On Rehearing.
(January 39, 1897.)
An opinion was filed in this (‘ase on December 16, 1896. Thereupon the defendants asked for a rehearing upon the issue of anticipation as affected by the Booth British patent of February 22, 1881, and on December 28, 1896, a reargumerit was allowed on two questions, namely: (1) Does the Booth patent, on its face, disclose the invention of the patent in suit? (2) Did Booth or any one else, prior to the application of Bywater, make any material which, in the sense of the patent law, was the same as the Bywater patented fabric?
The second of these questions was, of course, not supposed to be important, except as the answer to it might throw some light upon the first. In iny former consideration of the subject, my judgment was strongly influenced by the conviction then impressed upon my mind respecting this auxiliary inquiry. I believed that no true knitted Astrakhan had ever been made prior to tbe application for the patent in suit, and mainly upon that ground was led to think that the defendants’ expert and practical knitters must he at fault in supposing that the By water fabric was disclosed by Die Booth patent. Now, however, upon a careful review of the whole matter, aided by the very thorough additional briefs which have been submitted, I have become convinced that my original conclusion was erroneous. It is not necessary to pursue here (he elaborate arguments of counsel. No useful purpose would be subserved by doing so. It is sufficient to say that I a.m satisfied that the uncontradicted evidence of the defendants’ witnesses was not correctly dealt with in ■my disposition of this case in the first instance, because, as I now view the first of the questions which have been reargued, it is one which can safely be determined only upon tbe testimony of those *818■familiar with the art. By adducing such testimony, the defendants discharged themselves of the burden of proof, which at first rested upon them. They thereby established, at least prima facie, the identity of the fabric disclosed by the Booth patent with that of the patent sued on; and, this being so, the absence of any answering evidence on the part of the plaintiff must be regarded as decisive against him. The direction for a decree for the complainant is vacated, and the bill is dismissed, with costs.