APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
This case was defended upon the ground that one Gilbert H. Blakesley, the real defendant in the case, long before this
patent was issued, manufactured hair-crimpers in substantially the manner specified in the patent. The substance of the testimony in this connection is that in the latter part of 1875, one Julius Wright, whose principal business was the manufacture of garters at Bristol, Connecticut, began the manufacture of hair-crimpers by rolling a sheet of copper to the proper thickness, putting it upon a reel, and braiding it with silk. "Then," says he, "I had this taken off a reel and stretched out on a bench, and at certain lengths that I wanted to cut the crimps I used the dextrine with a brush for the same purpose that we did for cutting up the garter, that is, to assist in cutting up. Then those that I made, I made a little brass tip, as I called it, which I put on to give the crimper a finish, or ornament, whichever might be proper." He states the object of applying the cement to have been "to adhere the silk to the metal, and stiffen it, so as to cut it." he was engaged in this way for one or two months, and made up about thirty gross of crimpers. The dextrine was laid on at intervals of about two and a half inches, and the advantage of using it seems to have been to facilitate the cutting of the crimpers at these points, and providing them with a silver-plated clip at each end. It was not claimed that Wright cemented the braided covering to the core "throughout its entire length," as specified in the first claim of the patent.
He further testified that Blakesley took up the business in the spring of 1876, by passing the strips of metal up through a dish of dextrine, after which it was braided with silk. He says the metal was not covered when it entered the dish, but it looked wet and discolored as it emerged, and that the effect of passing the strip through the cement or dextrine, and then applying the silk covering, would be to secure the covering to the metal. Blakesley stated the process as follows: "I directed a plain strip of brass thtough a dish of dextrine provided with a roller journalled in a dish, thereby to immerse the strip, passing it to the braider, while wet with cement, to which the silk cover adhered throughout the length of the strip. I then cut them up at any point I desired." He judges that he made some fifty gross or more in this way, and then
changed his plan by making them with a double covering. "I first covered the plain strip of metal with cotton, the strip being dry. I then conducted the cotton-braided strip through the silk braider, applying a cover of silk. The cotton-covered strip was conducted through a dish of dextrine under a roller journalled in the dish, thence to a pair of stripping rolls situated between the dish and the braider. This dextrine saturating the cotton thoroughly throughout its length, the stripping rolls depriving it of the surplus cement, leaving it wet and thoroughly saturated, and wet enough to receive the silk covering, and cement it, so that all three -- core, cotton cover, and silk cover -- were cemented together. They were cut up and packed as before."
The court below held, with regard to the double-cover process used by Blakesley, that the braided covering was immersed in the dextrine, "not in order to cement it to the core, but to enable the material to be cut without fraying out. The adhesion of the strands together, and not their adhesion to the core, was the object he had in view." The court, however, regarded the theory that Blakesley made crimpers also by immersing a strip of metal in dextrine and then covering it, as refuted by the omission of both Blakesley and Wright to mention the fact in their affidavits used to oppose a motion for a preliminary injunction, as those affidavits purported to give a full history of the manufacture of crimpers by Blakesley, "and the omission to state what was so important, if true, is significant."
Acting upon this theory, the court directed an interlocutory decree for the plaintiffs. Defendants thereupon moved immediately for an order to reopen the case for the admission of additional testimony bearing upon the question of anticipation, and for a rehearing; and presented seven affidavits in support of Blakesley's testimony concerning the manufacture of crimpers by passing a bare strip of metal through the dextrine before the silk braid was applied; and also the affidavit of his counsel, explaining the omission of the mention of this particular in the affidavits of Wright and Blakesley, read in opposition to the motion for a preliminary
injunction. The court denied a rehearing, and the case was referred to a master, who proceeded to take testimony in respect of the damages, and submitted a report, upon which a final decree was entered. Under these circumstances, we have not felt at liberty to consider the affidavits for a rehearing.
But assuming that the court was correct in its conclusion that the testimony of Wright and Blakesley, with respect to the process of immersing the bare strip of metal in the dextrine, and then covering it, should be disregarded, by reason of their omission to mention the fact in their affidavits to oppose the injunction, the question still remains whether the process about which they did testify, and which it is admitted Blakesley did adopt, was not a substantial anticipation of the Mills and Hershey patent. This, which is known as the double-cover process, consisted in covering the plain strip of metal with cotton, and conducting the strip so covered through a dish of dextrine under a roller journalled in the dish, and thus saturating the cotton thoroughly throughout its length; thence to a pair or stripping rolls, which deprived it of the surplus cement, when the cover was braided on, so that, as he states, "all three -- core, cotton, cover and silk cover -- were cemented together." Blakesley states that the cotton strands did not make as compact a braid as silk, but left the meshes somewhat open, so as to allow the cement to circulate more freely through the covering. If, as he states to have been the case, the saturation of the cotton was so thorough that all three -- core, cotton cover, and silk cover -- were cemented together, it is difficult to see why this process did not cover everything that is claimed ...