
    65 F. (2d) 169
    In re Muller
    (No. 3105)
    United States Court of Customs and Patent Appeals,
    June 5, 1933
    
      Frank M. Slough (Harry R. Canfield of counsel) for appellant.
    T. A. Hostetler (Howard S. Miller of counsel) for the Commissioner of Patents.
    [Oral argument May 1, 1933, by Mr. Canfield and Mr. Miller]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Bland, Judge,

delivered the opinion of the court:

Appellant has here appealed from the decision of the Board of Appeals of the United States Patent Office, affirming that of the examiner, denying all the claims of appellant’s application for want of patentability in view of the prior art, which application relates to carbonating water and syrup mixtures, and a method of bottling the same.

Claims 10 and 11 are illustrative and follow:

10. In carbonated water and syrup mixers, the combination of a source of carbonated water, a source of flavoring syrup, a fluid container adapted to contain a fluid mixture, conduit means operative to continuously effect independent flows of syrup and carbonated water from the said sources in definite proportions under artificial pressure to the said container, and simultaneously operative bottling mechanism adapted to successively effect flows of the carbonated flavored mixture into bottles.
11. The method of bottling a mixture of carbonated water and flavoring syrup comprising first carbonating water then, under conditions of artificial pressure, joining separate flows of carbonated water and syrup in definite proportions, and finally directing the mixture out of contact with, air and under pressure to the nozzles of a bottling machine, and continuously effecting the bottling of the mixture while continuously effecting the mixing of the separate syrup and carbonated water ingredients thereof.

The references relied upon are:

Humphrey, 1243068, Oct. 16, 1917
Humphrey, 1373817, Apr. 6, 1921

Appellant’s alleged invention consists in the apparatus for and the method of mixing and bottling a carbonated water- and syrup mixture, by first carbonating the water and then, under conditions of artificial pressure, joining separate flows of carbonated water and syrup in definite proportions, and mixing the same out of contact with the air and under pressure.

The patent to Humphrey, 1243068, relates to a process for producing carbonated beverages, in which process water and syrup are first mixed. The mixture is then carbonated and later dispensed by a faucet. The patent states as follows:

Heretofore, the practice has been to carbonate water as a first step and subsequently mix the carbonated water with other materials to produce a carbonated beverage.

It is there shown that it is well known in the art to carbonate the water before it is mixed with the other ingredients.

The patent to Humphrey, 1373817, relates to an apparatus for bottling carbonated liquids, in which a mixture of water and syrup is carbonated, fed to a supply tank, where a constant pressure is maintained on the mixture, and the liquid further charged by the gas.

The board held that it would be obvious for one skilled in the' art to organize the Humphrey bottling and carbonating mechanism to proceed by carbonating the water before mixing, and that it was old to carbonate drinks under pressure.

After final rejection, certain affidavits were filed, which the Board of Appeals refused to consider. These affidavits were to the effect that unusually good results and a higher gaseous .charge were obtained by first carbonating the water before mixing the ingredients

As no reason of appeal is based upon the refusal of the board to consider these affidavits, that question is not before us.

We concur in the views by the board. Appellant, in view of the prior art, has done nothing beyond the skill of one skilled in the art, and the decision of the Board of -Appeals is affirmed.  