(dissenting). Appellant sues for infringement of patent No. 1,344,570, which is for wall paper and the method of making it. The patent was applied for August 14, 1918, and granted June 22, 1920. He also sues upon design patent No; 54,152 for wall paper granted November 4, 1919.
The first claim of the patent in suit is for the method of making the wall paper and is not involved here, for the appellee did not manufacture the infringing product but imported it from Germany. Claims 2 and 3 are for the product and read as follows:
“2, A wall paper having a base with a light reflecting surface broken up by wood flour aqd a blending stock forming a cloud effect thereon.
“3. A wall paper having a base of paper stock mixed with a material breaking up the light reflecting surface thereof, and also having a blending stock forming a cloud effect on the top surface of the base.”
The invention relates to the method of making wall paper with cloud effects of visionary depth and the product claims refer to wall paper produced by such method. The inventor says that he has discovered a wall paper having a soft and pleasing, decorative appearance together with a texture and body making it well suited to the operation of hanging and to use as a wall covering. It is produced hy flowing a thin cloud-like coating of a blending paper stock onto a paper base, the surface of which has been broken up or roughened by incorporating with the said surface or with the paper base as a whole, small particles, as wood flour, of a color contrasting with the paper base and which interrupt the otherwise smooth light reflecting surface thereof. Wood flour, which is ground wood, is mixed with the base or main paper pulp stock and is flowed over the Fourdrinier wire in the way usual in such manufacture. The blending stock, finely ground and diluted with much water, is fed to a flow box mounted over the wire and flowed over the base stock while the latter is wet on the wire. There is distributed over the base by the raking action of the wood flour particles which form a cloud or mist on the finished paper. The paper is known in the trade as Harmonella. There are three elements in its manufacture. First, a base (the pulp body of the paper); second, wood flour (breaking up the light reflecting surface) and third, a blending stock (forming a cloud effect thereon). In claim 3, the wood flour is mixed with the base as in the oatmeal paper, and in claim 2, flour is flowed on the surface of the paper base. The wall papers theretofore made were made of two elements, a base and a blending stock. There *846were two main classes of wall papers, one known in the trade as “plain goods” and the other as “printed or stained goods.” Most of the wall papers on the market fall in the second class. There is an indefinite variety in print or stained wall papers. Oatmeal papers are made by adding coarsely ground wood, sawdust ór wood flour to the paper stock before it flows out upon the Fourdrinier wire of the paper machine and the surface of the finished paper is so roughened by these little pieces of wood that an effect of softness is produced. Before the Harmonella paper, the oatmeal paper was popular. The marbleized papers are made by flowing a thin blended stock, usually white, above a plain base, usually colored, while the latter is wet upon the wire. This blend flows out upon the base stock forming large contrasting splotches upon the colored base, the result being a mottled paper resembling onyx or marble. Papers of this kind were used for wrapping and for cover paper, but they were not very successful as wall papers and the reason therefor is said to have been because it is a hard cloudy paper adapted for paneling in public halls where simulation of marble is sought, hut unsuited for dwellings and because it is hard to hang. It is hard to distribute the blending stock evenly over the base with the result that when the web of paper is cut into rolls for ultimate use, the large splotches do not match and the wall is streaked or barred. The inventor has succeeded because he conceived the idea of taking a wall paper made by flowing the blend over an oatmeal base — a pulp blended oatmeal. The wood flour solved the problem and the hard cold marble paper has the appearance of the visionary depth and what is described as a “pleasant warmth.” The splotches of the marbleized paper were softened and dispersed into a kind of mist upon a soft oatmeal background, with the result that the paper was better adapted for hanging. It matched in perfect harmony; there were no streaks. This result was obtained because the little particles of wood projecting from the surface of the base stock on the wire, act as rakes to pull out the fibres of the blending stock and distribute them over the face of the paper not in white splotches, but in soft cloud effect.
The manufacture of this paper has made a very marked impression upon the trade. To the-outsider it may seem trivial, but in the trade, it made for great commercial success. The increase in the sale of Harmonella paper, this record disclosed, was very marked. For example, the appellant’s business from June 1, 1918, to April 1, 1919, was 749,957 lbs. During the ten months period from June 1, 1921, to April 1, 1922, 3,405,451 lbs. which is an increase of five hundred per cent, in three years. In the month of March, 1922, 770,100 lbs. were sold as compared with 106,201 lbs. of oatmeal duplexes, which is the next sought for paper. Men familiar with this trade gave testimony of its unusual demand. Commercial success of this character is a criterion of invention. Smith v. Goodyear, 93 U. S. 486, 23 L. Ed. 952; Potts v. Creager, 155 U. S. 597, 15 Sup. Ct. 194, 39 L. Ed. 275; Mineral Separation Co. v. Hyde, 242 U. S. 261, 37 Sup. Ct. 82, 61 L. Ed. 286. This demand was not brought about through an advertising campaign. Apparently the paper sold on its merit. Nor can it be said that it was due to a fashion or caprice of the public. It has *847continued and increased during a period of four years. It is mg>re than a fashion, for fashions are not likely to last that long. I regard this as persuasive evidence of invention. Mineral Separation Co. v. Hyde, supra.
“Even the smallest invention, if it merits the title, must meet an existing want, yet that want, invoking invention, may never be apparent until some previous invention, imperfectly satisfying the more universal want, discloses the subordinate and narrower need.” Kimball Co. v. Noesting Pin Ticket Co. (C. C. A.) 262 Fed. at page 149.
To view this paper in the light of one not experienced in the art, it may seem trivial and unworthy of the dignity of patent protection, but looking at it with the eyes of one engaged in this trade, the patent represents a large and successful business. To them it is of the utmost importance. No one before satisfied this want and it has been done in simplicity and now has the compliment paid to it of imitation by others. Kurtz v. Belle Hat Fining Co. (C. C. A.) 280 Fed. 282. I think that the patent is valid unless evidence of the prior art defeats it.
As evidence of prior use, four papers were offered in evidence. The Columbia duplexes were the only, ones employed as wall papers; the others were not. The duplexes were similar to marbleized paper and when offered for sale' as wall coverings were not accepted. They were sold before the war and after that were not used. Three patents of the prior art were offered. The first wasi the British patent to Imray, No. 6849 of 1904. The problem of that patent was to distribute the blend and to produce a separate marble paper by causing the blend pulp to move in a serpentine path to a distributing point and thence down an inclined plate and down to the wet paper base on the wires. This resulted in a marble paper, so-called. The paper onto which the blend is flowed is a plain base on mixed woodflour. The Waite & Walker patent shows an effort on the problem of distributing the blend. The inventor did not use wood flour in the base to do it, and he did not get the three-fold Harmonella effect. It was not a wall paper. The German patent to Futz, No. 190,347 was for making a paper having a fixed design applied in pulp by means of a stencil cylinder. It is a two-ply paper, one of the plies being broken up into a figured design. By means of the stencil cylinder, definite sharp-edged pulp patterns were applied upon a wire screen. There is no blend corresponding to the blend as used in making the Harmonella and there is no flowing and no raking. It does not use the wood flour in connection with a pulp blend. It appears that.these prior patents to Imray and Waite & Walker were cited in the Patent Office and the patent was granted over them. Therefore, a strong presumption of validity arises, from the granting of the patent after the rejection of these references to previous patents, which accompanies the effort to sustain the patent in suit when the same is attacked. Canda et al. v. Michigan Iron Co., 124 Fed. 486, 61 C. C. A. 194. I can find nothing in the -prior art which anticipated the patent in suit.
The appellee admits the sale of samples claimed to be the infringing product. An inspection of them satisfactorily demonstrates that there *848is a copying of the appellant’s product. The evidence sufficiently shows that there is an infringement of this product.
I concur in the result in the majority opinion holding that the design patent is invalid. For the reasons above stated, I dissent from that part of the opinion holding patent No. 1,344,570 invalid and think the judgment should be modified accordingly.