Page:Federal Reporter, 1st Series, Volume 4.djvu/244

 280 FSDSBAIi BBFOBTBB. �enamelled cloth was used for protecting skirts a long time ago, and perhaps before 1861 ; but it is not proved to my satis- faction that it was used as a protector in the present sense. I think it was probably made into facings. The evidence of the witnesses who sold it is not, and could not well be, very distinct upon this point, as they were none of them women or dress-makers. This case does not vary substantially from the facts proved or taken for granted before the commissioner and before the late circuit judge, unless the evidence of the complainant herself in cross-examination will have that effeet. �The complainant, in her anxiety to prove that the Morrison "protector," which was a strip of enamelled cloth, sold for the purpose of protecting skirts, was used as a facing, and not as a protector in the more recent sense, has sworn that enamelled cloth of that sort would not be useful as a protector, because it would show its white or non-enamelled side below the dress, and because its edge would fray, and that this was the only enamelled cloth to be had in the market in 1861 and long after. "If thia be so," say the defendants, in substance, "how can you maintain that you invented this thing by the use of such cloth in 1861 ?" I think the answer to this argu- ment is that the plaintiff has always insisted that her use of the invention before 1865 was experimental. So strongly was this put by her in the Blackmar Case, that the defendants argued that she had experimented without success, and had abandoned her supposed invention. Judge Shepley found, as the commissioners had found, that there was no abandon- ment. Of course, if the invention was put into public use in 1861, the patent is void; but this point was not taken before the commissioner or before Judge Shepley. The patentee's account of it is that she took some pains to correct the defects of the old enamelled cloth, but did not fuUy reach a satisfactory resuit uûtil she had some cloth specially prepared for her after she had, as the commissioner says, resumed her exper- iments in 1872. �It is always ground for suspicion and serutiny that a pat- entee with one breath carries back his invention, and with the next declares it to have been so incomplete that his use ����