Opinion of the Court.

guide to help the operator to steady the shoe under the action of the polisher while in motion by grasping the hook with his finger."

In answer to the question, "Please point out upon the exhibit Helms's model, the part referred to in the patent as the rest for the face of the sole?" he said, "That part I should designate as below the polisher and on the front of the book." He again states that it was his original intention to keep the tread or bottom of the sole in contact with the face of the finger-hook while burnishing the toe portion of the shoe, and that it was feasible on a great many kinds of goods. He also states that the drawing of the patent shows, according to his judgment, that the tread or bottom of the sole does not touch the front face of the finger-rest, "which appears to me to differ somewhat from the real intention shown by me." On being subsequently recalled, however, and being shown the Patent Office model of his patent, he says he should not think it possible to polish the sole properly on a machine of that pattern while holding the face of the sole against the finger-rest; and upon being asked what he intended to be the rest for the face of the sole in burnishing sole edges with such machine at the time he filed his application for patent, says: "I shall have to say that when I filed the application for this patent, which the model represents, that it must have been the back lip of the polisher shown in the model." In fact his testimony is so confused and contradictory that it is impossible to make anything out of it, except that, on finding his finger-rest to have been anticipated, he fell back upon the rest for the face of the sole, as a dernier resort, to save his patent, without clearly understanding in his own mind what was meant by the words.

A witness who had used the machine at a factory in Albany testified, that during four seasons he burnished sole edges on the Helms machine, always resting the face of the sole against the finger-hook. Another, who was foreman of a shop at Brockton, Mass., testified that when the machine was first used they placed the face of the shoe against the tool, and the face of the sole against the finger-rest, and so used it for

Opinion of the Court.

about four weeks. It would appear from this testimony that the patentee's original idea was that the front face of the finger-rest constituted a rest for the face of the sole, and that in accordance therewith the first machines were made with the finger-rest projecting far enough forward under the burnishing tool to furnish a rest for the sole. This, however, was found to be impracticable, and the use of the upper part of the finger-hook as a rest seems to have been abandoned, and the claim made that the lower flange was intended as a rest. The truth seems to be that, if the finger-rest be moved far enough forward and the front surface shaped at the proper angle, the face of the sole can be rested thereon, but when inoved some distance back it becomes impracticable.

We do not find it necessary, however, to express a decided opinion as to the construction of this patent. In view of the ambiguity of the language used, and of the confusion and contradiction in the oral testimony, we prefer to adopt the construction contended for by the plaintiff, and dispose of the case upon another ground. Conceding the plaintiff's construction to be correct, and reading the first claim as if the rest for the face of the sole were a distinct element, we find the combination of this claim to consist, 1, of a burnishing tool; 2, a flange at the lower edge of such tool, against which the operator may rest the sole; 3, a finger-rest. All of these elements are old. Burnishing tools have been employed for finishing off the edges of boot soles from time immemorial, and the flange or guard which the patentee dignifies as a rest for the face of the sole was attached to the old hand tools before the invention of burnishing machines, and has since been attached to machines operated by power, as shown in patent No. 28,181, to Elias T. Ingalls, which describes a reciprocating tool having a flange or guard, called in the patent "a horizontal lip," which bears on the face of the sole. It may be true that Helms was the first to use a burnishing tool having a guard, in connection with a finger-rest, and that his machine is probably superior to other devices of like design, but as all of these elements were old, and no new function is performed by the combination, it is a case of mere aggiega

Opinion of the Court.

tion, which it is well settled is not patentable. The Tayman patent shows the finger-rest in connection with a cutter for trimming the edge of the sole, at one end of a shaft, at the other end of which is a revolving burnisher, to which Tayman did not see fit to attach his finger-rest. It certainly did not require invention to change the finger-rest from one end of the shaft to the other, or to attach it to a reciprocating instead of a revolving burnisher, both being old, nor does it add to its importance to change the name of the guard or lip, and call it a rest for the face of the sole.

Undoubtedly the result is a more perfect machine, but it is simply more perfect because of the coöperation of a greater number of elements, and not because of any new function performed by the combination. Counsel for the plaintiff has made a most ingenious argument to show that a new function is performed by the combination in determining the tilt or slant of the sole by the angle required of the edge with the tread. But that is rather an incident to the operation of the machine, attributable to the skill and deftness of the operator, than any new and distinct function belonging to the machine itself.

If any separate function had been performed by this combination, it is somewhat singular that the patentee did not call attention to it in his original application, or until after the main feature of his patent was shown to have been anticipated. We think that this patent falls within the many rulings of this court holding that a mere aggregation of old elements in a new relation is not the subject of a patent. Reckendorfer v. Faber, 92 U. S. 347; Pickering v. McCullough, 104 U. S. 310; Stephenson v. Brooklyn Cross-Town Railroad, 114 U. S. 149; Hendy v. Miners' Iron Works, 127 U. S. 370; Hailes v. Van Wormer, 20 Wall. 853.

It results that the decree of the court below dismissing the bill must be

Affirmed.

Statement of the Case.

BROWN CHEMICAL COMPANY v. MEYER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 226. Argued March 18, 1891.- Decided April 6, 1891.

Words which are merely descriptive of the character, qualities or composition of an article, or of the place where it is manufactured or produced, cannot be monopolized as a trade mark.

An ordinary surname cannot be appropriated as a trade mark by any one person as against others of the same name, who are using it for a legitimate purpose; although cases are not wanting of injunctions issued to restrain the use even of one's own name, where a fraud upon another is manifestly intended, or where he has assigned or parted with his right to use it. The owner of a trade mark, bearing his own name, which is affixed to articles manufactured at a particular establishment, may, in selling the latter, confer upon the purchaser exclusive authority to use the trade mark.

THIS was a suit in equity instituted by the Brown Chemical Company, a corporation organized under the laws of Maryland, against the firm of Meyer Brothers and Co., of St. Louis, in the State of Missouri, to restrain an unfair competition in trade. The bill averred, in substance, that plaintiff had been engaged in the preparation of a certain medicine, which had acquired a high reputation as a remedy for the prevention and cure of many diseases; that in 1879 it devised and used a certain label, consisting of four sides or panels, the front one of which bore the representation of a lion's head, above which was printed the word "Brown's;" in the mouth of the lion was suspended a rod or bar, having dependent therefrom a banner or streamer, bearing the words "Iron Bitters," printed in large, conspicuous letters, and separated by a circular design occupying the central field of the banner. The three remaining panels had also printed thereon the words "Brown's Iron Bitters," in various places, and arranged as shown in the label; that since plaintiff acquired its right in the premises the defendants fraudulently offered and sold medicine put up in bottles, to which labels were attached, containing the words "Brown's Iron

Statement of the Case.

Tonic," which were intended to indicate that the medicine contained in said bottles was that prepared by the plaintiff, which said preparation the defendants had fraudulently caused to be offered and sold as and for plaintiff's preparation; and that large quantities of "Brown's Iron Tonic" had been sold as and for plaintiff's "Brown's Iron Bitters," and frequently mistaken therefor.

The answer admitted most of the allegations of the bill so far as they related to the preparation and sale of Brown's Iron Bitters, denied any fraudulent intent with respect to defendants' own label, and averred that in the summer of 1881 one E. L. Brown, in connection with one C. J. Lincoln, commenced putting up and selling Brown's Iron Tonic at Little Rock, Arkansas, as a wholly distinct preparation from Brown's Iron Bitters, and with no intention or purpose of imitating plaintiff's preparation, which at that time had not been advertised or sold to any great extent; that subsequently Brown sold out his interest in said preparation to Lincoln, who has since that time been putting up said medicine and offering it to the public in cartons and bottles wholly different in size, color and appearance from plaintiff's bottles, and with labels attached to the bottles wholly different in size, color, appearance and details from plaintiff's labels, and enclosed in wrappers very dif ferent from the cartons of Brown's Iron Bitters, so that the public could not be misled or the plaintiff injured.

The case as made by the respective parties did not differ materially from their pleadings.

In explanation of the manner in which defendants' preparation originated, Brown swore that from August, 1869, to May 1, 1881, he was travelling salesman for a Louisville wholesale drug house, and during that time travelled extensively in the Southwest, and became generally known to the trade. In May, 1881, he formed a partnership with C. J. Lincoln, of Little Rock, which was dissolved in December, 1883. The firm name was part of the time C. J. Lincoln, and part of the time Lincoln & Brown. Brown did not personally go to Little Rock until December, 1881, when, following out a preconceived notion, he instructed the chemist of the firm to prepare a for