On Rehearing.
After the foregoing decision was rendered, in September, 1871, the case was re-opened, in certain particulars, and further testimony was taken, and the case was reheard. The following decision was given in March, 1872.
BLATCHFORD, District Judge. A decision was rendered in this cause, in September, 1871, on final hearing, dismissing the bill. That decision proceeded upon the ground, that the defendants had not infringed two of the three patents sued on, namely, the re-issued patent to the Modena Hat Company, of April 30th, 1867, and the patent to John L. Kendall and R. H. Trestea, of February 9th, 1869. As to the third patent sued on, that to S. A. Blake, of December 24th, 1861, it was stipulated by the parties, that a French patent, granted to Roger and Ledion, September 15th, 1859, antedated the invention covered by the Blake patent, and the court held that the defendants, in making the hats complained of, had not done anything more than they were warranted m doing by the description furnished, under such stipulation, as the description contained in the' Roger and Ledion patent. The court also held, that, in view of the Roger and Ledion patent, as earlier, the Blake patent, in order to be upheld as a valid patent, must be construed to be limited to a hat in which the embossing is made directly on the muslin, without the intervention of any coating, the required stiffness being given by the embossing itself, without the use of a coating, and the hat being lighter by reason of the absence of the coating; but that, on such construction, the defendants did not infringe the patent, as they used a coating.
Before any decree was entered on that decision, it was discovered by the parties, that the description on which they and the court had acted, as the description contained in the French patent to Roger and Ledion, of September, 1859, was not the description contained in that patent, but was, to a considerable extent, in substance, the description contained in a French patent granted to Roger and Ledion July 19th, 1860. The only patent to Roger and Ledion, set up in the answer as antedating the Blake invention, is that of September, 1859. By consent of the parties, and on the order of the court, the case was reopened, so far as to admit of the taking of testimony to determine whether or not the hats made by the defendants infringe the Blake patent, in view of the Roger and Ledion French patent of September, 1859, and for further argument on the question of infringement and the proper effect to ue given to such French patent, in determining that question. The defendants also had leave to introduce evidence of any additional matter of defence set up in the answer, but not theretofore relied upon and presented to the court, which they might see fit. Further testimony has been taken and the case has been reheard. The conclusion having been reached, in the former decision, that, in view of what was then understood to have been the Roger and Ledion patent of September, 1859, the bill must be dismissed, there were several matters of defence developed in the proofs, which were not considered or passed upon by the court, and which are now open for consideration.
The invention of Blake is not carried back to a date earlier than December 31st, 1859. It is shown, on the part of the defendants, that, as early as 1857, hat or bonnet frames were made of two or more thicknesses of muslin, stuck together by paste, and stamped into the shape of a hat, by means of smooth dies, at one operation, the hat or bonnet frame, when completed, being seamless and consisting of two or more thicknesses of muslin throughout. It is also shown, that, in the spring of the year 1859, hats and bonnets were made out of two-ply and three-ply buckram, (that is, two or three thicknesses of muslin stuck together by starch,) covered with satin, silk or velvet, by means of dies, at one operation, so that, when finished, the hat or bonnet was of one piece, seamless, and consisted of two or three thicknesses of muslin throughout, covered all over with silk, satin or velvet. It is also shown, that it was no new thing, at the daie of Blake’s invention, to stamp paper, and to stamp such two and three-ply buckram, in imitation of straw braid, to be used in making bonnets, by means of flat engraved plates or dies. It is claimed, on the part of the plaintiffs, that, according to the description in the specification of the Blake patent, the product of the action of the dies is the completed body of a bonnet, embossed in imitation of straw, and fit for use as the body of a bonnet, in the shape given to it by the dies, and without further ornamenting or covering its surface; and that it is not merely a frame, or carcase, or skeleton, requiring to be afterwards covered or ornamented, to make its exterior surface so comely and presentable as to be salable as a bonnet; and, further, that it is not merely a fabric having the completed exterior surface necessary in the bonnet salable as such, but not shaped into its ultimate shape by dies, and requiring further manipulation to put it into such ultimate shape. I think these views of Blake’s invention are correct, and that the proper construction of the claim of his patent is, that it claims a bonnet, the body of which is embossed, in imitation of straw or other braid, by dies, which, at the same time, give to it its ulti*534mate shape, such body being made of two or more thicknesses of muslin or other suitable fabric, united by starch or other suitable adhesive and stiffening substance. None or the articles above mentioned as prior inventions anticipate Blake’s invention, on this construction of his claim, which is the construction which, in the former decision, I adopted as the proper one, aside from what was then supposed to be shown by the Roger and Ledion patent of 1850. The article produced according to the Blake invention is new and useful, an improvement in the trade, and patentable.
TNOTE. The case of the same plaintiffs against Barnard, published as a note to the principal case, as reported in 9 Blatehf. 509, is reported herein, sub nom. Baldwin v. Barnard, Case No. 797.]The hat testified to by Shaw as existing in 1857 is too vaguely deposed to. It is not shown how it was, in fact, made. It is not produced. All that there is is the casual observation of it by a person who calls back his recollection of it fourteen years after-wards, and who says it was made, in one piece, of muslin, with a surface of paper in imitation of Leghorn braid, and that it had the appearance of having been shaped, and put into imitation of Leghorn braid, by the use of engraved dies, at one process. Such evidence cannot be admitted as sufficient to invalidate the Blake patent.
This leaves to be considered only the Roger and Ledion patent of 1859. According to the true text of that patent, now produced, there is no suggestion in it of the making of a bonnet by dies, in imitation of straw braid, out of two or more thicknesses of muslin, united into one fabric by starch or other adhesive and stiffening substance. The patent indicates the mould or die, of proper form, and arranged to produce the imitation of straw on “a fabric of flax or cotton,” impregnated with pasty collodion, and speaks of making hats in that way. The patent of Blake makes it an essential point that the bonnet shall be made of two or more thicknesses of fabric, united into a sheet by starch or other suitable adhesive and stiffening material. The importance of using such stiffening material is dwelt on, and the fact that the bonnet, when embossed, has a stiffness of fabric, and, at the same time, a lightness. The evidence shows that there is an advantage, in cheapness of manufacture and in flexibility during manufacture, in using a fabric thus made of two thicknesses, over the use of a single fabric of equal thickness with the two.
The defendants’ bonnet is made in the same way as the bonnet of the Blake patent, in all the features of the claim of that patent. It is made of three thicknesses of muslin, united by starch, and is shaped by dies which, at the same time, emboss it in imitation of straw braid. The fact that the defendants put a coating on the muslin frame before subjecting it to the final action of the dies, does not make the product any the less the Blake product. It is shown, that, in the defendants’ bonnet, corrugations are formed in the fabric itself, by the dies, though to an extent diminished by the thickness of the coating. Adequate stiffness can be given by embossing directly on the muslin, without any coating. But the required stiffness is given when a coating is used.
There must be a decree for the plaintiffs, for a perpetual injunction and an account of profits, as respects the Blake patent, with costs, with a reference to a master to take the account.