursuing at much length the letter
of October 26, Schedule 20,. ‘Tf was inter-
ested in your remarks regarding the use of
44
o
sodium. carbonate solution for blue mould.
I do not think there would be very much
_ trouble in finding, some: of these solutions,
but as L wrote vou before, | think it would
a fungicide should: be adopted even to cut
out decay in the scarred. and bruised lemons
to which you refer, There would certainly
be a let-up in the practices s that arse funda-
mental jp keeping the, product: sound if the
\ _ . average’ grower could. depend upon the
an fungie ide to overcome a definite piece of
careless work.. Just as soon ax the grower
up in others, For that reason, I -have al-
- ways felt like holding rigidly in California
to careful -handling-as the only meéans of
-refarding the .common “blue mould. By
_ doing. se, foam satisfied that it has had
TY «pletidia effect upon other operations in
ie ye lemon industry. There are some in
ividuals whe might be able; to-uwse func
cides and who would not let up; but they.
care few anil far between.""
“Ty further compliance with vour request, you are
informed that these additional reports were not founel
at the time the certificate of January, 18, 1927, was
executed, but were discovered more or less by acei-
dent during a searvh for other old ree cords j in or ahont
‘the month of. February, 1930, and from time to time-
thereafter. ©
These additional: yeturds were nel pain in the -
first “instatice beeause the files containing them had
heen taken out of the regular or current’ files, and
_ stored. They appear to have been moved from time
to time, thereby rendering it’ difficult to find them.
~The failure -to ‘certify these records in. the first: in-
stapee. was of course due in no way te, a tack - of
diligence on the part of the American Fruit. Grower-
ae ae Daan ee
be distinctly detrimental to the industry if:
lets up in one fundamental, he’ always lets:
i . ‘ +* 5 . i Suerte ee
45 : See tT
Briefly, jks’ comma: previously: certified: together
with these additional reports -and correspondence,
show that under a series of experiments conducted by
the Department, the development/ of blue mold. on
citrus fruits was inhrbited by dipping. such fruits for
a few minutes in a. sufficient solution of boric. acid -
and further that-any surplus of borie acid crystals
could be removed from: the fruit by rinsing in fresh
water without impairing the efficacy of the treatment.
A copy of this letter, together with a. set of the cer-
tified copies énelosed, have this day been sent. to.
Messrs. Mohun & Ellott, Attorneys at Law, Trans-
porta ition Building, Washington, D.C. a
Respectfully,
R. W. Dunuap,
Acting Secretary. |
The copies ‘of the reports referred to: are not here ;
ineluded because. to do so would unduly extend this
appendix, A complete set of the certified photostatic
copies: of such reports is. being filed contemporane-
ously with the Clerk of this Court, ache
This official communication. and these ‘departmental
‘records which constitute a part of such letter ‘are |
proper subjects of judicial notice. See United States
v. Brewer-Eliott Oil and Gas Company, 249 Fed. 609,
affirmed 270 Fed. 100, and by this C ourt 260 U. S. 77.
The trial court in that éas¢ said : :
The objections urged to ee ules (from the —
Secretary of War), wriften after the trial of this
epse, and submitted’on service of copies, are
held not tenable as judicial notice should be taken
of them (249 Fed. 619).
See also - American Banoan Company v.. United
Fruit C ampany, 160° Fed. 184, 187.
Copies of this motion, brief and appendix: have been
duly, served upon counsel for petitioner and respon:
dent. ‘
v
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.