Page:Federal Reporter, 1st Series, Volume 3.djvu/647

 €ÎJO FeDEEÀIi BEPOBTBB. �dëar and satisfactory proof to thô contrary. Some of the cases hold that the defence that the patentee was not the original and first inventor of the patented i^ubject can only prevail when shown beyond any reasonable doubt. Crouch V. Spear, 6 0. G. 187; Hawes v. Antisdell, 8 0. G. 685. �These defences in this case wholly fail when tested by the rules applicable to them. The strongest case is made in ref- erence to the prior use of the formula by D. B. Smith and those in his employ. The proofs show that Mr. Buchanan ■was the first person to introduce the article of birch beer to the trade at Binghamton, and did so in the spring of 1871. His beer was favorably received, and his competitors in the eame line of business were stimulated to attempt the produc- tion of a similar article. Among these competitors was D. B. Smith. He had previously been carrying on business with Mr. Vincent, but they had dissolved, and each was engaged in the business of making and selling summer beverages sep- arately. These defendants were in the employ of Smith, and continued in his employ until 1875, when Smith sold out his business to them. Smith commenced making birch beer in the summer or fall of 1871, Sometimes he made it with birch bark, and sometimes he used oil of wintergreen. He experimented, also, with ofl of birch. But it is apparent ha never discovered the complainant's formula, because he was never able to make an article which was entirely aatisfactory, as would have been the case if he had used the complainant'a formula. If he had discovered the complainant's process he would have used the oil of wintergreen in decided preference to the birch bark, but it is shown that as late as 1876 the defend- ants, who knew ail about Smith's process, and who at that time had succeeded to his business, were experimenting with birch bark, and it was not untn after that time that they finally discarded its use. During ail these years, also, Smith and the defendants had been experimenting with other ingre- dients, and, as is now claimed by the defendants, in 1873-4 they used sapindus, and since 1877, cochineal also. It would seem that the defendants had not found a process which waa ����