In the Matter of Andrews' Patent. taken must be deemed to have been waived. Leave to make further amendment of the Particulars was not asked for. The disconformity is in that nitrogen peroxide is not mentioned, nor even indicated, in the Provisional Specification. At the date of Andrews' Specification it was known that nitrogen peroxide 5 would oxidise, but not that it was a powerful oxidiser. The objection as to disconformity was taken in the summing up. It is a remarkable fact, if the value of Andrews' Patent consists in oxidation, that the stronger nitric acid should not act except in so far as it produces the weaker oxidiser, the nitrogen peroxide. If the question of nitration is established, it assists with regard to disconformity, 10 because the Patent is undoubtedly one for oxidation, and if it be really nitration there is a complete departure. It is not true to say that the process is correctly described with an erroneous theory. The Respondents do not rely upon ionisation as a substantive point. Astbury K.C. replied. The utility of Frichot's process is not material; the 15 only question is whether or not Frichot's Specification is a publication that would teach the world Andrews' process. As to the evidence of Mr. Leatham, he knew about the Andrews process and the Alsop process with a flaming discharge. After nine months' working of it he could only effect an improvement in the quality of the flour to the extent of 3d. a sack, and then he changed his 20 process and worked what is tantamount to the Appellants' process. His evidence is not satisfactory when he says he got ozone and only ozone, and that it produced no taint. It always produced a taint in the experiments of the Appellants, and the taint cannot be removed by exposure or by trying to pump out the gas that may be occluded by the flour. Fig. 5 of Frichot was not intended for use 25 with a spark, and is not a publication of Andrews' process. As to Beanes, his Specification teaches no more than the old cotton bleaching process. The Respondents have laid little stress on nitration, and the ionisation theory was put forward simply to prove that ozone nitrated and did not oxidise. It is not correct to say that nitrogen peroxide is the only gaseous agent that is useful; 30 a list of eleven agents was given. The Appellants, in their experiments, on both a laboratory scale and a large scale, found that 1.52 acid worked as quickly and effectively as the peroxide. The apparatus shown for use with ferrous sulphate is also intended for use with nitric acid. In experimenting with the 1·42 acid, the Respondents put into the acid, through which they sent a current of air, an 35 excess of potassium permanganate, which would prevent the formation of the peroxide by the dust in the air. Mr. Ballantyne adopted the correct method; he blew air through the acid until a portion of it on being tested was found to be free from peroxide; on further blowing air through it he obtained a bleaching effect. The 1:42 acid, when bought, contains peroxide, the amount of which 40 will be increased as air is blown through it, further increased as the vapour issues into the atmosphere by the organic matter in the atmosphere, and still further increased by contact with the carbohydrates in the flour. The presence of permanganate prevents the air doing what it would do in nitric acid without permanganate. The consumption of the 1.52 acid is much greater than that of 45 the 1.42 acid, although the use of the latter is more widespread. The difference is immaterial because both will work. There is no evidence that, commercially, anything but nitrogen peroxide is used. As to disconformity, the Petitioners have only pleaded nitration as disconformity. The Patentees say they want a gaseous oxidising agent that will produce nascent oxygen, and the evidence is 50 that that would include the peroxide. The nitric acid, it is said, is to be used in the atmosphere; it cannot be so used without the creation of peroxide; that is included in the Provisional-nitric acid is mentioned, and by that the bleaching is effected, wholly or partially, through the agency of the peroxide. Ozone is mentioned in the Provisional-no doubt in ignorance of Frichot; it is excluded 55 in the Complete. One may rightly disclaim in the Complete Specification. Frichot's Specification did not anticipate the Claim. Then Frichot cannot be In the Matter of Andrews' Patent. considered in the light of disconformity at all. (Bailey v. Roberton (L.R. 3 App. Cas. 1055) and Nuttall v. Hargreaves (8 R.P.C. 450; L.R. (1892) 1 Ch. 23). The Courts are not inclined to find disconformity. [Frost on Patents, 3rd edition, vol. I., page 194, was referred to, and Ward Bros. v. Hill & Son (18 R.P.C. 481; 20 R.P.C. 189) was cited by VAUGHAN WILLIAMS L.J.] The Appellants 5 did not in terms waive the objection to the absence of sufficient Particulars of disconformity. The Respondents did not ask for leave to amend; they asked questions that made it useless, and the point was never raised. [Graham K.C., said that at the hearing the issue of disconformity was raised at once, and, no objection being taken, the Petitioners assumed that they were entitled to waive 10 the point, and that an application to amend was unnecessary.] If alternative reagents are mentioned in the Provisional Specification the omission of one of them in the Complete does not constitute disconformity. Frichot's Patent was simply for the use of ozone; it was a worthless Patent and so cannot be an anticipation (Hills v. Evans 31 L.J., N.S., Ch. 457). [FARWELL L.J., referred to Lyon v. 15 Goddard (10 R.P.C. 121, 134).] [VAUGHAN WILLIAMS L.J.-A Patent for a process, such as that for the extraction of aluminium from clay, which did it perfectly but yielded so narrow a profit as not to attract much capital, might well be an anticipation, but it need not be a commercial success.] Yes; but the process must be an effective one, although expensive. It is said that Frichot 20 showed that oxidation generally was required for bleaching flour, and therefore that that sufficiently indicated nitrogen peroxide. That is not correct. [The judgment of Lord Halsbury in Badische &c. Fabrik v. Levinstein 4 R.P.C. 461 was referred to.] 25 Judgment was reserved, and was delivered on the 26th of March 1907. VAUGHAN WILLIAMS L.J.-This is a Petition for revocation of Letters Patent granted to John Andrews and Sydney Andrews for improvements in conditioning or improving the quality of recently ground flour, semolina, or the like. The Petitioners are the Alsop Flour Process, Limited, and the Respondents the Flour Oxidising Company, Limited. The Petition came on for trial before 30 Mr. Justice Kekewich, and he gave judgment for the Petitioners, and ordered the Letters Patent to be revoked. This is an appeal from the judgment of Mr. Justice Kekwich. The Particulars of Objection to the validity of the Letters Patent as originally delivered by the Petitioners were: (1) That John Andrews and Sydney Andrews were not the true and first inventors. (2) That 35 the alleged invention was not new. The anticipation chiefly relied on was Frichot (No. 21,971 of 1898). (3) That the alleged invention is not subjectmatter for valid Letters Patent, inasmuch as the action of gaseous oxidising agents on flour and the like described in the Andrews' Patent was well known at the date of the grant of the Patent. (4) Disconformity on the ground that 40 the invention described in the Provisional Specification consisted in exposing the flour to the action of nascent oxygen or to the action of a gaseous oxidising agent whereby nascent oxygen is produced in the flour. That the invention in the Complete Specification of the Andrews' Patent is a different invention from that described in the Provisional Specification, but the process claimed 45 in the first Claim is not a process which consists in exposing the flour to the action of nascent oxygen, or whereby nascent oxygen is produced in the flour. (5) That the invention, in so far as the use of gaseous oxides of nitrogen other than the peroxide and of a chlorine or bromine oxidising agent claimed, was of no utility for the purposes claimed. (6) That the in- 50 vention was old and had been published in the anticipations mentioned including Frichot. (7) That the Letters Patent were invalid for "insufficiency," that is to say, no directions were given whereby oxides of nitrogen other than the peroxide or of chlorine and bromine oxidising agents can be used so as to improve or condition the flour in the manner described 55 in the Specification, 66 66 66 In the Matter of Andrews' Patent. Mr. Justice Kekewich based his judgment on the ground that the Patent was bad for want of novelty. He regarded what the Patentees invented, or claimed to have invented, as being the application of oxidising agents capable of producing or rather liberating nascent oxygen in or to flour, and thought that they 5 regarded nascent oxygen as either emanating directly from the oxidising agent which they used or generated in the flour by means of that oxidising agent. There is no evidence whatever, that I can find, that artificial oxidation of flour or other cereals by nascent oxygen applied through the agency of oxidising agents was known before Frichot, although oxidation by air and long 10 exposure was of course well known. The words of the Complete Specification of Andrews' Patent beginning at line 13 are: "The invention consists "essentially in subjecting the flour to the action of a suitable gaseous oxidising agent whereby nascent oxygen or its equivalent is produced or comes "in contact with the flour. A very small quantity of the oxidising agent 15" suffices, so little indeed that the actual composition of the flour as shown by analysis is hardly perceptibly altered. The plan we refer to is to pass the flour through various conveyors whereby it is brought in contact with the gaseous "oxidising agent, and the Drawings we herewith append show the apparatus "which from long experiments we have found to act best with air carrying a 20" small quantity of gaseous nitric acid or peroxide of nitrogen. We do not, "however, limit ourselves to the use of nitric acid or nitrogen peroxide, as we "have found that chlorine, bromine, and other gaseous compounds capable of "liberating oxygen will act with more or less efficiency." The Patentees go on to say that ozone they have found practically unworkable, and its results 25 unsatisfactory, and says that they do not recommend it, but exclude its use. The Specification at line 30 states: "In our practice any of the other oxidising agents mentioned, but preferably nitric acid or peroxide of nitrogen is "caused to act upon the flour by forcing a current of air over or through the oxidising agent employed, which current of air becomes impregnated with the 30" oxidising agent, and is then brought in contact with the flour to be improved. "With regard to the quantity a very small amount of the oxidising agent is "sufficient. We herewith append Drawings of an apparatus which we have "found most suitable for use with nitric acid or nitrogen peroxide, the two cheapest and most preferable re-agents." The first Claim runs thus: "In the process of conditioning flour and the like, passing the same with full exposure "through an atmosphere containing a gaseous oxide of nitrogen or chlorine or "bromine oxidising agent in the gaseous or vapourised state." 66 66 35" As to the construction of Andrews' Specification, one possible way-and indeed, if one looks only at the body of the Specification, the natural way-in 40 which to construe the Specification is to read it as being for the application to the bleaching and conditioning of flour of any gaseous oxidising agent except ozone. I refer especially to that part of the Specification on page 2, between lines 9 and 30. But another construction is suggested by the words of the Claim, for looking at Claim 1 it will be seen that that merely 45 claims "a gaseous oxide of nitrogen, or chlorine or bromine oxidising agent "in the gaseous or vapourised state," and as there are mentioned in the Specification two oxides of nitrogen, and two only, that will limit the Claim to four things, giving a gaseous oxidising agent, namely, nitric acid, nitrogen peroxide, chlorine and bromine. 50 But there is considerable difficulty about the construction which necessitates reading the Claim without reference to the body of the Specification. The general rule is that the Claim and the Specification must be read together, and referring to the Specification I find on page 2, line 13: "The invention Ante, page 351, line 20 to line 37. In the Matter of Andrews' Patent. "consists essentially in subjecting the flour to the action of a suitable gaseous "oxidising agent, whereby nascent oxygen or its equivalent is produced or "comes in contact with the flour." I find also an express exclusion of the use of ozone as an oxidising agent. It is certainly difficult to avoid the view that the Claim read with the Specification extends not only to nitric acid 5 or peroxide of nitrogen, which the Patentees prefer to use, but to the oxidising agent employed, whatever it be (see line 33*); and again that it extends not only to chlorine and bromine, but to other gaseous compounds capable of liberating oxygen which act with more or less efficiency. (See lines 21 to 24†). Prima facie a Claim is in the nature of a disclaimer and must be read as if the 10 Patentee said, "I claim only the particular things which are put in it." But can this prima facie construction prevail where a Patentee indicates in his Specification that equivalents are permissible, and when he has got the express language, "We do not, however, limit ourselves to certain things as we have found that "other gaseous compounds capable of liberating oxygen will act," or where a 15 Patentee uses such words, as those that appear in lines 31 to 38‡ with reference to nitric acid or peroxide of nitrogen? 66 Mr. Astbury attempted to get rid of the effect of these wide general terms and to limit the Claim, even when read in light of the Specification, by saying that "when the invention as described in the Specification says 'Take all 20 "oxidising agents in a gaseous state except ozone,' it means all that fall within "those two classes, all gaseous oxidising agents which fall within the classes of "oxide of nitrogen, or chlorine or bromine oxidising agents. Take them all "except ozone. Ozone is not in fact one. Ozone is not an oxide of nitrogen, nor is it a chlorine or bromine oxidising agent. You see how carefully the 25 "Patentees have claimed it. You do not want to read into the Claim 'excluding ozone,' because they have excluded it by the words of their Claim. They 66 say 'a gaseous oxide of nitrogen '-ozone is not that- or chlorine or bromine "oxidising agent '-ozone is not that. So that they have claimed that in the way described in the Specification which brings in the full exposure of 30 "the minute amount, and the way to drop it in, and get the gaseous state, and " so on." 66.6 66 Having said this with reference to the decision of Mr. Justice Kekewich as to the nature of Andrews' invention, I now proceed to ask myself what is the nature of Frichot's invention, which Mr. Justice Kekewich held to be an 35 anticipation of Andrews' invention. Now, Frichot's is stated at the beginning of the Complete Specification to be an improved process for sterilising and blanching cereals and alimentary leguminous substances, and the meal produced therefrom. Frichot says :-" This invention relates to the treatment of wheat "and other cereals or alimentary leguminous substances, such as beans, and of 40 "the flour obtained therefrom used in the making of bread. The process is "intended to destroy the ferment contained in these substances, and to effect "the blanching or bleaching of the coloured elements found therein, rendering "their perfumed essential oils unalterable, and preventing them from subse"quently becoming rancid by sterilising all their parts." He proceeds with 45 these words "The treatment consists in subjecting the grain or leguminous "substances, or the flour obtained therefrom, to the action of nascent oxygen or ozone in the various forms of oxygenated water, ozonised water, ozonated oxygen, or ozonated air, either in the open air, or preferably in a closed "chamber, or again in a vacuum. For this purpose the products to be treated, 50 "namely, the wheat or beans, after undergoing the usual operation of cleaning "and being steeped or washed in the ordinary course; or the flour after 66 * Ante, page 351, line 40. In the Matter of Andrews' Patent. "undergoing the usual operations of grinding and bolting are introduced in "thin layers or, preferably stirred, in a closed chamber, where they are in "contact with an atmosphere of nascent oxygen or of ozonated oxygen, or "ozonated air, which acts immediately on their particles, sterilises them, 5 "bleaches their grey farinaceous parts, and prevents the essential oils from "undergoing any change. After this oxygenating or ozonising action, the "grain, leguminous substance, or flour, is left undisturbed, care only being "taken to shovel' or stir it from time to time, it is then dried in the open air, "or subjected to heat or cold for the purpose of removing every trace of 10 oxygen or ozone." 66 66 Frichot described Fig. 3 thus :- 66 'Fig. 3 is a horizontal chamber with a series "of superposed movable bearers which bring the grain, beans or flour in thin "layers into contact with currents of nascent oxygen, ozonated air or oxygenated "ozone." At line 50 he says-" During its descent from the top to the bottom 15" of the chamber a the material is subjected to continuous action and exposed "to the ascending current of nascent oxygen entering through the pipe c and. "flowing along the trays or bearers in the direction of the arrows. The "exhausted oxygenated fluid, which may have carried particles of flour with it, "is forced to pass through a depositing chamber k (Figs. 1 and 3), before 20" escaping into the outside air through the orifice S'; whilst the treated. "material runs away through the pipe S. Under these arrangements the "current of ozonated fluid flows in inverse directions to the grain or flour, but "it might pass through the chamber a in the same direction as the material to "be treated." Claim 1 in Frichot's Specification runs thus:-"A process of 25" treating wheat and other cereals, beans and other similar leguminous substances, "or flour obtained from such grain or leguminous substances, with the object "of producing white flour, suitable for bread making, representing from 75 to "80 per cent. in weight of the ground grain, consisting in exposing this grain, or "the flour obtained therefrom, to the action of nascent oxygen or ozone, or of 30" ozonised air or ozonised oxygen, oxygenated water in the open air, or, "preferably, in a closed chamber, by distributing it in thin layers against fixed or movable partitions in presence of a stream of ozonated fluid or a current "of pure, dry, cold air or oxygen, becoming ozonised by contact with metal "filings or fine wires placed in glass tubes connected with a high-tension 35" electric current as described." It was urged on behalf of the Petitioners that Frichot's Patent was an anticipation of Andrews' invention, because all oxidising agents which liberate nascent oxygen are chemical equivalents, and if a man says, "I propose to bleach flour by nascent oxygen which "is liberated from ozone," that is an anticipation of a subsequent Patentee 40 who says, "I propose to bleach flour by an oxidising agent of another "character which only operates, and can only operate, by the liberation of "nascent oxygen or its equivalent.' The answer to this is put in this way-That you cannot apply the doctrine of mechanical equivalents to a chemical Patent, because cannot predicate that all oxidising 45 agents will act in the same way, and cannot therefore predicate that in conditioning flour an oxide of nitrogen, or an oxidising agent of the chlorine or bromine type will act in the same way as ozone or any other oxidising agent mentioned by Frichot, and that, therefore, Frichot's Patent must be limited to the user of the agents denoted by him, and he cannot extend his Patent 50 to all suitable gaseous oxidising agents whereby nascent oxygen or its equivalent (whatever that may mean) is produced, or comes in contact with flour. It is said further that Frichot's Specification is a paper anticipation. Moreover, on the construction of the Specification it is argued that when Frichot uses the words, "nascent oxygen" he means "ozone." If this is so, and Frichot's Specification is 55 limited to the production of the condition of nascent oxygen by the use of ozone, the case for anticipation seems to fail, and the more so because the use of ozone |