all-mohair and wears fairly well. In other words, as one of the witnesses, a dyer, said, referring to the instructions which the defendant gave him in making out the alleged infringement, "Make a dollar fabric look like a five dollar one."
There is little doubt that the motive, at least, in getting out this type of frise was to cheapen the material without too greatly impairing its usefulness. The whole record indicates that the plaintiff, finding a demand for something cheaper than the all-mohair frise, adopted the obvious expedient of adulterating the mohair pile loops with cotton; that having done so, he noted certain structural features of the new fabric which, microscopically examined, were different from the old; and that he thereupon set about giving it an air of patentable novelty by endowing it with a lot of qualities, some of which may have been useful and desirable, but all of which were inherent in the substitute material itself and had nothing to do with the claimed new structure of the finished product.
But merely substituting cheaper material in an old and well-known structure is not invention. It was well-known that cotton and mohair react differently to dyeing, and the resultant fabric is what anyone skilled in the art would have expected as soon as he had undertaken to cheapen his product.
I, therefore, hold that the patent is wanting in invention.
In addition, if it be assumed that the product after dyeing does present a characteristic surface with the mohair yarn slightly projecting above the cotton, and if it further be assumed that this structure, in itself, apart from the ordinary qualities of the adulterant, somehow achieves a useful and desirable result, I am of the opinion that the patent is anticipated by the Oldroyd, British patent of 1872. The disclosure of that patent is, "In the production of a fabric having its weft and warp of cotton yarn to form the ground, and a warp of yarn made of cow, calf, goat, or other animal hair in mixture or combination with rhea grass or other vegetable fibre to form or produce the face of the fabric, which is raised in loops and curled, forming a curled pile surface similar to the fabric technically known as 'Astrachan.'"
It is interesting to note the manner in which the plaintiff attempted to meet the difficulty presented by the Oldroyd patent, The first part of his testimony seems at first to be inconsistent with what he said after recess but, if read carefully, it may not be so. At any rate, his final position was that the Oldroyd patent disclosed a kind of terry weave, and that it was intended for making Astrachan. Now, he says, in effect, "Astrachan implies a very heavy, loosely twisted yarn, and if you take that kind of yarn and use it in the weave of the Oldroyd patent, the large loose warp threads will curl or tumble in such heavy loops that the mohair will not stand up above the cotton threads, after the dyeing. Hence, what you get will not have the essential characteristic of the patented fabric."
All this might have some validity if the patent were directed or limited to a frise or even a "closely woven short-looped fabric." The trouble is that the patent covers any and all loop pile fabric, and disclaims application to any particular weave. By its terms it plainly covers terry weave, Astrachan or anything else which is properly a loop pile fabric. In other words, in order to escape anticipation by Oldroyd, the plaintiff is driven to narrow his claims by a limitation which not only is nowhere suggested in the patent but which is excluded by the broad phraseology of the claims and the express disclaimer of the specification.
It may be also noted that there is nothing but the plaintiff's opinion to indicate that the effect of the mohair loops projecting beyond the vegetable fibre threads, as described in claim 4, for example, would not occur in a fabric made according to the Oldroyd patent. The plaintiff says it would not, because the yarn would be too loosely twisted and too thick and heavy, but the only thing the patent says about its yarn is that, "In providing the yarn from which the pile fabric of the present invention is woven, animal and vegetable fibre threads are twisted loosely together." And it nowhere mentions the size or weight of the yarn.
Without further speculation upon the type of fabric which could be produced under the Oldroyd patent, it is plain from the plaintiff's testimony that, if his patented fabric is in any different from that which he says Oldroyd will get, it must be solely because of the weave, the weight of the yarn used and the tightness of the twist -- matters not claimed or even suggested.
I therefore hold all of the claims of the patent invalid as anticipated by the Oldroyd patent.
In view of the foregoing, I make no finding upon the question of infringement, except as to claims 2 and 5, which were incidentally discussed. These claims are clearly not infringed even if valid.
Statements of fact in this opinion may be taken as special findings and statements as to the law as conclusions, in compliance with Rule 70 1/2, Equity Rules, 28 U.S.C.A. following section 723.
The bill may be dismissed.
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