Opinion of the Court.

on by Norwood and his son after the dissolution of the firm of Norwood and Manning in 1867, nor in the business of J. J. Manning & Brother, carried on from 1868 until after the issue of the patent.

Some attempt is made to show that the use of the machines in the factory of Caleb Norwood, from 1867 to 1870, was a secret and not a public use. But we think the testimony shows a use open to the public generally. But whether this be so or not is immaterial, for Norwood and his son were allowed by the inventor the unrestricted use of the patent during the period mentioned, without injunction of secrecy or other condition. This is sufficient to constitute a public use. Egbert v. Lippman, 104 U. S. 333.

The decided weight of the evidence shows that there was also a public use of the invention in the factories of J. J. Manning & Brother for more than four years prior to the application for the patent, namely, from 1868 to 1873.

It is also made clear by the testimony, not only that the machinery, but the process used by Norwood & Manning from 1860 to 1867, by Norwood & Son from 1867 to 1870, and by J. J. Manning & Brother from 1868 to 1873, and after that year was substantially the same as that described in the patent. During all these years there was no material change, either in the machinery or the process. The use of the machinery and process was not, therefore, an experimental use. These conclusions of fact are fatal to the complainant's case.

It is the policy of the patent laws to forbid the issue of a patent for an invention which has been in public use before the application therefor. The statute of 1836, 5 Stat. 117, section 6, did not allow the issue of a patent when the invention had been in public use or on sale for any period, however short, with the consent or allowance of the inventor; and the statute of 1870, 16 Stat. 201, section 24; Rev. Stat. § 4886, does not allow the issue, when the invention had been in public use for more than two years prior to the application, either with or without the consent or allowance of the inventor. Under either of these statutes the patent relied on in this case was improvidently issued, for there was a public use, with the con

VOL. CVIII-30

Statement of Facts.

sent of the inventor, for more than two years prior to the application. The patent is threefore void. McClurg v. Kingsland, 1 How. 202; Egbert v. Lippman, abi supra; Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92; Worley v. Tobacco Co., 104 U. S. 340.

The decree of the circuit court must be affirmed.

DOWNTON v. YEAGER MILLING COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Decided May 7th, 1883.

Patent-Printed Publication.

1. The doctrine reaffirmed that the earlier printed and published description of a subject of a patent which is put in evidence to invalidate a patent must be in terms that would enable a person skilled in the art or science to which it appertains to make, construct and practise the invention as completely as he could do by the aid of information derived from a prior patent; and that unless it is sufficiently full to enable such person to comprehend it without assistance from the patent, or to make it or repeat the process claimed, it is insufficient to invalidate the patent.

2. Applying the doctrine to this case, the appellant's patent held to be void.

The appellant was the complainant in the circuit court. He filed his bill to restrain the infringement by the appellee of certain letters patent, for which he made an application on March 20th, 1875, and which were issued to him on April 20th following, for an "improvement in processes of manufacturing middlings flour."

The state of the art, and the purpose of the improvement which the patent was intended to cover, were set forth in the specification, as follows:

"This invention has for its aim the better working or manipulating of grain particles known as middlings, for their reduction into meal or flour.

"To fully set forth the advantages that this process possesses

Statement of Facts.

over any of the various processes previously known and in use, it will be necessary to previously describe the manufacture as now practised.

"It is customary under the ordinary mode of milling to separate and purify the middlings by the action of air alone, or air and bolting-cloth combined; then to convey the purified product to millstones to be ground to a sufficient fineness to admit of the passage of the middlings flour through the meshes of the boltingcloth, which is used as a finishing-preparer between the stones and the flour barrels or sacks receiving the finished product. In some cases the middlings that are not sufficiently reduced to go through the meshes of the cloth, pass through the ends of the flour-bolts, and are brought back into some of the various purifiers, and subjected to repurification. This process requires much careful manipulation, and even then the yellow germ and pellicle of the grain will be so torn and pulverized by the stones that loose portions of the same will pass through the meshes of the bolting-cloth, into the flour, with injurious effect. The reason why the germ and pellicle is so torn is that millstones are composed of two disks-one revolving, the other stationary-receiving the material to be ground at the eye or centre of the stones, and compelling it by centrifugal force to escape at the skirt or periphery of the stones, passing alternately over face and furrow until it reaches the periphery, where it is discharged. Such action comminutes the germs and forms specks that cannot be removed by the purifiers, and are, therefore, ground in with the flour.

"In the manufacture of middlings flour the action of stones on the middlings is not different from their action on grain, but in the wheat-stones the germ ends and bran are not sufficiently comminuted by one grinding to pass through the meshes of the cloth used for the flour known to the trade as 'first run.' I propose to arrest and remove such germ matter and bran particles by my improved process before they reach the second grind on the middlings-stones, by placing between the purifiers or separators and middlings-stones one or more sets of rolls, which will operate to reduce the large middlings by a bruising or crushing action, while they simply flatten out the intermixed germs and bran. Any of the various purifiers or separators in public use may be employed. A second important advantage or result of this improved process is the production of a large yield of high-grade

Statement of Facts.

flour. The large middlings or glutinous particles of the grain require more grinding than do the finer and more starchy particles removed at the head or first part of the purifiers; and when ground together, as is generally the case with small mills, and frequently the case with large mills, the meal is considerably heated in the grinding, owing to the miller's requiring the middlings meal to be of uniform fineness. The disposition and fineness of the small middlings cause them to 'flour' quicker than the large middlings, therefore the grinding is unequal, as, in order for the large glutinous middlings to be ground enough, the small starch middlings must be ground too much. This impairs the quality of the flour by deadening it, as well as by reducing the germs and bran to such an extent as to cause them to pass through the cloth. Some mills, therefore, run the coarsest middlings to a lower grade of flour.

"It is plain that with an intermediate reduction, by the flattening-rolls working on the large middlings as above set forth, the comminution of the middlings under the stones is rendered more equal, and a larger percentage of high-grade flour can be made. "I will now describe briefly my mode of milling, referring, for illustrations, to the accompanying drawing, in which—

"Fig. 1 is a general side view, partly in section, showing an apparatus, or a series of machines, comprising a section of my purifier A; and Fig. 2 is a like view of the same apparatus, in part, illustrating the employment of any other purifier, A'.

"Naturally the germs and bran are kept with the large and valuable middlings or particles of grain by the bolting-cloth of the purifying machines or flour-bolts till they reach certain parts, where the middlings are subjected to strong currents of air to remove light bran-flakes and fuzzy matter, The partiallyfreed middlings are now passed from the purifier A, or A', between rolls or uniformly rotating surfaces, B, where the good middlings particles, being more brittle, are reduced to small granules, or to flour, while the germ and heavy bran matter, being of a soft, plastic nature, is flattened out, so that on passing it into a reciprocating or revolving bolt, C, clothed with suitable cloth, the flouring matter is thoroughly removed through the meshes of the cloth in a fit state of purity to pass to the stones D to be reground as usual, and the injurious germs and refuse matter are arrested, so as to be run off into suitable receptacles."

Opinion of the Court.

The claim was stated as follows:

"The following is claimed as new, namely:

"The herein-described process of manufacturing middlings flour by passing the middlings, after their discharge from a purifier, through or between rolls, and subsequently bolting and grinding the same for the purposes set forth."

The answer of defendant set up, among other things, as matter of defence, want of novelty, and vagueness and uncertainty in the specifications and drawings filed by the patentee to describe his invention.

The circuit court sustained both these defences and dismissed the bill. The complainant appealed.

Mr. Geo. Harding and Mr. W. G. Rainey for appellant..

Mr. F. W. Cotzhauser and Mr. Robert H. Parkinson for the appellee.

MR. JUSTICE WOODs delivered the opinion of the court.

A grain of wheat may be described generally as follows: It consists of a pellicle or outside covering known as bran, an inner envelop consisting of cells and their contents of gluten and phosphates, the most nutritious portion of the berry, and an interior white mass composed mainly of starch and albuminoid matter, extending to the heart of the berry. At one end of the berry, under an irregularly-curved surface layer of bran, technically called the shield, is the embryo or germ. The germ is a yellow, waxy substance, and the bran is consistent and tough. It has always been the aim of good milling to separate as completely as possible the bran and germ from the other contents of the berry, because they not only gave color to the flour, but rendered it more liable to sour.

The main purpose of the improvement described in appellant's letters patent was to accomplish this result by removing the bran and germ from the coarse middlings, leaving only those parts of the grain from which pure white flour could be produced. The improvement consisted in a process, and did not cover the several devices by which the process was carried on.