an infinite variation without departing from my invention. I claim is

What

1. The method described for manufacturing pyroxyline compounds in imitation of agate and similar minerals, said method consisting in forming sheets of said compounds of suitable colors and mottling, attaching a colored veneer to the upper face of the upper sheets, cutting said sheets in strips, laying up said strips in the press with the veneers upon their edges and at suitable intervals, pressing the whole into a cake and cutting, or planing the finished sheets from said cake, substantially as described.

2. The method described for producing pyroxyline compounds in imitation of agate, the same consisting in forming strips of said compound of suitable colors, attaching to a suitable number of such strips thin sheets of colored veneer, laying up said strips in a press with the veneers at stated intervals and arranged upon their edges, pressing the whole into a cake and cutting the same into sheets, substantially as described.

3. As a new article of manufacture, a sheet of pyroxyline compound in imitation of agate, consisting of suitably colored portions separated by lines of different colors, said lines being formed of thin portions of a similar compound of different color united in a homogeneous mass with the other parts, substantially as described."

By the method above described the veneer containing the coloring matter used for producing the veined or streaked effect in imitation agate is placed on and by pressure in the calender rolls attached to the upper side of each alternate sheet of celluloid in a series of sheets from which the "cake" is to be formed. The sheets are then cut into strips and the latter are placed on edge in a press whereby substantially equal intervals are left between the veneering in the alternate sheets as contained in the strips. When the "cake" is thus formed the finished sheets are cut or planed from its top and disclose the veneer "as fine lines, or bands, of color running across the face of the sheet." By this method the veins are either lines substantially straight and parallel to each other or curved lines substantially corresponding in curvature and direction. The irregular veins or streaks in the natural onyx, it is true, cannot be imitated by this method. By the method of the patent in suit the imitation onyx base is formed before the insertion of the coloring matter representing the veins and streaks. By the France method the coloring matter representing the veins and streaks is applied before the formation of the imitation agate base. It is not necessary, however, to rest our conclusion that the Stevens & Harrison process lacks novelty and invention upon the France method alone. The specification in letters patent No. 211,860, dated February 4, 1879, issued to John A. Mehling, for "Improvements in Artificial Stone Veneer," discloses a method of making artificial marble and other stone which in its relation to the production of imitation veins, streaks or bands, we think is substantially identical with the method of the patent in suit. The specification in the Mehling patent is in part as follows:

"My improvements have relation to the ornamentation of wood, stone, metal or other material by the application thereto of a thin coating or veneer of artificial stone; and said improvements consist in the production of a new and useful article, as will be hereinafter first fully described, and then pointed out in the claim. The desirability and utility of a veneer of artificial marble or other stone for purposes of ornamenting mantels, wainscoting, furniture, caskets, &c., are obvious from a consideration of the inexpensive nature of the material and the highly ornamental effects which may be produced by its application. In accordance with my improved method the surface

* * *

which is to be veneered should be prepared in some suitable way so as to hold the marble or stone. * I take cement or plaster (Keene's or other suitable ground cement preferred,) mix with water to about the consistency of butter, then add colors, which must vary in accordance with the stone desired to be imitated. The colors might be mingled in the dry state with the cement. The cement is next rolled out to the thickness desired and placed upon the prepared surface to be ornamented, or it may be rolled directly upon this surface, as is desirable in many cases. To produce a veneer which shall represent an inlaid surface, as in Fig. 1, I roll out the material, as before, to any thickness required, and cut out the places to be filled with a chisel or similar implement. The places thus left are filled with other material made to represent different stones. This cutting should be accomplished while the material is yet plastic; or, if done when it is hard, the body-coating must be made wet, by which it is soon softened, and the filling should immediately follow. The surface is then dressed off, and, when dry, may be polished as before. Instead of cutting through the veneer, I find it preferable in some cases-as when several pieces are to be made of the same design-to stamp the required indentations in the plastic material by use of a surface having corresponding ribs or projections; or, if the material has already hardened, the outlines of the design to be inlaid may be cut with a knife in stamp shape. This is much quicker and gives more uniform results. Into the indentations thus produced the required inlay material is placed, and the whole finished off as before. So far as the invention is concerned, it is intended to employ any of the known bases for the artificial stone, except, of course, such as will not admit of manipulation as explained."

That the Mehling method relates to cement while that in question relates to celluloid or other pyroxyline compounds is a wholly immaterial difference. The two methods cannot be distinguished from each other in their relation to the production of artificial veins, streaks or bands. In each the base is first formed. In each the base while plastic is then cut or has the required indentations stamped in it. In each the coloring matter is then inserted in the cuts or indentations, as the case may be, to produce the desired imitation. The solidification of "the whole into blocks, shapes or masses, substantially as described," after the insertion of the coloring matter in the cuts, clearly does not disclose either patentable novelty or invention. We feel constrained to hold that the presumption in favor of patent No. 546,360, has successfully been rebutted.

The Thurber & Schaefer patent, No. 542,452, relates to an "Improvement in Celluloid Articles and in the Process of Manufacturing the Same." The claims are as follows:

"1. The process of manufacturing articles of celluloid or similar material, consisting in, first, serrating, or otherwise irregularly forming, the edge of the blank, and then subjecting the said blank to the action of dies to form the flaring crinkled rim or border of the finished article, substantially as described. 2. A finished dish or plate made of celluloid, or similar material, having a body and a flaring crinkled rim or border, the edge of said rim or border being serrated or otherwise irregularly formed, and having the same edge as that of the blank from which the dish or plate was formed, substantially as described."

The defendant as early as the summer of 1893 manufactured and sold celluloid boxes, baskets and trays with flaring and crinkled or fluted rims or borders. A sheet or blank of celluloid of the proper size was placed between the parts of a die, subjected to heat and rendered soft or plastic, and then pressed in the die, with the result that such portion of the sheet as was not in contact with the die became flaring and fluted or crinkled. The material upon cool

ing became hard and any superfluous material in the rim or border was trimmed off by the use of a knife or saw. By the method of the patent in suit the blank is given a serrated or irregular edge before it is placed and pressed in the die. By the defendant's former method whatever ornamentation or finishing was given to the edge was imparted after the action of the die upon the blank. In view of the prior state of the art we fail to discover invention either in the product or method of production claimed in patent No. 542,452. Exception is taken by the complainant to the first, second and third assignments of error as being too general, vague and indefinite. The nature of the decree appealed from is such as to render greater particularity unnecessary, if not impracticable. Having reached the conclusion that the patents in suit for the reasons given cannot be sustained, no opinion is expressed on the contention by the defendant that the method described in claims 1 and 2 of patent No. 546,360, includes merely a series of mechanical manipulations and as such is not patentable.

The decree below is reversed with costs.

(97 Fed. 99.)

WESTINGHOUSE ELECTRIC & MANUFACTURING CO. v. TRIUMPH ELECTRIC CO.

(Circuit Court of Appeals, Sixth Circuit.

No. 664.

October 3, 1899.)

1. DESIGN PATENTS-CONSTRUCTION OF STATUTE-PATENTABILITY. The purpose of congress in authorizing the granting of patents for designs is to give encouragement to the decorative arts, and in the provision of Rev. St. § 4929, which authorizes the issuance of a patent to any person who has invented and produced "any new, useful and original shape or configuration of any article of manufacture," the word "useful," which was introduced by the revision of 1870, does not require that the shape or configuration of an article, in order to be patentable, shall add some new utility to the article, but is used merely to exclude such things as might have a vicious or corrupting tendency, and a new and original design for an article may be patentable where it merely improves its appear

ance.

2. SAME-FRAME FOR ELECTRIC MACHINES.

The Schmid design patent, No. 21,416, for a design of a configuration of a frame for electric machines, the only originality claimed for which is the curvature of the bases of the pillars for supporting the shaft, and of the supports to the cylinder frame for the field, does not disclose patentable invention, and is void.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

This is an appeal from a decree of the circuit court dismissing the bill of the Westinghouse Electric & Manufacturing Company against the Triumph Electric Company, seeking to enjoin the alleged infringement of a design patent (No. 21,416) issued March 22, 1892, to 38 C.C.A.-5

The

Albert Schmid, and assigned by Schmid to the complainant. patent was for a design of a new and useful configuration of a frame for electric machines. The frame is seen in Figs. 1 and 2 of the patent:

Fig.1.

The patent says:

"The leading feature of the design is the general configuration of the frame with the extensions which constitute the supporting pillars for a shaft. A represents this frame. The bottom portion is of a somewhat rectangular shape, being rounded, however, at the corners, as indicated at a. The central portion is cylindrical in form. It is located nearer to one end of the base than the other, and its sides, resting upon the base, are curved, as indicated at a3. The pillars, a2, rise from the bottom portion or base at opposite ends. The sides of these pillars are of curved contour, as shown at c, gradually sinking to the base, and joining or nearly joining the curves of the adjacent edges of the cylindrical portion, thus giving a pleasing appearance to the structure. Owing to the greater distance of the cylindrical portion from one end of the base than the other, the curves will unite less acutely at one end than at the other. What I claim as my invention is the design for the frame of a machine substantially as herein shown and described."

Wesley G. Carr, for appellant.

L. M. Hosea, for appellee.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT, Circuit Judge. Section 4929 of the Revised Statutes pro

vides that:

"Any person who by his own industry, genius, efforts and expense, has invented and produced (1) any new and original design for a manufacture, bust, statue, alto-relievo or bas relief; (2) any new and original design for the printing of woolen, silk, cotton or other fabrics; (3) any new and original impression, ornament, pattern, print or picture to be printed, painted, cast or otherwise placed on or worked into any article of manufacture; (4) or any new, useful and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the fee prescribed and other due proceedings had, the same as in cases of invention or discoveries, obtain a patent therefor."

Of this statute the supreme court says, speaking by the chief justice, in the case of Smith v. Saddle Co., 148 U. S. 674-678, 13 Sup. Ct. 768, 769:

"The first three of these classes plainly refer to ornament or to ornament and utility, and the last to new shapes or forms of manufactured articles; and it is under the latter clause that this patent was granted."

The same is true of the patent in suit, and the question is whether that which is here claimed to be a patented configuration is new, useful, and original, and is the shape or configuration of an article of manufacture. The court below held that the term "useful," which was introduced into the statute by the amendment of 1870, required that the shape or configuration should embrace some new utility, and that, as the patent in suit was conceded not to involve any utility different from that presented in other and previous machine frames, the patent was void. We should think it very doubtful whether the word "useful," introduced by revision of the patent laws into the statute, is to have the same meaning as it has in the section providing for patents for useful inventions. The whole purpose of congress, as pointed out by Mr. Justice Strong, speaking for the supreme court, in the case of Gorham Co. v. White, 14 Wall. 511, was to give encouragement to the decorative arts. It contemplated not