US 128440

I'll run targeted searches for this specific number before summarizing.

Let me check for any litigation or CAFC activity and confirm the record.

Search Results — Patent No. US 128,440

Scope note: I searched for the exact identifier 128440 / US 128440 A and for corresponding 2026 CAFC docket activity. No CAFC 2026 docket, district-court case, or PTAB/IPR proceeding involving US 128,440 exists in any result returned. This is expected and not a search failure: US 128,440 issued in 1872 and expired in 1889, roughly 93 years before the Federal Circuit was created (Federal Courts Improvement Act of 1982), so no Article III appeal from this patent is legally possible. I found no assignee record, no litigation history, and no family members — only a single US family application (Google Patents family ID 2197859).

All substantive data below comes from the authoritative record at https://patents.google.com/patent/[US128440](/patent/US128440)/en.

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Bibliographic Data

Identifier caveat (per strict literal-reading rule): The record also renders internal Google IDs US128440D and US128440DA. These are database record identifiers for the same document, not separate patents. Two OCR artifacts in the signature block render the inventor as "CARL VON VVITZLEBEN" (double-V standing in for W); I have not auto-corrected the patent number itself.

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Abstract

There is no abstract. Abstracts were not part of US patent practice in 1872, and Google Patents displays none for this document. The panel Google labels "Definitions" is simply the OCR'd specification text, not an abstract. Do not treat it as one.

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Claims — Plain-Language Overview

US 128,440 carries two claims, both independent (no dependent claims; 1872 practice).

Claim 1 — Apparatus (the physical separator).
A circular steam pipe sits at or near the bottom of the pan in which the saccharine liquid is heated. The pipe is perforated only around part of its circumference (the specification specifies three-fourths, in oblique rows forming a spiral). Combined with that pipe is a tubular sieve rising at or near the center of the pan, sealed at its bottom by a valve. Steam jetting from the pipe's perforations spins the liquid, which speeds separation of impurities; once separated, the clear liquid is drawn off through the valve at the bottom of the tubular sieve.

Key structural limitations to note: (a) "at or near the bottom of the pan"; (b) "perforated at a portion of its circumference only" — a partial-perforation limitation, which is what produces the rotary rather than radial flow; (c) the sieve is "at or near the center"; (d) the valve is at the sieve bottom, and discharge is through the sieve so separated impurities are retained.

Claim 2 — Process (the method of use).
Separating impurities from saccharine liquids by exposing the liquid to steam applied so as to both heat the mass and impart a rotating motion, causing the impurities to rise to the surface. This is a broad, two-function steam-application claim — the same steam does the heating and the stirring.

Practical note on the claim set: Claim 2 is written to recite only the functional consequence (heat + rotation → impurities rise). It does not expressly recite the perforated circular pipe, the partial circumference, or the tubular sieve, so under modern §112 practice it would likely face a written-description/enablement challenge. That is an observation about the claim's scope, not a validity holding — no court has ever adjudicated it.

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Specification Summary (context for the claims)

• Apparatus letters from the drawing: A = copper pan; B = circular perforated steam coil/pipe at the pan bottom; C = connecting pipe; D = steam supply; E = stop cock; F = tubular sieve rising from pan center; G = plug/valve; H = rod extending up through the sieve; I = discharge pipe to filtering apparatus; K = support beams; pan wrapped in a wooden jacket.
• Stated operating process: Pump liquid into the pan; admit steam until the liquid reaches 27°–28° Baumé (OCR renders this "27 O to 280 Baume"; read literally as printed, the degree/zero characters are garbled); increase steam to induce a whirling motion that carries impurities to the surface; reduce steam; skim the risen impurities with a perforated scoop; repeat the steam increase until scum formation ceases; shut off steam; discharge by raising plug G.
• Stated theory of invention: sugar has the property that impurities mixed with it tend to separate at high temperature, "particularly if… a violent rotating motion is imparted." This is the operative principle both claims rely on.

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Citations and Family

• Backward citations (prior art cited against it): none listed.
• Cited By (1): US 2,966,839 A, "Basting device," James A. Ferrara, filed 1958-01-28, granted 1961-01-03, flagged as cited by examiner. ⚠️ Uncertainty flag: a 1961 poultry-basting device citing an 1872 sugar-clarification pan is topically anomalous; this entry is likely a citation-listing or OCR artifact rather than substantive art. I would not rely on it without checking the face of US 2,966,839.
• Similar documents (topically adjacent, not prior art): US 34,236 (Brainerd, evaporating pan for saccharine liquids, 1862); US 36,849 (1862); US 841,030 (crystallization, 1907); US 1,578,221 (clarifier for saccharine solutions, 1926).

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Confidence and Gaps

High confidence: title, inventor, issue date, expiration date, claim text, specification contents, absence of assignee, absence of any CAFC/PTAB litigation.

Explicit gaps — I do not know these and will not fabricate them:

1. Actual filing date — not present in the record.
2. Application/serial number — field is blank.
3. Examiner name — not recorded.
4. Original 1872 US classification — only modern retro-applied CPC codes are available.
5. Whether any (now-unenforceable) assignment or reissue exists — no assignment data returned.

I'll run targeted searches against litigation-specific sources for this exact patent number before reporting.

Initial searches returned only unrelated documents that happen to share the number "128440" (a Japanese laid-open publication, a PCT publication, an Argentine patent, a Buenos Aires court record, a Russian arbitration case). Let me query litigation-specific sources directly.

Still no litigation results for the actual patent. Let me run a few final targeted queries on docket-specific sources and disambiguate a potential near-match I noticed.

Litigation Search Report — US Patent No. 128,440

Bottom line: No litigation is known involving US Patent No. 128,440.

I found zero district court cases, zero Federal Circuit appeals, zero PTAB/IPR/PGR proceedings, zero ITC investigations, and zero case numbers of any kind in which US 128,440 appears as a patent-in-suit. This is not a search failure — it is the legally correct and expected result.

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What I searched and what came back

No case is reportable, so the requested per-case table (plaintiff, defendant, jurisdiction, case number, filing date, outcome/status) is empty by necessity. I will not populate it with near-matches.

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Why no litigation exists — three independent bars

1. The patent expired in 1889. The face of the record shows anticipated expiration June 25, 1889 — 17 years after the June 25, 1872 issue date — and legal status "Expired – Lifetime." There has been no enforceable right to assert for roughly 137 years. (Source: https://patents.google.com/patent/[US128440](/patent/US128440)/en)

2. The Federal Circuit did not exist. The Federal Courts Improvement Act of 1982 created the CAFC. US 128,440 had already been expired for 93 years when the court that hears all patent appeals was established. Any appeal "from" this patent is legally impossible.

3. PACER coverage does not reach it. Electronic district-court docketing began in the late 1980s/early 1990s; this patent's enforceable life ended in 1889. There is no docket to query.

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Explicit disambiguation — these are NOT US 128,440

Several results are numeric look-alikes that a careless search could misreport. Flagging them so they are not confused with the patent:

• The "'128 and '102 patents" in the Eon / King Pharmaceuticals / Elan metaxalone ANDA litigation (E.D.N.Y., discussed in the CourtListener RECAP document at gov.uscourts.nyed.238468). Those are modern seven-digit patents whose numbers end in 128 and 102, not US 128,440. This is the single most dangerous false positive in the result set — the shorthand "'128 patent" is common in pharmaceutical ANDA opinions.
• U.S. Patent No. 8,316,128 (Microsoft Outlook litigation, E.D. Tex., via RPX Insight) — a wholly different patent.
• JP 2011-128440 A, JP 2006-128440 A, WO 2010/128440 A1, AR-128440-A1 — foreign/non-US publications containing the digit string "128440" in an entirely different numbering system.
• Case No. А40-128440/2024 (Moscow Arbitral Court, administrative matter) and Registro n° 128440 (La Plata civil chamber, Argentina) — court docket numbers, not patent numbers.

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Note on the Cited By entry in the prior section

The previously generated analysis flagged US 2,966,839 A ("Basting device," Ferrara, 1961) as anomalously citing this 1872 sugar pan. Consistent with that section's uncertainty flag: this is not litigation, and it is almost certainly a citation-listing artifact. Nothing in my searches corroborated a substantive connection.

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Confidence and limitations

• High confidence: No litigation, and none is legally possible for the reasons above. This is consistent with — and does not contradict — the previously generated section.
• Methodological limitation, stated plainly: My access was through a general web search tool, not authenticated direct queries against the Unified Patents litigation portal, PACER, or CourtListener. Two of my planned follow-up queries were cut off by a step limit. I therefore cannot claim to have personally executed query strings inside those databases. However, the three structural bars above are dispositive independent of database coverage: a patent that expired in 1889, predating the Federal Circuit by 93 years, cannot have a case on any modern docket. Where I do not know something with certainty, I say so rather than infer it.

If you want, I can draft the same "not a prior art / not a litigation reference" disambiguation note for one of the similar documents (e.g., US 34,236 or US 1,578,221) in case those numbers come up in a later search.

I'll verify the structured "no proceedings" record against live sources before writing this up.

Two more checks: a direct PTAB/ODP-style query and a legal-eligibility sanity check on whether AIA trials could even reach a patent that expired in 1889.

PTAB / AIA Trial Sourcing Note

Canonical list used: the structured "PTAB proceedings on file" block in this prompt (USPTO Open Data Portal ingest), which returns zero AIA trial proceedings for US 128,440.

Live verification performed 2026-09-27:

• Keyword searches combining the patent number, inventor name, title, and "IPR / PTAB / petition" returned no petition, no institution decision, no FWD, no termination referencing this patent. Hits were either unrelated patents with similar numbers (e.g., U.S. 8,769,440; U.S. 8,128,244; JP 2006-128440; AR-128440-A1) or non-PTAB documents.
• No Federal Circuit or district-court record exists for this patent (consistent with the patent-summary section already generated).
• Sources checked: PTAB E2E / PTAB Center, USPTO PTAB Decisions, CourtListener, Google Patents US128440A.

Per instructions, I am not inventing proceeding numbers. There are none to report.

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Proceedings overview

Total AIA trial proceedings on US 128,440: 0. Breakdown by status: 0 active / 0 claims invalidated / 0 claims sustained / 0 settled / 0 institution denials. The defensive posture is not "the patent is hardened" — it is "there is nothing left to attack." US 128,440 issued 1872-06-25 and expired 1889-06-25. It has been in the public domain for roughly 137 years. Any demand letter citing claims 1 or 2 is not a licensing opportunity; it is a signal that the sender is either mistaken about the patent number or running a bad-faith collection scheme. Claims 1 and 2 remain UNSETTLED as a matter of record, but the reason is that nobody has had a pecuniary reason to challenge them since the 19th century — not because they survived adversarial testing.

Why the count is zero — and whether an AIA trial is even legally possible

No proceedings were instituted, denied, settled, or adjudicated. No § 315(e)(2) estoppel has attached to anyone — a point that favors a defendant procedurally but is academic given the patent has been unenforceable since 1889.

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Strategic summary

Claim status: untested, not sustained. This is the critical distinction. Absent an FWD, there is no claim-level adjudication — no canceled claims, no confirmed claims, no Board construction of "perforated at a portion of its circumference only" or of the § 112-questionable functional claim 2. Do not represent to a court or an adversary that claims 1–2 were "upheld." They were never examined adversarially by any tribunal. What is dispositive is the expiration date: as of 1889-06-25 the patent term ended, and with it every right to exclude.

Estoppel landscape: empty, and irrelevant. Because no IPR, PGR, or CBM was ever instituted, no petitioner or privy carries § 315(e)(2) estoppel, and every prior-art ground remains theoretically available. This cuts both ways for a current defendant: you face no estoppel, but you also have no FWD to lean on. Any invalidity theory you advance would have to be built from scratch on an 1872 patent — a task no one should undertake, because the cheaper and complete answer is that the patent expired 137 years ago.

Pattern signals: none. No repeat petitioner, no serial petitions, no defensive aggregator (no Unified Patents, RPX, or Askeladden involvement), no patent-owner appeal activity. There is no patent owner. The patent-summary section flags one anomalous data point — US 2,966,839 ("Basting device," Ferrara, 1961) listed as citing US 128,440 — which I previously flagged as a likely citation-listing/OCR artifact and which does not constitute a PTAB proceeding or any challenge.

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Recommended next steps

There is no PTAB proceeding to link to, and I cannot link to an FWD that does not exist. Instead:

1. Do not search for a PTAB defense — assert expiration and public domain. The complete answer to any assertion of US 128,440 is: (a) issued 1872-06-25, (b) expired 1889-06-25, (c) term-limited under the pre-1995 17-year rule, (d) no reissue, extension, or PTA could revive it, and (e) the Google Patents legal-status field reads "Expired – Lifetime." Cite https://patents.google.com/patent/[US128440](/patent/US128440)/en.
2. If a demand letter cites this number, treat it as a fraud/knowledge problem, not a validity problem. Escalate to counsel with the correspondence; a letter asserting live rights in a 137-year-expired patent is strong evidence of bad faith and may be actionable. Check whether the number was a typo for a live patent before responding on the merits.
3. If you nonetheless need an adversarial record (e.g., a client insists on a defensive paper trail): ex parte reexamination under 35 U.S.C. § 302 remains available to any requester at any time and is not an AIA trial — but it would be a waste of filing fees on an expired patent. This is outside the scope of the PTAB analysis and I flag it only to close the loop.
4. On the "absence as signal" framing in my instructions: I want to flag explicitly that this maxim — "well-asserted patents eventually attract IPRs" — does not apply here in the way it normally would. The zero-count here is not the silence of a quietly respected patent; it is the silence of a document nobody has had standing or reason to challenge since the Hayes administration.

Confidence: High on the zero count (canonical ODP block plus independent web verification). High on the expiration date and on the PGR/CBM categorical bars, which are statutory. Moderate-but-stated on the IPR technical availability point, which I frame as a legal edge case rather than a practical option.

Explicit gap: I have not verified the PTAB E2E docket directly through an authenticated USPTO query — only via web search and the provided ODP block. Given the categorical bars above, I would not expect an authenticated query to return anything, but I did not run one and do not want to overstate the verification depth.

I'll verify the assignment-database coverage window and check for any records tied to this patent number before reconstructing the chain.

Confirmed the database window is post-1980. Let me check the pre-1980 record situation and whether the inventor had a determinable employer.

Two useful findings so far: the online assignment database begins August 1980, and the inventor was chief engineer of a sugar refinery. Let me confirm both.

Assignment / Ownership Reconstruction — US 128,440

Bottom line up front: The USPTO Assignment Center (and the legacy Assignments on the Web index) returns no records for US 128,440, and it cannot return any. The online assignment database begins August 1980; this patent issued 1872-06-25 and its term expired 1889-06-25. There is no reel/frame, no correspondent, and no assignee to report. Everything below documents why, plus the one ownership-adjacent fact that is recoverable (the inventor's employer).

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Inventors

Pattern check — no anomalous inventor-departure signal. The classic fire-sale precursor (all inventors exiting the assignee within 12 months of filing) is not present. Von Witzleben remained at the Jacobs refinery for roughly 25 years after the 1872 filing, still documented there in the 1882 Potsdam address book, leaving only when the refinery ceased production in 1897. This is the opposite of a rapid-departure pattern.

Two provenance caveats worth stating rather than smoothing over:

1. The patent recites the inventor as "of Berlin, Prussia"; the biography source places his employment in Potsdam (≈25 km away, same Prussian province). I am not auto-correcting either — they may both be true (residence vs. works), but I have not verified a Berlin residence.
2. The biography [germanhuntingguns.com, a firearms-history site] is a secondary, hobbyist-adjacent source, not an academic or corporate record. The DRP 36218 / 73672 / 96460 patent numbers it cites are consistent with the dates, which raises my confidence moderately, not conclusively.

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Original assignee

There is none. US 128,440 issued unassigned. No assignor/assignee line, no "assignee of" recital, and no "Letters Patent granted to X, assignee of Y." Google Patents likewise surfaces no assignee field and no current-assignee field for this document.

The closest real-world ownership fact is the employer, not an assignee:

• Entity: L. Jacobs sugar refinery (Zuckersiederei Ludwig Jacobs), Alte Fahrt, Potsdam — founded 1826 by Ludwig (von) Jacobs; at its height the largest/most modern refinery in Germany, ~225–500 workers.
• Product embodiment: Yes, in a practical sense but not documentable as such. The patent describes a refinery clarifier pan — a production plant item, not a consumer product. The operating conditions in the specification (27°–28° Baumé, skim scum with a perforated scoop) are refinery-floor process directions. Whether the Jacobs plant actually installed this specific pan I cannot confirm from any record.
• Primary line of business: cane sugar refining from the West Indies, converted to beet sugar after ~1837; also an early adopter of steam power (first steam engine in Potsdam, 1833).
• Current status: Dissolved. Production at the Alte Fahrt site ended 1897; the plant was largely demolished 1900–1905; remaining buildings destroyed at the end of WWII in 1945. There is no successor entity, no bankruptcy estate holding the patent, and nothing to acquire — the patent had already been expired for eight years when the business closed.

⚠️ One unresolved archival snippet (do not over-read): a Brandenburg state-archive transcription of contemporary newspaper reports contains the phrase "Der Konkurs der Zuckerraffinerie von L. von Jacobs in Potsdam…" (a Konkurs, i.e. insolvency/administration). I could not date this snippet or confirm it refers to the patent-era business, and it says nothing about patent assets. It is noted only so the record is complete; it is not evidence of a patent fire-sale.

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Assignment timeline

The USPTO Assignment Center has no records for US 128,440. Per the instruction to stop after this section when no records exist, the remaining sections are deliberately abbreviated — but the judgment is not "no data," it is a structural impossibility, which I can state with high confidence:

Implication: any assignee chain for this patent would have to be reconstructed the hard way — a NARA pull of the 1872–1957 bound volumes (National Archives, Washington National Records Center, Suitland MD), indexed only by liber/page, with no electronic correspondent field and no post-1980 reel/frame. I did not perform that NARA pull, and I will not invent liber/page cites for it. Google Patents' legal-events table lists only Granted → Published → Anticipated expiration, with no assignment events — corroborating the absence, though Google's event table is not an authoritative title record.

Search-hygiene warning for anyone re-running this: "128440" is a heavily collided token. My own searches for it returned WO 2010/128440 (a 2010 Philips lighting PCT), WO 2018/128440 (a 2018 Korean telecom PCT), and Journal of Hydrology 613 (2022) 128440 — none related. Any future tool reporting a "hit" on this number needs to be checked against the 1872 publication date before it is believed.

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Timeline diagram

timeline
    title Ownership of US 128440
    1872 : Issued to Carl von Witzleben
         : No assignee named on the patent face
    1889 : Patent term expires
    1897 : Jacobs refinery ends production
    1980 : USPTO online assignment database begins
    2026 : Zero assignment records exist

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NPE / troll-pattern signals

Marked on the record as searched, with the caveat that a pre-1980 vacuum cannot affirmatively clear signals the way a populated chain can.

1. Shell-entity transfer — not present (and definitionally impossible). No post-issuance assignee exists; there is no LLC, no registered-agent address, no reel/frame.
2. Known asserter in the chain — not present. No assignee at all, so no comparison against Acacia, Marathon, IV, Wi-LAN/Conversant, Round Rock, etc. is possible or needed.
3. Repeat correspondent across the chain — not present. No correspondent exists because no recording exists. Nothing to flag.
4. Cascading transfers (<24 months through chained LLCs) — not present. The patent is unassigned on its face.
5. Pre-litigation transfer (within 6 months of first suit) — not present. No infringement suit naming this patent exists in any result; the patent is not in force.
6. Bankruptcy fire-sale — unclear, and moot. The unresolved Konkurs snippet above hints at an insolvency of the Jacobs business at some undated point, but no patent sale in any proceeding is documented, and the patent's term ended in 1889. Flagged as unresolved, not as a finding.
7. Privateering — not present. No operating company → NPE transfer exists; no SEC filing could exist (the "assignee" is a Prussian private firm dissolved in 1897, decades before the SEC).
8. Defensive aggregator (anti-NPE) — not present. No RPX/AST/LOT/OIN involvement; the patent predates all of them by ~100 years.

Context that suppresses every modern NPE reading: this is a pre-§112, pre-Federal-Circuit, pre-assignment-database artifact. Even a perfect record would be commercially inert — the patent expired 1889-06-25, 137 years ago. There is no live right to assert, license, or aggregate.

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Verdict

Insufficient data — with a documented substrate.

No assignment records exist for US 128,440 because the searchable USPTO Assignment Center begins in August 1980, 91 years after this patent's term expired (1889-06-25), and because the patent issued unassigned on its face — no reel/frame, no correspondent, no assignee. The single recoverable ownership-adjacent fact is that the inventor, Carl von Witzleben, was director/chief engineer of the L. Jacobs sugar refinery in Potsdam from 1870 until production ended in 1897, meaning the plausible chain of title runs to a defunct 19th-century Prussian refinery that has no successor entity and was largely demolished 1900–1905. I am flagging rather than fabricating the two things that would be needed to go further: a NARA pull of pre-1957 assignment volumes (per 37 C.F.R. § 1.12(a)(2)) and an untangling of the heavily collided "128440" token in any general search.

Verify at: https://assignment.uspto.gov/patent/index.html and https://assignmentcenter.uspto.gov/ (both will return zero rows for patent number 128440).

Sources: USPTO Assignment Database webinar · data.commerce.gov — Patent Assignment XML (1980–Present) · 37 C.F.R. § 1.12 · MPEP 301.01 summary — BlueIron IP · von Witzleben biography, germanhuntingguns.com · Tagesspiegel on Ludwig Jacobs and the Potsdam refinery · Google Patents US128440A

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Cross-reference note (no contradiction found): this analysis is consistent with the previously generated summary — that summary recorded "Assignee: None recorded" and "no litigation history." The only new material here is (a) the inventor's employer (L. Jacobs refinery, Potsdam, 1870–1897), which the earlier summary explicitly listed as a gap, and (b) the legal reason no assignment record can exist (the August 1980 database boundary plus the May 1, 1957 NARA handoff under 37 C.F.R. § 1.12(a)(2)), which upgrades that gap from "unexplained absence" to "structural impossibility."

I'll verify the USPTO record and check each citation associated with this patent.

I have the key citation evidence. Let me verify the remaining references and check for any true pre-1872 art.

Prior Art Analysis — US Patent No. 128,440

"Improvement in treating saccharine liquids" — Carl von Witzleben, Berlin, Prussia
Granted June 25, 1872 · Expired June 25, 1889

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Bottom line up front

US 128,440 has no backward citations — zero references cited against it. No examiner-cited prior art, no applicant-cited art, no "References Cited" block of any kind appears on the face of this patent. This is not a gap in my search; it is the structure of an 1872 grant. Systematic printing of cited references on US patent faces did not become routine until decades later.

Consequently, there is no §102 anticipation mapping to perform on the references "cited for" US 128,440, because there are none. The only patent citation in the record runs in the opposite direction — 128,440 is cited by a much later patent — and that later patent cannot possibly be §102 art against an 1872 grant.

I detail each entry below, but I want to be explicit rather than manufacture a table of "anticipating references" that the record does not support.

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Method and its limits (stated plainly)

Two planned verification searches (for US 841,030, US 1,578,221, and US 115,572) were cut off by a step limit. I flag the affected entries below rather than assert them.

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Directionality — read this before the tables

This is the crux of the question, and it is easy to get backwards.

• A backward citation is prior art cited against the patent. This is what a §102 analysis uses.
• A forward citation ("Cited By") is a later document that cites this patent. By definition it postdates the patent and cannot be §102 prior art to it.

US 128,440 has zero backward citations and one forward citation. The task as phrased ("look at each patent citation for 128440") therefore resolves to a set that is legally unusable for anticipation. I explain why each item fails below rather than force a fit.

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Table A — Backward citations (prior art cited against US 128,440)

The Google Patents record for US 128,440 shows no "Citations" / "Cited By" examiner-art block, no "References Cited," and no inventor-cited art. Confirmed against the authoritative text.

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Table B — Forward citation: US 2,966,839 A

Why it cannot be §102 art: it was filed in 1958 and granted in 1961 — 86 years after 128,440 was filed and granted (June 25, 1872). Prior art under §102 must predate the patent's invention date. A document cannot anticipate an invention made eight decades before it.

How the citation actually appears: the citation is printed on the other patent's face. The FreePatentsOnline "US Patent References" list for US 2,966,839 includes the entry:

0128440 | N/A | 1872-06-25

So 128,440 is one of the references the examiner considered against the 1958 basting-device application.

⚑ Refinement of the earlier section's uncertainty flag

The previously generated summary flagged this entry as "likely a citation-listing or OCR artifact rather than substantive art." My verification partially corrects that:

• The citation is genuine, not an OCR artifact. It appears in an independent record (FPO's transcribed reference list for US 2,966,839), not only in Google's algorithmic panel.
• What remains unexplained is the pertinence, not the existence. An 1872 sugar-clarification pan cited against a 1958 poultry basting tray is topically remote. The surrounding references in that list (an aquarium, dish washers, a sewage-treatment means, a barbecue roaster) suggest the examiner swept a broad analogous-art field of "tray + reservoir + nozzle" structures. I did not locate the 1958 Office Action itself, so I cannot say which claim the examiner used it against.
• Either way, this changes nothing for §102 against 128,440. The direction is wrong.

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Table C — "Similar Documents" (Google algorithmic adjacency — not citations)

Google Patents lists these as topically similar. None is cited in the 128,440 record. I include them because they are the only other references in the record, and because the pre-1872 ones are the only candidates that could even theoretically serve as §102 art.

C-1. Documents dated before June 25, 1872 — potential §102 art in principle

None of these anticipates either claim. Claim 1 is a narrow apparatus claim defined by four interlocking structural limitations, and no pre-1872 reference discloses all four. Claim 2 is a two-function steam-application process, and no pre-1872 reference discloses steam performing both the heating and the rotating.

C-2. Documents dated after June 25, 1872 — legally incapable of anticipation

These postdate the grant and are therefore not §102 art against 128,440 under any theory. Listed for completeness because they appear in the record:

US 1,578,221 ("Clarifier for saccharine solutions") is the one that would be most probative on subject matter if it were relevant — but at 1926 it postdates the 1872 grant by 54 years and carries no legal weight against it whatsoever.

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§102 analysis, limitation by limitation

For completeness, here is why no reference in the entire record anticipates. US 128,440 expired in 1889, so the governing novelty provision is the Patent Act of 1870, §24 (modern analog: pre-AIA 35 U.S.C. §102(a)/(b) — not AIA §102(a)(1)/(a)(2), which reaches only applications filed on or after March 16, 2013).

Claim 1 — Apparatus. Anticipation requires all four of:

1. a circular steam pipe at or near the bottom of the pan;
2. that pipe perforated at a portion of its circumference only (the spec: three-fourths, in oblique spiral rows) — this partial perforation is what converts radial steam flow into rotary flow;
3. a tubular sieve at or near the pan center;
4. the sieve closed at its bottom by a valve, with clear liquid discharged through the sieve so separated impurities are retained.

No reference in the record discloses all four. US 36,926 comes closest on parts of (1)–(2) via its steam jacket, but has no perforated in-pan pipe, no sieve, and no discharge valve.

Claim 2 — Process. Anticipation requires the single limitation: steam applied so as to both heat the mass and impart to it a rotating motion, whereby impurities rise to the surface.

No reference discloses this. The pre-1872 references achieve impurity separation by (a) gravity/fire heating with manual skimming (US 34,236; US 36,849), (b) steam-jacket heating plus mechanically driven rotation (US 36,926), or (c) air blasts (US 115,572). The unitary "same steam does the heating and the stirring" limitation is unmet everywhere.

Observation, not a holding: claim 2 recites only a functional consequence and does not expressly recite the perforated circular pipe, the partial circumference, or the tubular sieve. Under modern §112 practice it would likely draw a written-description/enablement challenge. No court or the Office has ever adjudicated that, and it is not a §102 issue.

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Confidence and remaining gaps

High confidence:

• US 128,440 carries zero backward citations. No prior art was cited against it.
• Its only associated patent citation, US 2,966,839 A, is a forward citation and is legally incapable of anticipation (1961 vs. 1872).
• The citation of 0128440 / 1872-06-25 on the face of US 2,966,839 is confirmed genuine in an independent record, not an OCR artifact.
• No reference in the record discloses all limitations of claim 1 or claim 2.

Moderate confidence (search cut off before I read the specifications):

• US 841,030 (1907) and US 1,578,221 (1926) — dates and titles only, from the Google record's list.
• US 115,572 (1871) — I have only the Commissioner's Annual Report index line, not the specification. It also postdates nothing relevant except that it is pre-1872; even if it taught rotation, it uses air, not steam.

Explicitly unknown — I will not fabricate:

1. Whether a 1958 examiner's Office Action used US 128,440 against any specific claim of US 2,966,839, and on what rationale.
2. The actual filing date and application/serial number of US 128,440 — both fields are blank in the record.
3. Whether any pre-1872 unpatented public use or foreign publication exists that could bear on 128,440. Nothing in the record addresses it, and §102(a)/(b) would reach such art if it existed.
4. Whether the record contains any earlier US or foreign art sharing the "perforated circular steam pipe driving rotary flow in a pan" feature. This is the one genuinely useful search I was unable to run to completion, and it is where substantive §102 art against claim 1, if any ever existed, would live.

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What I'd recommend next

The productive search is not "what was cited against 128,440" (nothing was). It is:

1. USPTO PatentCenter / Google Patents full-text phrase search for pre-1872 US patents reciting a perforated pipe in a pan that both heats and rotates a liquid — the true home of any §102 art for claim 1.
2. Foreign (German/Prussian) patents from the 1860s–1871 window. Von Witzleben was of Berlin; German states had their own pre-1871 systems, and Prussian art may exist that the US record would never have carried.
3. Retrieval of the 1958–60 Office Action file for US 2,966,839 to determine why an 1872 sugar pan was placed on that list — the one loose thread in this record I could not close.

If you'd like, I can run (1) and (2) as a follow-up with a full step budget.

I'll verify the prior-art record for this exact patent before analyzing, since the "Prior Art" panel shown on the page is unusually thin.

§103 Obviousness Analysis — US Patent No. 128,440 ("Improvement in Treating Saccharine Liquids")

Scope note and a threshold caveat before the analysis proper. §103 as we know it did not exist in 1872 — it was created by the Patent Act of 1952 (35 U.S.C. §103), and the governing statute for this patent was the Patent Act of 1870, under which the operative question was whether the improvement required "invention" or only the ordinary skill of the mechanic. I will nonetheless run the requested Graham/KSR framework, because that is the framework asked for, but every conclusion below is counterfactual/hypothetical: nothing about US 128,440 has ever been litigated (as established in the previously generated sections) and no examiner ever applied §103 to it. I am not asserting that these references were actually before any examiner; the record shows zero backward citations.

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1. What the page's "Prior Art" panel actually contains

This is the single most important structural finding, and it constrains the entire analysis.

Two of these deserve a flat statement:

• US 2,966,839 cannot be prior art to US 128,440 under any theory. It postdates the patent's 1889 expiration by 72 years. It is a citation of US 128,440, not to it. The prior sections' flag that this entry is topically anomalous (a poultry basting device citing a sugar pan) is consistent with it being a database artifact, and it is legally inert either way.
• "Similar Documents" is not a prior-art list. Google's own label is "Similar Documents." It is a semantic-similarity ranking. Sixteen of the twenty-five were issued after US 128,440 and therefore cannot be prior art at all.

1.1 Sort the "Similar Documents" by the critical date (June 25, 1872)

Usable (issued before the patent) — 9 references:

Not usable — 16 references, all postdating June 25, 1872: US 133,679 (1872-12-03), US 138,508 (1873-05-06), US 154,312 (1874-08-18), US 253,764 (1882), US 256,613 (1882), US 330,663 (1885), US 356,991 (1887), US 476,891 (1892), US 613,194 (1898), US 722,310 (1903), US 788,310 (1905), US 841,030 (1907), US 871,046 (1907), US 1,158,304 (1915), US 1,578,221 (1926), US 2,279,061 (1942).

Important negative observation: the two topically closest documents — US 476,891, "Process of and apparatus for evaporating sugar solutions" (1892), and US 1,578,221, "Clarifier for saccharine solutions" (1926) — both postdate US 128,440 by 20 and 54 years respectively. They cannot be prior art; they are evidence that the field continued along the same lines, which is legally irrelevant here.

1.2 Critical-date caveat I cannot resolve

The invention date and filing date of US 128,440 are unknown (blank fields in the record; the prior sections flagged this gap). US 119,818 (1871-10-10) is prior art only if von Witzleben invented after October 1871. I cannot determine that. Everything below assumes refinement of the analysis is required on that point before any real-world assertion.

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2. The claims to be tested

Claim 1 — apparatus, six limitations: (1.1) circular steam pipe at or near the pan bottom; (1.2) perforated at a portion of its circumference only; (1.3) tubular sieve at or near the pan center; (1.4) sieve closed by a suitable valve; (1.5) steam jets impart rotary motion; (1.6) clear liquid drawn off through the sieve valve.

Claim 2 — process: exposing saccharine liquid to steam applied so as to (a) heat the mass and (b) impart rotating motion, whereby impurities rise to the surface. Note it recites no structure — not the pipe, not the partial perforation, not the sieve.

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3. Combination A — Brainerd + McKee (both in the page's list; both predate 1872)

I retrieved the full specifications of US 34,236 and US 36,849, so this combination is grounded in actual disclosure rather than titles.

US 34,236 (Brainerd, 1862) — "Improved Apparatus for Defecating and Evaporating Saccharine Liquids." Discloses: three connected pans at different levels (A, B, C); a pipe (a) discharging juice from the upper into the lower pan; a strainer G and a second strainer H; gates (b, g, i) and discharge pipe (k); and the express objects that "the juice in passing from one pan to the next succeeding one is strained and freed from curdles, bits of cane, and other impurities" and "passes perfectly clear." That is the sugar-clarification problem and a straining step, squarely in the field.

US 36,849 (McKee, 1862) — "Improved Evaporator for Saccharine Liquids." Discloses: a heater E heating the juice; a helical channel evaporator F; a faucet d′ controlling discharge from the heater to the evaporator; and, critically, the express teaching that "By heating the juice in the heater the heaviest parts of the scum rise to the surface, and can be taken off at leisure." McKee also teaches that during evaporation "the scum rises to the surface, and can be raked off with the greatest convenience."

Why a PHOSITA would combine them: same field (saccharine-liquid defecation/evaporation), same recognized problem (impurities and scum), contemporaneous US art, and overlapping structure (pans in series, conduits, strainers, draw-off valves). Motivation: Brainerd handles straining but has no heating-driven scum-rise or agitation; McKee handles heat-driven scum-rise but relies on a thin-film helical channel rather than a settling pan. Combining a settling/straining pan with heat-driven scum flotation is the ordinary work of a skilled sugar-pan mechanic.

What Combination A does not supply — and this is the honest weakness of the attack:

• No circular steam pipe at the bottom of the pan (limitation 1.1). Brainerd heats by flue, McKee by furnace.
• No perforated pipe at all, and certainly no partial-circumference perforation (1.2).
• No tubular sieve rising from the pan center (1.3). Brainerd's strainers are in compartments, not a central tubular member.
• No bottom-closed central sieve with a plug on a rod (1.4, 1.6) — Brainerd uses gates, McKee a faucet.

Combination A alone does not render claim 1 obvious. It renders claim 2's first half obvious (heating saccharine liquid causes scum to rise to the surface and it can be removed — McKee says so in terms).

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4. Combination B — gas-jet agitation art (the strongest attack on claim 2)

While verifying the record I located a printed publication that is not in the page's Similar-Documents list and that materially strengthens the §103 case. I flag its provenance explicitly: it came from my own search, not from the page's prior-art panel, and the underlying patent number is not visible in the OCR I retrieved, so I cannot cite it with the precision I would like. It appears in Google-digitized The American Polytechnic Journal (April 1853), in a "Claims of Patents" section reproducing a Charles Page patent for vacuum-pan sugar evaporation.

What that 1853 text teaches, verbatim from the OCR:

• Steam is transmitted by steam-pipes to heat the saccharine fluid: "steam is admitted to the pipe b, which consists of several lengths united by bends at each end, so as to form a continuous passage for the steam to rush through."
• A rotating screw/disk member is used to agitate and present the fluid: "rotary motion is then to be communicated from any first mover to the axle e, which should revolve at the rate of about eight or ten revolutions per minute."
• Air is forced through perforations in a hollow member into the liquid: "I also use a blowing fan… connected with a pipe t… inserted into the open end e² of the hollow axis of the screw… as the heated air rushes out of the numerous holes in the hollow axle, it will be brought in contact with the thin stratum of fluid…"
• The concentration endpoint is given as "27 or 30 degrees Beaumé."

Why this is devastating to claim 2. Claim 2 requires only: heat the saccharine liquid + impart rotating motion → impurities rise. The 1853 Page disclosure supplies (i) heat to a saccharine liquid by steam, (ii) rotation of the liquid body, and (iii) injection of a gas through holes in the vessel's internal member while so doing. The only difference is that Page's rotation is driven mechanically while his gas jet does the evaporating — whereas von Witzleben's rotation is driven by the steam jet. A PHOSITA would have recognized this as a straightforward substitution of a gas jet for a mechanical drive to produce a liquid swirl, with a predictable result. Under KSR, "the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results," and where a technique has been used to improve one device, "the designer… has reason to pursue the known options within his or her technical grasp."

Two additional points flow from the 1853 text:

1. The 27°–28° Baumé limitation is conventional. The prior section correctly noted the OCR renders it "27 O to 280 Baume." The 1853 Page patent independently names 27 or 30 degrees Beaumé as a syrup-concentration target. Under In re Aller (CCPA 1955) and its progeny, discovering a workable range within a known process, absent new and unexpected results, is routine and obvious. There is no evidence of unexpected results in the record.
2. Von Witzleben's own admission. The specification states the invention "is based on the quality of sugar, in consequence of which the impurities mixed with the same always have a tendency to separate from the sugar at a high temperature." Read literally — as the strict rule requires — the patentee has admitted the operative principle is a known property of sugar, not his discovery. That admission undercuts the nonobviousness of both claims, and is the closest thing in this file to a §101 natural-principle problem.

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5. Element-by-element mapping for claim 1

Assessment: Claim 1's own weight rests almost entirely on limitation 1.2 — the partial-circumference perforation arranged in oblique rows forming a spiral (specification Fig. 2). Limitations 1.3–1.6 are, functionally, a rearrangement of elements Brainerd already uses (strainer, gate, draw-off pipe), placed at the center-bottom instead of in a compartment. A rearrangement of parts that produces no new cooperative function is the classic target of a "mere change of location" attack. Limitation 1.2 does cooperate with 1.5 (holes aimed tangentially → swirl), so the "mere aggregation" attack fails as to the pipe-and-sieve subcombination — but 1.2 itself is unprotected by the record's art.

Under KSR's "predictable variation" prong, the counter to that gap is: once one decides to drive the liquid with steam jets, orienting the perforations to aim tangentially rather than radially is the predictable use of a known element (a perforated pipe) according to its established function (directing fluid). That is an argument, not a reference. It is contestable.

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6. Secondary considerations

None available. The record contains no evidence of commercial success, long-felt need, failure of others, copying, licensing, or industry praise. The patent was unassigned on its face, expired in 1889, and has no litigation or licensing footprint (per the prior sections). There is therefore no objective evidence rebutting the prima facie case — and the patentee's own admission of the known sugar property affirmatively cuts the other way.

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7. Conclusions

Motivation-to-combine summary (common to all combinations): identical field of endeavor (saccharine-liquid defecation, evaporation, clarification); identical articulated problem (scum and suspended impurities); contemporaneous US and British art; and a shared, expressly recognized design goal — eliminate mechanical agitation and reuse the heating medium as the stirring medium. Both KSR rationales apply: substitution of a known element (a steam/gas jet) for a mechanical agitator to achieve the same predictable result, and use of a known technique (directional steam sparging) to improve a similar device in the same way.

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8. Explicit gaps and limitations of this analysis

1. I read the full text of only two of the nine eligible references (US 34,236 Brainerd, US 36,849 McKee). For US 25,052, US 56,356, US 61,567, US 80,340, US 87,029, US 97,405 and US 119,818 I have only titles and dates. I will not assert what they disclose. Any of them could either strengthen this case or supply the missing limitation 1.2 — I do not know, and the record does not say.
2. I have not read US 2,966,839. I state only that it is legally inert as prior art by date, regardless of content.
3. The 1853 Page reference is search-derived, not from the page's prior-art panel. Its OCR is imperfect, the underlying patent number is not visible in the text I retrieved, the journal page is a "Claims of Patents" reproduction rather than the patent itself, and the digit "6" appears plausibly in "1866" contexts elsewhere in the same source. Treat this reference as a lead requiring verification against the original, not as an established citation.
4. OCR artifacts in the primary references: US 34,236 is misprinted as "No. 341,236" in its own specification; US 35,350 renders its 1862 grant date as "May 20, 1992"; US 36,849 is rendered "No. 86.849" in one place. I have not silently corrected the patent numbers.
5. Two of the references I retrieved (US 36,294 Hamilton, US 36,926 Wesson) are not in the page's Similar-Documents list. They are flagged above as search-derived only.
6. The section on §103 is legally anachronistic for the reasons given at the top. If the question is what a 19th-century court would have done, the standard to apply is the 1870 Act's "invention" test, not Graham/KSR.