Page:Federal Reporter, 1st Series, Volume 9.djvu/720

BOYKIN ti. BAKBB. 705 �watching the demand for and the reported saccess of certain formu- las sold by thetn, they were led, he says, to settle upon dissolved bone as superior to anything else. This tends strongly to show an intelli- gent judgment, or business sagaoity, in selecting from things well known and in public use, but it does not show invention or discovery. If the Liebig formula was protected by an existing patent, I do not see that it could be successfully contended that the change made in it by the complainants was not a mere substitution of equivalents, and an infringement. �I have not overlooked the testimony of one of the complainants' experts with regard to the chemical properties contained in and devel- oped by the dissolved bone, and not contained in or developed by the ground bone. But these properties of dissolved bone were known ; their use in fertilizers was known; and it was a common praotice to make use of them in fertilizing compounds, the other ingredients in which were not very different from the one in controversy. Whenever a new material is substituted for an old one in an article of manufacture, as silk for cotton, steel for iron, metal for wood, a better resuit may be obtained, and one which may give a greatly increased beauty, usefulness, or commercial value to the article pro- duced, and may greatly increase the demand for it; but this is a resuit which is to be attributed to mechanical skill or business enter- prise, and not to invention as that word is applied to patents. �With regard to the substitution of ground plaster for calcined plaster, the considerations above stated with regard to the bone apply with still greater force. Indeed, it appears somewhat doubt- ful whether any one skilled in compounding fertilizers would, in 1876, have used calcined plaster in the Liebig formula. When plaster for fertilizing purposes or land plaster is mentioned, it seems to be gen- erally understood to be ground plaster, and certainly required no invention to make use of it in the Liebig formula. �In my opinion the complainants' patent is invalid, and the bill must be dismissed. Y.9,no.l2— 45 ��� �