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June 30, 1944


The opinion of the court was delivered by: GALSTON

GALSTON, District Judge.

This is a patent infringement suit involving the validity and the infringement of letters patent No. 1,686,811, issued to Samuel Greenhouse, October 9, 1928, on an application filed May 15, 1922, for a bottle-filling machine. The defendant, Plaza Beverages, Inc., is charged as a bottler and user of the method claims; and the defendant Crown Cork & Seal Co., Inc., the intervener, is a manufacturer of bottling equipment used by the Plaza Beverages, Inc.

Though the patent describes the invention as relating to a bottle filling machine, the machine claims are not involved in the suit. The remaining claims, 3 to 10 inclusive, are in issue and define a method for bottling carbonated beverages.

 From the specification it appears that the inventor sought to provide a machine which would effect a minimum loss of the gas with which the liquid was to be charged. The inventor claimed as new means for connecting a liquid supply tank to bottles to be filled; means for maintaining the liquid at a certain level in the supply tank, and particular means for automatically limiting fluid pressure in the supply tank.

 The specification points out that the use of bottling machines of the prior art caused the bottled liquid to be heavily charged with air; that brewed or carbonated beverages contain a large percentage of vegetable matter which when confined in the presence of this free air causes the beverage soon to lose its flavor; that the presence of the air in the bottled liquid gives the beverage a sharp, unpleasant taste. Accordingly among other objects sought, Greenhouse endeavored to provide a machine which would "deaerate" the liquid without removing any substantial amount of the gas. The means proposed centered largely about the provision of a fluid pressure control valve. The specification recites:

 "In using my improved device, the valve 22 is adjusted to operate at the pressure required within the tank, the continued operation of the machine causes air and gas to constantly escape from the liquid within the filling chamber so that the air and lighter gases are constantly escaping through the valve 22. Inasmuch as the valve 22 is in constant operation, the volume of air or gases passing through the valve 22 is relatively small causing no disturbance in the tank, the gas being heavier than the air forms in a strata just above the liquid and is easily forced into the liquid by the pressure within the tank to replace the air and lighter gas, thus eliminated therefrom."

 The defenses to the patent assert invalidity on a number of grounds. The first of these to be examined is alleged prior knowledge and prior use of the claimed method by the Liquid Carbonic Corporation and purchasers of its beverage filling machine. The proof concerning the construction and operation of this machine, illustrated in Exhibit 25, and described in various charts and catalogues issued by the Liquid Carbonic Corporation, beginning as far back as 1916 and continuing to 1922, was painstakingly and elaborately adduced through the taking of the depositions of many witnesses as well as by witnesses at the trial. They included various users as well as employees of the Liquid Carbonic Corporation. This early machine and its use were established by such clear and convincing testimony as to meet fully the required test in respect to the weight of the evidence required to prove prior use.

 It will not be necessary to recite in detail the testimony of these many witnesses. Suffice it to say that the machine in question was manufactured and used during the period indicated; also that the machine was always provided with a petcock at the top of the filler tank which permitted a constant escape of air and gas from the tank. In addition the proof discloses that the purchasers who were engaged in the bottle filling industry were instructed to leave the petcock open during the operation of the machines. At the trial I was much impressed by the testimony of Schmutzer. He operated two of the Liquid Carbonic Corporation machines in Pittsfield in 1919, when he was employed by the Great Radium Company of that city. He confirmed other users by saying that he had been instructed to leave the petcock open during the operation of the machines, and that he always had done so. During the operation of the machines there was, in consequence, he observed, a continuous flow of gas through the petcock. He explained that by stating that "because once the cock was opened there is always 25 to 50 pounds pressure inside the machine; every time the machine turns around,* the petcock also blows in my face and I could feel it, but so long as the petcock was open and nobody suit it, it had to blow, because there was a higher pressure inside than outside."

 The early form of the Liquid Carbonic Corporation machine followed generally the type described in Patent No. 938,577, issued to Gull, November 2, 1909. It is interesting to note that in that specification it is said:

 "As the level of the beer in the tank is supposed to be kept at a practically uniform height, it depends, therefore, entirely on the regulation of the air pressure within the bottle when the flow of the beer into the bottle will come to a stop. To accomplish the desired regulation of the gaseous pressure within the bottle, I use a body of liquid to balance the supply of air to the bottles, and by keeping this body of liquid under the same gaseous pressure as the beer in the tank, it is the height of this body of liquid pressing on the air supply to the bottles which determines the difference in pressure between the gaseous pressure in the bottles and the gaseous pressure on the beer in the tank."

 The Liquid Carbonic catalogue, dated July 1, 1920, on the subject of constancy of pressure within the tank, contains this explanation:

 "Thus the water in the tank 'H' is automatically held at a pre-determined level, and the air from the filled bottles is discharged to the atmosphere. Also the pressure on the tank 'H' is held at 25 pounds, or any pressure desired, by adjusting the Reducing Valve 'E' and Air Regulator."

 From the foregoing I conclude that the construction of the earlier Liquid Carbonic machine permitted a constant discharge from the petcock and that the method employed in the operation of the machine effectuated such a result; also that such early machine maintained a substantially constant liquid level, as well as a constant pressure in the filler tank. Whatever variation there was in the water level in the filler tank was inconsequential, apparently the variance not being more than a quarter of an inch, an allowable operational variation.

 Considering Claim 7, for example, as perhaps the broadest of the claims in suit, it is seen that the use of the early Liquid Carbonic machine, when used, is ...

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