[1] This Mell patent was quite fully considered by the Circuit Court of Appeals for the Second Circuit in the case of Republic Rubber Co. v. Morgan & Wright, 197 Fed. 549, 117 C. C. A. 45. In view of the prior art and the nature of the alleged improvements it was held that the patent was void for lack of invention. Counsel for appellant insist in this court: First, that they are entitled to the independent judgment of this court, despite the adverse decision in the second circuit; and, second, that the record in this *172court differs from the record in the second circuit in such material particulars that a different result should be reached, even if this court upon the facts that were before the court of the Second Circuit should concur in the conclusion there reached.
In both records appear the Healy patent and other, structures of the prior art, and also the testimony in relation to what Mell actually did in producing his tire. The Healy tire was for bicycles, and the Mell tire was designed especially for use on automobiles. Therefore the Mell tire had to be constructed in a way to bear much heavier weights and meet much greater strains than was the case with the Healy tire. But Healy, for the use pf bicyclists, sought to accomplish the same objects which Mell later sought for automobilists, namely, the improvement of road-gripping and anti-skidding qualities. And to accomplish those purposes Healy devised a tire provided with outwardly projecting, circumferentially arranged, elongated studs, in parallel lines, and arranged so as to break joints; and each stud considered separately had a base which was relatively larger than its bearing surface, and necessarily had. walls which diverged toward the base. The only difference between the Healy and Mell tires (apart from the difference of dimensions between a bicycle tire and an automobile tire, and the size and number of studs) is that the outer surface of the Healy stud is rounding while the outer surface of the Mell stud is flat, and the base of the Healy stud meets the tread at an obtuse angle while the base of the Mell stud meets or merges into the tread with a curve. These changes in detail, when for automobile uses it seemed desirable to make the studs broader and firmer, would seem to be obvious. And the recital of the testimony given in 197 Fed. at page 551, 117 C. C. A. 45, shows that Mell, in trying out the Healy tire for automobile use, at once observed what details should be changed and instantly suggested how to change them. We agree with the Circuit Court of Appeals for-the Second Circuit that in so doing Mell employed nothing higher than the ordinary knowledge and skill' of a mechanic versed in the art of rubber manufacture, as that art stood prior to the filing of his application.
[2] In the record before us the new thing is said to be the testimony which bears upon the high degree of usefulness of the Mell tire and also the great commercial success that has been achieved in its mahufacture and sale. Matters of this kind can only be used to resolve a doubt in favor of the patentee, when the court has been left in doubt after a full consideration of the nature and scope of the patent and a comparison thereof with the teachings and structures of the prior art. Utility of a device and commercial success in exploiting it cannot be used to resolve the doubt as well as to create it, else every useful and successful thing would be patentable.
The decree is affirmed.