Page:Federal Reporter, 1st Series, Volume 7.djvu/878

 86:d rBDBSAIi BBFOBTBB. �Ootober 10, 1871, was the earliest date aBsigned to Heath's invention, and it appeareid t^iat, before that date, Topham
 * bad mnae papier mache cnaipiiois with T?eighted bottoms.

Now, it is showa in this ca^e that the application for Heath's patent was uled' before Topham made a papier mache cuspi- dor with a weighted bottom. Thia condition of the evidence destroys very much. the force of the New Jersey decision, aud makes it unoertain, at least, what the New Jersey decis- ion would have been, if such evidence had been in that ceise, anaif the expert teatipiony in this case had been in thp,t case, in viewof the facts that the shape and material and iuode of construction of the fieath article are so entirely different from the shape and material and mode of construc- tion pf the article describedin the Topham patent. �It is a striking fact that prior to the introduction into use pf the Heath metallic, loaded-bottom cuspidor, there was not on sale in the market any nietallic, loaded-bottom cuspidor. The Topham loaded-bottom papier mache spittoon is not shown to have suggested to any one the making of a metallic, loaded-bottom cuspidor like that of Heath's. The metallic cuspidors of Musgrove were not loaded at the bottom, and were merely experimental, and whate ver invention there was in them was incomplete aud was abandoned. But the his- tory of Musgrove's experiment, as gi'ven by himself, goes far to show that the making of Heath's cuspidor was not the obvious thing that it is now, after the event, claimed to have been. Musgrove failed to see what T^as needed, and because he 80 failed he stopped, short of the Heath invention. The Dalby metallic spittoon did not embody the features of Heath's metallic cuspidor. It was not a cuspidor, and was not loaded at the bottom, and was not self-righting, and the third piece forming the top was not joined to theupper part of the body but rested on it. The Manning tea-pot and the tin pitcher are ueither of them loaded at the base, nor are they self-righting, nor did they ever suggest the makmg of such a cuspidor as Heath's, with a loaded bottom. Many articles had, prior to Heath's invention, been made of three or more pieces of sheet metal joined together by horizontal seams. ��� �