Page:Federal Reporter, 1st Series, Volume 9.djvu/619

 604 FEDERAL REPORTER. �before it was discovered by the patentees. If the depositions of Smith and Lee, his foreman, are true, the defence of prier diseovery and use is well sustained. But are these depositions reliable ? The wit- nesses have been severely attacked and successfully impeached, in 80 far as evidence assailing the general character of a witness can discredit their testimony. But this successful assault upon the gen- erai character of these two witnesses does not necessarily exclude their testimony from consideration. The law recognizes the possi- bility of a witness of general bad character telling the truth, and therefore permits such -witnesses to testify, — their evidence to be received for whatever, under the circumstances of the particular case, the tribunal charged with the duty of passing on and deciding the faets may deem it worth. It therefore becomes our duty to eon- sider and decide how much weight ought to be given to the testimony of these witnesses, as against the prima facie case made by the pat- ent itself. The patent is evidence of its own validity, and hence the burden of proof to invalidate it rests upon the defendants. Every reasonable doubt ought to be resolved against them, and if, proceed- ing on this hypothesis, it shall be found that Smith's alleged diseov- ery, etc., was incomplete, and resting on speculation and experiment only, or that the evidence on this point is evenly balanced, it cannot avail to defeat complainants' patent. Let us now examine the testi- mony and see how the fact in this regard is. �As preliminary to the main question, it is perhaps proper to remark that the defendants on the former hearing contended that complain- ants' patent had been anticipated by English and American patents, issued to other parties. But this defence was rejected as untenable. I still adhere to the opinion then expressed. Although said several anticipating inventions had been auccessfully used in marking soap, tobacco, and other substances, with thenames of tue manufacturera, or with such other trade-mark or identifying mark as the manuf ac- turers chose to impress on the product of their labors, neither of such inventors hadconceived or clearly developedthe precise proeess which constitutes complainants' diseovery. But these prior discoveries re- fiected more or less light upon this general subject, if they did not distinctly suggest the identieal idea which contitutes complainants' invention. The surprise is, therefore, not that Smith should have blundered upon the same thought, but that the thing patented had not occurred to some one at an earlier date. �Smith says that he did conceive the idea, and prooeeds to detail the different steps taken to develop it. He was a manufacturer in a ��� �