bearing stone, or both, fuses the combination in a cupola, and, blowing with a steam-jet, produces mineral wool, using for the said mixture certain proportions or per cents. not required to be now set forth.

It will not be necessary to examine in detail the other patents relied upon by defendant on this point. I do not find that they sustain the contention we are now considering. I conclude that there is novelty and invention in the Rockwell patents, now owned by the complainant. The previous process-the prior art-related to an entirely different method of manufacturing mineral wool from slag. The Rockwell improvements have been productive of most beneficial results not only to the owners thereof, but to the consumers of mineral wool, as well as to the owners of the raw material thereof, which otherwise in many cases would remain useless articles.

The claim is now made, as has frequently been the case, that the process covered by the invention is so plain and simple as to exclude the possibility of inventive genius. But why was it never resorted to before, if so simple! Why not used, if so plain? It may be simple, yet nevertheless an invention, and while now very plain it is still meritorious. Evidently the patentee has produced something new and useful, the benefits of which have been enjoyed by the public ever since he promulgated it. The process described in the patents has clearly assisted in the manufacture of mineral wool and greatly benefited the particular art to which it relates. If it was to-day eliminated, the formula lost, and the method of procedure forgotten, would not the public suffer a loss? I think so, and hence it follows that the owners of the patents in suit are entitled to the benefits of the same.

Without further discussing the questions involved it follows from what I have said that there is no merit in the defense that the process described had not been anticipated and that it was patentable. That the defendant has infringed it is so clear as not to admit of doubt, and a reference to the testimony on that point is entirely unnecessary. A decree will be passed sustaining the bill of complaint and granting the relief prayed for.

(U. S. Circuit Court of Appeals-Third Circuit.]
CALDWELL et al. v. PoWELL.

Decided April 10, 1896.

77 O. G., 1272.

1. VAN RODEN-DESIGN-College-Badge-Not VoID.

Design patent No. 20,748, granted May 19, 1891, to George C. Van Roden, Held not void on its face for want of invention.

2. DESIGN-COLLEGE-BADGE-PATENTABILITY.

A design for a college-badge, consisting of a pin having the shape of a guidon flag, upon which the letters "U. P." are placed, is not so absolutely void of invention upon its face as to justify the court in sustaining a demurrer upon that ground.

H. Doc. 354- -40

3. DEMURRER-EFFECT UPON BILL.

The effect of a demurrer is to admit the truth of the charges in the bill when the latter are well pleaded.

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

Mr. J. P. Creasdale and Mr. Lewin W. Barringer for the appellants. Mr. George J. Harding (Mr. George Harding, on the brief) for the appellee.

STATEMENT OF THE CASE.

This was a bill by James E. Caldwell and others against Charles S. Powell for infringement of Letters Patent No. 20,748, for a design for a college badge or pin. The Circuit Court sustained a demurrer to the bill for want of patentable invention appearing on the face of said patent and dismissed the suit. (71 Fed. Rep., 970.) Complainants appeal.

Before ACHESON, WALES, and GREEN, Judges.

GREEN, J.:

This bill was filed to restrain the defendant from infringing a patented design. The design itself is for a badge or pin and is of gold (or other metal) and enamel, triangular in shape, like a guidon, having upon the face a combination of red and blue colors, in two horizontal stripes or bars, and bearing the letters "U. P." embossed thereon. This badge or pin was intended mainly for the students in attendance at the University of Pennsylvania, and the colors on the badge are the well-known colors of that university. There is no question made as to the infringement of the design by the defendant. It is admitted.

The bill of complaint is in the usual form of such bills and contains, inter alia, the allegation that one Van Roden

was the original and first inventor of the badge in question, which was not known or used by others in this country, and not patented or described in any printed publication, in this or in any foreign country, prior to the invention thereof by said Van Roden, and not in public use or sale in the United States for more than two years prior to the application for said patent, which application was filed in the United States Patent Office on the 11th day of April, 1891; the said Van Roden fully and in all respects complying with all the requisitions of the law in that behalf.

The bill further stated that the said Van Roden on the 7th day of April, 1891, by a certain instrument in writing

did sell and assign to the firm of James E. Caldwell & Co. the entire right, title, and interest in and to the said invention and design for badge, and did thereby anthorize and request the Commissioner of Patents to issue the said Letters Patent to the firm of James E. Caldwell & Co., which said instrument was recorded in the Patent Office on the 11th day of April, 1891; and the said James E. Caldwell & Co., the complainants, did, in accordance therewith, obtain Letters Patent for said design for badge, issued in due form of law to them, bearing date the 19th day of May, 1891, and numbered 20,748, whereby was granted and secured, according to law, to your orators, their heirs and assigns, for a term of fourteen years from the said date, the full and

exclusive right to make, use, and vend, throughout the United States and the Territories thereof, the invention therein specified and claimed, as in and by said Letters Patent, or certified copy thereof, here in court to be produced, will more fully appear.

The bill contained the further allegation that

the invention or design for badge described and claimed in said Letters Patent is of great value and importance; that badges or pius constructed in accordance therewith have been made and sold in large numbers since the grant of the patent; that the rights of the complainants have been generally acquiesced in and acknowledged by the public; and that, but for the doings of this defendant, and others acting in collusion with him, they would be in the exclusive enjoyment of the rights and privileges granted by and under the said Letters Patent.

The bill then avers that the complainants have placed upon every badge or pin by them made, of this design, the word "Patented" and the date of the granting of the Letters Patent, and charges the defendant with

the making, using, and vending of pins and badges embracing the invention or design for badge, or a material part thereof, patented as aforesaid, and thereby the said defendant has infringed, and still does infringe, upon the exclusive rights and privileges intended to be secured to the said complainants by their said Letters Patent.

The bill concludes with the usual prayer for injunction and other relief. To this bill the defendant has interposed a general demurrer, and for causes of demurrer the want of invention and of novelty in the conception and production of the design were assigned. On the argument of the cause in the court below the demurrer was sustained and the bill dismissed. From that decree this appeal is taken.

It is a general principle of equity pleading that, as a demurrer proceeds upon the ground that, admitting the facts stated in the bill to be true, the complainant is not entitled to the relief he seeks, all matters of fact which are stated in the bill are admitted by the demurrer and cannot be disputed in arguing the question whether the defense thereby made be good or not, and such admission extends to the whole manner and form in which it is here stated; or, to state the principle more concisely, every charge in the bill, well pleaded, is absolutely admitted by the demurrer. Treating the issue raised by the bill and demurrer simply as one of pleading it would be difficult indeed to find the slightest ground for the justification of the demurrer. The bill is full, complete, and orderly in its statements of facts upon which the prayer for relief is based. It is not necessary to repeat again the averments and allegations, which have been already quoted at some length. The effect of the demurrer is to admit their truth. If so, stronger reasons for equitable relief could hardly be advanced.

But the defendant claims that the design itself, as described in the patent, shows absolutely no invention whatever. His insistment is that the badge or pin in question is in shape, or form, or general appearance a mere copy of a well-known style of flag, commonly called a "guidon," and that the court will take judicial notice of this fact, and, having such knowledge, it cannot grant to the complainants any relief,

for they utterly fail to show any cause for the interference of a court of equity. But can it be said by this court, upon demurrer, if it should find that a flag of the shape of a guidon is common and well known, that a badge or a pin molded into a similar shape, bearing upon it, in combination, certain colors and letters, is not novel and does not show invention? The statute which protects inventors requires the produc tion of a new and pleasing design. The invention demanded consists in the conception and production of a design which can be so characterized. The design in this case is not to be found alone in the triangu lar shape, but rather in a conception which combines shape, colors, and letters. As was pertinently said by Mr. Justice Bradley in New York Belting and Packing Co. v. New Jersey Car Spring and Rubber Co., (C. D., 1891, 253; 54 O. G., 135; 137 U. S., 446-450; 11 Sup. Ct., 193:)

Whether or not the design is new is a question of fact, which, whatever our impressions may be, we do not think it proper to determine by taking judicial notice of the various designs which may have come under our observation. It is a question which may and should be raised by answer and settled by proper proofs.

We think, under the circumstances, the defendant should have been put to his answer in this case, and hence the decree below is reversed.

[U. S. Circuit Court of Appeals-Seventh Circuit.]

BRUSH ELECTRIC COMPANY . WESTERN ELECTRIC COMPANY.

1. BRUSH-ELECTRIC LAMP-NOT INFRINGED.

Letters Patent No. 219,208, granted September 2, 1879, to Charles F. Brush. for a double-carbon electric lamp, examined and Held not infringed.

2. PATENTABILITY-MEANS-OBJECT.

The object of an invention is not patentable, the means may be. "Mechanism
to separate
pairs dissimultaneously" is an element of means.

3. INFRINGEMENT.

Devices which effect a distinctly simultaneous separation of pairs of carbons of a lamp do not infringe a patent in which there is claimed a device for securing a dissimultaneous separation of such pairs of carbons.

4. SAME.

The contention that, since it is physically impossible for two sets of carbons to be separated at one and the same electrical instant, the defendant's devices must infringe is manifestly fallacious.

APPEAL from the Circuit Court of the United States for the Northern District of Illinois, Northern Division.

Mr. Henry A. Seymour for the appellant.

Mr. George P. Barton and Mr. Charles A. Brown for the appellee.

STATEMENT OF THE CASE.

These cases were argued at our October session, 1895. They involve questions of the validity, construction, and infringement of Letters

Patent No. 219,208, granted September 2, 1879, to Charles F. Brush for a double-carbon electric lamp. In case No. 271 the Scribner lamp, made in conformity with Patent No. 418,758, granted January 7, 1890, to Charles E. Scribner, and in case No. 272 the monitor lamp and the twin lamp, which the appellee asserts the right to make and use under Letters Patent, also to Scribner, Nos. 502,535 and 502,536, respectively, granted August 1, 1893, are the devices which are alleged to infringe the Brush patent. The claims in question read as follows:

1. In an electric lamp, two or more pairs or sets of carbons, in combination with mechanism constructed to separate said pairs dissimultaneously or successively, substantially as and for the purpose specified.

2. In an electric lamp, two or more pairs or sets of carbons, in combination with mechanism constructed to separate said pairs dissimultaneously or successively and establish the electric light between the members of but one pair, (to wit, the pair last separated,) while the members of the remaining pair or pairs are maintained in a separated relation, substantially as shown.

3. In an electric lamp having more than one pair or set of carbons, the combination, with said carbon sets or pairs, of mechanism constructed to impart to them independent and dissimultaneous separating and feeding movements, whereby the electric light will be established between the members of but one of said pairs or sets at a time, while the,members of the remaining pair or pairs are maintained in a separated relation, substantially as shown.

4. In a single electric lamp, two or more pairs or sets of carbons, all placed in circuit. so that when their members are in contact the current may pass freely through all said pairs alike, in combination with mechanism constructed to separate said pairs dissimultaneously or successively, substantially as and for the purpose shown.

5. In an electric lamp wherein more than one set or pair of carbons are employed, the lifter D or its equivalent, moved by any suitable means, and constructed to act upon said carbons or carbon-holders dissimultaneously or successively, substantially as and for the purpose shown.

6. In an electric lamp wherein more than one pair or set of carbons are employed, a clamp, C, or its equivalent, for each said pair or set, said clamps C adapted to grasp and move said carbons or carbon-holders dissimultaneously or successively, substantially as and for the purpose shown.

The lifter D and the clamps (referred to in the fifth and sixth claims are illustrated by Fig. 2 of the patent, of which the following is a copy: Brush's Patent No. 219,208,

Fig. 2.

C