The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 10
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272 FEDERAL REPORTER
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 tetimony a- to
those recitals, and the state of the paper-making art at that time, is
ignored without discussion, and I think without sufficient reason. IIe
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 use-
fulness 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 "stretch-
abihty" 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 fol-
low that all results which can be obtained by variation of the adjust-
ments 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 the 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 in-
vention, 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 inven-
tion, the long public acquiescence in them entitles the patentee and his
assigns to have that doubt resolved in his favor. The patents have
been outstanding about 13 years. This is the first time their validity
has ever been questioned in court proceedings. They are of recog-
nized 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 pubhc opinion
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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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/32/: accessed June 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.