As detailed in the majority opinion, Huston has made an attractive peanut package, and both by the excellence of his product and his ingenious methods of distribution and exhibit has acquired a good reputation for it. Jelks has imitated the package in color, shape, and material, and in the mode of its exhibit so closely as likely to cause confusion of the two products and amount to unfair competition. I agree that Huston is entitled'to protection on this ground. But the first three claims of his bag patent quoted in the opinion are, I think, clearly without patentable merit. The patent is not for a peanut package or a seal, hut for a bag only, to be used for any edible. A monopoly is claimed by him on making, selling, and using bags of the sort stated in these claims. We have no right to enlarge or to narrow the claims in order to sustain them, but must consider them as they are. Claims 1 and 3 are quite similar, the elements claimed being an elongated, transparent bag, longer than a man’s hand is wide) and narrow enough to be grasped in the hand and inserted in the mouth. The statements that the contents are to be poured into the mouth and that the size of the end joints is reduced are utility arguments, but add nothing to the claimed elements. Claim 2 adds as an element a method of manufacture, to wit, made flat like an envelope. This mode of manufacture according to the record and by common knowledge is the original, usual, and cheapest way to make a small paper bag. No one claims any patentable novelty for that idea. So claim 2 may be put aside. As to claims 1 and 3, the record demonstrates, and the specifications for this very patent admit, that the use of transparent and translucent paper in display hags for edibles is old. There is therefore no possible novelty left but the idea of making a bag small enough to be grasped by the hand and to go into the mouth, and longer than a hand-breadth — presumably as much longer as is necessary to hold the desired quantity of edible. Now the idea of eating or drinking direct from a container is as old, doubtless, as the use of containers. We have been drinking out of bottles, and even out of paper envelopes in the sleeping ears, for many years before Huston’s patent. That it was invention to apply the idea to peanuts I will not admit. Huston uses a bag 1% x 6 inches, a well-proportioned, attractive package; but he has not patented its design. His patent seems to rest on mere dimension, yet he has really specified no dimensions. Experiment with an average hand and mouth will show that an envelope as much as three inches wide will make a cylinder a little less than two inches in *9diameter which can, he readily grasped by the hand and inserted in the month; and the average hand-breadth is about four inches. It follows that any hag three inches wide or under, and four inches long or longer, is within this patent, and if the patent is upheld cannot be used by another than Huston. If his idea, were patentable, there is no perfected invention in establishing these loose limits of size. While Huston has made a commercial success of peanuts, it is due to advertising, salesmanship, and a good product in the bag, and not to the fact that the bag is less than three inches wide and more than four inches long.
Just as clearly the patent is defeated by prior publication and prior use. The Pla niters’ Company’s catalogue showing its “See-Thru” products put up in transparent paper sacks of retail size was undoubtedly printed and circulated umong their trade in 1912. A catalogue, though not a library hook, is a publication within the patent law. Imperial Glass Co. v. Heisey (C. C. A.) 294 F. 267; Jockmus v. Leviton (C. C. A.) 28 F.(2d) 812. The ten-cent almond packages there illustrated look to be very much the size and proportions of Huston’s hag. The almonds shown in them and plainly visible in the pictures of the packages are as good a standard of measurement as a man’s mouth or hand. The bags are thus shown as about two almonds length wide and about five long. And these and many other transparent bags less than three inches wide and more than four inches long were made and used by the Planters’ Company in their business for ten years before this patent was applied for. Prior use by a single person in this country prevents Huston being the inventor. Twentieth Century Co. v. Loew Mfg. Co. (C. C. A.) 243 F. 373; Egbert v. Lippmann, 104 U. S. 333, 26 L. Ed. 755. Mere samples which were never used are sufficient. Dalby v. Lynes (C. C.) 64 F. 376. If we put out of consideration the whole range of sizes which Huston has patented, and look only to the size which he is using for peanuts, and thus confine ourselves to the almond bags, they show a clear prior public use for several years. They were no abandoned experiment. They ceased to be used in 1915, not for any imperfection in the bag, but only because the almonds could no longer be bought reasonably to be put into them. Sixteen witnesses, most of them having no financial interest in this controversy, testified to these transactions of the Planters’ Company, and their testimony being uncontradicted, ought not to he set aside because the catalogues and paper bags were perishable and have perished.
The former decision of this court merely held that the presumption of validity saved this patent from condemnation without a. hearing. It is of no weight after the hearing. Mast-Foos Co. v. Stover Mfg. Co., 177 U. S. at page 489, 20 S. Ct. 708, 44 L. Ed. 856.