Page:Federal Reporter, 1st Series, Volume 9.djvu/719

 704 FEDERAL REPORTER. �and to which they were attached. Accepting this explanation, still the circular does clearly show that the complainants did not then think that their change in the Liebig formula was anythmg in the nature of a new discovery. In this long and full circular, in which they use many arguments to prove the excellence of the fertil- izer now patented, they not only do not call any attention whatever to the change as new and important, but they felt at liberty to use letters written with regard to a formula which they now claim was essentially different ; and, moreover, they then expressly declared to the public that they did not claim the altered formula as any spe- cial ty of theirs. �This is not similar to a case of alleged abandonment of an inven- tion. It is not a case in which an inventor says, "I do not intend to patent my invention;" but it is a case where parties having en- tirely perfected what they subsequently claim as a discovery, say, when the whole matter is fresh under their hands, "This is nothing new ; we disclaim it as any specialty of ours." It seems to me that this disclaimer so made is entitled to great weight, and, considering it in connection with all the other facts and testimony in the case, I am convinced that the change made by the complainants in the Liebig formula, even if they were the first to make it, which would appear extremely doubtful, was not the resuit of invention or dis- covery. �In the state of the general knowledge concerning fertilizers which existed on the first of March, 1876, I cannot think that it required experiment or invention to find out that dissolved bone might be, for some purposes and for some soils, profitably substituted for ground bone. In the language of Judge Lowell, (Smith v. Nichais, 1 Holmes, 175,) it was "the application of known means in a known way to produce a known resuit." As was said by the supreme court in the same case, on appeal, (21 Wall. 119,) — �"A mere cari-ying forward or new or more extended application of the orig- inal thought, a change only in form, proportions, or degree, the substitution of equivalents doingsubstantially the samething in the same way by substantially the same means with better results, is not sueh invention as will sustain a patent." �The process, as detailed by Dr. Boykin, by which the complainants were led to adopt the patented formula, is not such as suggests a patentable mental resuit. They were dealers in drugs, selling the chemicals required by farmers for compounding fertilizers, and by ��� �