Record and brief — The New Process Fermentation Company, Appellant, vs. Magdalena Maus, Albert C. Maus, Frank A. Maus and Mathias Maus
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TRANSCRIPT OF RECORD.
- SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, I!8326.
No. 298.
THE NEW PROCESS FERMENTATION COMPANY,
'e APPELLANT.
| on):
| MAGDALENA MAUS, ALBERT C. MAUS, FRANK A. MAUS
| ee AND MATHIAS MAUS.
j APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
| THE DISTRICT OF INDIANA.
{ : - ’
;
FILED SEPTEMBER 15, 1884.
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SUPREME COURT OF THE UNITED STATES.
a | OCTOBER TERM, 1886.
: ) No. 298.
THE NEW PROCESS FERMENTATION COMPANY,
APPELLANT.
' US.
MAGDALENA MAUS, ALBERT C. MAUS, FRANK A. MAUS
AND MATHIAS MAUS.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
‘THE DISTRICT OF INDIANA.
Original. Print.
| l
RIO cence nine Senate sao 5 Soak Saisie baaehassiaedk Mccigllea Ghaespaldiid aiehiiiasoteiae
ORT 0 SINE ag sorties des oe sha eens ane ae laa 2 I
Exhibit—Leiters Patent No. 215,679 granted George Bartholomae,
assignee of Leonard Meller & E. Hofmann, May 20,
RIED kine -<iinneniesss sceebcnn tate! <eihakahdiahs abeiliaiia alaliaalial wind te sana > D
10 10
Appearance ena OO OMEN NE NE ee I AER INR ca Ment eh So NN cmt TN, Se ae Ua ee ee gE
Ameer OE TERR Fe OF li. in spins Saas ones # Bas Bien
Orders extending time to file answer of Casper A. Maus ef¢ al. ._-- -.-- 18 3
Mirae OE FER TEI OE OE ae acct: whitey sh tase nf ei simone 0 20 13
DE SE CI Es TENE ain isn Mico nnn cuisine 28 2
20 92
ION ois Scie Scent tee eerte semsanincinty | ss virin neat tesla haa a eats, Sts
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ot
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om
Onder appeimting Gpecisi @xeMiner ~ <2 2.5 csi Sige Si cen ~~
Order extending time to take defendants’ proofs ....------ -----. ---- 9
a i cece siepctulaiags cael dasa ca AAC aud de alate 39 24
a i a Bed On ea a 29 O4
So
eabantieth 0 Gat COUN ais i nn macs ceanin seen sce naan le olla are 29 25
ie OE OG ais ics Saks tein nc a ee ee oe 37 5)
> 62 21
Complainants’ prima facie evidened ...... 2.65 ncn -~
Charter of The New Process Fermentation Co. .__----- -~--- as 32
: ’ . > © ~ a J ’ ,
Assignment of Letters Patent No. 215,679 from Geo. Barthol-
omae to New Process Fermentation Co., February 19, 1880-
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JUDD & DETW “MILER, PRINTERS, WASHINGTON.
be Se er
INDEX.
Original. Print.
aettimony of Otto Twelteeen occ subs nc ks eins ses oo eis 45 a
George Bartholomae —_-~- Breer, ven ease RO oe _ oO 4]
erm ran” a ae aa ae Lee ee 52 44 .
Testimony of Dr. ee en Teen erate tage Mtn crear tt Ok 53 44 *
Jacob W. Loeper- ~-...- beret a Aaa oe ane Ca 60 52
iP pai lr <I iia = Sn se i a i oe ane G1 52
George Me i ee a hs 69 62
Mathias: Aiea a 71 66
ee” ae. ae.” Pa menetcrnntaetage Sem aMeninnrounr er mntE Mie sr 79 70
TPN gy ne eae need ee A ONL REMI RE Mince LO?
Exhibit ‘* Wallace Patent ’’—Letters Patent No. 62581 granted |
Geo. Wallace, March 5, 1867- 85 iS ae
‘ Wick’s Patent ’’—Letters Patent No. 63636 ¢ranted
Thos. R. Hicks, April 9, 1867 88 ° 84
‘Deitrichsen Patent ’’—Letters Patent No. 90849
eranted Wm. Deitrichsen,
My Dik SI orcs ce Si eatin 90 86 .
‘Gilham Patent’’—Letters Patent No. 115,950
eranted Wm. Gilham, June
—
Roh, Bie Bk es ee ate YZ 88
‘Bartholomae Patent ’’—Letters Patent No. 201,982 /
granted Geo. Bartholomae,
ROI Ds FO uk hie ne 98 92
‘Shlaudeman Patent ’’—Letters Patent No. 204,687
granted Henry Shlaudeman,
Pe Oo SOS a ea 95
‘Pfaudler Patent ’’—Letters Patent No. 205,572
granted John M. Pfaudler,
es a i tnikinses eheeiciicnlccaentss 106 97
“Straub Patent’’—Letters Patent No. 208,771 granted
Theo. F. Straub, October 8,
We a ee
‘Fehr Patent ’’—Letters Patent No. 215,596 granted :
Frank Fehr, May 20,1879 _. 116 102
‘Translation ’’—Translation from ‘ Vorsechule. du
109 99
Bierbrauerei,” part V, section ‘
24, EK, Ne, BO siiiite nes terianieened oh 118 104
‘* Circular ’’—Circular of The Wallace Improved
Fermentation Company --_--- 119 105
Testimony of Frank ‘A. Maus ._-. ---._- RAS Se a Mee Se 120 105
Sti nwiekion Oe BO CUMIN is. wiisnews sees eater ete 121 106
i Application of C. A. Maus for patent, July 20, 1878----..-_ 121 106
| | Tn. ee. Bee POP CS a a eee 116
Comipiainant’s CviGence 1@ PODUTIAL So ok. ok Sc nee See 135 124 iin
Teatitnony of Prec’ kK 2. BRCNRAUS 5. os oon cee 8 een 135 124
Exhibit No. 1—Dr. ©. Stahlschmidt’s article on ‘“‘ The Lager
Pormentation of Beer? 138 128
No. 2—Prof. Ladislaus von Wagner’s article on
‘‘ Hastening the After Fermentation and
FUNNIES ce er ee 133
No. 8—Dr. Carl Lintner’s.article on ‘‘ The Treatment
ae se 134
"
Fok Re tb ENOTES RR RNR iG SE | 58
reese ee oe anna Ae
ook RC eo nae ie
INDEX.
No, 4—A. Schwarz’s article on “ Bunging by Means
of CavGomne etd Get” on oc ccnnnncs
No. 5—A. Schwarz’s article.on ‘* The Bunging Ap-
SERENE TS OI i es cece tenn
Testimony of Fred’k M. Ruschhaupt (continued) --_-. ---- is
Waid. OO bia
WERE De REE inc Nain i wks oe te
TN i a tiscali: sheila staceibaalebl leben soda sal, ies ana
Ee a iets bdo bes chee ce ccs hc ec tei canara
‘
Original.
148
147
151
172
175
200
202
Ill
Print.
136
141
146
170
173
201
202
a
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NEW PROCESS FERMENTATION CO. VS. MAGDALENA'’MAUS ETAL. 1
1 Pleas of the circuit court of the United States for the district
of Indiana, begun and holden at the United, States court-
house in the city of Indianapolis, on the first Tuesday of May,
-In the year of qur Lord one thousand eight hundred and
eighty-four, before the Honorable Thomas Drummond, judge of
said circuit court, and the _— le Wilham A. W oods, judge
of the district court of the United States for the.district of Indiana,
and ex-officio judge of said circuit nce
THE New Process FERMENTATION COMPANY _ )
VU.
MaGpALENA Maus, ALBERT M. 1us, Casper > 7060. Chancery.
J. Maus, Frank A. Maus, and. Marutas A. :
Maus. ; J
Be it remembered that heretofore, to wit, at the November term
of said court, on the 15th day of December, 1880, before the Hon-
orable Walter Q. Gresham, one of the judges of said court, the fol-
lowing proceedings in the above-entitled cause were had, to wit:
“Comes now the complainant by Banning and Banning, its solic-
itors, and files ite bill of complaint herein in the words fol-
2 lowing, to wit:
To the honorable the judges of the circuit court of the United Stat
for the district of Indiana: |
“The New Process Fermentation Company,” of Chicago, Ilinois,
a corporation duly organized and existing un os and by virtue of
the laws of the State of Illinois, and a citizen of the State of []linois,
brings this its bill against Magdalena Maus, a he Maus, Casper
a Maus, Frank A. Maus, and Mathias A. Maus, « of the. city of In-
dian: apolis, in the State of Indiana, and citizens of oo State of In-
diana, doing business under the firm name and style of C: Maus, in
sald city ; and the ‘reupon your orator complains and says—
I. That prior to the 30th day of November, A. D. 1876, Leonard
Meller, of Ludwigshafen-on- -the-Rhine, Bavaria, and E \dmund Hof-
mann, of Mannheim, Baden, Germany, were the original and first
inventors and discoverers of a new and useful apparatus and im-
provement in processes for making beer, for which, upon due ap-
plication, letters patent were issued by the French and Belgium
governments to the said Leonard Meller and Edmund Hofmann,
under the name and style of Leo. Meller & Co., dated, respectively,
November 380, 1876, and February 28, 1877; that shortly after ob-
taining said patents the said Meller and Hofmann explained said
apparatus and process to George Bartholomae, of Chicago, I]linois,
for the purpose and with the intention of introducing the same into
this country and obtaining a patent therefor from the United States
Government, and to that end and purpose constituted and appointed .
the said Bartholomae their true and lawful agent and attorney ; that
thereupon the said Bartholomae immediately introduced said ap-
paratus and process into use at Chicago, Illinois, and took steps to
procure letters patent of the United States therefor, but being per-
sonally ignorant of and_ inexperienced in the requirements of the
1—208
Lot LD agi eS over ae Ae Pewee
2 THE NEW PROCESS FERMENTATION CO. VS.
patent law. of the United States, and relying entirely upon the coun-
sel and advice of i others in that respect, by inadvertence and mis-
take he caused the application for such patent to be made in his
own name and such patent to be issued to him personally, the same
being No. 201,982, dated April 2, 1878; that some time after said
patent had been issued the said Bartholomae and the said Meller
and Hofmann ascertained that it should have been apphed for and
issued in the nume of the said Meller and Hofmann as inventors
and notin 1 96 of the said Bartholomae; that the TeUpo ynand on the
42th day oO f Fe bruary, 1879, and before said invention had been in
public use or on sale in this country for more than two years, the
said Meller and Hofmann caused an application to be filed in the
Patent Office at Washington to secure letters patent of the United
States to be issued to themselves, in due form of law, for said ap-
paratus and process; that by an instrument in writing, duly re-
corded in the Patent Office at Washington before the issuing of the
letters patent apphed for, as last aforesaid, the said Meller and Hof-.
man, for a valuable corsideration, sold, assigned, transferred, and
‘set over to the said George Bartholomae all their right, title, and in-
terest in and to the said invention in and forthe whole of the
5) United States,and authorized and requested the Commissioner
of Patents to issue the said letters pate nt t when granted to the
said Bartholomae as the assignee of their entire right, titte, and in-
terest in and to the same, for the sole use and be hoof of the said
wate and his legal representatives ; that letters patent of the
United States, No. 215,679, dated May 20, 1879, in due form were
accordingly issued to the said Bartholomae, as the assignee of the
said Meller and Hofmann, granting to him, his heirs, admtnistra-
tors, and ame for the term of seventeen. years from the said 20th
day of May, ). the full and exclusive right of making, using, and
vending to hee to be used, the said invention, subject to the lim-
itation prescr Ibed by section 4887 of the Revised. Statutes, by reason
of the I'rench patent, dated November 80,1876, and the Belgitim
patent, dated February 28, 1877, as by reference to said assignment
and said letters patent, or certified copies thereof, here in court to be
produced, and a copy of which patent is hereto attached and made
a part of this bill, will more fully appear.
If. That by virtue of.written assignments, given for good and yal-
uable considerations and duly recorded inthe Patent Office at Wash-
ington, your orator became and now is the sole and exclusive owner
of the entire right, title, and interest in and to said letters patent
No. 215,679, and 1n and to all damages occasioned by the infringe-
ment of said patent, and all gains, profits, savings, and advantages
made and received by others by reason thereof, and is by law entitled
to sue for and receive the same to its own use.
[iJ. That said letters patent are of great value and the public
generally acknowledge and acquiesce in the validity thereof; that
the following- named. brewers, and many others, have purchased
licenses thereunder, namely:
Bartholomae & Leicht Brewing Company, Conrad Seipp Brewing.
Company, Matthew Gottfried, Bartholomae W Roesing, and Schmidt
MAGDALENA MAUS ET AL. , 3
& Glade, of Chicago, Ilinois; the Phillip Best Brewing Company,
Joséph Schlitz Brewing Company,and Valentin Blatz, of Milwaukee,
Wisconsin ; George Ehret, George Ringler & Co., Jacob Hoffman,
Jacob Ruppert, and Susann \ Kre ss, of New York C ity; Otto Huber,
of Brooklyn, N. Y.; KH, Burkhardt, of Boston, Massachusetts - E.
W. Voigt, August Goebel & Co., Charles Endriss, Kling & Co., Martz
Bros., Frederick Ditmer, and A. Michenfel ler, of De troit, Michigan ;
the Bartholomae Brewing Company, of Rochester, N. 'Y.: Albert. -
Ziegle, of Buffalo, N. Y.; J. & A. MecKechnie, of Canandaigua, N.
Y.; Christian a of Mendota, Illinois; Schalk Bros., and
Joseph Heusler, of Newark, N. J.; Jacob Mall, of Cleveland, Ohio;
J. Kuebelér & C o., of Sandus sky, Ohio; Pier, Danials & Co., of Pitts-
burgh, Pennsy lvani: a; Bergner & Engel, of Philadelphia, Pennsy]-
vania; Gunther & Gehl of Canton, Maryland; Geo. Bauenschmidt,
of Baltimore, Maryland; August Fuerman, of Watertown, Wiscon-
sin; Christian Heurich, of Washington, D. C.; Geyer Bros., of Rah-
way, N. J.; Mayer & Bachman, of Chi fton, N. Y.,and Anton Meyer,
of Terre Haute, Indiana; that of said brewers above named the said
Phillip Best Brewing Company, Schmidt & Glade, A. Goebel & Co.,
and Geyer Bros. settled and purchased licenses after suits for in-
fringement of said patent No. 215,679 had been commenced against
them, respectively, and that in the aggregate all of said brewers
have paid or agreed to pay for such licenses and for apparatus for
applying said invention a very large sum of money, to wit, the sum
of more than one hundred thousand dollars.
4 LV. That since the granting of said letters patent No. 215,679,
and at divers times and occasions between th: at time and the-
filing of this your orator’s bill, Magdalena Maus, Albert C. Maus,
Casper J. Maus, Fr: ank A. Maus, and Mathias A. Maus, the defend-
ants herein, well knowing the premises, and in infringement of said
letters patent No. 215,679, and in violation of the exclusive rights of
your orator the reunder, and without the license of vour orator or
the said Bartholomae, or any one ever interested in said patent, at
Indianapolis, to wit, at the district aforesaid, have used and still
continue to use the said invention patented as aforesaid, but to what
extent your orator is unable to say; that your orator has notified the
defendants of the said infringement and requested them to desist
therefrom, but they have continued the same; and that by reason
of said infringement great injury has resulted to your orator and
great gains and profits have accrued. to said defendants, the full
amount of which is unknown to your orator, but which in equity
belong to it and should be accounted for by said defendants and
paid over to your orator as the avails of its exclusive rights aforesaid
and profits and gains which it would have derived therefrom but for
the unlawful acts of the said defendants.
V. That your orator has no adequate remedy in the premises,
save in a court of equity, where matters of this nature are properly
cognizable.
V I. Wherefore your orator prays—
That the defendants m: ly answer the premises and m: Ly fully
Peek the number of barrels of f beer they have mi inufactured under
4 THE NEW PROCESS FERMENTATION CO. VS.
said patented process and the number of apparatus they have used
in applying said process since the said 20th day of May, 1879.
That the defendants, their agents, attorneys, Serv ants, and work-
men, each and every of them, may be restr: ained and enjoined, as
well preliminary and provisionally as perpetually, from the infringe-
ment of said patent No. 215,679.
That an account may be taken of the number of barrels of beer
that defendants have manufactured under said patented process and
of the number of apparatus they have used in applying said process
since the date of said patent No. 215,679, and of the gains, profits,
and advantages they have derived therefrom, and that the defend-
ants may be decreed to pay over to your orator any and all the gains, ,
profits, and advantages, to be duly d¢ termined, which they have
made, derived, or received from the use of said patented invention
in violation of your orator’s rights as aforesaid; that tlie defendants
may be decreed to pay the costs of this suit, and also all damages
resulting to your orator from their use of the said patented inven-
tion, together with such inerease over the actual damages suffered
‘as is warranted by law and may seem to your honors Just and proper,
and that your orator may have such other and further. relief in the
premises as to this honorable court shall seem meet and just and
agreeable to equity.
‘To this end cc it please your honors to grant unto your or itor—
1. The writ of subpcena issued out of and under the seal of this
soneen i court, directed to the said defendants, Magdalena
D Maus, Albert C. Maus, Casper J. Maus, Frank A. Maus, and
Mathias A. Maus, commanding them by a certain day and
under a certain penalty to be and appear in this honorable court,
and then and there to answer the premises and stand to and abide
by such order and decree as may be made against them.
2. The writ of injunction, as well prelimin: iry and provisional as
perpetual, issuing out of and pais the seal of this honorable court,
enjoining and restraining the said defendants, Magdalena Maus,
Albert -C. Maus, Casper J. Maus, Frank A. Maus, and Mathias <A.
Maus, the ir agents, attorneys, servants, and workmen,:and each and
every of them, as heretofore in that behalf prayed.
And your orator will ever pray, ete.
NEW PROCESS FERMENTATION
COMPANY,
By GEORGE BARTHOLOMAE, President.
BANNING & BANNING,
Solicitors for Complainant.
F. W. COTZHAUSEN,
P. CG, DYRENFORTH,
Of Counsel. | ;
MAGDALENA MAUS ET AL. 5
UNITED STATES OF AMERICA.
NorTHERN District o£ ILLINOIs, t.
State of Illinois, Cook County, hay
George Bartholomae, president of the New Process Fermentation
Company, the above named complainant, being duly: sworn, upon
oath says that he has read the foregoing bill of complaint and
knows the contents thereof, and that the same is true of his own
knowledge, except as to matters therein stated on information and
belief, and as to these he believes it to be true; that he verily be-
lieves the said Leonard Mellerand Edmund Hofmann to have been
the original and first inventors and discoverers of the invention de-
scribed and patented in said letters patent No. 215,679; that said
letters patent are in all respects good and valid in law, and that
said complainant is the exclusive owner thereof, as alleged in said
bill. . |
GEORGE BARTHOLOMAE.
Subscribed and sworn to before me this 10th day of December,
A. D. 1880.
[ NOTARIAL SEAL. | - PHILIP C. DYRENFORTH,
Notary Public.
(Copy of Said P atent No. 215,679.)
Tue Unitrep STates oF AMERICA:
No. 215,679
To all to whom these presents shall come:
Whereas, Leonard Meller, of Ludwigshafen-on-the-Rhine, Bavaria,
and Edmund Hofmann, of Mannheim, Baden, Germ: inv, have pre-
sented to the Commissioner of Patents a petition praying for the
erant of letters patent for an alleged new. and useful improvement
in processes for making beer, they having assigned their right, title,
and interest in said improvement to George Bartholomae, of Chicago,
[llinvis, a description of which invention is contained in the speci-
fication, of which a copy is hereunto annexed and made part hereof,
and have complied with ‘the various requirements of law in such
cases made and provided; and |
6 Whereas, upon due examination made, the said claimants
are adjudged to be justly entitled to a patent under the law
Now, therefore, these letters patent are to grant unto the ar
George Bartholomae, his heirs or assigns, for the term of seventeen
yea s from the twentieth day of May, one thousand eight hundred
er seventy-nine, the ‘exclusive ri¢ht to make, use, and vend the
said invention throughout the U nited States and the Territories
thereof, subject to the limitation prescribed by sec. 4887, Rev. Stat.,
by reason of French pate nt, dated November 30, 1876, and Belgium
patent, dated February 28, 1877.
In testimony whereof T have hereunto set my hand and er
the seal of the Patent Office to be affixed, at the city of Washington,
WHER Les Kas
7 aR wae
SO RecN EIB AA ata tee ee,
6 THE NEW PROCESS FERMENTATION CO. VS.
this twentieth day of May, in the year of our Lord one thousand
eight hundred and seventy-nine, and of the Independence of the-
United States of America the one hundred and third.
£53 : A. BELL,
3 | : Acting Secretary of the Intervor.
Countersigned :
W. H. DOOLITTLE,
Acting Commissioner of Patents.
Specification forming part of Letters Patent No. 215,679, dated May
20, 1879; application filed February 12,1879; patented in France
November 30, 1876, and in Belgium February 28, 1577.
To all whom it may concern: : .
Be it known that we, Leonard Meller, of Ludwigshafen-on-the-
Rhine, in the State of Bayaria,and Edmund Hofmann, [of] Mann-
eim, in the State of Beden, Germany, have invented certain new and
useful improvements in the art of making beer, and we hereby de-
clare the following to be a full, clear, and exact description thereof,
reference being had to the accompanying drawing, making a part
of this specification; in which the figure represents an end view of
our apparatus with the water-column in section.
. Heretofore, in brewing beer, after cooking and cooling, the beer
has been put into open vessels to ferment. The fermentation lasts,
say, fifteen days, and then the beer is drawn off from the yeast into
large casks nearly closed, where it remains from one to six months
to settle, and among the sediment there will still remain some yeast.
The beer is then pumped into shavings casks and 1s mixed with
young beer (kraeusen), which starts a mild fermentation, lasting
from ten to fifteen days, until the generation of the gas is reduced
to a minimum. During this fermentation the beer effervesces
through means of the carbonic acid gas rising, and the lighter parti-
cles of yeast and solid matter are thrown to the top, forming a foam,
which, during the ebullition, runs over the edges of the opening in
the cask, and carrying along a small portion (more or less) of the
beer, which is wasted, and this waste has to be replaced by refilling
with new beer daily. This wastage we estimate, from practical ex-
perience in the manufacture, to be about one barrel in every forty,
more or less. ‘This waste beer, running down around the casks and
on the floor of the cellars, sours and produces a mildew, which im-
pregnates the air with foul vapors highly injurious to the workmen,
and, permeating the beer in the casks, alters its flavor and, in in-
stances where the mildew penetrates the wood of the casks, spoils
the beer entirely. This fouling of the barrels requires that they
should be washed outside, from time to time, and the water used
in this washing always raises the temperature of the cellar, and
wastes the ice which is therein packed to keep the tempera-
7 ture about 41° Fahrenheit. After the beer has been in the
shavings cask from ten to fifteen days the gelatine or other
clarifying medium Is introduced, and at the end of a couple of days
the beer is entirely clear. The shavings cask is then bunged up
weed
MAGDALENA MAUS ET AL. . 7
tightly for from: three . five days to confine the last portions of the
rising carbonic acid gas. This charges the beer with carbonic acid
gas (CO,), so as to cake it. merchantable, and it must be drawn rin
at once into kegs and used, otherwise the pressure on the shaving
cask may burst It.
In selecting the time for drawing off the beer from the shavings
casks into the kegs to send it to market the beer should never be
under a pressure of over seven pounds to the square inch, otherwise
the keg fills with foam in the drawing off, and the bubbles subsid-
ing leaves an air-space over the liquid beer, which absorbs a portion
of the carbonic acid gas and soon leaves the beer in the keg flat.
As the art is now. practiced, arriving at the proper degree of press-
ure when to put the beer in kegs is merely a matter of oe
or guess by the foreman, and no two shavings casks will be drawn
off at precisely the same pressure, and the effervescing qualities of
the beer will vary considerable, much to the detriment of sales by
the brewer. If the beer is not put in market at once at this stage
the bungs have to be removed from the casks and the gas allowed
to escape. ‘Then the escaping gas stirs up the yeast’ and Impurities
that have settled to the bottom, and the beer has to go again
through the entire shavings-cask step in the process.
Under the processes now in use it requires about twenty days to
put beer on the market after it is pumped mto the shavings casks.
This delay requires brewers to keep a large amount of c apital in-
vested during the time in unfinished beer, and it is highly import-
ant to decrease this time of preparation,
The essential features of our invention have been patented in
foreign countries as follows: France, to Leo. Meller & Co., filed Sep-
tember 28, 1876, allowed and countersigned, Paris, November 380,
1876, No. 114,787; Belgium, to Leo. Meller & Co., filed February
14, 1877 (, allowed and countersigned, Bruxelles, February 28, 1877,
No. 41517.
The object of our invention is to overcome the difficulties above
named, and also to produce in a shorter time a better quality of
beer containing more sugar and less alcohol.
Our invention consists in treating the beer when in the shavings-
cask step of the process in one or more closed casks under automati-
ally controllable carbonic acid gas ne generated either by
the mild fermentation of f the beer or artifically. This equalizes the
pressure 1n such cask or series of casks, and the effervescing quality
of the beer in. all the casks when two or more are connected to-
gether is uniform. | ,
The cask or casks being closed, none of the beer wastes by running
over and the foul smells and washing of the casks and cellars are
avoided. ‘The escaping carbonic acid gas is conducted from the re-
lief-valve to the open air, and does not settle in the brewing cellars
‘to endanger life. |
Our invention consists, further, in similarly treating .the beer
when in the “ kraeusen ” stage, or subsequently thereto, or both, or
when [in] the settling casks (“ruh-beer ”), this being the second fer-
menting stage-—that is to say, our Inv ention consists in so treating
8 THE NEW PROCESS FERMENTATION CO. VS.
bottling.
In order that those skilled in the art may make and use our in-
vention, we avill proceed to describe the manner in which we have
carried it out.
8 In the drawings A A are shavings casks, having faucets
aa, provided with valves 2 2, inserted tightly in their bungs.
These faucets are connected to taps N on the main pipe a’ by means
of flexible sections 4, provided with couplings. The taps or con-
nections have valves 7’ i’. Pipe a’ bends upward and _ passes above
the level of a water column, C, and then, passing downward, enters
the base of the column at 2, where it is provided with a cock, 0’.
The water column or vessel C has a faucet, d, to draw off ‘water.
when desired to decrease the pressure. A depending branch-pipe,
e, and cock, e!, serve to discharge any condensed moisture from
pipe a’, and a pressure-gage, ¢, serves to indicate the pressure.
By means of a gas-generator located at 4 and connected to pipe
a by means of pipe f having cock g, we are enabled to test the
joints of the apparatus and drive all atmospheric air from the pipes
when the operation begins. |
At the top of the water column is a conical cap terminating ina
pipe, E, which is projected out of the building and leads all the gas
into the open air.. Located within this cap is a conical di aphragm,
C’, centrally located, so that, should the escape of the gas become
so rapid as to lift the body of water upward, the water will be ar-
rested by the diaphragm, while the gas escapes around its edges. -
[t is ev ide nt that the pressure in all the shavings casks connected
with pipe @ will be equal, and will be kept so indefinitely by means
of the water column, and, as far as the enlivening of the beer is
concerned, it is always ready for market, be it ten days or .four
months, whereas in processes now pri acticed beer has to be bunged
at a particular time for a particular day’s market.
Our process enables the brewer to keep on hand merchantable
beer, which can be shipped instantly, or, if trade decreases, it en-
ables him to keep his stock on hand without: deterioration un the
demand is made for it.
All that has been said above in relation to a series of peers ap-
plies, of course, equally to treatment in a single cask.
It is obvious that means other than a water column may be
adopted for equalizing the pressure of the gas without departing
from the spirit of our invention—as, for example, safety-valves and
the like—and the apparatus is susceptible of many other variations
without affecting the process itself, which constitutes the essence of
our invention.
By using our process we are enabled to clarify the beer and clear
it of impurities in eight days or less, whereas in the ordinary pro-
cess it takes from twelve to twenty days. This immense gain in
time we ascribe to the following action: The air bei Ing forced out of
the pipes, the carbonic acid fills them and the space in the casks
above the beer. Then the gas slowly accumulates in the space
above the beer until the pressure above is such as to overcome the
the beer atany time or times previous to racking off and bunging or
r
C
Ae
MAGDALENA MAUS ET AL. 9g
density of the beer and re-enter ‘it, so as to charge it up to the press-
ure for which the column is set. This creates, in a manner, an
equilibrium between the rising bubbles and the pressure above, dur-
ing which gravity can act rapidly on the yeast and impurities in
the beer and carry them down among the shavings at the bottom
of the cask, whére they remain.
We introduce the cl: arifyi ing gelatine into the shavi ings easks afer
the beer is introduced, and before connecting with pipe a’,and actual
practice has demonstrated to us that to clarify the beer by our pro-
cess requires only about one-half of the gelatine heretofore used.
This saving, together with the saving of the waste beer here-
9 tofore mentioned (one or more barrels in every forty) and
the saving of labor, will greatly cheapen the production of
beer. 3 : |
When we desire to make beer for bottling we attach our appa-
ratus to the settling casks filled with beer, and no young beer
(kraeusen) is added, but a little gelatine is added and the beer al-
lowed to remain for from fourteen to twenty days, until it becomes
“lively” (saturated with CO,), and it is then bottled.
We find that bottled beer prepared this way is healthier, and will
last in good condition two or three months, whereas the beer bot-
tled in the usual manner with kraeusen beer lasts only for eight or
ten days if pure and not steamed after bottling, the latter spoiling
the aroma and flavor. :
Having thus described our con see, what we claim as new, and
desire to secure by letters patent,
1. The process of preparing howe te the market, which consists
in holding it under controllable pressure of carbonic acid gas when
in the “kraeusen” stage, substantially as set forth.
2. The process of treating beer when in the kraeusen stage, which
consists 1n holding it in a vessel under automatically controllable
pressure of carbonic acid gas, substantially as described.
The process of preparing and preserving beer for the market,
which consists in holding it under controllable pressure of carbonic
acid gas from the beginning of the kraeusen stage until such time
as it is transferred to kegs and bunged, substantially as described.
4. The method herein described of preserving beer in a market-
able condition after it has passed the kraeusen stage, which consists
in holding it under pressure of carbonic acid gas, said pressure be-
ing automatically regulated by a counteracting hydrostatic pressure,
a gg as described. |
. The process of treating beer when in the second fermenting
dao (“ruh-beer”), which consists in hol ling it under automatically
controllable pressure of carbonic acid gas, substantially as described,
6. The process of treating beer in the course of its manufacture,
which consists in holding it in closed connected vessels under auto-
matically controlled pressure of carbonic acid gas, substantially «
described. ;
7. The process of clarifying and settling beer in a series of shav-
ings casks, and equalizing the rate of fermentation in all of them,
whereby the beer is more rapidly and thoroughly clarified, and will
—298 |
7 .
LU THE NEW PROCESS FERMENTATION CO. VS.
be ready for racking off in all the casks at the same time, and can
be kept so, which consists in holding the beer in closed connected
shavings casks under automatically controlled low secostaai of car-
bonic acid gas, substantially as described.
8. Casks A A, provided with cocks a a, flexible sections /, and taps
N N. In combination with main pipe a’, water column C, and press-
re-gauge ¢*, all constructed, arranged, and operated as and for the
purposes set forth. | :
| LEONARD MELLER.
EDMUND HOFMANN.
[n presence of
PH. BAR THOLAMAE.
P. BERRETOO.
(Here follows diagram marked p. 10.)
10 And afterwards, to wit, at the November term, 1880, of said
court, on the 18th day ol January, 188i, before the Honor-
able Walter Q. Gresham, one of the judges of said court, the follow-
ing further proceedings in the above-entitled cause were had, to wit:
Come now the defendants, by Harrington and Howe, their solic-
itors, and enter their appearance herein.
And afterwards, to wit, at the November term of said court, on the
12th des of April, 1881, before the Honorable Walter Q. Gresham,
judge a s aforesaid of said court, the following : further proceed-
1] ings in the above-entitled cause were had, to wit:
Come now the defendants, Magdalena Maus, Albert C. Maus, Frank
A. Maus, and Mathias A. Maus, by Messrs. Harrington and Howe
and Messrs. Dunean, Smith and Duncan, their solicitors, and file
their answer herein in the words following, to wit: |
The joint t and several answer of M: igdalena Maus, Albert C. Maus,
Frank A. Mat is, and Mathias A. Maus, defendants, to the bill of
complaint of f the New Process F ermentation Company, plaintiff.
These defendants, respectively, now and at all times hereafter, sav-
ing to themselves all and all manner of benefit’ or advantage of ex-
ceptions or otherwise that can or may be had or taken to the many
errors, uncertainties, and’ imperfections in the said bill contained,
for answer [thereto], or to so much thereof as these defendants are
advised it is material or necessary for them to make answer to, sev-
erally answe ring, s say—
That said assignors of said complainant, as set out in the bill of
complaint, are not the original and first inventors or discoverers of
any material part of the subject- -matter of the patent sued on, and
are not the original and first inventors or discoverers of the process
of preparing beer for the market by holding it under con-
12 trollable pressure of carbonic acid gas when in the kraeusen
stage, nor of the process of treating beer when in the kraeusen
stage by holding it in a vessel under pressure of carbonic acid gas
_gpecasenamne it —*
Sop TI
—_ — Obie
L. MELLER & E. HOFMANN,
Process for Making Beer.
No. 215,679. Patented M
ane SS ST —
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MAGDALENA MAUS ET AL. 11
nor of the process of preparing and preserving beer for the market
by holding it under controllable pressure of carbonic acid gas, nor
of the method of preserving beer ih a marketable condition after it
has passed the kraeusen stage by holding it under pressure of car-
bonic acid gas by automatic pressure, nor of the process of treating
beer when in the second fermenting stage, nor of the process of treat-
ing beer in the course of its manufacture by holding-it in closed
vessels under pressure of carbonic acid gas automatically controlled;
that for a long period, viz., more than a year, before the application
for the letters patent sued on the respondent heréin, Albert C. Maus,
at the city of Nashville and State of Tennessee, was the inventor and
discoverer of the process of preparing beer for the market, of treat-
ing beer when in the kraeusen stage, of preserving beer for the market,
_of preserving beer in a marketable stage or condition, of treating
beer when in the second fermenting stage, of treating beer in the
course of its manufacture by holding and keeping it under auto-
matic pressure of carbonic acid gas; which said process so
13 discovered by said Albert C. Maus is hereinafter fully de-
scribed, and is the process now used by respondents and none
other, which plaintiffs aver to be an infringement of the process and
patent in the bill described, which said matters respondents expect
to prove by said Maus, who 1s a resident of the city of Indianapolis,
Indiana, and by other persons whose names are at the present time
unknown to respondents, which, when discovered, respondents pray.
leave to insert.and set forth in their answer. As to the combina-
tions claimed by complainant in specifications numbered 7 and 8 of
said letters patent, the respondents say, as they verily believe and
charge, that the same are not new, either severally or in combina-
tion, and are not patentable under the law; that the pipes, con-
nections, valves, cocks, and combinations described in said subdi-
visions have been well known and in public use for twenty years
past, in the city of Indianapolis and throughout the United States,
which facts. respondents expect to prove by Erastus QO. Frink, of the
city of Indianapolis, Indiana, and many other witnesses, whose
names are not known to respondents, which, when discovered, they
pray leave to insert in this answer. ,
Respondents further answering, as to said combinations described
in subdivisions of the letters patent Nos. 7 and 8, say that
14 they never have used the same except for a short time as an
experiment, and are not now using the same, and therefore
if the plaintiffs’ patent as to the same is valid these defendants have
never infringed upon the same, as they verily believe.
Respondents further answering said bill, except that part thereof
which claims a patent on, the process therein, described, say that.
both before and since‘the commencement of this action said plaintiffs:
represented and informed said respondents that all they claimed to
be entitled to hold by the letters patent, sued on was the process of
holding and controlling beer automatically under carbonic acid
gas; that they made no claim to any other part of said letters pat-
ent and no claim to the water column, bungs, connections, and com-
binations, and that respondents might use every thing referred to
i: oe THE NEW PROCESS FERMENTATION CO. VS.
in said letters patent except the process, and respondents say they
believed said statements and representations and relied thereon, and
that plaintiff should be estopped from making any claim now against
respondents except what she may le establish to said process.
Respondents further say that said process and said alleged dis-
covery and invention claimed by complainant in her letters patent .
sued on, as respondents are informed and believe, and there-
15 fore state, had been described in a certain publication prior
to complainant’s supposed discovery thereof in a book known
as “School of Beer Brewing,” book one, on page 358, published and
sold to the public in the city of Cincinnati, State of Ohio, in the
years 1863 and 1864, long before said complainant’s supposed dis-
covery.
Respondents further say that, as they are informed and believe,
and therefore state, the inventions and process claimed by plaintiff
in her letters patent had been discovered and published and de-
scribed and patented prior to the supposed invention and discovery.
claimed in the bill, viz., by letters patent No. 90549, issued to
Dretickson May 25th, 1869, and also by letters patent, issued to
EKickineger Sept. 22d, 1868, No. 82394, and also by letters patent
issued to Thos. R. Hicks April 9, 1867, and also by letters patent
issued to Henry Schtandeman June 11, 1878, and also by letters pat-
ent issued to Otto Zwitusch & KE. Hertman—application filed Dee.
11, 1878— |
All of which matters respondents expect to prove by certified
copies of said letters patent and specifications, and by Erastus O.
Krink, of the city of Indianapolis, Ind., and by other witnesses,
whose names are now unknown to respondents, which, when dis-
covered, they pray leave to insert 1n this answer. |
16 Respondents further say that the apparatus and process
used by defendants is as follows, viz: A bung, through which
a hole is bored from top to bottom, is inserted in the bung-hole of a
cask; a small rubber hose about five feet long is attached with one
-end, by means of a brass top, tightly to the‘hole at the top of said
bung. ‘To the other end of this piece of hose a tin vessel is attached
to receive the foam or beer that may be forced through this piece of
hose with the escaping earbonic acid gas. This tin vessel is air-
tight and large enough to hold about two gallons, and is provided
at the bottom with a small tap for drawing off the béer that may
accumulate in it. Now, where the short piece of hose enters the tin
vessel another piece of hose enters also, and leads to and is attached
to a stand-pipe about three inches above its base. This stand-pipe
is four inches in diameter, about fifteen feet high, and open at the
top. It contains as much water as is requisite to afford the desired
pressure under which we aim to prepare our beer.
The pressure in the cask can be increased or diminished by in-
creasing or lessening the amount of water in said stand-pipe, the
whole forming a combination by which a uniform pressure
17 of carbonic acid gas is maitained in the eask, which we use .
after the beer has gone into the shaving casks & nowhere
else. If the beer in the cask generates more gas than is required to
: cei ot
|
yep eihi ease tinal Makes nh * - amie x Ae eedaieinn anit A-seomad a
a en A ek A EE I i a a a aE hak at ae o> yale S ane es MUR eee Gen eee tet
pot Pa ~ ae e . * rn. > 3 * ee es
MAGDALENA MAUS ET AL. : 13
establish the desired pressure it will escape through the rubber hose
and the water in the stand-pipe to which the hose is attached.
And for answer specially to the interrogatories propounded re-
spondents, answering, say—
Ist. ‘That they have not manufactured any beer whatever by. any
process other than that last above described as being used by them,
and by such process, as near as respondents are able to tell, they
have manufactured — barrels of beer since May 20th, 1879.
All which matters are things these defendants are ready and
willing to aver, maintain, and prove as this honorable court shall
direct,and humbly pray to be hence dismissed with their reasonable
costs and charges in this behalf, most wrongfully sustained.
| SMITH ann DUNCAN,
HARRINGTON & HOWE,
| Respondents’ Solicitors.
STATE OF INDIANA, Marion County:
Frank A. Maus, being duly sworn, deposes and says that
18 he — book-keeper for the respondents, who-are engaged in
| the manufacture of beer, and that he has heard the foregoing
answer read over,and he says that the matters therein stated as facts
are true and the matters therein stated on information and _ belief
are true, as he verily believes.
FRANK A. MAUS.
Subseribed & sworn to before me, a notary public In & for said
county, this llth day of April, A. D. 1881.
[SEAL. ] | GEO. F. KUHN, N. PL
And at the same time comes the defendant, Casper A. Maus, -
his solicitors, and, upon his motjon, the’ time for filing his answer
herein is hereby extended to the first Monday of May next.
And afterwards, to wit, at the May term of said —— on the 10th
day of June, 1881, before the Honorable W alter Q. Gresh: am, judge
as aforesaid of said court, the following further proceedings in the
above-entitled cause were had, to wit: ;
On motion of the defendants’ counsel, time for filing the answer
herein is hereby extended to the first Monday in August next.
And afterwards, to wit, at the May term of said court, on the 30th
day of July, 1881, reer the Honorable Walter Q. Gresham,
19 judge as aforesaid of said court, the following. further proceed-
ings in the above-entitled cause were had, to wit:
Come now the defendants, by counsel, and file their answer herein
in the words following, to wit:
20 The answer of Magdalena Maus, Albert C. Maus, Frank A.
: Maus, and Ma ithias A. Maus, defendants, to the bill of
complaint of {the N New Process Fermentation C ompany, complain-
ant.
These defendants, now and at all times hereafter, saving and re-
14 THE NEW PROCESS FERMENTATION CO. VS.
serving unto themselves all benefit and advantage of exception
which can or may be had or taken to the many errors, uncertainties,
and other imperfections in the said complainant’s bill of complaint
contained, for answer thereto, and unto so much and such parts
thereof as these defendants are advised is or are material or neces-
sary for them to make answer unto, these defendants for answering,
saith :
That these defendants do not know and are not informed, save by
said bill of complaint, whether said Leonard Meller and Edmund
Hofmann received letters patent from the French and Belgian gov-
ernments, respectively, as and for an invention of a new and use-
ful apparatus and improvement in processes for making beer, and
they leave the complainant to make such proof thereof as she shall
be advised is material.
And for answer to so much of said bill of complaint as alleges that ,
said Meller and Hofmann explained said apparatus and process to
one George Bartholomae, of Chicago, Illinois, for the purpose and
intention of introducing the same into this country and obtaining
a patent therefor from the United States Government, and that, to
accomplish that end, they constituted and appointed said Bartholo-
mae their lawful agent and attorney ; these defendants further sev-
erally say that they or any or either of them, to the knowledge or
belief of the others or either of them, do not know and have never
been informed save by the said complainant’s bill, and. they leave
the complainant to make such preof thereof as she may be advised
is material. : |
And for answer to so much of said bill of complaint as alleges
that said Bartholomae, on’ account of his personal ignorance and in-
experience, by inadvertence and mistake, caused the application to
be made for such patent in his own nameand procured such patent
to be issued to him personally, these defendants deny thesame ; but,
on the contrary, they say that, as they are informed and verily be-
lieve, said George Bartholomae, at the time of his making applica-
tion for and procuring the issuance to him of said letters patent,
was well advised in the premises and was assisted by able counsel
versed in the law, and said Bartholomae acted advisedly in all that
he did in the premises. |
And these defendants have been informed, and admit it to be
true, that upon said application letters ‘patent of the United
21 States were granted and issued to said George Bartholomae,
on the 2d day of April, 1878, for an alleged improvement in
the process of clarifying and settling beer in a series of shavings
casks, and for a certain apparatus for conducting such process; and
these defendants further severally say that they, or any or either of
them, to the knowledge or belief of the others or either of them, do
not know and have never been informed, save by the said com-
plainant’s bill of complaint, whether or not said George Bartholomae
did properly make application for said patent, and did comply with
all the requirements of law, and did have the said patent issued to
him in due form of law, and leaves the complainant to make such
proof thereof as she shall be advised is material.
ae
MAGDALENA MAUS ET AL. | 15
And, for answer to so much of said,bill of compiaint as alleges
that said Meller and Hofmann afterward discovered that said Bar-
tholomae had, by an alleged mistake, procured said letters patent
to be issued to him in his own n: ime, and that thereupon they made
application to secure letters patent of the United States to be issued
to themselves for said apparatus and process, these defendants say
that they are informed, and admit it to be true, that said Meller and
Hofmann did cause an application to be filed in the Patent Office,
in the city of Washington, for letters patent of the United States:
but these defendants say that the claim of said Meller and Hofmann
in their said applic ition was very much expanded over and above
the claim of said Bartholomae; that whilesaid Bartholomae, in his said
application, only claimed the process of clarifying and settling beer
in the latter stage of its manufacture, in a series of shavings ‘casks,
so as to produce. a uniformity and an automatic regulation of press-
ure in the whole series of casks, the said Meller and Hofmann
claimed in their said application the entire process of treating gig:
under automatically controllable pressure of carbonic acid ga
through every period of its manufacture, and whether in a uate
‘ask or a series of casks.
And these defendants further admit that upon said application so
made‘ by said Meller and Hofmann letters patent were issued by
direction and upon the formal assignment of said Meller and Hof-
mann to said George Bartholomae : but whether said assignment
was made in good faith and: upon valid consideration, or whether
the entire proceeding of Meller and Hofmann’s making their appli-
cation and the subsequent proceedings, ending in the issuing of let-
ters patent to said Bartholomae upon said ‘alleged assignment of
said Meller and Hofmann, was not a plan contrived by : said Bar-
tholomae to procure letters patent covering said enlarged and ex-
panded claim, these defendants severally say that they, or any or
either of them, to the knowledge or belief of the oth ers, or either
of them, have never been informed, save by the complainant's bill
of complaint, and they leavé the complainant to make such proof
thereof as she may be advised is material.
And whether said letters patent of the United States last above
named as being issued to said George Bartholomae were issued to
him after he or his said ‘assignors had fully complied with the re-
quirements of the law tiese defendants further severally say that
they, or any or either of them, to the knowledge or. belief of the
others or either of them, do not know and have never been infor med,
save by the bill of complaint herein, and they leave the complain-
ant to make such proof thereof as she maybe advised is ma-
terial.
22 And these defendants, further answering, say that they or
any or either of them, to the knowledge or belief of the
others or either of them, do not know and are not informed, save
by the complainant’s bill of complaint, whether or not said George
Bartholomae sold and assigned his right, title, and interest in said
patent and alleged invention secured by said letters patent, or any
interest therein, to the said New Process werent ation Company,
16 THE NEW PROCESS FERMENTATION CO. VS.
complainant, and he leaves her to make such proof thereof as she
may be advised is material. :
And these defendants,on information and belief, deny that by
virtue of any such patent and assignment mentioned in said bill of
complaint said complainant became or ever was possessed of or
vested with the exclusive right to make, use, or sell in the United
States the alleged invention patented by said letters patent.
And these defendants, further answering, deny that the said im-
vention so patented by said letters patent are of great value or of
any value, or that the public generally have acquiesced in or have
acknowledged the complainant’s exemnsive right to the same or any
portion thereof.
And these defendants, further answering upon information and
belief, specifically deny that the said Philip. Best Brewing Company,
of Milwaukee, and the said Schmidt & Glade, of C hicago, and the
said Geyer Bros., of Rahway, New Jersey, did settle and purchase °
licenses after suits for infringement of said patent had been brought ;
but that, on the contrary, the said Philip Best Brewing Comp: ny s
and the said Schmidt & Glade, of Chicago, having been ‘sued by the
said George Bartholomae, who at that time claimed to be the owner
of said invention and said letters patent, under an assignment from
said Meller and Hofmann, did receive from said Bartholomae, upon
his own solicitation and request, and without any charge or expense
whatever to said Philip Best Brewing Company, or to said Schmidt
& Glade, licenses to use the same, and at the request and expense
of said Bartholomae, and without any charge to either said Philip
Best Brewing Company or to said Schmidt & Glade, said Bartholo-
mae caused an apparatus to be placed in each of their breweries;
‘and the said Bartholomae, after having obtained from the said Geyer
Bros. an assignment of a certain application filed with the Com-
missioner of Patents for an apparatus Involving substantially the
same invention, and covering entirely the alleged process claimed
by said Meller and Hofmann, did pay unto the said Geyer Bros., or
to Philip Geyer, one of the Geyer bros.,a sum of money, not less
than one thousand dollars, for the said assignment unto them of all
the rights that might acerue to him, said Phili ip Geyer, under said
application for a patent; that the invention described in the appil-
cation of the said Geyer had been previously publicly used by said
Geyer, and had been abandoned to the public by said Geyer five
vears previous to the date of said letters patent No. 215,679.
That the said application of Geyer is still now pending, and the
said application, which involves an interference between the patent
of the said Meller and Hofmann and the application of the said
Philip Geyer, is now held pending by the assignees thereof for the
purpose of avoiding an interference.
And these defendants further show the court that they are in-
formed and believe that the said suits brought by the said George
Bartholomae against the said Philip Best Bre wing Company and
Schmidt & Glade were discontinued without cost to said defendants
and at the e x pense of said Bartholomae.
MAGDALENA MAUS ET AL. 7.
23 And these defendants, further answer ing, say th at they are
informed and believe that the said Bartholomae and the said
Philip Best Brewing Company and Schmidt & Glade, with their
respective: counsel, took a large mass of testimony, in the city of
New York, in the above-mentioned suits, and that overwhelming
proof was then and there adduced on the part of the defendants
that the alleged process and apparatus claimed under letters patent
215,679 were old and unpatentable, and that thereupon the said
Bartholomae discontinued the suits against the Philip Best Brewing
Company and Schmidt & Glade.
That in said causes said defendants were represente d by Otto
Zweitusch and IF. W. Cotzhausen as counsel; that said Zweitusch
was the owner Jointly with the said Philip Best Brewing Company
.of a certain patented apparatus, which was then being used by said
Philip Best Brewing Company, and for the use of which said suit
was brought as and for an alleged -infringement; that thereupon
said Zweitusch and said Bartholom: Le consolidat el ted their interests,
and said causes were dismissed without said evidence ever being sub-
mitted to the court, and the same is not now on the files of the
court; and the said Zweitusch is now secretary of the complainant
corporation, and said Cotzhausen is now retained as counsel by the
complainant herein.
And these defendants, further answering, say that said Meller and
‘Hofmann, the complainant’s assignors, as set out in the bill of com-
plaint, are not the original and first inventors or discoverers of the
process of giiicaneles beer for the market by holding it under au-
tomatically controllable earbonie acid gas when in the kraeusen
stage, nor of the process of treating beer when in the kraeusen stage
by holding it in a vessel under pressure of carbonic acid gas, nor
of the process of preparing and preserving beer for the market by
holding it under automatically controllable pressure of carbonic
acid gas, nor of the method of preserving beer in a marketable con-
dition after it has passed the kraeusen stage by holding it under
automatically controllable pressure of carbonic.acid gas, nor of the
process of treating beer when in the second fermenting stage, nor
of the process of treating beer in the course of its manufacture by
holding it in closed vessels under pressure of carbonic acid gas au-
tomatically controlled; that for a long period, viz., for more than
~~ year before the « applicati ion for the, letters patent sued on, Albert
'. Maus, one of the defendants herein, at the city of, Nashville, in
om State of Tennessee, was the inventor and discoverer of a certain
apparatus caleulated and intended to be used in the process of pre-
— goed for the market, of treating beer when in the kraeusen
‘stage, of preserving beer for the m: arket t, of preserving beer in the
ge ible stage or condition, of treating beer when in the second
fermenting stage, of treating beer when in the course of manufact-
ure by holding and keeping it under automatically controllable
pressure of carbonic acid gas, and which apparatus was actually
used by him in the clarifying and settling of beer in the shavings
casks, which process so discovered and used by said Albert C. Maus
is hereinafter more fully described, and is the process now used by
o—298 3 :
nae
| RES eras
MeN DY Sor
NA RA NO REO bP HS ia ab Awe
¥
THE NEW PROCESS FERMENTATION CO. VS.
the defendants and none other, which the complainant avers to be
an infringement of the process and patent in the bill of complaint
described, re said matters these defendants ges to prove by
said Albert C. Maus, who is a resident of the city of Indianapolis,
Se Indiana, and by others whose names are at present
unknown to these defendants, which, when discovered, they pray
leave to insert and set forth in their answer. :
24 As to the combinations claimed by complainant in specifica-
tions numbered 7 and 8 in said application ‘for said letters
atent, these defendants say, as they vérily believe and charge, the
ame are not new, either severally or in combination, and: are not
patentable under the law; that the pipes, connections, valves, cocks,
and combinations described in said subdivisions have been st
known and in pubtic use for twenty years past in the city of India
apolis and throughout. the United States, which f face saminda
expect to prove by Erastus O. Frink, of the city of Indianapolis,
State of Indiana, and many other witnesses, whose names are not
now known to these defendants, which, when’ they discover, they
leave to insert In this their answer.
pray Ca
And these defendants, further answering, as to said combinations
nd apparatus caeies iu said subdivisions Nos. 7 and 8 of the
eg, in said application for said ‘letters patent, say that they have
never used the same, except for a short time as an experiment, and
are not now using the same, and rhea if complainant’s patent
as to the same is valid, these defendan s have never infringed upon
the same, as they verily believe.
These defenda nts, fu rther answering sald bill of complaint, except
that part thereof which. claims a patent in the process therein de-
scribed, say that t bot h before and since the commencement of this
action said complainant represented to and informed these defend-
ants that all she claimed to be — to hold by the said letters
patent sued upon was the process of holding ‘and controlling beer
automat ically under the pressure of carbonie acid Las, and that they
made no claim by reason of any other part of said letters patent,
and that they made no claim to the water column, Stati connec-
tions, and combinations, and that respondents migh t use everything
referred to in said letters patent except the process; and these de-
fendants say they believed said representations and statements and
relied thereon, and that said complainant should be estopped from
making any claim against said respondents except what she may
establish as to said process.
And these defendants, further answering, say that they are in-
formed, and believe it to be true, that for the purpose of deceiving
the public, the description and specification of the said invention
filed by the said Meller and Hofmann were purposely made to con-
tain less than the whole truth relative to the state of the art of said
invention, in this, that the said inventors claimed that previous to
their invention it required twenty days to prepare beer for the mar-
ket, after having been put in the shavings casks, when It required
in truth but from four to eight days instead of twenty days, as alleged
by said Meller and Hofmann
a
“
MAGDALENA MAUS ET AL. cee +
And these defendants show to the court that tn the present state
of the art, and without the application of the apparatus mentioned’
and described in said letters patent, beer can be produced in entirety
in less than twenty days; and in many other respects these defend-
ants allege that the said inventors have attempted to deceive the
public by the statements contained in the said specification. ;
And these defendants, further answering, say that they are 1l-
formed, and believe it to be true, that the description of the » aileged
inventien, as set forth in the specification annexed to the said letters
patent No. 215,679, is incomplete and ambiguous, and the said specifi-
cation does not show the method of making and using the said al-
leged patented invention in such full, clear, and exact terms as to
enable any person skilled in the art or scie nee to which it appertains
to make and use the same.
25 And these defendants, further answering, say that they are
informed and believe it to be true that the said invention and
discovery was in fact invented and discovered by, and the same
principle had been previously combined and used by another—that
is to say, by one Paul Muehlhauser, at the brewery of Robert Port-
ner, Esq., in Alexandria, Virginia; that the said Muehlhauser had .
used substantially the same apparatus and process some seven years
previous to the date of said patent No. 215,679, and prior to the time
of the alleged invention and discovery by said Mellerand Hofmann
that the said Muehlhauser is now a resident of the city of Baltimore,
State of Maryland, and that the same principle had been known
and used by one Philip Geyer, of Rahway, New Jersey, five years
previous to the date of said letters patent No. 215,679, while he was
foreman for PI] Lilip and William Ebling, at Morrisiana, in the State
of New York; and, further, that the same principle and invention
has been known and has been in continuous use by De Lavergne &
Burr, brewers, of the city of New York, in the State of New York,
who have used the said invention for more than four years last past ;
and, further, the same principle and invention had been known and
used by George Ehret, brewer, in the city of New York and State of
New York, for ten years last past; and, further, that. the same prin-
ciple and invention had been used by Henry Gunther at the brewery
yf John Kress, in the city of New York, in the State of New York,
for ten years last past; and, further, that the same invention and
principle had been known and used by Schwaner & Amend con-
tinuously for ten years last past; and, further, that the same princi-
ple and invention had been known and used by oneJohn C. Schaeffer,
also of the city of New York, State of New York, who had invente d
and used, and sold to others to be used, an apparatus designed and
intended to be used for the purpose of automatically controlling the
pressure of gas generated by beer fermenting while in the shavings
casks; and, further, the sameinvention and principle had been known
and used by Mayer & Bachman, of Staten Island, in the State of
New York, for seven years last past; and, further, that the same
principle and invention had been known and used for many years.
by one Keeley, a brewer, of Chicago, in the State of Ilmois; and,
further, that ies same principle and invention had-been known and
20 THE NEW PROCESS FERMENTATION CO. VS.
used by the public generally prior to the granting of letters patent
No. 215,679 to the said Meller and Hofmann.
And these defendants, further answering, say that they are in-
formed and believe it to be true that the said invention and dis-
covery, and the same principle and combination or the substantial
and material parts thereof, patented in and by the letters patent
mentioned in the bill of complaint aforesaid was patented on July
16th, 1S, by letters patent granted and issued to one Charles D.
‘Wolpers, who at [that] time resided in the city of Cincinnati, in the
State of Ohio, and prior to the supposed invention and discovery
thereof by the said Meller and Hofmann; and, further, that the pre-
tended invention and discovery, and the same principle and com-
bination or substantial parts thereof, was patented by one George
Wallace by letters patent No. 62581, bearin 12 the date of f Mareh 5th,
1867 ; the said George Wallace now resides in the city of -Indianapo-
lis, in the State of Indiana; and, further, that the pretended inven-
tion and discovery, and the same princip le and combination or sub-
stantial and material parts thereof, were patented in and by
letters patent granted to one William Gilham_ by letters pat-
ent bearing date the 13th day of June, 1871, said letters
26 patent being numbered 115,950, who at that time resided in
the city of Richmond, State of Virginia, and prior to the sup-
posed invention and discovery thereof by said Meller & Hofmann;
and, further, the same invention and discovery, ard the same prin-
ciple or substantial parts thereof, was patented and described in let-
ters patent No. 68656, issued on the 9th day of April, 1867, to one
Thomas R. Hicks, who then resided at New britain, in the State of
Connecticut, and that the specification of the said Hicks fully and
clearly describes the process claimed by the said Meller and Hof-
mann, and prior to the supposed invention and discovery thereof by
said Meller and Hofmann that the said patent of Thomas R. Hicks
was assigned to Otto Zweitusch, and that he, as assignee of the said
Hicks, did apply for a reissue of said patent, intending to obtain the
process claimed and described by the said Meller and. Hofmann, but
the same was denied by the Commissioner of Patents.
And these defendants, further answering, allege that the said in-
vention and discovery, and the same principle and combination or
substantial and material parts thereof, described and patented by
letters patent No. 215,679 was patented by kh. D’Heureuse, of the city
of New York, in the State of New York, on the 3d day of August,
1869, No. 9: a $2; and also by letters patent No. 112,226, dated Feb-
ruary 28, 1871, issued to the same person, and prior to the supposed
invention of seid Meller and Hofmann.
And these defendants further show that the said invention and
discovery, and the same principle and eombination or substantial
and material parts thereof, deseribed in and patented by said letters
patent No. 215,679 was patented by letters patent of the United States
as follows: Letters No. 294,687, dated June 11,1878, issued to Henry
Schlaudemann; letters No. 205,572, dated July 2, 1878, issued to
John M. Pfaudler; letters No. 208,771, dated October 8, 1878, issued
nd
MAGDALENA MAUS ET AL. 21
to Theodore F’. Straub, and letters patent No. 215,596, dated the 20th
day of May, 1879, issued to Frank Fehr, and also divers others.
And these defendants, further answering, say that they are in-
formed and believe it to be. true that the said Meller and Hofmann
were not the original and first or joint inventors of the invention by
them described in their application for said letters patent No. 215,67: ),
and they leave the complainant to make such proof thereof as she
shall be advised is material.:
And these. defendants, further answering, say that they are in-
formed and believe it to be true that the said invention and dis-
covery, and the same’principle and combination or substantial and
material parts thereof, patented in and by the letters patent men-
tioned in the bill of complaint aforesaid was mentioned and described
In a printed publication—that is to say, in the Brewers’ Gazette,
edited by John Flintoff and published in the city of New York—in
the month of February, 1875, a publication published and issued
and publicly circulated and distributed prior to the supposed in-
vention and discovery by said Meller and Hofmann of the said |
alleged invention, discovery, principle, and ‘combination, the said
description being on page 38 in said publication.
And these defendants, further answering, say that they are in-
formed and believe it to be true that the said invention and dis-
covery, and the same principle and combination * substantial and
mi iterial parts thereof, patented in and by said letters patent No.
215,679, mentioned in the bill of complaint, was rneasiene and de-
scribed in a printed publication—that is to say, in a book
27 ~~ entitled a “Hand Book on the Art of Brewing,” by one Ladis-
| laus Von Wagner, published at W elm: ar , Germany, In 1877,
on page 728 of volume 2.
And these. defendants, further answering, say that they are in-
formed and believe it to be true that the said invention and dis-
covery, and the same principle and combination or substanti: il parts
thereof, patented in and by said letters patent No. 215,679, men-
tioned in the bill of complaint aforesaid, was mentioned and de-
scribed in a printed publication—that is to say, In a book entitled
“School of Beer Brewing,” published in the city of Leipzig, in Ger-
many, and purchased by Casper Maus, Sr., at the city of Cincinnati,
in the State of Ohio, in the years A. D. 1868 or 1864, a publication
published, issued, and publicly cireulated and distributed prior to
the supposed invention and discovery by said Meller and Hofmann
of the said alleged invention, discovery, principle, and combination,
the said description. being on page 358 of said publication.
And these defendants, further answering, say that the apparatus
and process used by them is as follows: A bung through which
hole is bored from. top to bottom is inserfed in the bung-hole of a
cask; a small rubber hose about five feet long is attached at one end
to the hole at the top of said bung by means of a brass top. At the
other end of the hose a tin vessel is attached thereto to receive the
foam or beer that may be forced through this hose by the escaping
carbonic acid gas generated by the beer in the cask ; this tin vessel
is air-tight, is made to hold about two gallons, and is provided at
om
ye THE NEW PROCESS FERMENTATION CO. VS.
the bot _ n with a small tap for drawing off the beer that may accu-
mulate in it. Near where this first hose is attached to the tin vessel
another pe is attached to said tin vessel and leads to and is attached
to a stand-p 1 pe about three inches above its base; this stand-pipe is
four inches in diameter, about fifteen feet high, and is open at the
top. Ti iS SU sas ed with water to the height necessary to afford the
desired pressure under which said defendants are to prepare their
beer. The ressure In the casks can be increased or diminished by
increasing or lessening the height of the water in the stand, the
yea forming a combination by which a uniform and automati-
lly controllable pressure of carbonic acid gas is maintained in the
bane If the beer generates more gas than is required to establish
the desired pressure, it will escape through the rubber hose and the
water in the stand-pipe to which it is attached. This apparatus the
defendant uses only after the beer has gone into the shavings cask,
which apparatus they say is a very different apparatus from that
described in the letters patent and in the specification annexed
thereto. | |
And these defendants, further answering, say that they deny that
they ever contrived to injure said complainant or to defraud her of
any profits, benefits, and advantages whatsoever ; and these defend-
ants, answering specially and specifically to so much of said bill of
complaint as requires them to answer the number of barrels of beer
they have manufactured under the alleged patented process claimed
by said complainants as. covered by her said letters patent, as well
as the um ber of apparatus they have used in applying said
process, avs that they have not manufactured any beer whatever by
any process other than that last above described as being used b
them, and by such process, as near as defendants are now
28 able to tell, they have manufactured since May 20th, 1879,
about — barrels of beer.
The. defendants are not using and have not used any apparatus
such as is mentioned and described in complainant’s letters patent.
All which matters and things these defendants are ready and
willing to aver, maintain, and prove as this honorable court shall
direct, and humbly pray to be hence dismissed with their reasonable
costs and charges in this behalf most wrongfully sustained
HARRINGTON & HOWE,
DUNCAN, SMITH & DUNCAN,
Solicitors for Defendants.
And afterwards, to wit, 1n recess of said court, on the 4th day of
October, 1884, the following { further proceedings in the above- entitled
cause were had, to wit:
Comes now the defendant, Casper J. Maus, by Messrs. Harring-
ton and Howe and Messrs. Dune: an, Smith and Duncan, his solici-
tors, and files his answer herein in the words followi ing, to wit:
The respondent herein, Casper J. Maus, for. his separate answer
to the bill of complaint, says that he is ignorant as to all matters
and things therein set out, except that part thereof which charges
that this defendant is doing business under the firm name and style -
in and for said county and State, this — day of
MAGDALENA MAUS ET AL. 23
of C. Maus in the city of Indianapolis; and that since the granting
of the letters patent sued on, No. 215,679, this respondent, at In-
diahapolis, used and still continues to use said alleged invention.
As to said part of said bill, this respondent, answering, says that he
is not now, and has not been since the issuing of said letters
29 patent, a member of the firm of C. Maus, in said city of In-
dianapolis, and is not and has not been doing business under
the firm name and style of C. Maus, and that he has not, at Indian-_
apolis, as in said bill charged, either alone or with others, since the
granting of said letters patent No. 215,679, used said invention upon:
which complainants claim is patented, as set out in the bill, and has
not used, as in said bill, charged, any similar invention, and is not
now using said invention or any similar invention, and. no injury.
“98 resulted to complainants by any use of said alleged invention
by this responue nt, and no profits have accrued to this respondent
by using said invention, as charged in said bill.
And in answer to interrogatory No. 1 he says he has not manu-
factured any beer under said patented process.
And these matters he is ready to verify in the manner the court
shall order, and he prays he may go hence & recover his costs.
CASPER J. MAUS.
HARRINGTON & HOWE, Solicitors.
STATE OF INDIANA, |
: . 8s:
Marion County, fj
This — day of , 1881, personally appeared Casper J. Maus,
defendant above named, and, being by me duly sworn, de-
30 poses and says that he has heard the foregoing answer read
and that the same is true to the best of his knowledge and
belief. |
Subseribed and sworn to before the undersigned, notary public’
, 1881.
And afterwards, to wit, in recess of said court, on the 5th day of
October, 1881, the followi ing further proceedings in the above-entitled
eause were had, to wit:
Comes now the complainant, by wt ssrs. Banning & Banning, its
solicitors, and files its replication herein in the words fol lowing, to
wit : | 3
Replication.
The replication of the New Process Fermentation Company, com-
plainant, to the answer of Magdalena Maus, Albert C. Maus, Cas-
per J. Maus, Frank A. Maus, and Mathias A. Maus, defendants.
This replaint, saving and reserving unto itself, now and at all
times baoocadl ter, all and all manner of ‘benefit and advant age of ex-
ception which may be had or taken to the manifold insufficiencies
24 © THE NEW PROCESS FERMENTATION CO. VS.
of the said answer, for replication thereunto says that it will aver,
maintain, and prove its said bill of ing aint to be true, certain,
and sufficient in law to be answered unto, and that the said answer
of the said defendants is uncertain, untrue, and insufficient to be
replied unto by this replaint, without this, that any other matter
or thing whatsoever in said answer contained material or effectual
in the law to be replied unto, and not. herein and hereby well and
sufficiently replied unto, confessed or avoided, traversed or denied,
is true; all which matters and things this replaint is and will be
ready to aver, maintain, and prove as this honorable court shall
direct, and humbly prays as in and by its said bill it has already
prayed.
BANNING & BANNING,
Solicitors for Complainant.
And afterwards, to wit, at the November term of said court, 1881],-.
| on the or Ath vee pe february, 1882, before the Honorable
a1 Walter ae i judge as aforesaid of said court, the fol-
lowing cies proceedings in the above-entitled cause were
had, to wit: : |
Come now the defendants, by Dunéan, Smith & Dunean, their
solicitors, and tie their motion it is ordered that Eugene G:
Kreider, Esq., of the city of Indianapolis, be and he ‘is hereby, ap-
pointed spec ial examiner in chancery in this cause, and is em-
powered to cause to come before him, at the office of Duncan, Smith
& Duncan, No. — [ast Washington street, in said city, upon proper
notice given to the complainant, the witnesses of the defendants,
and to take their depositions in writing and return the same duly
certified into this court, addressed to the clerk thereof, at Indian-
apolis.
And afterwards, to wit, at the November term, 1881, of said court
op the 25d day of February, 1882, before the Honorable Walter Q.
Gresham, judge as aforesaid of said court, the following further pro-
ceedings in the above-entitled cause were had to wit: :
On motion of the defendants’ solicitors it is ordered that the de-
fendants’ time for taking seein in this cause be extended sixty
days.
And af een SP to wit, at the May term of said court, on*the
12th day of June, 1884, before the Honorable Thomas
o2 Drummond and the Honorable William A. Woods, judges of
said court as aforesaid, the following further proceedings in
the above-entitled cause were had, to wit: |
This case having been heretofore argued by the counsel of the
respective parties and considered by the court, it is ordered that the
bill in t ra case be dismissed for want of e¢ juity ,at the costs of the
plaintiff to be taxed; and the plaintiff thereupon prays an appeal
to the Supreme Court of the United States, which is granted upon
its giving bond according to law.
Here follows the opinion of the court:
MAGDALENA MAUS ET AL. 95
DRUMMOND, J.:
Nearly all the claims in this case, as well as. the specifications,
speak of the beer in what is called the kraeusen stage. The specifi-
cations term “kraeusen” young beer, and also use the words “kraeu-
sen stage,” the inference being that it refers to that conditionof the
beer when it is considered young; but in the evidence of the plain-
tiff one of the witnesses particularly ‘ describes what the kraeusen
stage is. He calls kraeusen a fermenting sweet beer wort during the
first st: age of the main fermentation, in which a foam of a very
dense, curly; white appearance is formed on the surface, and it is so
ter med because the beer has the appearance of curling, as kraevsen
in German means “curls.” The kraeusen stage, he declares, is the
new fermentation which sets in after the “ kraeusen beer.” has been
added. Under the old method, when the beer was in this condition,
in shavings casks and the bung was left open the foam and some of
the ingredic nts of the beer. escaped through the bung-hole. As
claimed in the plaintiff’s lla this $80 avoided by stopping up
the bung-holes and devising a method by which the carbonic acid
gas for med in the fermentation was permitted to ese ape upon a cer-
tain pressure, Which removed the danger that otherwise would exist
of bursting the casks or of injuring the beer when in fermentation
or while being clarified. 3
All the claims except the hast, it is insisted by the plaintiff, are
for a process, and that as to them the particular manner or instru-
mentalities by which the process is accomplished are immaterial.
It is well known that the term “ process” is not used in the stat-
ute, but it has been uniformly held that there may be a patent for
a process because it is regarded as an art, which is a word used in
the statute; but it must be confessed that it is often. one of the most
difficult questions to decide, in the practical application of claims
made in a patent, what 1s a process which may be the subject of a
patent. ‘To illustrate and prove this it is only necessary to refer to
the case of Tilghman v. Mitchel], 19 Wall., 287, which was
vo most elaborately argued and fully considered, and where a
majority of the court held that although the manufacture of
fat acids and glycerine from fatty or oily substances by-the action
of water at a high temperature and pressure was.a process, yet that
the patentee was limited to the particular method or means of ap-
plying highly-heated water under pressure, pointed out in the speci-
fications, although the claim was on its face broader than that, and
to the case of Tilghman v. Proctor, 102 U. S., 707, where the same
patent was in question, and where the court held that it was a pat-
ent for a process, irrespective of the particular mode or form of ap-
paratus for carrying it into effect. If, then, we now consider this
last case in connection with one of the first cases decided by the
Supreme Court, Corning v. Burden, 15 How., 252, and some of the
intervening cases where patents have been sustained for a process,
we ought to beable to determine the rule established by that court
as to what isa process for which a patent can issue. In Corning 2.
Burden the'‘court said that one might discov er a new and useful
4—298
26 THE NEW PROCESS FERMENTATION CO. VS.
improvement in the process of dyeing, tanning, etc., irrespective of
any particular form of machinery or mechanical device, and another
might invent a labor-saving machine by which the same process
1 ight be performed, and each might be entitled to his patent; that
one, by exposing india- -rubber to a certain degree of heat in mixture
or connection with certain metallic salts, might produce a valuable
product and be entitled to a patent for his discov ery as a process or
improvement in the art, irrespective of mechanical devices; and
another might invent a furnace or stove or some apparatus by
which the same process might be carried on with a saving of labor
and of expense, and hé w ould be entitled to a patent for his machine
as an improvement in the art, and yet one could not have a patent
for a machine nor the other for a process. Each would be entitled
to a patent for the method of producing certain results, but not for
the result itself. | 7
And the court further stated that it was when the term “ process”
was used to represent the means of producing a result that it was
patentable, and it would include all methods or means not effeeted
by mechanism. ‘This definition is intelligible. A part of it, but not
the whole, is cited in Tilghman v. Proctor.
In Corning v. Burden ‘the court held that Burden es not dis-
covered any new process, but a new machine or combination of
mechanisin, by which the result was’ produced. In McClurg ».
Kingsland, 1 How., 202, where the only change made in the me thod
of casting iron rolls was by directing the metal into the mold when
in a liquid state ata tangent, the patent was sustained, although
there does not seem to have been much discussion directly upon the
‘patentability of the claim. All that was done iti that case was sim-
ply to change the direction of the tube which carried the metal into
the mold, the old method being to convey it from the furnace to the
mold in a eae ee or pe rpendicular direction. In Mowry v. Whit-
ney, 14 Wall.,620, and ‘Tilghman v. Proctor, already ref ferred to, the
court sus aad the claim in each as a patent for a process. In the
latter case the court says that the patent law. is not confined to new
machines and new compositions of matter, but extends to any new
or useful art and manufacture, and that a manufacturing process is
an art.
Goodyear’s patent was for a process, namely, vulcanizing india-
rubber. The apparatus for performing the process was hot material
and was not patented, and the court then refers to Neilson’s Englisi
patent. Neilson’s patent was for the discovery which he made of
applying a blast of hot air instead of cold to a smelting- furnace, and
for describing a method by which that was accomplis shed, that
method not being material; and the court declares that Neilson’s
patent was si ustained asa process patent, and quotes the language of
the court of exchequer—‘that the plaintiff did not merely ‘claim a
principle, but a machine embodying a principle, and a very valu-
able one;” and also the language of Lord Campbell in the House of
Lords—that “the patent “must be taken to extend to all ma-
D4 chines of whatever construction whereby the air is heated in-
termediately between the blowing apparatus and the blast-
MAGDALENA MAUS ET AL. 27
furnace;” and therefore it was unnecessary to compare one apparatus
with another.
The court, in Tilghman ». Proctor, also quotes the seuenage of
Chief: Justice Taney, i in O’Reilly v. Morse, 15 How., 112, where he
says, in commenting on Neilson’s case, “ that the manner in which
air might be heated was immaterial.” ‘“ His patent was supported,
because he (Neilson) had invented the mechanical appar atus by
which the current of hot air could be thrownin. * * * The
interposition of a heated receptacle in any form was the novelty he
invented.” And after quoting still further from the opinion of the
Chief Justice in O’Reillyv v. Morse the court states: “It seems to us
that this clear and exact summary of the law affords the key to al-
most every case that ‘ean arise. Whoever discovers that a certain
useful result will be produced in any art by the use of certain‘means
is entitled toa patent for it, provided he specifies the means. * * *
It-is very certain that the means need not be a machine or an ap-
paratus; it may be, as the court says, a process. A machine is a
thing ; a process is an act or a mode of acting. * * *
“The mixing of certain substances together , or the heating of a
-substance to a certain temperature, is a process. If the mode of
doing it, or the apparatus in or by which it may be done, is suffi-
ciently obvious to suggest itself to persons skilled in the particul: ir
art it is enough in the patent to point.out the process to be per-
formed without giving superogatory directions as to the apparatus
or method to be employ ed.”
The majority of the court, in O’Reilly v. Morse, refused to sustain
the Sth claim of Morse, because he disavowed the specific machinery
or means mentioned, but claimed the use of the sities power of the
electric current, however dev eloped, and this was held to be a prin-
ciple simply.
There has.always been some difference of opinion as to the true
grounds upon which this rejection of the 8th claim of Morse was
placed, it being maintained by some that Morse was not entitled to
have a, patent, including all applications of what he termed electro-
‘magnetism in the transmission of words, letters, and signs, but only
his own particular application.
It has been uniformly held that a patent for a mere principle, or
what is sometimes called a law of. nature, cannot be sustained; but
in all the cases referred to, from the Neilson to the Tilghman patent,
the law or laws of nature discovered were utilized, and it is said that
in giving this construction to principle and process a patent for a
process leaves the ‘field open to future inventors, whereas a patent
.for a principle or a law of nature would give a monopoly to the
person making that discovery ; so that the rule established by the
Supreme Court is said to be that the patent for a process will in-
clude every application of the principle that involves the use of the
process described and claimed by the patentee; and this does not
include the particular machinery or apparatus described by the
patentee, but the mode of operation which is carried out by means
of the apparatus. Walker on -Pat., sec. 14.
In Neilson’s case the defendant did not use the means employ ed
rine o-tage : ” we —" —— —_ ess
Doan ee : hee eee iia eas er a, Me on TR See
28 THE NEW PROCESS FERMENTATION CO. VS.
by. Neilson in throwing the hot air to the smelting furnace, for it
was admitted he used a better device, but 1t was assumed that when
once the idea existed in the mind of the superiority of a hot-air blast
to a cold one any person skilled in smelting could devise his own
— of introdue ing the hot air to the jeter es And see Cochrane
. Deener, 94 U. S., 780, and Rubber Co. v. Goodyear, 9 Wall., 796.
It is to be regretted that the diff iculty kona In the subject is SO
great that a more intelligible distinction has not been made, for it
must be admitted that the application of the rule which has been
established by the Supreme Court to other cases as they hereafter
arise may cause embarrassment, for there must be a method by
which the principle or law which has been discovered is applied,
and if that method is immaterial then it is difficult to understand
why it does not become substantially a patent for the dis-
35 covery of the principle or the law of nature. Such seems to
have been the opinion of Mr. Justice Nelson. See loote 7
Sillsbury, 1 Blatch., 445, and 2 Blateh., 260; and the case on ap-
peal, 20 How., 378; and Le Roy v. Tatham, 14 How., 156, and 22
How., 132. |
If it be true that the defendants have used the mechanical devices
of the plaintiff, the question is whether, within these cases and the
rules which have been established upon the subject, the plaintiff 1s
enti eed, under his patent, to the claims which he has made and as
t fort th, namely, the process of preparing beer for the market by
“esi it under controllable pressure of carbonic acid gas when in
the kraeusen stage; the process of treating it when in. the kraeusen
stage by holding it in a vessel under automatically controllable
pressure of carbonie acid gas; the process of preparing and _pre-
serving beer for the market, holding it under controllable pressure
of carbonic acid gas from the beginning of the kraeusen stage until
it is tral sfeived to casks and bunged; to the method of preserving
beer; to the process of treating 1t when in the second fermenting
stage and the process of treating it in the course of its manufacture,
und to the process of clarifying and settling beer in a series of shav-
ings casks and equalizing the rate of fermentation in all of them,
whereby the beeris more rapidly and thoroughly clarified, irrespect-
ive of the mechanical means by which the specifications declare
these various processes can be accomplished—that is to say, were
Meller & Hofmann the first persons to hold the beer: when in its
kraeusen stage under controllable pressure of carbonic acid gas, and
were the means by which that result was accomplished immaterial ?
There is not entire accord among the witnesses as to what consti-
tutes the kracusen stage, but we may assume that it was understood
to be when the beer was in that condition in the shavings casks that
young beer was added, upon which fermentation was produced, and
during which the proeess of clarification was going on, in addition
iC?
-
to other results caused by the mode adopted to act upon the beer,
because, as soon as the fermentation began by the introduction of
the kraeusen, the shavings operated upon the ingredients contained
in the beer. 3
Where, in a process, there is a combination of different substances,
MAGDALENA MAUS ET AL. 29
and to that combination another substance or element is added by
which a new result is obtained, that is a process which we can easily
understand ; and, if unknown before, and it is useful, the person
devising it may be entitled to a patent.
Where there is a result produced by machinery, which result may
be brought about by a process, and which may consist of different
steps caused by a combination of different parts of the machine,
and another part is added before unknown and by which a _ useful
result is produced, that we can understand. The difficulty is to
comprehend a process which may consist partly of a combination
of different substances operating chemically and the combination
of different parts of a machine operating mechanically.
[f a process exists which consists of different steps created by
machinery, and there is an —— in that process caused by
a new element added to or taken away from the machinery, then
the process existing and being known, ‘the party who-added or took
away.the part of the machiner y might, if it were useful, be entitled
to a patent, not for the process which formerly existed and was well
known, but only for that which had been added to or taken from
the mechanism. ‘To apply the principle to this case: “he process
of manufacturing beer was not, at the time this patent was issued,
per se patentable, for beer had long been manufactured; in the first
place, by the preliminary steps which are referred to in the specifi-
cations, and which have already been mentioned, and by adding to
the beer the Kraeusen while it was in shavings casks, and then
permitting fermentation to proceed, then clarifying it so as to retain
in the beer some of the carbonie acid gas, which of itself consti-
tuted an important ingredient in the beer, and then preparing it for
~ the market, so that, whatever was patentable in the process
ob of manufacturing beer must consist of something new and
useful being adde d to the process, chemically or mee chanie: lly,
and for whatever was new and usefal the inventor might be en--
titled to a patent, whether it was connected with the chemistry o1
the mechanism of the process. It is very important to observe this
distinction in discussing the patentability of a process. |
It seems to be admitted in the various process cases decided in
the Supreme Court which have been referred to, and others which
might be named, if it consists of a chemical combination by
which the particular result is produced, that does not prevent an-
other inventor from making a mechanical combination which pro-
duces the same result; otherwise there would be a revolution in
what has always been understood to be a principle of the patent
law, that a person could not patent a result, but only the means or
acts by which the result was produced, and that certainly should
be true as well of a chemical as a mechanical combination.
It will be borne in mind that the patentee in this case insists that
the invention is not limited to the particular instrumentalities de-
scribed by which the:beer is held under controllable pressure of car-
bonic acid gas when in the kraeusen stage, because it is said that
other means than a water column may be adopted for equalizing
the pressure of the gas without departing from: ‘the spirit of the in-
OV THE NEW PROCESS FERMENTATION CO. VS.
vention—as, for example, safety-valves, s springs, and the like—and
it is added that the apparatus Is susceptible of many other varia-
tions without affecting the process itself. Now, a water column
had been previously used to regulate the pressure of the carbonic
acid gas, and valves and springs had often been used also to regu-
jate 1ts pressure, and a some of the witnesses of the pl: intiff
seem to imply that the Wallace and Hicks devices, in use long be-
fore the plaintiff’s patent, were, in their application to the manu-
facture of bee r, like those of the p ylaintiff.
[ am, the refore, not prepared to concede that Meller and Hofmann
were the first to hold under controllable pressure of carbonic acid
gas the beer when in the kraeusen stage, na as already stated, that
had been done as well by a column of water as by springs and _
valves when the shavings casks were bunged and stopped, and the
gas was permitted to escape when the pressure became so great as
to raise the valve or force the spring. This is shown by the evi-
dence of Maus and Sturm. It may be admitted that the mode
adopted by the plaintiff is valuable, and that it has facilitated the
manufacture of beer, both as to quality and as to time; but it seems
to me that this has been caused by the more comp ete mechanical
devices of the plaintiff, without really changing the principles upon
which beer had been theretofore manufactured.
No new principle or scientific fact has been discovered, as was
true in the process patents which have already been referred to.
The most that can be claimed is, and indeed the chief merit aseribed
to the patent by the plaintiff’s counsel is, that it applies. the control-
lable pressure created by the carbonic acid gas in a state of fermen-.
tation at an earlier stage than was before known; but the essential
parts of the apparatus used by the patentee were known before, and
the same controllable pressure had been applied at various stages of
the manufacture, and the application at the one stage of the condi-
tion of the beer instead of another would seem not to involve any-
thi ing more than a mere mechanical change which could be employed
by any one skilled in the art.
If we assume that the invention of a process always authorizes a
patent irrespective of the means by which the result is produced, it
would seem to be attended with very important and far-reaching
conseque! — and to involve substantially a monopoly of the prin-
ciple or of the discovery of a new scientific fact, and in this way we
would impair, if not destroy, the effect given by the Supreme Court
to the various rules which have been heretofore referred to as estab-
lished by that Court, one of which has always been held to be
OV firmly fixed, namely, that a person should only have a patent
for the means by which the result is produced, and not for
the result itself.
[t follows, therefore, from what has been said, that the claims of
the plaintiff for a particular process, irrespective of the means by
which that process has been reached, cannot be sustained, and that
the effort made to enk arge the construction of the patent law so as
to cover any means which m: iy be used in the process of the manu-
facture of beer, namely, by the methods which have been heretofore
MAGDALENA MAUS ET AL. ) 31
substantially employed, cannot succeed. It being a process well
known before, a person could only have a patent, for that by which
the process was improved or cheapened, and it cannot be success-
fully claimed, I think, that the defendants have used the various me-
chanical devices which are set forth in the specifications.. It is not
necessary, perhaps, to declare in this case that that those devices
taken in the aggregate might not be the subject of a patent as me-
chanical improvements in the manufacture of beer, but it is clear,
if patentable at all, then it is only as such mechanical devices ; the
result is the plaintiffs’ case fails on both grounds on which it is put—
first, as a patent for a process as. described and claimed; and,
secondly, for an infringement of the mechanical devices of the pat-
ent. The bill must be dismissed. |
Testimony.
The following certificate of evidence was fiied on the 23d day of
July, 1884. ee
I hereby certify that at the hearing of this cause said parties re-
spectively produced, read, and used in evidence the following
depositions and exhibits, to wit:
As its prima-facie evidence the complain: int read the de positions
of George Bartholomae and Otto Zwietusch, the Meller and Hof-
mann [patent], No. 215,679; assignment of said patent from George
Bartholomae to the New Process Fermentation Company, and the
charter. of said company; all which depositions and exhibits are
as follows: |
38 Complainant’s Prima-Facie Hvidence.
Testimony taken in behalf of the complainant in the above-entitled
-ause, at the office of Messrs. Banning & Banning, Nos. 60 and
61 Honore building, corner Dearborn and Adams streets, Chie: AZO,
Illinois, before Charles C. Linthicum, notary public, October 2 39,
1881, pursuant to the notice. hereto attached. :
Present: Ephraim Banning, Esq., of counsel for complain: unt, and
A. G. Howe, Esq., of counsel for defendants, the latter appearing for
the purpose of cross-examination and reserving all rights to object
to the evidence for all manner of reasons, and for the reason espe-
cially of the taking of the evidence before a notary public who has
not been appointed for said purpose. _ 5
Counsel for complainant offers in evidence the following instru-
ments, viz:
1 The charter of the New Process Fermentation Company, dated
at Springfield, Illinois, January 31, 1880, and recorded in the re-
corder’s office of Cook county, Illinois, February 7, 1881, in book
) of corporations, page 426.. | :
Baa ts a —— <a ee ra
PC igen p eM ce Mra nteatiigtioiennbe: tbe. fro Mase tecapntndlt naire eterdiiatyana dededintne shun caster tuner ter ee STO
ow THE NEW PROCESS FERMENTATION CO. VS.
STATE OF IniiINoIs, Department of State:
George H. Harlow, secretary of state, to all to whom these presents
shall come, Greeting :
Whereas a statement duly signed and acknowledged baving been
filed in the office of the secretary of state, on the eighth day of Jan-
uary, A. D. 1550, for the organization of the New Process Fermen-
tation ri res ‘under and in ac cordance with the provisions of
An act concerning corporations,” approved April 18th, 1872, and
in force July 1st, 1872, and all acts amendatory thereof, a copy .of
which statement is hereto attached ;
And whereas a license having been issued to George Bartholomae,
Philip ©. Dyrenforth, John J. Voelcker, as commissioners, to open_
books pt subscription to the capital stock of the said company ;
And whereas the said commissioners having, on ‘the thirty-first
eye of January, A. D., 1880, filed in the office of the secre-
39 tary of state a itt of their proceedings under the said
li icense, a Cop} ‘of which report is hereto attached:
Now, therefore, I, George li. Harlow,.secretary of state of the State
Ol
do hereby certify that the said New Process Ferme prayer Company
is a legally organized corporation under the laws of this State.
In sieges whe sand : hereto set my hand and cause to be affixed
the great s al of the Sta
Done, at ‘the c ity ol "Springfic ld, this thirty- first day of January, A.
D. 1880, and of the Independence of he United States the one hun-
dred and fourth. :
[Seal of the State of Mlinois, Aug. 26th, 1818. ]
GEORGE H. HARLOW,
Secretary of State.
«
f Illinois, by virtue of the powers and duties vested in me by law,
&
STATE OF ILLINOIS, |
| oe:
Cook County, j
To George Hl. Harlow, secretary of state:
We the undersigned, George Bartholomae, Philip C. Dyrenforth,
and John J. Voelcker, propose to form a corporation under an act of
the General Assembly of the State of Illinois, entitled “An act con-
erning corporations,” approved April 18th, 1872, and all acts
amendatory thereof, and that for the purposes of such organization
we hereby state as follows, to wit:
The name of such corporation is the New-Process I’ermentation
Company.
AQ 2. The object for which it is formed is to carry on ‘business
under United States patent No. 215,679, May 20th, 1879, to
Meller’& Hofmann, George Bartholomae, assignee, involving acertain
new art or improvement in the fermentation and manufacture of
beer and under other patents — uning thereto.
3. The capital stock shall be sixt y thousand dollars.
1. The amount of each share is one hundred dollars.
5. The number of shares [is] six hundred.
[2]
MAGDALENA MAUS ET ATI. 3O
The location of the principal office is in Chicago, in the eounty
of Cook State of Ilinois.
The duration of the corporation shall be twenty years.
GEORGE BARTHOLOMAE.
PHILIP C. DYRENFORTH.
JOHN J. VOELCKER.
QPrATE OF ty LINOIS, | o
County of Cook, if gc
I, W. F. Dummer, a notary public in and for the county and State
aforesaid, do hereby certify that on this seventh day of January, A. D.
1880, personally appeared before me George Bartholomae, Philip C.
Dyrenforth, and John J. Voeleker, to me personally known to be
the same persons who executed the foregoing sti itement, and sev-
erally acknowledged that they executed the same for the purposes
therein set forth.
4] In witness whereof I have hereunto set my hand and seal’
the day and year above written.
[SEAT ] | W. F. DUMMER,
Notary Public.
To Hon. George H. Harlow, secretary of state of the State of Illi-
nois: 7
The commissioners duly authorized to open books of subscription
to the capital stock of New Process Fermentation Company, pursu-
ant to license heretofore issued, bearing date the eighth day of Jan-
uary, A. D. 1880, do hereby report that they opene ed books of sub-
scription to the capital stock of said company, and that the said
stock was fully subscribed ; that the following is a true copy of such
subscription, viz:
We, the undersigned, hereby severally subscribe for the number
of shares set opposite our respective names, to the capital stock of
New Process Fermentatian Company, and we severally agree to pay
the said company on each share the sum of one hundred dollars.
Names. 3 Shares. Amount.
Cees Bereeomae. ..... .. 2-2 oe ceases O40 $54,000
Philip EE oo soins an cweie aae aan 30) 3,000
Ephraim Banning. ---~---~-~- icc ale hs aeiniok 15 1,500
ee ns ee nce nwennnonnen 15, 1,500
That on the thirtieth day of Janu: ry, 1880, at the office of Ban-
ning and Banning, in ( hie: ago, at the hour of ten o’clock a. m., they
convened a meeting of the subscribers aforesaid, pursuant to notice
required by law, which said notice was deposited in the post -
42 oftice, properly addressed to each subscriber, ten days before
the time fixed therein; a copy of which said notice is as fol-
lows, to wit: ;
9—208
34 THE NEW PROCESS FERMENTATION CO. VS.
To — —-: :
You are hereby notified that the capital stock of the New Process
Ferinentation Company has been fully subscribed, and that a meet-
ing of the subscribers of such stock will be held at the office of Ban-
ning and Banning, No. 147 Randolph St., Chicago, Illinois, on the
30th day of January, A. D. 1880, at ten o’clock a. m., for the purpose
of electing a board of directors for said company and for the traus-
action of such other business as may be deemed necessary.
GEORGE BARTHOLOMAE,
PHILIP C. DYRENFORTH,
Commassioners.
That said subscribers met at the time and place in said notice
specified and proceeded to elect directors, and that the following per-
sons were duly elected for the term of one year,as follows: George
Bartholomae, P. C. Dvrenforth, Ephraim Banning. .
GEORGE BARTHOLOMAE,
PHILIP C. DYRENFORTH,
: Commissioners.
STATE OF ILLINOIS, |
County of Cook, {|
8§ -
On the 30th day of January, 1880, personally appeared before me,
a notary public in and for said county, in said State, George Bar-
tholomae and Philip C. Dyrenforth, and made oath that the forego-
ing report by them subscribed is true in substance and in fact.
43 [ SEAL. | | W. F. DOMMER,
: Notary Public.
No. 256,148. Recorded Feb’y 7th, 1880, at 9 a. m.
JAS. W. BROCK WAY, Recorder.
STATE OF ILLINOIS, |
}: : ” es SS Ag
County of Cook, J
I, James W. Brockway, recorder of deeds in and for said county,
in the State aforesaid, do hereby certify that the annexed is a true
and correct copy of the record of a certain instrument filed in my
office the seventh day of February, A. D. 1880, as document No.
256,148, and recorded in book 5 of corporations, at page 426.
[In testimony whereof I have hereunto set my hand and affixed
my official seal, at Chicago, this fifteenth day of July, 1884.
[sEAL. ] JAS. W. BROCKWAY, ‘Recorder.
4.f Counsel for defendants objects to the articles of incorpora-
tion of complainants, because the certificate is not sufficient.
2. Letters patent of the United States No. 215,679, dated May 29,
1879, issued to George Bartholomae, as assignee of Leonard Meller
and Edmund Hofmann, being the letters patent sued on, and a copy
of which is attached to the bill of complaint in this cause.
3. A certified copy of the assignment under said letters patent
No. 215,679 from George Bartholomae to the New Process Fermen-
MAGDALENA MAUS ET AL. 35
tation Company, dated February 19,1880,and recorded in the United
States Patent Office February 24, 1880, in Liber B 25,‘ page 244.
‘In consideration of one dollar and other good and valuable con-
siderations, to me in hand paid by the New Process Fermentation
Company, a corporation duly organized and existing under and by
virtue of the laws of the State of [llinois, the receipt whereof is
hereby acknowledged, I hereby sell and assign to the said New
Process Fermentation Company all my right, title, and interest in
and to letters patent of thé United States No. 215,679, dated May
20th, 1879, granted to George Bartholomae, as the assignee of Leon-
ard Meller and Edmund .~Hefman, for an improvement in processes
for making beer, and in and to all claims of every kind for the past
infringement of said letters patent, and all rights of action whatever
arising out of or connected with said infringements; the same to be
held, enjoyed, and collected by the said New Process Fermentation
Company to the full end of ‘the term for which said letters patent
are grunted or may be extended, as fully and entirely as the
15 same would have been held, enjoyed, or collected by me if
this assignment and sale had not been made.
In testimony whereof I have hereunto set my hand and seal this .
nineteenth day of February, A. D. 1880.
GEORGE BARTHOLOMAE. [sEat.]
Witness : } |
P.C. DYRENFORTH.
U.S. PATENT OFFICE.
received for record Feb. 24,1880. Recorded fin] Liber, B 25,
page 244. Ex’d: F.C. T. |
Orro ZWEITUSCH, a Witness produced, sworn, and examined on the
part of complainant, deposes and testifies as follows in answer to
questions by Mr. BANNING:
Q. 1. State your name, age, residence, and occupation.
A. Otto Zweitusch ; forty-nine years of age; Milwaukee, Wiscon-
sin: manufacturer of soda-water apparatus and similar machinery.
Q. 2. State what position, if any, you hold in the New Process
Fermentation Company. |
A. Iam manager and secretary. I am familiar with its business
generally.
Q. 3. Are you familiar with the apparatus and process of treating
beer described and claimed in the complainant’s letters patent, No.
915,679, sued on in this cause? :
A. Yes; Lam. Iam very well acquainted with both the appa-
ratus and process. : ) /
Q. 4. Are you familiar with the art of brewing beer, including the
use of bunging apparatus, of which the Meller and Hofmann inven-
tion isan example? If so, please state what opportunities you have
had for becoming so.
A. Yes; lam. I hada brewery eighteen yearsago myself. Jam
a practical machinist, and am in the habit of putting up such bung-
A no Ae Na 8 nag Ae Gi Raby jrccen Acaatapetstes egrets cataieie athens jsacine tt <iebsilalladpty ee ee ae
o6 THE NEW PROCESS FERMENTATION CO. Yb.
ing apparatus and giving necessary instructions as to its use. I have
invented and have ps tents for apparatus for the same purpose. From
my position and work in the New Process Fermentation Company
I am required to be very familiar with the whole subject of bunging
apparatus, aud I think L understand all the different kinds of bung-
jng apparatus in existence and in use in the United States.
oOo
Adjourned to Monday, October 31, 1881, at 10 o’clock a. m.
Monpay, October 31, 1881.
Present: Thomas A. Banning, of counsel for complainant; A. G.
Howe, Esq., of counsel for defendants, and the witness.
Examination of Orro Zweitruscu continued : |
Q. Are you acquainted with any of the defendants in this cause ;
and, if so, which of them ? ’
46 A. I am aequainted with three of them; have seen them
two times in their office, but do not know tlieir given names.
There are three brothers. 3
@. 6. Were you ever at. the defendants’ brewery before this suit
was commenced ?
A. I was; the latter part of " October , 1880.
(). 7. State whether you then had any conversation with the de-
fendants, or either of them, about their use of the process or appa-
ratus for treating beer now claimed to be an infringement of the
complainant’s patent. If you had any such conversation, please
T
state fully what was said.
A. ‘The time I went there first I asked them whether they were
using bunging apparatus in’ their brewery by which the pressure of
the carbonic acid gas was regulated. automatically by «a water
column. ‘They said, Yes, we have an arrangement similar to that
which I represent for the New Process Fermentation Company—
using it on twenty-four shavings casks. Then I informed them that
they infringed the patent of Meller and Hofmann, of which the
New Process Fermentation Company is the owner. One of those
gentlemen said to me that they had applied for a patent themselves
and did not want to do anything about taking license from the com-
pany until they knew some thing particular from W ashington. The
second time I was in their office—some time after—one of those gen-
tlemen made me a little sketch showing in what manner their
arrangement was working. I did not find any difference in the
results by such an arrangement by their apparatus than in the
Meller and Hofmann patent.
Q. 8. From that sketch which they showed you and the explana-
tion which they gave you, please state briefly the object for which
the apparatus was used and the manner in which they used it.
A. The object is fur clarifying the beer more rapidly and ripen-
ing the beer for the market quicker and better by having a constant
pressure, or equal pressure, in the shavings c asks during the elari-
fying process. From the sketch shown me, [found that each shav-
ings cask was connected with a pipe which was leading to a kind of
nor
MAGDALENA MAUS ET AL. 37
closed reservoir or tank ; from this tank another pipe led to the top
of a water column, from which point all those sh: avings casks run
in by gene to the bottom of the water column.
Q. J. State wherein, if at all, the apparatus and process which de-
fend: ith were using in their brewery differs from the apparatus and
process described in the — and Hofmann patent sued on in this
cause.
A. The process’does not a ffer at all, neither the working ‘a the
apparatus. ‘The apparatus itself only differs from that of f Meller and
Hofmann .by having: a reservoir or closed tank between the con-
nection-pipe from shav Ings casks to the water column.
Q. 10. In your opinion, does the defendants’ mode of treating beer
as applied at their brewery, and as they described it to you, embrace
and apply the invention described and claimed in patent No.
215,679, sued on in this cause? If you say it. does, please point out
which claims you consider defendants infringe by its use.
A. Yes, it does, in my opinion. It infringes the first, second,
third, fourth, sixth, and seventh claims. I cannot say about the
fifth and eighth claims particularly.
@. 11. Has the process of treating beer under antomatically con-
trollable pressure of carbonic acid gus, as described in the Meller and
Hofman patent, come into general use or not, and is it of any con-
siderable value or importance in the brewing business ?
47 A. It is of great value in the brewing business, and has
come into eeneral use; it is put up by the company and the
prior owner of the patent in almost eighty breweries, many of which
are among the largest in the United States.
Cross-examination by Mr. Howe:
X Q. 1. What position do you hold in the plaintiff company ?
A. | ng secretary and manager.
X Q. 2. How long have vou held that position ?
A. Since about April, ISSO.
X Q. 3. Are you a stockholder in- the company ?
a : |
X Q. 4. Are you familiar with the process of brewing beer and
preserving beer by holding it under automatically controllable
pressure of carbonic acid gas? |
A. Yes, sir.
XQ. 5. Are-you familiar with the process and principles involved
in the letters patent sued on? |
.A. Yes, sir.
X Q.6. Have you ever had any ex perience in mechanism asa
mechanic?
A. [ have, since my fourteenth year. ,
X Q. 7. If I understand you, you are not able to say that the
plaintiff’s claim No. 8 is infringed by the defendants ?
A. Iam not able to say .on account of not having seen the ap-
paratus or examined it 1n operation. |
X Q. 8. Under the plaintiff’s patent and claim, do they claim the
Invention in the process of manufacturing beer and preserving beer
= as eae pp i ea : ss 3
‘ shes RP a Paine EO REY Si is eB Nt Sta tape or goa SNe
stern earn aetnae tes idphuniy iw nesne torte ee
Oo THE NEW PROCESS FERMENTATION CO. VS.
for the market under automatic pressure of carbonic acid gas, 1n all
its stages?
A. Yes, sir.
X Q. 9. Look at plaintiff’s claim number three. Is not the whole
process, from the beginning to the end of manufacturing beer and
preserving it after manufactured for the market, embraced in that
single claim ? : o
A. at : not.
X Q. 10. What is the kr: aeusen stage of f the beer ?
A. The kraeusen stage of the beer is after it is taken from the
ruh-casks into the shavings casks and young beer, or kraeusen,‘is
added for the } purpose of refermentation of the beer, clarifying the
same, and making it suitable for the market. :
X Q. 11, May = plat ntiff’s process be used on single casks or
upon a series of ¢ isks ? ,
A. it is no mat bbe where it is used, the effect is the same.
X (. 12. Will the plaintiff's process be preserved in all different
mechanical constructions which hold beer in closed casks under
controllable yore of carbonic acid gas?
A. During the time of manufacturing the beer, yes.
X Q. 13. Will the process be preserved after the beer is manu-
factured, by holding it under such pressure of carbonic acid gas? °
A. Yes; that is involved,. too.
X Q. 14. Will any arrangement or apparatus by -which the beer
is held in closed casks under controllable pressure of carbonic acid
gas embody the principle set forth in the plaintiff’s claim ?
A. Yes, it will. ,
A. 4). 15. n hen the plaintift claims all processes of manufacturing
and holding beer under controllable pressure of carbonic acid gas,
by whatever apparatus that may be accomplished ?.
A. Yes, sir. 3
X Q. 16. Would an apparatus constructed with a metal spring
instead of a water column, which spring would yield to the excessive
pressure of carbonic acid gas and would control and ‘hold the gas
in the cask when not excessive, embody the plaintiff’s process sub-
stantially?
A. If such an apparatus with such a spring will work automati-
cally, yes. |
iS X Q. 17. Suppose shavings casks to be supplied with bungs
in which there is a valve, and the valve to ve held down by
a wire or metal spring, which spring will yield if the gas becomes
excessive and ar seas the gas to escape; or, if there is ae an over-
charge of gas, will keep the valve oll thereby keeping the car-
bonic acid gas in the cask, would such an arrangement embody sub-
stantially the plaintiff’s claim and process?
A: Yes.
X Q. 18. Suppose an apparatus constructed with a rubber spring,
but otherwise substantially as detailed in my last question, would
that also embody the p laintiff’s process and claim ?
A. If it works automatically, yes. :
X Q. 19. Would not a rubber or wire either, that would hold a
A.
y
:
: i
)
MAGDALENA MAUS ET AL. _ 39
valve down until the cask was charged sufficiently with carbonic
acid gas to force the spring or rubber up, be as much of an auto-
matic arrangement as a water column which held the’ gases in or
allowed them to escape when overcliarged ? .
A. It is an automatic arrangement only while it is in first-class
order, but rubber and spring will never regulate as well as a water
column. 3
X Q. 20. ete the pipe that enters the water column at its
base, instead of entering at the base should enter at the top, but
extend tlirough the column of water to near the base, would the
effect and operation of the water column be the same as when the
pipe enters at the base of the water column? |
A. There is no difference whetlrer it goes inside or outside of the
water column, as long as itis lead near to the bottom of the column.
X Q. 21. Is the principle of the water column its weight by which
‘the gas is obstructed or held down ?
A. According to the height of the water column the pressure of
the gas is regulated.
X “Q. 2a: How does the w ater column regulate the
obstructing the escape of the gas?
A. tebe overpressure, yes.
X Q. 23. Suppose an apparatus constructed in this way—the casks
instead of being connected by short pipes, with a common pipe lead-
ing to the water column, there was a pipe running from one cask
to the other cask, and then extended into the water column in such a
way that if the gas in one cask was too much it could escape through
the pipe directly into the other cask, and in either or both the gas
should be too much, it could escape through the same pipes to the
water column, and thus out through the water column—is such an
apparatus and the principles therein the same substantially as set
forth and claimed by plaintiffs in their patent ?
A. That is the very principle claimed in this patent.
X Q. 24. Have the cocks anything to do with the principle of the.
process or the working of the apparatus, any further then to allow
one, by turning them, to leave the pipes all open; or, if one cask
should be emptied or taken off, or for any other purpose they should
desire to close the pipes as to one or more, do the cocks cut any fig-
ure except for the purpose of closing the pipes in that way ?
A. No, sir. ‘
X Q. 25. Suppose two casks in which it is desired to keep the
beer under controllable pressure of carbonic acid gas; suppose one
pipe leading from one into the other, whereby gas may escape from
either into the other, and the same pipe extending to the water
column, as previously described; suppose the proper amount of
water for regulating the gas is in the water column, will the
49) apparatus work the same with the pipes all open, and without
any cocks? |
A. It has to work thes same, but it only requires. to draw
off such two casks at the same time.
X Q. 26. Does the principle of the several claims made by the
plaintiff, except the eighth, consist in the keeping of beer while in
gas? Is it by’
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AQ THE ' NEW PROCESS FERMENTATION CO. VS.
the process of manufacture, or, after manufactured, in preserving it,
under automatic pressure of carbonic acid gas?
A. Yes.
X Q. 27. Suppose an apparatus constructed as follows: Two shav-
ings easks with : pipe leading from one into the other, whereby the
gas may escape from one into the other at will; suppose that pipe
to be connected anywhere, either at its center or near one extreme,
with another pipe which leads into a water column, will an appa-
ratus constructed in that way be an infringement upon the claims
of the plaintiff in the patent sued on!
A. Of course it is.
X Q. 28. Is that substantially the same as the plaintiff’s ?
A. Yes. |
X Q. 29. Is there any claim on the size of the water column ?
A. No.
X @. 30. That makes no differenee?
A. No. :
X Q. 31. If an apparatus was constructed, then, in all particulars
‘so as to be no infringement, unless the wi ior column was an In-..
fringement, would the size or construction of the water column cut
any figure?
A. No; the water column acts on a natural law; by having two
feet of height of water, it will give accordingly one pound pressure,
no matter whether the diameter vt a quarter of an inch or ten feet.
X @. 52. You are not able to state, if I understand you, the names
of the gentlemen with whom se ‘elke when at the defendants’
brewery in Indianapolis?
A. I am not able to state their given names; I asked for Mr. Maus
at my conversation and I was introduced to one of the brothers, who
referred me to the principal one of them.
X Q. 35. Are you familiar with the Hicks patent?
A. Yes, [ am. 3
34. Would an apparatus constructed under and in a
of the Hicks patent and specification be an infringement of the
plaintiff’s ee nt?
A. If itis used during the mannfacturing of beer to regulate
automatic pressure of carbonic acid gas, yes. :
X Q. 35. Is the principle of the Hicks patent substantially the
same principle as the plaintiff’s for controlling the beer?
A. It is not.
X @. 36. What is the difference in the } oe
A. It is quite different in mechanieal construction.
X @. 37. Admitting that the mechanical construction is different,
is the principle by which the beer is controlled under a pressure of
varbonic acid gas the same, and, if not the same, why would there
be an infringement by the use of the Hicks patent ?
A. It is the same whenever it is used during the: manufacturing
of beer, and it acts as an automatic relief of carbonic acid gas.
50) k. D. Q. 58. Please state whether your answers to the
various hypothetical questions propose \d on eross-examination
have all been given upon the assumption that the apparatus sup-
MAGDALENA MAUS ET AL. 41
posed by defendants’ counsel have been applied during the same
stage, for the same purpose, and under the same conditions as those
involved in the application of the complainant's process and appa-
ratus.
A. Yes, sir; they have.
| OTTO ZWIETUSCH.
GEORGE BARTHOLOMAE, being duly sworn, and examined‘on the
part of complainant, in answer to interrogatories propounded by
Mr. gts deposes and testifies as follows:
(). 1. ease state your name, age, residence, and occupation.
A. Scue sartholomae; age, thirty years; residence, Chicago;
occupation, brewer. |
Q. 2. How long have you | follow ed the trade of brewing?
A. Since 1867.
Q. 3. How long have you followed the brewing trade in the
United States ?
A. Since 1870. .
Q. 4. You are a member of the Bastiiolon ae W& Leicht Brewing
Company, are you? |
A. Yes, sIr.
Q. 5. Also the president of the New Process Fernientation Com-
pany ?
A. Yes, sir.
Q. 6. While you were engaged in co in the U wited States,
prior to and up to the year 1877 (, did you ever hear of the use or ap-
plication of an automatically controllable pressure, brought about
by the accumulation of carbonic acid gas’ for the purpose of clarify-
ing. beer while in the kraeusen stage in shavings casks and ruh-
casks?
A. No, sir.
Q.7. Where did you first become familiar with that process or
art? e
A. When I was on a pleasure trip in Germany
(. 8. From whom did you learn it?
A. From Hofmann, in Manheim, Baden.
» (. 9. Were you thereupon or shortly afterwards appointed agent
of Meller and Hofmann for the purpose of introducing the process
and patenting the same in the United States?
A. I was, shortly after I came back to this country, appointed an
agent for Meller and Hofmann. :
Q.10 When did the process first become introduced into the
United States ?
A. In 1877; in the end of July and commenceme nt of August.
Q. 11. I think you are from Germany? .
A. Yes, sir.
(. 12. I see from the bill of complaint in this cause that a patent
was issued to George Bartholomae, Chicago, Illinois, No. 201,982, for
the same invention and discovery, substantially; is that George
‘Bartholomae yourself?
6—298
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4? THE NEW PROCESS FERMENTATION CO. VS.
(Counsel for the defendants objects to the question, because it as-
sumes that the patent applied for is the same as one sued on. )
A. Yes. 7 ‘
(). 18. How did you come to take out that patent 1n your own
name. State briefly.
A. My attorney ‘ advised me to do so, because I had made an’ im-
= ement on this apparatus, and I also had a contract with that
party, so as I could take out the patent in my-own name.
Q. 14. That is what he advised you?
That is what he advised me
. 15. A contract with what party ?
A. With Meller and Hofmann. :
Q. 16. The present patent, which is issued ‘to Meller and Hofmann,
No. 215,679, was issued subsequently to the one to you, was it?
A. 38.
5] (). 17. Was there any interference in the Patent Office
between the patent issued to yourself and the application
afterwards made for the patent to Meller and Hofmann sued on in
this cause?
(Counsel for defendants objects for the reason that matter of inter-
ference in the Patent Office Department can only be proven by this
witness by hearsay testimony, or by writings that are hearsay, and
that the above evidence from the Patent Office should be supplied.)
A. Yes, sir; there was. I gave up that pat ent which was issued
to me for the benefit. of Meller and Hofmann’s patent.
Q. 18. That is, you conceded priority to them; is that what you
mean ¢
(Counsel for defendants objects to the question because it is lead-
ing.) :
A. Yes; I conceded priority.
Q. 19. And thereupon the patent was issued ; is that the w ay of 1t?
A. The patent was then issued to Meller and Hofmann.
»
ae
Cross-examination by Mr. Howe:
X @. 1. Who was your attorney ?
A. The first time?
—
X Q. 2. as es, sir; when you made your application.
A. Mr. F. W. Wolf f, an architect of this city, was my attorney, and
he took a the patent through Mr. Evans, in W ashington.
X Q. 3. Did you have any other attorney or counselor in the
matter ¢
A. No.
X Q. 4. At that time was Mr. Evans practicing law cither in the
Patent Office or in the State courts? |
A. he was a patent solicitor.
X Q. 5. Did you make affidavit at that time that you were the
seietaal we first inventor?
A. Yes; I was instructed by my attorney at that time that if I
»
MAGDALENA MAUS ET AL. i a
had made any change in this patent I could take out a patent in my
own name.
X Q. 6. The extent of the instructions of your attorney to you
were that you could take out a patent for any improvement that you
had made?
A. No; he said I could take out in my own name a patent for the
whole thing if I had made any improvement.
X Q. 7. You swore that: you were the original and first inventor
of the whole patent in that application, did you not?
A. Yes, I did. I was instructed by my attorney, as I said before.
XQ. 8. At that time did you know that, in fact, you were not
the original and first inventor or discoverer of the e process ?
A. Of the process; no. I knew at that time I did not invent the
process. I knew Meller and Hofmann were the first inventors.
X Q. 9. At that time, then, you knew that what you were swe: ring
to was not true?
A. At that time I iowsit that when I had made a contract with
Meller and Hofmann I had a right to do so. | 7
XQ. 10. That is not the answer to my question. You will please
answer directly the question put to you. Did you at that time know
that you were swearing to what was not, in fact, the truth ?
a No. =e
X Q. 11. You did not know at that time, then, that you were not
the first inventor ?
A. I did not know at that time that I had no right to take out os
patent In my own name. 7
"XQ. 12. Please confine yourself tomy question. Tell me,
O2 now, directly, did or did you not know at the time you made
the affidavit that you were not the inventor of the process?
A. I told you I was not the inventor of the process.
X Q. 13. Question 12 repeated.
A. I knew at that time I was not the inventor of the process, but
I thought I had aright to dothat. Of course, I was not at that time
very familiar with the E nglish language.
X Q. 14. Then, if you knew that you were not the first discoverer
and inventor of the process at the time -you made the affidavit and
swore that you were the first inventor, you knew that you were
swearing to what was not true, did you not. :
A. I did not know anything about that. Of course, my attorney
told me that, as soon as I made any change inthe apparatus, I had
a right to take out a patent in my own name.
x Q. 15. You say you were appointed a agent for Meller & Hof-
mann ; was that appointment in writing ?
A. Yes.
X Q. 16. Where is the writing?
A. I guess it’s in the hands of my attorney, and also it is recorded
in Washington.
GEORGE BARTHOLOMAE.
Sd
The defendants then read in evidence the depositions of Henry
Jameson, Jacob W. Loeper, Frank A. Maus, Mathais A. Maus
4-4 THE NEW PROCESS FERMENTATION CO. VS.
Clement A. Maus, Henry Sturm, and George Wallace; a patent
of the United States numbered, respectively, 62,581, 63,63 636, 90,349,
115,950, 201,982, 204.687, 205,572, 208,771, and 215,90 6. pote the
various publications, circulars, exhibits, and stipulations mentioned
or referred to in said depositions and stipulations, all which depo-
sitions and exhibits are as follows:
D0 Defendants’ Testimony.
Testimony of Henry Jameson, M. D., Jacob W. Loeper, Frank A.
Maus, George Wallace, and Mathias A. Maus, witnesses produced
and sworn to before me, a special examiner in chancery, at the
office mt Dunean, Smith & Dunean, No. 76 East Washington street,
[ndianapolis, Indiana, on the 21st, 92nd, and 23rd di aysof February,
ie pie tiie int to the enclosed order of the circuit court of the
United States for the district of Indiana.
This testimony was taken on the part of the defendants 1n a certain
action now pending in the cireuit court of the United States for the
district of Indiana, wherein The New Process Fermentation Company
is plaintiff, and Magdalena Maus e¢ al. are defendants.
The said Henry Jameson, M. D., first witness, being duly sworn
to testify the truth, the whole truth, and nothing but the truth
relating to said cause, deposes as follows:
Examined by H. W. Harrineton, Esq.:
(). What is your name, age, residence and occupation ?
A. He nry Jameson ; age is thirty-three, past; residence is Indian-
apolis, Indiana; occupation, a practicing physician.
Q. 2. Have you to any extent studied the subjee pressure
of carbonic acid gas genel rated by beer in the shavings cask, in the
process of manufacture of beer, and the pressure of suc ch gas, and the
regulation and control of such pressure by automatic process ?
A. Ihave made that more or less of a study—that 1s, I have read
up the subject. I have made it a study more especi jally in connec-
tion with my study of physies and chemistry.
Q. 3. Will you state whether beer, in the process of manufacture
and while in the shavings cask, generates carbonic acid gas, and
what danger there is to the cask, if if any, by such generation, and
what necessity, if any there is, of regulating such pressure ?
A. In the fermenting tub or shavings cask the beer undergoes
fermentation. As the result of this fermentation carbonic acid. gas
is given off, and as a result, if confined in the cask, the pressure
might become so great as to burst the cask ; therefore the necessity
of reculat ne this.
Q. 4. W ill you state whether such regulation may be made by
means of pipes Inserted. in the bungs of casks and controlled by any
automatic appliance which will permit the excess 3 of gas to escape
and confine the residue in the cask ?
A. + may. :
Q. 5. Will you please look at the drawing accompanying the
FLITE, ey seca
|
|
ae
ee
MAGDALENA MAUS ET AL. : ee
patent, set out in the bill in this case, as issued to Meller and Hof-
mann, and describe the process of regulating the pressure and allow-
ing the escape of carbonic acid gas as contained in such drawing ?
A. In this drawing the capital A’s represent the three shavings
casks. Now, we have joined to the bung of each one, at aa a,a
‘pipe passing upwards to a common Pipe, a’. ‘This pipe a’ passes
to a water column, represented by C; it taps this column at point 2.
The pipe a’ also communicates with the generators h h, and also is
connected with the pressure-cauge é ”. there is also an outlet-pipe
and cock, designated by e for ocutlet-pipe, and e’ for outlet-cock.
Now, that describes. the essential parts of the apparatus. The
od beer is placed ineasks AA A. After the apparatus is set up, as
hereinbefore described, the apparatus may be tested by genera-
tion of earbonie acid gas in the generators hh h, or these generators
may be used subsequently for the purpose of renewing or increas-
ing the pressure at any time inthe common pipe a’ and in the
casks A A A. j ‘
The beer is placed in casks A A A, and subjected to the proper
temperature to produce fermentation. One of the products of this
fermentation is gaseous In its nature and rises in the air-space above
the beer in the casks S ; this air-spaee being in communication with
the common pipe a’ through the pipes N NN, it is free to pass
throughout the nal th of the pipe a’ so long as the pressure is
greater In the cask thi an in any partof a’. Now, the amount of
pressure in the pipe a’ is represented axeutly by the weight of the
water in the column C, from the point of entrance in the pipe a’
In the column to its upper surface. Every two feet of perpendicular
measurement in the water column would represent about one pound
of pressure to the square inch. Therefore, the amount of pressure
in the common pipe @’ and in the communicating pipes N N N, and
upen the surface of the fermenting liquor in the casks may be in-
creased or diminished at will by inereasing or diminishing the
height of the water in C,
Q.6. You notice stop-covks connected with the pipe connecting with
the bung of each cask. Will you state whether those have any-
thing to do with the process of regulating the automatic pressure?
A. They have nothing to do with the regulation of the pressure
automatically. The stop-cock ~ would enable the brewer to shut
off any individual cask from the system, and the stop-cock 2’ would
enable him to close the communicating pipe N and: retain the
pressure in the rest of the apparatus.
Q. 7. Has the pressure-gauge anything to do with the process
you have described ?
A. It is simply an accessory piece of apparatus, and simply serves
to indicate the pressure throughout the apparatus.
Q. 8. Will you state whether this automatic pressure, upon the
same principle and process, might be any other fluid, spring, or
adjustment, which would resist the pressure of the gas to the desired
point, and at such point yield and allow it to esc: pe?
A. Yes, sir; it might be. We might have, instead of the column
of water C, for the- ‘purpose of balancing the pressure in the casks
eninge
1) THE NEW PROCESS FERMENTATION CO. VS.
and in the common pipe a’, a column of any other liquid, such as
mercury, salt-brine, acetic acid, sulphuric acid, or in fact any liquid
substance that would be practicable, or the pressure might be coun-
terbalanced by means of a spring, or any elastic substanee with the
juisite tension.
(. 9. Will you state whether with such substituted apparatus or
ret
fluid as you have mentioned the process and principle would be
any different from the process and principle in the patent you have
deseribed ? |
A. So far as the process and principle are concerned, the methods
described would be in essence the same, the difference being simply
one of mechanical detail or construction.
(). 10. Will you please look at the patent and drawing now shown
you, called the Wallace patent, issued March 5, 1867, and nam bered
62581, and explain the process of controlling automatically
5d the pressure of ‘carbonic acid gas 1n casks such as you have
deseribed, during the process of manufacture ?
A. We have the shavings casks A A in this drawing, into which
the fermenting beer is pli aced. Communicating with the tops of
these casks we have the pipe E and It’ communicating between the
easks and also the stop-ecocks H and H’. Now, we have also the
stop-cocks H and H’ communicating with the outlet-pipes G and i’,
which pipes dip down into the cotumn of water contained in the
cask C. Now, as the pressure is generated in the casks A A by the
evolution of carbonic acid gas, it is free to pass from one cask to
the other in the series through the pipes Ki and ki’, or should press-
ure at any time exceed the weight of the perpendicular columns
of water in ©, which 1s above the lower end of the outlet-pipes G
and G’, it is free to escape through these pipes, thus regulating the
pressure, making jt at its maximum equal to the perpendicular
weight of the water in C, which is above the lower end of the exit-
pipes G and G’, ,
Q. 11. Will. you please state wherein the principle and_ process
wherein the patent in —— set out in the bill. and the patent
you have just described differ each from the other, if at all?
A. So far as the principle and process are concerned there is no
essential difference whatever, the only difference being in the
mechanical construction of the apparatus.
Q. 12. Can the autoniatically controlled process of ferment: ition,
as described in the patent set out in the bill, be carried out and per-
fected without infringing upon the process and principle of the said
Wallace patent?
A. The principle and process are in essence the same in both
forms of apparatus. I should say, therefore, that one would neces-
sarily infringe upon the other. oe
Q. : 13. Will you state whether in the principle and process it
makes any difference whether the automatic pressure is applied to
one or several tuns or casks?
A. It makes no difference whatever.
14. Are you familiar with the principies of automatic ¢ pressure
in use in the manufacture of champagne wines, as described in
APR my emer
MAGDALENA MAUS ET AL. . AT]
Muspratt’s Chemistry—that is, with the description given in the
work? If so, please state the date, aS near as you can, of the
publication, and whether it is a book in general use among che mien)
technologists.
A. I remember the fact that in Muspratt’s Chemistry, under the
head of the manufacture of champagne or sparkling wines, there is
described processes for regulating the pressure in the vessel contain-
ing the fermenting liquor, automati ‘ally, and that it is my belief
that the latest edition of Muspratt’s Chemistry was issued more than
fifteen years ago, and that this work was at that time the leading
authority upon practical chemistry. It is still an authority, but has
been somewhat displaced by more recent and exhaustive works.
Q. 15. Will you state whether you have had experience in chemi-
‘al laboratories, and whether this principle of automatic pressure
has been used, and how, and for what length ; time in such labora-
tories? | |
A. I have been connected with some chemical laboratory since
1867. ‘Tomy certain knowledge this principle of controlling gaseous
pressure automatically has been in constant use among chemical
manipulators and manufacturing chemists for various purposes,
such as the controlling the pressure in gas tanks or holders, or in
forms of apparatus for ‘the filtration of liquids.
Q. 16. Will you state what substance or means were used to pro-
duce such automatic pressure in the chemical ‘laboratories you have
referred to? |
56 A.* Usually metallic mercury is employed; in some in-
stances, however, water or glycerine or sulphuric acid.
Q. 17. Can you state whether in an old work on chemistry, known
as Comstock’s Chemistry, there was a design and description of the
automatic pressure caused by water upon gas, and regulating the
expansion of gas, and the date of such publication, if you can re-
member it?
A. There was such a work and in it a design describing such ap-
paratus, and the edition of this work in which I remember to have
seen the —— described was issued more than, twenty-five years
ago.
°Q. 18. Please look at the deaistion now shown you of what is
called Hicks’ patent, numbered 68636 and patented April 9, 1867,
and please describe generally the process and principle of s aid de-
sign, and by what means the automatic pressure is produced.
A. figure 2 we have a longitudinal section of the air-vent, in
which a’ represents the body of the plug; ¢ represents an adjust: able
screw, which works in the upper end of the hollow plug a by a screw-
thread ; d represents a movable piece of metal, which 1s free to nove
up and down inside of a slot or opening in te side of the serew ¢,
and within the body of the plug a At “the bottom of d we have a
ground metallic conical valve resting 1n a valve-seat in the plug a
at the point g. Now, this valve is held in position by a spiral i
which surrounds the metal core d, and is at the upper end of the
same, just inside of the regulating-screw c; by means of the regu-
lating-screw ¢ the tension of the spiral spring may be increased or
48 THE NEW PROCESS FERMENTATION CO. VS.
e@ the pressure of the conical valve at
g upon its seat. :
This piece of apparatus works in the following manner: The lower
end of the plug, as represented in figure I, is introduced or screwed
into a suitable opening in the upper part of the fermenting cask
and is ready for action. Now, the carbonic acid, or other gas, has
free access to the valve g, through the opening at the bottom of the’
plug, and whenever the pressure becomes greater than the tension
of the spiral spring in the upper part of the plug, the valve g 1s lifted
from its seat and the gas allowed LO CSCa pe at the aperture d mn the
side of the plug until the pressure becomes equal to or less than the
tension of the spring, when the valve g is reseated and the gas ceases
to escape.
1). Will you state what the principle and process of the ap-
paratus you have just described, applied to casks of beer, would be,
compared with’ the process in the patent set out in the bill?
The essential factors are the same in all of the processes de-
scribed, the tension of the spring in this case representing the weight
of the column of water in the two veniens%s 's before described.
Q. 20. Will you look at the design or drawing representing what
is called the William Gilham sie numbered 115,950, patented
June 15, 1871, and explain what, if any, automatic principle of au-
tomatic pressure is applied by that ‘oreigge ?
A. He has, in figure 1, reg ulated 1 the pressure within the casks,
automatically, by the safety-valve C C; here he uses a lever and weight
to counterbalance the internal pressure. Now, in figure 2, when
there is an excess of pressure, the gas is allowed to escape at the
safety-valve ¢7; but when the pressure is not excessive, but simply
unequal in the inner and outer casks, it is regulated through the
tube CGF and F’, and the equilibrium between the two casks
thereby restored, a column of mercury acting as a valve and _ pre-
venting the mixture of the air in the external cask with the
diminished, thereby increasing
ot eg acid in the internal cask. In figure 3 it is designed
to ach the same safety-valve to the branch of the three-
way cock, wink communicates with the carbonic acid in the upper
part of the vat, allowing it to escape when the pressure has become
greater than the weight of the safety-valve. The principle involved
in this is essentially the same as that in those heretofore described,
the difference being simply one of mechanical arrangement, in
this instance the gas being retained by the weight and lever of
afety-valve in lieu of a column of water, as described in the first
‘wo, and a spiral spring in the third.
Q. 21. Please look at the drawing of what is called the W. Die-
trichsen patent for preserving beer, numbered 90349, patented May
25, 1869, now shown you, and state what principle or process is 1n-
volved in the patent to regulate automatic: ally the escape of carbonic
acid gas from the beer in the barrel ?
A. The principle in this piece of apparatus, in so far as the col-
umn of water represented by a column of water whose height would
be equal to the distance between the surfaces of the water in A and
creating a pressure in the cask, is the same as in the apparatus
4 ?
.
A
}
MAGDALENA MAUS ET AL. 49
hereinbefore described in the patent in the bill. It differs in the
fact, however, that it not only maintains the pressure equal to the
aforesaid column of w: iter, but in that it will supply pressure to the
cask, as the pressure from the cask is released through some other
opening.
Q. 22. Please look at the translation taken from page 357, section
24, of Part Fifth, of Vorschule der Bierbrauerei, now produced ;
alse at the design or drawing at page 358 of the same book, and de-
scribe what principle or process of automatic pressure is applied and
described to control the pressure and escape of carbonic acid gas in
this book.
A. In this instance the internal pressure of the gas 1s controlled
automatically by the tension or elasticity of a vy alve-like rubber
strap being tied over an opening in the bung, the amount of press-
ure within the cask being increased or diminished as the tension
upon the ends of the strap is increased or diminished. In this.
instance the force which counterbalances the pressure within the
ask is the elasticity of the rubber. The rubber is the same factor
in this apparatus as the. water in the two first: described, as the
spring in the third, and the weight and lever in the fourth, and as
the water in the fifth, all of the other factors in each form of appa-
ratus remaining constant.
Q. 28. Will you state what difference, if any, in the automatic
process or principle of centrolling the action of carbonic acid gas,
in the case you have just referred to, is different than the process or
principle described or claimed in the patent in the bill?
A. The principle is the same in this form of apparatus as in that
described in the bill. In this instance we have the tension of a
rubber strap counterbalancing the pressure within the cask in fieu
of a column of water, the only difference, therefore, being one of
mechanical arrangement.
Q. 24. Will you state in the testimony and opinions you have
given as to the apparatus and patents and process whether your
testimony has reference to the process as ap plied to malt-fermenting
beers ?
A. It has.
Q. 25. Will you state whether what is called the generator in the
‘Meller & Hofmann patent has anything to do with the automatic
pressure and process you have referred to in your testimony ?
A. It has nothing whatever to do with the regulation of the press-
ure in the casks, and may simply be regarded as an accessory, by.
means of which the pipes might be tested for leakage before the ap-
paratus is put into use, or by. means of which the pressure might be
restored in case it should r: ipidly decrease from any cause.
08 Cross-examined by ErpHraim BANNING, Esq.:
Q. 1. Have you ever testified as an expert in a patent cause, and
are you accustomed to. testify as an expert in matters involving
questions of chemistry ?
A. I do not remember to have testified in any patent case, but am
7—298
a Cyt nmm nyse
sos Feta anlar: ove
50 THE NEW PROCESS FERMENTATION CO. VS.
ac’ ustomed to testifying in cases involving questions of chemistry
and physics.
Q. 2. Have you ever given special study to the question of fer-
wy acre particularly as it relates to the manufacture of beer‘
. I have, in so far as it comes in a general course of as on
chemical technology.
Q. 3. Are you familiar with the practic: al operation of the process
of treating beer under an automatically controllable pressure of car-
bonic acid gas while in the shavings casks described in the complain-
ant’s patent now in.suit; in other words, have you ever seen the
apparatus described in such patent, or any other apparatus, applied
to shavings casks for the purpose of automatically controlling the
pressure of carbonic acid gas?
A. Ihave seen these forms of apparatus im use in breweries. I
have seen the-same principles applied in the laboratory to the dif-
ferent forms of apparatus, and while I have not made this form of
b]
apparatus a special study aside from the other departments in brew-
ing and chemistry as applied to manufacture, I feel that I thoroughly
comprehend the principle involved in all of the forms of apparatus
described.
Q. 4. Have you made the process of treating beer described in
complainant’s patent a special.study ; if so, to what extent ?
A. Aside from my regular study of chemical technology in the
different text-books, Wagner, etc., I have read, i in connection with
this case, Lippincott’s P1 -actical Chemistry, i in which the subject of
= is exhaustively considered.
Q. 5. Have you read any Germain works on the subject of beer,
and are you familiar with the different processes im use prior to the
introduction of the Meller & Hofmann process in this country, say
in 1877?
A. I have not read any German text-books. I have read transla-
tions and extracts from the German books, and think I am familiar
with the processes prior to the period named.
@. 6. What do you consider to be the essence of the Meller &
Hofmann invention ?
A. The Meller & Hofmann apparatus is, in essence, a form of ap-
paratus by means of which the pressure produced by the evolution
of carbonic acid gas may be maintained in one or a series of
shavings casks at the same point; and this point being set at the
will of the operator, and the apparatus thereafter maintaining this
pressure constantly, automatically, without the interference of the
operator. ‘The apparatus is also designed to maintain an equal
pressure in all of the casks in the series.
@. 7. What do you understand the term “kraeusen stage” to
mean, as used in complainant's patent ?
A. The “kraeusen stage” is the fermenting’ stage, as I under-
stand it. 2
Q. 8. Do you understand it to be limited to any particular time or
stuge of fermentation ?
A. My understanding of the “kraeusen stage” is that it is while
the beer is undergoing its first stage of fermentation.
i.
ie) eo |
a
MAGDALENA MAUS ET AL. 51
Q. 9. Do you know whether the beer is in what may be called a
wild or somewhat furious fermentation or in a mild fermentation
when in the “ kraeusen stage?”
59 A. My understanding is that the first fermentation is liable
to be a violent fermentation, in which a great amount of car-
bonice acid gas is apt to be evolved.
Q. 10. Do you consider that there is any difference in principle
between the application of this process to the purpose specified in
complainant’s patent and the charging of sparkling wines with
arbonic acid gas as described in the Gilham patent ?
‘If I remember rightly, in that Gilham patent he depends upon
the evolution of ¢ gas from the liquor itself. In that event the prin-
ciple involved is precisely the same.
Q. 11. Then the Gilham_ patent existing previously, you do not
consider that there could be any special “merit or novelty in the
application of the particular process described in the complainant’s
patent to the particular purpose, in the particular manner, and at the
particular stages specified?
A. In so far as the principle involved in both pieces of apparatus
in question is concerned, they are in essence the same; the design
in the Meller & Hofmann machine being to retain within the casks
-a certain uniform pressure of carbonic acid gas, to be redissolved
by the beer, thereby giving it sparkle and life. This is accomplished
in this instance by the weight of a ae are column of water.
Now, in the Gilham apparatus the design is to retain within the
ferme nting cask the carbonic acid gene1 rated by the fermenting liquor
at a given pressure, in order that it may be redissolved by the liquor,
by a counterbalance, consisting of a weight and lever, acting auto-
matically, irstead of the column of water, as used in the Meller ce
Hofmann apparatus.
Q. 12. Which of the various exhibits now before you, and specifi-
cally referred to in direct examination, do you consider to most
fully embody the principle and process of complainant’s patent
numbered 215,679?
(Objected to by respondent on ground — witness has testified that
all exhibits contained the same principles and process. ‘The ques-
tion assumes that the witness, in his direct examination, has made a
distinction between the various exhibits.)
A. Each one of the forms of apparatus examined embody the
whole principle of controlling the pressure wi
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