In the Matter of Alsop's Patent.

"gaseous medium produced and introducing it into the presence of flour, for "the purpose specified.

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"3. 4. The process which consists in agitating flour and simultaneously subjecting the same to the action of a gaseous medium produced by the 5 "action of the flaming electric discharge or of the disruptive discharge of "electricity on air.

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"5.-The process of treating flour, which consists-in-subjecting it-to-the "action-of-a-gaseous-medium capable-of-producing a decrease-in-the-quantity "of the carbohydrate contents, and an increase-in-the-quantity-of-the-protein "eontents-thereof, substantially-as-described.

"6:-The-process-of treating flour, which consists-in-subjecting-it-to "the action-of-a-gaseous medium capable of bleaching the flour and of "simultaneously producing a decrease in the quantity of the carbohydrate " contents, and an increase-in-the-quantity-of-the-protein contents-thereof, 15 "substantially as-described."

A Petition was presented (under the authority of the Attorney-General) by the Flour Oxidizing Company Ld. for the revocation of the Patent, and the Petition was served on the Alsop Flour Process Ld., the owners of the Patent. The Petition alleged (inter alia) that the Petitioners were the owners of a 20 Patent (No. 1661 of 1901) granted to John and Sydney Andrews for " Improve"ments in conditioning or improving the quality of recently ground flour,

66

In the Matter of Alsop's Patent.

"semolina or the like," and that the Patent of Alsop was invalid by reason of the matters alleged in the Particulars of Objections.

The Particulars of Objections alleged that-(1) the Patentee was not the first and true inventor: (2) the alleged invention was not new by reason of (A) prior publication. The alleged invention had been published in this realm 5 prior to the date of the Patent in (a) the Specification of McDougall (No. 4643 of 1899); (b) the Specification of Andrews and Andrews (No. 1661 of 1901)the whole of each of these Specifications was relied on ; (c) the Specification of Johnson (No. 8230 of 1901); (d) Proceedings of the Royal Society, Vol. 30, page 88, "Formation of nitrites in the arc," by Professor James Dewar; 10 (e) Proceedings of the Royal Institution, Vol. 9, page 263 "Formation of nitrites in the arc," by Professor James Dewar. (B) Prior user-(ƒ) The use of an electric arc and of a flaming electric discharge to produce an atmosphere containing oxides of nitrogen by Professor James Dewar in the Royal Institution in the years 1879 and 1880; (g) the use of the Petitioners and their 15 licensees of the process of conditioning and whitening flour pursuant to the invention described in the Patent of Alsop continuously during the years 1901, 1902, and 1903 (3) the alleged inventions were not, in view of the matters set out in the previous paragraph, the subject-matter of valid Letters Patent : (4) the Patent was obtained by the false suggestion of the Patentee that by the 20 use for treating flour of a gaseous medium obtained by subjecting air to the action of an electric arc or to the flaming discharge of electricity a material decrease in the percentage of the ash and starch of the flour was obtained and a corresponding increase of the proteids. The said suggestions were wholly false and devoid of foundation; (5) by reason of the matters alleged in the 25 preceding paragraph the Specification did not sufficiently describe the nature of the invention and was misleading.

On the 17th of October 1905 the Respondents wrote to the Petitioners that, upon the hearing of the Petition, they proposed to make an application to the Judge for liberty to apply to the Comptroller to amend Alsop's Specification. 30

The Petition came on for hearing on the 15th of November 1905 before Mr. Justice Buckley by whom it was held that what was sought was amendment by correction or explanation and not by way of disclaimer, and liberty to apply was refused. The Respondents to the Petition having appealed, it was held by the Court of Appeal on the 16th of December 1905 that it was not clear that the 35 proposed amendment was not by way of disclaimer, and liberty to apply was granted; the appeal was allowed and the form of Order in Ludington Cigarette Machine Company v. Baron &c. Company (17 R.P.C. 214 at page 215) was followed. [See 23 R.P.C. 65.]

The Comptroller-General on the 17th of December 1906 allowed the Specifi- 40 cation to be amended by cancelling Claims 2, 5 and 6, but refused to allow the proposed amendments in the body of the Specification, and the Solicitor-General on the 26th of April 1907 affirmed the decision of the Comptroller-General [see ante p. 684].

The Petition and Particulars of Objections were amended on the 15th of May 45 1907. The material amendments were as follows:-In the amended Petition it was alleged that the Alsop Flour Process Ld. on the 23rd of April 1906 assigned the Patent No. 14,006 of 1903 to the Alsop Flour Process (1996) Ld. and that (paragraph 7)" the alleged invention of Alsop is for the treatment of flour by "acting thereon with a gaseous medium which will operate to bleach or purify 50 "the flour and cause a reduction of the quantity of the carbohydrate contents "and an increase in the quantity of the protein contents thereof. The gaseous "medium, to the action of which flour is in fact subjected, is an atmosphere "containing a gaseous oxide of nitrogen, such gaseous oxide of nitrogen being produced by a process perfectly well known at the date of the said Letters 55 "Patent of Andrews and Andrews, and such gaseous oxide of nitrogen is used "for and only effects the conditioning and whitening of the flour." In the

In the Matter of Alsop's Patent.

Particulars of Objections in paragraph (2) (A) an additional sub-paragraph (c1) stated that the Specification of Hogarth (No. 9059 of 1901) was relied upon as a prior publication. It was also alleged as follows-(5) No directions were given whereby the quantity of the carbohydrate contents of the flour could be 5 decreased and the protein contents thereof increased. (6) The alleged invention was not useful. (7) The Patent was invalid by reason of the prior grant of a Patent to James Nathaniel Alsop No. 10,538 of 1904, for which the date the 29th of May 1903 had been claimed and allowed. This objection was relied on against all the claiming clauses.

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The Petition as amended was served on the Alsop Flour Process Ld. and on their assignees, the Alsop Flour Process (1906) Ld., the owners of the Patent. The amended Petition came on for hearing on the 22nd of July 1907 before Mr. Justice PARKER.

Astbury K.C., Walter K.C., and Colefax (instructed by Bristows, Cooke, and Carpmael) appeared for the Petitioners; Cripps K.C., Bousfield K.C., and Jago (instructed by Hollams, Sons, Coward, and Hawksley) appeared for the Respondents.

Cripps K.C. for the Respondents.-The first Claim is one for a process for treating flour. The treatment of air with the arc gives a mixture, that bleaches 20 the flour. No such result as the Respondents obtain has ever been obtained before. The chemical mistake that was made, as to the alteration in the nutritive qualities of the treated flour, arose from the fact that the American chemist who made the analyses did not know that one of the samples had been treated differently. The Respondents do not limit themselves to a particular form of 25 apparatus. Their process is electrical and in strong contrast to the chemical process of Andrews and to McDougall's process; it is automatic, regular, and effective, and is a practical commercial success. It is said that the process of Andrews is an anticipation such that there is no subject-matter in the Respondents' process. Andrews' Patent was declared invalid.* When 30 the Andrews process is used for bleaching flour it gives an unsatisfactory result, but the Respondents' process gives a satisfactory result, showing that there is a difference. The erroneous statement as to the nature of the product is mere surplusage or a boast-the Claim is not for the product. There was no mala fides, and the Respondents disclaimed as soon as they could. 35 Andrews said that electric methods were too dangerous, and he excluded ozone. In the Andrews process nitric acid is carried over and gives a bad result. It is immaterial if the theory of the Patentee is wrong; if there were inaccuracy in the Claim that would be vital, but, there is not. The matter to be considered.is what the Patentee gave the public. The Andrews process is very little used. 40 In the Respondents' process, although there is an oxide of nitrogen, it is in a different combination from that in which it is in the Andrews process, and its action is different; it is produced under conditions that make it a success. The Respondents do not say that there is more than a very little ozone in their product. Sir J. Dewar said that there is no power of prevision in the matter. 45 The Respondents have only to show that they have patentable subject-matter. Their electrical process is ample subject-matter as against the Andrews process. The Petitioners have to show that an electrical process, which they said was unsuitable for use, was anticipated by their process. Assuming that the gaseous mixture is the same in the two cases, it may be that the Respondents infringe, 50 but they have not been anticipated. There is, however, such a difference in the gaseous medium as to cause the difference between failure and success. If the Andrews process is too long-continued, a yellow loaf is obtained. In McDougall's process the object was to obtain the greatest possible quantity of oxides of nitrogen for the manufacture of sulphuric acid, and a high voltage is used.

See 23 R.P.C. 441. That decision was, however, reversed and the Patent held valid by the Court of Appeal, ante, page 349.-J. C.

In the Matter of Alsop's Patent.

Hogarth's process is very different from the Respondents'; the flour never comes into contact with the air used. The plea of prior grant has never been effectively used. The best cases on process Patents are Lane-Fox v. Kensington &c. Company (9 R.P.C. 413 at page 416; L.R. (1892) 3 Ch. 424 at page 428); Boulton v. Bull (2 H. Bl. 463); Crane v. Price (1 Webs. P.C. 377; 4 Man. & Gr. 5 580); Ralston v. Smith (11 H.L.C. 223); Curtis v. Platt (L.R. 3 C.D. 135n); and Moore v. Thomson (7 R.P.C. 332). [The King v. Arkwright (1 Webs. P.C. 64); Lewis v. Marling (1 Webst. P.C. 496); Lyon v. Goddard (10 R.P.C. 345); and Dellwik's Patent (15 R.P.C. 687) were also referred to.] The Respondents asked to be allowed to do more than eliminate the Claims relating to an 10 increase of the nutritive properties. They can amend under Section 18 of the

Act of 1883 when the action is over; Section 19 ceases to apply after judgment (Cropper v. Smith 1 R.P.C. 254).

Evidence was given in support of the Respondents' case. J. Swinburne said that the error in the Patentee's analyses arose from its having been assumed that 15 the increased proportion of nitrogen in the treated sample existed in it as proteids. When, as an extreme test, the Andrew's and the Alsop processes were each worked for an hour upon 15 lbs. of flour, the loaf produced by the former process was much smaller than that produced by the latter and was admittedly unfit for food. The mixture of gases produced by treating air more or less 20 moist with an electrical discharge would be complex, and experiments would be necessary to ascertain if it would be useful for the treatment of flour. The gas obtained by the Andrews process, when passed into water, made the water acid; that from the Alsop apparatus did not. The electrically treated gas was ionised. Nitric acid, used in the Andrews process, was an inconvenient substance for 25 use by millers. The Andrews gas had a stronger smell than the Alsop gas. The Alsop process was less difficult to regulate than the Andrews process, and over-treatment by the latter process would injure the flour, but by the former process it would not. Alsop's electrical apparatus was novel, although there was no difficulty in producing an arc of the length used. It was 30 well known before 1903 that an ordinary arc produced nitrogen peroxide, but it had not been proposed to produce it, except as an accidental waste product with a large current arc. It had, however, been proposed to produce it as a useful product by long arcs with small current. In Andrews' process, the solution in the jar through which air was blown was a complicated mixture, 35 containing NO (which was oxidised by the air to N2O4 or NO2), N2O, and nitric acid. Alsop's process gave a gas practically free from nitric acid; any nitric acid that was present was produced by the oxides of nitrogen in presence of water; in Andrews' process nitric acid already formed would be carried over. Ozone had, probably, no bleaching effect on flour, but when it was supposed to 40 bleach it was produced electrically, and would be accompanied by oxides of nitrogen. McDougall's process was different from Andrews'; in it a small current at high pressure was used. It was well known that one could get oxides of nitrogen from that kind of arc. Johnson used about 1/1000th of the current of Alsop, a long thin arc and an alternating current; Alsop used a 45 continuous current, and an apparently less efficient machine, but obtained good commercial results. An apparatus more in the direction of Johnson's was found not to work well, unless there was an ozoniser in series with it. At the date of Alsop's Patent, an electrician could not predict what would bleach and what would not. In Hogarth's process light, or some other radiation, was used 50 for treating the flour. There was no difficulty in making oxides of nitrogen electrically; as a commercial process it had been abandoned in certain cases because the production from sodium nitrite was cheaper. The action of the electric arc on air would be to produce NO, NO3, NO, and N2O4, N2O, and, in presence of water vapour, HNO2 and HNO3. The Andrews gas would contain 55 more water vapour, which would tend to increase the amount of nitric acid, and that would lead to a marked difference, as regards the result, between the

In the Matter of Alsop's Patent.

Andrews and Alsop processes. After a short treatment only, the gases used in the experiments gave the same bleaching effect, which would be taken by a miller to show that they were the same, but over-treatment showed that they were different. A miller would not look for an increase of the proteids 5 as a proof that the composition of the gas used was correct. Andrews' Specification would not tell one that nitrogen peroxide by itself would work, as it was always mentioned with nitric acid. Andrews' Specification expressly discouraged the use of an electrical process in a mill.

G. Bowman, mill manager in the employment of C. S. Carr & Co. of Carlisle, 10 said that his firm had an Alsop plant in use and that it gave satisfactory results. The electrical plant was screened off from the flour, and the air from the arc was pumped into a large metallic vessel before being brought into contact with the flour.

J. Clegg said that he was in charge of the mill of the Dublin North City 15 Milling Company. He had been for two years foreman for the North Shore Milling Company, Liverpool, where the Andrews process was used. The process worked irregularly; the supply of gas required was so small that cold weather would stop it altogether unless great care was used. Sometimes flour adhered to the agitators and, being over-treated, became strongly coloured 20 yellow. The Dublin Company had an Alsop plant, and it worked satisfactorily. As to the strength of the flour-its capacity for taking water and giving an increased yield of bread-he found no difference between the two processes; but in the Andrews process the colour was less consistent. If the chemicals were right and were not frozen the Andrews process went on perfectly.

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J. A. Crabtree, foreman at the North Shore Mills, Liverpool, said that the Andrews plant in use at those mills worked well, and that the degree of bleach could be easily regulated.

W. Fearns, foreman at the mills of F. A. Frost & Sons, of Chester, said that the Andrews process, in use for about six months at those mills, was difficult 30 to regulate and would not give uniform colour.

J. Lee said that he had been employed at the Mersey Flour Mills at Liverpool, and that Andrews process had been worked there. The workmen complained, among themselves, of the pungent smell emitted, but that was when the working was in the experimental stage. If the supply of flour passing through 35 the apparatus was less than usual, the flour would be made too white. At Rigby's mill at Liverpool, where the witness subsequently was, there were three of the Andrews plants working steadily whenever they were required, but it was difficult to regulate the working of the process.

Colonel Mark Mayhew, governing director of Mark Mayhew, Ld., millers, 40 said that he had used Alsop's process and found that it was easily regulated.

Sir W. Ramsay said that, both in Andrews' and in Alsop's process, nitric oxide was the gas primarily produced. In the Andrews process the nitric oxide was in unstable combination with the ferrous sulphate, and when air was blown through the liquid, it came off mixed with air, water vapour and 45 nitric acid vapour. In Alsop's processes the NO, after cooling down from about 3000° to 500° or 600°, combined with oxygen to form NO2. Some of the NO combined with NO, to form N203, and the gas that passed on thus contained NO, NO2, a trace of N2O3, with air and moisture-and ozone, if copper electrodes were used. The conditions were different in the two processes and 50 one could not foretell what would be the result of the action on flour. It was said that there was a body NO3, stable only in presence of ozone. The oxide NO, did not come into the question at all; the dilution would be such that it would be all, or practically all, NO2. The Andrews gas, when solidified by cooling, gave a dark blue solid, showing the presence of N203-at all events in 55 the solid substance. After directly issuing from the apparatus there was much more of N2O3 in Andrews' case than in Alsop's. The Andrews gas would contain nitric acid vapour; the Alsop gas would probably not contain nitric