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improved quality of oil-cake, or residue, of open-grained, flaky nature, capable of being split in regular pieces at right angles to the direction of pressure."

Having thus described his invention, the patentee states his claim to be "the process of crushing oleaginous seeds and extracting the oil therefrom, consisting of the following successive steps, viz., the crushing of the seeds under pressure, the moistening of the seeds by direct subjection to steam, and, finally, the expression of the oil from the seed by suitable pressure, as and for the purpose set forth."

The purpose and effect of the invention claimed by the patentee as a new process, and the argument against the validity of the patent as a patent for a process cannot be better or more clearly stated than is done in the opinion of the court below, pronounced by Judge Dyer, 21 Fed. Rep. 811. We quote therefrom as follows: "The proofs show, and in fact it is undisputed, that formerly, in the process of extracting oil from flaxseed, the seed was subjected to the crushing and disintegrating action of the muller-stones, which consisted of two large and very heavy stone wheels mounted on a short horizontal axis, and attached to a vertical shaft. By the rotation of this shaft the stones were caused to move on their edges shortly around in a circular path upon a stone bed-plate, with a peculiar rolling and grinding action, upon a layer of flaxseed placed on the bed-plate. This was the usual mechanical appliance in connection with the operating movement of the mullerstones. By this means such portions of the seed as came in contact with the muller-stones were reduced to a complete state of pulverization. To facilitate the disintegrating action of the muller-stones, the seed was generally first more or less crushed by passing it through one or more pairs of rollers, thus better preparing it for the rubbing and grinding action of the muller-stones. The further treatment of the seed required the application of heat and moisture, and this was accomplished in various ways. Sometimes the heat and moisture were applied by a steaming device before the seed was crushed by the muller-stones; sometimes the seed was moistened when it was under the action of the muller-stones by

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sprinkling water upon the layer of seed beneath the stones, the heat being applied afterwards by a separate operation. At other times both heat and moisture were applied after the seed had been run through the mullers, and was in the form of meal in the heater. As the last step in the process the seed thus crushed and disintegrated, and in moist and warm condition, was usually placed in haircloth mats or bags, and subjected to hydraulic pressure, by which means the oil was extracted. This was the state of the art, and this the usual process when the complainant obtained his patent."

The court then states the process set out in the appellant's patent, and, after some observations thereon, proceeds to say:

"The crushing of oleaginous seed, so that ultimately it may be in condition for the application of hydraulic pressure, was always a step, and, necessarily the first step, in the process of extracting the oil therefrom. As we have seen, that step was formerly accomplished by means of rollers and muller-stones. The complainant ascertained, by practice, that in crushing the seed the tearing, pulverizing action of the muller-stones was injurious, and so he dispensed with that mechanical operation in the crushing step of the process, and employed the rollers alone. He thereby simply omitted one of the instrumentalities previously used in the first stage of treatment of the seed. This was undoubtedly a useful improvement, but it was not the invention or discovery of a new process. Each step in the process existed and was known before; namely, crushing the seed, beating and moistening it, and, finally, the application of hydraulic pressure. What the complainant accomplished was a change in mechanical appliances and operation, by which an existing process, and each step thereof, were made more effective in its results. For this he may have been entitled to a mechanical patent. He discovered that more advantageous results were attainable by dispensing with the use of muller-stones; and that these results were also promoted by the improved construction of the rollers and other mechanical appliances for heating and moistening the seed, is quite apparent. The discovery or invention was not of a new series of acts or

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steps constituting a process, but only of certain mechanical changes in carrying into effect the well-known old steps of the process."

The view thus taken by the court below seems to us open to some criticism. If, as that court says, and we think rightly says, the omission of the muller-stones is a real improvement in the process of obtaining the oil from the flaxseed; if it produces more oil and better oil-cakes, and it is new, and was not used before; why is it not a patentable discovery? and why is not such new method of obtaining the oil and making the oilcakes a process? There is no new machinery. The rollers are an old instrument, the mixing machinery is old, the hydraulic press is old; the only thing that is new is the mode of using and applying these old instrumentalities. And what is that but a new process? This process consists of a series of acts done to the flaxseed. It is a mode of treatment. The first part of the process is to crush the seed between rollers. Perhaps, as this is the only breaking and crushing of the seed which is done, the rollers are required to be stronger than before. But if so, it is no less a process.

The evidence shows that, although the crushing of the seed by two horizontal rollers, and then passing it, thus crushed, under the muller-stones, was the old method commonly used, yet that, for several years before Lawther took out his patent, a more thorough crushing had been effected by the employment of four or five strong and heavy rollers arranged on top of one another in a stack, still using the muller-stones to grind and moisten the crushed seed after it was passed through the rollers. The invention of Lawther consisted in discarding the muller-stones and passing the crushed seed directly into a mixing-machine to be stirred, moistened, and heated by jets of steam or water, and then transferring the mass to the presses for the expression of the oil by hydraulic or other power.

The machinery and apparatus used by Lawther had all been used before. His only discovery was an improvement in the process. He found that, by altogether omitting one of the steps of the former process the grinding and mixing under the muller-stones and mixing in the mixing-machine

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by means of steam, a great improvement was effected in the result.

Why should it be doubted that such a discovery is patentable? It is highly useful, and it is shown by the evidence to have been the result of careful and long-continued experiments, and the application of much ingenuity.

By the omission of the mullers greater care may be necessary on the part of the workman in carrying on the operations, especially in watching the moistening and mixing process so as to produce the proper moisture and consistency of the mass before subjecting it to hydraulic pressure. But though it be true that the new process does require greater care, and even greater skill, on the part of the workman than was formerly required, this does not change its character as being that of a process, nor does it materially affect its utility.

The only question which, in our view, raises a doubt on the validity of the patent, is, whether it sufficiently describes the process to be followed in order to secure the beneficial results which it promises. The patentee, when on the witness-stand, stated that the invention was perfected on the 2d day of June, 1874; that it was the result of a long series of experiments which were not entirely successful until that date. His account of it is thus elicited, on his cross-examination :

57. When did this invention, as you claim it, as you describe it in this patent, first take tangible and practical shape in your mind as a whole process?

"A. Complete and perfect in 1874.

"58. What time?

"A. Between the 31st of May and the 2d of June.

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59. What was the particular improvement that produced the change in results at that time?

"A. It was the perfecting of all of the improvements, the harmonious working of all the changes that we had made in the matter; most of the changes had taught us something, and when we learned it all we knew it.

"60. What particular thing brought about that change at that time?

"A. I don't know that I could locate any particular thing of any importance or magnitude.

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"61. What did you do different on the first or second of June or thereafter from what you had done on the 30th of May or theretofore?

"A. I have answered that before as near as I can. I only know it was the culmination of all previous efforts, our knowledge, and our apparatus.

"62. Was the change caused by anything more than your men's increased practical skill and experience in working seed in that new way?

"A. Added to the apparatus, yes, sir; that was just it exactly. We couldn't have done it without the proper appliances, and with the proper appliances we couldn't have done. it without the knowledge; the two things come together. The whole thing was a series of infinitely small steps.

"63. Wasn't the apparatus the same on the 30th of May and after the 2d of June?

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"A. I have no record of any experiment or change having been made during that time, nor do I recollect of any changes. It is possible that it was precisely similar.

"64. Isn't that your best recollection, that it is similar?

"A. I have no recollection about it one way or the other. One of our greatest difficulties was the uniform moistening of the seed. We changed the moistening apparatus in a great many different ways. Some of them involved the delay of a day, some of them an hour, some of them a few minutes. Some such changes as that might have been made in the time spoken of.

"65. No change was made in the rolls in that time, was there? "A. Not that I know of.

"66. Nor in the heater apparatus or in the presses at that time?

"A. No; we didn't change the body of that heater; probably not the presses.

"67. On the 30th day of May, and some time previously, didn't you crush the seed under rolls as the first step?

"A. Yes.

"68. And then moisten it?

"A. Yes.