netism and magnetic currents of the body. This result I accomplish by surrounding the works or the watch with a complete shield of highly magnetic metal, or an alloy or combination of metals which, in common language, may be said to absorb or turn aside the magnetic currents, thereby preventing their reaching the works of the watch movement." Although the patentee describes such protector as a box, or case, preferably designed to go inside the regular case of the watch, he also suggests, as above shown, a case for the watch itself. He also states as follows: "I have thus described one way in which my invention may be carried out practically, but I do not limit_my_improvement to this particular mode of embodiment. The shield may be of any suitable form and construction, provided only, it so nearly incloses the watch as to accomplish the object explained; and it may be made of any metal or compound which is adapted to secure the result described." I have not overlooked the evidence that the claimed anticipations are mere paper patents, which have never been successfully used. But such objection is insufficient where the modifications merely consist in matters of detail which could have been made by any mechanic, or do not require invention. Pickering v. McCullough, 104 U. S. 310. The most that can be claimed for this patent is that it is for a more economical device, with higher finish, or greater beauty of surface, than had been heretofore made, and that it has been extensively adopted and used by the public. But it is well settled that these circumstances are not, in themselves, sufficient to constitute invention. Ansonia, etc., Co. v. Electrical Supply Co., 144 U. S. 11, 12 Sup. Ct. 601. In Duer v. Lock Co., 37 Fed. 342, where large and increasing sales were relied upon to support the claim of patentability, the court below held that the proof of acceptance by the public was not sufficient to demonstrate the inventive novelty of what appeared to be the product of ordinary mechanical skill. And the supreme court, affirming this decision, held that such a criterion was an unsafe one, as, among other considerations, the popularity might be due, as it apparently is in this case, to the more attractive appearance, or the more perfect finish, of the article. Such evidence is not conclusive of novelty, and still less of patentable novelty. Duer v. Lock Co., 149 U. S. 216, 13 Sup. Ct. 850; Grant v. Walter, 148 U. S. 547, 13 Sup. Ct. 699; McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 76. In order to constitute invention, there must be some contribution of creative thought. The fact of contrivance in the creation proves the fact of invention in its creator. But here no field was left for invention. The protectors against pickpockets of 30 years ago serve as the protectors against the dynamo of to-day by merely striking off the fastening device. The iron protector of Giles, inclosing a watch case or its movements, describes everything in the patent in suit, except old details of construction, or higher finish. The protector specifically described by him as designed to hold the movements of one watch would be practically the protector of the patent in suit for another watch smaller in size, and could be adapted to such use by any skilled mechanic. It is entirely clear that, the covering of the movements of a watch to protect against magnetism being once conceded to be old, there is no novelty in the particular shape in which these coverings are made; it is a mere matter of mechanical taste or skill. Mr. Justice Brown, in Pope Manuf'g Co. v. Gormully, etc., Manuf'g Co., 144 U. S., at page 247, 12 Sup. Ct. 637. This case seems to fall within the principle applied where, by reason of the development of an art, new exigencies arise which demand new appliances, or the application of old appliances to new uses, analogous to those already known. An illustration especially in point is Hollister v. Manufacturing Co., 113 U. S. 59, 5 Sup. Ct. 717, where a form of revenue stamp was shown to possess novelty and increased utility, and, having been found to furnish a valuable means for the prevention of fraud, had been adopted for general use by the internal revenue bureau. But the court held that, the character of these frauds rendered possible by the stamp system of taxation, having called the matter to the attention of those persons competent to deal with the subject, suggested the necessary modification of previous devices so as to accomplish the desired object, and that such modified device was only the result of the application of the common knowledge and experience of such persons, and was in no sense the creative work of the inventive faculty. So, in Aron v. Railroad Co., 132 U. S. 84, 10 Sup. Ct. 24, where a patentee claimed a new form of railway car gates, especially adapted for use on the elevated railroads, the supreme court, affirming the decision of Judge Wallace, dismissing the bill, quotes from his opinion as follows: "The patentee is entitled to the merit of being the first to conceive of the convenience and utility of a gate opening and closing mechanism which could be operated efficiently by an attendant in the new situation. His right to a patent, however, must rest upon the novelty of the means he contrives to carry his idea into practical application. It rarely happens that old instrumentalities are so perfectly adapted for a use for which they were not originally intended as not to require any alteration or modification. If these changes involve only the exercise of ordinary mechanical skill, they do not sanction the patent; and in most of the adjudged cases where it has been held that the application of old devices to a new use was not patentable there were changes of form, proportion, or organization of this character which were necessary to accommodate them to the new occasion. The present case falls within this category." Here the development of the electrical art required merely such a developed article as the skilled artisan was competent to produce. These considerations seem to establish that, prior to the alleged invention, the public had acquired the right to use substantially the same devices, for the same and other uses; that, even if the use to which it was applied by the patentee were a different use, it was an analogous one, with no change in the nature of the result or one which did not involve invention in view of the state of the art. It further appears that the modifications introduced into the patented device were a mere carrying forward of the original thought, by changes in form, proportions, or degree. That these circumstances do not constitute invention, is conclusively established by the foregoing and other decisions. Smith v. Nichols, 21 Wall. 115; Pennsylvania R. Co. v. Locomotive Engine Safety Truck Co., 110 U. S. 490, 4 Sup. Ct. 220; Blake v. City and County of San Francisco, 113 U. S. 680, 5 Sup. Ct. 692. See the cases collected It seems to me further that there is no such inter-correspondence JOHNSON et al. v. JOHNSTON. (Circuit Court, W. D. Pennsylvania. February 15, 1894.) No. 14. 1. PATENTABLE DEVICE-GENERAL INDEX. Letters patent No. 461,787, granted October 20, 1891, to Montgomery 2. INVENTION-CAMPBELL AND WATSON INDEXES. Letters patent No. 461,787 were granted to Montgomery H. Watson on horizontal line, representing the initials of Christian names, under which are placed figures referring to the pages on which those names are found. In the Watson patent, this table showing the initials of Christian names, and the pages on which they are to be found, is placed at the top of each page of the index, whose arrangement as to surnames is substantially the same as that of Campbell's index. The effect of this improvement is to make each page, practically, a complete index, and to avoid the wear and tear and the loss of time involved in turning constantly to the fly leaf, as it is necessary to do both in making and in searching the Campbell index. Held, that the Watson improvement involves invention, and the patent is valid. In Equity. On final hearing. Bill by Johnson & Watson against William G. Johnston for infringement of a patent. Decree for complainants. H. A. Toulmin, for complainants. W. Bakewell & Sons, for defendant. ACHESON, Circuit Judge. The plaintiffs sue for the infringement of letters patent No. 461,787, dated October 20, 1891, granted to Montgomery H. Watson, for an improvement in general indexes. The patented index is designed for use in connection with books in which are recorded the names of individuals, and facts and transactions; for example, entries in the order book or ap pearance docket of a court, or the record of deeds or mortgages in the books of a recorder. The specification states that, in making up a complete set of index books for sale and use, each index volume is designated by a letter of the alphabet, all surnames commencing with that particular letter being written in that volume. Each page is headed with such designations as relate to the particular uses of the index, and is ruled to agree with such uses. Across each page of the index volume-preferably, near the topis a table composed of the letters of the alphabet, progressively arranged, which stand for the initials of the Christian names of all persons whose names are written in the columns of that volume, and a figure or figures, associated with each of said initial letters, referring to the numbers on the page or pages of the volume. By the use of the index of Christian-name initials and associated numbers, the name of any particular person can be found in the index volume, and opposite this name will be found the volume and page of the record book containing the matter sought for. No matter at what page of the index volume the searcher may open it, he will there find a ready and accurate reference to the particular page on which will be found the name for which he is searching. Indeed, every page is a complete index. The claims of the patent are: "(1) As a new article of manufacture, an index book or volume consisting of numbered pages suitably ruled, headed, and numbered, and of a table composed of the letters of the alphabet appearing on said pages, such letters representing the initials of Christian names, and a figure or figures associated with each of said initial letters, and corresponding with a page or pages in said book, the book being designated by a letter of the alphabet. (2) As a new article of manufacture, the herein described index book or volume, the same being designated by a letter of the alphabet, and consisting of a suitable number of pages consecutively numbered, one or more pages of such book being devoted to Christian names commencing with a certain letter of the alphabet, and each page being suitably headed and ruled, and a table on each page, consisting of the letters of the alphabet progressively arranged, and a figure or figures corresponding with a page or pages of said book." Infringement is clearly shown. In truth, the index books which the defendant made for and sold to the county of Allegheny, Pa., for use in the prothonotary's office, (the act of infringement here complained of,) are identical with the index of the patent. Two defenses have been urged: First, that the patent in suit is not for a patentable subject-matter; second, that the patent lacks invention, especially in view of the prior state of the art. 1. The term "manufacture," as used in the patent law, has a very comprehensive sense, embracing whatever is made by the art or industry of man, not being a machine, a composition of matter, or a design. Curt. Pat. § 27; 1 Rob. Pat. § 183. In Waring v. Johnson, 6 Fed. 500, letters patent for an improvement in pocket check books were sustained by Judge Blatchford; and in Norrington v. Bank, 25 Fed. 199, Judge Colt sustained a patent whose subject-matter was of a like nature. In Dugan v. Gregg, 48 Fed. 227, a combined book and index, so connected as to facilitate the more ready and convenient handling thereof, was held to be a patentable improvement by Judge Coxe, who, also, in Carter & Co. v. Wollschlaeger, 53 Fed. 573, upheld a patent for an improvement in duplicate memorandum sales slips, following a decision of Judge Colt in Carter & Co. v. Houghton, 53 Fed. 577, sustaining the same patent. In Thomson v. Bank, 3 C. C. A. 518, 53 Fed. 250, the United States circuit court of appeals for the eighth circuit sustained a patent for a bank account book, the improvement consisting in a suitable number of full leaves and alternate series of short leaves, each of the latter being creased or perforated for folding in such a manner as to transfer the column of balances on the right-hand page to the succeeding left-hand page. I have no difficulty in holding that the subject-matter of the patent in suit is patentable. As 2. Does the improvement in general indexes devised by Watson involve invention? Here, I think, is the pinch of the case. anticipating Watson's improvement, or, at least, as depriving it of the quality of invention, the defendant particularly relies upon the Campbell index, which, it is shown, has been used for many years in Allegheny county. It consists of a blank book with as many divisions as there are letters in the alphabet, devoted, respectively, to surnames having corresponding initial letters, while on a fly leaf in the front or at the back of the book are the letters of the alphabet, in a horizontal line, representing the initials of the Christian names, under which are placed figures referring to the pages of the book where the names are to be found. Now, at first view, this earlier index might seem to be decisive against the plaintiffs. It is, however, shown that, in actual practice, the Campbell index was found to be subject to serious objections; so much so that, whereas the commissioners of Allegheny county paid $4,000 for the right to use the Campbell index, yet, in furnishing indexes for |