Crowell v. Harlow

Lowell, J. There is so little doubt upon the main issues of this case that patentability lias been the only question argued. The witnesses on both sides agree that in practicing the important and valuable .industry of drying and curing cod and haddock for the markets at home and abroad, down to the year 18t>9, the fishermen and others engaged in that industry prepared the fish by splitting them, removing the fins and offal, and taking out the principal bones, and in that state the fish were salted and d riod, and presented the appearance with which we are all familiar. They fully agree that the patented method is a great improvement upon that before practiced. If this method were merely to remove more of the bones, or to skin the fish, or both, it would seem to require and prove only the exercise and skill in handling the lisli, and taste in making them attractive. So, the packing in boxes is clearly no invention. The evidence goes further, and proves that Atwood made a discovery; that there is in the fish, to which his invention is applicable, what he calls a mucous membrane, and what others call an inner skin, or a sort of film, and that the removal of this membrane is not necessarily effected by skinning the fish, unless attention is given to this inner skin, and that the presence of this inner skin is highly injurious to the keeping quality of salt fish. It is singular that such a dip [142] covery should he Diade at this late day, but I have no right upon this record to deny it. After this discovery was made, it would probably occur to any one interested to apply it in the art of curing fish, and the mode of application is simply to remove the membrane. I see no reason why the person who improves the art of curing fish by removing a part of the animal not before known to be injurious, but in reality so, should not have a patent for it. It is gratifying to know that the patentee is the person who made the discovery; but, in the absence of a theft, the one who communicates the fact to the public, and shows its application, would be, I should suppose, an inventor — at least under the older decisions — and, a fortiori, the discoverer of the fact. If the fact itself were well known, there might be no invention. For instance, to cure hams by salting and smoking would not sustain a patent if the virtues of salt and smoke were well known, and had been applied in analogous arts. It would not be invention to salt a fish more or less thoroughly. But a patent might properly be granted for curing fish with a substance which had never before been used for any similar purpose, and which would effect the old result of curing the fish in a better or cheaper way, of which last fact the infringement would be sufficient evidence. I am unable to distinguish between adding and taking away, if the result is to improve the art. Decree for the complainant.