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High Court of Australia |
H C of A
3 October 1934
Evatt J.
Bonney K.C. and Gain, for the petitioner.
Flannery K.C. and W. J. V. Windeyer, for the respondents.
1934, Oct. 3
Evatt J
. delivered the following written judgment:—This is a petition for the revocation of letters patent No. 13,229. It describes itself as being for "Improvements in the manufacture of yeast." The date of the application and complete specification was November 7th, 1919.
The grounds of objection as set out in the particulars have been slightly amended by (1) the abandonment of ground 1 (that the person named as actual inventor—one Soren Sak—was not the actual inventor), and (2) the abandonment by the petitioner of (a) Levy, (b) Claudon and Vigreaux, and (c) Kamienski, three prior publications referred to in particular 2 as (I.), (II.) and (IV.) respectively.
Meaning of Specification.The first question to be considered is the meaning of the complete specification, for upon that necessarily depends the force of many objections which have been taken. The specification states at the outset that in both the skim-yeast, i.e., the Vienna yeast process, and in the aerated process, of yeast manufacture, the yeast propagates in a mash or wort which becomes continuously poorer in nutritive substance during fermentation. The result is, it is asserted, that there is a growth of yeast "under very different conditions of life," the first generations developing in a nutritive liquid of high concentration, while "the last generations" have to encounter "unfavourable conditions of life."
Some argument was directed to the question whether the specification intends to limit the reference "unfavourable conditions" to the last generation of all; but it is clear from col. 2 that it does not so intend and that it is intended to assert that in the latter end of the processes previously employed there is no longer a sufficiency of nutritive substances.
The specification next points out that in the two methods of manufacture usually employed, the alcohol formed during fermentation retards the formation of yeast. There has been an attempt to overcome this factor in the air-grown yeast method, by selecting suitably weak solutions of wort in order to prevent alcohol from being formed in quantities sufficient to retard the propagation of yeast. "This process, however," the specifier says, "has for effect that the alcohol produced will be lost as it will not be feasible in practice to recover the alcohol when diluted beyond a certain limit."
When he comes to the end of the second column, the specifier has completed his preliminary statement of the problem. His basic declaration is that both the Vienna yeast method and the aeration method, as known and employed in 1919 in the Commonwealth of Australia, present practical difficulties to the manufacturer. In the first place, yeast propagation itself is unsatisfactory because an adequate concentration of nutritive substance is not maintained during the process, but, secondly, whereas the alcohol formed in strong-brew fermentation processes detracts from the successful production of yeast, the existing method in air-grown yeast production of using very weak brews, whilst certainly preventing enough alcohol from being produced to injure yeast production, is wasteful, because the alcohol produced has, for all practical purposes, to be treated as irrecoverable.
What, then, are the stated purposes of the present invention?
(I.) Its first and main purpose is clearly stated. It is to improve the manufacture of yeast so as to obtain high yields. And the method or process adopted for achieving such an end is to secure "as far as possible uniform and favourable conditions of life during the entire fermentation." The process is to operate by sowing the yeast in a diluted wort and then maintaining the concentration of the nutritive liquid, having regard to the gradual consumption of nutritive substance by the growing yeast colonies. The essence of the method is that "the concentration may be maintained in spite of the consumption of substances occurring" (col. 3). Thus the inventor provides an "easily obtainable approximate compensation or equalization of the variations occurring, in consequence of the consumption of substance, in the concentration of the fermenting wort or mash" (col. 3).
This method of compensating for loss of nutritive substance throughout the whole process of fermentation is illustrated by the suggestion that the yeast should be sown, not into the strong wort, but into the last washing water, or a mixture of the last and the last but one, and that, subsequently, additions should be made from a reservoir, consisting of the first wort and the stronger washing water (col. 3).
The specifier describes his method as the application of the "usual nutritive substances (that is, for instance, mash and wort)" in such a manner that the management of the fermentation may be called "differential." This word vividly describes the outstanding feature of the invention. Under the new process, yeast is to be sown in a diluted wort or mash suitable for propagation, and then the process is to be controlled so that the consumption of nutrient substances caused by the propagation and growth of yeast is balanced, and no more than balanced, by adding a sufficient supply of stronger nutrient to the liquid in which the yeast is propagating. The word "differential" implies a balancing of one rate of change against others. Sak's method of controlling the process is quite analogous—as is suggested—to the difficulty presented, not so much in solving a differential equation as to the preliminary and greater difficulty involved in writing it down. He claims that a certain relation exists in which the element of time (the fermentation process takes many hours) becomes all-important. In this way, he emphasizes, not only by his use of the term "differential," but throughout the specification and by his particular examples and directions, that he is concerned with the adjustment of yeast growth (at a certain rate), consumption of nutrient substances as a result of such growth, and the furnishing of additional nutrient substances at such a rate as will compensate for the consumption of substances, having regard to the rate at which they are consumed. It is not merely a question of adding additional nutritive substances in a haphazard or unordered way, but of adding them in a particular way so as to compensate for consumption losses.
(II.) The inventor also states that an incidental but important result may also be obtained from his process. He mentions at an early stage of the specification that the problem of alcohol recovery has also to be attacked. He asserts that "uncommonly large yields" of yeast have been obtained from his process, although "quite considerable quantities of alcohol may be present during the fermentation" (col. 3). He suggests that his process "should" be carried out, "not only in such manner that large quantities of alcohol are formed and are present during the fermentation, but also so that the alcohol is not utilised by the yeast until during the further run of the fermentation, the alcohol being utilised or assimilated" (col. 3).This aspect of alcohol formation is again stressed when the specifier says that "the concentrations ... are not only adjusted in such a manner that they become favourable to the propagation of yeast, but they are also at the same time adjusted in such a manner that they furthermore give a quite appreciable formation of alcohol so that the alcohol may either be caused to disappear again slowly during the process, or may be caused to remain, wholly or partially, as desired" (col. 4).
These two references, when considered together, require the interpretation that "even quite considerable" or "quite appreciable" amounts of alcohol will be produced at some stage of the process. In other words, although yeast is the principal product with which the manufacturer is concerned, the process will or may be carried out in order that there will be alcohol production to the extent indicated. According to the inventor, the manufacturer, if he desired to obtain yeast only, may complete the process so that the alcohol will disappear. But he also possesses the alternative of regulating the process so as to capture the alcohol produced in the course of yeast manufacture.
The inventor sums up the features of his process by declaring that it "forms a kind of regulator for a formation and conversion of alcohol going on co-ordinarily with the attainment of high yields of the best yeast" (col. 4). This statement emphases the point elsewhere made that, although high yields of the best yeast are obtained, there has been in the process formation of alcohol to an appreciable or substantial extent, which alcohol in the normal operation of the process will be converted so as to be utilised or assimilated by the yeast; but the statement is also in direct line with the earlier representation and promise that the alcohol so formed may, if so desired, be retained and captured by the yeast manufacturer at the end of the process.
Mr. Bonney argued that the express mention "that under the old process you lost the alcohol if you sought to avoid retardation, clearly leads one to expect that under Sak's process, you can get the yeast without losing the alcohol."
This argument is based upon the statements in col. 2, where it is said that "the retarding action of alcohol on the yeast formation is especially prominent in the skim-yeast (Vienna yeast) method. In the air-grown yeast method, it has been attempted to remedy this drawback, viz., the alcohol's retardation of the formation of yeast, by selecting suitably weak solutions, in which the alcohol formed could not materially injure the propagation of yeast. This process, however, has for effect that the alcohol produced will be lost, as it will not be feasible, in practice, to recover the alcohol when diluted beyond a certain limit."
The meaning of this statement is that, in the aerated method of yeast manufacture, such weak solutions are employed that, although yeast growth is not detrimentally affected, such alcohol as is produced will be irrecoverable. But this does not mean that the Sak process promises that, at the end of his process, there will be (1) a maximum production of yeast, and (2) at the same time the production and capture of alcohol in commercial quantities. The statement in the specification means that, instead of "suitably weak" solutions, stronger solutions may be used, so that (1) the alcohol produced will not be negligible but considerable, and (2) if, having regard to the state of the market (col. 5), it is desired that the alcohol produced in the process should be retained, that may be done.
It was also argued that the process promises a yield of yeast "of about 60 per cent or more," together with alcohol in considerable and recoverable quantities if desired. I am quite satisfied, having regard to the whole of the evidence and the authorities, and to the information afforded to me by the expert assessors, that the specification is not to be so construed.
The reference in col. 4 is that "the yeast thus produced, while quite considerable quantities of alcohol are present, appears in quantities corresponding to a yield of about 60 per cent or more." This means that the process, when carried out to its normal conclusion (i.e., in the maximal production of yeast), so that there is no desire to obtain alcohol at the end of the process, will give the percentage mentioned. It is obvious from the scientific facts that, where little or no alcohol is produced, a higher percentage of yeast is obtainable than where a substantial or considerable production of alcohol has to be obtained. Therefore the objector has to maintain that the "about 60 per cent or more" is a reference to the minimum production of yeast. In my opinion it is a reference to the outstanding feature of the invention—that yeast production under the process may reach the previously unheard-of percentage of "about 60 per cent or more" notwithstanding the fact that, in the course of the process, "quite considerable" quantities of alcohol have been produced. Such an assertion was quite revolutionary, having regard to the state of the art. It is unreasonable to suppose that a scientific impossibility was also being suggested.
In the specification, two examples of the process are furnished. Example I. indicates that yeast is added to washing water of a strength of 1.5 to 2.5 degrees Balling, while the stronger mixture at 10 degrees Balling is set aside in a special receptacle so as to be added at later stages to the weaker mixture. After two or three hours' aeration, the more concentrated wort is added "preferably continuously" during intense aeration over a period of ten to eleven hours. The process is described, and it is said there will be produced "quite unusually large quantities of yeast" (col. 5).
I regard example I. as concluding at line 10 of col. 5, because in line 12 the specifier refers to "the above example."
It is asserted that, during a fermentation carried out in accordance with example I., alcohol will be produced in quantities "which may amount to 20 per cent or more of the raw material corresponding to the quantity of wort present in the fermentation vat" (col. 5). He also says that "in fermentations as those here referred to, the alcohol will be present or may be present in a concentration enabling it to be recovered commercially" (col. 5).
In my opinion, this reference to the quantity of alcohol which will or may be produced explains the other references in the specification to "quite considerable quantities of alcohol" and "quite appreciable formation of alcohol." A dispute arises as to what the 20 per cent is intended to refer to, whether it invites a comparison with the original raw material itself or with the dextrose derived from such raw material and so represented in the fermentation vat, or with some other standard of comparison. The question is referred to elsewhere. The further statement that alcohol "will be present or may be present" in a sufficient concentration to permit of commercial recovery, is no more than a repetition of the earlier statement that, if it is desired to capture alcohol, the process may be side-tracked for that purpose, whilst yeast production will also ensue.
In my opinion, the reference to alcohol recovery does not mean that the inventor suggests that at any given time or place, or at any time, such recovery "commercially" will necessarily be economically profitable. All he says is that the concentration of alcohol will be sufficient to permit of recovery for commercial purposes. The concentration he points to is, I think, that already indicated, viz., a concentration which may have amounted "to 20% or more" at some stage of the process.
The outstanding clue to the relation between alcohol and yeast production under the process is to be found in the statement that "the present process thus allows the manufacture to be adjusted according to the varying state of the market for yeast and alcohol" (col. 5). This clearly implies that the process should not be regarded as giving at one and the same time the maximum production both of yeast and alcohol. In the sentence quoted the reverse is plainly indicated. If it is unprofitable to use the process for alcohol recovery, such recovery should not be attempted, notwithstanding the fact that alcohol is being produced in sufficient quantities to allow of recovery in commercial quantities. If, however, in relation to alcohol the yeast market becomes relatively unprofitable, the process can be used so as also to produce both alcohol and yeast, the latter in lesser quantities than otherwise.
Example II. differs from example I. in that the wort into which the yeast is sown is at 1.7 degrees Balling, and the stronger wort which is set aside for future service of the yeast is at 7.1 degrees Balling. It is unnecessary to refer to example II. in detail, but it shows clearly in col. III. of the table that at a comparatively early stage of the process the amount of alcohol contained in the wort amounts to 87 kilogrammes of pure alcohol, and that, as the process goes on, this quantity decreases, until at the end, only 4 kilogrammes are present. Example II. may therefore be regarded as a case within the specification where "considerable" or "appreciable" quantities of alcohol have been produced, but have subsequently disappeared, presumably either by assimilation on the part of the yeast, or utilization in some other way.
There is also a discrepancy in example II. between the table in col. 7 and the reference to three and a half hours in col. 6. This discrepancy is unimportant because it is generally agreed that the text should yield to the table, and, in any event, substantially the same ultimate results are obtained if the text itself is followed.
The Claims.The claims are all summed up or built upon claim 1. Firstly, it claims a process for yeast manufacture "in which in accordance with the so-called differential management of the fermentation, a nutritive substance concentration suitable for the formation of yeast is maintained in the wort or mash during the run of the fermentation, while, by the addition of the necessary quantities of wort or mash of higher concentration, any variations in the concentration of the nutritive liquid due to the general vital activity of the yeast are equalized or compensated" (col. 8).
Particulars 6, 7 and 8—Ambiguity.This part of the claim is said to contain ambiguities. In my opinion, the contention is not made out. The "differential management" is adequately and sufficiently described in several places of the specification, both in general terms and by particular instances. Emphasis is also laid upon the uncertain meaning of the "necessary" quantities of more concentrated wort. But the application of the phrase is not uncertain, because it refers to such quantities of more concentrated wort as will from time to time balance the loss of the nutritive substances owing to the demands of the ever-increasing colony of yeast cells.
Secondly, having described the differential process accurately in claim 1, the specifier then goes on to limit his claim to such a use of the process as will result in the formation of alcohol "in considerable quantities." It is also suggested that this is an ambiguous reference. Having regard to the indications elsewhere given in the specification, the specifier has already, as I have pointed out, indicated what he means by "considerable" formations of alcohol. It is such a quantity as will be sufficiently concentrated to permit of commercial recovery, there being a further indication in the figure "20% or more" as to what precise quantity is regarded as satisfying this description to the maximum extent.
The third part of claim 1 contains a limitation by way of the further description that the alcohol formed to the extent indicated "is either recovered or assimilated by the yeast, but only during the subsequent period of the fermentation." It is also said that this period is not precisely ascertained. In my opinion, it is clear that the claim, read in the light of the specification, indicates definitely that, alcohol having been formed to the extent mentioned, the process is not then terminated but continued for such a time as is indicated for instance in the table of example II., where it is stated that "the run of the fermentation process is seen clearly and distinctly from the following table" (col. 7). The table indicates that, at 10 a.m., the process will have resulted in the production of 87 kilogrammes of pure alcohol. It also indicates that thereafter the process is continued for a period of eleven hours. This is made sufficiently plain elsewhere. Example I., for instance, states that the hot and more concentrated wort is added over a period of ten to eleven hours (cols. 4, 5). The "subsequent period" referred to in claim 1, therefore, means such a period as will enable the alcohol to be "recovered" or "assimilated by the yeast."
Particular 8 of the objections to claim 1 on the ground of ambiguity is therefore not sustained. With ground 8 there may also be considered grounds 6 and 7. Ground 6 is that the specification and claims do not adequately define the extent of the monopoly, and ground 7 that they do not give sufficient information to enable the public to ascertain the scope and ambit of the claims. In my view, the analysis both of the specification and of claim 1 which has been attempted, shows that the monopoly claimed is sufficiently defined so that persons reasonably conversant with the trade and art in 1919 would understand the area which is forbidden.
One difficulty which is said to be contained in claim 1 is the assertion that the alcohol produced, if its recovery is not sought by the manufacturer, will be "assimilated" by the yeast. No specific objection is raised in the particulars that the asserted fact of assimilation of alcohol cannot be proved or known.
On the hearing, some evidence was directed to this question. I deal with the matter elsewhere, but I do not think that any specific finding upon it is actually required. Those to whom the specification was addressed could not fail to know that the process described in claim 1 was not intended to be, nor was it, in any way dependent upon whether the alcohol produced in the process, but not sought to be recovered, was "assimilated" by the yeast, or whether it was, as suggested in the specification, "utilized" by the yeast (col. 3). For all the practical purposes of the trade, it was immaterial whether the alcohol produced and stated to have subsequently disappeared from the vat, was acted upon by a catalytic agent, or was converted by an oxidising enzyme associated with the yeast into some of its simpler oxidation products with a consequent gain of energy to the yeast. In the circumstances, the assertion of the fact of actual assimilation was only of theoretical and of no practical importance in enabling the public concerned to ascertain the territory covered by the claims. "Assimilation" became, for all practical purposes, at once the antithesis of commercial recoverability, and the synonym for commercial irrecoverability, of alcohol.
This question of erroneous statement of theory is referred to in Z Electric Lamp Manufacturing Co. v. Marples Leach & Co.[1] , where it was shown from knowledge gained after the date of the patent that the process of treating carbon filaments with certain phosphorous compounds did not remove all traces of carbon from the filament. But the specification had asserted that the process removed "even the last traces of carbon in the filament."
Fletcher Moulton L.J. said that the specification might justly be criticised from the point of view of abstract accuracy. He said that"[2] ."
This decision is important because the actual claim was:—"In the manufacture of incandescent electric lamp filaments free from carbon, the employment" of the phosphorous compounds to act on the raw filaments. In other words, the erroneous statement as to the complete expulsion of carbon from the filament was carried into the claim itself. In point of fact, the error was not known at the time of the patent, but was only ascertained subsequently. But the judgment holds that, although the error existed or was known to exist, even at the date of the patent, and although the error was carried into the very terms of the claim, this did not vitiate the patent if otherwise valid, so long as from a practical point of view the public concerned were fairly given possession of the invention.
Apart from the question specially referred to above, I see no difficulty in the definition of the monopoly found in the claim. On the contrary, I regard the description in claim 1, before alcohol is mentioned at all, as a very clear description of the differential process. It could hardly be bettered, because it explains what is enough to indicate to the trade the territory which is forbidden, and yet it does so in a sufficiently general way to render difficult the task of the proposing infringer.
In the case of Watson, Laidlaw & Co. Ltd. v. Pott, Cassels and Williamson[3] Lord Shaw said:—"A patentee must not use language so vague as to enable him to secure a monopoly for more than his real invention, and so to invade the rights of free rivals. But, on the other hand, it is permissible to state the real invention in language of such generality as is essential to preserve it and to prevent those rivals from invading the rights of the patentee. In the present case, I think that the specification and claim complied with these principles and that the vagueness is not deceptive vagueness ... but is only that generality which would secure (to the inventor) the substance of his idea. In the case of Simpson v. Holliday[4] [5] ."
The reference to alcohol in claim 1 is, of course, a narrowing of the territory of the monopoly, and the question then becomes—reading claim 1 as a whole—whether the internal boundary brought into existence by the alcohol feature of the process is itself sufficiently defined. In my opinion, it is defined in such a way that a person in the trade—again I speak of 1919—would have it conveyed to him without obscurity that the process did not seek to avoid, but welcomed, the production of alcohol in recoverable quantities, so as to enable the manufacturer to adapt the process, in order to (1) produce yeast only in maximum quantities and no alcohol, or (2) produce yeast in substantial quantities and also commercially recoverable quantities of alcohol. I, therefore, reject particulars of objections Nos. 6, 7 and 8.
Particular 5—Insufficiency.It is convenient now to turn to particular 5, which is directed to insufficiency of description and method of performance. Before considering the objections in order, I should refer to several of the leading cases.
As was pointed out by Jessel M.R. in Otto v. Linford[6] , omissions in the description which would be obvious to the "skilled mechanic" in carrying out an invention, and which he would be able to deal with without the exercise of invention itself, do not invalidate a patent. He said:—"[7] ."
In Goddard v. Lyon[8] the Lord Chanceller, Lord Herschell, said:"Although it may have been a matter of experiment as to how high it was desirable to go with regard to the pressure, yet from the outset, as I read the evidence, those who made use of this apparatus understood it to be an apparatus for the use of steam at a considerable pressure, and so employed it, and, according to the evidence, very advantageously employed it."
In British Thomson-Houston Co. Ltd. v. Corona Lamp Works Ltd.[9] , where the claim was for "an incandescent electric lamp having a filament of tungsten or other refractory metal of large diameter or cross-section, etc.," the argument was that, as "large" was a relative term, its inclusion both in the description and in the claim vitiated the patent. Lord Haldane said:—"I do not think that in the specification before us it was intended to define, or that it is possible or necessary to define, the expression "large" [10] ."
He added:—"[11] ."
Lord Haldane further stated:—"This is, in my opinion, no mere abstract principle, but a method or process of manufacture, capable of being at once put into operation by any experienced electric lamp-maker, with such adaptations as his commercial requirements and standards suggest. To put it into operation requires no new inventive capacity, and it would have been inconsistent with the generality and sweep of the explanation given to have inserted a definition of the word "large," [12] ."
In my opinion, this decision is more analogous to the present case than is that of Vidal Dyes Syndicate Ltd. v. Levinstein Ltd.[13] , where Fletcher Moulton L.J. emphasized the truism that the patentee's duty was to describe the nature of the invention so as to ensure that the monopoly extended no further than the invention made, and also to describe the method of performing the invention, so as to ensure that when the grant expires, the public may "be put in full possession of the way to carry out the invention" [14] .
The particular objection of Lord Moulton was that, merely to say that an invention consisted in causing sulphur to react on diamido napthols described nothing at all, because, before the date of the patent, no knowledge existed of any such reaction, so that the description necessarily covered every possible kind of reaction, however produced, and was too vague. The same absence of common knowledge showed that the method of performing the alleged invention was nowhere indicated, there being a total absence of directions in the specification as to diamido napthols.
Such a case, though based on the same principle which is here to be applied, is not so analogous as In re Jameson's Patent[15] , where the patentee stated, in reference to process of dehydrating peat by electricity, that in case of a stoppage in the circulation of the peat, it ceased to conduct electricity, and so cut off the current as soon as there was decomposition of the hydro-cellulose. In point of fact, the resistance was only increased. Phillimore L.J. said:—"As an absolute statement, this is incorrect, but it is not for any material purpose incorrect" [16] . Cozens-Hardy M.R. pointed out that the main idea of the patentee was to decompose the hydro-cellulose in peat by means of what was called an electro-osmotic process, which accelerates the decomposition. In the course of the specification, it was said: "The voltage may vary within wide limits, but a voltage of about 200 has been found to be, on the whole, the most economical."
Cozens-Hardy M.R. said:—"[17] ."
Phillimore L.J. said:—"[18] ."
And Cozens-Hardy M.R. stated that"[19] ."
Bearing in mind the principles, I turn to the objections in their order: 1. —The specification states that "even quite considerable quantities of alcohol may be present during fermentation" (col. 3). It is objected that no instructions are given as to how much may be present and in what stages, without detriment to the process. Now I have elsewhere stated my opinion that the specifier does sufficiently indicate what he regards as "considerable" quantities of alcohol. He also makes it clear that the presence of alcohol in such quantities is not detrimental to the process, but that even where yeast alone is being aimed at, and no attempt is being made to capture the alcohol produced, yeast production is not hindered, but rather helped by the presence of alcohol (See col. 4). In my view (and this finding is bound up with the evidence I accept as to the prior act) sufficient instructions are given as to the quantities of alcohol which may, and should be, expected from a carrying out of the process. 2. —The specification also states that the process "should" be carried out "in such manner that such quantities of alcohol are formed and are present during the fermentation, but also so that the alcohol is not utilised by the yeast until during the further run of the fermentation, the alcohol being utilised or assimilated" (col. 3). The contention is that this direction gives no instructions as to what quantities of alcohol should be formed, nor by what means the proper quantities and no more should be formed,"nor what are the proper quantities to be formed during the various stages of the fermentation, nor how such proper quantities may be formed or an excess or insufficiency avoided, nor as to the means whereby alcohol is not utilised by the yeast until during the further run of the fermentation, nor as to the means whereby the alcohol is utilised or assimilated during the further run of the fermentation, nor as to what stage of the fermentation it is intended by the expression "the further run of the fermentation." "
This objection should also be overruled. As I have already pointed out, the quantity of alcohol mentioned in the phrase "which may amount to 20% or more of the raw material" (col. 5) indicates that somewhere around this figure will be the maximum quantity of alcohol which can conveniently be produced. If so, the quantity is sufficiently indicated. The suggested lack of instructions as to the quantity formed during the various stages of the fermentations is, I think, a refinement of criticism. The yeast-maker wants to know how much alcohol will be made available to him at the end of the process if he decides to recover alcohol as well as yeast. He has provided for him, in example II., and the table thereto annexed, a very elaborate indication of what will happen if alcohol is not required and yeast only is required. Except for checking purposes, details are not required of yeast and alcohol production at each point in the process.
The argument that the maker is not informed as to how to prevent the alcohol from being utilized until during the further run of the fermentation, depends upon a special objection dealt with below—that there is no instruction how the amount of alcohol at the end of the process may be varied, as stated elsewhere in the specification. Further, the yeastmaker is not required to know the precise chemical changes involved, either in utilization or assimilation, for he has already been told, that whatever they involve, those changes will occur if the process is carried out along the lines of example II. Finally, the expression "the further run of the fermentation" refers to the period of ten or eleven hours between the first addition of the more concentrated wort and the end of the process.
3. —It is next argued that no instructions are given as to how "an easily obtainable approximate compensation or equalization" is obtained. Again, I think that instructions are given both as to the general principle and the standard or normal method of the process. That method is the maintenance of concentration of nutrient substance in the fermenting wort. There are many ways in which this method may be employed. Varying factory conditions have to be taken into account, and non-inventive experimentation will, no doubt, be found desirable. Examples I. and II. show in detail two methods of carrying out the process. In my opinion, there is no ground for holding that no instructions are given by the specifier as to how his principle or method is carried into effect. 4. —Selecting the passage in the specification in which it is stated that the concentrations are adjusted in such a way as to (a) favour the production of yeast, and also (b) produce quite appreciable quantities of alcohol, the latter disappearing slowly during the process, or remaining throughout it in whole or in part—counsel argues that there is no instruction as to what concentration during the fermentation is favourable to yeast production.This argument misunderstands the main purpose of the invention, which is to maintain concentration throughout the process, so as to balance the consumption of nutrient substance against the growing needs and activities of the yeast colony. This may obviously be done in a very large number of ways, two of which are particularized. No doubt experience may be desirable or necessary in the circumstances of the particular factory or plant. But the general direction is that, though the degree of concentration may vary within certain limits, some concentration should be maintained. The complaint that no instruction is given as to how the process is to be adjusted, first of all, to produce alcohol, secondly, to cause it to be retained or to disappear as desired, is dealt with below.
5. —With reference to the statement in the specification that the process acts as a "kind of regulator for a formation and conversion of alcohol going on co-ordinarily with the attainment of high yields of the best yeast," it is contended that no indication is given how to obtain such regulator effect. This objection is answered by pointing out that the specification claims that high yields of yeast may be obtained in the aeration method without fixing so low a concentration as to reduce alcohol production to a bare minimum. The phrase criticized then (1) describes how under this new method alcohol will be formed in substantial quantities, and (2) says that it may be (a) retained for use, or (b) converted and utilized in the process of yeast production only. 6. —It is said of example I. that the temperature of the "hot" concentrated wort which is set aside in a reservoir is not given. This is an unjustified criticism. The temperature of the wort, when put in the reservoir, is stated as from 70 to 75 degrees centigrade, or as up to the sterilization temperature of about 70 degrees centigrade. No difficulty in the direction would be found in practice by a person conversant with the trade. 7. —It is objected that no instruction is given in relation to the comment upon example I., that the alcohol will, or may, be present in a concentration which permits of commercial recovery, as to how the process is to be controlled. This point is also dealt with in the next objection. 8. —It is objected that the instruction "By a slight variation of the temperature, the aeration, or the manner in which the wort is added, the amount of alcohol present at the end of the process may be varied" (col. 5) is not sufficiently definite as to any of the variants referred to.In my opinion, the evidence established that at the time of the grant, the general effect of the three variations was known to yeast producers in Australia. Within certain known limits, the quantity of alcohol is increased by adding concentrated wort, if the process is started on a relatively low Balling. Within certain known limits, an increase in aeration will stimulate yeast production but retard alcohol production, whereas a decrease in aeration will produce the reverse effect. The effect of variations in temperature was also known to those expert in the art. The interrelation of these variants is discussed in authorities such as Kiby, Delbruck and Hayduck, and Allen. Professor Young was cross-examined about these factors. He certainly stated that the paragraph mentioned above does not, in itself, give instructions. The paragraph, indeed, makes a call upon the knowledge and practical skill of persons versed in the trade. Mr. Bonney, in a very careful cross-examination, was successful in inducing Professor Young to say that the precise result of the three factors mentioned—factors which are necessarily interrelated—"would be a matter for experiment." The witness also pointed out that in example I., as distinct from example II., a much higher percentage of alcohol was obtained, so that a guide as to the initial stages of the process dealing with the relative concentration of the weaker and stronger wort is obtainable from the figures given in these examples. In the main, however, Professor Young stated, with reference to this much criticized paragraph, "that is a matter I could only answer by experiment."
Mr. Walter, who was employed as chemist in one of the two Australian factories engaged in 1919 in yeast manufacture, was quite aware of the importance of aeration and temperature upon the activity of the yeast cell. It may, of course, be conceded that the trade was not acquainted with the precise effect obtainable by adding the more concentrated to the weaker wort (i.e., enormously increasing the yield of yeast). This fact, of course, is a feature of the patentee's case on subject matter. But the specification indicates quite clearly that alcohol production is affected by the three elements mentioned. The statement is quite correct, and all that can be said by way of criticism is that the specification affords no absolute or precise measure of the interrelation of the three variable factors upon alcohol production. It was, as Professor Young said, a matter of experiment in any given case to ascertain in the light of factory requirements what precise results would be obtained. But this only brings the case within the principles of the authorities already quoted. Whatever "experiment" was required demanded no further inventive faculty, but only practical factory tests, and the careful recording of results for the purpose of repetition and variation as desired. I am satisfied that the effect upon alcohol production of the three factors, in the state of knowledge existing in 1919, as added to by the specification itself, was sufficiently known to the yeast producer to enable him to carry through to a successful conclusion any experiments found necessary.
9. —It is objected that no instructions are given as to when it is advantageous, as the patentee suggests, to "sow a very liberal quantity of mother yeast or seed yeast." This criticism is also unjustified. The statement indicates that the high quantity of seed yeast may be sown "frequently." Within the principles he lays down the patentee is not required to exclude factory research and experiment. 10. —It is complained that no instruction is given as to how the directions in example II. should be varied if it is desired to obtain a commercial quantity of alcohol. This objection rather misunderstands example II. The table to the example indicates that the capture of alcohol is not an object being pursued in such example. The reason is not far to seek, because the concentrated wort is at 7.1 degrees Balling, and the first wort to which it is applied is on 1.7 degrees Balling. In example I., on the other hand, the concentrated wort is assumed to be at 10 degrees Balling, although its "concentration may vary between wide limits." Example II. is, therefore, an illustration of the normal application of the process when attention is directed to yeast production and yeast production alone. None the less, as appears from the table in example II., a substantial quantity of alcohol has been produced at a certain stage of the process. At one stage, after 409 kilograms of dextrose has been added, 87 kilograms of pure alcohol has been obtained. The percentage by weight of the raw materials at that stage was 14.9 per cent, and if it was decided even then to deflect the process in such a way as to capture as much alcohol as possible, by adjustment of temperature and aeration, commercially recoverable quantities of alcohol would have been available at the expense of reducing the yield of yeast. 11. —It is also complained that no instructions are given as to how to apply the invention to the skim yeast method. This is true in the sense that no specific instructions are given, but the patentee claims that the principle of his process is applicable to Vienna yeast. It must be remembered that in Australia at the relevant time, 1919, the method had gone out of use in commercial production. In the circumstances, he was entitled to claim that the principle of the differential process was also applicable to the Vienna method, and that, if necessary, by factory trial and experiment, the quantity of alcohol produced could be varied by adjusting the three factors already mentioned.I conclude that ground 5 of the particulars, which alleges insufficiency in various ways, has not been made out.
Documentary Anticipation.1. —Lake: Lake's specification is relied upon as a sufficient paper anticipation of Sak. Lake related, however, to the manufacture of yeast "without the ordinary alcoholic fermentation." In the course of his specification, Lake stated that the growth of the yeast would be completed within from six to eight hours after a sufficient addition of dextrose maltose, or other material "according to the density of the propagating liquid used, the temperature of the latter, and the amount of ozone in the air." He then says that, when the entire amount of the dextrose or other sugar has been consumed after from six to eight hours, a further quantity thereof, say from one-twentieth to one-tenth per cent is added. And he adds:—"The peptones may also, after having been consumed, be added in portions, or may be allowed to flow in gradually and continuously. The same propagating liquid made by successive replacements of the matter consumed remains in use for weeks or months, unless it is rendered impure." It should be mentioned that one of the improvements insisted on by Lake is the employment of vegetable peptones, with the addition of slight quantities of hydro-carbon (carbo-hydrates) for the purpose of yeast production. He stated that his improvement also consists "in adding successively peptones and sugar to the comparatively stable nutritious solution used for growing the yeast, and successively withdrawing the finished yeast produced in the same."
The peptones constitute the nitrogenous nutriment for the yeast, so that Lake has limited his proposal to making additions of nitrogen compounds and has not expressly mentioned the hydro-carbons at all. Even in relation to nitrogen, he does not suggest the maintenance of uniform concentration. Regarded as a whole, in comparison to Sak as a whole, Lake is very far distant indeed. According to Mr. Walter, the normal operation of the Lake process, insisting as it does on absence of alcohol, would take a very considerable time, possibly a week. The evidence of all the witnesses makes it clear that Lake does not lead directly to the subject patent.
As was said by Judge Soper in Standard Brands (Inc.) v. Federal Yeast Corporation[20] in reference to Rayner's patent (which corresponds to Lake's), "it does not appear that the ratio between the materials remains constant throughout the propagation of the yeast. Nor does Rayner show that there is any particular virtue in the continuous addition of the nutritive material, as consumed, rather than the replacement of it at intervals, when consumed." And, further, "it does not seem possible to conclude either from the first or the second example, or from both together, that the patentee had discovered that either a continuous addition of materials or a relative constancy of concentration was particularly desirable. The main admonition of the patent was that the operator should not at any time add so much sugar that the alcohol produced could not be consumed by the yeast."
2. —Thompson: Thompson's specification was directed to the manufacture of pure yeast produced from dried lees of wine so as to produce non-poisonous alcohol, and avoid the production of such deleterious substances as furfurol. He states that when the microscope indicates that a pure and wholesome elliptic ferment has been obtained, there is added to the mother solution "in fermentation and in small quantities at intervals, wort" which has been suitably prepared. He also says that the addition of wort "must be effected rationally so as not to allow it to slacken."Thompson's document is very far removed from Sak's. The quantities to be added, the intervals which are to elapse, the relation of the quantities to the concentration of the liquid in the fermenting vat, the principle of uniformity—none of these things are mentioned or even hinted at. In truth, Thompson was not concerned with the differential management of the fermentation at all. It is clearly not an anticipation.
3. —Vignier: This is the third paper anticipation relied upon. It related to a new system of fermentation of wines, wash or beer, and the making of yeast for the distillers in such a way that the must or wort was supplied "in fractional divisions to the fermenting vat or vessel." He also specified apparatus for supplying the wort in fractional divisions which were allowed automatically to pass at recurring periods from the must charger or reservoir to the fermenting vessel. He said that "this fractional division of the must is intended to gradually feed the yeast, which rapidly converts every discharge of said must to alcohol; hence the saving of time in obtaining a wine at the higher alcoholic strength with an appropriate yeast."This specification does not suggest, much less require, the Sak process. As has been said of it in relation to a patent indistinguishable from that of Sak, "the patent involves a certain regulation of food supply, and it may be assumed that a similar procedure might be applied in the manufacture of yeast. But the only dilution of the initial wort is that caused by the conversion of the material into alcohol; the process is discontinuous, and there is no attempt at constancy of concentration" [21] .
I, therefore, reject each of the three paper anticipations upon which the petitioner based this part of his case.
Subject Matter, etc.There is not the slightest doubt that in the relevant territory—the Commonwealth of Australia—a very great step in advance of previous knowledge was taken by the differential process as embodied in Sak's invention. Before the Sak process, the characteristic of the curve showing the relation between the concentration of nutrient substance and the lapse of time under the aerated method process, was the steady fall of the former—the Balling decreasing throughout the process. In relation to the aeration process, in particular, it was believed that yeast growth would be very detrimentally affected unless the method in common use was adhered to. It was Sak who appreciated for the first time the significance of maintaining uniform or approximately uniform concentration of the nutrient substance required for the propagation of the yeast. His invention possessed both novelty and very great utility. The witness upon whom the petitioner chiefly relied, Mr. Walter, admitted that the percentage of yeast yield obtained from the application of the Sak process was 75 per cent as opposed to something in the neighbourhood of 20 per cent under the previously existing Australian method of manufacture. He stated that this result was "almost unbelievable." Even outside Australia the percentage yield of yeast prior to the introduction of the differential process did not exceed about 30 per cent.
It is, of course, true that the principle involved in the Sak process appears both simple and logical, now that everybody in the trade knows of it. By comparison, however, with previous knowledge and practice, it is impossible to over-estimate the importance of the discovery. His process swept aside all previous notions upon the subject, invoked an entirely new principle, and proceeded to embody it in a new method of manufacture. Not only did he not seek to avoid alcohol production, but, within limits, elsewhere referred to and discussed, his process encouraged such a production of alcohol as enabled the yeast-maker, if and when the exigencies of the market demanded it, to sacrifice a very high yield of yeast production, and get in place thereof a substantial yield of yeast, together with the capture of alcohol in commercial quantities. It is plain that particulars of objections 3 and 4, and particular 2, so far as it has not been dealt with under the heading, "Anticipation," should be overruled.
General Observations.There are some additional observations which I wish to make. In order to deal with the technical aspect of many of the questions, the parties have provided me with two very skilled assessors, and much of what I have said and am about to say is based upon their expert knowledge of scientific processes, and their opinion and explanation of the results of the experiments actually carried out during the course of the case.
1. —The promise of the patentee that a yield of yeast of about 60 per cent or more is obtained from Sak's differential process, is clearly established; all the experiments justify this promise. 2. —It has to be remembered that the manufacture of yeast was and is a special kind of industry. Those engaged in its practice were persons from whom there must be expected such technical knowledge as would be possessed by properly trained brewing chemists. Indeed, this was pointed out in one of its aspects by the patentee himself, when he stated his expectation that his process would involve higher supervision costs (col. 4). Therefore the art to be considered in applying legal principles to this case is specialized and technical in character. I am of opinion that the effect on alcohol production of alterations in temperature, in aeration and in strengthening or weakening the brews, was known to those reasonably skilled in the art in 1919. I am not satisfied, however, that Mr. Walter should necessarily be regarded as typical of those then properly skilled in the art; at that time his training and experience were not such as might fairly be expected of a skilled brewing chemist in charge of such a complicated process. 3. —In his evidence, Mr. Walter laid very great emphasis upon the significance of pH as applied to the control of the Sak fermentation process. Now pH is merely a method of expressing in a scientific or technical manner effective acidity or hydrogen-ion concentration. It is quite true that since 1919 there has been an extension of the use of pH measuring instruments, which for many purposes are far more significant than "titratable acidity." pH measurement involves a greater possibility of refinement in control. Yet it is quite absurd to attribute the great increase in yeast yield from the successful application of Sak's process merely to the pH measuring instruments and the maintenance of pH in the fermenting vat. The specification itself requires additions of ammonia and ammonium sulphate, but it shocked Walter that any person should even think of putting ammonia, a powerful base, into the fermenting yeast. It "seemed like murder" to him, because acidity would be immediately destroyed or corrected. He could not reconcile himself to its insertion in a brew containing "live" organisms; it was too "drastic." Although the addition of ammonia water was specified, Walter decided that he "would put himself above the inventor and drop the process altogether." 4. —In my opinion, a properly trained brewing chemist would, in 1919, understand the necessity for the additions of ammonia water and ammonium sulphate. They serve two purposes, both of which were well known before 1919. These purposes were, first, the addition of the nutritive salts, and, second, the control or balancing of the acidity (or pH of the wort). My view about Walter's then qualifications is supported by his attitude upon another matter. When he first attempted to perform the Sak process, the result was to give slime. This was undoubtedly due to some infection, owing to his not following the specification direction as to temperatures; and in evidence he did not seriously dispute that this was the reason. Before the visit from a Danish expert, ordinary precautions against infection seem to have been neglected by him. 5. —In 1919 it was also well known to all concerned that the recoverable yield of alcohol from a fermentation process—speaking generally—decreased as the yield of yeast increased. Speaking generally, also, the converse proposition applied. This is illustrated sufficiently by the experimental evidence submitted in this case, and the technical authorities make the matter abundantly clear. 6. —The main point upon which Mr. Bonney finally attacked the patent was in relation to the assertion by the specifier as to the possible yield of alcohol. Now there are five possible ways of expressing the yield of alcohol: (a) The alcoholic content of the wort expressed in kilograms; (b) the alcoholic content of the wort expressed in percentage by weight in the brew; (c) the percentage yield based on the equivalent amount of alcohol to sugar (dextrose) compared with the total sugar added up to any given point of the fermentation process; (d) the percentage yield based on the total soluble materials in the wort which has been obtained from the mashing process; and (e) the percentage yield calculated on the total weight of raw materials used to make the equivalent amount of wort in the fermenting vat, as at any stage of the process. Example II. given in the patent itself (col. 7) uses the first three ways of expressing alcohol yield. This practice was followed by Mauri Bros. & Thomson, Ltd., and by the assessors in reporting the results of their experiments for the purpose of comparison. On this basis of calculation six of the ten experiments referred to in evidence give over 20 per cent yield of sugar converted to alcohol at the end of the fermentation. But Sak's example (example II.) where the object is to obtain yeast only, gives only 0.6 per cent of alcohol at the end of the fermentation. All of the experiments give 20 per cent or over, as at some stage of the fermentation, even when calculated according to the fourth method (d) above, that is, on the soluble raw material corresponding to the quantity of wort present in the fermenter at any given time. 7. —But it is stated in col. 5 that during a fermentation as in example I., alcohol will be produced in quantities which may amount to 20 per cent or more of the raw material corresponding to the quantity of wort present in the fermentation vat. Now I am prepared to accept Mr. Bonney's argument that this percentage indicates the method of expression according to (e) above. On this basis example I., experiment 3 of Foster, gave an alcohol yield of 18.9 per cent of raw material at the end of 6 hours fermentation, and 17.2 per cent of the raw materials at the end of the process. In the latter case, there were 234 kilograms of alcohol at 2.15 per cent of concentration. It is clear that such a concentration (i.e., 2.15 per cent) could have been increased by adjustment of temperature aeration, and/or strength of wort. The result of a very slight increase would have been to obtain a yield exceeding 20 per cent even at the end of the fermentation. Capable brewers could easily have made the necessary alterations in the light of prior knowledge, plus the additional information furnished by the specification itself. A few practical experiments might have been necessary so as to assure results in actual production; but nothing more of inventive skill was required than Sak had furnished. For instance, Walter, in one experimental brew, obtained 27 per cent of alcohol when determining the most economical method of producing alcohol without yeast or with as little yeast as possible. 8. —It is quite plain, and I find, that alcohol may be recovered commercially, when it is present in a concentration exceeding 2 per cent. In experiments I. and III. of Foster (example I.) this percentage is exceeded. The promise of the specifier that alcohol will be present, or may be present, in a concentration enabling it to be recovered commercially, is clearly substantiated. The net result of the experiments of the assessors is to confirm the authenticity and general accuracy of those conducted by Mr. Foster. I am also satisfied that the statement in the specification that during a fermentation, as carried out in example I., alcohol will be produced in quantities which may amount to 20 per cent or more of the raw material, is also substantially correct. 9. —I reject the suggestion that, upon a fair reading of the specification, the patentee promises a yield of 60 per cent of yeast and 20 per cent of alcohol from the same fermentation. If the patentee had stated that such would be the result of his process, a declaration of invalidity would have to be made. But I am clearly of opinion that no reasonably well equipped person in the trade to which the specification was addressed, could have read the specification as promising such an impossible result. Those skilled in the trade would have read the specification as promising 60 per cent yield of yeast when yeast alone was being sought, and as understanding the reference to 20 per cent production of alcohol as being limited to the case where, in the market situation, the need for such a high yeast yield no longer existed. Even in the latter case, a good yield of yeast is obtained—as the experiments show—when comparison is made with the previous existing capacity of yeast production in the Commonwealth. For instance, Walter knew that the degree of aeration could be controlled so as to decrease yeast (and increase alcohol) or increase yeast (and decrease alcohol). He knew, broadly speaking, that high yields of yeast could not be obtained concurrently with the 20 per cent production of alcohol. Walter's evidence was:—"Mr. Flannery: Your view, I take it, that you expressed to Mr. Bonney, was that in a brew of this description, the description which is indicated in example II., no alcohol would be produced? Correct.
At any stage? At any stage.
And that no alcohol is utilized ever in the production of the yeast? It is an indication of inefficiency if it is formed.
If it is formed, it is an indication of inefficiency? Yes.
You mean if after formation it is left there? If it is formed at all.
You must get it, must you not? No, not alcohol.
Mr. Flannery: He says that is so. That was the view that was at the bottom of certain of the processes—avoiding the production of alcohol and how to better the production of yeast? Yes.
That idea was there? Naturally.
That was the idea that was prevalent—I put this before this morning—before 1919? Yes.
And it was the foundation of that practice which said, start with a very dilute solution and keep to it as far as you can; is that right? That is right.
"Walter said that he understood Sak was boasting of a result at once impossible and inefficient. But I am of opinion that Sak's promise was not as Walter suggests.
10. —The tendency of some of the witnesses to reject the possibility of the "assimilation" of alcohol by the yeast is not easy to understand. It is quite true that the yeast would select the more easily assimilated sugars from the available raw materials, and that this selection would continue until towards the end of the fermentation. At that stage, however, a very large quantity of yeast was deprived of most of its "natural" foodstuff, i.e., sugars. Clearly the possibility of some alteration of the metabolic process of the yeast so as to enable it to make some use of the only substance left—alcohol—could be—and was—envisaged, even before 1919. There is very definite evidence, in the experiments where a high yield of yeast is obtained, that there is a marked decrease in the percentage concentration of alcohol towards the end of the fermentation. This fact must have been observed by Sak at the date of the patent (Table to example II.). The knowledge of the life process of yeast was, as it still is, far from complete. Sak's explanation of the observed disappearance of alcohol as having been caused by assimilation or utilization, was as reasonable as might be expected at the time. Even if the explanation of the facts was not accepted, the facts themselves could not be misunderstood by those competent in the art. In 1908 Trillat and Sauton had shown that bakers' yeast would convert part of a dilute alcohol into acetaldehyde. When bakers' compressed yeast was vigorously stirred with dilute alcohol (with aeration) there was obtained a conversion to acetaldehyde. The action involved is a vital one. Further acetaldehyde disappeared fairly rapidly when added to yeast in dilute alcohol. Since the year 1919 a number of investigators have confirmed the fact that yeast can in some way convert alcohol into other substances, such as acetic acid and carbon dioxide. It is unnecessary to elaborate this part of the case, but I am by no means satisfied with the somewhat lazy inclination to discard the possibility of assimilation of alcohol by yeast. Unfortunately nothing is so painful—even to some scientists—as a new idea. In the American decisions to which reference was made, there were claims involving the same hypothesis of assimilation of alcohol. It is worthy of note that, although their validity was tested in every possible way, the assertion or implication of assimilation was either accepted as true, or ignored as a mere theoretical error involving no possible misdirection to those skilled in the art. 11. —The only particular of objection specifically directed to the claim of false suggestion is particular 9. The complaint is the statement that the amount of alcohol at the end of the process may be controlled and varied. I am of opinion that the statement is not false, but true. In my opinion, within the ambit covered by Sak's differential process, the known variables of temperature, aeration, and strength of concentration invited experimental adjustment of these variables to meet factory needs and market demands.I cannot part with this case without acknowledging my indebtedness first to Dr. R. K. Murphy and Dr. V. M. Trikojus, whose assistance on the technical aspect of the case has considerably lightened my labour; and, second, without any disparagement of others, to Mr. Bonney, who, acting almost as amicus curiae, has placed at my disposal his expert and specialized knowledge of what its devotees now describe as patent "jurisprudence."
I dismiss the petition with costs.
Appeal dismissed with costs.
Solicitors for the appellant, Allen, Allen & Hemsley.
Solicitors for the respondents, W. A. Windeyer, Fawl & Windeyer.
H C of A
15 July 1935
Rich, Starke, Dixon and McTiernan JJ.
Bonney K.C. and Gain, for the petitioner.
Flannery K.C. and W. J. V. Windeyer, for the respondents.
1934, Oct. 3
Evatt J
. delivered the following written judgment:—This is a petition for the revocation of letters patent No. 13,229. It describes itself as being for "Improvements in the manufacture of yeast." The date of the application and complete specification was November 7th, 1919.
The grounds of objection as set out in the particulars have been slightly amended by (1) the abandonment of ground 1 (that the person named as actual inventor—one Soren Sak—was not the actual inventor), and (2) the abandonment by the petitioner of (a) Levy, (b) Claudon and Vigreaux, and (c) Kamienski, three prior publications referred to in particular 2 as (I.), (II.) and (IV.) respectively.
Meaning of Specification.The first question to be considered is the meaning of the complete specification, for upon that necessarily depends the force of many objections which have been taken. The specification states at the outset that in both the skim-yeast, i.e., the Vienna yeast process, and in the aerated process, of yeast manufacture, the yeast propagates in a mash or wort which becomes continuously poorer in nutritive substance during fermentation. The result is, it is asserted, that there is a growth of yeast "under very different conditions of life," the first generations developing in a nutritive liquid of high concentration, while "the last generations" have to encounter "unfavourable conditions of life."
Some argument was directed to the question whether the specification intends to limit the reference "unfavourable conditions" to the last generation of all; but it is clear from col. 2 that it does not so intend and that it is intended to assert that in the latter end of the processes previously employed there is no longer a sufficiency of nutritive substances.
The specification next points out that in the two methods of manufacture usually employed, the alcohol formed during fermentation retards the formation of yeast. There has been an attempt to overcome this factor in the air-grown yeast method, by selecting suitably weak solutions of wort in order to prevent alcohol from being formed in quantities sufficient to retard the propagation of yeast. "This process, however," the specifier says, "has for effect that the alcohol produced will be lost as it will not be feasible in practice to recover the alcohol when diluted beyond a certain limit."
When he comes to the end of the second column, the specifier has completed his preliminary statement of the problem. His basic declaration is that both the Vienna yeast method and the aeration method, as known and employed in 1919 in the Commonwealth of Australia, present practical difficulties to the manufacturer. In the first place, yeast propagation itself is unsatisfactory because an adequate concentration of nutritive substance is not maintained during the process, but, secondly, whereas the alcohol formed in strong-brew fermentation processes detracts from the successful production of yeast, the existing method in air-grown yeast production of using very weak brews, whilst certainly preventing enough alcohol from being produced to injure yeast production, is wasteful, because the alcohol produced has, for all practical purposes, to be treated as irrecoverable.
What, then, are the stated purposes of the present invention?
(I.) Its first and main purpose is clearly stated. It is to improve the manufacture of yeast so as to obtain high yields. And the method or process adopted for achieving such an end is to secure "as far as possible uniform and favourable conditions of life during the entire fermentation." The process is to operate by sowing the yeast in a diluted wort and then maintaining the concentration of the nutritive liquid, having regard to the gradual consumption of nutritive substance by the growing yeast colonies. The essence of the method is that "the concentration may be maintained in spite of the consumption of substances occurring" (col. 3). Thus the inventor provides an "easily obtainable approximate compensation or equalization of the variations occurring, in consequence of the consumption of substance, in the concentration of the fermenting wort or mash" (col. 3).
This method of compensating for loss of nutritive substance throughout the whole process of fermentation is illustrated by the suggestion that the yeast should be sown, not into the strong wort, but into the last washing water, or a mixture of the last and the last but one, and that, subsequently, additions should be made from a reservoir, consisting of the first wort and the stronger washing water (col. 3).
The specifier describes his method as the application of the "usual nutritive substances (that is, for instance, mash and wort)" in such a manner that the management of the fermentation may be called "differential." This word vividly describes the outstanding feature of the invention. Under the new process, yeast is to be sown in a diluted wort or mash suitable for propagation, and then the process is to be controlled so that the consumption of nutrient substances caused by the propagation and growth of yeast is balanced, and no more than balanced, by adding a sufficient supply of stronger nutrient to the liquid in which the yeast is propagating. The word "differential" implies a balancing of one rate of change against others. Sak's method of controlling the process is quite analogous—as is suggested—to the difficulty presented, not so much in solving a differential equation as to the preliminary and greater difficulty involved in writing it down. He claims that a certain relation exists in which the element of time (the fermentation process takes many hours) becomes all-important. In this way, he emphasizes, not only by his use of the term "differential," but throughout the specification and by his particular examples and directions, that he is concerned with the adjustment of yeast growth (at a certain rate), consumption of nutrient substances as a result of such growth, and the furnishing of additional nutrient substances at such a rate as will compensate for the consumption of substances, having regard to the rate at which they are consumed. It is not merely a question of adding additional nutritive substances in a haphazard or unordered way, but of adding them in a particular way so as to compensate for consumption losses.
(II.) The inventor also states that an incidental but important result may also be obtained from his process. He mentions at an early stage of the specification that the problem of alcohol recovery has also to be attacked. He asserts that "uncommonly large yields" of yeast have been obtained from his process, although "quite considerable quantities of alcohol may be present during the fermentation" (col. 3). He suggests that his process "should" be carried out, "not only in such manner that large quantities of alcohol are formed and are present during the fermentation, but also so that the alcohol is not utilised by the yeast until during the further run of the fermentation, the alcohol being utilised or assimilated" (col. 3).This aspect of alcohol formation is again stressed when the specifier says that "the concentrations ... are not only adjusted in such a manner that they become favourable to the propagation of yeast, but they are also at the same time adjusted in such a manner that they furthermore give a quite appreciable formation of alcohol so that the alcohol may either be caused to disappear again slowly during the process, or may be caused to remain, wholly or partially, as desired" (col. 4).
These two references, when considered together, require the interpretation that "even quite considerable" or "quite appreciable" amounts of alcohol will be produced at some stage of the process. In other words, although yeast is the principal product with which the manufacturer is concerned, the process will or may be carried out in order that there will be alcohol production to the extent indicated. According to the inventor, the manufacturer, if he desired to obtain yeast only, may complete the process so that the alcohol will disappear. But he also possesses the alternative of regulating the process so as to capture the alcohol produced in the course of yeast manufacture.
The inventor sums up the features of his process by declaring that it "forms a kind of regulator for a formation and conversion of alcohol going on co-ordinarily with the attainment of high yields of the best yeast" (col. 4). This statement emphases the point elsewhere made that, although high yields of the best yeast are obtained, there has been in the process formation of alcohol to an appreciable or substantial extent, which alcohol in the normal operation of the process will be converted so as to be utilised or assimilated by the yeast; but the statement is also in direct line with the earlier representation and promise that the alcohol so formed may, if so desired, be retained and captured by the yeast manufacturer at the end of the process.
Mr. Bonney argued that the express mention "that under the old process you lost the alcohol if you sought to avoid retardation, clearly leads one to expect that under Sak's process, you can get the yeast without losing the alcohol."
This argument is based upon the statements in col. 2, where it is said that "the retarding action of alcohol on the yeast formation is especially prominent in the skim-yeast (Vienna yeast) method. In the air-grown yeast method, it has been attempted to remedy this drawback, viz., the alcohol's retardation of the formation of yeast, by selecting suitably weak solutions, in which the alcohol formed could not materially injure the propagation of yeast. This process, however, has for effect that the alcohol produced will be lost, as it will not be feasible, in practice, to recover the alcohol when diluted beyond a certain limit."
The meaning of this statement is that, in the aerated method of yeast manufacture, such weak solutions are employed that, although yeast growth is not detrimentally affected, such alcohol as is produced will be irrecoverable. But this does not mean that the Sak process promises that, at the end of his process, there will be (1) a maximum production of yeast, and (2) at the same time the production and capture of alcohol in commercial quantities. The statement in the specification means that, instead of "suitably weak" solutions, stronger solutions may be used, so that (1) the alcohol produced will not be negligible but considerable, and (2) if, having regard to the state of the market (col. 5), it is desired that the alcohol produced in the process should be retained, that may be done.
It was also argued that the process promises a yield of yeast "of about 60 per cent or more," together with alcohol in considerable and recoverable quantities if desired. I am quite satisfied, having regard to the whole of the evidence and the authorities, and to the information afforded to me by the expert assessors, that the specification is not to be so construed.
The reference in col. 4 is that "the yeast thus produced, while quite considerable quantities of alcohol are present, appears in quantities corresponding to a yield of about 60 per cent or more." This means that the process, when carried out to its normal conclusion (i.e., in the maximal production of yeast), so that there is no desire to obtain alcohol at the end of the process, will give the percentage mentioned. It is obvious from the scientific facts that, where little or no alcohol is produced, a higher percentage of yeast is obtainable than where a substantial or considerable production of alcohol has to be obtained. Therefore the objector has to maintain that the "about 60 per cent or more" is a reference to the minimum production of yeast. In my opinion it is a reference to the outstanding feature of the invention—that yeast production under the process may reach the previously unheard-of percentage of "about 60 per cent or more" notwithstanding the fact that, in the course of the process, "quite considerable" quantities of alcohol have been produced. Such an assertion was quite revolutionary, having regard to the state of the art. It is unreasonable to suppose that a scientific impossibility was also being suggested.
In the specification, two examples of the process are furnished. Example I. indicates that yeast is added to washing water of a strength of 1.5 to 2.5 degrees Balling, while the stronger mixture at 10 degrees Balling is set aside in a special receptacle so as to be added at later stages to the weaker mixture. After two or three hours' aeration, the more concentrated wort is added "preferably continuously" during intense aeration over a period of ten to eleven hours. The process is described, and it is said there will be produced "quite unusually large quantities of yeast" (col. 5).
I regard example I. as concluding at line 10 of col. 5, because in line 12 the specifier refers to "the above example."
It is asserted that, during a fermentation carried out in accordance with example I., alcohol will be produced in quantities "which may amount to 20 per cent or more of the raw material corresponding to the quantity of wort present in the fermentation vat" (col. 5). He also says that "in fermentations as those here referred to, the alcohol will be present or may be present in a concentration enabling it to be recovered commercially" (col. 5).
In my opinion, this reference to the quantity of alcohol which will or may be produced explains the other references in the specification to "quite considerable quantities of alcohol" and "quite appreciable formation of alcohol." A dispute arises as to what the 20 per cent is intended to refer to, whether it invites a comparison with the original raw material itself or with the dextrose derived from such raw material and so represented in the fermentation vat, or with some other standard of comparison. The question is referred to elsewhere. The further statement that alcohol "will be present or may be present" in a sufficient concentration to permit of commercial recovery, is no more than a repetition of the earlier statement that, if it is desired to capture alcohol, the process may be side-tracked for that purpose, whilst yeast production will also ensue.
In my opinion, the reference to alcohol recovery does not mean that the inventor suggests that at any given time or place, or at any time, such recovery "commercially" will necessarily be economically profitable. All he says is that the concentration of alcohol will be sufficient to permit of recovery for commercial purposes. The concentration he points to is, I think, that already indicated, viz., a concentration which may have amounted "to 20% or more" at some stage of the process.
The outstanding clue to the relation between alcohol and yeast production under the process is to be found in the statement that "the present process thus allows the manufacture to be adjusted according to the varying state of the market for yeast and alcohol" (col. 5). This clearly implies that the process should not be regarded as giving at one and the same time the maximum production both of yeast and alcohol. In the sentence quoted the reverse is plainly indicated. If it is unprofitable to use the process for alcohol recovery, such recovery should not be attempted, notwithstanding the fact that alcohol is being produced in sufficient quantities to allow of recovery in commercial quantities. If, however, in relation to alcohol the yeast market becomes relatively unprofitable, the process can be used so as also to produce both alcohol and yeast, the latter in lesser quantities than otherwise.
Example II. differs from example I. in that the wort into which the yeast is sown is at 1.7 degrees Balling, and the stronger wort which is set aside for future service of the yeast is at 7.1 degrees Balling. It is unnecessary to refer to example II. in detail, but it shows clearly in col. III. of the table that at a comparatively early stage of the process the amount of alcohol contained in the wort amounts to 87 kilogrammes of pure alcohol, and that, as the process goes on, this quantity decreases, until at the end, only 4 kilogrammes are present. Example II. may therefore be regarded as a case within the specification where "considerable" or "appreciable" quantities of alcohol have been produced, but have subsequently disappeared, presumably either by assimilation on the part of the yeast, or utilization in some other way.
There is also a discrepancy in example II. between the table in col. 7 and the reference to three and a half hours in col. 6. This discrepancy is unimportant because it is generally agreed that the text should yield to the table, and, in any event, substantially the same ultimate results are obtained if the text itself is followed.
The Claims.The claims are all summed up or built upon claim 1. Firstly, it claims a process for yeast manufacture "in which in accordance with the so-called differential management of the fermentation, a nutritive substance concentration suitable for the formation of yeast is maintained in the wort or mash during the run of the fermentation, while, by the addition of the necessary quantities of wort or mash of higher concentration, any variations in the concentration of the nutritive liquid due to the general vital activity of the yeast are equalized or compensated" (col. 8).
Particulars 6, 7 and 8—Ambiguity.This part of the claim is said to contain ambiguities. In my opinion, the contention is not made out. The "differential management" is adequately and sufficiently described in several places of the specification, both in general terms and by particular instances. Emphasis is also laid upon the uncertain meaning of the "necessary" quantities of more concentrated wort. But the application of the phrase is not uncertain, because it refers to such quantities of more concentrated wort as will from time to time balance the loss of the nutritive substances owing to the demands of the ever-increasing colony of yeast cells.
Secondly, having described the differential process accurately in claim 1, the specifier then goes on to limit his claim to such a use of the process as will result in the formation of alcohol "in considerable quantities." It is also suggested that this is an ambiguous reference. Having regard to the indications elsewhere given in the specification, the specifier has already, as I have pointed out, indicated what he means by "considerable" formations of alcohol. It is such a quantity as will be sufficiently concentrated to permit of commercial recovery, there being a further indication in the figure "20% or more" as to what precise quantity is regarded as satisfying this description to the maximum extent.
The third part of claim 1 contains a limitation by way of the further description that the alcohol formed to the extent indicated "is either recovered or assimilated by the yeast, but only during the subsequent period of the fermentation." It is also said that this period is not precisely ascertained. In my opinion, it is clear that the claim, read in the light of the specification, indicates definitely that, alcohol having been formed to the extent mentioned, the process is not then terminated but continued for such a time as is indicated for instance in the table of example II., where it is stated that "the run of the fermentation process is seen clearly and distinctly from the following table" (col. 7). The table indicates that, at 10 a.m., the process will have resulted in the production of 87 kilogrammes of pure alcohol. It also indicates that thereafter the process is continued for a period of eleven hours. This is made sufficiently plain elsewhere. Example I., for instance, states that the hot and more concentrated wort is added over a period of ten to eleven hours (cols. 4, 5). The "subsequent period" referred to in claim 1, therefore, means such a period as will enable the alcohol to be "recovered" or "assimilated by the yeast."
Particular 8 of the objections to claim 1 on the ground of ambiguity is therefore not sustained. With ground 8 there may also be considered grounds 6 and 7. Ground 6 is that the specification and claims do not adequately define the extent of the monopoly, and ground 7 that they do not give sufficient information to enable the public to ascertain the scope and ambit of the claims. In my view, the analysis both of the specification and of claim 1 which has been attempted, shows that the monopoly claimed is sufficiently defined so that persons reasonably conversant with the trade and art in 1919 would understand the area which is forbidden.
One difficulty which is said to be contained in claim 1 is the assertion that the alcohol produced, if its recovery is not sought by the manufacturer, will be "assimilated" by the yeast. No specific objection is raised in the particulars that the asserted fact of assimilation of alcohol cannot be proved or known.
On the hearing, some evidence was directed to this question. I deal with the matter elsewhere, but I do not think that any specific finding upon it is actually required. Those to whom the specification was addressed could not fail to know that the process described in claim 1 was not intended to be, nor was it, in any way dependent upon whether the alcohol produced in the process, but not sought to be recovered, was "assimilated" by the yeast, or whether it was, as suggested in the specification, "utilized" by the yeast (col. 3). For all the practical purposes of the trade, it was immaterial whether the alcohol produced and stated to have subsequently disappeared from the vat, was acted upon by a catalytic agent, or was converted by an oxidising enzyme associated with the yeast into some of its simpler oxidation products with a consequent gain of energy to the yeast. In the circumstances, the assertion of the fact of actual assimilation was only of theoretical and of no practical importance in enabling the public concerned to ascertain the territory covered by the claims. "Assimilation" became, for all practical purposes, at once the antithesis of commercial recoverability, and the synonym for commercial irrecoverability, of alcohol.
This question of erroneous statement of theory is referred to in Z Electric Lamp Manufacturing Co. v. Marples Leach & Co.[22] , where it was shown from knowledge gained after the date of the patent that the process of treating carbon filaments with certain phosphorous compounds did not remove all traces of carbon from the filament. But the specification had asserted that the process removed "even the last traces of carbon in the filament."
Fletcher Moulton L.J. said that the specification might justly be criticised from the point of view of abstract accuracy. He said that"[23] ."
This decision is important because the actual claim was:—"In the manufacture of incandescent electric lamp filaments free from carbon, the employment" of the phosphorous compounds to act on the raw filaments. In other words, the erroneous statement as to the complete expulsion of carbon from the filament was carried into the claim itself. In point of fact, the error was not known at the time of the patent, but was only ascertained subsequently. But the judgment holds that, although the error existed or was known to exist, even at the date of the patent, and although the error was carried into the very terms of the claim, this did not vitiate the patent if otherwise valid, so long as from a practical point of view the public concerned were fairly given possession of the invention.
Apart from the question specially referred to above, I see no difficulty in the definition of the monopoly found in the claim. On the contrary, I regard the description in claim 1, before alcohol is mentioned at all, as a very clear description of the differential process. It could hardly be bettered, because it explains what is enough to indicate to the trade the territory which is forbidden, and yet it does so in a sufficiently general way to render difficult the task of the proposing infringer.
In the case of Watson, Laidlaw & Co. Ltd. v. Pott, Cassels and Williamson[24] Lord Shaw said:—"A patentee must not use language so vague as to enable him to secure a monopoly for more than his real invention, and so to invade the rights of free rivals. But, on the other hand, it is permissible to state the real invention in language of such generality as is essential to preserve it and to prevent those rivals from invading the rights of the patentee. In the present case, I think that the specification and claim complied with these principles and that the vagueness is not deceptive vagueness ... but is only that generality which would secure (to the inventor) the substance of his idea. In the case of Simpson v. Holliday[25] [26] ."
The reference to alcohol in claim 1 is, of course, a narrowing of the territory of the monopoly, and the question then becomes—reading claim 1 as a whole—whether the internal boundary brought into existence by the alcohol feature of the process is itself sufficiently defined. In my opinion, it is defined in such a way that a person in the trade—again I speak of 1919—would have it conveyed to him without obscurity that the process did not seek to avoid, but welcomed, the production of alcohol in recoverable quantities, so as to enable the manufacturer to adapt the process, in order to (1) produce yeast only in maximum quantities and no alcohol, or (2) produce yeast in substantial quantities and also commercially recoverable quantities of alcohol. I, therefore, reject particulars of objections Nos. 6, 7 and 8.
Particular 5—Insufficiency.It is convenient now to turn to particular 5, which is directed to insufficiency of description and method of performance. Before considering the objections in order, I should refer to several of the leading cases.
As was pointed out by Jessel M.R. in Otto v. Linford[27] , omissions in the description which would be obvious to the "skilled mechanic" in carrying out an invention, and which he would be able to deal with without the exercise of invention itself, do not invalidate a patent. He said:—"[28] ."
In Goddard v. Lyon[29] the Lord Chanceller, Lord Herschell, said:"Although it may have been a matter of experiment as to how high it was desirable to go with regard to the pressure, yet from the outset, as I read the evidence, those who made use of this apparatus understood it to be an apparatus for the use of steam at a considerable pressure, and so employed it, and, according to the evidence, very advantageously employed it."
In British Thomson-Houston Co. Ltd. v. Corona Lamp Works Ltd.[30] , where the claim was for "an incandescent electric lamp having a filament of tungsten or other refractory metal of large diameter or cross-section, etc.," the argument was that, as "large" was a relative term, its inclusion both in the description and in the claim vitiated the patent. Lord Haldane said:—"I do not think that in the specification before us it was intended to define, or that it is possible or necessary to define, the expression "large" [31] ."
He added:—"[32] ."
Lord Haldane further stated:—"This is, in my opinion, no mere abstract principle, but a method or process of manufacture, capable of being at once put into operation by any experienced electric lamp-maker, with such adaptations as his commercial requirements and standards suggest. To put it into operation requires no new inventive capacity, and it would have been inconsistent with the generality and sweep of the explanation given to have inserted a definition of the word "large," [33] ."
In my opinion, this decision is more analogous to the present case than is that of Vidal Dyes Syndicate Ltd. v. Levinstein Ltd.[34] , where Fletcher Moulton L.J. emphasized the truism that the patentee's duty was to describe the nature of the invention so as to ensure that the monopoly extended no further than the invention made, and also to describe the method of performing the invention, so as to ensure that when the grant expires, the public may "be put in full possession of the way to carry out the invention" [35] .
The particular objection of Lord Moulton was that, merely to say that an invention consisted in causing sulphur to react on diamido napthols described nothing at all, because, before the date of the patent, no knowledge existed of any such reaction, so that the description necessarily covered every possible kind of reaction, however produced, and was too vague. The same absence of common knowledge showed that the method of performing the alleged invention was nowhere indicated, there being a total absence of directions in the specification as to diamido napthols.
Such a case, though based on the same principle which is here to be applied, is not so analogous as In re Jameson's Patent[36] , where the patentee stated, in reference to process of dehydrating peat by electricity, that in case of a stoppage in the circulation of the peat, it ceased to conduct electricity, and so cut off the current as soon as there was decomposition of the hydro-cellulose. In point of fact, the resistance was only increased. Phillimore L.J. said:—"As an absolute statement, this is incorrect, but it is not for any material purpose incorrect" [37] . Cozens-Hardy M.R. pointed out that the main idea of the patentee was to decompose the hydro-cellulose in peat by means of what was called an electro-osmotic process, which accelerates the decomposition. In the course of the specification, it was said: "The voltage may vary within wide limits, but a voltage of about 200 has been found to be, on the whole, the most economical."
Cozens-Hardy M.R. said:—"[38] ."
Phillimore L.J. said:—"[39] ."
And Cozens-Hardy M.R. stated that"[40] ."
Bearing in mind the principles, I turn to the objections in their order: 1. —The specification states that "even quite considerable quantities of alcohol may be present during fermentation" (col. 3). It is objected that no instructions are given as to how much may be present and in what stages, without detriment to the process. Now I have elsewhere stated my opinion that the specifier does sufficiently indicate what he regards as "considerable" quantities of alcohol. He also makes it clear that the presence of alcohol in such quantities is not detrimental to the process, but that even where yeast alone is being aimed at, and no attempt is being made to capture the alcohol produced, yeast production is not hindered, but rather helped by the presence of alcohol (See col. 4). In my view (and this finding is bound up with the evidence I accept as to the prior act) sufficient instructions are given as to the quantities of alcohol which may, and should be, expected from a carrying out of the process. 2. —The specification also states that the process "should" be carried out "in such manner that such quantities of alcohol are formed and are present during the fermentation, but also so that the alcohol is not utilised by the yeast until during the further run of the fermentation, the alcohol being utilised or assimilated" (col. 3). The contention is that this direction gives no instructions as to what quantities of alcohol should be formed, nor by what means the proper quantities and no more should be formed,"nor what are the proper quantities to be formed during the various stages of the fermentation, nor how such proper quantities may be formed or an excess or insufficiency avoided, nor as to the means whereby alcohol is not utilised by the yeast until during the further run of the fermentation, nor as to the means whereby the alcohol is utilised or assimilated during the further run of the fermentation, nor as to what stage of the fermentation it is intended by the expression "the further run of the fermentation." "
This objection should also be overruled. As I have already pointed out, the quantity of alcohol mentioned in the phrase "which may amount to 20% or more of the raw material" (col. 5) indicates that somewhere around this figure will be the maximum quantity of alcohol which can conveniently be produced. If so, the quantity is sufficiently indicated. The suggested lack of instructions as to the quantity formed during the various stages of the fermentations is, I think, a refinement of criticism. The yeast-maker wants to know how much alcohol will be made available to him at the end of the process if he decides to recover alcohol as well as yeast. He has provided for him, in example II., and the table thereto annexed, a very elaborate indication of what will happen if alcohol is not required and yeast only is required. Except for checking purposes, details are not required of yeast and alcohol production at each point in the process.
The argument that the maker is not informed as to how to prevent the alcohol from being utilized until during the further run of the fermentation, depends upon a special objection dealt with below—that there is no instruction how the amount of alcohol at the end of the process may be varied, as stated elsewhere in the specification. Further, the yeastmaker is not required to know the precise chemical changes involved, either in utilization or assimilation, for he has already been told, that whatever they involve, those changes will occur if the process is carried out along the lines of example II. Finally, the expression "the further run of the fermentation" refers to the period of ten or eleven hours between the first addition of the more concentrated wort and the end of the process.
3. —It is next argued that no instructions are given as to how "an easily obtainable approximate compensation or equalization" is obtained. Again, I think that instructions are given both as to the general principle and the standard or normal method of the process. That method is the maintenance of concentration of nutrient substance in the fermenting wort. There are many ways in which this method may be employed. Varying factory conditions have to be taken into account, and non-inventive experimentation will, no doubt, be found desirable. Examples I. and II. show in detail two methods of carrying out the process. In my opinion, there is no ground for holding that no instructions are given by the specifier as to how his principle or method is carried into effect. 4. —Selecting the passage in the specification in which it is stated that the concentrations are adjusted in such a way as to (a) favour the production of yeast, and also (b) produce quite appreciable quantities of alcohol, the latter disappearing slowly during the process, or remaining throughout it in whole or in part—counsel argues that there is no instruction as to what concentration during the fermentation is favourable to yeast production.This argument misunderstands the main purpose of the invention, which is to maintain concentration throughout the process, so as to balance the consumption of nutrient substance against the growing needs and activities of the yeast colony. This may obviously be done in a very large number of ways, two of which are particularized. No doubt experience may be desirable or necessary in the circumstances of the particular factory or plant. But the general direction is that, though the degree of concentration may vary within certain limits, some concentration should be maintained. The complaint that no instruction is given as to how the process is to be adjusted, first of all, to produce alcohol, secondly, to cause it to be retained or to disappear as desired, is dealt with below.
5. —With reference to the statement in the specification that the process acts as a "kind of regulator for a formation and conversion of alcohol going on co-ordinarily with the attainment of high yields of the best yeast," it is contended that no indication is given how to obtain such regulator effect. This objection is answered by pointing out that the specification claims that high yields of yeast may be obtained in the aeration method without fixing so low a concentration as to reduce alcohol production to a bare minimum. The phrase criticized then (1) describes how under this new method alcohol will be formed in substantial quantities, and (2) says that it may be (a) retained for use, or (b) converted and utilized in the process of yeast production only. 6. —It is said of example I. that the temperature of the "hot" concentrated wort which is set aside in a reservoir is not given. This is an unjustified criticism. The temperature of the wort, when put in the reservoir, is stated as from 70 to 75 degrees centigrade, or as up to the sterilization temperature of about 70 degrees centigrade. No difficulty in the direction would be found in practice by a person conversant with the trade. 7. —It is objected that no instruction is given in relation to the comment upon example I., that the alcohol will, or may, be present in a concentration which permits of commercial recovery, as to how the process is to be controlled. This point is also dealt with in the next objection. 8. —It is objected that the instruction "By a slight variation of the temperature, the aeration, or the manner in which the wort is added, the amount of alcohol present at the end of the process may be varied" (col. 5) is not sufficiently definite as to any of the variants referred to.In my opinion, the evidence established that at the time of the grant, the general effect of the three variations was known to yeast producers in Australia. Within certain known limits, the quantity of alcohol is increased by adding concentrated wort, if the process is started on a relatively low Balling. Within certain known limits, an increase in aeration will stimulate yeast production but retard alcohol production, whereas a decrease in aeration will produce the reverse effect. The effect of variations in temperature was also known to those expert in the art. The interrelation of these variants is discussed in authorities such as Kiby, Delbruck and Hayduck, and Allen. Professor Young was cross-examined about these factors. He certainly stated that the paragraph mentioned above does not, in itself, give instructions. The paragraph, indeed, makes a call upon the knowledge and practical skill of persons versed in the trade. Mr. Bonney, in a very careful cross-examination, was successful in inducing Professor Young to say that the precise result of the three factors mentioned—factors which are necessarily interrelated—"would be a matter for experiment." The witness also pointed out that in example I., as distinct from example II., a much higher percentage of alcohol was obtained, so that a guide as to the initial stages of the process dealing with the relative concentration of the weaker and stronger wort is obtainable from the figures given in these examples. In the main, however, Professor Young stated, with reference to this much criticized paragraph, "that is a matter I could only answer by experiment."
Mr. Walter, who was employed as chemist in one of the two Australian factories engaged in 1919 in yeast manufacture, was quite aware of the importance of aeration and temperature upon the activity of the yeast cell. It may, of course, be conceded that the trade was not acquainted with the precise effect obtainable by adding the more concentrated to the weaker wort (i.e., enormously increasing the yield of yeast). This fact, of course, is a feature of the patentee's case on subject matter. But the specification indicates quite clearly that alcohol production is affected by the three elements mentioned. The statement is quite correct, and all that can be said by way of criticism is that the specification affords no absolute or precise measure of the interrelation of the three variable factors upon alcohol production. It was, as Professor Young said, a matter of experiment in any given case to ascertain in the light of factory requirements what precise results would be obtained. But this only brings the case within the principles of the authorities already quoted. Whatever "experiment" was required demanded no further inventive faculty, but only practical factory tests, and the careful recording of results for the purpose of repetition and variation as desired. I am satisfied that the effect upon alcohol production of the three factors, in the state of knowledge existing in 1919, as added to by the specification itself, was sufficiently known to the yeast producer to enable him to carry through to a successful conclusion any experiments found necessary.
9. —It is objected that no instructions are given as to when it is advantageous, as the patentee suggests, to "sow a very liberal quantity of mother yeast or seed yeast." This criticism is also unjustified. The statement indicates that the high quantity of seed yeast may be sown "frequently." Within the principles he lays down the patentee is not required to exclude factory research and experiment. 10. —It is complained that no instruction is given as to how the directions in example II. should be varied if it is desired to obtain a commercial quantity of alcohol. This objection rather misunderstands example II. The table to the example indicates that the capture of alcohol is not an object being pursued in such example. The reason is not far to seek, because the concentrated wort is at 7.1 degrees Balling, and the first wort to which it is applied is on 1.7 degrees Balling. In example I., on the other hand, the concentrated wort is assumed to be at 10 degrees Balling, although its "concentration may vary between wide limits." Example II. is, therefore, an illustration of the normal application of the process when attention is directed to yeast production and yeast production alone. None the less, as appears from the table in example II., a substantial quantity of alcohol has been produced at a certain stage of the process. At one stage, after 409 kilograms of dextrose has been added, 87 kilograms of pure alcohol has been obtained. The percentage by weight of the raw materials at that stage was 14.9 per cent, and if it was decided even then to deflect the process in such a way as to capture as much alcohol as possible, by adjustment of temperature and aeration, commercially recoverable quantities of alcohol would have been available at the expense of reducing the yield of yeast. 11. —It is also complained that no instructions are given as to how to apply the invention to the skim yeast method. This is true in the sense that no specific instructions are given, but the patentee claims that the principle of his process is applicable to Vienna yeast. It must be remembered that in Australia at the relevant time, 1919, the method had gone out of use in commercial production. In the circumstances, he was entitled to claim that the principle of the differential process was also applicable to the Vienna method, and that, if necessary, by factory trial and experiment, the quantity of alcohol produced could be varied by adjusting the three factors already mentioned.I conclude that ground 5 of the particulars, which alleges insufficiency in various ways, has not been made out.
Documentary Anticipation.1. —Lake: Lake's specification is relied upon as a sufficient paper anticipation of Sak. Lake related, however, to the manufacture of yeast "without the ordinary alcoholic fermentation." In the course of his specification, Lake stated that the growth of the yeast would be completed within from six to eight hours after a sufficient addition of dextrose maltose, or other material "according to the density of the propagating liquid used, the temperature of the latter, and the amount of ozone in the air." He then says that, when the entire amount of the dextrose or other sugar has been consumed after from six to eight hours, a further quantity thereof, say from one-twentieth to one-tenth per cent is added. And he adds:—"The peptones may also, after having been consumed, be added in portions, or may be allowed to flow in gradually and continuously. The same propagating liquid made by successive replacements of the matter consumed remains in use for weeks or months, unless it is rendered impure." It should be mentioned that one of the improvements insisted on by Lake is the employment of vegetable peptones, with the addition of slight quantities of hydro-carbon (carbo-hydrates) for the purpose of yeast production. He stated that his improvement also consists "in adding successively peptones and sugar to the comparatively stable nutritious solution used for growing the yeast, and successively withdrawing the finished yeast produced in the same."
The peptones constitute the nitrogenous nutriment for the yeast, so that Lake has limited his proposal to making additions of nitrogen compounds and has not expressly mentioned the hydro-carbons at all. Even in relation to nitrogen, he does not suggest the maintenance of uniform concentration. Regarded as a whole, in comparison to Sak as a whole, Lake is very far distant indeed. According to Mr. Walter, the normal operation of the Lake process, insisting as it does on absence of alcohol, would take a very considerable time, possibly a week. The evidence of all the witnesses makes it clear that Lake does not lead directly to the subject patent.
As was said by Judge Soper in Standard Brands (Inc.) v. Federal Yeast Corporation[41] in reference to Rayner's patent (which corresponds to Lake's), "it does not appear that the ratio between the materials remains constant throughout the propagation of the yeast. Nor does Rayner show that there is any particular virtue in the continuous addition of the nutritive material, as consumed, rather than the replacement of it at intervals, when consumed." And, further, "it does not seem possible to conclude either from the first or the second example, or from both together, that the patentee had discovered that either a continuous addition of materials or a relative constancy of concentration was particularly desirable. The main admonition of the patent was that the operator should not at any time add so much sugar that the alcohol produced could not be consumed by the yeast."
2. —Thompson: Thompson's specification was directed to the manufacture of pure yeast produced from dried lees of wine so as to produce non-poisonous alcohol, and avoid the production of such deleterious substances as furfurol. He states that when the microscope indicates that a pure and wholesome elliptic ferment has been obtained, there is added to the mother solution "in fermentation and in small quantities at intervals, wort" which has been suitably prepared. He also says that the addition of wort "must be effected rationally so as not to allow it to slacken."Thompson's document is very far removed from Sak's. The quantities to be added, the intervals which are to elapse, the relation of the quantities to the concentration of the liquid in the fermenting vat, the principle of uniformity—none of these things are mentioned or even hinted at. In truth, Thompson was not concerned with the differential management of the fermentation at all. It is clearly not an anticipation.
3. —Vignier: This is the third paper anticipation relied upon. It related to a new system of fermentation of wines, wash or beer, and the making of yeast for the distillers in such a way that the must or wort was supplied "in fractional divisions to the fermenting vat or vessel." He also specified apparatus for supplying the wort in fractional divisions which were allowed automatically to pass at recurring periods from the must charger or reservoir to the fermenting vessel. He said that "this fractional division of the must is intended to gradually feed the yeast, which rapidly converts every discharge of said must to alcohol; hence the saving of time in obtaining a wine at the higher alcoholic strength with an appropriate yeast."This specification does not suggest, much less require, the Sak process. As has been said of it in relation to a patent indistinguishable from that of Sak, "the patent involves a certain regulation of food supply, and it may be assumed that a similar procedure might be applied in the manufacture of yeast. But the only dilution of the initial wort is that caused by the conversion of the material into alcohol; the process is discontinuous, and there is no attempt at constancy of concentration" [42] .
I, therefore, reject each of the three paper anticipations upon which the petitioner based this part of his case.
Subject Matter, etc.There is not the slightest doubt that in the relevant territory—the Commonwealth of Australia—a very great step in advance of previous knowledge was taken by the differential process as embodied in Sak's invention. Before the Sak process, the characteristic of the curve showing the relation between the concentration of nutrient substance and the lapse of time under the aerated method process, was the steady fall of the former—the Balling decreasing throughout the process. In relation to the aeration process, in particular, it was believed that yeast growth would be very detrimentally affected unless the method in common use was adhered to. It was Sak who appreciated for the first time the significance of maintaining uniform or approximately uniform concentration of the nutrient substance required for the propagation of the yeast. His invention possessed both novelty and very great utility. The witness upon whom the petitioner chiefly relied, Mr. Walter, admitted that the percentage of yeast yield obtained from the application of the Sak process was 75 per cent as opposed to something in the neighbourhood of 20 per cent under the previously existing Australian method of manufacture. He stated that this result was "almost unbelievable." Even outside Australia the percentage yield of yeast prior to the introduction of the differential process did not exceed about 30 per cent.
It is, of course, true that the principle involved in the Sak process appears both simple and logical, now that everybody in the trade knows of it. By comparison, however, with previous knowledge and practice, it is impossible to over-estimate the importance of the discovery. His process swept aside all previous notions upon the subject, invoked an entirely new principle, and proceeded to embody it in a new method of manufacture. Not only did he not seek to avoid alcohol production, but, within limits, elsewhere referred to and discussed, his process encouraged such a production of alcohol as enabled the yeast-maker, if and when the exigencies of the market demanded it, to sacrifice a very high yield of yeast production, and get in place thereof a substantial yield of yeast, together with the capture of alcohol in commercial quantities. It is plain that particulars of objections 3 and 4, and particular 2, so far as it has not been dealt with under the heading, "Anticipation," should be overruled.
General Observations.There are some additional observations which I wish to make. In order to deal with the technical aspect of many of the questions, the parties have provided me with two very skilled assessors, and much of what I have said and am about to say is based upon their expert knowledge of scientific processes, and their opinion and explanation of the results of the experiments actually carried out during the course of the case.
1. —The promise of the patentee that a yield of yeast of about 60 per cent or more is obtained from Sak's differential process, is clearly established; all the experiments justify this promise. 2. —It has to be remembered that the manufacture of yeast was and is a special kind of industry. Those engaged in its practice were persons from whom there must be expected such technical knowledge as would be possessed by properly trained brewing chemists. Indeed, this was pointed out in one of its aspects by the patentee himself, when he stated his expectation that his process would involve higher supervision costs (col. 4). Therefore the art to be considered in applying legal principles to this case is specialized and technical in character. I am of opinion that the effect on alcohol production of alterations in temperature, in aeration and in strengthening or weakening the brews, was known to those reasonably skilled in the art in 1919. I am not satisfied, however, that Mr. Walter should necessarily be regarded as typical of those then properly skilled in the art; at that time his training and experience were not such as might fairly be expected of a skilled brewing chemist in charge of such a complicated process. 3. —In his evidence, Mr. Walter laid very great emphasis upon the significance of pH as applied to the control of the Sak fermentation process. Now pH is merely a method of expressing in a scientific or technical manner effective acidity or hydrogen-ion concentration. It is quite true that since 1919 there has been an extension of the use of pH measuring instruments, which for many purposes are far more significant than "titratable acidity." pH measurement involves a greater possibility of refinement in control. Yet it is quite absurd to attribute the great increase in yeast yield from the successful application of Sak's process merely to the pH measuring instruments and the maintenance of pH in the fermenting vat. The specification itself requires additions of ammonia and ammonium sulphate, but it shocked Walter that any person should even think of putting ammonia, a powerful base, into the fermenting yeast. It "seemed like murder" to him, because acidity would be immediately destroyed or corrected. He could not reconcile himself to its insertion in a brew containing "live" organisms; it was too "drastic." Although the addition of ammonia water was specified, Walter decided that he "would put himself above the inventor and drop the process altogether." 4. —In my opinion, a properly trained brewing chemist would, in 1919, understand the necessity for the additions of ammonia water and ammonium sulphate. They serve two purposes, both of which were well known before 1919. These purposes were, first, the addition of the nutritive salts, and, second, the control or balancing of the acidity (or pH of the wort). My view about Walter's then qualifications is supported by his attitude upon another matter. When he first attempted to perform the Sak process, the result was to give slime. This was undoubtedly due to some infection, owing to his not following the specification direction as to temperatures; and in evidence he did not seriously dispute that this was the reason. Before the visit from a Danish expert, ordinary precautions against infection seem to have been neglected by him. 5. —In 1919 it was also well known to all concerned that the recoverable yield of alcohol from a fermentation process—speaking generally—decreased as the yield of yeast increased. Speaking generally, also, the converse proposition applied. This is illustrated sufficiently by the experimental evidence submitted in this case, and the technical authorities make the matter abundantly clear. 6. —The main point upon which Mr. Bonney finally attacked the patent was in relation to the assertion by the specifier as to the possible yield of alcohol. Now there are five possible ways of expressing the yield of alcohol: (a) The alcoholic content of the wort expressed in kilograms; (b) the alcoholic content of the wort expressed in percentage by weight in the brew; (c) the percentage yield based on the equivalent amount of alcohol to sugar (dextrose) compared with the total sugar added up to any given point of the fermentation process; (d) the percentage yield based on the total soluble materials in the wort which has been obtained from the mashing process; and (e) the percentage yield calculated on the total weight of raw materials used to make the equivalent amount of wort in the fermenting vat, as at any stage of the process. Example II. given in the patent itself (col. 7) uses the first three ways of expressing alcohol yield. This practice was followed by Mauri Bros. & Thomson, Ltd., and by the assessors in reporting the results of their experiments for the purpose of comparison. On this basis of calculation six of the ten experiments referred to in evidence give over 20 per cent yield of sugar converted to alcohol at the end of the fermentation. But Sak's example (example II.) where the object is to obtain yeast only, gives only 0.6 per cent of alcohol at the end of the fermentation. All of the experiments give 20 per cent or over, as at some stage of the fermentation, even when calculated according to the fourth method (d) above, that is, on the soluble raw material corresponding to the quantity of wort present in the fermenter at any given time. 7. —But it is stated in col. 5 that during a fermentation as in example I., alcohol will be produced in quantities which may amount to 20 per cent or more of the raw material corresponding to the quantity of wort present in the fermentation vat. Now I am prepared to accept Mr. Bonney's argument that this percentage indicates the method of expression according to (e) above. On this basis example I., experiment 3 of Foster, gave an alcohol yield of 18.9 per cent of raw material at the end of 6 hours fermentation, and 17.2 per cent of the raw materials at the end of the process. In the latter case, there were 234 kilograms of alcohol at 2.15 per cent of concentration. It is clear that such a concentration (i.e., 2.15 per cent) could have been increased by adjustment of temperature aeration, and/or strength of wort. The result of a very slight increase would have been to obtain a yield exceeding 20 per cent even at the end of the fermentation. Capable brewers could easily have made the necessary alterations in the light of prior knowledge, plus the additional information furnished by the specification itself. A few practical experiments might have been necessary so as to assure results in actual production; but nothing more of inventive skill was required than Sak had furnished. For instance, Walter, in one experimental brew, obtained 27 per cent of alcohol when determining the most economical method of producing alcohol without yeast or with as little yeast as possible. 8. —It is quite plain, and I find, that alcohol may be recovered commercially, when it is present in a concentration exceeding 2 per cent. In experiments I. and III. of Foster (example I.) this percentage is exceeded. The promise of the specifier that alcohol will be present, or may be present, in a concentration enabling it to be recovered commercially, is clearly substantiated. The net result of the experiments of the assessors is to confirm the authenticity and general accuracy of those conducted by Mr. Foster. I am also satisfied that the statement in the specification that during a fermentation, as carried out in example I., alcohol will be produced in quantities which may amount to 20 per cent or more of the raw material, is also substantially correct. 9. —I reject the suggestion that, upon a fair reading of the specification, the patentee promises a yield of 60 per cent of yeast and 20 per cent of alcohol from the same fermentation. If the patentee had stated that such would be the result of his process, a declaration of invalidity would have to be made. But I am clearly of opinion that no reasonably well equipped person in the trade to which the specification was addressed, could have read the specification as promising such an impossible result. Those skilled in the trade would have read the specification as promising 60 per cent yield of yeast when yeast alone was being sought, and as understanding the reference to 20 per cent production of alcohol as being limited to the case where, in the market situation, the need for such a high yeast yield no longer existed. Even in the latter case, a good yield of yeast is obtained—as the experiments show—when comparison is made with the previous existing capacity of yeast production in the Commonwealth. For instance, Walter knew that the degree of aeration could be controlled so as to decrease yeast (and increase alcohol) or increase yeast (and decrease alcohol). He knew, broadly speaking, that high yields of yeast could not be obtained concurrently with the 20 per cent production of alcohol. Walter's evidence was:—"Mr. Flannery: Your view, I take it, that you expressed to Mr. Bonney, was that in a brew of this description, the description which is indicated in example II., no alcohol would be produced? Correct.
At any stage? At any stage.
And that no alcohol is utilized ever in the production of the yeast? It is an indication of inefficiency if it is formed.
If it is formed, it is an indication of inefficiency? Yes.
You mean if after formation it is left there? If it is formed at all.
You must get it, must you not? No, not alcohol.
Mr. Flannery: He says that is so. That was the view that was at the bottom of certain of the processes—avoiding the production of alcohol and how to better the production of yeast? Yes.
That idea was there? Naturally.
That was the idea that was prevalent—I put this before this morning—before 1919? Yes.
And it was the foundation of that practice which said, start with a very dilute solution and keep to it as far as you can; is that right? That is right.
"Walter said that he understood Sak was boasting of a result at once impossible and inefficient. But I am of opinion that Sak's promise was not as Walter suggests.
10. —The tendency of some of the witnesses to reject the possibility of the "assimilation" of alcohol by the yeast is not easy to understand. It is quite true that the yeast would select the more easily assimilated sugars from the available raw materials, and that this selection would continue until towards the end of the fermentation. At that stage, however, a very large quantity of yeast was deprived of most of its "natural" foodstuff, i.e., sugars. Clearly the possibility of some alteration of the metabolic process of the yeast so as to enable it to make some use of the only substance left—alcohol—could be—and was—envisaged, even before 1919. There is very definite evidence, in the experiments where a high yield of yeast is obtained, that there is a marked decrease in the percentage concentration of alcohol towards the end of the fermentation. This fact must have been observed by Sak at the date of the patent (Table to example II.). The knowledge of the life process of yeast was, as it still is, far from complete. Sak's explanation of the observed disappearance of alcohol as having been caused by assimilation or utilization, was as reasonable as might be expected at the time. Even if the explanation of the facts was not accepted, the facts themselves could not be misunderstood by those competent in the art. In 1908 Trillat and Sauton had shown that bakers' yeast would convert part of a dilute alcohol into acetaldehyde. When bakers' compressed yeast was vigorously stirred with dilute alcohol (with aeration) there was obtained a conversion to acetaldehyde. The action involved is a vital one. Further acetaldehyde disappeared fairly rapidly when added to yeast in dilute alcohol. Since the year 1919 a number of investigators have confirmed the fact that yeast can in some way convert alcohol into other substances, such as acetic acid and carbon dioxide. It is unnecessary to elaborate this part of the case, but I am by no means satisfied with the somewhat lazy inclination to discard the possibility of assimilation of alcohol by yeast. Unfortunately nothing is so painful—even to some scientists—as a new idea. In the American decisions to which reference was made, there were claims involving the same hypothesis of assimilation of alcohol. It is worthy of note that, although their validity was tested in every possible way, the assertion or implication of assimilation was either accepted as true, or ignored as a mere theoretical error involving no possible misdirection to those skilled in the art. 11. —The only particular of objection specifically directed to the claim of false suggestion is particular 9. The complaint is the statement that the amount of alcohol at the end of the process may be controlled and varied. I am of opinion that the statement is not false, but true. In my opinion, within the ambit covered by Sak's differential process, the known variables of temperature, aeration, and strength of concentration invited experimental adjustment of these variables to meet factory needs and market demands.I cannot part with this case without acknowledging my indebtedness first to Dr. R. K. Murphy and Dr. V. M. Trikojus, whose assistance on the technical aspect of the case has considerably lightened my labour; and, second, without any disparagement of others, to Mr. Bonney, who, acting almost as amicus curiae, has placed at my disposal his expert and specialized knowledge of what its devotees now describe as patent "jurisprudence."
I dismiss the petition with costs.
Appeal dismissed with costs.
Solicitors for the appellant, Allen, Allen & Hemsley.
Solicitors for the respondents, W. A. Windeyer, Fawl & Windeyer.
2. (1910) 27 R.P.C., at p. 746.
5. (1911) 28 R.P.C., at p. 580.
7. (1882) 46 L.T., at pp. 40, 41.
8. (1894) 11 R.P.C. 354, at p. 361.
10. (1922) 39 R.P.C., at pp. 69, 70.
11. (1922) 39 R.P.C., at p. 70.
12. (1922) 39 R.P.C., at p. 71.
14. (1912) 29 R.P.C., at p. 266.
16. (1915) 32 R.P.C., at p. 390.
17. (1915) 32 R.P.C., at p. 387.
18. (1915) 32 R.P.C., at p. 391.
19. (1915) 32 R.P.C., at p. 388.
20. (1930) 38 Federal Reporter (2nd S.) 314, at p. 334.
21. (1930) 38 Federal Reporter (2nd S.), at p. 336.
23. (1910) 27 R.P.C., at p. 746.
26. (1911) 28 R.P.C., at p. 580.
28. (1882) 46 L.T., at pp. 40, 41.
29. (1894) 11 R.P.C. 354, at p. 361.
31. (1922) 39 R.P.C., at pp. 69, 70.
32. (1922) 39 R.P.C., at p. 70.
33. (1922) 39 R.P.C., at p. 71.
35. (1912) 29 R.P.C., at p. 266.
37. (1915) 32 R.P.C., at p. 390.
38. (1915) 32 R.P.C., at p. 387.
39. (1915) 32 R.P.C., at p. 391.
40. (1915) 32 R.P.C., at p. 388.
41. (1930) 38 Federal Reporter (2nd S.) 314, at p. 334.
42. (1930) 38 Federal Reporter (2nd S.), at p. 336.
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