Patents may be granted for any new and useful art, machine, manufacture, or composition of matter, or for any new and useful improvement thereof, subject to the conditions specified in the patent act. 16 Stat 201. Inventions, in order that they may be patentable, must be new and useful, and the improvement must be of such a character that it involved invention to make it, as the act of congress confers no right to obtain a patent except to a person who has invented or discovered what is declared to be patentable.
Patents in due form, when introduced by a party suing for an infringement, afford a prima facie presumption that the patentee is the original and first inventor of what is therein described as his invention. Other de-fences, however, besides want of patentability, if due notice of the same is given, are allowed by law. Three need only be mentioned: (1) That the improvement had been patented, or described in some printed publication prior to the supposed invention or discovery; (2) that the complainant was not the [original and first] 2 inventor of the improvement; (3) that the improvement had been in public use, or on sale, in this country for more than two years before the application for a patent, or that it had been abandoned. Rev. St § 4920, p. 960.
[NOTE. For another case involving this patent, see Collender v. Bailey, Case No. 2,998.)Three modes of applying the invention are stated in the specification, and they are severally sufficient to show to the court that the patentee complied strictly with that provision in the act of congress which requires the applicant for a patent, before he' can receive it, to file in the patent office a written description of the manner of making, constructing, and using his invention, and also to show that the invention is capable of subserving some useful purpose, as claimed by the complainant. Construed in the light of these suggestions, it is quite clear that it is for a new and useful mode of making and constructing the described parts of a billiard table.
Unquestionably the invention relates chiefly to the cushion, but the true construction of the patent is that the invention is for a new and useful mode of constructing the described part of the table used in playing billiards. Much discussion of the defence that the invention was previously described in the foreign patent named is quite unnecessary, as the court is clearly of the opinion that the theory of fact involved in the proposition cannot be sustained, for the reason that the invention is not described in the specification of that patent. Justly compared, it is so clear that the two are essentially and substantially different, that it would be waste of words to pursue the inquiry. Defences alleged in the answer must be proved, which •is all that need be said in response to the proposition that the invention was previously known to, and used by, the persons named in the answer, even if it be assumed that the defence, as pleaded, is sufficient to defeat the complainant’s patent, which is by no means admitted. Nothing, therefore, remains to be considered except the question of infringement Certain admissions in the answer, and in the proofs, aid very much in determining that question; as, for example, it is admitted in the answer that the respondents have made and sold, and are now making and selling, cushions such as are described in the specification of the Came patent, and the evidence proves that they manufacture cushions like Exhibit 19, which is admitted in argument. Carefully compared, the court is of the opinion that the manufacture of the respondents is substantially the same as that of the complainant Differences exist in the description of the primary elements of the manufacture, but the patentee of the Came patent states, that in the manufacture of his cushion the compound band is to be entirely surrounded by rubber along the whole length of the cushion, and just within it, in a line parallel to the face against which, in the use of the table, the ball strikes; and he adds that the location of the compound band is obtained by suitably securing it in the rubber-cushion mould before vulcanization, and obviously, by vulcanizing the rubber, a union is made between it and the woven casing of sufficient strength to resist all strain at that point, resulting from the impact of the balls on the face of the cushion, the woven casing, under such strains, being held to the band by its tight and close fit, as therein previously explained. Support to the conclusion expressed is also derived from the claim of the patent, which is, “an India-rubber billiard cushion, constructed with an embedded spring band, having woven about it light and close-fitting fibrous casing or covering, as described, for the purpose specified.” Mechanical differences, undoubtedly, exist, but the general mode of constructing the two cushions is the same, as more fully appears by comparing the manufacture of the respondents with the machine of the complainant, as described in the specification of his patent. Compared in that way, the conclusion mu»*’ be, in the opinion of the court, that the charge of infringement is satisfactorily proved.
Decree for an account and for an injunction.
[From 2 Ban. & A. 412.]