(dissenting).
I agree that Liebowitz’s contribution to the art was not — as he himself supposed— inventing the fabric which he disclosed, but selecting one grade of Dreyfus’s fabric to make a pervious, “semi-soft” collar. Most of the claims in suit go further than this, and are for “articles of wearing apparel” generally. I shall not try to separate the good from the bad, because we are holding that the whole invention is invalid, and that includes claim nine, of Patent No. 1,968,-409, which is strictly a collar claim. That claim at least is valid if it required invention to make that contribution which I have just mentioned. My brothers do concede, and I agree with them, that there can be invention in the mere substitution of a new material, but they believe that in this case the substitution was obvious and therefore required no invention. To decide that question we are really obliged to resort to a fiction, because Liebowitz did not consciously substitute Dreyfus’s fabric in a collar; he invented it himself. Because Dreyfus invented it first, we have got to say whether it would have been an invention to make that substitution, if Liebowitz had made it. I speak of one “grade” of Dreyfus’s fabric, because he was primarily after garments in which the cellulose threads _ should melt together to form sheets impervious to water or gas. It is only because he impliedly included those in which the threads did not so completely melt, that his disclosure could be an anticipation at all.
If we were free to impute to the art at large the same knowledge of Dreyfus’s Canadian and English patents that the statute imputes to Liebowitz, the inference in favor of validity would be irresistible. The collar art was literally strewn with efforts to make “semi-soft” collars: all sorts of contrivances had been tried, and few succeeded; nothing like Liebowitz’s collar had appeared, and it had an immediate and a great success when it did. All the conventional determinants of invention would therefore have existed: a long unsatisfied demand; the means to supply it, existing for over six years alongside that demand and available to all; many earlier failures to supply the demand; great and immediate success attending the new invention. However, there is no evidence that the art in fact knew of Dreyfus’s patents, or of any use made of his fabric, if indeed there was any: for all that appears they may have lain unnoticed. Yet even though -we charge nobody but Liebowitz with knowledge of the Dreyfus fabric, I think that this supposititious act of selection was an invention. As I have said, Dreyfus was primarily after a waterproof garment — even a gasproof one — and a garment obviously ought to be as pliable as possible. Therefore a person reading his disclosure would be led to regard it as useful for waterproof cloth: something pliable and impervious. Liebowitz wanted exactly the opposite qualities in his collar: it must be stiff enough to hold its form and it must be pervious to water. These being the characteristics he was in search of, if he had seen Dreyfus’s disclosure it seems to me that he would have turned *903away from it, rather than have been led to adopt it. To observe that the fabric there disclosed might be used for a “semi-soft” collar, if.one took care not to let the cellulose threads melt into a solid sheet, and' to select that grade of it in which they did not, for a use wholly foreign to any of its declared uses, seem to me an authentic invention, and an exceedingly meritorious invention. Indeed, I could not very well hold otherwise, for the case is indistinguishable from my decision in Van Heusen Products, Inc., v. Earl & Wilson, D.C., 300 F. 922.