Page:Federal Reporter, 1st Series, Volume 3.djvu/648

 ROGBRS «. BEËCHeR. 641 �entirely satisfaôtory to thetounta 1877. The complaînant's priorite of discovery cannot be overtbrown 1^ any Buch evi- dence of anticipation as is disclosed here. �The complainant bas made a prima facîe case on the issue of infringement, by proving a substantial similarity between the product of bis process and the defendants' beer in taste, appearance, and general characteristics ; and he bas supple- mented the evidence by the testimony of a former employe of the defendants, wiio professes to give the .formula used by the defendants in making their beer. This witness does not claim that defendants used the formula described in com- plainant's second patent. I do not credit the testimony of this witness as to the formula used by the defendants. He was in the defendants' employ but a short time, and then was not employed in manufacturing, but in outside work, and was discharged by them, and is now in their debt. It was well known at the time that the complainant claimed the defend- ants were infringing his patent, and notices and circulars to the trade had already been circulated on the subject by both parties. It is altogether probable that defendants, if they were seeking to avail themselves of complainant's process, would, under the circumstances, have adopted some colora- ble departure from it. But it is quite improbable that they would thus bave put themselves in the power of an employe. �The case then resolves itself into the single question, whetber the proof of similarity in the manufactured articles is sufûcient to overcome the direct testimony of the defend- ants. The defendants seem to be men of character, and there is nothing in their testimony to discredit their veracity. It appears they had been able to make a satisfactory article of birch beer before complainant obtained his first patent, and the evidence to show a difference between that article and their present product is quite vague. It would seem that an analysis might bave been made, and the fact ascertained whetber or not the defendants' product contains the varions ingredients of the complainant's formula in substantially the same proportions, and whetber or not the foreign ingredients used by the defendants are of any importance- WWle I am �v.3,no.ll— 41 ����