## Facts

- Nusbaum obtained U.S. Patent No. 1,258,438 (applied for May 22, 1917; issued March 5, 1918) claiming both a process and a product involving a mixture of soft, uncured cheese with hard, cured cheese to produce a new cheese.
- The patent described an effort to produce a soft cheese that retained the body and spreadability of cream cheese while taking on the characteristic taste of a cured cheese (including Roquefort), a result the trade had treated as difficult or not practicable because of the different types of cheese involved.
- The specification began with a commercially made cream cheese (soft, uncured cheese made from whole or unskimmed milk, containing at least about 20% butterfat), with a preference for increasing the butterfat content to roughly 30–40%.
- P. E. Sharpless Co. (plaintiff), a Pennsylvania cheese manufacturer and the patent’s assignee, made and sold the patented cheese commercially in wrapped packages.
- Crawford Farms, Inc. (defendant), a New York competitor, made and sold a competing cheese product and used similar-sized packaging for its product in the marketplace.
- Sharpless sued in federal district court alleging (1) infringement of the Nusbaum patent (process and product) and (2) unfair competition based on the defendant’s packaging and marketing.
- The district court ruled for Crawford Farms and dismissed Sharpless’s bill; Sharpless appealed to the United States Court of Appeals for the Second Circuit.

## Issues

1. Whether Nusbaum’s claimed process and “composition of matter” (a soft cheese said to take on cured-cheese flavor while remaining a soft cheese) were patentable, rather than an unpatentable use of known ingredients and ordinary cheese-making operations.
2. If any valid patentable scope existed, whether Crawford Farms’ product or method fell within the claims.
3. Whether Crawford Farms’ use of similar packaging and marketing amounted to unfair competition by misleading buyers or passing off defendant’s goods as plaintiff’s.

## Decision

- The Second Circuit affirmed the decree dismissing Sharpless’s claims.
- The court held that the Nusbaum patent did not disclose a patentable invention; the asserted “new composition of matter” and method were treated as lacking patentable novelty/invention in view of what was already known and what skilled cheese makers could do using ordinary methods.
- Because Sharpless failed to establish a valid, enforceable patent monopoly on the product or method, the infringement claim failed.
- The court also rejected the unfair-competition claim, concluding that similarities in packaging, without proof of deceptive simulation or passing off, did not justify relief.

## Legal Principles

- A claimed “composition of matter” made from known food ingredients is not patentable when it amounts in substance to a mixture or flavoring result obtainable through ordinary skill and known techniques, rather than a new and patentable invention.
- A process claim fails when it rests on conventional manufacturing steps applied to known materials and does not add a patentable inventive step beyond routine operations in the art.
- Unfair competition requires evidence of deception, passing off, or a likelihood that buyers will be misled as to source; similarity in common or functional packaging features, standing alone, is insufficient.

## Conclusion

The Second Circuit affirmed dismissal of Sharpless’s suit, holding that Nusbaum’s patent for producing a soft cheese combining attributes of uncured cream cheese with cured-cheese flavor did not amount to a patentable invention and that the defendant’s similar packaging and marketing did not, without deceptive conduct, constitute unfair competition.


P. E. Sharpless Co. v. Crawford Farms, Inc., 287 F. 655 (1923)