See Narramore v. Railway Co., 96 Fed. 298,1 and especially the language employed by Judge Taft (page 304) in pointing out the distinc tion between assumption of risk and contributory negligence.

In National Steel Co. v. Hore, 155 Fed. 62, 65, 83 C. C. A. 578, 581, this court had occasion to pass upon the question of assumption of risk by a plumber's helper in relation to the water block of a furnace, which required repairs, and consequent removal and replacing. The point arose both upon the overruling of a demurrer to the petition and the refusal of a peremptory instruction. In speaking of the respective duties of the employer, plaintiff in error, and of the employé, defendant in error, Judge Lurton said:

"It was the duty of plaintiff in error to guard against such accidents as could be foreseen as liable to occur by the exercise of reasonable care, and the defendant in error had a right to assume that the master had not unreasonably and negligently subjected him to danger that this block would blow out. To assume as matter of law that a common laborer, such as Hore was, should have known that there was this danger from the facts known to him, is going too far. To determine the effect of the conditions known to him in producing hazard, not ordinarily incident to his service in aiding in the disconnection of the water pipes supplying the block to be removed, would require a skill and judgment which ought not to be attributed as matter of law to one who is described in the petition as a plumber's helper and whose experience about such work does not appear. * * There is a distinction between knowledge of defects, or knowledge of alleged negligent acts, and knowledge of the risks resulting from such defects or acts."

In Harder & Hafer Coal Min. Co. v. Schmidt (before cited) 104 Fed. 282, 285, 43 C. C. A. 532, 535, where it appeared that appreciation of danger on the part of one employé was communicated to a mining boss, who assured him that his fears were unfounded, and another employé without knowledge of the danger was injured, it was held:

"Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employés and the employer, with the result that the employer dissuades the employé of his apprehension, and especially so where the particular employé injured is without any knowledge of its existence."

See, also, James B. Clow & Sons v. Boltz, 92 Fed. 572, 574, 34 C. C. A. 550; Choctaw, O. & G. R. Co. v. McDade, 112 Fed. 888, 892, 50 C. C. A. 591, affirmed in 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; Valley R. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 255; Mason & O. R. Co. v. Yockey, 103 Fed. 265, 268, 43 C. C. A. 228; Bartolomeo v. McKnight, 178 Mass. 242, 246, 59 N. E. 804, before cited; Kranz v. L. I. R. Co., 123 N. Y. 1, 5, 25 N. E. 206, 20 Am. St. Rep. 716; Wellston Coal Co. v. Smith, 65 Ohio St. 70, 61 N. E. 143, 55 L. R. A. 99, 87 Am. St. Rep. 547; Davis v. Turner, 69 Ohio St. 101, 68 N. E. 819. But it is not necessary to cite further decisions.

The class of decisions relied on so confidently by learned counsel for the company deny liability of the master, either where dangerous conditions and the perils ordinarily attending them are in truth known and appreciated alike by employer and employé, or where such conditions are manifestly as readily observable by the one as the other. But

37 C. C. A. 499, 48 La R. A. 68.

we are not satisfied that the facts upon which those decisions are based are analogous to the facts appearing in the present record.

As regards the claim that the decision of this court in Morgan Const. Co. v. Frank, 158 Fed. 964, 86 C. C. A. 168, is controlling here, it is enough to say that the court found that the place became dangerous only through the prosecution of the work carried on by the fellow servants of intestate, and that the master had not knowledge of the conditions for a sufficient length of time to enable him either to cause the iron plates which occasioned the injury to be removed, or the mode of piling them to be changed. Plainly these facts differ materially from those shown in the present case.

The judgment must be affirmed, and it is so ordered.

STANDARD PAINT CO. v. BIRD et al.

(Circuit Court, S. D. New York. January 24, 1910.)

1. PATENTS (§ 230*)-INFRINGEMENT-USE OF EQUIVALENTS.

To infringe a patent for a process of manufacture and its product, the alleged infringer must use the ingredients claimed to be those used in the process, or used to form the product, or a well-known equivalent therefor. It is not sufficient that tests or experiments have shown that some substance not claimed, and at the time the patent was applied for and granted not known, to be an equivalent, had proved just as good or just as efficient in the combination as a substitute for the ingredient claimed, and is used in its stead.

[Ed. Note.-For other cases, see Patents, Cent. Dig. § 367; Dec. Dig. $ 230.*]

2. PATENTS (§§ 246, 247*)-INFRINGEMENT-PATENT FOR COMBINATION.

There may be an infringement of a combination patent by adding an element or an ingredient to obtain the same result, or substantially the same, but not by leaving out an ingredient or an element of the combination, and not substituting an equivalent.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 387, 388; Dec. Dig. §§ 246, 247.*]

8. PATENTS (§ 328*)—VALIDITY AND INFRINGEMENT-COLORED ROOFING.

The Rugen and Abraham patents, No. 775,635 and No. 775,636, the latter being for an improvement on the former, and both for a process of making a flexible roofing or flooring and the resulting product, have for their object the production of a flexible weather-proof roofing in colors other than black, which is attained, as described and claimed therein, by pressing, hot, upon and into a foundation of paper, felt, etc., a colored facing consisting of a pigment and a mixture of a resinous body and a fatty body. Held, that such patents are not void for anticipation, nor indefiniteness or uncertainty of description, and in view of the superiority of the product as respects durable colors other than black, or very dark, over anything in the prior art, disclose patentable invention. Such patents also held infringed by a roofing in which the facing, applied in the same manner, consists of a pigment mixed with stearin pitch, which is, in itself, both a resinous and a fatty body.

4. PATENTS (§ 118*)-VALIDITY-SUFFICIENCY OF DESCRIPTION.

It is enough that a patent so fully describes a process or a product that one reasonably skilled in the art may practice the process or manufacture

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the product, and that others may know with reasonable certainty whether or not they are infringing it.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 1702; Dec. Dig. § 118.*]

5. WORDS AND PHRASES "STEARIC ACID."

"Stearic acid," sometimes called stearin, is the solid constituent of fatty substances, as of tallow and olive oil, converted into a crystalline mass by saponification with alkaline matter, and abstraction of the alkali by an acid.

[Ed. Note. For other definitions, see Words and Phrases, vol. 7, pp. 6655, 6656.]

In Equity. Suit by the Standard Paint Company against William B. Bird, Charles T. Carruth, and Reginald W. Bird, partners as J. A. & W. Bird & Co. On final hearing. Decree for complainant.

Suit to restrain alleged infringement of the eight claims of United States letters patent No. 775,635, dated November 22, 1904, to Louis C. Rugen and Herbert Abraham, assignors to the Standard Paint Company, for flexible roofing or flooring, and also to restrain alleged infringement of claims 4, 9, and 11 of United States letters patent No. 775,636, dated November 22, 1904, to said Rugen and Abraham, assignors to said Standard Paint Company, for weather-proof covering.

Kenyon & Kenyon (Alan D. Kenyon, of counsel), for complainant. Samuel T. Carter (Marcus B. May and William Quinby, of counsel), for defendants.

RAY, District Judge.. Both patents in suit relate to flexible weatherproof prepared roofings, while they may relate to flexible weatherproof prepared floorings, if desired.

The complainant's roofing, made under the patents in suit, is generally known as "Colored Ruberoid." Its main use is in place of shingles, slate, tin, etc., on roofs. The leading objects of these patents were to produce flexible weather-proof roofings in colors other than black. The flexible water-proof and weather-proof roofings of the prior art were black, or of a brownish black, unless painted. The flexible roofings made according to the claims of these patents are not painted to give them color, but the coloring matter is contained in and carried by the material forming what is known as the facing of the foundation. So carried in and forming a part of the facing of the roofing, the color is as durable and permanent as the facing itself, and does not crack or peel off or wear away, leaving the facing and foundation of black or brownish black, as does paint.

The roofing of the defendants alleged to infringe is known as "Zolium." I think the evidence establishes that the first successful colored roofing upon the market was this Colored Ruberoid, made in accordance with the claims of the patents in suit. They are popular, and have an extensive and increasing sale. They are pleasing and attractive in appearance to those who desire a colored roof and who use a roofing of this character. It is shown that these roofings are durable and serviceable, and that the coloring is permanent.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

In a flexible water-proof and weather-proof roofing it is necessary to use for a foundation, at least, some suitable material, such as heavy paper, felt, cloth, or burlap, which must be saturated with a waterproof compound containing hydrocarbon material, or such foundation. must be coated with such a compound. In the prior art the persistence and intensity of the black of the hydrocarbon or similar impregnating or coating materials was sure to drown the coloring material, other than black, put into the mixture, and as a result he who would have a colored roof of this character must resort to painting the weatherproof foundation, or the facing in case a facing was added to the foundation. There were other difficulties to be overcome, such as the cracking, peeling, and disintegration of the colored surface, and it was necessary to avoid a sticky surface, which would cause the folds of the rolls to adhere to each other when the material was on the market. The evidence shows that much time and money were expended in making tests and experiments to perfect the invention claimed.

The first patent mentioned, No. 775,635, contains six process claims and two claims for the product as a new article of manufacture. Claim 1 covers the herein described process of manufacturing a flexible material which consists (1) in impregnating a suitable fabric with a hydrocarbon mixture, and (2) then applying to the foundation thus formed, and (3) while the hydrocarbon mixture is soft and plastic, (4) a colored facing consisting (5) of a pigment and (6) a mixture of a resinous body, with (7) a fatty body; (8) the said facing being applied in a heated, plastic condition, so as to cause said coating to interlock with the foundation. Claim 7 calls for, as a new article of manufacture, (1) a flexible material; (2) said material comprising three portions, viz., (a) a foundation containing a hydrocarbon; (b) a facing containing a resinous body and a fatty body; and (c) an intermediate portion formed by the interlocking of the foundation and the facing. Claim 8 calls for, as a new article of manufacture, (1) a flexible material, having (2) a foundation with a hydrocarbon ingredient, and (3) a facing containing a resinous body and a fatty body; and (4) said facing and foundation being so interlocked that the hydrocarbon of the foundation and the two ingredients of the facing, viz., the resinous body and the fatty body, are all three present in (5) an intermediate portion.

Turning to the specifications, we find the following:

"In order to produce such a carrier or flux, we have made use of one or more of the class of bodies known chemically as 'resins,' and have combined them with waxes, fats, or oils."

Immediately before that the patent says:

"The carrier for the pigment consists of a substance or mixture which shall be to a greater or less extent weather-proof or resistant to oxidation, and which shall be flexible and, moreover, transparent, translucent, or at least light-colored, so that its own color may be modified or entirely obliterated by the addition of a pigment. Of course, another requisite of this carrier or flux, as it might be called, is that it should not injuriously affect the foundation, nor be itself injuriously affected thereby."

In another part of the specifications the patent says:

"We have referred to the ingredients of the carrier or flux as being a 'resin' or a mixture of resins, on one hand, and 'fats, oils, waxes,' or a mixture of them, on the other hand."

Each and every one of the claims of the patent uses the words "resinous body." It is claimed by the defendants that these claims are limited and restricted to what are known and recognized as chemical resins. In another part of the specifications it is said:

"The procedure in manufacturing the improved fabric is as follows: The foundation is prepared in any approved manner. The carrier or flux is then prepared by mixing and fusing together the oil, fat, or wax, or mixtures of oils, fats, and waxes, with resin or mixtures of resins."

The hydrocarbon foundation is old. The facing of such a foundation, formed or composed of a carrier containing a resinous body and a fatty body, was also old, and the combination or interlocking of the foundation with such a facing by heat was old. The problem was to introduce into the facing, composed of the resinous body and the fatty body, a pigment, or coloring matter, other than black, which should be carried in, not on, and retained by, the facing, and be of sufficient strength of color to overcome and drown the black of the hydrocarbon foundation, instead of being drowned by it, either by the interaction of the two or otherwise. The specifications say:

"Our invention relates to coverings of a flexible nature, such as are used principally for roofing and flooring. It has been found that, while such coverings can be made to fulfill all requirements of use, the production of ornamental effects is very difficult or practically impossible, since the incorporation of various pigments has so far proved just as unsatisfactory as the application of paints or varnishes to the water-proof roofing of the present construction. In all such cases the attempt has failed, either because the foundation has been injuriously affected by the vehicle of the pigment or other material, or because the colored coating could not be maintained flexible or permanent. Our present invention successfully overcomes these difficulties, by combining with the foundation a carrier or binder and a pigment so constituted and applied that they not only are thoroughly united with the foundation, so as to prevent cracking and peeling off; but, further, all injurious interaction between the constituents of the foundation and those of the pigment and its carrier is avoided."

Also, after describing what "we have made use of," the specifications say:

"By the use of these two combined ingredients-that is, a resin, on one hand, and a wax, fat, or oil, on the other hand-we produce a carrier or flux which in a molten condition receives pigments of various characters remarkably well, which is resistant yet flexible, which, when applied to a foundation of the character hereinbefore described, will have no injurious effect thereon, nor itself deteriorate, and which, moreover, can be made to adhere permanently and strongly to the said foundation."

The specifications also, as quoted, speak of "a mixture of resins," on the one hand, and fats, oils, waxes, or mixtures of them, on the other hand, as the ingredients of the carrier, and which, when combined or mixed with the pigment, form the "facing." This facing is made by "mixing and fusing together the oil, fat, or wax," or mixtures thereof, "with resins or mixtures of resins." This mass is heated to about a certain point, and "when thoroughly mixed and free from