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EX PARTE IIOLT.

Decided June 22, 1894.

68 0. G., 536. 1. PROCESS.

Passing upward through falling impurities and flour commingled a current of air purified by centrifugal action, then subjecting the dust-laden air to centrif. ugal action, and finally passing the air so purified back to be used again and again in the same series of stops, all in closed chambers and conduits, constitute

a true process. 2. SAME.

Such process is patentable over one consisting of the same steps except that the purification of the dust-laden air is effected by the agency of a settling.

chamber in place of a vortex-chamber. 3. SAME.

It is patontablo over a process consisting of the first and second steps followed by the discharge of the purified air in the mill instead of its use over and over

again in a closed circuit. 4. SAME.

It is patentable and is not the mere function of a machine, although but one apparatus is known or suggested for carrying the process out, and that the one patented to this applicant, the process and the apparatus laving been origi. nally in one and the same application.

APPEAL from the Examiners-in-Chief.

PROCESS OF SEPARATING MATERIALS OF DIFFERENT SPECIFIO GRAVITIES. Application of Noah W. Holt filed April 27, 1888, No. 272,033.

Messrs. Doubleday & Bliss for the applicant.

SEYMOUR, Commissioner :

This is an appeal taken from the decision of the Examiners-in-Chie rejecting the following claim:

The herein-describod improvement in the art of separating and purifying flour or middlinge, the same consisting in passing through a inass of mingled pulverulent impurities and flour or middlings a current of air from which impurities have been previously removed, the purified air moving against and through the material, subjecting the dust luden air-current to centrifugal action while moving with the aircurrent in a vortex to separate the impurities from the air, and afterward passing the purified air, whilo isolated from the atmosphere of the mill, through another mass of mingled impurities and flour or iniddlings, whereby the separation and purification of the flour or middlings is effected through the agency of au air-current which has been purified by centrifugal action, substantially as set forth.

The references are patents to Custer, dated December 22, 1874, No. 157,958; Schwab, dated May 11, 1875, No. 163,030; Steruberg, dated May 23, 1882, No. 258,195; Mumford and Moodie, dated June 30, 1885, No. 321,379; Holt, dated June 19, 1888, No. 384,950; Holt, dated March 4,1890, No. 422,785; Holt, dated March 11, 1990, No. 422,941–2–3; British patent No. 7,312 of 1885, to Simon; German patent No. 29,181, to Seck. On the 9th of March, 1888, the appellant made application for patent on the process covered by the claim appealed and upon an apparatus for carrying it into effect. On April 11, 1888, he was required to divide between claims for a dust-collector, claims for the alleged process, and claims for a chop.grader. His application for the apparatus was allowed, and on June 19, 1888, Patent No. 381,950 was granted thereon. On April 27, 1888, the present divisional application was filed to cover the process; but his claim therefor was rejected by the Primary Examiwer, whose decision was affirmed by the Examiners-in-Chief, upon the ground that the process is the function of the apparatus described in appellant's patent, and also because it was shown in other references.

It appears that prior to Holt's invention Orvil M. Morse had devised and patented a vortex-chamber for the purpose of separating the clust from the air that came from the purifying apparatus then used in fouring-mills. It was attached to the purifiers, received the dust-la.len air therefrom, and discharged the purified air into the mill, the object being to remove from the mill-air the fine particles which, upon the lighting of a match, sometimes caused a dangerous explosion in the mill.

The aspirator, which constitutes another element in IIolt's machine, was inuch older than the vortex-chamber. It was within the design of Morse that the vortex-chamber should be attached to the aspirator or to any other purifier, receiving from it the dust-laden air froin which the flour and iniddlings bau been separated, purifying it in the vortexchamber by means of centrifugal action, and discharging the purified air into the mill, with the purpose of removing the cause of the explosions liereinbcfore referred to. Holt was the first to lead this purified air from the vortex-chamber back to the aspirator, and there use it to cleanse flour in place of an indraft of air taken from the mill or from the outer air. He thus put the aspirator, the vortex.chamber, and the air-ducts leading to the one and from the other in a closed circuit, using the air over and over again, and totally separated from the air in the mill. It was old to pass through a mass of mingled pulverulent impurities and flour or middlings a current of air moving against and through the material; that was done in aspirators from their first introduction into tlouring-mills.

It was old to subject the dust-laden air-current to centrifugal action in a vortex.chamber to separate the impurities from the air. It is new to lead this air-current so puritied back to the aspirator, where it would he used again, and over and over again, to purify the flour or middiings. Yet it was not new to use a current of air over and over again in it purifying apparatus in flouring-mills. It was so uscil in Schwab and in Custer, where the dust-lade current from an aspirator was led into a settling-chamber and thence back into the aspirator.

Two questions arise: First, are the described steps in purifying flour and mildlings a true process? Second, if a true process, is the process new! A third question may be put, to wit: whether the lil'ocess is anything more than the function of the Holt machine? But this will be treated as a form of the first question.

The plaintiff's process may be stated to consist in three steps: first, passing upward through falling impurities and flour commingled a current of air purified by centrifugal action; second, subjecting the dust-laden current of air to centrifugal action; third, passing the pur. ified air in a closed conduit back to the first step.

The apparatus which appellant bas contrived with which to take these three steps are, in combination, the purifier, the vortex chamber, with a fan in the current conduit between them, and a conduit leading back from the vortex-chamber to the aspirator. The apparatus differs from the vortex-chamber as used by Morse in a flour-mill, and as by him connected to the aspirator, solely in the addition of the return-conduit from the vortex-chamber to the aspirator.

Recurring now to the steps in the process, it is not entirely clear that each of them is old. Passing through falling flour and impurities commingled a current of air is old in all aspirators of whatever form, witin this difference, however: In other cases the air was taken from the mill or from ille outer air; in Flolt's case it is taken from the center of the vortex-chamber, and therefore is purified in a degree wholly unattainable in a settling-chamber or other known substitute. The second step is old without qualification, and, standing by itself, is disclosed in the patents to Morse. Passing the purified air in a closed conduit back to the aspirator is in itself old, as shown in Schwab and Custer; but in those cases the puritied air was taken from a settling chamber in place of a vortex-chamber. But air taken in a continuous current from a settling-chamber converts the settling-chamber into something foreign to its purpose and to the object of the process, and pro tanto arrests the process there going on-to wit, the slow separation of the fine impurities in the air by their gradual falling to the bottom in as perfect a calm as can be maintained. So of the current of dust-laden air passing into the settling-chamber, that in a similar manner disturbs what is intended to be going on in the settling-chamber.

Now, substituting a step for purifying the air by the movement of the air, in place of a purification by the agency of a calm, is combining steps which interact harinoniously upon one another to obtain the object. Thus when the outgoing air from the aspirator is conducted by means of the fan in a closed conduit into the vortex-chamber, and, after whirling in the vortex-chamber, is led back in a second closed circuit to the inlet of the aspirator, the whole forining a closed circuit, the three steps are each taken by the agency of moving air, in place of the other methods shown in the references—a series of steps effected through the agency of air in a closed circuit, but which depend for their efficiency upon the inotion of the air in one part of the system and the absence of the motion in another part.

Merely connecting the Morse vortex back to the aspirator has effected a material change in flouring-mills, which is widely adopted, proceeding as the invention did upon lines calculated to remove the dust particles from the air of the mill to avoid explosions, then advancing to a process which accomplished that and more-to wit, the better puri. fication of flour and middlings in a closed air-circuit, `not merely because closed, but it is shown by affidavits before me that the best results in purifying flour and middlings cannot be attained except by this process. It is shown that the closed circuit, not of itself a valuable feature when used in working other processes so far as the purification of flour and iniddlings is concerned, becomes, when used to introduce pure air into the aspirator, the means whereby the most essential step proposed by Holt can be taken. Employed originally to prevent the air in the mill from becoming ladened with dust which menaced the mill, it comes now to be employed as the conduit of air essential for the perfect working of the aspirator. This seems to distinguish Holt's process, considered step by step, from what goes on in such apparatus as Sternberg's and to distinguish it as new.

Is the process the function of the apparatus? Upon this point it is urged by the appellant that the apparatus can be used for other pur. poses and for working out other processes than the one for which he claims a patent. It would be decisive of the case if the appellant were to show that the process might be carried out by other apparatus than his; but while that furnishes a convenient rule for deciding whether a process is a function of a particular machine, it is not applicable to a case where a newly-invented process is given to the world with but one means or machine for carrying it out. That would be saying that the inventor of a new process must also invent and disclose at least two machines for working it, or else take a patent on the machine alone and gratuitously present to the public the process. Rather than this it is thought that, whatever the difficulties, the magistrate must address himself to the question whether the assumed process and the one known apparatus by which it is worked are in reality but one and the same invention, presenting two separate aspects, in that now it is defined in abstractions and again in tangible elements; and this inquiry must be resolved without recourse to the ordinary test whether the real inven. tion consists in the boxes, conduits, fan, vortex-chamber, dampers, and the moving air as the mechanical means—the machine—by which certain results are accomplished, or whether divorced from these particu. lar means, the air-current may be set up and made to bear away the impurities from flour and middlings and then to be cleansed from those impurities and used over and over again by means essentially different from the machine described in Holt's machine patent.

It must be conceded that wheu the dampers are adjusted, the fan started and timed, and the air current nicely adapted in velocity to the particular gradation and cleansing to be effected then the process will be worked out in the machine so adjusted, so long as no changes occur In the material fed to the machine or in the other conditions.

All this and more was true in the Paper Bag Process patent, which was sustained as a true process in Eastern Paper Bag Co. v. Standard Paper Bag Co., (C.D., 1887,537; 41 0.G., 231; 30 Fed. Rep., 63.) Blank paper was fed to the machine from a roll, and perfect folded paper bags were the product of the machine, and yet a patentable process was thereby worked; but it must be noted that paper bags may be so folded by hand-a circumstance that distinguishes that case from this. But in both, the apparatus and the process are not merely two aspects of the same subject matter of thought; but when, on the one hand, a clear conception of the apparatus is formed, and, on the other hand, a clear conception of the process, the two conceptions refuse to merge.

In the Neilson patent cases (Web. Pat. Cas. 275–371) great con. sideration was given to the distinction between a mere principle, as a subject of a patent, and a process by which a principle is applied to effect a useful result. The patent was construed to be for a process, irrespective of the form of the apparatus, and was sustained after the strictest scrutiny and against the strongest opposition. Of this the Supreme Court of the United States, in Tilghman v. Proctor, (C. D., 1881, 163 ; 19 O.G., 859; 102 U. S., 707-724,) said:

But, having invented and practically exemplified a process for utilizing this principle-namely, that of heating the blast in a receptacle between the blowing apparatus and the furnace-he was entitled to a patent for that process, although he did not distinctly point out all the forms of apparatus by which the process might be applied, having nevertheless pointed out a particular apparatns for that purpose, and having thus shown that the process could be practically and usefully applied.

Looking to the exact invention of Neilson it is seen that it consists in interposing a receptacle for heated air between the blowing apparatus and the furnace. In this receptacle he directs the air to be heated by the application of heat externally to the receptacle, and thus he accomplishes the object of applying the blast, which was before of cold air, in a heated state to the furnace. Neilson's application of bot air to blast furnaces in smelting ores is analogous in patent law discussion to Holt's application of pure air in cleansing middlings. Variations in air-temperatures between summer and winter followed by Neilson's heated blast in a red-hot receptacle are comparable to the varying states of impurity of air for flouring purposes taken from the settling. chamber or the mill, followed by Holt's invention of taking pure air from the center of the vortex-chamber. In both, the use of the hot air in the one case and pure air in the other, a close approach is made to the attempt to patent a principle. In both, the assumed process is in appearance the function of the apparatus. Upon the authority of the Neilson case, fully approved by the highest courts of both continents, it is thought that the applicant's process is not the mere function of his machine.

It is not overlooked that a patent for this process to issue six years after a patent for an apparatus which is the only present known means for carrying out this process, may in effect prolong the appellaut's

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