The opinion of the court was delivered by: FAKE
In this suit the plaintiff seeks injunctive relief and accounting for the alleged infringement of five patents. The defendant attacks the validity of the patents and denies infringement. The subject matter is the production of yeast. The patents bearing thereon and involved in this suit are: Hayduck, No. 1,449,103; Hayduck, No. 1,449,105; Hayduck, No. 1,449,106; Hayduck, No. 1,449,109; and Corby et al., No. 1,673,735. These patents will be considered in sequence as above set out.
This patent was before the District Court of Maryland in Fleischman Yeast Company v. Federal Yeast Corporation, 8 F.2d 186, and there adjudicated valid and infringed, and on appeal the conclusions of the District Court were affirmed in (C.C.A.) 13 F.2d 570. All of the issues raised there are again raised here with certain additions. A study of the opinions in the foregoing cases, coupled with a study of the prior state of the art, including the additional matter introduced here, again leads to the conclusion that this patent is valid for the reasons set forth in the aforesaid opinions, and nothing which has been introduced here tends to change that result.
The question of infringement will now be considered. It was conceded at the trial that the use of aqua ammonia by the defendant constitutes an infringement if the patent is valid, and, having found the patent valid, it follows that defendant infringes in that particular use. This still leaves open for adjudication here the question of defendant's infringement in the use of ammonium lactate and di-ammonium phosphate.
As to the substance known as ammonium lactate, plaintiff's expert among other things testified as follows:
Q. * * * When that solution containing the ammonium lactate is put in the fermenter, is the solution acid? A. It is in general acid. * * *"
It follows, of course, that, if it is an acid, it is not antacid. As to whether or not the use of this substance by the defendant operates as an antacid in reducing the excess of acidity in the wort, Plaintiff's Exhibits 13, 14, and 15, being defendant's mash sheets, disclose the defendant's operations and show as a whole an increase and not a decrease of acidity as the ammonium lactate is added to the propagating tank. Taking this evidence and weighing the same in connection with other evidence bearing upon the point, it is clear that the defendant does not infringe this patent in the use of ammonium lactate.
The question must now be answered as to whether or not di-ammonium phosphate is an antacid and whether or not its use by the defendant operates as such in defendant's process of propagation. The ammonia content in di-ammonium phosphate is an antacid and the phosphate is an acid. As to whether then these substances, when combined as di-ammonium phosphate, operate in defendant's process as an antacid, depends upon whether the yeast consumes more of the ammonia content or more of the phosphate content. In this connection, six of defendant's mash sheets were offered in evidence. They show some thirty additions of di-ammonium phosphate, ten of which indicated an increase of acidity, fourteen showed no change in acidity, and six indicated a decrease in acidity but these decreases were slight. This leads to the conclusion that the di-ammonium phosphate which defendant uses in the course of propagation is fed in not for the purpose of correcting an excess of acidity but rather as a yeast nutrient and as such its use was old in the art. In so far as its use happens to correct the excess of acidity, the amount of correction involved is so small and unimportant that the conclusion must be reached that the correction of acidity is a mere incident to the use of the di-ammonium phosphate as a nutrient.
This patent is not intended to cover, nor does it cover, all antacid substances. It covers only those innocuous substances which, when used, neutralize the deleterious excess of acidity in the wort. It therefore follows that the defendant does not infringe in its use of di-ammonium phosphate.
Dealing with this patent, in the case of Standard Brands v. Federal Yeast Corporation (D.C.) 38 F.2d 329, at page 337, the court held among other things as follows: "It appears that certain of the features of patent 105, taken separately, were known to the prior art. The division of the wort into two parts, the beginning of propagation in one part, which had been diluted, and the addition of the other part continuously or at intervals, the restriction of alcohol production by regulating the supply of sugar -- these several suggestions may be gathered together from the literature. But no publication shows the combination of elements found in claims 4 and 10 of the patent. These claims contain not merely the negative admonition that the sugar material be not fed too fast to the growing yeast. They indicate, when considered in the light of the specification, a process wherein the yeast is constantly given new supplies of all necessary nutriment by a continuous addition, so that there is always a wort concentration for the efficacious growth. The regulation of the rate of addition so that the yeast may propagate and substantially all the alcohol formed may be assimilated, and the maintenance of substantial constancy of concentration of nutriment, through regulation of the rate of addition, are not found in any reference in combination with the other elements expressed in these claims."
The foregoing indicates that the court was of the opinion that claims 4 and 10 of the patent, when read in the light of the specification, teach a process of regulation, wherein the rate of addition of reserved materials to feed the growing yeast is made clear and certain. In the instant suit, issue is sharply joined on this point, the plaintiff asserting that the said claims and ...