Appeal from the District Court of the United States for the Northern District of the Eastern Division of Illinois; James H. Wilkerson, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The application for the patent in controversy was filed December 4, 1926. It relates to cosmetics and claims particularly a compact, which is a term applied to cosmetic rouge and powder marketed in cake form and adapted to be carried by the user in a container, from which the cosmetic composition is rubbed off the compact with a puff and applied to the face as desired.
All the ingredients used are old in the art of making face powder, and, if appellant's product be patentable, it must be by reason of the fact, if it be a fact, that appellant, by a different combination of old elements, or by using them in different proportions, has produced a new and useful result which entitles his product to protection.
From the record in this case we understand that the efficacy of any face powder, as such, is the same whether it be in the form of a loose powder or in the form of a compact, and the difference in form is largely a matter of convenience and preference.
There are two methods of making compacts: One is called the "dry form" method and the other the "wet form" method, and this difference is one of method rather than of substance.
"Dry form" compacts are formed by pressure of machinery and are fragile and easily broken in handling and shipping. Those made by the wet process are made practically without pressure and are not so hard and are less fragile than those made by the dry process. The latter are advertised as handmade in order to induce the public to believe that they are better because they are handmade, when in truth they are not handmade, and, so far as the beneficial effect on the face is concerned, they are not different from the dry form compact, provided the same face powder ingredients are used in each. No doubt there may be certain ingredients in the wet form compact, or different proportions of the same ingredients, which are not necessary and perhaps are not found in the dry-formed compacts. Those ingredients, or proportions of ingredients, however, neither add to nor detract from the efficiency of the finished product as a face powder, but, as we understand the evidence, they are used in the "wet form" compact because their use in that process renders the compact softer and less liable to break.
The principal ingredient of all face powder, so far as this record shows, is talc, and in its domestic state it always contains an impurity of white clay, called kaolin, in quite a variable degree. Such variation is present in tale taken from the same mine. The average kaolin content of ordinary commercial talc is perhaps five per cent., but it is very inconstant and sometimes reaches ten per cent. It has binding qualities, and, when used in large quantities, produces a hard and brittle compact.By replacing excess kaolin with chalk, and by using mineral oil, patentee claims to have obtained an entirely new and better result by eliminating the hardness and brittleness of the compact.
As an illustrative procedure in his specification he uses ninety-nine pounds of domestic talc, free from silica and mica, nine pounds of heavy imported chalk, and fifteen ounces of yellow ochre. These are mixed in a powder mill and sifted to remove grit, and then ground into a stiff paste in a mixer. To this is added one hundred cubic centimeters of a fatty-natured emollient, a proper amount of perfume oil to suit the taste of the user, and twelve hundred cubic centimeters of binder to each eighteen pounds of dry material. One emollient used is purified water-white mineral oil having a specific gravity of 0.868. In addition to the foregoing, sufficient water is included to make a heavy paste of the whole. The binder referred to is an intimate mixture of water and gum arabic in the ratio of twenty grams of gum arabic to one gallon of water. The pigment-carrying medium in the finished compact is plastic to such an extent that the jolting or possible flexure of the supporting plate encountered in the ordinary use of the compact will not chip or break it, and it is sufficiently friable to be capable of use with substantially the same effect as loose powder. It is not essential that all the different parts of the invention be employed in conjunction, as certain of them may be advantageously used in various combinations and subcombinations.
In a sworn answer to interrogatory No. 5, propounded to him by appellees, appellant stated that the following formula is a correct conversion to a common basis of the pounds, grams, cubic centimeters, gallons, parts and percentages stated in the specification of the single formula disclosed:
Domestic Talc 7,430 7,430