demonstrated by an experiment before the court. The witness then further testified that the rule he deducted from the specification as well as the experiment before the court related only to solutions before any yeast whatever had been grown therein.
Defendant's leading witness, a prominent chemist and expert, who was also qualified as a practical yeast manufacturer, testified that the instructions contained in the specification as bearing upon the 3 degrees to 5 degrees Balling teach the maintaining of a 3 degrees to 5 degrees Balling in the wort employed, and that the said Balling could be maintained only by tests made during the process of manufacture. He further testified that the rate of feed from the 12 degrees Balling wort would vary, depending upon the kind of materials employed. Thus is disclosed a sharp conflict between the parties as to what the claims when read with the specification actually disclose.
My conclusion is that claims 4 and 10, when read in the ligh of the specification, are vague and uncertain, even when read and studied by those who are expert and skilled in the art.
In Chemical Rubber Co. v. Raymond Rubber Co. (C.C.A.3) 71 F. 179, 183, a quotation appears from Consolidated Electric Light Co. v. McKeesport Light Co., 159 U.S. 465, 474, 16 S. Ct. 75, 40 L. Ed. 221, as follows: "If the description be so vague and uncertain that no one can tell, except by independent experiments, how to construct the patented device, the patent is void."
Again in Krupp Aktien-Gesellschaft v. Midvale Steel Co. (C.C.A.3), 191 F. 588, 602, the following appears: "In other words, the teaching of the specification and the disclosure by the patentee must be such that, after the patent has expired, a user thereof shall not be left to the blind groping of experimental work, but by the plain teaching of the specification be enabled to use the process with certainty."
See, also, George K. Hale Mfg. Co. v. Hafleigh & Co. (C.C.A.) 52 F.2d 714, 719, a case in this circuit wherein Judge Kirkpatrick ruled as follows: "There must be hundreds of shades of blue, possibly thousands, and there is no indication of what shades require this combination of ingredients. Further, there is nothing to indicate the proportions to be used. The most extensive experimentation would be necessary before it could be determined what blue dyestuffs in what proportions would produce a commercial result. The law is clear that such a disclosure will not support a valid claim."
Again in Health Products Corporation v. Ex-Lax Mfg. Co., Inc. (C.C.A.2) 22 F.2d 286, 287: "It is scarcely necessary to labor the principle that specifications must be more than a suggestion for promising experiment, hit or miss. They must contain complete directions, leading with certainty to the result."
See, also, Hebe Co. v. Enz (C.C.A.7) 283 F. 977, 978; De Lamar v. De Lamar Min. Co. (C.C.A.9) 117 F. 240, 247; Finley v. Mac Dougald Const. Co. (C.C.A.5) 28 F.2d 674, 675.
In the light of the foregoing citations and the evidence produced here bearing upon the validity of the patent, and also considering the differences between the record here and the record in the Maryland court, I can come to no other conclusion than that the Hayduck patent 1,449,105 is invalid.
Hayduck, No. 1,449,106.
The claims of this patent cover the neutralization of deleterious acidity as disclosed in the claims of Hayduck, No. 1,449,103, bearing upon the propagation of yeast coupling the same with the rate of feeding as covered by Hayduck, No. 1,449,105. Having hereinbefore found the last-mentioned patent invalid, its combination with a valid patent adds nothing to the art. This patent is therefore invalid.
Hayduck, No. 1,449,109.
In substance this patent covers the same field as those hereinbefore considered. Its disclosure of the use of a nitrogenous neutralizing agent adds nothing to the art since Hayduck, No. 1,449,103, makes that disclosure. It is therefore invalid.
Corby et al., No. 1,673,735.
This patent makes disclosures similar to those found in Hayduck, No. 1,449,105, and Hayduck, No. 1,449,106. The gist of the additional teaching found therein is the periodic withdrawal during propagation of a portion of the yeast containing liquid from the fermenter, diluting the residue left in the fermenter, and restoring the starting conditions therein, thereby increasing the productive capacity of the fermenter. This contemplates a harvesting of a portion of the yeast crop as and when it ripens and the planting of a new crop in the area vacated. It amounts to no more than the exercise of the ordinary skill to be expected of those versed in the art. The idea is as old as the harvesting of agricultural crops when they ripen and the reseeding of the area thus vacated. The patent is invalid for want of patentable novelty.
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