c37:No. 1146

MORTON, District Judge
(dissenting). It is beyond dispute (1) that nobody before Arkell had ever made any sort of crinkled paper having a stated and predetermined amount of stretch, and that such paper when first manufactured by him was a new product; (2) that Arkell’s machine, the patents on which are in question, was invented by him to make such paper, and that nothing identical with that machine in construction, and nothing which would accomplish the same result had previously been devised. These facts seem to me almost conclusive on the issue of invention.
Moreover, there is no evidence, except the recitals in the patent to B. Arkell, which I shall refer to later, that anybody before Arkell had crinkled in any practical way finished heavy paper in a manner which preserved the free “stretchability” essential to the uses here in question. The only previous crinkling of heavy paper had been in connection with the original manufacture, and with the object of making a thick elastic paper for carpet linings and packing — an essentially different article from Arkell’s and not adapted to the same uses.
Remaking a finished product may well involve difficulties, which are not present when the same result is obtained as part of the original process of manufacture, and which cannot be solved simply by reference to that process. On the testimony of the defendant’s witness Allen and other witnesses, that was true in this instance; and it was a very different thing to crinkle heavy paper after it had been finished, from doing so by merely running it against a doctor blade adjusted to the last roller on the paper-making machine, before the paper had been dried.
The saturating bath, the squeeze roll, the lateral spreading, the second wetting while adherent to the crinkling cylinder, the carrier adjusted to retain the correct degree of crinkling, all as embodied in the Arkell machine, constitute a set of unified operations which admittedly had never before been brought together, some of the essential steps in which, e. g., the separate squeeze roll, the rewetting, and the adjustment of the carrier, were wholly new, and which achieved a new and valuable result. This constituted patentable invention. Grinnell Washing Mach. Co. v. E. E. Johnson Co., 247 U. S. 426, 38 Sup. Ct. 547, 62 L. Ed. 1196. To say, as my Brethren in effect do say, that some of the elements being old, and those which are new being obvious as connecting steps between those which were old, therefore the combination or process as a whole lacked invention, seems to me not in accord with the established law on the subject of invention. Arkell’s machine, like his process, should be judged as a whole, not by the novelty of each separate element. Stead Lens Co. v. Kryptok Co., 214 Fed. 368, 376, 377, 131 C. C. A. 144.
Great stress is laid in the majority opinion on certain recitals in the patent to B. Arkell, dated August 11, 1896 ; but his testimony as to those recitals, and the state of the paper-making art at that time, is ignored without discussion, and I think without sufficient reason. He is not contradicted. Evidence to contradict him on the state of the art could certainly have been obtained by the defendant, and no doubt it would have been presented, if what he says were not true. The usefulness of the bag which he patented was recognized, but he was unable to obtain crinkled paper suitable for making it before his father’s inventions here in question, a lapse of several years.
In order to negative invention, it devolved upon the defendant to prove that the crinkling of finished heavy paper in such a way as to produce and retain free “stretchability” of a predetermined amount was something which anybody skilled in the paper-making art could have done at the time of the patents in suit. The evidence, in my opinion, is far from justifying such a finding. Controlling the “stretchability” of the product by varying the speed of the carrier had never been even suggested. As applied to the Arkell machine it was a thought not lacking in brilliancy and of great value, which, as it seems to me, was by no means anticipated by the knowledge that in crinkling machines the speed of the carrier had to be adjusted to the rate at which the paper came off the doctor blade. The moving parts of any machine have to be in adjustment with each other; but it does not follow that all results which can be obtained by .variation of the adjustments are obvious.
The paper as it came from the doctor blade was crinkled more than necessary for actual use, and was so shortened that much of it was wasted. It was essential to avoid this loss, and at the same time to make sure that the product would have the requisite capacity to stretch freely. Arkell was tire first to accomplish this result, and was the first to crinkle successfully finished heavy paper. To this extent, at least, I think that his patents are essentially pioneer patents, and entitled to the liberal construction accorded such grants. On the reasoning of my .Brethren, Watt’s conception of the steam engine involved no invention, because the' expansive force of confined steam was previously known and cylinders and pistons were in common use.
If there be doubt on the question whether these patents show invention, the long public acquiescence in them entitles the patentee and his assigns to have that doubt resolved in his favor. The patents ha^e been outstanding about 13 years. This is the first time their validity has ever been questioned in court proceedings. They are of recognized, value, and this long acquiescence clearly shows that the public familiar with the art to which they belong has not supposed that they lacked invention or were invalid on that ground. Such public opinion on such a matter ought not to be lightly disregarded; it is too likely to be right.
Holding these views, I am of opinion that several of the mechanical and process claims are not void for lack of invention and have been infringed.
See Cadillac Motor Car Co. v. Austin, 225 Fed. 983, 141 C. C. A. 105, for discussion of a very similar question, and also, as to wlutt constitutes invention, Proudfit Loose Leaf Co. et al. v. Kalamazoo Loose Leaf Binder Co., 230 Fed. 120, 144 C. C. A. 418; Frey et al. v. Marvel Auto Supply Co., 236 Fed. 916, 150 C. C. A. 178; Ohmer Fare Register Co. v. Ohmer et al., 238 Fed. 182, 151 C. C. A. 258; Neill et al. v. Kinney, 239 Fed. 309, 152 C. C. A. 297; Barber v. Otis Motor Sales Co., 240 Fed. 723, 153 C. C. A. 521.

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