Berlin Mills Co. v. Procter & Gamble Co.
254 U.S. 156 (1920)

Annotate this Case

U.S. Supreme Court

Berlin Mills Co. v. Procter & Gamble Co., 254 U.S. 156 (1920)

Berlin Mills Co. v. Procter & Gamble Company

No. 93

Argued November 15, 1920

Decided December 6, 1920

254 U.S. 156

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Patent No. 1,135,351, issued April 13, 1915, to Procter & Gamble Company, as assignee of John J. Burchenal, is void for lack of invention as to Claims 1 and 2, claiming, respectively, a homogeneous lard-like food product consisting of incompletely hydrogenized vegetable oil, and a like product consisting of incompletely hydrogenized cottonseed oil. Pp. 254 U. S. 161, 254 U. S. 164.

The process of changing vegetable oil into a homogeneous, semi-solid, edible substance by acting upon it with hydrogen in the presence of nickel, was known and open to general use, and its application to the manufacture of the food products here in question was such a step as would occur to persons skilled in the art without the exercise of invention. P. 254 U. S. 165.

256 F. 23 reversed.

The case is stated in the opinion.

MR. JUSTICE DAY delivered the opinion of the Court.

This suit was brought by the Procter & Gamble Company against the Berlin Mills Company for the infringement

Page 254 U. S. 157

of the patent of John J. Burchenal for a food product, issued on April 13, 1915, No. 1,135,351, to the Procter & Gamble Company, assignee. The district court held the patent void for lack of invention, and also that the claims in suit were not infringed. The circuit court of appeals, one judge dissenting, held the patent valid and infringed. 256 F. 23.

The patent in controversy relates to a lard-like food product, consisting of a vegetable oil partially hydrogenized to a homogeneous, whitish, yellowish product. The record discloses that the making of lard substitutes has been accomplished by mixing melted fat with vegetable oils.

These oils contain glycerids -- olein, linolin, and stearin. The hydrogenation, or hardening process, has the effect to increase the proportion of the solid glycerids of high saturation. Stearin is called a saturated glycerid for the reason "that there are present in the molecule as many hydrogen atoms as possibly can be joined to the carbon atoms." Linolin and olein are called unsaturated glycerids, and can be converted by the addition of hydrogen into hardened glycerids.

The patentee, in the specifications of his patent, states the object of his alleged invention, and what he intended to accomplish, as follows:

"The special object of the invention is to provide a new food product for a shortening in cooking, in which the liability to become rancid is minimized, and in which the components of such vegetable oils which are inferior and detrimental to use as such a food product have been to a large extent converted into a higher and more wholesome form. All such vegetable oils contain glycerids of unsaturated fatty acids, and among these notable quantities of fatty glycerids of lower saturation than olein. It is the presence of these glycerids of lower saturation that seriously affects the rancidity of the material. Oxidation is

Page 254 U. S. 158

largely the cause of rancidity, which oxidation weakens the fat at the point of absorption at the double bonds, and these glycerids of lesser saturation readily absorb oxygen from the air at ordinary temperatures, while the more highly saturated glycerids, as olein, only absorb oxygen at elevated temperatures. It is evident, therefore, that oils or fats containing notable quantities of glycerids of linolic acid, or of lesser saturation, are distinctly inferior as an edible product to those containing a minimum of these glycerids with a larger percent of olein. On the other hand, while it is important to get rid of the readily oxidizable glycerids of lower saturation, it is also important not to supply too large a percent of fully saturated glycerids. . . . Oil, liquid at the ordinary temperatures, does not make the best shortening, because the oil remains liquid, keeping the food in a soggy condition, and the oil will even settle to the under part of the cooked product and soil the cloth, paper, or whatever it may come in contact with. Moreover, fats of a melting point above the temperature of the human body, 98

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