382, 5 Fed. Cas. No. 2,488; Burr v. Cowperthwait, (1858) 4 Blatchf. 163, 4 Fed. Cas. No. 2,188; Bean v. Smallwood, (1843) 2 Story 408, 2 Fed. Cas. No. 1,173; Renwick v. Pond, (1872) 10 Blachf. 39, 20 Fed. Cas. No. 11,702; Matter of Merrill, (1874) 1 MacArthur (D. C.) 301. But see Arkell v. J. M. Hurd Paper-Bag Co., (1870) 7 Blatchf. 475, 1 Fed. Cas. No. 532.

A patent cannot properly issue for a result sought to be accomplished by the inventor of a machine, but only for the mechanical means or instrumentalities by which that result is to be obtained. In re Gardner, (1908) 32 App. Cas. (D. C.)

249.

"It is for the discovery or invention of some practicable method or means of producing a beneficial result or effect that a patent is granted, and not for the result or effect itself. It is when the term 'process' is used to represent the means or method of producing a result that it is patentable, and it will include all methods or means which are not effected by mechanism or mechanical combinations." Westinghouse v. Boyden PowerBrake Co., (1898) 170 U. S. 537, 18 S. Ct. 707, 42 U. S. (L. ed.) 1136.

Separate patent for function or result. A separate patent may not be issued for a mere function, result, or operation of a machine as for art or process, but they must be protected if at all by a machine patent. Le Roy v. Tatham, (1860) 22 How. 132, 16 U. S. (L. ed.) 366; Corning v. Burden, (1853) 15 How. 252, 14 U. S. (L. ed.) 683; O'Reilly . Morse, (1853) 15 How. 62, 14 U. S. (L. ed.) 601; Carver v. Hyde, (1842) 16 Pet. 513, 10 U. S. (L. ed.) 1051; Wyeth . Stone, (1840) 1 Story 273, 30 Fed. Cas. No. 18,107; Rubber-Tip Pencil Co. v. Howard, (1874) 20 Wall. 498, 22 U. S. (L. ed.) 410; Philadelphia, etc., R. Co. v. Dubois, (1871) 12 Wall. 47, 20 U. S. (L. ed.) 265; Burr v. Duryee, (1864) 1 Wall. 531, 17 U. S. (L. ed.) 650; Risdon Iron, etc., Works v. Medart, (1895) 158 U. S. 68, 15 S. Ct. 745, 39 U. S. (L. ed.) 899; Knapp c. Morss, (1893) 150 U. S. 221, 14 S. Ct. 81, 37 U. S. (L. ed.) 1059; Heald v. Rice, (1882) 104 U. S. 737, 26 U. S. (L. ed.) 910; James v. Campbell, (1882) 104 U. S. 356, 26 U. S. (L. ed.) 786; Fuller v. Yentzer, (1877) 94 U. S. 288, 24 U. S. (L. ed.) 103; Cochrane v. Deener, (1877) 94 U. S. 780, 24 U. S. (L. ed.) 139; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., (C. C. A. 8th Cir. 1901) 106 Fed. 693, 45 C. C. A. 544; Stokes Bros. Mfg. Co. v. Heller, (C. C. N. J. 1899) 96 Fed. 104; American Strawboard Co. v. Elkhart Egg-Case Co., (C. C. Ind. 1898) 84 Fed. 960; Gindorff v. Deering, (N. D. Ill. 1897) 81 Fed. 952; Wells Glass Co. v. Henderson, (C. C. A. 7th Cir. 1895) 67 Fed. 930, 34 U. S. App. 19, 15 C. C. A. 84; Uhlman v. Arnholdt, etc.,

Brewing Co., (E. D. Pa. 1893) 53 Fed. 485; Brush Electric Co. v. Ft. Wayne Electric Light Co., (C. C. Ind. 1889) 40 Fed. 826; Excelsior Needle Co. v. Union Needle Co., (S. D. N. Y. 1885) 32 Fed. 221; MacKay v. Jackman, (S. D. N. Y 1882) 12 Fed. 615; Gage v. Kellogg, (N. D. N. Y. 1885) 23 Fed. 891; Hatch t. Moffitt, (C. C. Mass. 1883) 15 Fed. 252; Brainard v. Cramme, (N. D. N. Y. 1882) 12 Fed. 621; Sickels v. Falls Co., (1861) 4 Blatchf. 508, 22 Fed. Cas. No. 12,834; Barrett v. Hall, (1818) 1 Mason 447, 2 Fed. Cas. No. 1,047; Piper v. Brown, (1870) 4 Fish. Pat. Cas. 175, 19 Fed. Cas. No. 11,180; Parham v. American Buttonhole, etc., Co., (1871) 4 Fish. Pat. Cas. 468, 18 Fed. Cas. No. 10,713; Dryfoos v. Weise, (1884) 26 Pat. Off. Gaz. 639; New v. Warren, (1882) 22 Pat. Off. Gaz. 587; Busch v. Jones, (1900) 16 App. Cas. (D. C.) 23.

New function for old machine.- Where a party obtains a patent on an apparatus, he is entitled to all the analogous uses of which his apparatus is capable; and the discovery of a new and analogous function for an old machine is not patentable. In re McNeil, (1906) 28 App. Cas. (D. C.) 461.

Product of process. The product of a process or machine is patentable if it is new in itself as a manufacture without regard to the method of production. Goodyear . Wait, (1867) 5 Blatchf. 468, 10 Fed. Cas. No. 5,587; Providence Rubber Co. v. Goodyear, (1870) 9 Wall. 788, 19 U. S. (L. ed.) 566; Risdon Iron, etc., Works v. Medart, (1895) 158 U. S. 68, 15 S. Ct. 745, 39 U. S. (L. ed.) 899; Plumber r. Sargent, (1887) 120 U. S. 442, 7 S. Ct. 640, 30 U. S. (L. ed.) 737; Western Electric Mfg. Co. v. Ansonia Brass, etc., Co., (1885) 114 U. S. 447, 5 S. Ct. 941, 29 U. S. (L. ed.) 210; Merrill v. Yeomans, (1877) 94 U. S. 568, 24 U. S. (L. ed.) 235; Smith v. Goodyear Dental Vulcanite Co., (1877) 93 U. S. 486, 23 U. S. (L. ed.) 952; Badische Anilin, etc., Fabrik v. Kalle, (S. D. N. Y. 1899) 94 Fed. 163; Cochrane v. Badische Anilin, etc., Fabrik, (1884) 111 U. S. 293, 4 S. Ct. 455, 28 U. S. (L. ed.) 433; Matheson v. Campbell, (S. D. N. Y. 1896) 77 Fed. 280, (C. C. A. 2d Cir. 1897) 78 Fed. 910, 45 U. S. App. 473, 557, 24 C. C. A. 384; Holliday v. Pickhardt, (S. D. N. Y. 1887) 29 Fed. 853; Pickhardt v. Packard, (S. D. N. Y. 1884) 22 Fed. 530; Milligan, etc., Glue Co. v. Upton, (1874) 1 B. & A. Pat. Cas. 497, 17 Fed. Cas. No. 9,607; Merrill v. Yoemans, (1874) 1 B. & A. Pat. Cas. 47, 17 Fed. Cas. No. 9,472.

The product and the process constitute one discovery. Mosler Safe, etc., Co. v. Mosler, (1888) 127 U. S. 354, 8 S. Ct. 1,148, 32 U. S. (L. ed.) 182; Plumber t. Sargent, (1887) 120 U. S. 442, 7 S. Ct. 640, 30 U. S. (L. ed.) 737; Accumulator Co. t. Julien Electric Co., (S. D. N. Y.

1893) 57 Fed. 605; Holstein v. Zeeland Ornamental Co., (C. C. A. 6th Cir. 1914) 211 Fed. 462, 128 C. C. A. 134. Product not new. But where a product is not new in itself it is not patentable because the process or machine used to produce it is new, nor can it be patented as an article made by such process or machine. Wooster v. Calhoun, (1873) 11 Blatchf. 215, 30 Fed. Cas. No. 18,035; Wood Paper Patent, (1874) 23 Wall. 566, 23 U: S. (L. ed.) 31; King v. Gallun, (1883) 109 U. S. 99, 3 S. Ct. 85, 27 U. S. (L. ed.) 870; Giant Powder Co. v. California Powder Works, (1878) 98 U. S. 126, 25 U. S. (L. ed.) 77; Milligan, etc., Glue Co., v. Upton, (1878) 97 U. S. 3, 24 U. S. (L. ed.) 985; Badische Anilin, etc., Fabrik v. Kalle, (S. D. N. Y. 1899) 94 Fed. 163; Holliday v. Pickhardt, (S. D. N. Y. 1887) 29 Fed. 853; MacKay v. Jackman, (S. D. N. Y. 1882) 12 Fed. 615; Sawyer v. Bixby, (1872) 9 Blatchf. 361, 21 Fed. Cas. No. 12,398; Draper v. Hudson, (1873) Holmes 208, 7 Fed. Cas. No. 4,069.

Product of old process.— If a process is old and well known, the product of such process must likewise be considered as old in a patentable sense, and is not patentable as a separate and distinct invention. Victor Talking Mach. Co. v. American Graphophone Co., (S. D. N. Y. 1906) 145 Fed. 189.

Product separated from surrounding materials. No product is patentable, however it be of the process, which is merely separated by the patentee from its surrounding materials and remains unchanged. Parke v. H. K. Mulford Co., (S. D. N. Y. 1911) 189 Fed. 95.

Old article. If an article be old it cannot be the subject of a patent even though artificially produced for the first time. Badische Anilin, etc., Fabrik v. Kalle, (S. D. N. Y. 1899) 94 Fed. 163, citing Cochrane v. Badische Anilin, etc., Fabrik, (1884) 111 U. S. 293, 4 S. Ct. 455, 28 U. S. (L. ed.) 433.

IV. INVENTION

In general. The presence of patentable invention or its breadth or importance does not depend on the mere extent or completeness with which the inventor has modified or altered pre-existing devices. It depends, rather, on the new and beneficial result accomplished in its particular art, and the smallest and seemingly most obvious changes have often produced the most beneficial results in well-organized inventions. This also may be the criterion for considering whether an blage of elements constitutes a patentable combination or Mead an aggregation. Morrison Mfg. Co. v. Exeter Mach. Works, (M. D. Pa. 1912) 196 Fed. 789.

assem

or

New mechanical forms.- Inventors are not held to new mechanical forms physical principles, but only to the new

adaptation and application of those which are already at hand. Eastern Dynamite Co. v. Keystone Powder Mfg. Co., (M. D. Pa. 1908) 164 Fed. 47.

ar

Definition. Invention is any new rangement or combination of old or new material producing a new and useful result. McCormick . Seymour, 15 Fed. Cas. No. 8,725.

Invention is creation rather than progression, origin not improvement. It is the veritable finding of something new, something that did not exist before. Rembusch v. Bennethum, (E. D. Pa. 1914) 214 Fed. 257.

It is the indication of genius and the production of a new idea. New York Belting, etc., Co. v. Magowan, (C. C. N. J. 1886) 27 Fed. 362.

It is the intuitive faculty of the mind put forth in search for new results or new methods. Hollister v. Benedict, etc., Mfg. Co., (1885) 113 U. S. 59, 5 S. Ct. 717, 28 U. S. (L. ed.) 901; Thompson v. Boisselier, (1885) 114 U. S. 1, 5 S. Ct. 1042, 29 U. S. (L. ed.) 76.

Invention is the work of the head as distinguished from the work of the hands. Blandy . Griffith, (1869) 3 Fish. Pat. Cas. 609, 3 Fed. Cas. No. 1,529.

Invention in the sense of the patent law is the finding out, contriving, or creating by the action of the intellect of something not existing or not known before. Smith v. Nichols, (1875) 21 Wall. 112, 22 U. S. (L. ed.) 566; New York Belting, etc., Co. v. Magowan, (C. C. N. J. 1886) 27 Fed. 362; Ransom v. New York, (1856) 1 Fish. Pat. Cas. 252, 20 Fed. Cas. No. 11,573.

Inventive discovery, under the patent law, involves the intelligent apprehension of relations not before recognized by others, although actually existing, followed by the conception of how they can be practically utilized. Eck v. Kutz, (E. D. Pa. 1904) 132 Fed. 758.

In Moline Plow Co. v. Rock Island Plow Co., (C. C. A. 7th Cir. 1914) 212 Fed. 727, 129 C. C. A. 337, the court said: "In order to constitute an invention in the sense in which that word is employed in the patent act, the party alleged to have produced it must have proceeded so far as to have reduced his idea to practice and have embodied it in the same distinct form."

Conception of invention.- Invention is the conception, not the final development. Adams v. Edwards, (1848) 1 Fish Pat. Cas. 1, 1 Fed. Cas. No. 53.

But conception alone, although first in time, is not patentable; it must be accompanied by. mechanical embodiment, which, to make the invention patentable, must itself be unanticipated. Voightmann . Perkinson, (C. C. A. 7th Cir. 1905) 138 Fed. 56, 70 C. C. A. 482, affirming (N. D. III. 1904) 133 Fed. 934. A patent for a machine is not invalid

because of the fact that the patentee obtained the general conception of the machine from another, but without disclosure of any means for carrying the same into effect, which means the patentee himself devised, and which constituted the only invention described and claimed in the patent. Lincoln Iron Works v. W. H. McWhirter Co., (C. C. A. 2d Cir. 1905) 142 Fed. 967, 74 C. C. A. 229, affirming (E. D. N. Y. 1904) 131 Fed. 860.

Necessity of invention. It is not enough that a thing shall be new, in the sense that in the shape or form in which it is produced it shall not have been before known and that it shall be useful," but it must, under the Constitution and statute, amount to an invention or discovery. Thompson v. Boisselier, (1885) 114 Ú. S. 1, 5 S. Ct. 1042, 29 U. S. (L. ed.) 76. For long list of cases see title Patents, 20 R. C. L. 1140, par. 29.

While it is the policy of the patent law to deal liberally with inventors, the courts will not grant a monopoly unless convinced that invention is involved. In re Milans, (1908) 31 App. Cas. (D. C.) 269.

While in a close case involving the question of patentability utility may be given some consideration, the real question is whether there is such originality shown as to call for the exercise of the inventive faculty. In re Sherman, (1910) 35 App. Cas. (D. C.) 100.

Even though the point is not made in the proofs that the device does not disclose patentable invention, it is not to be disregarded when it is plain. Wills v. Scranton Cold Storage Co., (M. D., Pa. 1906) 147 Fed. 525, affirmed (C. C. A. 3d Cir. 1907) 153 Fed. 181, 82 C. C. A.. 355.

Determining invention -The prior state of the art must be taken into consideration to determine whether there is invention or not. Duer v. Corbin Cabinet Lock Co., (1893) 149 U. S. 216, 13 S. Ct. 850, 37 U. S. (L. ed.) 707; Featherstone v. George R. Bidwell Cycle Co., (S. D. N. Y. 1892) 53 Fed. 113; Eastern PaperBag Co. v. Standard Paper-Bag Co., (C. C. Mass. 1887) 30 Fed. 63.

Where the field of invention has been narrowed by many prior devices in the same art, a patent for a new combination must be narrowly construed, and limited to the precise structure shown. Kenney Mfg. Co. v. J. L. Mott Iron Works, (S. D. N. Y. 1905) 137 Fed. 431.

That a structure is within the terms of a patent does not establish infringement, but the scope of the patent must be determined from the state of the prior art. Page Mach. Co. r. Dow, (S. D. N. Y. 1908) 166 Fed. 473.

Where the question of invention is left to the jury in an action for infringe

ment of a patent, no evidence tending to show the true state of the art at the date of the claimed invention should be excluded. Holt Mfg. Co. v. Best Mfg. Co., (C. C. A. 9th Cir. 1909) 172 Fed. 409, 97 C. C. A. 107.

In view of the state of the art of dyeing as disclosed by three patents referred to, it was held that applicants for a patent for a process of producing printed anilin-black designs on vegetable textile fabrics had done nothing more than to apply to two of the patented processes of printing the selection of a combination of the ingredients disclosed in the other patent, and that this did not amount to invention. In re Chase, (1908) 31 App. Cas. (D. C.) 154.

Parts taken from prior art. The presumption of invention is not overcome by the fact that an expert is able to build up the patented device by selecting parts taken from the prior art. Kryptok Co. v. Stead Lens Co., (W. D. Mo. 1913) 207 Fed. 85.

Patent prima facie evidence of invention. In a suit for infringement of a patent the fact that the alleged infringing device is patented is prima facie evidence that it differs from the patent alleged to be infringed. Crowe v. Oscar Barnett Foundry Co., (D. C. N. J. 1913) 206 Fed. 164.

The recognition of a patent by the public affords evidence of invention. Elliott v. Youngstown Car Mfg. Co., (C. C. A. 3d Cir. 1910) 181 Fed. 345, 104 C. C. A. 175, reversing (W. D. Pa. 1909) 173 Fed. 315.

Rebutting presumption of invention.— Where there is an actual and admitted improvement in a combination of old elements, and its utility is shown in a marked degree, there should be controlling reasons to rebut the presumption that there is a sufficiency of invention to support a patent. Imperial Bottle Cap, etc., Co. v. Crown Cork, etc., Co., (C. C. A. 4th Cir. 1905) 139 Fed. 312, 71 C. C. A. 442, reversing (C. C. Md. 1903) 123 Fed. 669.

The fact that an expert, with a patent before him, might be able to build up the structure covered thereby, by selecting and adapting appliances theretofore known, does not overcome the presumption of invention arising from the granting of the patent, where neither the same combination in its entirety nor the same mode of operation had previously been described or known. McMichael, etc., Mfg. Co. v. Ruth, (C. C. A. 3d Cir. 1904) 128 Fed. 706, 63 C. C. A. 304, reversing (E. D. Pa. 1903) 123 Fed. 888.

The fact that an invention was first operated by another than the patentee does not rebut the presumption of invention by him, arising from the granting of the patent, where both persons were present at the time of such operation

and each claims to have been the originator of the experiment from which the invention sprung. National Electric Signaling Co. v. De Forest Wireless Tel. Co., (S. D. N. Y. 1905) 140 Fed. 449.

Determination on demurrer.- When a question of invention is to be disposed of upon demurrer, the sources of knowledge are confined to the letters patent and those related matters of which the court may take judicial notice not to speak of relevant facts well pleaded. When facts of common and general knowledge tend to show that the patented device is old and so has been anticipated, or, when compared with familiar objects of a kindred character, it appears to be a product of mere mechanical skill, the quality of invention may safely be determined and should be on demurrer; and the court may reinforce its recollection of facts that were of common knowledge at the time the patent was applied for, by antecedent and reliable published matter always distinguishing, however, between its own special knowledge and what is considered to be the knowledge of others, where the device in question has been in use. Ferro Concrete Constr. Co. v. Concrete Steel Co., (C. C. A. 6th Cir. 1913) 206 Fed. 666, 124 C. C. A. 466.

Ingenuity, etc., without invention.There may be ingenuity, novelty, and usefulness without invention. Leach v. Chandler, (C. C. Ind. 1885) 24 Fed. 791.

Study, effort, and experiment do not necessarily amount to invention. Butler v. Steckel, (1890) 137 U. S. 21, 11 S. Ct. 25, 34 U. S. (L. ed.) 582.

Superiority or excellence of workmanship is not invention. Davis v. Fredericks, (S. D. N. Y. 1884) 19 Fed 99; International Tooth-Crown Co. v. Gaylord, (1891) 140 U. S. 55, 11 S. Ct. 716, 35 U. S. (L. ed.) 347; Beatty v. Hodges, (1881) 19 Blatchf. (U. S.) 381. Granulated coffee is not patentable as an article of manufacture merely because the process used may produce granules which are more uniform and attractive in appearance than those otherwise produced. Baker v. F. A. Duncombe Mfg. Co., (C. C. A. 8th Cir. 1906) 146 Fed. 744, 77 C. C. A. 234.

Perfection of workmanship is not invention. Reckendorfer v. Faber, (1876) 92 U. S. 347, 23 U. S. (L. ed.) 719; Rubber-Tip Pencil Co. v. Howard, (1874) 20 Wall. 498, 22 U. S. (L. ed.) 410.

Economy of space and cost. It is not invention to make an arrangement economizing space and cheapening construction. Knox v. Murtha, (1871) 9 Blatchf. 205, 14 Fed. Cas. No. 7,911.

Reduction of cost.-A machine need not produce an original result, but, if the new arrangement lessens the cost, there is evidence of invention. National Tube Co. v. Aiken, (C. C. A. 6th Cir. 1908) 163

Fed. 254, 91 C. C. A. 114, affirming (N. D. Ohio 1907) 157 Fed. 691.

Economy of manufacture.-An improvement in a mechanical process which results in increased rapidity of manufacture, and consequent cheapening in cost of the article, does not for that reason alone disclose invention, where the steps in the process remain the same; the only difference being in the relative extent to which certain of such steps are carried. Kahn v. Starrells, (E. D. Pa. 1904) 131 Fed. 464.

Utility without invention. That which has utility but not invention may not be patented. Hill v. Wooster, (1890) 132 U. S. 693, 10 S. Ct. 228, 33 U. S. (L. ed.) 502; Thompson v. Boisselier, (1885) 114 U. S. 1, 5 S. Ct. 1042, 29 U. S. (L. ed.) 76; Leach v. Chandler, (C. C. Ind. 1885) 24 Fed. 791.

Utility as evidence of invention. The utility of a device is not in itself evidence of patentable invention, although it is entitled to weight when that question is doubtful. Union Biscuit Co. v. Peters, (C. C. A. 8th Cir. 1903) 125 Fed. 601, 60 C. C. A. 337, reversing (E. D. Mo. 1903) 120 Fed. 679; Wills v. Scranton Cold Storage Co., (M. D. Pa. 1906) 147 Fed. 525, affirmed (C. C. A. 3d Cir. 1907) 153 Fed. 181, 82 C. C. A. 355. Where the utility of a machine which, by the combination of elements, accomplishes a new result, is not questioned, the invention is entitled to a much greater liberality of treatment than if it dealt merely in specific improvements on an old machine. Lecroix v. Tyberg, (1909) 33 App. Cas. (D. C.) 586.

Invention shown by new combination. - Except in inventions of the most primary character new mechanical forms and appliances are not to be looked for, and there may be invention in making use of those which are known in the same or kindred arts by so adapting and combining them as to bring about new or improved results. Cramer v. 1900 Washer Co., (M. D. Pa. 1908) 163 Fed. 296. Holton v. Pepper, (E. D. Pa. 1914) 216 Fed. 368; Stockland v. Russell Grader Mfg. Co., (C. C. A. 8th Cir. 1915) 222 Fed. 906, 138 C. C. A. 386. See further to the same effect, Bliss v. Spangler, (C. C. A. 9th Cir. 1914) 217 Fed. 394, 132 C. C. A. 210, wherein the court said: "It has long since been settled that an aggregation and association of altogether old elements may constitute invention, if it escapes or rises above mere mechanical skill and produces utility of superior virtue to that previously attained. Webster Loom Co. v. Higgins, [1882] 105 U. S. 580, 26 U. S (L. ed.) 1177." In Benthall Mach. Co. v. National Mach. Corp., (E. D. Va. 1915) 222 Fed. 918, the court, predicating invention of a new combination, said: "Here we have a complete appliance, made up, it may be, in part, from the use

of old elements, but which produces a result due to the joint and co-operate action of all the elements, and making at once a complete and efficient machine of great value and utility in the large field of human endeavor, where real success has heretofore never been attained, and the commercial value of which has been readily recognized by its quickly taking the place virtually of all similar appliances theretofore." Where the elements are old but a new combination produces novelty and utility it may disclose invention. Grinnell Washing Mach. Co. v. Woodrow, (S. D. Ia. 1913) 209 Fed. 621. But hitching old combinations together without change in action or results is not invention. Thus when in a combination of devices for a burglar alarm, the arrangement of the knobs and bolts of doors and lock tumblers with gongs was unlike complainant's, but the differences were mechanical variations not beyond what the ordinary person having skill in the work and knowledge of the prior patent would have contrived, it was held that the rule of equivalents could not be invoked. American Bank Protection Co. v. Electric Protection Co., (C. C. A. 8th Cir. 1913) 209 Fed. 845, 126 C. C. A. 569.

Mere mechanical adjustment is not patentable invention. Hartford WovenWire Mattress Co. v. Peerless Wire Mattress Co., (C. C. Com. 1885) 23 Fed. (7th Cir. 1898) 85 Fed. 441, 57 U. S. App. 343, 29 C. C. A. 261; Palmer v. Superior Mfg. Co., (C. C. A. 2d Cir. 1913) 210 Fed. 452, 127 C. C. A. 284; Positive Lock Washer Co. t. Reliance Mfg. Co., (N. D. Ohio 1913) 214 Fed. 134; Stockland v. Russell Grader Mfg. Co., (C. C. A. 8th Cir. 1915) 222 Fed. 906, 138 C. C. A. 386. But the presumption of invention is not necessarily overcome by the fact that an expert is able to build up the patented device by selecting parts taken from a prior art. Stead Lens Co. v. Kryptok Co., (C. C. A. 8th Cir. 1914) 214 Fed. 368, 131 C. C. A. 144. Merely making the parts of a machine adjustable with respect to each other does not constitute invention, but is within the ordinary ingenuity of a skilled mechanic. Smyth Mig. Co. v. Sheridan, (C. C. A. 2d Cir. 1906) 149 Fed. 208, 79 C. C. A. 166. Means for holding in and out of operative position" a part of a machine are so common in the arts that there can be no invention in such means, except in the details thereof, unless under exceptional circumstances. U. S. Peg-Wood, etc., Co. v. B. F. Sturtevant Co., (C. C. A. 1st Cir. 1903) 125 Fed. 378, 60 C. C. A. 244, affirming (C. C. Mass. 1903) 122 Fed. 470. Readjustment of materials:- Invention may be found in a new structure, involving a readjustment of materials in use, by which new beneficial results are brought about. Edison Electric Light Co. . Novelty Incandescent Lamp Co., (C. C.

66

A. 3d Cir. 1909) 167 Fed. 977, 93 C. C. A. 387, reversing (W. D. 1908) 161 Fed.

549.

The increase of speed of an operation is not invention. International ToothCrown Co. v. Gaylord, (1891) 140 U. S. 55, 11 S. Ct. 716, 35 U. S. (L. ed.) 347. American Fruit Machinery Co. t. Robinson, (C. C. A. 3d Cir. 1914) 219 Fed. 225, 135 C. C. A. 340.

Increasing capacity of machine affords evidence of invention.- National Tube Co. v. Aiken, (C. C. A. 6th Cir. 1908) 163 Fed. 254, 91 C. C. A. 114, affirming (N. D. Ohio 1907) 157 Fed. 691.

Article made more attractive and salable. Obtaining a more attractive exterior, or securing a more salable article, does not prove originality of conception. In re Hoey, (1906) 28 App. Cas. (D. C.)

416.

Applying known processes to new and useful purposes is invention. Pacific Contracting Co. v. Southern California Bituminous Paving Co., (N. D. Cal. 1891) 48 Fed. 300.

Good selection from known materials.— Good selection from known materials does not amount to invention. Babcock, etc., Co. v. Pioneer Iron-Works, (S. D. N. Y. 1888) 34 Fed. 338. But the selection of one substance from among a number as the active agent in a chemical procmay involve patentable invention. Naylor . Alsop Process Co., (C. C. A. 8th Cir. 1909) 168 Fed. 911, 94 C. C. A. 315.

ess

A change of well-known material alone is not invention. Gardner v. Herz, (1886) 118 U. S. 180, 6 S. Ct. 1027, 30 U. S. (L. ed.) 158; Fruit-Cleaning Co. v. Fresno Home-Packing Co., (N. D. Cal. 1899) 94 Fed. 845. But this does not apply to a patent for a new material to be used in making an old article. Celluloid Mfg. Co. v. American Zylonite Co., (S. D. N. Y. 1888) 35 Fed. 417.

The use of old material in an old way to accomplish an old result is not invention. Celluloid Mfg. Co. v. Tower, (C. C. Mass. 1885) 26 Fed. 451.

Doing substantially the same thing in the same way by substantially the same means with better results is not such invention as will sustain a patent. Archer v. Imperial Mach. Co., (S. D. N. Y. 1913) 202 Fed. 962.

Developing known qualities.-The development in a sub-class or new species of known general qualities belonging to that class does not constitute invention. Milligan, etc., Glue Co. v. Upton, (1878) 97 U. S. 3, 24 U. S. (L. ed.) 985.

Bringing art to highest degree of perfection. The patent law does not require that an inventor shall have succeeded in bringing his art to the highest degree of perfection; it is enough if the skilled in the art understand the process and the specification points out a practi