828

J'BDBBAL

REPORTER,vol. 52.

vention was in this use of cinder" but it was unperceived. At any rate the matter was not followed up beyond the experimental stage. Such use;: therefore, cannot avail as against the plaintilfs;Th,e Barbed Wire PafJent,BUFa· , It iSlSigtIiflcant that in the original answer, which was verified December 16, 1889, the defendants, in describing the construction of their' heating;furnaces at Leechburg,stated that HUp until about a year last past" they had used a layer of coke on the bottom of the furnace, but that "within about a yeai' last past" this layer of coke had been dispensed;;with. ' But oli December 11, 1890, by an amendment to the answer;lthey fixed the time when they first substituted a layer of bru\en cinder {oithe coke at "some time in the spring of 1887." The defense of anticipatory use at Leechburg rests upon the oral testimony of seven witnesses, doubtless honest enough, but who as to the time when cinder bottoms were intf9(1uced there from mere general reeo11eotion. No one of them pretends to exactitude, nor is any circumatancementioned having any natural conn'ection with the main fact, orteriding to determine the ,date with certainty. They testified. three 'years after the event. Upon the unreliability of such testimony, coming'even: from the best-intentioned 'witnesses, we need not enlarge. Oneo£tbese witnesses, Harry E. Sheldon, the manager of the Leechburg works; having ftom recollection :named ,the spring of 1887 as the time when ·the change from coke bottOms. to cinder bottoms was made, was if he had' then beard of their use elsewhere, . His answer was: "Howl first came to hear' about cinder bottoms in sheet furnaces I cannot tell;;Lhave been trying to think'. , Somebody told me, hut who it was ,I:cannotrecollectj nor dol recollect where.l!: But She1,10n's want of supplied by. George B. Pavitt, 'a witness on the part of the plaintiffel,and Johli C. Wallace; a member of the defen Iant firm, and also a member of the Irondale firm of Wallace, Banfield & Co., who testified, in !taebalf of the, defendants. " Being asked. 'On cross-examination at which 'place, (Irondale lei-Leechburg) the cinder bottom was first used, Wallace answered: "To ,the best of: my knowledge, as far as I know anything about it, it wadirat used at Irondale. That was the first place I knew of;itsuse. By 'Irondale' 1 mean at the works of Wallace, Banwho is a sheet heater, states that he first field & saw the cinder bottoms' used at the works of Wallace, Banfield & Co. , Limited, at Irondale, Ohio, where he was then wor:kinJ, and that he then and there learned that Francis and Banfield wer J the inventors; that subsequently-to the best of his recollection, in December, 18R7 -he made a visit to Leechburg, and' that they were then using coke bottOffiS at the defendants' Leechburg works; that on the occasion of this visit he conversed with Mr. Sheldon, the defendants' manager, about cinder bottoms, and he gives that conversation as this: "Mr. Sheldon asked me what 1 thought of the cinder bottom. I told him that it was a good thing. Then he asked me about what size they broke the tap to put in the· furnaoe, and I told him about the size of an egg. That was the conversation:between him and me." At the

v.

KIRKPATRICK & CO.

829

He seems

time he testified Mr. Pavitt was in the defendants' em ploy.

to be an entirely disinterested and candid witness, and we discover

no reason to doubt his truthfulness or the accuracy of his recollection·. Moreover, as to his visit to Leechburg in Deoember, 1887, and the then use of coke bottoms at the defendants' works there, Pavitt is direotly corroborated by Charles S. Lynn, who was then a sheet heater in the defendants' employ, and Charles Woodhouse, their watchman. Both these witnesses testify that Pavitt on that visit told them, respectively, of the use of cinder bottoms at Irondale, and that very shortly afterwards the defendants made the change from coke to cinder bottoms. They say tllis change was made in December, 1887. Lynn states that he worked the first heat on the cinder bottom when it was introduced into the defendants' works. In addition to the witnesses just named, the plaintiffs examined 10 other witnesses, who were employes of the defendants at Leechburg, some of them during the whole, and some dming part, of the year 1887. We will not undertake to recite their testimony, but content ourselves with saying that, upon the whole evidence, it seems to us clear that the defendants did not begin to use cinder . bottoms at their Leechburg works before very late in the month ofNovemher, and probably not until December, 1887. In view of this conclusion, we do not deem itneoessarv to discuss the evidence touching the alleged anticipations at Apollo and Mansfield, for we find in the brief of the defendants' learned 'counsel these frank admissions: ." It is conceded on all hands that cinder bottoms were used at Leechburg prior to their use at Apolloi'1 and "nobody questions that they were' in at Leechburg before Mansfield. " In our judgment, there is no evidence in the case to. justify the, finding that the plaintiffs' invention was anticipated anywhere. There is no evidence to rebut the presumption arising from the grant of the patent,that the invention was the joint production of the two patentees.. Nod.. any inference ,unfavorable to the plaintiffs to be drawn from the facttaat they did not take the witness stand. We do not see that there was any occasion for their testifying in their own behalf. Nor in the proofs anything to show that the plaintiffs invited or encourttged the defendants to appropriate their invention, or anything upon which the defendants can rightly base a claim to a license, or which would equitably preclude the plaintiffs from calling upon the defendants for an "ccount. In our opinion, the defendants have failed to establish a defense upon any ground. Let a decree be drawn in favor of the plaintiffs. BUFFINGTON, District Judge, concurs.

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Dist\'iet Judge., ''!he, complainants are, paekell's of salmon at Astoria; rOreg<>h.',: The defoodants are wholesale grocers in the city of New York. Th>e OOntl'oversyrelates to,theose of the word H Epicure" as a tl'ad&omal'k fot>ca.nned salmon. After a careful: investigation, which discomplainants, on the 4th of Aucovered no instance ofsitriilar gust, 1885,registerediha trade·mark in the patent office. The applicationwasfiled July 7, 1885, and, 'stated' that the trade..mark had been used in tlteb rbusinessllirlceJune20j1885.For a few years prior to the latter datethedefen'dll.nts; at intervll.ls and to a limited extent, had used fur canned'tomatoes and canned· peaches. The the word as complainal'ltswere, therefore, the .first to use the word "Epicure" as a trade-mark,for;eannedsailmon. ,The d,efendants were the first to use it as a trade-mark for canned tomatoes and canned peaches. . The simple question, then,is whether the defendants' use of the word 'as applied to tomatoes atld'peaches the complainants-from, selecting it as a trade..mark'Jorsalmon. iTbe complainants hadbuilt;up an extensive business; in .olmnedsalmon, under this name before the defendants asserted their right'to apply.it' to' all canned goods' sold by them, salmon inclUded. ' ;Itis, stated,lihatthe compllllnantshav:e soM about &,500,000 ,packages of ,lIEpicure"saltnon. ,Their business is large and flourishing. 'It is devoted exc1usivelyto salmonipa.cking.ln the summer of1891 the defendant$< sold, one dozen cans of$almon bearing: this brand. ' It is 'asserted tha.t [this 'was, ,done for the purpose of testing the question now presented. The rights of the parties must beasoortainedand'measured by the situation as it existed in 1885 when complainants entered the field. If the deHad they the right at that time, to usethewor'd fendants had then sought to restrain the complainants' use of the word they would, in all probability, have been promptly dismissed from court with the information that their business as dealers in fruit could not be injured by the use of the term "Epicure" in salmon packing. No one who has not permanently parted with his wits could purchase a can of salmon supposing he was getting a can of tomatoes. "Epicure" when
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