CLARK et al. v. HARMON S. PALMER HOLLOW CONCRETE BLDG. BLOCK CO., 149 F. 1001

BAKER, Circuit Judge. Witnesses for appellants, whose testimony stands uncontradicted and whose veracity is unassailed, establish several instances’of prior use. In a hottse, built years before the patent was applied for, layers of rock-face and of smooth-face stones were alternated.. If one rock-face stone lying upon a smooth-face stone be taken as a unit, the seam between them is so fine that to the eye of the ordinary observer the design-,is the same as if one stone were dressed partly rock-face and partly smooth-face. The smooth

part in this instance was only about one-fourth of the width of the rock-face, while the patent indicates that the parts are of substantially equal width. On this ground, and for the further reason that the smooth-face and the roclcTace parts were not made in one piece, it is contended that the instance in question is not an anticipation. The architect testified that there is no fixed rule respecting the comparative widths of the two layers; and the' appearance to the eye would be the -same, we find, whether two stones were used or only one with a line of separation marked thereon.

But, if it were conceded that this instance is not sufficient as an anticipation, we are of the opinion that there was no invention in taking as a design for one piece a11 design that had appeared from the use of two pieces in conjunction. The objections as to the relative widths and as to the design not appearing on one stone are> met by the other instances. •!. Bearing in mind the familiar rule, w.e find no basis for the slightest doubt of the testimony concerning prior use. . The witnesses said that the structures were in existence, as erected, at the time they were testifying. .

Owners,. architects, workmen,- averred, that the structures were'put up- many years prior to the application fon the patent. Appeliee offered no evidence in contradiction, and was and is content to invoke the rule of reasonable doubt. The structures speak for themselves on the question of design. Their nature and their location were such that no pretense can be made that they were erected for the purposes of this case.

As to their age, the pertinent question here was not whether a particular building was, erected in 1881 or in 1882, for instance, but whether the buildings were in existence prior to the alleged invention in 1904. On that we think it not unfair to conclude that the appearance of the structures convinced appellee that the testimony as to age could not he disputed. The Barb Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154, Bettendorf Patents Company v. Little Metal Wheel Company, 123 Fed. 433, 59 C. C.

A. 473, and other cases in which the thing done can only be known as it is reconstructed, years afterwards, from the memory of witnesses, have no pertinency. As to the unfair competition branch of the case, there is no evidence whatever on which to support the decree. Appe'lants simply sold the alleged infringing blocks as of their own make, with no attempt and no intent to palm them off as the goods of another. The decree is reversed, with the direction to dismiss the bill for want of equity.