theless, under the jurisprudence which prevails here, it is not for me to decide that question,-it is for you; and, although that may be my opinion, it is only my individual opinion, and must have no weight or influence with you. It is a question which you are to decide yourselves, upon the evidence, whether or not this invention of Low was such an advance over prior devices that he may fairly be said to have exhibited inventive genius in its discovery and disclosure. Upon that, in order that I may charge as much of the requests that have been handed to me, I will charge you that the quality of invention must reside and be found in this Low patent; that ordinary mechanical changes made by skilled mechanics, obviously called forth by new conditions, is not invention; and, if the jury find from the evidence an ordinary skilled dentist would have advanced beyond the device of the prior art to the device invented by Low, then the verdict of the jury would have to be for the defendant.

The other question of fact which comes before you to determine is the question of utility. The grant of the patent should be made only for a new and useful invention, and if the invention is useless the patent is void. Therefore it is for you to determine whether or not there is any utility in the invention. There has been a great conflict of testimony upon that point, as you remember, some coming forward and saying that it is highly useful and a great improvement in the art; others coming and saying it is worse than useless, that it is deleterious, and a very unfortunate thing to have anything to do with. You may be very much helped in disposing of all this testimony by one or two considerations. The first of them is that, if it is useful at all, that is sufficient. If there is any utility in it, that is sufficient to support the patent. The measure of utility does not make any difference. It would be a perfectly valid patent if a device is a useful one, although 50 or 100 others might be very much more useful, and although improvements upon the device might make it more useful than it was before. Nor is it necessary that a continuation of usefulness be shown, or that it must be so for a long period of time. That is not essential. If it is useful at all, it sufficiently meets the requirements of the statute that the invention must be a new and useful one to warrant the granting of the patent. On that point you may remember that Dr. Jarvie, one of the witnesses for the defendant, said it would not be useful but for a short time, and that Dr. Littig, another witness for the defendant, said it might last six months in some mouths. I also charge you, as requested by the defendant, that if you find from the evidence that the device or method of the Low patent in suit is without utility, and is not an improvement in the industry to which it relates, then your verdict must be for the defendant. Finally, on this question of usefulness, one of the most important considerations in determining the question is the conduct of the defendant himself. If you find, in answering the other question in the case, as to infringement, that the defendant has used this invention, the testimony which he may introduce to show that the invention is a useless one is not likely to be supposed to have the same measure of weight that the same evidence would have if introduced by a person who did not use it. The mere circumstance

that the defendant chooses to use it seems to indicate that, from his point of view at least, it was a patentable invention.

As to the question of law in the case, let me instruct you exactly what it is that this patent conveys,-the exact measure of the monopoly. It is a method of inserting and supporting artificial teeth, which consists in attaching said artificial teeth to continuous bands, fitted and cemented to the adjoining teeth, whereby the artificial teeth are supported by the said permanent teeth without dependence upon the gum beneath. The artificial teeth are cut away at the back, so as to contact with the gum only along the front lower edge, and are supported by rigid attachment to the adjoining permanent teeth, and not at all by the gum. But the patented device is not restricted to any particular width of band, nor to any particular variety of band, nor to bands which do not turn over at the top. And the patent covers the connection of artificial crowns-crowns fitted upon natural roots, the crown spoken of here as the Richmond crown-by a bar or bridge bearing the artificial tooth or teeth. And it covers also a case where there is only one abutment, and the artificial tooth is hung on one only of the adjacent teeth. That is the invention which is subject to infringement, and the remaining question of fact for you to determine in the case will be whether or not the defendant infringed. What was done by the defendant has been stipulated in the case during the taking of the testimony, as to what work he did. It stands conceded before you that, to the extent of $2,080, the defendant did work which comes fairly within the description of the invention which I have just given to you. As to another sum ($520 worth of work) there arises, however, a question. The stipulation says that as to that $520 the bridge which bore the artificial teeth so carried them that they pressed down on the gum. As I have charged you with regard to the meaning of this patent, the teeth, in order to be within the patent, may contact with the gum, they may contact closely with the gum,-so closely, indeed, that no one could perceive, perhaps, that there was any space between them, or that it was possible to pass anything, water or what not, between them. But they, nevertheless, must not derive any of their support from the gum. If, therefore, from the testimony in this case, you reach the conclusion that although the teeth put in by the defendant in these cases, which amount to $520 worth, actually rested on the gum,that is, actually touched the gum,-but did not receive support from it, then as to that $520 infringement also would be shown. If, however, you reach the conclusion from the evidence that in those cases the teeth not only touched the gum so as to make an apparent closing of all view-point between, but actually derived support from resting upon, the gum, then as to that $520 your verdict would have to be that there was no infringement.

If you reach the conclusion that there is infringement, it will only remain for you to settle the question of damages. The plaintiff claims that that is an easy matter for you, because he had a regular license rate fixed; and the testimony tends to show that there was a license charged by him at one time, and accepted under a license. agreement by the defendant, of $25 for each year that the invention.

was practiced, and 15 per cent. upon all money received for practicing the invention. There is some testimony brought in as to the fact that the plaintiff did not always receive, or did not always exact, that amount. It will be for you, from all the testimony in the case, to determine whether the plaintiff has fairly made out a case as to the $25 a year and 15 per cent. royalty, being the regular license fee that was charged. The mere circumstance that, after some infringer or some licensee had got way behindhand, and owed money for past obligations, both royalty and license, the plaintiff chose to accept some lump sum smaller than the license, in order to get the case settled, would not have a very material bearing on the question. Nor would it be of very material importance that in individual cases, where a man was willing to pay for five years in advance, some discount should be allowed for a payment of that sort. If you are satisfied from the evidence that the plaintiff had a regular license fee of $25 a year, and 15 per cent. royalty, then I charge you that as to the $2,080 the plaintiff would be entitled to recover $25 for each of the five years during which the invention was practiced, and 15 per cent. on $2,080. If, moreover, you reach the conclusion as to the $520. making the total amount $2,600, that it also was an infringement, the same application of license fee and royalty should be made. The license fee would not double, but the $25 license fee for practicing would cover practicing every variety of the invention.

Those are the questions, and the only questions, for you to pass upon. You are first to decide from the testimony whether there is any invention disclosed. If you reach the conclusion that there is no invention disclosed, then your verdict will be for the defendant. Then you are to determine whether the invention is a useful one. If you reach the conclusion that it is a useless invention, then your verdict will be for the defendant. If, on the contrary, you reach the conclusion that patentable novelty was displayed, and that a patentable invention was disclosed, and the invention was a useful one, then it will be for you to determine whether there is any infringement as to the $520. If you reach the conclusion that there is infringement as to the $520,-that is, in the case where the teeth are said to rest on the gum,-then you will cast 15 per cent. on $2,600, and will add to that five years' license fees, at $25 each, and give a verdict for that amount, with interest. If, on the contrary, you reach the conclusion that there was no infringement as to the $520, but you have found already that there was invention and usefulness in the patent, then you will cast your 15 per cent. on $2,080, and add to that five years' license fee, at $25, and for that sum, with interest, you will give your verdict. As to the amount of interest, the words "with interest" will be sufficient. It is a question of law as to what period the interest will run from in this case, and the court will fix the amount and the dates when your verdict comes in.

I will put down here on paper a few figures for you. They will be figures enough for you to take with you to enable you to reach a result: $2,080, infringements as charged; $520, infringements in dispute, that is, as to whether or not the teeth resting on the gums

are supported by the gums; the rate of royalty, 15 per cent.; license fee, $25 per annum; number of years, five.

Now, I will take any requests to charge. Except as charged, I decline to charge each and every one of the 11 requests submitted by the defendant, but do charge the request submitted this morning as the twelfth one, that the burden of proving infringement rests on the plaintiff.

The jury rendered the following verdict: For the plaintiff in the amount of 15 per cent. on $2.080, and five years' license fees, making a total of $437, with interest.

(November 16, 1901.)

I do not think this is a proper case for treble damages. A defense similarly prosecuted, after the questions raised in this action shall have been passed upon, if so passed upon favorably to complainant, might present a very different situation.

R. THOMAS & SONS CO. v. ELECTRIC PORCELAIN & MFG. CO. et al. (Circuit Court, D. New Jersey. November 11, 1901.)

L PATENTS-INVENTION-ELECTRICAL INSULATORS.

The Boch patent, No. 600,475, for an electrical insulator and method of making same, describes a porcelain insulator for use with high-tension conductors, made, according to the process shown, in two or more separate parts or shells molded so as to nest or fit into each other, and which when dried are coated with glaze, placed together with the open side up, and extra liquid glaze poured into annular channels provided to receive it between the parts. When placed in the oven for firing in this position, the extra glazing material melts, and flows down as the clay shrinks, and fills the spaces and any crevice or crack which may form in the process of firing. Held, that while neither the making of insulators in parts fitted into each other, nor the uniting of such parts by glazing. was novel, the combination of them with the further step of supplying an extra amount of liquid glaze sufficient to not only fuse the parts into a whole, but to fill all crevices, the result being a superior article, constituted invention, and was not anticipated by anything in the prior art. Such patent also held infringed.

2. SAME-ANTICIPATION.

An unsuccessful and abandoned experiment does not operate as an anticipation, particularly where it involved no use or discovery of the process or product subsequently invented, however close it may have come to doing so.

3. SAME PRIORITY OF INVENTION-INTERFERENCE PROCEEDINGS ACCESS TO FILES.

Semble, where interference proceedings are declared between two different applications for a patent, it will not be presumed that one applicant derived anything from the other, merely because of having access under the rules of the patent office to the other's files.

4. SAME-PATENTABILITY-ESTOPPEL.

While the defendant in infringement proceedings may not be estopped from contesting the question of patentability, because of his having himself applied for the same identical patent, it does not come with good grace for him or his assigns to do so.

5. SAME-NEW RESULT.

While the application of an old process to a similar or analogous subject, with no change in the manner of the application, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated, yet, if a new

combination and arrangement of known elements produce a new and beneficial result never attained before, it is evidence of invention as a general rule.

6. SAME-PRIORITY OF INVENTION-CONCLUSIVENESS OF DECISION IN INTERFER ENCE PROCEEDINGS.

Where the question of priority of invention between two applicants for patents for the same article or process has been determined in interference proceedings in the patent office, and especiall, where the decision of the commissioner has been affirmed on appeal by the court of appeals of the District of Columbia, such decision is conclusive between the parties, at least when no new evidence is adduced, and the question will not be reopened.

In Equity. Suit for infringement of patent. On final hearing. The following cuts and extracts from the specification illustrate the Boch insulator, and the process of its manufacture: