the other would involve no invention, the dextrine in both cases being used for the same object, namely, to prevent the silk braid from fray. ing at the point where it is cut. It was a matter of simple mechanical skill to determine whether that object were better accomplished by running the bare metal or the covered metal through the dextrine before the outer braid of silk was applied. If the meshes of the cotton were loose or open, the adhesion of the core would be amply sufficient to prevent the fraying out, which it was the object of the patent to accomplish. The bath of dextrine was the essential feature of both devices, and, even if the double cover were less efficient than the other, it required no exercise of the inventive faculty to omit the cotton cover and immerse the bare metal.

It is evident that if Mills and Hershey had been the first to use the process described in this patent of immersing the bare metal in a bath of dextrine and then covering it with a fibrous coating, the doublecover process of Blakesley would have been an infringement. The intervention of a loose cotton covering between the outer braid and the bare metal would have been treated simply as an evasion.

In an examination made of the plaintiffs' and defendants' exhibits put in evidence in this case it appears in fact there is very little adhesion between the covering and the core in the plaintiffs' device, and none at all in the defendants', though it is possible this may be due to their age. Such adhesion as there is in plaintiffs' crimpers seems to be due rather to the pressure of the braid upon the core than to the use of an adhesive material.

The decree of the court below must be reversed and the case remanded with directions to dismiss the bill.

[U. S. Circuit Court of Appeals-Eighth Circuit.]

SMITH & DAVIS MANUFACTURING COMPANY v. MELLON.

Decided October 30, 1893.
66 O. G., 173.

1. SMITH-SPRING-BED-VOID-PUBLIC USE.

United States Letters Patent No. 269,242, issued December 19, 1882, to John G. Smith for improvement in spring-beds, is void, because the invention was in two years' public use before application for the patent.

2. SAME-PLEADING.

Where the answer alleged that the invention had been in two years' public nse and on sale, without stating that such two years' public use or sale occurred in this country, such allegation may not be technically accurate; but the point cannot be raised for the first time on appeal.

3. SAME-PUBLIC USE.

Where a manufacturer places an article upon the market, in the usual and accustomed line of business, more than two years before applying for a patent, to see what his customers think of it, it cannot be said that it was an experiment within the meaning of the statute; “It is a trader's and not an inventor's experiment."

4. SAME-IMmaterial Change.

Where a change has been made in the article within the two years of the filing of the application, and such change is referred to in the specification as a mere preferable form of construction, such change will not save the patent from the operation of the statute.

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

Mr. William M. Eccles for the appellant.
Mr. George H. Knight for the appellee.

Before BREWER and SANBORN, Judges.

Mr. Justice BREWER delivered the opinion of the Court.

This case is before us on an appeal from a decree of the Circuit Court of the United States for the Eastern District of Missouri dismissing the plaintiff's bill. The suit was one for the infringment of a patent, that patent being No. 269,242, dated December 19, 1882, issued to John G. Smith, and by him assigned to complainant, and was for an improvement in spring-beds. The ground on which the circuit court dismissed the bill was that the invention covered by the patent had been in public use and on sale for more than two years prior to the date of the appli cation, and that for this reason the patent was void. (C. D., 1892, 541; 60 O. G., 1480; 52 Fed. Rep., 149.) Counsel for the appellant insists that this defense was not properly presented by the pleadings, and therefore that all testimony tending to support it should be ignored; further, that the only use disclosed by the testimony was an experimental one, and therefore not such as to void the patent; and, finally, that the precise invention for which the patent was obtained was not in use or on sale prior to the application for the patent.

With reference to the first of these propositions but a word is necessary. The statute (R. S., sec. 4920, clause.5) provides for, among other special defenses to a suit for infringement, this: that the invention has

been in use or on sale in this country for more than two years before his application for a patent.

The answer set up

that the alleged invention was in public and common use and on sale, with and by the knowledge and consent of the patentee, for more than two years before the application.

It did not in terms allege that such public use was "in this country," as the statute provides. While this defense may not have been pleaded with technical accuracy, yet the testimony tending to establish it was received on the final hearing without any objection. The first time the question has been raised, as appears from the record, is on the argument of the appeal in this court; and here it is too late. (Roemer v. Simon, C. D., 1887, 526; 12 O. G., 796; 95 U. S., 214, 220; Webster Loom Co. v. Higgins, C. D., 1882, 285; 21 O. G., 2031; 105 U. S., 580, 595.)

That the invention covered by the patent, or at least something very similar to it, has been in use and on sale for more than two years prior to the date of the application does not admit of doubt, and that such use was not an experimental one seems to be clear from the testimony. The application for a patent was on October 14, 1882. In the spring of 1880 J. G. Smith & Co., the predecessors of appellant, were engaged in the manufacture and sale of bed-bottoms. In the catalogue issued by them in March, 1880, there is described and advertised what is called "No. 27;" and the testimony of the patentee, a member of the firm, is that during the years 1880 and 1881 they sold quite a number of themprobably two or three hundred, and possibly five hundred-fifty or more having been sold before the 14th of October, 1880. In that catalogue, beneath the cut of No. 27, were these words:

In offering our No. 27 to the trade we recognize the growing demand for an allwire spring-bed. After a long series of experiments we have been able to produce a bed which is unequaled for cheapness, lightness, durability, and comfort. Mattressmanufacturers will find this an excellent bed to upholster.

The patentee testified, in answer to a question as to whether the sales made in 1880 and 1881 were as an experiment or for gain, that—

the sales were made as an experiment, as we do with everything else we get up; to put it on the market to see how the trade will take it; to see how it will take with the trade;

and in response to a further question, as to what arrangement or understanding was had with the purchasers about the beds giving satisfaction, made this reply:

I had the understanding that if any of them did not give satisfaction they could return them and I would replace them with the latest improvement of that or other beds, so they were satisfied.

It is scarcely necessary to refer to the testimony offered by the defendant, tending to show that some, at least, of these sales were made in the ordinary course of business and without any conditions named or suggested, and that a market was sought for the goods precisely as for other manufactured articles, for upon the testimony of the patentee himself it is obvious that what was done in the spring and summer of 1880 was not for the mere purpose of experiment, as that term is used in patent law. The invention was one which the inventor could have tested in his own home and by use in his own family. He did not sell simply one or two and wait to see how they satisfied the purchasers or what defects were discovered by them; but the firm of which he was a member invited the public to buy, representing the beds to be une. qualed, and continued to manufacture and sell them from month to month and from year to year in the same manner as any other article. in their stock was manufactured and sold, and each sale was made at a profit and with the contemplation of a profit. The experiment was not a testing for the purpose of discovering defects and perfecting the invention, but a testing of the market and to see how the article would

sell, or, as the inventor said, "to see how it will take with the trade." It was a trader's and not an inventor's experiment. Such a use does not carve an exception out of the statute. See the following cases: Elizabeth v. Pavement Co., (97 U. S., 126;) Egbert v. Lippmann, (C. D., 1882, 35; 21 O. G., 75; 104 U. S., 333;) Manning v. Glue Co., (C. D., 1883, 306; 23 O. G., 2413; 108 U. S., 462;) Smith & Griggs Manufacturing Co. v. Sprague, (C. D., 1887, 616; 41 O. G., 1037; 123 U. S., 249;) Andrews v. Hovey, (C. D., 1888, 275; 42 O. G., 1285; 123 U. S., 267;) Root v. Third Avenue Railroad Co., (C. D., 1892; 706; 61 O. G., 1947; 146 U. S., 210.) In Egbert v. Lippmann (p. 336) it was said by the Supreme Court: We observe, in the first place, that to constitute the public use of an invention it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof, but one welldefined case of such use is just as effectual to annul the patent as many. (McClurg v. Kingsland, 1 How., 202; Consolidated Fruit-Jar Co. v. Wright, 94 U. S., 92; Pitts v. Hall, 2 Blatchf., 229.) For instance, if the inventor of a mower, a printing-press, or a railway-car makes and sells only one of the articles invented by him, and allows the vendee to use it for two years, without restriction or limitation, the use is just as public as if he had sold and allowed the use of a great number.

And in Smith Manufacturing Co. v. Sprague (p. 264) this rule as to the character of the testimony was laid down:

In considering the evidence as to the alleged prior use for more than two years of an invention, which if established will have the effect of invalidating the patent, and where the defense is met only by the allegation that the use was not a public use in the sense of the statute, because it was for the purpose of perfecting an incomplete invention by tests and experiments, the proof on the part of the patentee, the period covered by the use having been clearly established, should be full, unequivocal, and convincing.

Finally, it is insisted that the patented invention is substantially different from that manufactured and sold in 1880. In the language of counsel

the bed-bottom used by Smith prior to October 14, 1880, was not the same invention patented by him, but was an imperfect, immatured, impractical, and unsuccessful bed-bottom, and a mechanical and commercial failure, and wholly a different mechanical structure from the one patented, both in its results and construction.

The invention, it may be said in a general way, consisted of a bank of wire springs fastened together at both top and bottom by a series of tie-rods and hooks running laterally and crosswise. These tie-rods and hooks and the upper and lower coils of the springs to which they were attached formed, as it were, two horizontal planes kept apart by the intervening springs. A pressure upon any part of the upper plane was met not simply by the resistance of the particular spring under the place of pressure, but by reason of the hooks and tie-rods was distributed upon the surrounding springs. These hooks and rods were therefore important factors in keeping the springs in place, and thus securing the stability of the bed. In both the bed manufactured and sold in 1880 and that described in the patent the hooks were formed by

an extension of the upper coils of the springs. In the latter this extension was carried round the next lower coil, making what is called a "closed head," while in the former it was not so carried round; but this change does not seem to us a vital one, nor was it apparently so regarded by the patentee. In the specification he says:

The hooks b b are preferably an extension of the upper coil, being carried around the next lower coil and then extended in the form of a hook.

And again:

The hooks b b are the most desirable means for locking the tie-loops C C to the springs; but I do not desire to be confined thereto, as other means can be used to fasten the ties C C to the springs.

The manner of tying was evidently not of the substance of the invention.

In conclusion, it may be said that the matter of obtaining a patent was an afterthought, and one that came too late to be of any avail to the patentee, even if there was in the construction of the bed such a display of inventive skill and such novelty and utility as gave a right to a patent, and of that we express no opinion. The decree is affirmed.

[U.S. Circuit Court of Appeals-Seventh Circuit.]

DAVID BRADLEY ManufACTURING COMPANY v. Eagle ManuFACTURING COMPANY.

Decided October 6, 1893

66 O. G., 315.

1. JUDGMENT-Res Judicata-Patents for InVENTIONS.

Where a suit for infringement of a patent is brought against a firm that is a branch of the company that manufactures the infringing device and such company conducts the defense, raising the question of validity of the patent, a decree for complainant is conclusive as to the validity of the patent as against the company conducting the defense, even in regard to alleged anticipations not referred to in the suit, since under the issues all anticipatory inventions might have been shown in defense. (50 Fed. Rep., 193, affirmed.)

2. SAME.

Such decree is none the less conclusivo because it was merely interlocutory at the bringing of the suit in which it is set up as a bar and subsequently ripened into a final decree.

3. SAME-PLEADING AND PROOF.

Where such interlocutory decree in the first suit was alleged in the second bill, a final decree in the first suit, rendered pending the second suit, may be shown in evidence therein without supplemental pleading, where defendant took no exceptions to the bill, consented to the introduction of the final decree in evidence so far as the same was material, and only objected thereto on the ground that in rendering such decree the court erred through failure to understand the operation of an alleged anticipatory invention.