Submitted to: Inform
Publication Type: Popular Publication
Publication Acceptance Date: May 11, 2007
Publication Date: July 1, 2007
Citation: List, G.R., Jackson, M.A. 2007. Giants of the past: The battle over hydrogenation (1903-1920). Inform. 18:403-405. Technical Abstract: The Journal of Industrial Engineering Chemistry (volume 13, February 1921) carried, in part, the following note, "The United States Supreme Court, on December 6, 1920, handed down an important decision in favor of the defendant in the 'Hydrogenated Oil Case' of Proctor and Gamble vs. The Brown Company (formerly Berlin Mills Co.) reversing the Court of Appeals and holding with the District Court that claims 1 and 2 of the Burchenal patent no. 1,135,351, assigned to Proctor and Gamble Company, are invalid." Some 85 years have passed since this landmark decision. This article will review the chain of events leading up to the aforementioned court decision. Hydrogenation of organic substances in the gas phase was discovered by Sabatier in the latter part of the 19th century and applications to the liquid phase had been patented by Normann both in Britain and Germany in 1903. The British firm of Joseph Crosfield and sons, who acquired the rights to the Normann patent, began an extensive campaign to interest European soap manufacturers in the technology, hoping to sell the patent rights for profit. According to Joseph Wilson (The History of Unilever in two volumes), the struggle over the Normann patents in Europe were equally intense as the litigation in America that followed. By 1907, Crosfield had carried out sufficient research to bring their hydrogenation technology to the United States. By November 1907, Edwin Kayser, a Crosfield chemist, took up residence in Cincinnati, Ohio and, shortly thereafter, contacted John Burchenal, business manager of Proctor and Gamble. By early January 1908, a business arrangement had been made. Kayser then filed two U. S. patents applications; (U.S. 1,004,034, Process for Making Metallic Catalysts and U.S. 1,004,035, Method for Saturating Fatty Acids or their Glycerides with Hydrogen, granted September 11, 1911). Both patents were assigned to Proctor and Gamble Co., Cincinnati, Ohio. There can be little doubt that, at this point, the goal was to completely harden oils for the express purpose of producing raw materials for soap making. The work was kept secret except for Burchenal, Kayser and Wallace Macaw, whose company (Georgia Mills and Elevator Company) had been acquired through a merger with Proctor and Gamble. By late 1910, John Burchenal had filed two U.S. patent applications (Food Products 1,135,351 and 1,135,951, both granted April 13, 1915). Note that about five years elapsed from the time that the patents were applied for until their issuance. The former is based on partial hydrogenation of cottonseed while the latter is based on blending completely hydrogenated cottonseed oil with liquid cottonseed oil. Originally, the product was named "Krispo" followed by "Crsyt," but settled for Crisco (an acronym for crystallized cottonseed oil) because of trademark and for obvious religious reasons. "Krispo" was similar to a trademark registered to Schwarzchild and Sulzberger, no. 40,317; Cooking Fats and Lard. By June 1911, Crisco Shortening appeared on grocery store shelves and was the object of a massive advertising promotion. Housewives of this era cooked with lard and butter. Thus, Proctor and Gamble faced the challenge of convincing them that the new product was superior. It was advertised as a healthier alternative to animal fats and more economical than butter. In addition, a cookbook containing 615 Crisco recipes was distributed free of charge to American housewives. Ads taken out in the Ladies Home Journal touted Crisco as better than butter for cooking, as well as lighter and flakier fried foods. In 1911, $180,000 was spent on advertising and about $400,000 per year in the 1912-1915 time frame. Some 3,500 circulars and products were furnished to jobbers and, by the winter of 1911, Proctor and Gamble had shipped cases of 6 1-1/2 lb containers to about 15,000 retailers in America. Crisco became popular almost immediately. Sales in 1912 amounted to 2,600,000 lbs and had reached 60,000,000 lbs by 1916. The plaintiff, the Berlin Mills Company is located in northeast New Hampshire in the town of the same name. By the mid 19th century, Berlin Mills had become a thriving business town because of timber, water and rail facilities. The company produced paper from local forests and produced hydrogen as a by product. Hugh Moore had become Chief Chemist at Berlin Mills Company in 1903 and, by the fall of 1913, began work to utilize hydrogen for the production of edible products. Within a year, Moore filed two patent applications; (Process and Apparatus for Hydrogenating Unsaturated Compounds and Methods and Means for Hydrogenation for Hydrogenating Unsaturated Compounds). Ultimately, the patents were issued; 1,121,860 on 12/22/1914 and 1,184,480 on 5/23/1916. By September 1914, Berlin Mills had begun marketing a shortening product later trademarked (105,415, July 20, 1915) as "Kream Krisp." Initial production began at about 2,000 lbs/day, but later had reached 30,000 lbs/day, as will be discussed in detail later. Crisco was produced in a batch hydrogenation mode much like today, while Kream Krisp was produced by a continuous process. Kream Krisp was marketed as a wonderful new vegetable shortening, "Not only is Kream-Krisp a pure food, wholesome, appetizing, better than butter for all good cooking, but is also a great money saver. It will cut your lard and butter bill squarely in two." A loaf cake (all ingredients) baked with Kream-Krisp cost about 15 cents in 1915 compared to about 24 cents for butter. The cost of Kream-Krisp alone was 16 cents/lb compared to 44 cents/lb for best dairy butter. Kream-Krisp had the appearance of a high grade unsalted butter. Scraped surface heat exchangers for crystallizing and plasticizing shortenings were not developed until the late 1930's. The technology of this era consisted of chill rollers heretofore used for plasticizing lard and lard/vegetable oil compound shortenings. A newspaper clipping of June 1915 described foods including doughnuts, cake, muffins and pretzels made with Kream-Krisp as delightful and the secret attributed to the shortening. A Kream-Krisp booth, set up at the Maine State Exposition in Portland, Maine in June 1915, distributed nearly 12,000 doughnuts over a week's time. By February 1915, Proctor and Gamble was aware that Crisco Shortening had a strong competitor. John Burchenal drafted a polite letter to Berlin Mills Company to the effect that Kream-Krisp infringed on the Proctor and Gamble patents, under which Crisco was being manufactured, and suggested that the two parties meet to discuss the matter. Despite numerous attempts on Proctor and Gamble's part to meet with Berlin Mills during the period February-September 1915, the law firm of Allen and Allen, representing Proctor and Gamble, began a suit claiming infringement of the Burchenal patent 1,135,351. Part II, to be published at a later date, covers the litigation of this case.