The claims of letters patent No. 274,264, granted to Theodore H.
Butler, George w. Earhart, and William M. Crawford, March 20, 1883,
for an
Page 137 U. S. 22
"improvement in pretzel cutters," are invalid because, in view
of the state of the art, it required no invention to make a single
die to cut dough on a flat surface into any particular shape
desired, whether the shape of a pretzel or any other shape.
All that it was necessary to do was to take the pretzel as a
pattern and make a die to correspond in shape with it, the pretzel
presenting all the lines and creases, points and configurations,
that were required in the die.
Reasons stated why the unsuccessful results of prior attempts to
make a machine to cut pretzels do not show the existence of
invention in the claims of the patent.
In equity to recover for the infringement of letters patent.
Decree dismissing the bill. Complainants appealed. The case is
stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit in equity, brought in the Circuit Court of the
United States for the Northern District of Illinois, March 28,
1883, by Theodore H. Butler, George W. Earhart, and William M.
Crawford, against George Steckel and Frederick Steckel, to recover
for the infringement of letters patent No. 274,264, granted to the
plaintiffs March 20, 1883, on an application filed July 6, 1882,
for an "improvement in pretzel cutters." The specification, claims,
and drawings of the patent are as follows:
"This invention relates to an improvement in moulds or dies for
stamping or cutting out pretzels, having for its object more
especially to cause the product or pretzel to have the appearance
of a hand-made pretzel, and it consists in the peculiar
construction of the mould or die to effect this result, and other
details of construction, substantially as hereinafter more fully
set forth."
"In the accompanying drawings, figure 1 is a plan view of our
improved pretzel die or mould. Fig. 2 is a side view, partly
Page 137 U. S. 23
broken away, thereof. Fig. 3 is an enlarged detailed plan view
of the die proper. Figs. 4 and 5 are sectional views, taken
respectively on the lines
x x and
y y of Fig. 3.
Fig. 6 is"
image:a
"a view of the product or pretzel of our die. In carrying out
our invention, we construct the die A after the fashion or
configuration of the ordinary pretzel in its general shape -- that
is, as more clearly shown in Fig. 3. For the purpose of this
Page 137 U. S. 24
specification, we will describe the channel or groove
constituting the pretzel die as consisting of a bow or an
approximately heart-shaped portion,
a, with its meeting
portions,
a1, extended so as to cross each other, as at
a2. The underlapped portion is further extended, as at
a3,
said extension crossing or overlapping an extension,
a4,
of the previously overlapped portion,
a2. The extensions,
a3,
a4, are projected into the body of the bow,
a. At
a2, the creaser of one arm of the groove or
channel is extended, as at
a5, across its other arm, and
united to
a3, while the creaser
a3 is extended on
one side, as at
a6, across
a2. The ends of
a3
a4 project into the bow,
a, and terminate in creasers
a7. This construction enables the creasing of the product
or pretzel at the points above detailed, which imparts to the
die-made pretzel the appearance of having been made by hand, or a
natural appearance. The die A may be used, as shown, in connection
with means to permit its manipulation by hand, which consists of a
base B, through which it is adapted to move or operate, the guides
or uprights C, the top plate D, and the sliding hand piece E. The
uprights or guides, C are fixed to the base B, and to the plate D.
Around the plate, D, and the guides slides the hand piece E,
cushioned preferably upon helical springs,
b, secured upon
the base B. F F are the expelling studs, secured to the top plate D
and to the base B, below which they extend a short distance, and
through coincident apertures distributed through the die A. The die
is fixed to the vertically sliding box or hand piece E. When the
hand piece E is pressed downward, the operation of cutting or
stamping out the pretzel from the dough will be performed. Upon the
rising of the die, effected automatically by the spring, the studs,
whose lower ends, as above stated, project a short distance below
the die in its elevated position, will expel the plastic pretzel
from the die should it have a tendency to adhere or stick to it.
The die can also be readily applied as well to a cylindrical
surface as to other surfaces, and used in any number desired. Cams
or other suitable devices may be employed in lieu of the hand for
operating the dies. We are aware that the form of the creasers can
be changed without departing from the principle of our
invention.
Page 137 U. S. 25
The product of the die herein shown is not herein claimed, as it
will be made the subject matter of a subsequent application. The
cutter herein shown is adapted, by means of the feet or projection
b' on the base B, to be moved upon a flat surface and over
the dough, and to cut from the same pretzels, which, being left
upon a flat surface after cutting are not so liable to become
misshaped as when cut by rotary cutters, as heretofore, and by the
additional creasers
a5 a5, and the novel creasers,
a7
a7, perfect semblance to a hand-made twisted pretzel is
produced, while the creaser heretofore used, as
a6, does
not produce the desired result. Each die has three off-bearing
scrap passages
a3 which pick up the internal scraps, and
deliver them into the box or hand-piece E. It will be observed that
our dies form two kinds of scrap, to-wit, connected scraps and
internal scraps, the latter being picked up by the dies, and, after
passing through the channels
a3, are delivered into the
box E or other suitable receiver. We are aware that it is not new
to cut lozenges by means of a plate having a series of tubes which
cut the lozenges, leaving a connected scrap, the lozenges being
carried upward in the tubes, also that it is old to cut pretzels by
means of dies which at once deliver the internal scraps, as they
are cut, into one of the cylinders which carry the dies."
"Having thus fully described our invention, we claim and desire
to secure by letters-patent:"
"1. A flat die for cutting pretzels, having the bow
a,
the loops
a' a', the intermediate twisted portion, and the
ends
a3 a4, and provided with the central creaser
a6, the side creasers
a5 a5, and the end creasers
a7 a7, projecting into the bow
a, substantially
as shown and described."
"2. In a pretzel cutter, the combination of the die A,
perforated as described for the reception and passage of the
scraps, and for the expelling studs F, with said studs, the guide
rods C, the base B, provided with feet or projections
b',
the springs
b, perforated plate D, and the hand piece E,
substantially as shown and described."
"3. A flat pretzel-shaped die, having three off-bearing internal
scrap passages or channels, and perforations for the
Page 137 U. S. 26
expelling studs, in combination with the expelling studs,
substantially as shown and described."
The answer of the defendants set up, among other defenses,
"that pretzels, for the cutting of while from the dough said
pretended invention was made, are an old and well known article,
and have been known and in common use for a great many years, and
long prior to the said pretended invention; that pretzels are a
kind of hard, brittle cake, of a particular form, known and
associated with that particular form throughout the whole civilized
world, and that all that complainants claim to have done in their
said invention was the making of a die for cutting them in that
form; that the pretzels cut by such die are in no way improved or
different from the pretzels heretofore made; that long prior to
complainants' said pretended invention, dies were in common and
public use for cutting dough into various shapes and figures; that
such dies were so used for cutting the various letters of the
alphabet, different kinds of animals, birds, fishes, hearts,
diamonds, and any and every kind and variety of attractive or
fantastic shapes that confectioners or dealers might fancy or
desire; that such dies were made to cut any and every form that
might be desired; that in making such dies, the only change that
would be required would be in the form of the cutter, which could
be and was varied at pleasure, as occasion required; that dies like
those above described for cutting various forms were made in every
respect like the dies shown, described, and claimed in
complainants' patent for many years before their application for
letters patent, with the exception that the cutters were not
perhaps of the shape shown and claimed in complainants' patent, but
were shaped to cut every variety of form, except, perhaps, a
pretzel; that the only difference between such dies and
complainants' dies was in the form of the cutter, which form could
be and was varied at pleasure; that the making a die to cut
pretzels did not require and did not permit any invention, in view
of the well known existence and use of dies for cutting various
forms, as above described; that the complainants' patent does not
contain or claim anything that, in view of the state of the art,
could form the subject of a
Page 137 U. S. 27
valid patent, and that dies like those above described for
cutting various forms were, for many years before complainants'
application for their patent, made and sold by Jacob Roth, of the
firm of Roth, McMahan & Co. at his factory, No. 60 West
Washington Street, Chicago, Illinois."
The answer also alleged
"that dies for cutting pretzels like that described and claimed
in complainants' patent have been made and publicly used in this
country long before complainants' said pretended invention thereof,
and more than two years before their application for a patent
therefor,"
and
"that, in view of the state of the art at and prior to the
alleged invention of the plaintiffs, no invention was required in
making the inventions claimed in the patent sued on."
Issue was joined and proofs on both sides were taken, and the
case was heard in the circuit court by Judge Blodgett, who made a
decree dismissing the bill, with costs, from which decree the
plaintiffs have appealed to this Court. His opinion is reported in
27 F. 219. He says:
"The pretzel has heretofore been chiefly made by rolling out a
strip of dough, and bending it into nearly a semi-elliptical or
heart shape, and crossing the ends, and laying them upon the outer
rim of the circle. This form leaves, of course, three interior
openings, and, in cutting the pretzel from the sheet of dough as it
passes under the cutter, provision must be made for the interior
scrap which is cut from the dough, and this is done by having an
opening extending through the plate and cutting dies, so that the
interior scrap is carried off through the tubes connected with
these openings. . . . The proof shows that it is old in the art
connected with the preparation of food to cut crackers, cookies,
and cakes of various sorts into many shapes, including the shapes
of animals, and shows the use, for at least ten years before the
application for the patent in question, of dies in bakeries, for
cutting cakes, in the shape of the capital letter B, and the
character &, with two or more scrap passages, and, with dies of
this character in public use, I cannot myself see any patentable
novelty in the dies of the patent. They are simply made to cut a
piece of dough in the shape of a hand-made pretzel, while the dies
offered by the defendants
Page 137 U. S. 28
as anticipating the complainants' dies cut pieces of dough into
forms corresponding with the letter B and character &, from
which the internal scrap must be removed. These old dies also show
expelling studs by which the cut figure is expelled or pushed out
of the die after being cut, performing the same function that is
performed by the expelling studs in the patent. It is true, I doubt
not, that it required considerable mechanical skill to make a die
which would cut a pretzel from dough so as to imitate a hand-made
pretzel, because the hand-made pretzel is somewhat clumsily shaped,
as the parts are bent, twisted, and laid upon each other, and it
was undoubtedly a matter requiring some study, effort, and
experiment to make the shape of the die correspond with the
external formation of the pretzel. This, however, seems to me not
to involve invention, but mere mechanical skill. The cutter might
be compelled to experiment some -- that is, cut several dies -- but
that is not invention. The proof also shows that a large number of
persons before these patentees had attempted to make a machine
which would cut pretzels, and considerable money and time seems to
have been expended in efforts to produce such a machine, but the
noticeable thing in regard to all these early efforts was the fact
that most of those engaged in them were trying to draw out and
twist the dough by machinery, rather than to cut or stamp dough
from a flat sheet, while others were endeavoring to cut them with
dies set in revolving cylinders, and as soon as the idea of cutting
the dough from a flat sheet was conceived, the difficulty seems to
have vanished, and success followed the effort, as the only change
made was to adapt the old letter dies to the shape of a
pretzel."
The opinion further said that it seemed, from the proof,
inasmuch as the pretzel is an article of time-honored history in
the German countries, connected to some extent with the older
religious observances of that people and intimately with their
present social enjoyments, that in the first efforts at making them
by machinery, it was assumed that they must in every respect
simulate those made by hand or they would not be acceptable to the
public, and must not only simulate them in appearance, but the
manipulation of the dough must be substantially
Page 137 U. S. 29
the same as in those made by hand, but when the machine-made
pretzels were introduced to the public and accepted in place of the
hand-made article, the problem was solved, and that the merit of
these patentees seemed to have been in overcoming a fixed prejudice
in favor of the hand-made goods rather than in inventing any
radically new process for making the same goods by machinery. We
unanimously concur with the circuit court in its views.
It is urged by the appellants that the circuit court erred in
finding as a fact that dies existed which cut cakes in the shape of
the capital letter B and the character &, with two or more
scrap passages, but we find that the evidence establishes that
fact. In view of the testimony as to the state of the art, it
required no invention to make a single die to cut dough, on a flat
surface, into any particular shape desired, whether the shape of a
pretzel or any other shape.
Smith v.
Nichols, 21 Wall. 112,
88 U. S. 119;
Dunbar v. Myers, 94 U. S. 187,
94 U. S. 199;
Pomace Holder Co. v. Ferguson, 119 U.
S. 335,
119 U. S. 338,
and cases there cited;
Peters v. Active Mfg. Co.,
130 U. S. 626,
130 U. S.
628-629;
Watson v. Cincinnati Ry. Co.,
132 U. S. 161,
132 U. S. 167.
All that it was necessary to do was to take the pretzel as a
pattern, and make a die to correspond in shape with it. The pretzel
presented all the lines and creases, points and configurations,
that were required in the die. The question was one not of
invention, but simply of mechanical skill and imitation. The
perforations in the die for the passing upward of the scraps, and
the expelling studs for pushing off the pretzel from the die, and
all the details specified in the second claim of the patent, were
old in machines that had been used by bakers for many years. All
that was necessary was to take out the old cutter and put in one in
the reverse form of a pretzel. The rest of the machine had been
used in the same way in connection with other forms of dies. There
is nothing in the suggestion that pretzel dough is different from
other doughs, in respect to the action of a die upon it.
In regard to the point taken that the existence of invention in
this case is shown by the fact that a large number of persons
Page 137 U. S. 30
had before attempted unsuccessfully to make a machine to cut
pretzels, and had expended considerable money and time for that
purpose, it is to be said, as stated by the circuit court, that
most of them were engaged in trying to draw out and twist the dough
by machinery, rather than to cut out the form of a pretzel by a
single die from a flat sheet, or else were endeavoring to cut
pretzels with dies set in revolving cylinders. It also appears that
those efforts were largely made in attempts to cut out the pretzel
by two opposite dies, and that as soon as the idea occurred of
cutting the dough by a single die from a flat sheet, success came
at once by merely changing the shape of the old single die. It also
appears, as suggested by the circuit court, that there was a
prejudice against machine-made pretzels.
The decree of the circuit court is
Affirmed.