Page:Federal Reporter, 1st Series, Volume 4.djvu/243

 MACDONALD ». SHEPAED. 229 �which is described by her, could not be used for a protector operating like plaintiff's; and, as to Mackey's patent, he says it is for a facing which only extends to the edge of the skirt, and that braid is the protector to Mackey's skirt. He then considers the plea of abandonment and decides against it. �The grounds, then, upon whieh the patent was granted were, an invention earlier than Chase's, namely, in 1861 ; that it had not been abandoned ; and that it was not anticipated by a skirt "facing" which extended only to the bottom of the dress and was bound in with it by a piece of braid. �It is, undoubtedly, trae that the discrimination between a protector and a facing had not been made in common speech at the time of this decision. Facings are protectors, in a broad sense, and they were called so before protectors, in the sense of the patent and disclaimer, had corne into use. The commissioner found that enamelled cloth was used for facings of skirts before Miss Macdonald made her invention. He might have added that they were called "protectors;" but since strips of water-proof material bave been used to hang below the skirt and braid to protect both, the narae is more generally applied, as the office applied it, to thislatter article. �Judge Shepley's decision agrees entirely with that of Mr. Leggett, though whether he had the latter opinion before him I do not know. In Macdonald v. Blackmar, 9 0. G. 746, he says : "I see no reason to doubt that she (Miss Macdon- ald) was the first and original inventor of this article, as dis- tinguished from a skirt facing, which is an entirely different article, and from a skirt protector, which, being made of wigan or similar material, was substantially useless for the purpose as compared with the complainant's invention." �Judge Blatchford bas found, upon a preliminary hearing by affidavits, that the date fixed by the commisioner for the plaintiff's invention was rightly fixed. He also agrees with me that the invention includes a plain as well as a fluted or plaited form of water-proof skirt protector. 18 0. G. 193. This is a somewhat nice question of construction, but I still think it the better opinion. �The evidence in this case brings out very clearly that ����