Page:Federal Reporter, 1st Series, Volume 9.djvu/716

 BOYKIN V. BAKER. 701 �is identical with the Liebig formula, except that it calls for ground plaster instead of calcined plaster, was printed and circulated for him in 1875. �This evidence is very persuasive in support of the defence of prior public use, and goes very far towards overcoming the presumption in favor of the patent. It bas very important weight, also, when con- sidered in connection with othet facts and testimony adduced to show the absence of patentable invention or discovery in the patented formula. �That the Liebig formula was the foundation of the one patented by the complainants there can be no doubt. The ingredients, with the changes above mentioned, are the same, the proportions are the same, the directions for mixing are in the same words, and the gen- erai similarity such as could not have been accidentai. Dr. Boykin, one of the complainants, and the only one examined as a witness, in his testimony states the circumstances which led him to introduee dissolved bone and ground plaster in the formula as patented by them. He says : �"As well as I can recollect, about 1872 or 1873, as we were In the drug busi- ness, customers began ordering frora us chemicals to make fertilizer^. ihe flrst order, I think, we had was from a partyin iforth Carolina,for a formula fcnown as Bryant's Compound, which was not very unlike formula No. 1, [the patented formula ;] worth probably three or four dollars a ton more. The quan- tities were larger. They used South Carolina phosphate in place of bone. Later on we had orders for formulas very similar to what is known now (I did not know it at that time) as Liebig's Compound and Harris' Compound, all vary- ing in amounts, in the articles, but not very unlike. When We would get ofders for these difEerent formulas from one party, in the same neighborhood probably somebody else, not knowing what the formula was, would wi-ite us to know what the formula was. We issued two or three circulars, with these two or three formulas on them, in order to save writing letters aiid answering in that way. Finally, from our observation of the success of certain ones, we were led to introduee dissolved bone as being superiortoanything else. After using that for awhile the demand for it was so great (we saw the value of it, and issuing these circulars was making a reputation and name for it in cer- tain localities, by persons who saw other parties whom we had given the article to and were buying it) that we were induced to settle upon this article of dissolved bone as being an improvement on any other that we had seen, and the ground plaster an improvement on calcined; and we made application for a patent." �In another part of his te^timonv, in an«iwer to a question as to the date when the changes in the formula wexe made, he says : ��� �