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October 17, 1938


The opinion of the court was delivered by: FAKE

This is a patent suit in which plaintiff seeks an accounting and injunctive relief for the alleged infringement of the Bertelsen patent No. 1,607,047, relating to the manufacture of artificial cork and assigned to plaintiff. The defendant denies infringement and contends that if the patent is so construed as to include within the scope of its claims any process heretofore or now used by defendant then, in that event, the said claims are void because the subject matter thereof has been shown and described in divers preceding patents and publications.

The specification discloses that the invention relates "particularly to shaped bodies of artificial cork formed by subjecting the cork particles to a heating operation in which the particles are expanded, and the mass shaped to the desired form." The then existing practice in this connection is said to have consisted in subjecting cork particles "compressed in a suitable mold, to a baking operation, this baking operation acting to expand the cork particles and to unite them into a more or less homogeneous porous mass. It has also been proposed, instead of baking the molds containing the compressed cork, to apply the necessary heat to the cork by means of super-heated steam" as disclosed in a prior patent issued to Grunzweig, No. 997,056. It is pointed out that when steam is used it was supposed that it was necessary to leave the cork particles in loose form while the steam was applied, and this required the use of separate heating and molding vessels, or if the same mold were used it was necessary to apply pressure to the cork in the mold in order to shape the mass.

 Bertelsen then says that he has discovered that a two stage operation is unnecessary, and that the desired result may be obtained "by compressing the cork particles in the mold in the usual manner and then passing steam through the mass for a sufficient time to effect the baking operation." So much for the specification.

 Claim 2 of the patent, which is an example claim, reads as follows:

 "The herein described method of forming molded bodies of artificial cork which consists in charging and compressing the mass of cork particles into a shaping vessel or mold, and then passing a heating medium through such mass while it is under compression to bind the cork particles by resinous materials from the cork, substantially as described."

 The other claims in suit speak of steaming while the cork "is held in compressed condition" or "while it is still under compression" or while the cork particles "are placed and held under applied compression."

 In view of the prior state of the art and the admissible evidence contained in the file wrapper, this patent must be found to be invalid if it is not very strictly construed. Much difficulty was experienced before the Examiner in so wording the claims as not to cover things that were well known and old in the art. In this connection, the patent of Grunzweig was cited by the Examiner, and a study of this patent with the proceedings underlying its issuance further leaves it clear, I think, that Bertelsen's patent must be limited carefully in its construction to include no more than the exact wording will permit. So viewed, the problem here is greatly simplified and the sole question is whether defendant in its method of manufacture injects superheated steam into the cork mass while it is "under compression."

 By stipulation in writing between the parties, the defendant's process or method of manufacture is placed before the Court together with diagramatic drawings relating to the same. They cannot be set forth in this memorandum, but reference to them is necessary for a full understanding of what may be said here.

 Briefly stated, the defendant's method consists of certain major steps, which without particularly describing the mechanisms involved, consists of:

 First: Opening the container or mold.

 Second: Placing a charge of loose particles of granulated cork in said mold until the top of the mass is about twenty-two inches from the bottom perforated plate of said mold.

 Third: The mold is then closed and a plunger having a perforated plate descends upon the cork mass compressing the said mass between the two perforated plates until its thickness or depth is reduced from twenty-two inches to fifteen inches.

 Fourth: The plunger is then immediately raised until the aforesaid plunger plate reaches a position of about twenty inches ...

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