The drawing accompanying the patent which illustrates the design intended to be covered by it is as follows:

While the following represents the chairs of the defendants:

The question of infringement is to be determined by the comparative appearance of the two.

A design patent is addressed to the eye, and is to be judged by its ability to please. Rowe v. Blodgett & Clapp Co. (C. C.) 103 Fed. 873. There may be no objection to the article to which it relates being useful as well as ornamental, but the attempt to patent a mechanical function, under cover of a design, is a perversion of the privilege given by the statute. Rowe v. Blodgett & Clapp Co., 112 Fed. 61, 50 C. C. A. 120; Marvel Co. v. Pearl (C. C.) 114 Fed. 946; Eaton v. Lewis (C. C.) 115 Fed. 635. A design patent, also, the same as any other, must be possessed of novelty. Smith v. Saddle Co., 148 U. S. 679, 13 Sup. Ct. 768, 37 L. Ed. 606; Paine v. Snowden, 50 Fed. 776, 1 C. C. A. 661. Subjected to these tests, it is a question whether the present patent is of any validity. The extension of the back and sides of the chair, by which

screens for the wheels are formed, is functional rather than ornamental, whatever view to the contrary may have been expressed by the defendant Mrs. Clowney; neither would it seem to involve anything inventive to modify to that extent existing forms. Paine v. Snowden, 50 Fed. 776, 1 C. C. A. 661. But without stopping to enlarge on this idea, it is clear upon other grounds that the complainant as to this patent also has no case.

From the design standpoint, in which the guide is the eye, it requires hardly more than the most casual observation to perceive that there are several material points of difference between the defendants' chair and that which is portrayed in the patent. With regard, for instance, to what is declared to be the leading feature of the design; the depending wall in the back, as represented in the drawing, extends down even with the side screens; while in the defendants' chair it stops somewhat short of this, making a break in the lines, and producing a less pleasing effect. The vertical passages also in the one are cleaner cut, extending only partway up to the body of the chair, and are supplemented by two smaller auxiliary slots, through which the handle bars protrude; while in the other, these openings go entirely up to the body, the wicker work of either side being strengthened with dowel posts; and there are no auxiliary slots. In general configuration, also, the two chairs are different. That of the complainant has a stiff, square back, with square sides, the roll on the top being carried down the edges of the back to the bottom of the screens, and not extended out over the arms, which are given distinct and separate rolls of their own, terminating abruptly at the end; while in that of the defendants the back slightly inclines, and has decidedly rounded corners, and the roll or braid on top of the back continues out over the arms, and is carried down the front of the chair to the floor. The complainant's also has no dasher, while the defendants' has a very prominent one; and the wickerwork of the two chairs differs; that of the defendants being a basket pattern ornamented on back, sides, and depending walls, with diamond-shaped figures, while that of the complainant is a plain crosshatch. There are other slight distinctions, but these are enough. Whether taken singly or in general effect, the features of the defendants' chair constitute material variations from the design as set forth in the patent, and relieve the defendants from the charge of infringement upon it.

But assuming, for the sake of argument, that there are no such differences, after all, as we have found, the complainant is met by the fact that he was not the first to put out a rolling chair of this particular description. The patent was applied for August 2, 1901, but it is in evidence. that on June 5th, two months before that, Mrs. Clowney, the principal defendant, purchased and had in use one of the chairs of which complaint is now made. This chair did not originate with her, but was manufactured by the Philadelphia Baby Carriage Company, from whom she ordered it May 14th; and it was followed by some 20 others from the same place in the next two months. These dates are not made to depend on the uncertain memory of witnesses, but are substantiated by documentary evidence in the way of bills and shipping receipts. The complainant himself also proves that on June 24th one of these

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chairs was rented by him of the defendants, and taken to a photographer for the purpose of obtaining a picture to be used as evidence of infringement in this case. Further, if Harry Bellis, who is connected with another rolling chair establishment at Atlantic City, is to be believed, he saw chairs of this pattern at the Philadelphia Baby Carriage Works in March, 1901, where they were being shipped to the Pan American Exhibition at Buffalo, which occurred that year; and he ordered some for his own use, which were delivered about the same time as those to Mrs. Clowney. Nor is this by any means all the evidence there is upon the subject. It is testified by Mr. Bloch, the proprietor of the factory referred to, that the first chair delivered to Mrs. Clowney was designed and put together as a sample in the summer of 1900; this date being fixed by reference to the removal of the office and salesroom, which occurred in July or August of that year, and which it preceded. Levi, a salesman and clerk, corroborates this with convincing details, as do Semisch, the foreman of the reed department, and Heinel, who constructed the frame. The latter remembers the circumstance that in August, 1901, the frame, which originally had a roll on top of the back and arms, was returned to have a braid put on, just as it now appears. Semisch also produces a so-called invoice book, in which at the close of that year he entered an inventory of some 10 of these chairs, which by that time they had constructed and had on hand. The reason why this style was not sooner put on the market is explained by Bloch, who says that they are always working a season ahead, and that it not infrequently happens that they have new styles which are not made use of for six or eight months. It is said that the company with which these witnesses are associated is interested in establishing a prior use, in order to defeat any suit which may hereafter be brought against it for infringement; but their testimony is too circumstantial and convincing to be put aside in any such way. It is also said that Bloch was to produce his books in order to substantiate his statements, which he never did. But a fire occurred while the testimony was being taken, which prevented it; and, while this leaves his testimony without the promised support, corroborated as it is by the others referred to, to say nothing of its own inherent value, it cannot be disregarded.

In view of the conclusion which is thus reached, it is not necessary to go into any extended discussion of the evidence produced by the complainant with regard to the use of this style of chair in the first part of 1901 by the rolling chair establishment where he was employed. There is quite a little to throw doubt upon this, and it is a question. whether, standing by itself, the evidence would be sufficient to meet the burden cast upon the complainant of carrying back the date of his invention to a point where it would clearly anticipate the use by Mrs. Clowney indisputably shown in June. But without going into the matter, and conceding for this evidence all that could be claimed for it, it only goes back to February, 1901, and thus fails to meet the evidence of the defendants by which chairs of this pattern are shown to have originated in the factory of the Philadelphia Baby Carriage Works fully six months before.

While the case is fully disposed of by what has thus been said, it will not be inappropriate to observe that the evidence with regard to the

origin of the chairs of which complaint is made has a bearing upon the mechanical as well as the design patent. For if it is contended that the screens on these chairs swell outwardly, within the meaning of that patent, in construction and function infringing upon it, then, being earlier in time, they anticipate it; the complainants' mechanical invention not being carried further back than December 7, 1900, the date of his application.

It being clear, therefore, that the bill cannot be maintained, a decree is directed to be drawn in favor of the defendants, with costs.

HEMOLIN CO. v. HARWAY DYEWOOD & EXTRACT MFG. CO. et al.

(Circuit Court, S. D. New York. July 19, 1904.)

1. PATENTS-INFRINGEMENT-PROCESS OF MAKING LOGWOOD EXTRACT.

The Austen patent, No. 491,972, for an improvement in the art of making coloring matter from logwood, which covers a process and the resulting product, the process consisting of adding to logwood extract an alkaline nitrite in the presence of water, causing a reaction between them, and evaporating the product to dryness, when it is commonly ground and put up in the form of a dry powder, held not anticipated, valid, and infringed.

2. SAME.

Where a defendant charged with infringement of a process patent admits that his product is the same, and that in making it the same materials are used and steps taken as called for by the patent, a mere denial that the process followed is the same, without disclosing the one claimed to be used, is insufficient to negative infringement.

In Equity. On final hearing.

Harold Binney and S. L. Moody, for complainant.

W. P. Preble, Jr., and John J. Gleason, for defendants.

COXE, Circuit Judge. This is an action in equity for the infringement of letters patent No. 491,972, granted to Peter T. Austen, February 14, 1893, for improvements in the art of making coloring matter from logwood. The specification says that prior to the patent the coloring matter extracted from logwood was made in the form of a paste, a liquid, or of the consistency of thick pitch. Each of these forms is open to many practical objections which are enumerated. The specification then proceeds as follows:

"My invention meets and overcomes all these objections, giving a stronger and purer color. It consists of a process for making a solid coloring matter from logwood which is not affected by the extremes of atmospheric temperature, and which can be made and will continue and can be used in the form of a dry powder similar to a coal tar dye, and which has the same advantages of stability, rapid solubility in water, which are possessed by many coal tar dyes, and which allow of the same facility and accuracy in determining the proper proportions required. Being much freer from tannin and resinous matters it affords a practical substitute for chip logwood, and avoids the labor, time and expense required in the use of logwood in the form of chips. To carry out my invention I heat ordinary liquid extract of logwood and mix with it sodium or potassium nitrites in the proportion of about five pounds of solid nitrite to each one hundred pounds of liquid extract of 51° Twaddle. The mixture is then stirred and evaporated to a point at which it becomes solid

and brittle on cooling. The method I have employed with most satisfaction is the following: I heat ordinary liquid extract of logwood of 51° Twaddle to about 140° of Fahrenheit, and add to it in successive portions an aqueous solution of potassium, or sodium nitrite, in the proportion given above, thoroughly mixing them and maintaining the temperature. A copious evolution of gas takes place, which is facilitated by stirring, or agitation. The heating is continued with frequent or continuous stirring until the evolution of gas has ceased, and the mixture is sufficiently evaporated to form a solid mass on cooling, which is sufficiently brittle to be ground into a powder, if so desired. A coloring matter is thus obtained in the form of a powder which appears black in shadow and purplish black in strong sunlight and is practically soluble in cold water and rapidly soluble in hot water, having the characteristics heretofore described. It may be dyed on wool by the same method as logwood, by mordanting the material in the usual manner with potassium bichromate and potassium bitartrate, but adding to the dyebath about twenty-five per cent. of the weight of the coloring matter of acetic acid. The color thus produced is much stronger and deeper than that produced by dyeing with equal quantities of logwood extract of 51° Twaddle.

"The above method of procedure is the best to me at present known. But, as heat and time are frequently convertible conditions in chemical reactions, I do not limit myself to the temperature, nor to the exact proportions above set forth; the essence of my discovery and invention being, that when logwood extracts are treated with nitrite of soda or potash under such conditions as to bring about a reaction between them, a new product may be produced having the characteristics hereinbefore set forth."

The patent contains three claims, two covering the process and one the product. They are as follows:

“(1) In the art of making logwood extract, the improvement which consists in adding to logwood extract an alkaline nitrite in the presence of water and causing a reaction between the nitrite and the extract, substantially as described.

"(2) In the art of making logwood extract, the improvement which consists in adding to logwood extract an alkaline nitrite in the presence of water, causing a reaction between the nitrite and the extract and evaporating the product to dryness, substantially as described.

“(3) As a new article of manufacture, a coloring matter derived from logwood extract by the incorporation therewith of an alkaline nitrite, and characterized by the fact of its being a friable solid, soluble in cold and rapidly soluble in hot water, substantially as described."

The defenses are lack of novelty and invention and noninfringement. It should be remembered that the essence of the invention is that when logwood extracts are treated with nitrite of soda, or potash, under such conditions as to bring about a reaction between them, a new product, consisting of a permanent dry powder, soluble in cold water and rapidly soluble in hot water, is produced in which the gummy matters are expelled or rendered nonhydroscopic. The objections to the coloring matter extracted from logwood, which was in use previous to the patent, are set out at length in the description and, so far as the proof shows, are stated with substantial accuracy. The court is unable to find from the present record that any one before Austen made the new coloring matter covered by the third claim or used the method of producing it covered by the first and second claims.

The principal witness to the so-called Oakes prior use is George Stiff, but his testimony is too indefinite and uncertain to overthrow the presumption arising from the patent. When he entered the employment of the Oakes Manufacturing Company he was only about 15 years of age. He had no previous knowledge of chemistry, having