Supreme Court of United States.
*559 Mr. Thomas William Clarke for appellant.
Mr. J.E. Maynadier, for appellees, submitted on his brief.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
The bill was dismissed by the court below upon the ground that there was nothing novel in an article of manufacture which consisted in printing ornamental figures upon a rubber fabric with a colored ink composed in part of rubber.
The patent in question covers as an article of manufacture:
1. A rubber cloth or fabric, which must be composed wholly or in part of rubber.
2. One or both of the surfaces of such fabric must be printed or stamped with designs in an ink or printing compound of a different color or shade from the body of the fabric.
In these particulars all the claims agree. The last six claims differ from the first only in describing the ink or compound, either as composed of rubber, caoutchouc, gutta-percha, or some analogous substance, or, in addition thereto, as containing *560 sulphur or other substance for rendering the ink vulcanizable, when subjected to heat or the sun's rays.
At the same time, while giving the composition of the ink, the patentee expressly declares that he does not claim the same in and of itself considered, because he proposed to make such ink or printing compound the subject of another patent. The case then reduces itself to the single question whether there is any novelty in printing or stamping a rubber cloth with designs in an ink of a different color or shade. The prior patents put in evidence show very clearly that there is no novelty in printing or stamping upon a rubber fabric designs of various patterns.
In the patent of December 14, 1875, to Dunbar and Lothrop for improvement in the manufacture of floor cloths, the invention consists "of a product composed of a base or foundation of cheap compound of rubber, overlaid or inlaid with a series of strips, figures, or characters of a thin and more expensive material, which is capable of receiving any desired color or tint, these strips or figures being, in the final stage of the vulcanizing process, embedded in the foundation, so that a uniformly even surface exists over the whole." The claim of this patent is for "a floor cloth composed of a body of cheap material, with a series of parallel strips in colors or neutral tints composed of a finer quality of rubber compound, substantially as and for the purposes stated."
In the later patent of March 30, 1880, to Brigham and others, the object of the invention was stated to be "to produce a light, thin, waterproof fabric for dress and similar goods ornamented with figures and colors to resemble ordinary dress and similar goods which are not of the waterproof class." The invention consisted "of a light, thin fabric, woven or otherwise formed, covered with a waterproofing of rubber composition, or a composition in all respects equivalent thereto, printed with ornamental colors and figures (embossed or plain) to resemble ordinary dress or similar goods." The composition described in the patent "is spread upon the cloth in the manner well known in the art, and forms a basis for receiving the colors and holding them in sharp, clear lines without *561 running or blurring, and so as to make well-defined and ornamental figures... . The product is a desirable imitation of figured goods in ordinary colors, and having what may be called a `cloth surface,' ... and all the colors and beauty of appearance of such ordinary dress and similar goods, with the valuable quality, in addition, of capacity to resist or repel moisture." The claim was for "a waterproof fabric for dress and other goods, having a surface of the described waterproof composition, and impressed with figures and colors, as set forth."
It is difficult to see wherein the invention of Aldrich differed in any important or patentable feature from these prior devices. Aldrich may be entitled to a patent for his composition, but the patent in question is not for a rubber fabric printed or stamped with designs in any particular ink or compound, but in any ink composed in whole or in part of rubber, etc., with or without sulphur or other vulcanizing material. While the patent is for a manufacture or product, it is for a product resulting from a specified process of printing or stamping in an ink of this general description. The composition used by Brigham is described as made up of ten pounds of india-rubber in its natural condition and thirty pounds of whiting as a basis. For black goods, lamp-black is added; for white goods, two pounds of zinc-white; for a red. color, vermilion is used, and for other colors, other mineral pigments. But in all cases the rubber and whiting constitute the bulk of the mass, though other known equivalents for rubber may be used, and the ingredients are ground together and then dissolved in benzine.
The ink or compound of Aldrich is composed of different ingredients, of which, however, rubber and naphtha appear to constitute the basis, and the alleged patentable feature consists in printing or stamping ornamental designs with this compound upon a rubber cloth or fabric. There does not seem to be any essential difference in the two patents, the main difference being in the composition used by Aldrich, which is not made the subject of his patent. If, as is claimed by the plaintiff, the invention of Brigham was a practical *562 failure and abandoned, the evidence is equally clear that Aldrich, after putting the goods upon the market for a year and a half, abandoned the business and has not resumed it. There does not seem to be much to choose between them in this particular.
This case is substantially like that of Underwood v. Gerber, ante, 224, decided at the present term, in which the patentee claimed a fabric coated with a composition composed of a precipitate of dye matter, in composition with oil, wax or oleaginous matter, without claiming the composition of this matter. The patent was treated as one for applying the composition to paper, and was found to be without novelty.
The decree of the court below, will, therefore, be
Affirmed.
