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BERLIN MILLS COMPANY v. PROCTER & GAMBLE COMPANY

December 6, 1920

BERLIN MILLS COMPANY
v.
PROCTER & GAMBLE COMPANY



CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT

White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: Day

[ 254 U.S. Page 156]

 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

[ 254 U.S. Page 157]

     of the patent of John J. Burchenal for a food product, issued on April 13, 1915, Number 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 Fed. Rep. 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 glycerides -- olein, linolin and stearin. The hydrogenation, or hardening process, has the effect to increase the proportion of the solid glycerides of high saturation. Stearin is called a saturated glyceride 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 glycerides and can be converted by the addition of hydrogen into hardened glycerides.

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 glycerides of unsaturated fatty acids, and among these, notable quantities of fatty glycerides of lower saturation than olein. It is the presence of these glycerides of lower saturation that seriously affects the rancidity of the material. Oxidation is

[ 254 U.S. Page 158]

     largely the cause of rancidity, which oxidation weakens the fat at the point of absorption at the double bonds, and these glycerides of lesser saturation readily absorb oxygen from the air at ordinary temperatures, while the more highly saturated glycerides, as olein, only absorb oxygen at elevated temperatures. It is evident, therefore, that oils or fats containing notable quantities of glycerides of linolic acid, or of lesser saturation, are distinctly inferior as an edible product to those containing a minimum of these glycerides with a larger per cent. of olein. On the other hand, while it is important to get rid of the readily oxidizable glycerides of lower saturation, it is also important not to supply too large a per cent. of fully saturated glycerides. . . . 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 degrees F., are not so digestible as fats which are liquid at this point, or which have a melting point below 98 degrees F. It is, therefore, my object in the preparation of my new lard-like composition and food-product, and in preparing same from cottonseed oil, to change the chemical composition of the oil to obtain a product with a high percentage of olein, a low percentage of linolin and the lesser-saturated fats, and with only sufficient stearin to make the product congeal at ordinary temperatures.

"In manufacturing this product, cottonseed or other vegetable oil is caused to chemically absorb a limited amount of hydrogen by reacting on the oil with hydrogen in the presence of a catalytic agent and at an elevated temperature. The oil is preferably agitated in a closed vessel in the presence of an atmosphere of compressed hydrogen, a catalyzer of finely-divided nickel carried by

[ 254 U.S. Page 159]

     kieselguhr being maintained in suspension in the oil and its temperature being raised to about 155 degrees C.

"According to the present invention, the amount of hydrogen absorbed is carefully regulated and limited. In practice, the operation is stopped when the oil has been converted into a product which cools to a white or yellowish semi-solid more closely resembling lard than do the commercial mixtures of cottonseed oil and animal oleostearin, while in many respects the product is superior to the best leaf lard as a shortening. It is not so liable to become rancid and the product can be heated to a considerably higher temperature than lard without smoking or burning. The high temperature to which my product can be raised without smoking or burning makes the product ideal for frying, inasmuch as a crust forms almost instantly on the food fried, which prevents any absorption of the shortening. A lard-like product thus prepared from cottonseed oil has a saponification value of about 195; and an iodin value ranging from about 55 to about 80. The product having an iodin value of 55 has a titer of about 42 degrees and a melting-point of about 40 degrees C.; that having an iodin value of 80 has a titer of about 35 degrees and a melting-point of about 33 degrees C. While but partially hydrogenized, containing from about 1.5% to 2.5% of additional hydrogen more than in the nonhydrogenized material, it shows no free cottonseed oil when subjected to the Halphen test, thereby differing from all commercial lard substitutes containing this oil. It contains from twenty to twenty-five per cent. of fully saturated glycerides, from five to ten per cent. linolin and from sixty-five to seventy-five per cent. olein, and an average of a number of samples gives twenty-three per cent. of saturated fats, seven and five-tenths per cent. linolin and sixty-nine and five-tenths per cent. olein, while the cottonseed oil before treatment contained seventeen per cent. saturated fats, thirty-seven per cent. linolin and forty-six per cent. olein. It will thus be seen

[ 254 U.S. Page 160]

     that I have produced an ideal food product, which is high in olein, low in linolin and lesser-saturated fats, and with only enough stearin to make ...


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